Exhibit 4.1
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EXECUTION COPY
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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities Administrator,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated May 31, 2007
-------------------------
Mortgage Pass-Through Certificates
Series 2007-D
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Page
Section 1.01 Defined Terms...............................................................................8
Section 1.02 Interest Calculations......................................................................57
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans...............................................................58
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage Loans...............................63
Section 2.03 Representations, Warranties and Covenants of the Master Servicer...........................67
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans...................68
Section 2.05 Designation of Interests in the REMICs.....................................................69
Section 2.06 Designation of Start-up Day................................................................70
Section 2.07 REMIC Certificate Maturity Date............................................................70
Section 2.08 Execution and Delivery of Certificates.....................................................70
Section 2.09 Establishment of the Trust.................................................................71
Section 2.10 Purpose and Powers of the Trust............................................................71
Section 2.11 Rights of the NIMS Insurer.................................................................72
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.....................................................72
Section 3.02 Monitoring of Servicers....................................................................73
Section 3.03 Fidelity Bond; Errors and Omissions Insurance..............................................75
Section 3.04 Access to Certain Documentation............................................................75
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims...................................75
Section 3.06 Rights of the Depositor, the Securities Administrator and the Trustee in Respect of
the Master Servicer........................................................................76
Section 3.07 Trustee to Act as Master Servicer..........................................................76
Section 3.08 Servicer Custodial Accounts and Escrow Accounts............................................77
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer Custodial Account, Certificate
Account and Rate Cap Carryover Reserve Account.............................................77
Section 3.10 Access to Certain Documentation and Information Regarding the Mortgage Loans...............81
Section 3.11 Permitted Withdrawals from the Certificate Account and the Master Servicer
Custodial Account..........................................................................81
-i-
Section 3.12 Maintenance of Hazard Insurance and Other Insurance........................................82
Section 3.13 Presentment of Claims and Collection of Proceeds...........................................83
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements..................................83
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property....................................84
Section 3.16 Trustee to Cooperate; Release of Mortgage Files............................................85
Section 3.17 Documents, Records and Funds in Possession of the Master Servicer to be Held for
the Trustee................................................................................86
Section 3.18 Master Servicer Compensation...............................................................87
Section 3.19 Advances...................................................................................87
Section 3.20 Annual Statement as to Compliance..........................................................88
Section 3.21 Assessments of Compliance and Attestation Reports..........................................88
Section 3.22 Reports to the Commission..................................................................91
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate..............................................................98
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;REMIC ADMINISTRATION
Section 5.01 Distributions..............................................................................98
Section 5.02 Priorities of Distributions on the Shifting Interest Certificates..........................99
Section 5.03 Priorities of Distributions on the Overcollateralized Certificates........................105
Section 5.04 Allocation of Losses......................................................................110
Section 5.05 Statements to Certificateholders..........................................................113
Section 5.06 REMIC Tax Returns and Reports to Certificateholders.......................................119
Section 5.07 Tax Matters Person........................................................................120
Section 5.08 Rights of the Tax Matters Person in Respect of the Securities Administrator...............121
Section 5.09 REMIC and Grantor Trust Related Covenants.................................................121
Section 5.10 Determination of One-Month LIBOR..........................................................123
Section 5.11 Master Servicer, Securities Administrator and Trustee Indemnification.....................123
Section 5.12 Supplemental Interest Trust...............................................................124
Section 5.13 Tax Treatment of Swap Payments and Swap Termination Payments..............................126
Section 5.14 Grantor Trust Administration..............................................................126
Section 5.15 Distributions on the Exchangeable Certificates............................................128
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates..........................................................................129
Section 6.02 Registration of Transfer and Exchange of Certificates.....................................129
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Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.........................................135
Section 6.04 Persons Deemed Owners.....................................................................135
Section 6.05 Transfer of Exchangeable REMIC Certificates and Exchangeable Certificates.................135
Section 6.06 Exchanges of Exchangeable REMIC Certificates and Exchangeable Certificates................136
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master Servicer...........................137
Section 7.02 Merger or Consolidation of the Depositor or the Master Servicer...........................137
Section 7.03 Limitation on Liability of the Depositor, the Master Servicer and Others..................138
Section 7.04 Depositor and Master Servicer Not to Resign...............................................138
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.........................................................................139
Section 8.02 Remedies of Trustee.......................................................................141
Section 8.03 Directions by Certificateholders and Duties of Trustee During Event of Default............141
Section 8.04 Action upon Certain Failures of the Master Servicer and upon Event of Default.............141
Section 8.05 Trustee to Act; Appointment of Successor..................................................142
Section 8.06 Notification to Certificateholders........................................................143
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator............................................143
Section 9.02 Certain Matters Affecting the Trustee and the Securities Administrator....................147
Section 9.03 Neither Trustee nor Securities Administrator Liable for Certificates or Mortgage Loans....148
Section 9.04 Trustee and Securities Administrator May Own Certificates.................................150
Section 9.05 Eligibility Requirements for Trustee and the Securities Administrator.....................150
Section 9.06 Resignation and Removal of Trustee and the Securities Administrator.......................151
Section 9.07 Successor Trustee or Securities Administrator.............................................152
Section 9.08 Merger or Consolidation of Trustee or Securities Administrator............................153
Section 9.09 Appointment of Co-Trustee or Separate Trustee.............................................153
Section 9.10 Authenticating Agents.....................................................................154
Section 9.11 Securities Administrator's Fees and Expenses and Trustee's Fees and Expenses..............155
Section 9.12 Appointment of Custodian..................................................................156
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Section 9.13 Paying Agents.............................................................................156
Section 9.14 Limitation of Liability...................................................................157
Section 9.15 Trustee or Securities Administrator May Enforce Claims Without Possession of
Certificates..............................................................................157
Section 9.16 Suits for Enforcement.....................................................................158
Section 9.17 Waiver of Bond Requirement................................................................158
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement.................................158
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage Loans............................158
Section 10.02 Additional Termination Requirements.......................................................161
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.................................................................................162
Section 11.02 Recordation of Agreement; Counterparts....................................................164
Section 11.03 Limitation on Rights of Certificateholders................................................164
Section 11.04 Governing Law.............................................................................165
Section 11.05 Notices...................................................................................165
Section 11.06 Severability of Provisions................................................................166
Section 11.07 Certificates Nonassessable and Fully Paid.................................................166
Section 11.08 Access to List of Certificateholders......................................................166
Section 11.09 Recharacterization........................................................................167
Section 11.10 Regulation AB Compliance; Intent of the Parties; Reasonableness...........................167
Section 11.11 Third Party Beneficiary...................................................................168
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EXHIBITS
Exhibit A-1A1 Form of Face of Class 1-A-1 Certificate
Exhibit A-1A2 Form of Face of Class 1-A-2 Certificate
Exhibit A-1A3 Form of Face of Class 1-A-3 Certificate
Exhibit A-1A4 Form of Face of Class 1-A-4 Certificate
Exhibit A-1A5 Form of Face of Class 1-A-5 Certificate
Exhibit A-2AR Form of Face of Class 2-A-R Certificate
Exhibit A-2A1 Form of Face of Class 2-A-1 Certificate
Exhibit A-3A1 Form of Face of Class 3-A-1 Certificate
Exhibit A-3A2 Form of Face of Class 3-A-2 Certificate
Exhibit A-3A3 Form of Face of Class 3-A-3 Certificate
Exhibit A-3A4 Form of Face of Class 3-A-4 Certificate
Exhibit A-3A5 Form of Face of Class 3-A-5 Certificate
Exhibit B-XB1 Form of Face of Class X-B-1 Certificate
Exhibit B-XB2 Form of Face of Class X-B-2 Certificate
Exhibit B-XB3 Form of Face of Class X-B-3 Certificate
Exhibit B-XB4 Form of Face of Class X-B-4 Certificate
Exhibit B-XB5 Form of Face of Class X-B-5 Certificate
Exhibit B-XB6 Form of Face of Class X-B-6 Certificate
Exhibit B-M1 Form of Face of Class M-1 Certificate
Exhibit B-M2 Form of Face of Class M-2 Certificate
Exhibit B-M3 Form of Face of Class M-3 Certificate
Exhibit B-M4 Form of Face of Class M-4 Certificate
Exhibit B-M5 Form of Face of Class M-5 Certificate
Exhibit B-M6 Form of Face of Class M-6 Certificate
Exhibit B-M7 Form of Face of Class M-7 Certificate
Exhibit B-M8 Form of Face of Class M-8 Certificate
Exhibit B-CE Form of Face of Class CE Certificate
Exhibit C Form of Reverse of all Certificates
Exhibit D-1 OC Loan Group Mortgage Loan Schedule
Exhibit D-2 Loan Group 2 Mortgage Loan Schedule
Exhibit D-3 Loan Group 3 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 Certificate
Exhibit J List of Recordation States
Exhibit K Form of Initial Certification
Exhibit L Form of Final Certification
Exhibit M Form of Xxxxxxxx-Xxxxx Certification
Exhibit N Relevant Servicing Criteria
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Exhibit O Additional Form 10-D Disclosure
Exhibit P Additional Form 10-K Disclosure
Exhibit Q Form 8-K Disclosure Information
Exhibit R Form of Back-up Certification
Exhibit S Form of Additional Disclosure Notification
Exhibit T Interest Rate Swap Agreement
Exhibit U Interest Rate Corridor Agreement
Exhibit V Form of Request for Exchange of Exchangeable REMIC
Certificates or Exchangeable Certificates
Exhibit W Form of Transferor's Certificate Regarding Transfer of
Residual Certificate
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POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated May 31, 2007, is hereby
executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"), XXXXX
FARGO BANK, N.A., as master servicer (together with its permitted successors and
assigns, in such capacity, the "Master Servicer") and as securities
administrator (together with its permitted successors and assigns, in such
capacity, the "Securities Administrator"), and U.S. BANK NATIONAL ASSOCIATION,
as trustee (together with its permitted successors and assigns, the "Trustee").
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Securities Administrator and the Trustee agree as
follows:
PRELIMINARY STATEMENT
The Depositor intends to sell pass-through certificates (collectively, the
"Certificates"), to be issued hereunder in multiple Classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Estate created hereunder. The Certificates will consist of twenty-seven Classes
of Certificates, designated as (i) the Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-5, Class 2-A-1, Class 3-A-1, Class 3-A-2, Class 3-A-3,
Class 3-A-4 and Class 3-A-5 Certificates, (ii) Class X-B-1, Class X-B-2, Class
X-B-3, Class X-B-4, Class X-B-5, Class X-B-6, Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, (iii) the
Class CE Certificates and (iv) the Class 2-A-R Certificate. The descriptions of
the Shifting Interest Lower-Tier REMIC, the Shifting Interest Middle-Tier REMIC,
the Shifting Interest Upper-Tier REMIC, the Lower-Tier II REMIC, and the
Upper-Tier II REMIC that follow are part of the Preliminary Statement. Any
inconsistencies or ambiguities in this Agreement or in the administration of
this Agreement shall be resolved pursuant to the terms of Section 11.01 hereof
in a manner that preserves the validity of such REMIC elections described below.
-1-
Shifting Interest Lower-Tier REMIC
As provided herein, the Securities Administrator will make an election to
treat the segregated pool of assets consisting of the Shifting Interest Mortgage
Loans and certain other related assets subject to this Agreement as a real
estate mortgage investment conduit ("REMIC") for federal income tax purposes,
and such segregated pool of assets will be designated as the "Shifting Interest
Lower-Tier REMIC." The Class SI-LR Interest will represent the sole class of
"residual interests" in the Shifting Interest Lower-Tier REMIC for purposes of
the REMIC Provisions. The following table irrevocably sets forth the
designation, the Uncertificated Shifting Interest Lower-Tier REMIC Pass-Through
Rate, the initial Uncertificated Balance, and solely for purposes of satisfying
Treasury Regulations Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each of the Uncertificated Shifting Interest Lower-Tier Regular
Interests. None of the Uncertificated Shifting Interest Lower-Tier Interests
will be certificated.
--------------- --------------------- ------------------------------------------
Initial Uncertificated Shifting Latest Possible
Uncertificates Interest Lower-Tier Maturity
Designation Balance REMIC Pass-Through Rate Date(1)
--------------- --------------------- ----------------------------------- ------
2-L $98,830,885.22 Variable(2) June 20, 2037
--------------- ------------------ ---------------------------------------------
2-LS $2,767.55 Variable(2) June 20, 2037
--------------- ------------------ ---------------------------------------------
3-L $265,578,046.18 Variable(2) June 20, 2037
--------------- ------------------ ---------------------------------------------
3-LS $7,436.48 Variable(2) June 20, 2037
--------------- ------------------ ---------------------------------------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Shifting Interest Mortgage Loan with the latest maturity date has
been designated as the "latest possible maturity date" for each
Uncertificated Shifting Interest Loan Group Lower-Tier Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated Shifting
Interest Lower-Tier REMIC Pass-Through Rate" herein.
-2-
Shifting Interest Middle-Tier REMIC
As provided herein, the Securities Administrator will make an election to
treat the segregated pool of assets consisting of the Uncertificated Shifting
Interest Lower-Tier Regular Interests for federal income tax purposes, and such
segregated pool of assets will be designated as the "Shifting Interest
Middle-Tier REMIC." The Class SI-MR Interest will represent the sole class of
"residual interests" in the Shifting Interest Middle-Tier REMIC for purposes of
the REMIC Provisions. The following table irrevocably sets forth the
designation, the Uncertificated Shifting Interest Middle-Tier REMIC Pass-Through
Rate, the initial Uncertificated Balance, and solely for purposes of satisfying
Treasury Regulations Section 1.860G-1(a)(4)(iii), the "latest possible maturity
date" for each of the Uncertificated Shifting Interest Middle-Tier Regular
Interests. None of the Uncertificated Shifting Interest Middle-Tier Interests
will be certificated.
--------------- ----------------------------------- ----------------------------
Initial Uncertificated Shifting
Uncertificated Interest Middle-Tier Latest Possible
Designation Balance REMIC Pass-Through Rate Maturity Date (1)
--------------- ---------------- ------------------------------- ---------------
MRI-2-A-R $100.00 Variable(2) June 20, 2037
--------------- ---------------- -----------------------------------------------
MRI-2-A-1 $96,066,000.00 Variable(2) June 20, 2037
--------------- ---------------- -----------------------------------------------
MRI-3-A-1 $258,149,000.00 Variable(2) June 20, 2037
--------------- ---------------- -----------------------------------------------
MRI-X-B-1 $5,831,000.00 Variable(2) June 20, 2037
--------------- ---------------- -----------------------------------------------
MRI-X-B-2 $1,458,000.00 Variable(2) June 20, 2037
--------------- ---------------- -----------------------------------------------
MRI-X-B-3 $1,093,000.00 Variable(2) June 20, 2037
--------------- ---------------- -----------------------------------------------
MRI-X-B-4 $729,000.00 Variable(2) June 20, 2037
--------------- ---------------- -----------------------------------------------
MRI-X-B-5 $546,000.00 Variable(2) June 20, 2037
--------------- ---------------- -----------------------------------------------
MRI-X-B-6 $547,035.43 Variable(2) June 20, 2037
--------------- ---------------- -----------------------------------------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Shifting Interest Mortgage Loan with the latest maturity date has
been designated as the "latest possible maturity date" for each
Uncertificated Shifting Interest Middle-Tier Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated Shifting
Interest Middle-Tier REMIC Pass-Through Rate" herein.
The foregoing Shifting Interest Lower-Tier REMIC and Shifting Interest
Middle-Tier REMIC structure is intended to cause all the cash from the Shifting
Interest Mortgage Loans to flow through the Shifting Interest Upper-Tier REMIC
as cash flow on a Shifting Interest Upper-Tier Regular Interest, without
creating any shortfall, actual or potential (other than for losses), to any
Shifting Interest Upper-Tier Regular Interest. To the extent that the structure
is believed to diverge from such intention, the party identifying such ambiguity
or drafting error shall notify the other parties hereto, and the parties hereto
shall attempt to resolve such ambiguity or drafting error in accordance with
Section 11.01 hereto.
-3-
Shifting Interest Upper-Tier REMIC
As provided herein, the Securities Administrator will make an election to
treat the segregated pool of assets consisting of the Uncertificated Shifting
Interest Middle-Tier Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as the "Shifting
Interest Upper-Tier REMIC." The Class SI-UR Interest will represent the sole
class of "residual interests" in the Shifting Interest Upper-Tier REMIC for
purposes of the REMIC Provisions. The following table irrevocably sets forth (or
describes) the designation, the Pass-Through, and initial Uncertificated Balance
for each Shifting Interest Upper-Tier Regular Interest comprising the "regular
interests" in the Shifting Interest Upper-Tier REMIC for purposes of the REMIC
Provisions and solely for purposes of Satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each class of
Shifting Interest Upper-Tier Interests.
--------------- ----------------------------------- ----------------------------
Initial
Uncertificated Latest Possible
Designation Balance Pass-Through Rate Maturity Date (1)
--------------- ---------------- ------------------------------- ---------------
2-A-1 $96,066,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
3-A-1 $124,075,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
3-A-2 $95,070,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
3-A-3 $29,004,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
3-A-4 $10,000,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
X-B-1 $5,831,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
X-B-2 $1,458,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
X-B-3 $1,093,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
X-B-4 $729,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
X-B-5 $546,000.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
X-B-6 $547,035.00 (2) June 20, 2037
------------------- ---------------- -------------------------------------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Shifting Interest Mortgage Loan with the latest maturity date has
been designated as the "latest possible maturity date" for each Shifting
Interest Upper-Tier Regular Interest.
(2) Interest will accrue on these Shifting Interest Upper-Tier Regular
Interests at a rate equal to the Pass-Through Rate of the Corresponding
Class of Shifting Interest Certificates.
-4-
Lower-Tier II REMIC
As provided herein, the Securities Administrator will make an election to
treat the segregated pool of assets consisting of the OC Mortgage Loans and
certain other related assets subject to this Agreement (but exclusive of the
Supplemental Interest Trust, the Interest Rate Swap Agreement, the Interest Rate
Corridor Agreement, the Swap Account and the Rate Cap Carryover Reserve Account)
as a REMIC for federal income tax purposes, and such segregated pool of assets
will be designated as the "Lower-Tier II REMIC." The Class II-LR Interest will
represent the sole class of "residual interests" in the Lower-Tier II REMIC for
purposes of the REMIC Provisions. The following table irrevocably sets forth the
designation, the Uncertificated Lower-Tier II REMIC Pass-Through Rate, the
initial Uncertificated Balance, and solely for purposes of satisfying Treasury
Regulations Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each of the Uncertificated Lower-Tier II Regular Interests. None of the
Uncertificated Lower-Tier II Interests will be certificated.
--------------- ----------------------------------- ----------------------------
Initial Uncertificated Lower-
Uncertificated Tier II REMIC Pass- Latest Possible
Designation Balance Through Rate Maturity Date (1)
--------------- -------------------- -------------------------------------------
LRII-X (2) Variable(3) June 20, 2047
--------------------------------------------------------------------------------
LRII-Y (4) Variable(3) June 20, 2047
--------------------------------------------------------------------------------
LRII-C-X (2) Variable(3) June 20, 2047
--------------------------------------------------------------------------------
LRII-C-Y (4) Variable(3) June 20, 2047
--------------------------------------------------------------------------------
LRII-Support (5) Variable(3) June 20, 2047
--------------------------------------------------------------------------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the OC Mortgage Loan with the latest maturity date has been designated
as the "latest possible maturity date" for each Uncertificated Lower-Tier
II Regular Interest.
(2) Each Class X Lower-Tier II REMIC Interest will have an initial
Uncertificated Balance equal to 0.5% of the initial aggregate Stated
Principal Balances of the OC Mortgage Loans.
(3) Calculated in accordance with the definition of "Uncertificated Lower-Tier
II REMIC Pass-Through Rate" herein.
(4) Each Class Y Lower-Tier II REMIC Interest will have an initial
Uncertificated Balance equal to the related Class Y Lower-Tier II REMIC
Target Principal Balance based on the Uncertificated Balance of the related
Class X Lower-Tier II REMIC Interest as set forth in Note (2) above.
(5) The Class LRII-Support Interest will have an initial Uncertificated Balance
equal to the excess of the initial aggregate Stated Principal Balances of
the OC Mortgage Loans over the sum of the initial Uncertificated Balances
of each Class X and Class Y Lower-Tier II REMIC Interest.
The foregoing Lower-Tier II REMIC is intended to cause all the cash from
the OC Mortgage Loans to flow through the Upper-Tier II REMIC as cash flow on an
Upper-Tier II Regular Interest, without creating any shortfall, actual or
potential (other than for losses), to any Upper-Tier II Regular Interest. To the
extent that the structure is believed to diverge from such intention, the party
identifying such ambiguity or drafting error shall notify the other parties
hereto, and the parties hereto shall attempt to resolve such ambiguity or
drafting error in accordance with Section 11.01 hereto.
-5-
Upper-Tier II REMIC
As provided herein, the Securities Administrator will make an election to
treat the segregated pool of assets consisting of the Uncertificated Lower-Tier
II Regular Interests as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Upper-Tier II REMIC." The
II-UR Interest will represent the sole class of "residual interests" in the
Upper-Tier II REMIC for purposes of the REMIC Provisions.
The following table irrevocably sets forth (or describes) the Upper-Tier II
Regular Interest designation, initial Uncertificated Balance and Uncertificated
Upper-Tier II REMIC Pass-Through Rate for each Upper-Tier II Regular Interest
comprising the "regular interests" in the Upper-Tier II REMIC for purposes of
the REMIC Provisions and, solely for purposes of satisfying Treasury Regulations
Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for each
Upper-Tier II Regular Interest.
--------------- ----------------------------------- ----------------------------
Initial Uncertificated Shifting
Uncertificated Interest Middle-Tier Latest Possible
Designation Balance REMIC Pass-Through Rate Maturity Date (1)
--------------- ---------------- ------------------------------- ---------------
1-A-1 $239,185,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
1-A-2 $57,216,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
1-A-3 $152,688,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
1-A-4 $73,072,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
1-A-5 $50,000,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
M-1 $10,011,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
M-2 $4,247,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
M-3 $3,034,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
M-4 $3,034,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
M-5 $3,034,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
M-6 $3,034,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
M-7 $3,034,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
M-8 $3,034,000.00 Variable(2) June 20, 2047
--------------- ------------------- ------------------------ -------------------
CE (3) (3) June 20, 2047
--------------- --------------------- ------------------------ -----------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the OC Mortgage Loan with the latest maturity date has been designated
as the "latest possible maturity date" for each Upper-Tier II Regular
Interest.
(2) Interest will accrue on these Upper-Tier II Regular Interests at a per
annum rate equal to the lesser of (i) One Month LIBOR plus the Certificate
Margin for the Corresponding Class of Certificates and (ii) the Upper-Tier
II REMIC Net Rate Cap. On any Distribution Date on which the Certificate
Interest Rate for the Corresponding Class of Certificates exceeds the
Upper-Tier II REMIC Net Rate Cap, interest accruals based on such excess
shall be treated as having been paid from Rate Cap Carryover Reserve
Account or the Supplemental Interest Trust, as applicable. On any
Distribution Date on which the Certificate Interest Rate on a Class of
Certificates is based on the applicable Net Rate Cap, the excess of the
amount of interest that would have accrued on such Class of Certificates if
the Upper-Tier II REMIC Net Rate Cap were substituted for the applicable
Net Rate Cap over the interest accruals based on the applicable Net Rate
Cap shall be treated as having been paid by the related Class of
Certificates to the Supplemental Interest Trust, all pursuant to and as
further provided in Sections 5.12 and 5.13 herein.
(3) For federal income tax purposes, the Class CE Upper-Tier II Regular
Interest will have an initial Uncertificated Balance equal to the Initial
Overcollateralization Amount. The Class CE Upper-Tier II Regular Interest
will bear interest at its Pass-Through Rate on its Notional Amount.
-6-
SUMMARY OF CERTIFICATES
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:
Initial Class
Certificate Balance Pass-Through Integral
or Maximum Initial Rate or Multiples in
Class Certificate Certificate Minimum Excess of
Classes Balance Interest Rate Denomination Minimum
Class 1-A-1 $239,185,000 (1) $1,000 $1
Class 1-A-2 $57,216,000 (1) $1,000 $1
Class 1-A-3 $152,688,000 (1) $1,000 $1
Class 1-A-4 $73,072,000 (1) $1,000 $1
Class 1-A-5 $50,000,000 (1) $1,000 $1
Class 2-A-R $100 (2) $100 N/A
Class 2-A-1 $96,066,000 (2) $1,000 $1
Class 3-A-1 $124,075,000 (3) $1,000 $1
Class 3-A-2 $95,070,000 (3) $1,000 $1
Class 3-A-3 $29,004,000 (3) $1,000 $1
Class 3-A-4 $10,000,000 (3) $1,000 $1
Class 3-A-5 $124,074,000 (3) $1,000 $1
Class X-B-1 $5,831,000 (4) $25,000 $1
Class X-B-2 $1,458,000 (4) $25,000 $1
Class X-B-3 $1,093,000 (4) $25,000 $1
Class X-B-4 $729,000 (4) $25,000 $1
Class X-B-5 $546,000 (4) $25,000 $1
Class X-B-6 $547,035 (4) $25,000 $1
Class M-1 $10,011,000 (1) $25,000 $1
Class M-2 $4,247,000 (1) $25,000 $1
Class M-3 $3,034,000 (1) $25,000 $1
Class M-4 $3,034,000 (1) $25,000 $1
Class M-5 $3,034,000 (1) $25,000 $1
Class M-6 $3,034,000 (1) $25,000 $1
Class M-7 $3,034,000 (1) $25,000 $1
Class M-8 $3,034,000 (1) $25,000 $1
Class CE (5) (5) N/A N/A
(1) Interest will accrue on these Certificates at a per annum rate equal to the
lesser of (i) the sum of One-Month LIBOR plus the applicable Certificate
Margin (the "Pass-Through Rate") and (ii) the Net Rate Cap.
(2) Interest will accrue on these Certificates at a per annum rate equal to the
Net WAC of the Group 2 Mortgage Loans.
(3) Interest will accrue on these Certificates at a per annum rate equal to the
Net WAC of the Group 3 Mortgage Loans.
(4) Interest will accrue on these Certificates at a per annum rate equal to the
weighted average (based on the Group Subordinate Amount for each Shifting
Interest Loan Group) of the Net WAC of the Shifting Interest Mortgage
Loans.
(5) For federal income tax purposes, the Class CE Certificates will have an
initial Class Certificate Balance equal to the Initial
Overcollateralization Amount. The Class CE Certificates will be entitled to
100% of the amount distributed on the Class CE Upper-Tier II Regular
Interest.
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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:
10-K Filing Deadline: As defined in Section 3.22(c).
1933 Act: The Securities Act of 1933, as amended.
60+ Day Delinquent Loan: For each Distribution Date, each OC Mortgage Loan
(including each OC Mortgage Loan in foreclosure and each OC Mortgage Loan for
which the Mortgagor has filed for bankruptcy after the Closing Date) with
respect to which any portion of a Monthly Payment is, as of the Due Date in the
prior calendar month, two months or more past due and each OC Mortgage Loan
relating to an REO Property.
Additional Disclosure Notification: The form of notification to be included
with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or
Form 8-K Disclosure Information which is attached hereto as Exhibit S.
Additional Form 10-D Disclosure: As defined in Section 3.22(b).
Additional Form 10-K Disclosure: As defined in Section 3.22(c).
Additional Servicer: A Subcontractor engaged by the Master Servicer or the
Securities Administrator that is a "servicer" within the meaning of Item 1101 of
Regulation AB and meets any of the criteria in Item 1108(a)(2)(i) through (iii)
of Regulation AB.
Adjusted Pool Amount: With respect to any Distribution Date and Shifting
Interest Loan Group, the Cut-off Date Pool Principal Balance of the Mortgage
Loans of such Loan Group minus the sum of (i) all amounts in respect of
principal received in respect of the Mortgage Loans in such Loan Group
(including, without limitation, amounts received as Monthly Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the related Shifting Interest
Certificates on such Distribution Date and all prior Distribution Dates and (ii)
the principal portion of all Realized Losses (other than Debt Service
Reductions) incurred on the Mortgage Loans in such Loan Group from the Cut-off
Date through the end of the month preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Aggregate Denomination: As to any Class of Exchangeable REMIC Certificates
or Exchangeable Certificates and any date of determination, the aggregate of the
Denominations of the Outstanding Certificates of such Class on such date.
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Xxxxxxxxx Senior Percentage: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing (x) the
aggregate Class Certificate Balance of the Senior Shifting Interest Certificates
by (y) the aggregate Pool Principal Balance of the Shifting Interest Loan Groups
with respect to such Distribution Date.
Aggregate Subordinate Percentage: With respect to any Distribution Date,
100% minus the Aggregate Senior Percentage with respect to such Distribution
Date.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Applied Realized Loss Amount: Any of a Senior Applied Realized Loss Amount
or a Mezzanine Applied Realized Loss Amount.
Appraised Value: With respect to any Mortgaged Property, either (i) the
lesser of (a) the appraised value determined in an appraisal obtained by the
originator generally no more than four months prior to origination (or, with
respect to newly constructed properties, no more than twelve months prior to
origination) of such Mortgage Loan or, in some instances, more than four months
prior to origination of such Mortgage Loan, provided that (x) an appraisal
update is obtained and (y) the original appraisal was obtained no more than
twelve months prior to origination of such Mortgage Loan, or in certain cases,
an automated valuation model (if applicable) or tax assessed value and (b) the
sales price for such property, except that, in the case of Mortgage Loans the
proceeds of which were used to refinance an existing mortgage loan, the
Appraised Value of the related Mortgaged Property is the appraised value thereof
determined in an appraisal obtained at the time of refinancing or, in certain
cases, an automated valuation model (if applicable) or tax assessed value, or
(ii) the appraised value determined in an appraisal made at the request of a
Mortgagor subsequent to origination in order to eliminate the Mortgagor's
obligation to keep a Primary Mortgage Insurance Policy in force.
Assessment of Compliance: As defined in Section 3.21(a).
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.
Attestation Report: As defined in Section 3.21(b).
Authenticating Agents: As defined in Section 9.10.
Available Funds: With respect to each Distribution Date, the sum of (i) the
Interest Remittance Amount for such Distribution Date and (ii) the Principal
Remittance Amount for such Distribution Date.
Available Funds Rate Cap: As of any Distribution Date, a per annum rate
(expressed on the basis of an assumed 360-day year and the actual number of days
elapsed during the related Interest Accrual Period) equal to the product of (a)
the Available Funds for such Distribution Date and (b) a fraction, the numerator
of which is 12 and the denominator of which is the aggregate Stated Principal
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Balance of the OC Mortgage Loans as of the first day of the related Collection
Period.
Back-up Certification: As defined in Section 3.22(e).
BAFC: Banc of America Funding Corporation.
BAMCC: Banc of America Mortgage Capital Corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
BANA Servicing Agreement: The Servicing Agreement, dated May 31, 2007, by
and between BAFC, as depositor, and BANA, as servicer.
BBA: As defined in Section 5.10.
Book-Entry Certificate: All Classes of Certificates other than the Physical
Certificates.
BPP Mortgage Loan: Any Mortgage Loan which includes a Borrowers Protection
Plan(R) addendum to the related Mortgage Note whereby BANA agrees to cancel (i)
certain payments of principal and interest on such Mortgage Loan for up to
twelve months upon the disability or involuntary unemployment of the Mortgagor
or (ii) the outstanding principal balance of the Mortgage Loan upon the
accidental death of the Mortgagor; provided that such Borrowers Protection
Plan(R) has not been terminated in accordance with its terms.
BPP Mortgage Loan Payment: With respect to any BPP Mortgage Loan, the
Monthly Covered Amount or Total Covered Amount, if any, payable by BANA pursuant
to Section 7(b) of the Mortgage Loan Purchase Agreement.
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 states in which the servicing offices of any Servicer are located, the
state or states in which the master servicing offices of the Master Servicer are
located or the state or states in which the Corporate Trust Offices of the
Trustee and the Securities Administrator are located are required or authorized
by law or executive order to be closed.
Buy-Down Account: The separate Eligible Account or Accounts created and
maintained by a Servicer as set forth in Section 3.08.
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
-10-
Mortgage Loan, with the resulting difference in interest payments being provided
from related Buy-Down Funds.
Calculated Principal Distribution: As defined in Section 5.04(b)(iii).
Calculation Balance: With respect to each class of Exchangeable REMIC
Certificates and as of any date of determination, an amount equal to the
then-current Class Certificate Balance of such Exchangeable REMIC Certificates
if such Class Certificate Balance had been calculated under the condition that
no Exchangeable REMIC Certificates of such Class are ever exchanged for
Exchangeable Certificates.
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2007-D that are issued pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained by the
Securities Administrator pursuant to Section 3.09(b) in the name of the
Securities Administrator, on behalf of the Trustee, for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as Securities
Administrator for U.S. Bank National Association, as Trustee, in trust for
registered holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2007-D." The Certificate Account shall be deemed to consist
of nine sub-accounts; one for each of the Loan Groups (the "Loan Group 1
Sub-Account," "Loan Group 2 Sub-Account" and "Loan Group 3 Sub-Account"), and
one for each of the Exchangeable Certificates Grantor Trust Account, Lower-Tier
II Certificate Sub-Account, the Upper-Tier II Certificate Sub-Account, the
Shifting Interest Lower-Tier Certificate Sub-Account, the Shifting Interest
Middle-Tier Certificate Sub-Account and the Shifting Interest 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 (other
than a Class CE Certificate), 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 Interest Rate: With respect to each Class of Certificates, the
per annum rate set forth or calculated in the table under the caption "Summary
of Certificates" in the Preliminary Statement.
Certificate Margin: With respect to each Class of Offered
Overcollateralized Certificates, the following percentages:
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After the
On or Prior to the OC Optional OC Optional
Termination Date Termination Date
Class 1-A-1 Certificates 0.210% 0.420%
Class 1-A-2 Certificates 0.250% 0.500%
Class 1-A-3 Certificates 0.110% 0.220%
Class 1-A-4 Certificates 0.230% 0.460%
Class 1-A-5 Certificates 0.280% 0.560%
Class M-1 Certificates 0.350% 0.525%
Class M-2 Certificates 0.400% 0.600%
Class M-3 Certificates 0.550% 0.825%
Class M-4 Certificates 0.850% 1.275%
Class M-5 Certificates 1.000% 1.500%
Class M-6 Certificates 1.250% 1.875%
Class M-7 Certificates 1.250% 1.875%
Class M-8 Certificates 1.250% 1.875%
Certificate Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of a Book-Entry Certificate. With respect to any
Definitive Certificate, the Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to Section 6.02.
Certificate Registrar: The registrar appointed pursuant to Section 6.02.
Certificateholder: The Person in whose name a Certificate is registered in
the Certificate Register, except that, solely for the purpose of giving any
consent pursuant to this Agreement, any Certificate registered in the name of
the Depositor, the Master Servicer or any affiliate thereof shall be deemed not
to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that neither the
Securities Administrator nor the Trustee shall be responsible for knowing that
any Certificate is registered in the name of an affiliate of the Depositor or
the Master Servicer unless one of its Responsible Officers has actual knowledge
thereof.
Certification Parties: As defined in Section 3.22(e).
Certifying Person: As defined in Section 3.22(e).
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-5, Class 2-A-R, Class 2-A-1, Class 3-A-1, Class 3-A-2,
Class 3-A-3, Class 3-A-4, Class 3-A-5, Class X-B-1, Class X-B-2, Class X-B-3,
Class X-B-4, Class X-B-5, Class X-B-6, Class X-0, Xxxxx X-0, Class M-3, Class
-12-
M-4, Class M-5, Class M-6, Class M-7, Class M-8 and Class CE Certificates, as
the case may be.
Class 2-A-R Certificate: The Class 2-A-R Certificate, which represent the
ownership of the Class II-UR Interest, the Class II-LR Interest, the Class SI-UR
Interest, the Class SI-MR Interest and the Class SI-LR Interest.
Class 3-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 3-A-1 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.04(b)(i) to such Class,
without regard to the operation of Section 5.04(b)(iv).
Class 3-A-2 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 3-A-2 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.04(b)(i) to such Class,
without regard to the operation of Section 5.04(b)(iv).
Class 3-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 3-A-3 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.04(b)(i) to such Class,
without regard to the operation of Section 5.04(b)(iv).
Class 3-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 3-A-4 Certificates with respect to such
Distribution Date prior to any reduction for the Class 3-A-4 Loss Allocation
Amount and (b) the sum of the Class 3-A-1 Loss Amount, the Class 3-A-2 Loss
Amount and the Class 3-A-3 Loss Amount with respect to such Distribution Date.
Class A/M Adjustment Factor: For each Distribution Date, the Net Rate Cap
for such Distribution Date, adjusted for this purpose by (i) defining the Swap
Notional Amount, for purposes of any calculation of the Net Swap Payment, to
equal the lesser of the related notional amount set forth on Schedule A of the
Interest Rate Swap Agreement and the then aggregate Stated Principal Balance of
the OC Mortgage Loans, (ii) excluding from the definition thereof, any Swap
Termination Payment made to the Swap Provider, regardless of whether such Swap
Termination Payment is due to a Swap Provider Trigger Event and (iii) excluding
from the definition of Interest Remittance Amount and Principal Remittance
Amount, for purposes of determining the Available Funds Rate Cap, any Swap
Termination Payment made to the Swap Provider, regardless of whether such Swap
Termination Payment is due to a Swap Provider Trigger Event.
Class CE Adjustment Factor: For each Distribution Date, the product of (a)
the amount of interest accrued in respect of the Upper-Tier II Regular Interests
other than the Class CE Upper-Tier II Regular Interest and (b) 12, divided by
the sum of the Uncertificated Balances of the Uncertificated Lower-Tier II REMIC
Regular Interests.
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Class CE Carryover: With respect to any Distribution Date, the sum of (a)
the excess, if any, of (x) the excess, if any, of the Uncertificated Accrued
Interest with respect to the Class CE Upper-Tier II Regular Interest over the
sum of (i) any amount applied as an Extra Principal Distribution Amount and (ii)
the sum of the amounts paid pursuant to Section 5.03(a) priorities sixth through
ninth over (y) the amount paid to the Class CE Certificates pursuant to Section
5.03(a) priority tenth other than any amounts attributable to an
Overcollateralization Release Amount or remaining amounts in the Swap Account,
Corridor Account or Rate Cap Carryover Reserve Account, plus (b) any such excess
remaining unpaid for prior Distribution Dates.
Class CE Certificates: The Class CE Certificates, which represent (i) the
corresponding Upper-Tier II Regular Interest for purposes of the REMIC
Provisions, (ii) the obligation to pay Rate Cap Carryover Amounts, Swap
Termination Payments and the Class IO Distribution Amount and (iii) the right to
receive the Class IO Distribution Amount and amounts from the Rate Cap Carryover
Reserve Account and the Swap Account.
Class CE Distributable Amount: With respect to any Distribution Date, the
sum of (i) the interest accrued on the Class CE Upper-Tier II Regular Interests
at their Pass-Through Rate calculated on their Notional Amount less the
aggregate of Rate Cap Carryover Amounts paid pursuant to Section 5.03(a)
priority eighth and any Defaulted Swap Termination Payments paid pursuant to
Section 5.03(a) priority ninth, (ii) up to any remaining Overcollateralization
Release Amounts, (iii) the amounts remaining in (A) the Rate Cap Carryover
Reserve Account after the distributions in Section 3.09(i) and (B) the
Supplemental Interest Trust in respect of the Swap Account after distributions
in Section 5.03(c) priorities first through ninth and (iv) any Class CE
Carryover.
Class CE Grantor Trust: The grantor trust created pursuant to Section 5.14
consisting of any interests in the Rate Cap Carryover Reserve Account and
Supplemental Interest Trust beneficially owned by the holders of the Class CE
Certificates and rights and obligations with respect thereto. The Class CE
Grantor Trust shall not be an asset of any REMIC formed hereunder.
Class Certificate Balance: With respect to any Class of Shifting Interest
Certificates and any date of determination, and subject to Section 5.04(b)(vi),
an amount equal to (a) the Initial Class Certificate Balance of such Class or,
in the case of a Class of Exchangeable REMIC Certificates or Exchangeable
Certificates, the Aggregate Denomination 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
5.04(b)(i) and (iii) in the case of the Class 3-A-4 Certificates, any reduction
allocated thereto pursuant to Section 5.04(b)(iv) plus (B) the sum of (i) all
increases in Class Certificate Balance previously allocated thereto pursuant to
Section 5.04(b)(i) and (ii) in the case of the Class 3-A-4 Certificates, any
increases allocated thereto pursuant to Section 5.04(b)(iv). With respect to any
Class of Overcollateralized Certificates (other than the Class CE Certificates)
and any date of determination, and subject to the last paragraph of Section
5.04(c), the Initial Class Certificate Balance of such Class (a) reduced by the
sum of (i) all amounts actually distributed in respect of principal of such
Class on all prior Distribution Dates and (ii) Applied Realized Loss Amounts
allocated thereto for previous Distribution Dates and (b) increased by any
Recoveries allocated to such Class for previous Distribution Dates.
-14-
With respect to the Class CE Certificates and any date of determination,
and solely for federal income tax purposes, the excess, if any, of the then
aggregate Uncertificated Balances of the Uncertificated Lower-Tier II Interests
over the aggregate Class Certificate Balance of the Offered Overcollateralized
Certificates then outstanding.
Class Distribution Amount: As to any Distribution Date and each Class of
Exchangeable Certificates, an amount equal to the sum of (i) the Interest
Distribution Amount for such Class and (ii) the Class Principal Distribution
Amount for such Class.
Class Interest Shortfall: For any Distribution Date and each Class of
Shifting Interest Certificates, the amount by which Shifting Interest 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 IO Distribution Amount: As defined in Section 5.12 hereof.
Class LRII-C-X Target Principal Balance: The product of (a) the quotient of
(i) the Class CE Adjustment Factor and (ii) (x) two times the Net WAC of the OC
Mortgage Loans minus (y) the Class CE Adjustment Factor, and (b) the
Uncertificated Balance of the Class LRII-C-Y Interest for the immediately
preceding Distribution Date.
Class LRII-C-Y Target Principal Balance: The product of (a) the quotient of
(i) (x) two times the Net WAC of the OC Mortgage Loans minus (y) the Class CE
Adjustment Factor and (ii) the Class CE Adjustment Factor and (b) the
Uncertificated Balance of the Class LRII-C-X Interest for the immediately
preceding Distribution Date.
Class LRII-X Target Principal Balance: The product of (a) the quotient of
(i) the Class A/M Adjustment Factor and (ii) (x) two times the Net WAC of the OC
Mortgage Loans minus (y) the Class A/M Adjustment Factor, and (b) the
Uncertificated Balance of the Class LRII-Y Interest for the immediately
preceding Distribution Date.
Class LRII-Y Target Principal Balance: The product of (a) the quotient of
(i) (x) two times the Net WAC of the OC Mortgage Loans minus (y) the Class A/M
Adjustment Factor and (ii) the Class A/M Adjustment Factor and (b) the
Uncertificated Balance of the Class LRII-X Interest for the immediately
preceding Distribution Date.
Class M-1 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Overcollateralized Certificates (after taking into account the payment of
the Overcollateralized Senior Principal Distribution Amount on such Distribution
Date) and (ii) the Class Certificate Balance of the Class M-1 Certificates
immediately prior to such Distribution Date over (y) the lesser of (a) the
product of (i) 91.90% and (ii) the aggregate Stated Principal Balance of the OC
Mortgage Loans as of the last day of the related Collection Period and (b) the
amount by which the aggregate Stated Principal Balance of the OC Mortgage Loans
as of the last day of the related Collection Period exceeds the product of (i)
0.35% and (ii) the aggregate Stated Principal Balance of the OC Mortgage Loans
as of the Cut-off Date.
-15-
Class M-2 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Overcollateralized Certificates (after taking into account the payment of
the Overcollateralized Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on such Distribution Date) and (iii) the Class Certificate Balance of the Class
M-2 Certificates immediately prior to such Distribution Date over (y) the lesser
of (a) the product of (i) 93.30% and (ii) the aggregate Stated Principal Balance
of the OC Mortgage Loans as of the last day of the related Collection Period and
(b) the amount by which the aggregate Stated Principal Balance of the OC
Mortgage Loans as of the last day of the related Collection Period exceeds the
product of (i) 0.35% and (ii) the aggregate Stated Principal Balance of the OC
Mortgage Loans as of the Cut-off Date.
Class M-3 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Overcollateralized Certificates (after taking into account the payment of
the Overcollateralized Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on such Distribution Date), (iii) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date) and (iv) the Class Certificate
Balance of the Class M-3 Certificates immediately prior to such Distribution
Date over (y) the lesser of (a) the product of (i) 94.30% and (ii) the aggregate
Stated Principal Balance of the OC Mortgage Loans as of the last day of the
related Collection Period and (b) the amount by which the aggregate Stated
Principal Balance of the OC Mortgage Loans as of the last day of the related
Collection Period exceeds the product of (i) 0.35% and (ii) the aggregate Stated
Principal Balance of the OC Mortgage Loans as of the Cut-off Date.
Class M-4 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Overcollateralized Certificates (after taking into account the payment of
the Overcollateralized Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on such Distribution Date), (iii) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account the payment of
the Class M-3 Principal Distribution Amount on such Distribution Date) and (v)
the Class Certificate Balance of the Class M-4 Certificates immediately prior to
such Distribution Date over (y) the lesser of (a) the product of (i) 95.30% and
(ii) the aggregate Stated Principal Balance of the OC Mortgage Loans as of the
last day of the related Collection Period and (b) the amount by which the
aggregate Stated Principal Balance of the OC Mortgage Loans as of the last day
of the related Collection Period exceeds the product of (i) 0.35% and (ii) the
aggregate Stated Principal Balance of the OC Mortgage Loans as of the Cut-off
Date.
-16-
Class M-5 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Overcollateralized Certificates (after taking into account the payment of
the Overcollateralized Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on such Distribution Date), (iii) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account the payment of
the Class M-3 Principal Distribution Amount on such Distribution Date), (v) the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date) and (vi) the Class Certificate Balance of the Class M-5
Certificates immediately prior to such Distribution Date over (y) the lesser of
(a) the product of (i) 96.30% and (ii) the aggregate Stated Principal Balance of
the OC Mortgage Loans as of the last day of the related Collection Period and
(b) the amount by which the aggregate Stated Principal Balance of the OC
Mortgage Loans as of the last day of the related Collection Period exceeds the
product of (i) 0.35% and (ii) the aggregate Stated Principal Balance of the OC
Mortgage Loans as of the Cut-off Date.
Class M-6 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Overcollateralized Certificates (after taking into account the payment of
the Overcollateralized Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on such Distribution Date), (iii) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account the payment of
the Class M-3 Principal Distribution Amount on such Distribution Date), (v) the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the Class Certificate Balance of the Class M-5
Certificates (after taking into account the payment of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (vii) the Class Certificate
Balance of the Class M-6 Certificates immediately prior to such Distribution
Date over (y) the lesser of (a) the product of (i) 97.30% and (ii) the aggregate
Stated Principal Balance of the OC Mortgage Loans as of the last day of the
related Collection Period and (b) the amount by which the aggregate Stated
Principal Balance of the OC Mortgage Loans as of the last day of the related
Collection Period exceeds the product of (i) 0.35% and (ii) the aggregate Stated
Principal Balance of the OC Mortgage Loans as of the Cut-off Date.
Class M-7 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Overcollateralized Certificates (after taking into account the payment of
the Overcollateralized Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on such Distribution Date), (iii) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Class Certificate
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Balance of the Class M-3 Certificates (after taking into account the payment of
the Class M-3 Principal Distribution Amount on such Distribution Date), (v) the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the Class Certificate Balance of the Class M-5
Certificates (after taking into account the payment of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Class Certificate
Balance of the Class M-6 Certificates (after taking into account the payment of
the Class M-6 Principal Distribution Amount on such Distribution Date) and
(viii) the Class Certificate Balance of the Class M-7 Certificates immediately
prior to such Distribution Date over (y) the lesser of (a) the product of (i)
98.30% and (ii) the aggregate Stated Principal Balance of the OC Mortgage Loans
as of the last day of the related Collection Period and (b) the amount by which
the aggregate Stated Principal Balance of the OC Mortgage Loans as of the last
day of the related Collection Period exceeds the product of (i) 0.35% and (ii)
the aggregate Stated Principal Balance of the OC Mortgage Loans as of the
Cut-off Date.
Class M-8 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Overcollateralized Certificates (after taking into account the payment of
the Overcollateralized Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account the payment of the Class M-1 Principal Distribution Amount
on such Distribution Date), (iii) the Class Certificate Balance of the Class M-2
Certificates (after taking into account the payment of the Class M-2 Principal
Distribution Amount on such Distribution Date), (iv) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account the payment of
the Class M-3 Principal Distribution Amount on such Distribution Date), (v) the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account the payment of the Class M-4 Principal Distribution Amount on such
Distribution Date), (vi) the Class Certificate Balance of the Class M-5
Certificates (after taking into account the payment of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Class Certificate
Balance of the Class M-6 Certificates (after taking into account the payment of
the Class M-6 Principal Distribution Amount on such Distribution Date), (viii)
the Class Certificate Balance of the Class M-7 Certificates (after taking into
account the payment of the Class M-7 Principal Distribution Amount on such
Distribution Date) and (ix) the Class Certificate Balance of the Class M-8
Certificates immediately prior to such Distribution Date over (y) the lesser of
(a) the product of (i) 99.30% and (ii) the aggregate Stated Principal Balance of
the OC Mortgage Loans as of the last day of the related Collection Period and
(b) the amount by which the aggregate Stated Principal Balance of the OC
Mortgage Loans as of the last day of the related Collection Period exceeds the
product of (i) 0.35% and (ii) the aggregate Stated Principal Balance of the OC
Mortgage Loans as of the Cut-off Date.
Class Principal Distribution Amount: As to any Distribution Date and the
Class 3-A-5 Certificates, an amount as to principal equal to (i) the
distributions of principal made in respect of the Classes of Exchangeable REMIC
Certificates pursuant to Section 5.02(b) multiplied by (ii) a fraction, the
numerator of which is the Aggregate Denomination of the Class 3-A-5 Certificates
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and the denominator of which is the aggregate Maximum Initial Class Certificate
Balance of the Class 3-A-5 Certificates.
Class Unpaid Interest Shortfall: As to any Distribution Date and each Class
of Shifting Interest Certificates, the amount by which the aggregate Class
Interest Shortfalls for such Class on prior Distribution Dates exceeds the
amount of interest actually distributed on such Class on such prior Distribution
Dates pursuant to clause (ii) of the definition of "Interest Distribution
Amount."
Class X-B Certificates: The Class X-B-1, Class X-B-2, Class X-B-3, Class
X-B-4, Class X-B-5 and Class X-B-6 Certificates.
Class X Lower-Tier II REMIC Interests: The Class LRII-X Interest and the
Class LRII-C-X Interest.
Class X Lower-Tier II REMIC Target Principal Balance: Any of the Class
LRII-X Target Principal Balance or Class LRII-C-X Target Principal Balance.
Class Y Lower-Tier II REMIC Interests: The Class LRII-Y Interest and the
Class LRII-C-Y Interest.
Class Y Lower-Tier II REMIC Target Principal Balance: Any of the Class
LRII-Y Target Principal Balance or Class LRII-C-Y Target Principal Balance.
Closing Date: May 31, 2007.
Code: The Internal Revenue Code of 1986, as amended.
Collection Period: With respect to any Distribution Date, the period from
the second day of the calendar month preceding the month in which such
Distribution Date occurs through the first day of the month in which such
Distribution Date occurs.
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date and Servicer,
an amount equal to the lesser of (a) the aggregate Servicing Fee payable to such
Servicer for the Mortgage Loans serviced by such Servicer as of the Due Date of
the month preceding the month of such Distribution Date and (b) the aggregate of
the Prepayment Interest Shortfalls on the Mortgage Loans serviced by such
Servicer resulting from Principal Prepayments on such Mortgage Loans during the
related Prepayment Period; provided, however, Compensating Interest payable for
any month by BANA will be limited to one-twelfth of 0.2500% of the aggregate
Stated Principal Balance of the Mortgage Loans serviced by BANA, calculated as
of the Due Date of the month preceding the month of such Distribution Date.
Compliance Statement: As defined in Section 3.20.
Cooperative: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
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spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building owned
or leased by a Cooperative, which unit the Mortgagor has an exclusive right to
occupy pursuant to the terms of a proprietary lease or occupancy agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing statements and
(v) a stock power (or other similar instrument), and ancillary thereto, a
Recognition Agreement, each of which was transferred and assigned to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
Corporate Trust Office: With respect to the Trustee, the office of the
Trustee, which office at the date of the execution of this instrument is located
at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services, BAFC, Series 2007-D, or at such other address as the
Trustee may designate from time to time by notice to the Certificateholders, the
Depositor, the Securities Administrator and the Master 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: Client Manager - BAFC 2007-D, and for
certificate transfer purposes is located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - BAFC 2007-D,
or at such other address as the Securities Administrator may designate from time
to time by notice to the Certificateholders, the Depositor, the Trustee and the
Master Servicer.
Corresponding Class or Classes: The Class of interests in one REMIC created
under this Agreement that corresponds to the Class of interests in another REMIC
or to a Class of Certificates in the manner set out below:
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--------------------------------------- ------------------------------------------------------- --------------------------
Uncertificated Shifting Interest Corresponding Shifting Corresponding
Interest Middle-Tier Interest Upper-Tier Class of
Regular Interest Regular Interest Certificates
--------------------------------- ----------------------------------------------------------------------------------------
MRI-2-A-R N/A Class 2-A-R Certificate
--------------------------------- ----------------------------------------------------------------------------------------
MRI 2-A-1 Class 2-A-1 Interests Class 2-A-1 Certificates
--------------------------------- ----------------------------------------------------------------------------------------
MRI-3-A-1 Class 3-A-1, Class 3-A-2, Class Class 3-A-1, Class 3-A-2, Class 3-A-3
3-A-3 and Class 3-A-4 Interests and Class 3-A-4 Certificates
--------------------------------- ------------------------------------------------- --------------------------------------
MRI-X-B-1 Class X-B-1 Interests Class X-B-1 Certificates
------------------------------- -----------------------------------------------------------------------------------------
MRI-X-B-2 Class X-B-2 Interests Class X-B-2 Certificates
--------------------------------- ----------------------------------------------------------------------------------------
MRI-X-B-3 Class X-B-3 Interest Class X-B-3 Certificates
--------------------------------- ----------------------------------------------------------------------------------------
MRI-X-B-4 Class X-B-4 Interest Class X-B-4 Certificates
--------------------------------- ----------------------------------------------------------------------------------------
MRI-X-B-5 Class X-B-5 Interest Class X-B-5 Certificates
--------------------------------- ----------------------------------------------------------------------------------------
MRI-X-B-6 Class X-B-6 Interest Class X-B-6 Certificates
--------------------------------- ----------------------------------------------------------------------------------------
----------------------------------------------- ----------------------------------------------------
Corresponding Upper-Tier II Regular Interest Corresponding Class of Certificates
------------------------------------------------- ----------------------------------------------------
Class 1-A-1 Interest Class 1-A-1 Certificates
------------------------------------------------- ----------------------------------------------------
Class 1-A-2 Interest Class 1-A-2 Certificates
------------------------------------------------- ----------------------------------------------------
Class 1-A-3 Interest Class 1-A-3 Certificates
------------------------------------------------- ----------------------------------------------------
Class 1-A-4 Interest Class 1-A-4 Certificates
------------------------------------------------- ----------------------------------------------------
Class 1-A-5 Interest Class 1-A-5 Certificates
------------------------------------------------- ----------------------------------------------------
Class M-1 Interest Class M-1 Certificates
------------------------------------------------- ----------------------------------------------------
Class M-2 Interest Class M-2 Certificates
------------------------------------------------- ----------------------------------------------------
Class M-3 Interest Class M-3 Certificates
------------------------------------------------- ----------------------------------------------------
Class M-4 Interest Class M-4 Certificates
------------------------------------------------- ----------------------------------------------------
Class M-5 Interest Class M-5 Certificates
------------------------------------------------- ----------------------------------------------------
Class M-6 Interest Class M-6 Certificates
------------------------------------------------- ----------------------------------------------------
Class M-7 Interest Class M-7 Certificates
------------------------------------------------- ----------------------------------------------------
Class M-8 Interest Class M-8 Certificates
------------------------------------------------- ----------------------------------------------------
Class CE Interest Class CE Certificates
------------------------------------------------- ----------------------------------------------------
Corridor Provider: The Bank of New York.
Custodian: Initially, the Trustee and thereafter any custodian appointed by
the Trustee pursuant to Section 9.12. A Custodian may (but need not) be the
Trustee or any Person directly or indirectly controlling or controlled by or
under common control of either of them. None of the Master Servicer, any
Servicer or the Depositor, or any Person directly or indirectly controlling or
controlled by or under common control with any such Person may be appointed
Custodian.
Customary Servicing Procedures: With respect to (i) any Servicer,
procedures (including collection procedures) that a Servicer customarily employs
and exercises in servicing and administering mortgage loans for its own account
and which are in accordance with accepted mortgage servicing practices of
prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
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are located and (ii) the Master Servicer, those master servicing procedures that
constitute customary and usual standards of practice of prudent mortgage loan
master servicers.
Cut-off Date: May 1, 2007.
Cut-off Date Pool Principal Balance: For each Loan Group, the aggregate of
the Stated Principal Balances of the Mortgage Loans in such Loan Group as of the
Cut-off Date, which is $606,745,994.59 for the OC Loan Group, $98,833,652.77 for
Loan Group 2 and $265,585,482.66 for Loan Group 3.
Debt Service Reduction: As to any Mortgage Loan and any Determination Date,
the excess of (i) the Monthly Payment due on the related Due Date under the
terms of such Mortgage Loan over (ii) the amount of the monthly payment of
principal and/or interest required to be paid with respect to such Due Date by
the Mortgagor as established by a court of competent jurisdiction (pursuant to
an order which has become final and nonappealable) as a result of a proceeding
initiated by or against the related Mortgagor under the Bankruptcy Code, as
amended from time to time (11 U.S.C.); provided that no such excess shall be
considered a Debt Service Reduction so long as (a) the Servicer of such Mortgage
Loan is pursuing an appeal of the court order giving rise to any such
modification and (b)(1) such Mortgage Loan is not in default with respect to
payment due thereunder in accordance with the terms of such Mortgage Loan as in
effect on the Cut-off Date or (2) Monthly Payments are being advanced by the
applicable Servicer, the Master Servicer or the Trustee, as applicable, in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Defaulted Swap Termination Payment: Any Swap Termination Payment required
to be paid by the Supplemental Interest Trust to the Swap Provider pursuant to
the Interest Rate Swap Agreement as a result of an Event of Default (as defined
in the Interest Rate Swap Agreement) with respect to which the Swap Provider is
the defaulting party or a Termination Event (including a Downgrade Termination
Event) under the Interest Rate Swap Agreement (other than Illegality or a Tax
Event that is not a Tax Event Upon Merger (each as defined in the Interest Rate
Swap Agreement)) with respect to which the Swap Provider is the sole Affected
Party (as defined in the Interest Rate Swap Agreement).
Defective Mortgage Loan: Any Mortgage Loan which is required to be cured,
repurchased or substituted for pursuant to Sections 2.02 or 2.04.
Deferred Interest: With respect to any Option ARM Mortgage Loan and the
related Due Date, the excess, if any, of the amount of interest accrued on such
Option ARM Mortgage Loan from the preceding Due Date to such Due Date over the
Monthly Payment for such Due Date.
Deficient Valuation: As to any Mortgage Loan and any Determination Date,
the excess of (i) the then outstanding indebtedness under such Mortgage Loan
over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the applicable Servicer
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is pursuing an appeal of the court order giving rise to any such modification
and (b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the applicable
Servicer, the Master Servicer or the Trustee, as applicable, in accordance with
the terms of such Mortgage Loan as in effect on the Cut-off Date.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Delinquent: Any Mortgage Loan with respect to which the Monthly Payment due
on a Due Date is not made by the close of business on the next scheduled Due
Date for such Mortgage Loan.
Denomination: The amount, if any, specified on the face of each Certificate
representing the principal portion of the Initial Class Certificate Balance or
Maximum Initial Class Certificate Balance evidenced by such Certificate.
Depositor: Banc of America Funding Corporation, a Delaware corporation, or
its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which is Cede &
Co., as the registered Holder of the Book-Entry Certificates or any successor
thereto appointed in accordance with this Agreement. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to any Distribution Date and for each
Servicer, as defined in the applicable Servicing Agreement.
Distribution Date: The 20th day of each month beginning in June 2007 (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 is no longer the Servicer of any of the Mortgage Loans purchased by
the Sponsor from Xxxxx Fargo Bank, N.A. or (ii) the senior, unsecured long-term
debt rating of Xxxxx Fargo & Company is less than "BBB-" by Fitch.
Downgrade Termination Event: An event whereby (x) the Swap Provider (or its
guarantor) ceases to have short term unsecured and/or long term debt ratings at
least equal to the levels specified in the Interest Rate Swap Agreement, and (y)
at least one of the following events has not occurred (except to the extent
otherwise approved by the Rating Agencies): (i) within the time period specified
in the Interest Rate Swap Agreement with respect to such downgrade, the Swap
Provider shall transfer the Interest Rate Swap Agreement, in whole, but not in
part, to a substitute swap provider that satisfied the requirements set forth in
the Interest Rate Swap Agreement, subject to the satisfaction of the rating
agency condition or (ii) within the time periods and otherwise as required by
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the Interest Rate Swap Agreement, the Swap Provider shall obtain a qualified
guaranty of its obligations from an eligible third party or (iii) within the
time period specified in the Interest Rate Swap Agreement with respect to such
downgrade, the Swap Provider shall collateralize its exposure to the Issuing
Entity pursuant to the ISDA Credit Support Annex entered into as of May 31, 2007
between the Supplemental Interest Trust and the Swap Provider.
Due Date: As to any Distribution Date and each Mortgage Loan, the first day
in the calendar month of such Distribution Date.
XXXXX: The Commission's Electronic Data Gathering and Retrieval System.
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, the Master
Servicer 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, the Master Servicer or the Securities
Administrator.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificates: Any of the Class 2-A-R, Class X-B-4, Class
X-B-5, Class X-B-6 and Class CE Certificates and any Certificate that no longer
meets the applicable rating requirements of an Underwriter's Exemption.
Escrow Account: As defined in Section 3.08.
Escrow Payments: The amounts constituting taxes, assessments, Primary
Mortgage Insurance Policy premiums, fire and hazard insurance premiums and other
payments as may be required to be escrowed by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
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Excess Proceeds: With respect to any Liquidated Mortgage Loan, the amount,
if any, by which the sum of any Liquidation Proceeds of such Mortgage Loan
received in the calendar month in which such Mortgage Loan became a Liquidated
Mortgage Loan, net of any amounts previously reimbursed to the applicable
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iv), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which 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.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchangeable Certificates: The Class 3-A-5 Certificates.
Exchangeable Certificates Grantor Trust: That portion of the Trust
exclusive of the REMICs consisting of any interests in the Exchangeable REMIC
Certificates beneficially owned in the form of the Exchangeable Certificates and
rights with respect thereto.
Exchangeable Certificates Grantor Trust Account: The sub-account of the
Certificate Account designated by the Securities Administrator pursuant to
Section 5.14.
Exchangeable REMIC Certificates: The Class 3-A-2 and Class 3-A-3
Certificates.
Extra Principal Distribution Amount: As of any Distribution Date, the
lesser of (x) the Monthly Excess Interest Amount for such Distribution Date and
(y) the Overcollateralization Deficiency for such Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of some or all of the Certificates will be made pursuant
to Section 10.01.
Financial Market Service: Bloomberg LP, Intex Solutions, Inc. 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.
Fixed Payer Rate: The fixed rate payable for each Distribution Date up to
and including the Distribution Date in May 2012, which is 5.0500%.
Form 8-K Disclosure Information: As defined in Section 3.22(d).
Fractional Interest: As defined in Section 5.02(d).
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Gross Margin: As to each Mortgage Loan, the fixed percentage set forth in
the related Mortgage Note and indicated in the related Mortgage Loan Schedule as
the "Gross Margin," which percentage is added to the Index on each Rate
Adjustment Date to determine (subject to rounding, the Periodic Cap and the Rate
Ceiling) the Mortgage Interest Rate on such Mortgage Loan until the next Rate
Adjustment Date.
Group: Any of the OC Group, Group 2 or Group 3.
Group 2: The Group 2 Senior Certificates.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2 hereto.
Group 2 Senior Certificates: The Class 2-A-1 and Class 2-A-R Certificates.
Group 3: The Group 3 Senior Certificates.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3 hereto.
Group 3 Senior Certificates: The Class 3-A-1, Class 3-A-2, Class 3-A-3,
Class 3-A-4 and Class 3-A-5 Certificates.
Group Subordinate Amount: For any Distribution Date and each Shifting
Interest Loan Group, the excess of the Pool Principal Balance for such Shifting
Interest Loan Group over the aggregate Class Certificate Balance of the Senior
Shifting Interest Certificates of the Related Group immediately prior to such
date.
Holder: A Certificateholder.
Indenture: An indenture relating to the issuance of net interest margin
notes secured entirely or in part by all or a portion of the Class CE
Certificates, which may or may not be guaranteed by the NIMS Insurer.
Independent: When used with respect to any specified Person means such a
Person who (i) is in fact independent of the Depositor, the Trustee, the
Securities Administrator, the Master Servicer and the Servicers, (ii) does not
have any direct financial interest or any material indirect financial interest
in the Depositor, the Trustee, the Securities Administrator, the Master Servicer
or the Servicers or in an affiliate of any of them, and (iii) is not connected
with the Depositor, the Trustee, the Securities Administrator, the Master
Servicer or the Servicers as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions. When used
with respect to any accountants, a Person who is "independent" within the
meaning of Rule 2-01(B) of the Commission's Regulation S-X.
Index: As to any Mortgage Loan and Rate Adjustment Date, the One-Year LIBOR
Index, the Six-Month LIBOR Index, the LAMA Index, the MTA Index or the One-Year
CMT Index. The Index applicable to each Mortgage Loan will be indicated on the
related Mortgage Loan Schedule.
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Initial Class Certificate Balance: As to each Class of Certificates (other
than the Exchangeable REMIC Certificates, Exchangeable Certificates and Class CE
Certificates), the Class Certificate Balance set forth in the Preliminary
Statement.
Initial Overcollateralization Amount: $2,122,994.59.
Insurance Policy: With respect to any Mortgage Loan included in the Trust
Estate, any Primary Mortgage Insurance Policy or any other insurance policy
(including any policy covering any Mortgage Loan or Mortgaged Property,
including without limitation, any hazard insurance policy required pursuant to
Section 3.12, any title insurance policy described in Section 2.01 and any
Federal Housing Administration insurance policies and Department of Veterans
Affairs insurance policies), including all riders and endorsements thereto in
effect, including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each Class of
Shifting Interest Certificates and the Class CE 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. As to any Distribution Date and each Class of
Overcollateralized Certificates (other than the Class CE Certificates), the
period from and including the Distribution Date in the prior month (or the
Closing Date, in the case of the first period) to but not including the then
current Distribution Date.
Interest Carryforward Amount: For any Class of Overcollateralized
Certificates (other than the Class CE Certificates) and any Distribution Date,
the sum of (a) the excess, if any, of the Overcollateralized Accrued Certificate
Interest for such Distribution Date over the amount in respect of interest
actually distributed on such Class for such Distribution Date, (b) any remaining
unpaid Interest Carryforward Amount from prior Distribution Dates and (c)
interest on such remaining Interest Carryforward Amount referred to in clause
(b) at the applicable Certificate Interest Rate for the related Interest Accrual
Period.
Interest Distribution Amount: For any Distribution Date and each Class of
Shifting Interest Certificates, the sum of (i) Shifting Interest Accrued
Certificate Interest, subject to reduction pursuant to Section 5.02(c) and (ii)
any Class Unpaid Interest Shortfall for such Class.
Interest Percentage: With respect to any Class of Offered
Overcollateralized Certificates and any Distribution Date, the ratio (expressed
as a decimal carried to six places) of the Overcollateralized Accrued
Certificate Interest for such Class to the sum of the Overcollateralized Accrued
Certificate Interest for all Classes of Offered Overcollateralized Certificates,
in each case with respect to such Distribution Date, without regard to Relief
Act Reductions.
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Interest Rate Agreement: Each of the Interest Rate Corridor Agreement and
the Interest Rate Swap Agreement.
Interest Rate Corridor Agreement: The interest rate corridor agreement,
dated May 31, 2007, between the Corridor Provider and the Supplemental Interest
Trust Trustee, a copy of which is attached hereto as Exhibit U. The Interest
Rate Corridor Agreement shall not be an asset of any REMIC formed under this
Agreement.
Interest Rate Swap Agreement: The 1992 ISDA Master Agreement
(Multicurrency-Cross Border), dated as of May 31, 2007 (together with the
schedule thereto, the "Master Agreement"), between the Swap Provider and the
Supplemental Interest Trust Trustee, and a confirmation and credit support annex
of the same date, which supplement and form part of the Master Agreement, the
form of which has been attached hereto as Exhibit T. The Interest Rate Swap
Agreement shall not be an asset of any REMIC formed under this Agreement.
Interest Remittance Amount: As of any Distribution Date, (A) the sum,
without duplication, of (i) all interest collected or advanced with respect to
the related Collection Period on the OC Mortgage Loans received by the
applicable Servicer on or prior to the Determination Date for such Distribution
Date (less the Servicing Fees for such Mortgage Loans, certain amounts available
for reimbursement of Advances with respect to such Mortgage Loans and certain
other reimbursable expenses and indemnities pursuant to this Agreement and the
Servicing Agreements), (ii) all Compensating Interest paid by the applicable
Servicer for such Distribution Date with respect to the OC Mortgage Loans, (iii)
the portion of any payment in connection with any Principal Prepayment,
Substitution Adjustment Amount, Repurchase Price, Insurance Proceeds or net
Liquidation Proceeds relating to interest with respect to the OC Mortgage Loans
received during the related Prepayment Period, (iv) any Reimbursement Amounts
received with respect to the OC Mortgage Loans during the related Prepayment
Period and (v) on the Distribution Date on which the OC Mortgage Loans and
related REO Property are purchased in accordance with Section 10.01 hereof, that
portion of the purchase price therefor in respect of interest less (B) any
amounts payable to the Swap Provider (including any Net Swap Payment and any
Swap Termination Payment owed to the Swap Provider, other than a Defaulted Swap
Termination Payment).
LAMA Index: A rate per annum equal to an annual average of the arithmetic
mean of the London interbank offered rate quotations for one-month U.S.
Dollar-denominated deposits, as published in Xxxxxx Xxx and most recently
available either (i) as of the first business day in the month preceding the
month of the applicable Rate Adjustment Date or (ii) up to forty-five days
before the applicable Rate Adjustment Date.
LIBOR Business Day: Any day on which banks in London, England and New York
City are open and conducting transactions in foreign currency and exchange.
LIBOR Determination Date: With respect to each class of Certificates whose
Certificate Interest Rate is based on One-Month LIBOR, for each Distribution
Date beginning with the second Distribution Date, the second LIBOR Business Day
prior to the immediately preceding Distribution Date.
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Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
related Prepayment Period and as to which the applicable Servicer has certified
(in accordance with the applicable Servicing Agreement) that it has received all
proceeds it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property,
less the sum of related unreimbursed Servicing Fees and Advances.
Loan Group: Any of the OC Loan Group, Loan Group 2 or Loan Group 3.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date of
determination, the fraction, expressed as a percentage, the numerator of which
is the outstanding principal balance of the related Mortgage Loan at origination
and the denominator of which is the Appraised Value of the related Mortgaged
Property.
Losses: As defined in Section 5.11.
Lower-Tier II Certificate Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section 3.09(h).
Lower-Tier II REMIC: As defined in the Preliminary Statement, the assets of
which consist of the OC Mortgage Loans, such amounts as shall be held in the
Lower-Tier II Certificate Sub-Account, the insurance policies, if any, relating
to an OC Mortgage Loan and property which secured an OC Mortgage Loan and which
has been acquired by foreclosure or deed in lieu of foreclosure. The Lower-Tier
II REMIC will not include the Rate Cap Carryover Reserve Account, the Interest
Rate Swap Agreement, the Interest Rate Corridor Agreement, the Swap Account or
the Supplemental Interest Trust.
Marker Rate: With respect to the Class CE Upper-Tier II Regular Interest
and any Distribution Date, a per annum rate equal to two (2) times the weighted
average of the Uncertificated Lower-Tier II Pass-Through Rates for the Class
LRII-C-X Interest and Class LRII-C-Y Interest, subjecting the Uncertificated
Lower-Tier II Pass-Through Rate on the Class LRII-C-Y Interest to a cap equal to
zero.
Master Servicer: Xxxxx Fargo Bank, N.A., and its successors-in-interest
and, if a successor master servicer is appointed hereunder, such successor, as
master servicer.
Master Servicer Custodial Account: The Eligible Account created and
maintained by the Master Servicer pursuant to Section 3.09(c) in the name of the
Master Servicer for the benefit of the Certificateholders and designated "Xxxxx
Fargo Bank, N.A., as Master Servicer, in trust for the registered holders of
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Banc of America Funding Corporation Mortgage Pass-Through Certificates, Series
2007-D."
Master Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the Master
Servicer Custodial Account.
Master Servicer's Certificate: The monthly report required by Section 4.01.
Master Servicing Officer: Any officer of the Master Servicer involved in,
or responsible for, the administration and master servicing of the Mortgage
Loans whose name appears on a list of servicing officers furnished to the
Securities Administrator and the Trustee by the Master Servicer, as such list
may from time to time be amended.
Master Servicing Transfer Costs: All reasonable costs and expenses
(including attorney's fees) incurred by the Trustee or a successor master
servicer in connection with the transfer of master servicing or servicing from a
predecessor master servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data or
servicing data and the completion, correction or manipulation of such master
servicing data or servicing data as may be required by the Trustee or successor
master servicer to correct any errors or insufficiencies in the master servicing
data or servicing data or otherwise to enable the Trustee or a successor master
servicer to master service or service, as the case may be, the applicable
Mortgage Loans properly and effectively.
Maximum Initial Class Certificate Balance: As to each Class of Exchangeable
REMIC Certificates or Exchangeable Certificates, the Class Certificate Balance
set forth in the Preliminary Statement.
Maximum Negative Amortization: With respect to each Option ARM Mortgage
Loan, the percentage set forth in the related Mortgage Note as the percentage
equal to the principal balance of such Mortgage Loan as of the applicable date
of determination divided by the original principal balance of the such Mortgage
Loan, that if exceeded due to Deferred Interest, will result in a recalculation
of the Monthly Payment so that the then unpaid principal balance of the Mortgage
Note will be fully amortized over such Mortgage Loan's remaining term to
maturity.
MERS: As defined in Section 2.01(b)(iii).
Mezzanine Applied Realized Loss Amount: With respect to each Distribution
Date, the excess, if any, of (a) the aggregate Class Certificate Balance of the
Overcollateralized Certificates (after taking into account the distribution of
Available Funds and any Net Swap Payments from the Swap Provider on such
Distribution Date and any increase in the Class Certificate Balance of a Class
of Overcollateralized Certificates as a result of Recoveries) over (b) the
aggregate Stated Principal Balance of the OC Mortgage Loans as of the last day
of the related Collection Period.
Mezzanine Certificates: The Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, each of which
represents (i) the corresponding Upper-Tier II Regular Interest for purposes of
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the REMIC Provisions, (ii) the right to receive the related Rate Cap Carryover
Amounts and (iii) the obligation to pay the Class IO Distribution Amount.
Mezzanine Principal Distribution Amount: With respect to the Class M-1
Certificates, the Class M-1 Principal Distribution Amount; with respect to the
Class M-2 Certificates, the Class M-2 Principal Distribution Amount; with
respect to the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount; with respect to the Class M-4 Certificates, the Class M-4 Principal
Distribution Amount; with respect to the Class M-5 Certificates, the Class M-5
Principal Distribution Amount; with respect to the Class M-6 Certificates, the
Class M-6 Principal Distribution Amount; with respect to the Class M-7
Certificates, the Class M-7 Principal Distribution Amount; and with respect to
the Class M-8 Certificates, the Class M-8 Principal Distribution Amount.
Monthly Covered Amount: As defined in the Mortgage Loan Purchase Agreement.
Monthly Excess Cashflow Amount: For any Distribution Date, any portion of
the Available Funds remaining after distribution pursuant to Section 5.03(a)
priority fifth.
Monthly Excess Interest Amount: With respect to each Distribution Date, the
amount, if any, by which the Interest Remittance Amount for such Distribution
Date exceeds the aggregate amount distributed on such Distribution Date to the
Overcollateralized Certificates pursuant to Section 5.03(a) priorities first
through third.
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 affect the amount of the monthly
payment due on such Mortgage Loan.
Monthly Statement: As defined in Section 5.05(b).
Moody's: Xxxxx'x Investors Service, Inc. or any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on a Mortgaged Property securing a Mortgage Note or creating a first lien
on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining to
a particular Mortgage Loan and any additional documents required to be added to
the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate of
interest at which interest accrues on the principal balance of such Mortgage
Loan, as adjusted from time to time in accordance with the provisions of the
related Mortgage Note, which rate is (a) prior to the first Rate Adjustment Date
for each such Mortgage Loan, the initial Mortgage Interest Rate for such
Mortgage Loan indicated on the related 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
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set forth in such Mortgage Note, subject to the Periodic Cap and the Rate
Ceiling applicable to such Mortgage Loan at any time during the life of such
Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase Agreement,
dated May 31, 2007, between BANA, as seller, and the Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect the addition of Substitute Mortgage
Loans and the deletion of Defective Mortgage Loans pursuant to the provisions of
this Agreement) transferred to the Trustee as part of the Trust Estate and from
time to time subject to this Agreement, attached hereto as Exhibit X-0, Xxxxxxx
X-0 and Exhibit D-3, setting forth the following information with respect to
each Mortgage Loan: (i) the Mortgage Loan identifying number; (ii) a code
indicating whether the Mortgaged Property is owner-occupied; (iii) the property
type for each Mortgaged Property; (iv) the original months to maturity or the
remaining months to maturity from the Cut-off Date; (v) the Loan-to-Value Ratio
at origination; (vi) the Mortgage Interest Rate as of the Cut-off Date; (vii)
the date on which the first Monthly Payment was due on the Mortgage Loan, and,
if such date is not the Due Date currently in effect, such Due Date; (viii) the
stated maturity date; (ix) the amount of the Monthly Payment as of the Cut-off
Date; (x) the paid-through date; (xi) the original principal amount of the
Mortgage Loan; (xii) the principal balance of the Mortgage Loan as of the close
of business on the Cut-off Date, after application of payments of principal due
on or before the Cut-off Date, whether or not collected, and after deduction of
any payments collected of scheduled principal due after the Cut-off Date; (xiii)
a code indicating the purpose of the Mortgage Loan; (xiv) a code indicating the
documentation style; (xv) a code indicating the initial Servicer; (xvi) the
Appraised Value; (xvii) the first Rate Adjustment Date; (xviii) the Rate
Ceiling; (xix) the Rate Floor; (xx) the Periodic Cap, if applicable; (xxi) the
Gross Margin; (xxii) the Index; (xxiii) the closing date of the Mortgage Loan;
(xxiv) the Servicing Fee Rate; (xxv) a code indicating whether the Mortgage Loan
is an Option ARM Mortgage Loan; (xxvi) the first Payment Adjustment Date, if
applicable; and (xxvii) the Maximum Negative Amortization, if applicable. With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall
set forth the following information, as of the Cut-off Date: (i) the number of
Mortgage Loans; (ii) the current aggregate outstanding principal balance of the
Mortgage Loans; (iii) the weighted average Mortgage Interest Rate of the
Mortgage Loans; and (iv) the weighted average months to maturity of the Mortgage
Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.01 as from time to time are held as a part of the
Trust Estate (including any Substitute Mortgage Loans and REO Property), the
Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage Loan, which
may include Cooperative Stock or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
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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
calendar month preceding the month of such Distribution Date reduced by the
applicable Servicing Fee Rate for such Mortgage Loan.
Net Rate Cap: As of any Distribution Date, a per annum rate (expressed on
the basis of an assumed 360-day year and the actual number of days elapsed
during the related Interest Accrual Period) equal to the lesser of (a) (i) the
Net WAC of the OC Mortgage Loans for such Distribution Date less (ii) 12 times
the quotient of (x) the Net Swap Payment or Swap Termination Payment, if any,
made to the Swap Provider (only if such Swap Termination Payment is not due to a
Swap Provider Trigger Event (as defined in the Interest Rate Swap Agreement))
for such Distribution Date and (y) the aggregate Stated Principal Balance of the
OC Mortgage Loans as of the first day of the related Collection Period and (b)
the Available Funds Rate Cap.
Net Swap Payment: With respect to any Distribution Date, any net payment
(other than a Swap Termination Payment) payable by the Supplemental Interest
Trust to the Swap Provider on the related Fixed Rate Payer Payment Date (as
defined in the Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net payment
(other than a Swap Termination Payment) made by the Swap Provider to the
Supplemental Interest Trust on the related Floating Rate Payer Payment Date (as
defined in the Interest Rate Swap Agreement), or any amount withdrawn from the
Swap Account that is required under that paragraph to be treated as a Net Swap
Receipt for purposes of determining the distributions from the Supplemental
Interest Trust.
Net WAC: As to any Shifting Interest Loan Group, the OC Loan Group or the
Shifting Interest Loan Groups in the aggregate and any Distribution Date, the
weighted average of the Net Mortgage Interest Rates of the Mortgage Loans in
such Shifting Interest Loan Group, the OC Loan Group or the Shifting Interest
Loan Groups in the aggregate (based on Stated Principal Balances of the Mortgage
Loans in such Shifting Interest Loan Group, OC Loan Group or the Shifting
Interest Loan Groups in the aggregate on the Due Date in the month preceding the
month of such Distribution Date).
NIMS Insurer: Any insurer that is guaranteeing certain payments under notes
secured by collateral which includes all or a portion of the Class CE
Certificates.
NMWHFIT: A "Non-Mortgage Widely Held Fixed Investment Trust" as that term
is defined in Treasury Regulations section 1.671-5(b)(12) or successor
provisions.
Non-Supported Interest Shortfalls: As to any Distribution Date and the
Shifting Interest Mortgage Loans, the amount, if any, by which the aggregate of
Prepayment Interest Shortfalls related to such Mortgage Loans exceeds the
aggregate Compensating Interest for such Mortgage Loans for such Distribution
Date.
Non-U.S. Person: A Person other than a U.S. Person.
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Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the applicable Servicer will
not or, in the case of a proposed Advance, would not be ultimately recoverable
from the related Mortgagor, related Liquidation Proceeds, Insurance Proceeds or
other recoveries in respect of the related Mortgage Loan.
North Fork Assignment Agreement: The Assignment, Assumption and Recognition
Agreement, dated March 20, 2007, among North Fork Bank, the Xxxxx Fargo Bank,
N.A. and BANA.
Notional Amount: With respect to the Class CE Upper-Tier II Regular
Interest and the Class CE Certificates and any date of determination, a notional
amount equal to the then aggregate Uncertificated Balances of the Uncertificated
Lower-Tier II Regular Interests.
NYCEMA: A New York Consolidation, Extension and Modification Agreement.
OC Group: The Overcollateralized Certificates.
OC Group Regular Interest: The Uncertificated Lower-Tier II Regular
Interests and the Uncertificated Upper-Tier II Regular Interests.
OC Loan Group: The OC Mortgage Loans.
OC Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1 hereto.
OC Optional Termination Date: The first Distribution Date on which all of
the OC Mortgage Loans and all related REO Property remaining in the Trust Estate
may be purchased pursuant to Section 10.01.
Offered Certificates: The Senior, Class X-B-1, Class X-B-2, Class X-B-3 and
Mezzanine Certificates.
Offered Overcollateralized Certificates: The Class 1-A-1, Class 1-A-2,
Class 1-A-3, Class 1-A-4, Class 1-A-5, Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the Board,
Vice Chairman of the Board, President or a Vice President and by the Treasurer,
the Secretary or one of the Assistant Treasurers or Assistant Secretaries, or
any other duly authorized officer of the Depositor or the Master Servicer, as
the case may be, and delivered to the Trustee or the Securities Administrator,
as required in this Agreement.
One-Month LIBOR: As to any Distribution Date, the arithmetic mean of London
Interbank offered rate quotations for one-month U.S. Dollar deposits, as
determined by the Securities Administrator in accordance with Section 5.10.
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
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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 up
to the date 45 days before the applicable Rate Adjustment Date.
One-Year LIBOR Index: A rate per annum that is defined to be the average of
interbank offered rates for one-year U.S. dollar-denominated deposits in the
London market, as published in The Wall Street Journal and most recently
available either (i) as of the first Business Day in the month preceding the
month of the applicable Rate Adjustment Date or (ii) up to the date 45 days
before the applicable Rate Adjustment Date.
Opinion of Counsel: A written opinion of counsel acceptable to the Trustee
if such opinion is delivered to the Trustee, or acceptable to the Securities
Administrator if such opinion is delivered to the Securities Administrator, who
may be counsel for the Depositor or the Master Servicer, except that any opinion
of counsel relating to the qualification any REMIC created hereunder as a REMIC
or compliance with the REMIC Provisions must be an opinion of Independent
counsel.
Option ARM Mortgage Loans: A Mortgage Loan with respect to which the
related Mortgagor may choose a flexible payment option each month pursuant to
the terms of the related Mortgage Note, as identified on the Mortgage Loan
Schedule.
Original Fractional Interest: With respect to each of the following Classes
of Class X-B Certificates, the corresponding percentage described below, as of
the Closing Date:
Class X-B-1 1.20%
Class X-B-2 0.80%
Class X-B-3 0.50%
Class X-B-4 0.30%
Class X-B-5 0.15%
Class X-B-6 N/A
Original Subordinate Certificate Balance: $10,204,035.
OTS: The Office of Thrift Supervision.
Outstanding Certificate: Any Outstanding Exchangeable Certificate or
Outstanding Exchangeable REMIC Certificate.
Outstanding Exchangeable Certificate: Any Exchangeable Certificate issued
hereunder on the Closing Date; provided, however, that upon the exchange of any
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Exchangeable Certificate pursuant to Section 6.06 hereof, the Exchangeable
Certificate so exchanged shall be deemed no longer to be an Outstanding
Exchangeable Certificate, and each Exchangeable REMIC Certificate issued in
exchange therefor shall be deemed to be an Outstanding Exchangeable REMIC
Certificate.
Outstanding Exchangeable REMIC Certificate: Any Exchangeable REMIC
Certificate issued hereunder on the Closing Date; provided, however, that upon
the exchange of any Exchangeable REMIC Certificate pursuant to Section 6.06
hereof, the Exchangeable REMIC Certificate so exchanged shall be deemed no
longer to be an Outstanding Exchangeable REMIC Certificate, and each
Exchangeable Certificate issued in exchange therefor shall be deemed to be an
Outstanding Exchangeable Certificate.
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 or
2.04.
Overcollateralization Amount: As of any Distribution Date, the excess, if
any, of (x) the aggregate Stated Principal Balance of the OC Mortgage Loans as
of the last day of the related Collection Period over (y) the aggregate Class
Certificate Balance of all Classes of Overcollateralized Certificates (after
taking into account all distributions of principal on such Distribution Date and
the increase of any Class Certificate Balance of a Class of Overcollateralized
Certificates as a result of Recoveries related to the OC Mortgage Loans).
Overcollateralization Deficiency: As of any Distribution Date, the excess,
if any, of (x) the Targeted Overcollateralization Amount over (y) the difference
(which may be negative) between (i) the aggregate Stated Principal Balance of
the OC Mortgage Loans as of the last day of the related Collection Period and
(ii) the aggregate Class Certificate Balance of all Classes of
Overcollateralized Certificates (after taking into account the reduction on such
Distribution Date of the Class Certificate Balances of all Classes of
Overcollateralized Certificates resulting from the distribution of the Principal
Distribution Amount (but not the Extra Principal Distribution Amount) on that
Distribution Date, but prior to taking into account any Applied Realized Loss
Amounts on that Distribution Date).
Overcollateralization Release Amount: With respect to any Distribution Date
on or after the Stepdown Date on which a Trigger Event is not in effect, the
lesser of (x) the Principal Remittance Amount for such Distribution Date and (y)
the excess, if any, of (i) the Overcollateralization Amount for such
Distribution Date, assuming that 100% of the Principal Remittance Amount is
applied as a principal payment on the Overcollateralized Certificates on such
Distribution Date over (ii) the Targeted Overcollateralization Amount for such
Distribution Date. With respect to any Distribution Date on which a Trigger
Event is in effect, the Overcollateralization Release Amount will be zero.
Overcollateralized Accrued Certificate Interest: For any Distribution Date
and each Class of Overcollateralized Certificates, one month's interest accrued
during the related Interest Accrual Period at the applicable Certificate
Interest Rate on the applicable Class Certificate Balance minus such Class'
Interest Percentage of Relief Act Reductions related to any OC Mortgage Loan for
such Distribution Date.
Overcollateralized Certificates: The Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-5, Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8 and Class CE Certificates.
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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: With respect to each Distribution Date and any Class of
interest-bearing Certificates (other than the Class CE Certificates), the per
annum rate set forth or described in the Preliminary Statement. With respect to
each Distribution Date and the Uncertificated Shifting Interest Lower-Tier
Regular Interests, the Uncertificated Shifting Interest Lower-Tier REMIC
Pass-Through Rate. With respect to each Distribution Date and the Uncertificated
Shifting Interest Middle-Tier Regular Interests, the Uncertificated Shifting
Interest Middle-Tier REMIC Pass-Through Rate. With respect to each Distribution
Date and the Uncertificated Lower-Tier II Regular Interests, the Uncertificated
Lower-Tier II REMIC Pass-Through Rate. With respect to each Distribution Date
and the Upper-Tier II Regular Interests (other than the Class CE Upper-Tier II
Regular Interest), the Uncertificated Upper-Tier II REMIC Pass-Through Rate.
Solely for federal income tax purposes, each reference to the Net Rate Cap in
the applicable Pass-Through Rate shall be deemed to be a reference to the
Upper-Tier II REMIC Net Rate Cap.
With respect to the Class CE Upper-Tier II Regular Interest and any
Distribution Date, a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is (x) the sum of interest on the
Uncertificated Balance of each Uncertificated Lower-Tier II Regular Interest
listed in clause (y) at a rate equal to the related Uncertificated Lower-Tier II
REMIC Pass-Through Rate minus the Marker Rate and the denominator of which is
(y) the aggregate Uncertificated Balance of the Uncertificated Lower-Tier II
Regular Interests.
With respect to the Class CE Certificates and any Distribution Date, the
Class CE Certificates shall be entitled to 100% of the amounts distributable to
the Class CE Upper-Tier II Regular Interest.
Paying Agent: As defined in Section 9.13.
Payment Adjustment Date: With respect to any Option ARM Mortgage Loan, each
date on which the Monthly Payment for such Option ARM Mortgage Loan is adjusted,
as indicated on the Mortgage Loan Schedule.
Percentage Interest: As to any Certificate (other than an Exchangeable
REMIC Certificate, Exchangeable Certificate or Class CE Certificate), the
percentage obtained by dividing the initial Certificate Balance of such
Certificate by the Initial Class Certificate Balance of the Class of which such
Certificate is a part. With regard to a Class of Exchangeable REMIC Certificates
or Exchangeable Certificates, the percentage obtained by dividing the
Denomination of such Certificate by the Aggregate Denomination of all
outstanding Certificates of such Class. With respect to a Class CE Certificate,
the portion of the Class evidenced thereby, expressed as a percentage, as stated
on the face of such Certificate; provided, however, that the sum of all such
percentages for each such Certificate totals 100%.
Periodic Advance: With respect to each Servicer, shall have the meaning
given to term "Monthly Advance" in the applicable Servicing Agreement.
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Periodic Cap: For each Mortgage Loan other than an Option ARM 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 applicable 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, Xxxxxxx Mac, Xxxxxx Xxx or any agency or instrumentality of
the United States when such obligations are backed by the full faith and
credit of the United States; provided that such obligations of Xxxxxxx Mac
or Xxxxxx Xxx shall be limited to senior debt obligations and mortgage
participation certificates other than investments in mortgage-backed or
mortgage participation securities with yields evidencing extreme
sensitivity to the rate of principal payments on the underlying mortgages,
which shall not constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any state
thereof rated not lower than "P-1" by Xxxxx'x, "F1" 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 "P-1" by Xxxxx'x, "F1" 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 "P-1" by Xxxxx'x, "F1"
by Fitch and "A-1+" by S&P;
(v) investments in money market funds (including funds of the
Securities Administrator or its affiliates, or funds for which an affiliate
of the Securities Administrator acts as advisor, as well as funds for which
the Securities Administrator and its affiliates may receive compensation)
rated "Aaa" by Xxxxx'x, "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 the
Master Servicer or Securities Administrator, as the case may be, will not
affect the qualification of any REMIC created under this Agreement as a
REMIC;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
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interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States, or any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) (except
certain farmers' cooperatives described in Code Section 521), (iv) rural
electric and telephone cooperatives described in Code Section 1381(a)(2)(C), (v)
a Person with respect to whom the income on a Residual Certificate is allocable
to a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other U.S. Person, and (vi)
any other Person so designated by the Depositor 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 2-A-R, Class X-B-4, Class X-B-5, Class
X-B-6 and Class CE Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and each Shifting
Interest 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 Shifting
Interest Loan Group (net of the related Servicing Fees) and the principal
portion of any Monthly Payment on a Mortgage Loan in such Shifting Interest 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 (or the Master Servicer or the Trustee, as
applicable) in respect of such Shifting Interest Loan Group and payments of
Compensating Interest allocable to such Shifting Interest Loan Group made by the
applicable Servicer in respect of such Shifting Interest Loan Group and such
Distribution Date deposited to the Master Servicer Custodial Account pursuant to
Section 3.09(d)(vi); (ii) all Liquidation Proceeds (other than Excess Proceeds)
received on the Mortgage Loans in such Shifting Interest Loan Group during the
related Prepayment Period and deposited to the Master Servicer Custodial Account
pursuant to Section 3.09(d)(iii); (iii) all Principal Prepayments received on
the Mortgage Loans in such Shifting Interest Loan Group during the related
Prepayment Period; (iv) in connection with any Mortgage Loans that are Defective
Mortgage Loans in such Shifting Interest Loan Group, the aggregate of the
Purchase Prices and Substitution Adjustment Amounts remitted on the related
Remittance Date pursuant to Section 3.09(d)(vii); (v) any other amounts in the
Master Servicer Custodial Account deposited therein pursuant to Section
3.09(d)(iv), (v), (viii), (ix), and (x) in respect of such Distribution Date and
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such Shifting Interest Loan Group; (vi) any Reimbursement Amount required to be
included pursuant to Section 5.02; over (b) any amounts permitted to be
withdrawn from the Master Servicer Custodial Account pursuant to clauses (i)
through (viii), inclusive, of Section 3.11 in respect of such Shifting Interest
Loan Group.
Pool Principal Balance: As to any Distribution Date and any Shifting
Interest Loan Group, the aggregate Stated Principal Balance of all Mortgage
Loans in such Shifting Interest 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 Charges: With respect to any Prepayment Period, any prepayment
premium, penalty or charge collected by a Servicer from a Mortgagor in
connection with any voluntary Principal Prepayment in Full pursuant to the terms
of the related Mortgage Note as from time to time held as a part of the Trust
Estate, the Prepayment Charges so held being identified in the related Mortgage
Loan Schedule.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the related
Prepayment Period, the amount, if any, by which one month's interest at the
related Net Mortgage Interest Rate on such Principal Prepayment exceeds the
amount of interest paid in connection with such Principal Prepayment.
Prepayment Period: With respect to any Distribution Date, the calendar
month preceding the calendar month in which such Distribution Date occurs.
Primary Mortgage Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan,
in each case issued by an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac.
Principal Amount: As to any Distribution Date and Shifting Interest Loan
Group, the sum of (1) the sum of (a) the principal portion of each Monthly
Payment due on each Mortgage Loan in such Loan Group on the related Due Date,
(b) the Stated Principal Balance, as of the date of repurchase, of (i) any
Mortgage Loan in such Loan Group repurchased by the Sponsor pursuant to the
Mortgage Loan Purchase Agreement or a Purchase Obligation as of such
Distribution Date, (ii) any Mortgage Loan in such Loan Group repurchased by the
Depositor pursuant to a Purchase Obligation as of such Distribution Date, (iii)
any Mortgage Loan in such Loan Group repurchased by a Servicer pursuant to a
Servicing Agreement or (iv) any Mortgage Loan in such Loan Group purchased
pursuant to Section 10.01 hereof, (c) any Substitution Adjustment Amount in
connection with a Defective Mortgage Loan in such Loan Group received during the
related Prepayment Period, (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 related Prepayment Period, (e)
with respect to each Mortgage Loan in such Loan Group that became a Liquidated
Mortgage Loan during the related Prepayment Period, the amount of Liquidation
Proceeds (excluding Excess Proceeds) allocable to principal received by a
Servicer with respect to such Mortgage Loan during such period and (f) all
Principal Prepayments on the Mortgage Loans in such Loan Group received by a
Servicer during the related Prepayment Period and (2) any Recovery related to
such Loan Group for such Distribution Date.
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Xxxxxxxxx Xxxxxxxxxxxx Xxxxxx: As to any Distribution Date, the sum of (i)
the Principal Remittance Amount less (a) the Overcollateralization Release
Amount, if any, and (b) any amounts used to pay Accrued Certificate Interest or
Interest Carryforward Amounts pursuant to Section 5.03(a) priorities first
through third) and (ii) the Extra Principal Distribution Amount, if any.
Principal Prepayment: With respect to each Mortgage Loan, 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.
Principal Remittance Amount: With respect to any Distribution Date and the
OC Mortgage Loans, to the extent of funds available therefor, the amount equal
to (a) the sum (less amounts available for reimbursement to the Servicers for
Advances and expenses pursuant to the applicable Servicing Agreement and amounts
reimbursable or payable to the Master Servicer, Securities Administrator and
Trustee pursuant to this Agreement) of: (i) each payment of principal on such
Mortgage Loan due during the related Collection Period and received by the
Servicers on or prior to the related Determination Date, and any Advances with
respect thereto, (ii) all Principal Prepayments received by the applicable
Servicer during the related Prepayment Period, (iii) Insurance Proceeds,
Liquidation Proceeds and Recoveries allocable to principal actually collected by
the applicable Servicer during the related Prepayment Period, (iv) with respect
to Defective Mortgage Loans repurchased during the related Prepayment Period,
the portion of the Repurchase Price allocable to principal, (v) any Substitution
Adjustment Amounts paid during the related Prepayment Period and (vi) on the
Distribution Date on which the OC Mortgage Loans and related REO Property are
purchased in accordance with Section 10.01 hereof, that portion of the purchase
price therefor in respect of principal less (b) any amounts payable to the Swap
Provider (including any Net Swap Payment and any Swap Termination Payment owed
to the Swap Provider, other than a Defaulted Swap Termination Payment) not
covered by the Interest Remittance Amount.
Private Certificates: The Class X-B-4, Class X-B-5, Class X-B-6 and Class
CE Certificates.
Pro Rata Share: As to any Distribution Date and any Class of Class X-B
Certificates, the portion of the Subordinate Principal Distribution Amounts for
the Shifting Interest Loan Groups allocable to such Class, equal to the sum of
(i) the product of the amounts determined in accordance with clause (i) of the
Subordinate Principal Distribution Amounts for the Shifting Interest Loan Groups
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 Class X-B Certificates and (ii) if such class
is not a Restricted Class, the product of the amounts determined in accordance
with clause (ii) of the Subordinate Principal Distribution Amounts for the
Shifting Interest Loan Groups for such Distribution Date and a fraction, the
numerator of which is the related Class Certificate Balance thereof and the
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denominator of which is the aggregate Class Certificate Balance of the Class X-B
Certificates that are not Restricted Classes. The Pro Rata Share of a Restricted
Class shall be 0% with respect to clauses (x)(ii) hereof.
Purchase Obligation: An obligation of the Sponsor or the Depositor to
purchase Mortgage Loans under the circumstances and in the manner provided in
Section 2.02 or 2.04.
Purchase Price: With respect to each Mortgage Loan that was a Defective
Mortgage Loan repurchased on any date pursuant to Sections 2.02 or 2.04, an
amount equal to the sum of (i) the Stated Principal Balance of the Mortgage
Loan, (ii) interest on such Stated Principal Balance at the Mortgage Interest
Rate from the date on which interest has last been paid and distributed through
the last day of the month in which such repurchase takes place and (iii) any
costs and damages incurred by the Trust in connection with any violation by such
repurchased Mortgage Loan of any predatory or abusive lending law, less (x)
amounts received or advanced in respect of such repurchased Mortgage Loan which
are being held in the applicable Servicer Custodial Account for distribution in
the month of repurchase and (y) if the Person repurchasing such Mortgage Loan is
servicing such Mortgage Loan under the related Servicing Agreement, the
Servicing Fee for such Mortgage Loan.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on which an
adjustment to the Mortgage Interest Rate of such Mortgage Loan becomes effective
under the related Mortgage Note.
Rate Cap Carryover Amount: If on any Distribution Date, the
Overcollateralized Accrued Certificate Interest for any Offered
Overcollateralized Certificate is based on the Net Rate Cap, the excess of (i)
the amount of interest such Class would have been entitled to receive on such
Distribution Date based on its Pass-Through Rate over (ii) the amount of
interest such Class received on such Distribution Date based on the Net Rate
Cap, together with the unpaid portion of any such excess from prior Distribution
Dates (and interest accrued thereon at the then-applicable Pass-Through Rate on
such Class). For federal income tax purposes, each application of the applicable
Net Rate Cap shall be an application of the Upper-Tier II REMIC Net Rate Cap for
purposes of calculating the related Rate Cap Carryover Amount.
Rate Cap Carryover Reserve Account: The Eligible Account created and
maintained by the Securities Administrator pursuant to Section 3.09(i) in the
name of the Securities Administrator, on behalf of the Trustee, for the benefit
of the Holders of the Offered Overcollateralized Certificates and designated
"Xxxxx Fargo Bank, N.A., as Securities Administrator for U.S. Bank National
Association, as Trustee, in trust for registered holders of Banc of America
Funding Corporation Mortgage Pass-Through Certificates, Series 2007-D." Funds in
the Rate Cap Carryover Reserve Account shall be held in trust for the Holders of
the Offered Overcollateralized Certificates for the uses and purposes set forth
in this Agreement. The Rate Cap Carryover Reserve Account shall not be an asset
of any REMIC formed under this Agreement.
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted under
the related Mortgage Note and indicated on the related Mortgage Loan Schedule.
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Rate Floor: The minimum per annum Mortgage Interest Rate permitted under
the related Mortgage Note and indicated on the related Mortgage Loan Schedule.
Rating Agency: Each of S&P, Xxxxx'x and Fitch. If any such organization or
a successor is no longer in existence, "Rating Agency" shall be such nationally
recognized statistical rating organization, or other comparable Person, as is
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer and the Securities Administrator. References herein
to a given rating or rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount as
of the date of such liquidation, equal to (i) the unpaid principal balance of
the Liquidated Mortgage Loan as of the date of such liquidation, plus (ii)
interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Realized Loss Amortization Amount: As to each Class of Offered
Overcollateralized Certificates and any Distribution Date, the lesser of (x) the
Unpaid Realized Loss Amount for such Class and (y) the remaining Available Funds
available for distribution to such Class in Section 5.03(a) priority seventh.
Recognition Agreement: With respect to a Cooperative Loan, the recognition
agreement between the Cooperative and the originator of such Cooperative Loan.
Record Date: With respect to the Shifting Interest Certificates and the
Class CE Certificates, the last Business Day of the month immediately preceding
the month in which the related Distribution Date occurs. With respect to the
Offered Overcollateralized Certificates, the Business Day immediately preceding
each Distribution Date; provided, however, if Definitive Certificates are issued
for any of such Certificates, the Record Date for such Certificates will be the
last Business Day of the month preceding such Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100 - 229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
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the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For the OC Loan Group, the OC Group; for Loan Group 2, Group
2; for Loan Group 3, Group 3; and for the Shifting Interest Loan Groups, Group 2
and Group 3.
Related Loan Group: For the OC Group, the OC Loan Group; for Group 2, Loan
Group 2; and for Group 3, Loan Group 3.
Relevant Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit N attached hereto. The Servicing
Criteria applicable to each Servicer shall be as set forth on the applicable
Servicing Agreement. For clarification purposes, multiple parties can have
responsibility for the same Relevant Servicing Criteria. With respect to a
Servicing Function Participant engaged by the Master Servicer, the Securities
Administrator, the Custodian or any Servicer, the term "Relevant Servicing
Criteria" may refer to a portion of the Relevant Servicing Criteria applicable
to such parties.
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 related Collection Period 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 such Collection
Period 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 related Collection Period.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Certificate Maturity Date: As set forth 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: The 18th day of each month beginning in June 2007 (or, if
such day is not a Business Day, the preceding Business Day).
REO Disposition Period: As defined in Section 3.15.
REO Proceeds: Proceeds, net of any related expenses of a Servicer received
in respect of any REO Property (including, without limitation, proceeds from the
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rental of the related Mortgaged Property), which are received prior to the final
liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by a Servicer servicing the
related Mortgage Loan on behalf of the Trust through foreclosure or deed-in-lieu
of foreclosure in connection with a defaulted Mortgage Loan.
Reportable Event: As defined in Section 3.22(d).
Reporting Servicer: As defined in Section 3.22(c)(i).
Request for Release: The Request for Release submitted by a Servicer to the
Custodian on behalf of the Trustee, substantially in the form attached hereto as
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.
Reserve Interest Rate: As defined in Section 5.10.
Residual Certificate: The Class 2-A-R Certificate.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust Department of the
Trustee or the Securities Administrator, as applicable, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee or Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
Reuters Screen LIBOR01: As defined in Section 5.10.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., or
any successor thereto.
Xxxxxxxx-Xxxxx Certification: As defined in Section 3.22(e).
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.
Security Agreement: With respect to a Cooperative Loan, the agreement or
mortgage creating a security interest in favor of the originator of the
Cooperative Loan in the related Cooperative Stock.
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Senior Applied Realized Loss Amount: With respect to each Distribution Date
after the aggregate Class Certificate Balance of the Mezzanine Certificates has
been reduced to zero and any Class of Senior Overcollateralized Certificates,
the product of (i) the excess, if any, of the (a) the aggregate Class
Certificate Balance of the Senior Overcollateralized Certificates (after taking
into account the distribution of the Principal Distribution Amount and any Net
Swap Payments from the Swap Provider on such Distribution Date and any increase
in any Class Certificate Balance as a result of Recoveries) over (b) the
aggregate Stated Principal Balance of the OC Mortgage Loans as of last day of
the related Collection Period and (ii) a fraction, the numerator of which is the
Class Certificate Balance of such Class of Senior Overcollateralized
Certificates and the denominator of which is the aggregate Class Certificate
Balance of the Senior Overcollateralized Certificates.
Senior Certificates: The Class 1-A-1, Class 1-A-2, Class 1-A-3, Class
1-A-4, Class 1-A-5, Class 2-A-R, Class 2-A-1, Class 3-A-1, Class 3-A-2, Class
3-A-3, Class 3-A-4 and Class 3-A-5 Certificates.
Senior Credit Support Depletion Date: The date on which the aggregate Class
Certificate Balance of the Class X-B Certificates has been reduced to zero.
Senior Enhancement Percentage: For any Distribution Date, the percentage
obtained by dividing (x) the sum of (i) the aggregate Class Certificate Balance
of the Mezzanine Certificates before taking into account distributions on such
Distribution Date and (ii) the Overcollateralization Amount as of the prior
Distribution Date by (y) the aggregate Stated Principal Balance of the OC
Mortgage Loans as of the last day of the related Collection Period.
Senior Overcollateralized Certificates: The Class 1-A-1, Class 1-A-2, Class
1-A-3, Class 1-A-4 and Class 1-A-5 Certificates, each of which represents (i)
the Corresponding Upper-Tier II Regular Interest for purposes of the REMIC
Provisions, (ii) the right to receive the related Rate Cap Carryover Amounts and
(iii) the obligation to pay the Class IO Distribution Amount.
Senior Percentage: With respect to any Distribution Date and Shifting
Interest Loan Group, the percentage, carried to six places rounded up, obtained
by dividing (i) the aggregate Class Certificate Balance of the Senior
Certificates of the Related Group immediately prior to such Distribution Date by
(ii) the Pool Principal Balance of such Loan Group for such Distribution Date.
Senior Prepayment Percentage: For any Shifting Interest Loan Group and any
Distribution Date during the seven years beginning on the first Distribution
Date, 100%. The Senior Prepayment Percentage for any Shifting Interest Loan
Group and any Distribution Date occurring on or after the seventh anniversary of
the first Distribution Date will, except as provided herein, be as follows: for
any Distribution Date in the first year thereafter, the Senior Percentage for
such Loan Group plus 70% of the Subordinate Percentage for such Loan Group for
such Distribution Date; for any Distribution Date in the second year thereafter,
the Senior Percentage for such Loan Group plus 60% of the Subordinate Percentage
for such Loan Group for such Distribution Date; for any Distribution Date in the
third year thereafter, the Senior Percentage for such Loan Group plus 40% of the
Subordinate Percentage for such Loan Group for such Distribution Date; for any
Distribution Date in the fourth year thereafter, the Senior Percentage for such
Loan Group plus 20% of the Subordinate Percentage for such Loan Group for such
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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 with respect to any
Shifting Interest Loan Group, the Aggregate Senior Percentage for such
Distribution Date exceeds the Aggregate Senior Percentage calculated as of the
Closing Date, in which case the Senior Prepayment Percentage for each Shifting
Interest Loan Group for such Distribution Date will once again equal 100%, (ii)
on any Distribution Date before the Distribution Date occurring in June 2010,
with respect to any Shifting Interest Loan Group, the Aggregate Subordinate
Percentage for such Distribution Date is greater than or equal to twice the
Aggregate Subordinate Percentage calculated as of the Closing Date, in which
case the Senior Prepayment Percentage for each Shifting Interest Loan Group for
such Distribution Date will equal the Senior Percentage for such Shifting
Interest Loan Group plus 50% of the Subordinate Percentage for such Shifting
Interest Loan Group, or (iii) on any Distribution Date occurring on or after the
Distribution Date in June 2010, with respect to any Shifting Interest Loan
Group, the Aggregate Subordinate Percentage for such Distribution Date is
greater than or equal to twice the Aggregate Subordinate Percentage calculated
as of the Closing Date, in which case the Senior Prepayment Percentage for each
Shifting Interest Loan Group for such Distribution Date will equal the Senior
Percentage for such Shifting Interest Loan Group. Notwithstanding the foregoing,
no decrease in the share of the applicable Subordinate Percentage (for
calculating the applicable Senior Prepayment Percentage for such Loan Group)
will occur and the Senior Prepayment Percentage for such Loan Group 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 Shifting Interest Certificates: The Class 2-A-R, Class 2-A-1, Class
3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4 and Class 3-A-5 Certificates.
Senior Specified Enhancement Percentage: For any date, 11.40%.
Senior Step Down Conditions: As of any Distribution Date and any Shifting
Interest Loan Group and as to which any decrease in the Senior Prepayment
Percentage for such Loan Group applies, (i) the outstanding principal balance of
all Shifting Interest Mortgage Loans (including, for this purpose, any such
Mortgage Loans in foreclosure, any related REO Property and any such 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 Class X-B
Certificates is not equal to or greater than 50% or (ii) cumulative Realized
Losses with respect to the Shifting Interest Mortgage Loans do not exceed the
percentage of the percentages of the Original Subordinate Certificate Balance
set forth below:
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Percentage of
Original Subordinate
Distribution Date Occurring Certificate Balance
---------------------------------------------- -----------------------------
June 2007 through May 2010 20%
June 2010 through May 2015 30%
June 2015 through May 2016 35%
June 2016 through May 2017 40%
June 2017 through May 2018 45%
June 2018 and thereafter 50%
Servicer: Any of BANA and Xxxxx Fargo, each in their capacity as a servicer
of the Mortgage Loans, or any successor servicer appointed as herein provided.
Servicer Custodial Accounts: The separate accounts created and maintained
by each of the Servicers pursuant to the applicable Servicing Agreement.
Servicing Advance: With respect to each Servicer, shall have the meaning
given to the term "Servicing Advances" in the applicable Servicing Agreement.
Servicing Agreements: Any of the BANA Servicing Agreement and the Xxxxx
Fargo Servicing Agreement.
Servicing Criteria: The criteria set forth in paragraph (d) of Item 1122 of
Regulation AB, as such may be amended from time to time
Servicing Fee: With respect to each Servicer, as defined in the applicable
Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as set forth on the
applicable Mortgage Loan Schedule.
Servicing File: With respect to each Mortgage Loan, as defined in the
applicable Servicing Agreement.
Servicing Function Participant: Any Subcontractor utilized by the Master
Servicer, the Securities Administrator or the Custodian that is "participating
in the servicing function" within the meaning of Item 1122 of Regulation AB.
Servicing Officer: With respect to each Servicer, as defined in the related
Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of the Master
Servicer or the Trustee, as applicable, related to any termination of a
Servicer, appointment of a successor Servicer or the transfer and assumption of
servicing by the Master Servicer or the Trustee, as applicable, with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
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by such Servicer and (ii) any costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation of
such servicing data as may be required by the Master Servicer or the Trustee, as
applicable, to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Master Servicer or the Trustee, as applicable, to
service the Mortgage Loans properly and effectively).
Shifting Interest Accrued Certificate Interest: For any Distribution Date
and each Class of Shifting Interest Certificates, one month's interest accrued
during the related Interest Accrual Period at the applicable Pass-Through Rate
on the applicable Class Certificate Balance.
Shifting Interest Certificates: Class 2-A-R, Class 2-A-1, Class 3-A-1,
Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 3-A-5, Class X-B-1, Class X-B-2,
Class X-B-3, Class X-B-4, Class X-B-5 and Class X-B-6 Certificates, each of
which (other than the Class 2-A-R Certificate) represents a regular interest in
the Shifting Interest Upper-Tier REMIC for purposes of the REMIC Provisions.
Shifting Interest Group: Any of Group 2 or Group 3.
Shifting Interest Loan Group: Any of Loan Group 2 and Loan Group 3.
Shifting Interest Lower-Tier Certificate Sub-Account: The sub-account of
the Certificate Account designated by the Securities Administrator pursuant to
Section 3.09(h).
Shifting Interest Lower-Tier Distribution Amount: As defined in Section
5.02(a) hereof.
Shifting Interest Lower-Tier REMIC: As defined in the Preliminary
Statement, the assets of which consist of the Shifting Interest Mortgage Loans,
such amounts as shall be deemed held in the Shifting Interest Lower-Tier
Certificate Sub-Account, the insurance policies, if any, relating to a Shifting
Interest Mortgage Loan and property which secured a Shifting Interest Mortgage
Loan and which has been acquired by foreclosure or deed in lieu of foreclosure.
Shifting Interest Middle-Tier Certificate Sub-Account: The sub-account of
the Certificate Account designated by the Securities Administrator pursuant to
Section 3.09(h).
Shifting Interest Middle-Tier Distribution Amount: As defined in Section
5.02(a) hereof.
Shifting Interest Middle-Tier REMIC: As defined in the Preliminary
Statement, the assets of which consist of the Uncertificated Shifting Interest
Lower-Tier Regular Interests and such amounts as shall be deemed held in the
Shifting Interest Middle-Tier Certificate Sub-Account.
Shifting Interest Mortgage Loans: The Group 2 Mortgage Loans and Group 3
Mortgage Loans.
Shifting Interest Regular Interest: The Uncertificated Shifting Interest
Lower-Tier Regular Interests, the Uncertificated Shifting Interest Middle-Tier
Regular Interests, and the Shifting Interest Upper-Tier Regular Interests.
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Shifting Interest Senior Principal Distribution Amount: As to any
Distribution Date and any Shifting Interest Loan Group, the sum of (i) the
Senior Percentage for such Shifting Interest 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 Shifting Interest 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 Shifting Interest Loan Group.
Shifting Interest Upper-Tier Certificate Sub-Account: The sub-account of
the Certificate Account designated by the Securities Administrator pursuant to
Section 3.09(h).
Shifting Interest Upper-Tier Interests: The Shifting Interest Upper-Tier
Regular Interests and the Class SI-UR interest, which represents the sole class
of residual interest in the Shifting Interest Upper-Tier REMIC.
Shifting Interest Upper-Tier Regular Interest: Any of the regular interests
in the Shifting Interest Upper-Tier REMIC listed in the Preliminary Statement,
the ownership of which is represented by the Shifting Interest Certificates.
Shifting Interest Upper-Tier REMIC: As defined in the Preliminary
Statement, the assets of which consist of the Uncertificated Shifting Interest
Middle-Tier Interests and such amounts as shall be deemed held in the Shifting
Interest Upper-Tier Certificate Sub-Account.
Similar Law: As defined in Section 6.02(e).
Six-Month LIBOR Index: A rate per annum that is defined to be the average
of 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 Rate Adjustment Date or (ii) up to the date 45 days
before the applicable Rate Adjustment Date.
Sponsor: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Stated Principal Balance: As to any Mortgage Loan and Due Date, (i) the
unpaid principal balance of such Mortgage Loan as of such date as specified in
the amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor, and
after giving effect to any Deficient Valuation plus (ii) in the case of the
Option ARM Mortgage Loans, any Deferred Interest added to the principal balance
of the Mortgage Loan pursuant to the terms of the related Mortgage Note on or
prior to the applicable Due Date.
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Stepdown Date: The earlier to occur of (i) the Distribution Date following
the Distribution Date on which the aggregate Class Certificate Balance of the
Senior Overcollateralized Certificates is reduced to zero and (ii) the later to
occur of (x) the Distribution Date in June 2010 and (y) the Distribution Date on
which the Senior Enhancement Percentage is greater than or equal to the Senior
Specified Enhancement Percentage.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect to
Mortgage Loans under the direction or authority of the Master Servicer, the
Securities Administrator or the Custodian.
Subordinate Balance Ratio: As of any date of determination and the Shifting
Interest Lower-Tier Interests, the ratio among the principal balances of the
Class 2-LS Interest and the Class 3-LS Interest equal to the ratio among the
Group Subordinate Amounts of Loan Group 2 and Loan Group 3.
Subordinate Percentage: As of any Distribution Date and Shifting Interest
Loan Group, 100% minus the Senior Percentage for such Shifting Interest Loan
Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and Shifting
Interest Loan Group, 100% minus the Senior Prepayment Percentage for such
Shifting Interest Loan Group and such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any Distribution
Date and Shifting Interest Loan Group, an amount equal to the sum of (a) the
Subordinate Percentage for such Shifting Interest Loan Group of the amounts
described in clauses (i)(a) through (d) of the definition of "Principal Amount"
for such Distribution Date and Shifting Interest Loan Group and (b) the
Subordinate Prepayment Percentage for such Shifting Interest 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
Shifting Interest Loan Group.
Substitute Mortgage Loan: A Mortgage Loan substituted for a Defective
Mortgage Loan which must, on the date of such substitution (i) have a Stated
Principal Balance, after deduction of the principal portion of the Monthly
Payment due in the month of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) have a Net Mortgage Interest Rate
not less than, and not more than 2% greater than that of the Defective Mortgage
Loan; (iii) be of the same type as the Defective Mortgage Loan; (iv) have a
Loan-to-Value Ratio not higher than that of the Defective Mortgage Loan; (v)
have a credit score not less than that of the Defective Mortgage Loan; (vi) have
a Gross Margin not less than that of the Defective Mortgage Loan; (vii) have a
credit grade not lower in quality than that of the Defective Mortgage Loan;
(viii) have a remaining term to maturity not greater than (and not more than one
(1) year less than) that of the Defective Mortgage Loan; (ix) have the same lien
priority as the Defective Mortgage Loan; (x) have the same Index as the
Defective Mortgage Loan; and (xi) comply with each Mortgage Loan representation
and warranty set forth in the Mortgage Loan Purchase Agreement, the North Fork
Assignment Agreement, if applicable, the related underlying sale agreement, if
applicable, the related Servicing Agreement, if applicable, and this Agreement.
More than one Substitute Mortgage Loan may be substituted for a Defective
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Mortgage Loan if such Substitute Mortgage Loans meet the foregoing attributes in
the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Supplemental Interest Trust: The trust created pursuant to Section 5.12 of
this Agreement and designated as the "Supplemental Interest Trust," the assets
of which consist of the Interest Rate Swap Agreement, the Interest Rate Corridor
Agreement, the Supplemental Interest Trust Trustee's rights under the Interest
Rate Agreements and the Swap Account. The Supplemental Interest Trust is not an
asset of any REMIC created hereunder.
Supplemental Interest Trust Trustee: Xxxxx Fargo Bank, N.A. or any
successor Supplemental Interest Trust Trustee appointed as herein provided.
Swap Account: The Eligible Account or Accounts created and maintained
pursuant to Section 5.12(a). The Swap Account shall not be an asset of any REMIC
formed under this Agreement.
Swap Notional Amount: With respect to each Distribution Date, the related
notional amount set forth on the schedule to the confirmation of the Interest
Rate Swap Agreement.
Swap Provider: The Bank of New York.
Swap Termination Payment: Any payment payable by the Supplemental Interest
Trust or the Swap Provider upon termination of the Interest Rate Swap Agreement
as a result of an Event of Default (as defined in the Interest Rate Swap
Agreement) or a Termination Event (as defined in the Interest Rate Swap
Agreement).
Targeted Overcollateralization Amount: As of any Distribution Date, 0.35%
of the aggregate Stated Principal Balance of the OC Mortgage Loans on the
Cut-off Date.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.07 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Total Covered Amount: As defined in the Mortgage Loan Purchase Agreement.
Treasury Regulations: The final and temporary regulations promulgated under
the Code by the U.S. Department of the Treasury.
Trigger Event: With respect to any Distribution Date, if (i) the
three-month rolling average of 60+ Day Delinquent Loans equals or exceeds 40.00%
of the Senior Enhancement Percentage or (ii) the aggregate amount of Realized
Losses incurred on the OC Mortgage Loans since the Cut-off Date through the last
day of the related Collection Period (reduced by the aggregate amount of
Recoveries related to the OC Mortgage Loans received since the Cut-off Date
through the last day of the related Collection Period) divided by the Cut-off
Date Pool Principal Balance of the OC Mortgage Loans exceeds the applicable
percentages set forth below with respect to such Distribution Date:
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Distribution Date Occurring In Percentage
------------------------------ ----------
June 2010 through May 2011 0.50%
June 2011 through May 2012 0.75%
June 2012 and thereafter 1.00%
Trust: The trust created by this Agreement, which shall be named the "Banc
of America Funding 2007-D Trust."
Trust Estate: The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with respect
to a portion of which multiple REMIC elections are to be made, such entire Trust
Estate consisting of: (i) such Mortgage Loans as from time to time are subject
to this Agreement, together with the Mortgage Files relating thereto, and
together with all collections thereon and proceeds thereof, (ii) any REO
Property, together with all collections thereon and proceeds thereof, (iii) the
Trustee's rights with respect to the Mortgage Loans under all insurance policies
required to be maintained pursuant to this Agreement and any proceeds thereof,
(iv) the right to receive amounts, if any, payable on behalf of any Mortgagor
from the Buy-Down Account relating to any Buy-Down Mortgage Loan, (v) the right
to receive any BPP Mortgage Loan Payment, (vi) the Depositor's rights under the
Servicing Agreements, the underlying sale agreements, the North Fork Assignment
Agreement and the Mortgage Loan Purchase Agreement (including any security
interest created thereby) and (vii) the Servicer Custodial Accounts, the Master
Servicer Custodial Account, the Rate Cap Carryover Reserve Account, the
Certificate Account and the Exchangeable Certificates Grantor Trust Account and
such assets that are deposited therein from time to time and any investments
thereof, together with any and all income, proceeds and payments with respect
thereto. The Buy-Down Account shall not be part of the Trust Estate.
Trustee: U.S. Bank National Association, and its successors-in-interest
and, if a successor trustee is appointed hereunder, such successor, as trustee.
Uncertificated Accrued Interest: With respect to each OC Group Regular
Interest (other than the Class CE Upper-Tier II Regular Interest) on each
Distribution Date, an amount equal to one month's interest at the related
Pass-Through Rate on the Uncertificated Balance of such OC Group Regular
Interest. With respect to the Class CE Upper-Tier II Regular Interest on each
Distribution Date, an amount equal to one month's interest at its Pass-Through
Rate on its Notional Amount. In the case of each OC Group Regular Interest,
Uncertificated Accrued Interest will be reduced by any Relief Act Reductions
allocated to such OC Group Regular Interest as provided in Section 5.03.
With respect to each Shifting Interest Regular Interest on each
Distribution Date, an amount equal to one month's interest at the related
Pass-Through Rate on the Uncertificated Balance of such Shifting Interest
Regular Interest. In the case of each Shifting Interest Regular Interest,
Uncertificated Accrued Interest will be reduced by any Non-Supported Interest
Shortfalls and any Relief Act Reductions, allocated to such Shifting Interest
Regular Interest as provided in Section 5.02.
Uncertificated Balance: The amount of any OC Group Regular Interest
outstanding as of any date of determination. As of the Closing Date, the
Uncertificated Balance of each OC Group Regular Interest shall equal the amount
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set forth in the Preliminary Statement hereto as its initial Uncertificated
Balance. On each Distribution Date, the Uncertificated Balance of each OC Group
Regular Interest shall be reduced by all distributions of principal made on such
OC Group Regular Interest on such Distribution Date pursuant to Section 5.03
and, if and to the extent necessary and appropriate, shall be further reduced on
such Distribution Date by Realized Losses as provided in Section 5.04. The
Uncertificated Balance of each OC Group Regular Interest shall never be less
than zero.
With respect to each Shifting Interest Regular Interest, the principal or
notional amount of such Shifting Interest Regular Interest outstanding as of any
date of determination. As of the Closing Date, the Uncertificated Balance of
each Shifting Interest Regular Interest shall equal the amount set forth in the
Preliminary Statement hereto as its initial Uncertificated Balance. On each
Distribution Date, the Uncertificated Balance of each Shifting Interest Regular
Interest shall be reduced by all distributions of principal made on such
Shifting Interest on such Distribution Date pursuant to Section 5.02 and, if and
to the extent necessary and appropriate, shall be further reduced on such
Distribution Date by Realized Losses as provided in Section 5.04. The
Uncertificated Balance of each Shifting Interest Regular Interest shall never be
less than zero.
Uncertificated Lower-Tier II Interests: The Uncertificated Lower-Tier II
Regular Interests and the Class II-LR interest, which represents the sole class
of residual interest in the Lower-Tier II REMIC.
Uncertificated Lower-Tier II Regular Interest: A regular interest in the
Lower-Tier II REMIC which is held as an asset of the Upper-Tier II REMIC and is
entitled to monthly distributions as provided in Section 5.03 hereof. Any of the
Class X Lower-Tier II REMIC Interests, the Class Y Lower-Tier II REMIC Interests
and the Class LRII-Support Interest are Uncertificated Lower-Tier II Regular
Interests.
Uncertificated Lower-Tier II REMIC Pass-Through Rate: For any distribution
date, the Net WAC for the OC Mortgage Loans.
Uncertificated Shifting Interest Middle-Tier Interests: The Uncertificated
Shifting Interest Middle-Tier Regular Interests and the Class SI-MR Interest,
which represents the sole class of residual interest in the Shifting Interest
Middle-Tier REMIC.
Uncertificated Shifting Interest Middle-Tier Regular Interest: A regular
interest in the Shifting Interest Middle-Tier REMIC which is held as an asset of
the Shifting Interest Upper-Tier REMIC and is entitled to monthly distributions
as provided in Section 5.02 hereof. Any of the Class MRI-2-A-R Interest, Class
MRI-2-A-1 Interest, Class MRI-3-A-1 Interest, Class MRI-X-B-1 Interest, Class
MRI-X-B-2 Interest, Class MRI-X-B-3 Interest, Class MRI-X-B-4 Interest, Class
MRI-X-B-5 Interest and Class MRI-X-B-6 Interest are Uncertificated Shifting
Interest Middle-Tier Regular Interests.
Uncertificated Shifting Interest Middle-Tier REMIC Pass-Through Rate: With
respect to the Class MRI-2-A-1 Interest and the Class MRI-2-A-R Interest, the
weighted average of the Uncertificated Shifting Interest Lower-Tier REMIC
Pass-Through Rates for the Class 2-L Interest and the Class 2-LS Interest. With
respect to the Class MRI-3-A-1 Interest, the weighted average of the
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Uncertificated Shifting Interest Lower-Tier REMIC Pass-Through Rates for the
Class 3-L Interest and the Class 3-LS Interest. With respect to the Class
MRI-X-B-1 Interest, the Class MRI-X-B-2 Interest, the Class MRI-X-B-3 Interest,
the Class MRI-X-B-4 Interest, the Class MRI-X-B-5 Interest and the Class
MRI-X-B-6 Interest, the weighted average (based on the Group Subordinate Amount
for each Shifting Interest Loan Group) of the Uncertificated Shifting Interest
Lower-Tier REMIC Pass-Through Rates for the Class 2-LS Interest and the Class
3-LS Interest.
Uncertificated Shifting Interest Lower-Tier Regular Interest: A regular
interest in the Shifting Interest Lower-Tier REMIC which is held as an asset of
the Shifting Interest Middle-Tier REMIC and is entitled to monthly distributions
as provided in Section 5.02 hereof. Any of the Class 2-L Interest, Class 2-LS
Interest, Class 3-L Interest and Class 3-LS Interest are Uncertificated Shifting
Interest Lower-Tier Regular Interests.
Uncertificated Shifting Interest Lower-Tier REMIC Pass-Through Rate: With
respect to the Class 2-L Interest and the Class 2-LS Interest, the Net WAC for
the Group 2 Mortgage Loans. With respect to the Class 3-L Interest and the Class
3-LS Interest, the Net WAC for the Group 3 Mortgage Loans.
Uncertificated Upper-Tier II REMIC Pass-Through Rate: As set forth in the
Preliminary Statement.
Undercollateralized Amount: As defined in Section 5.02(b)(vii).
Undercollateralized Group: As defined in Section 5.02(b)(vii).
Underwriter's Exemption: An exemption listed in footnote 1 of, and as
amended by, Prohibited Transaction Exemption 2007-05, 72 Fed. Reg. 13130 (March
20, 2007) and any successor exemption.
Unpaid Realized Loss Amount: For any Class of Offered Overcollateralized
Certificates and as to any Distribution Date, the excess of (x) the aggregate
Applied Realized Loss Amounts allocated to such Class for all prior Distribution
Dates over (y) the sum of (a) the cumulative amount of any Recoveries allocated
to such Class, (b) the aggregate Realized Loss Amortization Amounts with respect
to such Class for all prior Distribution Dates and (c) the cumulative amount of
Unpaid Realized Loss Amounts reimbursed to such Class for all prior Distribution
Dates from the Supplemental Interest Trust.
Upper-Tier II Interests: The Uncertificated Upper-Tier II Regular Interests
and the II-UR interest, which represents the sole class of residual interest in
the Upper-Tier II REMIC.
Upper-Tier II Certificate Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section 3.09(h).
Upper-Tier II Regular Interest: Any of the regular interests in the
Upper-Tier II REMIC listed in the Preliminary Statement, the ownership of which
is represented, in part, by the Overcollateralized Certificates.
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Upper-Tier II REMIC: As defined in the Preliminary Statement, the assets of
which consist of the Uncertificated Lower-Tier II Regular Interests and such
amounts as shall be deemed held in the Upper-Tier II Certificate Sub-Account.
Upper-Tier II REMIC Net Rate Cap: For federal income tax purposes, for any
Distribution Date with respect to the Upper-Tier II Regular Interests, the
ownership of which is represented, in part, by the Offered Overcollateralized
Certificates, a per annum rate (adjusted for the actual number of days elapsed
in the related Interest Accrual Period) equal to two (2) times the weighted
average of the Uncertificated Lower-Tier II REMIC Pass Through Rates for the
Class LRII-X Interest and the Class LRII-Y Interest, subjecting the
Uncertificated Lower-Tier II REMIC Pass-Through Rate on the Class LRII-Y
Interest to a cap equal to zero.
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) 98%
of all Voting Rights shall be allocated to the Holders of the Senior
Certificates (other than the Exchangeable Certificates and the Class 2-A-R
Certificate), the Class X-B Certificates and the Mezzanine Certificates in
proportion to the Certificate Balances of their respective Certificates, (b) 1%
of all Voting Rights shall be allocated to the Holder of the Class 2-A-R
Certificate and (c) 1% of all Voting Rights shall be allocated to the Holders of
the Class CE Certificates.
In the event that all or a portion of the Classes of Exchangeable REMIC
Certificates are exchanged for a proportionate portion of the Class of
Exchangeable Certificates, the Class of such Exchangeable Certificates will be
entitled to a proportionate share of the Voting Rights allocated to the Classes
of Exchangeable REMIC Certificates.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., in its capacity as Servicer under the
Xxxxx Fargo Servicing Agreement.
Xxxxx Fargo Servicing Agreement: Collectively, (i) that certain Second
Amended and Restated Master Seller's Warranties and Servicing Agreement, dated
as of May 1, 2006, by and between BANA, as purchaser, and Xxxxx Fargo, as seller
and servicer, (ii) that certain Second Amended and Restated Master Mortgage Loan
Purchase Agreement, dated as of May 1, 2006, by and between BANA, as purchaser,
and Xxxxx Fargo, as seller, (iii) that certain Assignment and Conveyance
Agreement (2006-W35), dated May 25, 2006, by and between BANA and Xxxxx Fargo
Bank, (iv) that certain Assignment and Conveyance Agreement (2006-W36), dated
May 25, 2006, by and between BANA and Xxxxx Fargo Bank, (v) that certain
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Assignment and Conveyance Agreement (2006-W41), dated May 25, 2006, by and
between BANA and Xxxxx Fargo Bank, (vi) that certain Assignment and Conveyance
Agreement (2006-W42), dated May 25, 2006, by and between BANA and Xxxxx Fargo
Bank, (vii) that certain Assignment and Conveyance Agreement (2006-W46), dated
June 28, 2006, by and between BANA and Xxxxx Fargo Bank, (viii) that certain
Assignment and Conveyance Agreement (2006-W47), dated June 28, 2006, by and
between BANA and Xxxxx Fargo Bank, (ix) that certain Assignment and Conveyance
Agreement (2007-W06 and 2007-W07), dated March 22, 2007, by and between BANA and
Xxxxx Fargo Bank, (x) that certain Assignment and Conveyance Agreement
(2007-W20), dated May 18, 2007, by and between BANA and Xxxxx Fargo Bank and
(xi) the Assignment, Assumption and Recognition Agreement, dated May 31, 2007,
by and among BANA, the Depositor, the Trustee, the Master Servicer and Xxxxx
Fargo.
WHFIT: A "Widely Held Fixed Investment Trust" as that term is defined in
Treasury Regulations section 1.671-5(b)(22) or successor provisions.
WHFIT Regulations: Treasury Regulations section 1.671-5, as amended.
WHMT: A "Widely Held Mortgage Trust" as that term is defined in Treasury
Regulations Section 1.671-5(b)(23) or successor provisions.
Section 1.02 Interest Calculations.
All calculations of interest with respect to the Shifting Interest
Certificates and the Class CE Certificates will be made on a 360-day year
consisting of twelve (12) 30-day months. All calculations of interest with
respect to the Offered Overcollateralized Certificates will be made on a 360-day
year consisting of twelve (12) months, each of which has the actual number of
days in such month. All dollar amounts calculated hereunder shall be rounded to
the nearest xxxxx with one-half of one xxxxx being rounded down.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee
on behalf of the Trust for the benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor in and to the
Mortgage Loans and the related Mortgage Files, including all interest and
principal received on or with respect to the Mortgage Loans (other than payments
of principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date) and the Depositor's rights under the BANA Servicing Agreement and
under the Mortgage Loan Purchase Agreement, including the rights of the
Depositor as assignee of the Sponsor with respect to the Sponsor's rights under
the Servicing Agreements (other than the BANA Servicing Agreement). The
foregoing sale, transfer, assignment and set over does not and is not intended
to result in a creation of an assumption by the Trustee of any obligation of the
Depositor or any other Person in connection with the Mortgage Loans or any
agreement or instrument relating thereto, except as specifically set forth
herein. In addition, 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, the Depositor's rights to receive any BPP Mortgage Loan
Payment. It is agreed and understood by the parties hereto that it is not
intended that any mortgage loan be included in the Trust that is a "High-Cost
Home Loan" as defined in any of (i) the New Jersey Home Ownership Act effective
November 27, 2003, (ii) the New Mexico Home Loan Protection Act effective
January 1, 2004, (iii) the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) the Indiana Home Loan Practices Act,
effective January 1, 2005.
(b) In connection with such transfer and assignment, the Depositor has
delivered or caused to be delivered to the Trustee, or a Custodian on behalf of
the Trustee, for the benefit of the Certificateholders, the following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of U.S. Bank National
Association, as trustee for holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2007-D, without recourse," with
all necessary intervening endorsements showing a complete chain of
endorsement from the originator to the Trustee (each such endorsement being
sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note)
and, in the case of any Mortgage Loan originated in the State of New York
documented by a NYCEMA, the NYCEMA, the new Mortgage Note, if applicable,
the consolidated Mortgage Note and the consolidated Mortgage;
(ii) except as provided below and other than with respect to the
Mortgage Loans purchased by the Sponsor from Xxxxx Fargo, the original
recorded Mortgage with evidence of a recording thereon, or if any such
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Mortgage has not been returned from the applicable recording office or has
been lost, or if such public recording office retains the original recorded
Mortgage, a copy of such Mortgage certified by the applicable Servicer
(which may be part of a blanket certification) as being a true and correct
copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "U.S. Bank National Association, as
trustee for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2007-D" (which may be included in a
blanket assignment or assignments), together with, except as provided below
and other than with respect to the Mortgage Loans purchased by the Sponsor
from Xxxxx Fargo, originals of all interim recorded assignments of such
mortgage or a copy of such interim assignment certified by the applicable
Servicer (which may be part of a blanket certification) as being a true and
complete copy of the original recorded intervening assignments of Mortgage
(each such assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates);
provided that, if the related Mortgage has not been returned from the
applicable public recording office, such Assignment of Mortgage may exclude
the information to be provided by the recording office; and provided,
further, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
Assignment of Mortgage in favor of the Trustee will be ---- required to be
prepared or delivered and instead, the Master Servicer shall enforce the
obligations of the applicable Servicer to take all actions as are necessary
to cause the Trust to be shown as the owner of the related Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(v) other than with respect to the Mortgage Loans purchased by the
Sponsor from Xxxxx Fargo, any of (A) the original or duplicate original
mortgagee title insurance policy and all riders thereto, (B) a title search
showing no lien (other than standard exceptions) on the Mortgaged Property
senior to the lien of the Mortgage or (C) an opinion of counsel of the type
customarily rendered in the applicable jurisdiction in lieu of a title
insurance policy;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of recording
indicated thereon, or, if the lease is in the process of being recorded, a
photocopy of the lease, certified by an officer of the respective prior
owner of such Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to be a true
and correct copy of the lease transmitted for recordation;
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(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Cooperative Stock (other than
with respect to any Mortgage Loan secured by Cooperative Stock purchased by
the Sponsor from Xxxxx Fargo), the originals of the following documents or
instruments:
(A) The Cooperative Stock Certificate;
(B) The stock power executed in blank;
(C) The executed Cooperative Lease;
(D) The executed Recognition Agreement;
(E) The executed assignment of Recognition Agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete and
unbroken line from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for recordation).
provided, however, that on the Closing Date, with respect to item (iii), if an
Assignment of Mortgage is required to be recorded as set forth below, the
Depositor has delivered to the Trustee or a Custodian on behalf of the Trustee,
as the case may be, a copy of such Assignment of Mortgage in blank rather than
in the name of the Trustee and has caused the applicable Servicer to retain the
completed Assignment of Mortgage for recording as described below, unless such
Mortgage has been recorded in the name of MERS or its designee. In addition, if
the Depositor is unable to deliver or cause the delivery of any original
Mortgage Note due to the loss of such original Mortgage Note, the Depositor may
deliver a copy of such Mortgage Note, together with a lost note affidavit, and
shall thereby be deemed to have satisfied the document delivery requirements of
this Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot deliver (A)
the Mortgage, (B) all interim recorded assignments, (C) all assumption,
modification, consolidation or extension agreements, if any, or (D) the lender's
title policy, if any, (together with all riders thereto), if applicable,
satisfying the requirements of clause (ii), (iii), (iv) or (v) above,
respectively, concurrently with the execution and delivery hereof because such
document or documents have not been returned from the applicable public
recording office in the case of clause (ii), (iii) or (iv) above, or because the
title policy, if applicable, has not been delivered to any of the related
Servicer, the Sponsor or the Depositor, as applicable, by the applicable title
insurer, if any, in the case of clause (v) above, the Depositor shall promptly
deliver or cause to be delivered to the Trustee or a Custodian on behalf of the
Trustee, as the case may be, in the case of clause (ii), (iii) or (iv) above,
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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 (1) 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 an Officer's Certificate to such effect to the Trustee. The Depositor
shall forward or cause to be forwarded to the Trustee or a Custodian, on behalf
of the Trustee, as the case may be, (1) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and (2)
any other documents required to be delivered by the Depositor, or the applicable
Servicer to the Trustee or a Custodian on the Trustee's behalf, as the case may
be. In the event that the original Mortgage is not delivered and in connection
with the payment in full of the related Mortgage Loan the public recording
office requires the presentation of a "lost instruments affidavit and indemnity"
or any equivalent document, because only a copy of the Mortgage can be delivered
with the instrument of satisfaction or reconveyance, the Depositor shall
prepare, execute and deliver or cause to be prepared, executed and delivered, on
behalf of the Trust, such a document to the public recording office.
Upon discovery by the Depositor or notice from Xxxxx Fargo, the Master
Servicer, the Securities Administrator or Trustee that a Document Transfer Event
has occurred, the Depositor shall, with respect to Mortgage Loans purchased by
the Sponsor from Xxxxx Fargo, deliver or cause to be delivered to the Trustee or
a Custodian, on behalf of the Trustee, within 60 days copies (which may be in
electronic form mutually agreed upon by the Depositor and the Trustee or such
Custodian) of the following additional documents or instruments to the Mortgage
File with respect to each such Mortgage Loan; provided, however, that originals
of such documents or instruments shall be delivered to the Trustee or a
Custodian on behalf of the Trustee, as applicable, if originals are required
under the law in which the related Mortgaged Property is located in order to
exercise all remedies available to the Trust under applicable law following
default by the related Mortgagor:
(1) other than if the related Mortgage has been recorded in the name
of MERS or its designee, originals of all interim recorded assignments of such
mortgage or a copy of such interim assignments certified by Xxxxx Fargo (which
may be part of a blanket certification) as being a true and complete copy of the
original recorded intervening assignments of Mortgage (each such assignment,
when duly and validly completed, to be in recordable form and sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates);
(2) the original or a certified copy of the lender's title insurance
policy;
(3) the original Mortgage with evidence of recording thereon, and the
original recorded power of attorney, if the Mortgage was executed pursuant to a
power of attorney, with evidence of recording thereon or, if such Mortgage or
power of attorney has been submitted for recording but has not been returned
from the applicable public recording office, has been lost or is not otherwise
available, a copy of such Mortgage or power of attorney, as the case may be,
certified to be a true and complete copy of the original submitted for
recording; and
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(4) for each Mortgage Loan secured by Cooperative Stock, the originals
of the following documents or instruments:
(A) The Cooperative Stock Certificate;
(B) The stock power executed in blank;
(C) The executed Cooperative Lease;
(D) The executed Recognition Agreement;
(E) The executed assignment of Recognition Agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete and
unbroken line from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for recordation).
With respect to each Mortgage Loan, as promptly as practicable subsequent
to such transfer and assignment, the Master Servicer shall (except for any
Mortgage which has been recorded in the name of MERS or its designee) enforce
the obligations of the related Servicer pursuant to the related Servicing
Agreement to (I) cause each Assignment of Mortgage to be in proper form for
recording in the appropriate public office for real property records within the
time period required in the applicable Servicing Agreement and (II) at the
Depositor's expense, cause to be delivered for recording in the appropriate
public office for real property records the Assignments of the Mortgages to the
Trustee, except that, with respect to any Assignment of a Mortgage as to which
the related Servicer has not received the information required to prepare such
assignment in recordable form, such Servicer's obligation to do so and to
deliver the same for such recording shall be as soon as practicable after
receipt of such information and in accordance with the applicable Servicing
Agreement.
No recording of an Assignment of Mortgage will be required in a state if
either (i) the Depositor furnishes to the Trustee and the Securities
Administrator an unqualified Opinion of Counsel reasonably acceptable to the
Trustee and the Securities Administrator to the effect that recordation of such
assignment is not necessary under applicable state law to preserve the Trustee's
interest in the related Mortgage Loan against the claim of any subsequent
transferee of such Mortgage Loan or any successor to, or creditor of, the
Depositor or the originator of such Mortgage Loan or (ii) the recordation of an
Assignment of Mortgage in such state is not required by either Rating Agency in
order to obtain the initial ratings on the Certificates on the Closing Date.
Exhibit J attached hereto sets forth the list of all states where recordation is
required by any Rating Agency to obtain the initial ratings of the Certificates.
The Securities Administrator and the Trustee may rely and shall be protected in
relying upon the information contained in such Exhibit J.
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In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee, or a Custodian on the Trustee's behalf, will cause the applicable
Servicer to remit to the Master Servicer for deposit in the Master Servicer
Custodial Account the portion of such payment that is required to be deposited
in the such account pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares
that it, or a Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it or a Custodian as its
agent, as the case may be, constituting the Mortgage Files, and that it will
hold such other assets as are included in the Trust Estate delivered to it, in
trust for the exclusive use and benefit of all present and future
Certificateholders. Upon execution and delivery of this document, the Trustee
shall deliver or cause a Custodian to deliver to the Depositor, the Master
Servicer and the NIMS Insurer a certification in the form attached hereto as
Exhibit K (the "Initial Certification") to the effect that, except as may be
specified in a list of exceptions attached thereto, such Person has received the
original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this Agreement, the
Trustee shall review, or cause a Custodian, on behalf of the Trustee, to review,
the Mortgage Files in such Person's possession, and shall deliver to the
Depositor, the Master Servicer and the NIMS Insurer a certification in the form
attached hereto as Exhibit L (the "Final Certification") to the effect that, as
to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be
specified in a list of exceptions attached to such Final Certification, such
Mortgage File contains all of the items required to be delivered pursuant to
Section 2.01(b). In performing any such review, the Trustee or a Custodian, as
the case may be, may conclusively rely on the purported genuineness of any such
document and any signature thereon.
If, in the course of such review, the Trustee or a Custodian finds any
document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01 or is omitted from such Mortgage File or if the
Depositor, the Master Servicer, the Trustee, a Custodian, the NIMS Insurer or
the Securities Administrator discovers a breach by a Servicer, North Fork Bank,
the Sponsor or the Depositor of any representation, warranty or covenant under
the Servicing Agreements, the North Fork Assignment Agreements, the Mortgage
Loan Purchase Agreement or this Agreement, as the case may be, in respect of any
Mortgage Loan and such breach materially adversely affects the interest of the
Certificateholders in the related Mortgage Loan (provided that any such breach
that causes the Mortgage Loan not to be a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code shall be deemed to materially and
adversely affect the interests of the Certificateholders), then such party shall
promptly so notify the Master Servicer, the Sponsor, such Servicer, North Fork
Bank (if applicable), the Securities Administrator, the Trustee, the NIMS
Insurer and the Depositor of such failure to meet the requirements of Section
2.01 or of such breach and request that the applicable Servicer, North Fork
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Bank, the Sponsor or the Depositor, as applicable, deliver such missing
documentation or cure such defect or breach within 90 days of its discovery or
its receipt of notice of any such failure to meet the requirements of Section
2.01 or of such breach. If the Trustee receives written notice that the
Depositor, the Sponsor or the applicable Servicer or North Fork Bank, as the
case may be, has not delivered such missing document or cured such defect or
breach in all material respects during such period, the Trustee, on behalf of
the Trust, shall enforce the applicable Servicer's, North Fork Bank's, the
Sponsor's or the Depositor's obligation, as the case may be, under the
applicable Servicing Agreement, the North Fork Bank Assignment Agreement, the
Mortgage Loan Purchase Agreement or this Agreement, as the case may be, and
cause the applicable Servicer, North Fork Bank, the Sponsor or the Depositor, as
the case may be, to either (a) other than in the case of North Fork Bank,
substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth below or (b) purchase such Mortgage Loan from the Trust at the
Purchase Price for such Mortgage Loan; provided, however, that in no event shall
such a substitution occur more than two years from the Closing Date; provided,
further, that such substitution or repurchase must occur within 90 days of when
such defect was discovered if such defect will cause the Mortgage Loan not to be
a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code.
Notwithstanding any contrary provision of this Agreement, no substitution
pursuant to this Section 2.02 shall be made more than 90 days after the Closing
Date unless the Depositor delivers to the Securities Administrator an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of any of the
Trustee, the Securities Administrator or the Trust Estate, addressed to the
Trustee and the Securities Administrator, to the effect that such substitution
will not (i) result in the imposition of the tax on "prohibited transactions" on
any REMIC created hereunder or contributions after the Start-up Day, as defined
in Sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
It is understood that the scope of the Trustee's review (or a Custodian's
review on its behalf) of the Mortgage Files is limited solely to confirming that
the documents listed in Section 2.01 have been received and further confirming
that any and all documents delivered pursuant to Section 2.01 appear on their
face to have been executed and relate to the applicable Mortgage Loans
identified in the related Mortgage Loan Schedule based solely upon the review of
items (i) and (xi) in the definition of Mortgage Loan Schedule. Neither the
Trustee nor any 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.
If the Trustee receives written notice from the Depositor, the Master
Servicer or the Securities Administrator of a breach of any representation or
warranty of a related Servicer, North Fork Bank or the Sponsor, the Trustee, on
behalf of the Trust, shall enforce the rights of the Trust under the applicable
Servicing Agreement, the North Fork Bank Assignment Agreement, the Mortgage Loan
Purchase Agreement and this Agreement for the benefit of the Certificateholders.
If the Trustee receives written notice from the Depositor, the Master Servicer
or the Securities Administrator of a breach of the representations or warranties
with respect to a Mortgage Loan set forth in a Servicing Agreement, the Trustee,
on behalf of the Trust, shall enforce the right of the Trust to be indemnified
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for such breach of representation or warranty. In addition, if the Trustee
receives written notice from the Depositor, the Master Servicer or the
Securities Administrator of a breach of a representation with respect to a
Mortgage Loan set forth in clauses (k), (o) or (p) of paragraph 3 or clauses
(f), (nn) or (oo) of paragraph 4 of the Mortgage Loan Purchase Agreement that
occurs as a result of a violation of an applicable predatory or abusive lending
law, the Trustee, on behalf of the Trust, shall enforce the right of the Trust
to reimbursement by the Sponsor for all costs or damages incurred by the Trust
as a result of the violation of such law (such amount, the "Reimbursement
Amount"), but in the case of a breach of a representation set forth in clauses
(k) or (o) of paragraph 3 of the Mortgage Loan Purchase Agreement, only to the
extent the applicable Servicer does not so reimburse the Trust. It is understood
and agreed that, except for any indemnification provided in the Servicing
Agreements and the payment of any Reimbursement Amount, the obligation of a
Servicer, North Fork Bank, the Sponsor or the Depositor to cure or to repurchase
(or, other than in the case of North Fork Bank, to substitute for) any Mortgage
Loan as to which a document is missing, a material defect in a constituent
document exists or as to which such a breach has occurred and is continuing
shall constitute the sole remedy against a Servicer, North Fork Bank, the
Sponsor or the Depositor in respect of such omission, defect or breach available
to the Trustee on behalf of the Trust and the Certificateholders.
With respect to the representations and warranties relating to the Mortgage
Loans set forth in the Mortgage Loan Purchase Agreement that are made to the
best of the Sponsor's knowledge or as to which the Sponsor had no knowledge, if
it is discovered by the Depositor, the Master Servicer, the NIMS Insurer or the
Trustee that the substance of such representation or warranty is inaccurate and
such inaccuracy materially and adversely affects the interest of the
Certificateholders in the related Mortgage Loan then, notwithstanding the
Sponsor's lack of knowledge with respect to the substance of such representation
or warranty being inaccurate at the time the representation or warranty was
made, such inaccuracy shall be deemed a breach of the applicable representation
or warranty.
It is understood and agreed that the representations and warranties
relating to the Mortgage Loans set forth in the Mortgage Loan Purchase Agreement
shall survive delivery of the Mortgage Files to the Trustee or a Custodian on
the Trustee's behalf and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or assignment. It is
understood and agreed that the obligations of the Sponsor set forth in this
Section 2.02 to cure, substitute for or repurchase a Mortgage Loan pursuant to
the Mortgage Loan Purchase Agreement constitute the sole remedies available to
the Certificateholders and to the Trustee on their behalf respecting a breach of
the representations and warranties contained in the Mortgage Loan Purchase
Agreement.
The representations and warranties of each Servicer or North Fork Bank with
respect to the applicable Mortgage Loans in the related Servicing Agreement or
related North Fork Assignment Agreement, which have been assigned to the Trustee
hereunder, were made as of the date specified in such Servicing Agreement or
North Fork Bank Assignment Agreement, as the case may be. To the extent that any
fact, condition or event with respect to a Mortgage Loan constitutes a breach of
both (i) a representation or warranty of a Servicer under the related Servicing
Agreement or of North Fork Bank under the related North Fork Bank Assignment
Agreement and (ii) a representation or warranty of the Sponsor under the
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Mortgage Loan Purchase Agreement, the only right or remedy of the Trustee or of
any Certificateholder shall be the Trustee's right, on behalf of the Trust, to
enforce the obligations of the applicable Servicer or North Fork Bank under any
applicable representation or warranty made by it. It is hereby acknowledged that
the Sponsor shall have no obligation or liability with respect to any breach of
a representation or warranty made by it with respect to the Mortgage Loans if
the fact, condition or event constituting such breach also constitutes a breach
of a representation or warranty made by the applicable Servicer in the
applicable Servicing Agreement or North Fork Bank in the North Fork Bank
Assignment Agreement, without regard to whether such Servicer or North Fork Bank
fulfills its contractual obligations in respect of such representation or
warranty. It is hereby further acknowledged that the Depositor shall have no
obligation or liability with respect to any breach of any representation or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.04) under any circumstances.
With respect to each Substitute Mortgage Loan the applicable Servicer, the
Sponsor or the Depositor, as the case may be, shall deliver to the Trustee (or a
Custodian on behalf of the Trustee), for the benefit of the Certificateholders,
the documents and agreements required by Section 2.01, with the Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. No substitution
is permitted to be made in any calendar month after the Determination Date for
such month. Monthly Payments due with respect to any such Substitute Mortgage
Loan in the month of substitution shall not be part of the Trust Estate. For the
month of substitution, distributions to Certificateholders will include the
Monthly Payment due for such month on any Defective Mortgage Loan for which the
Depositor, the Sponsor or a Servicer has substituted a Substitute Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the benefit
of the Certificateholders to reflect the removal of each Mortgage Loan that has
become a Defective Mortgage Loan and the substitution of the Substitute Mortgage
Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan
Schedule to the Securities Administrator, the Trustee, the NIMS Insurer and any
Custodian. Upon such substitution of a Mortgage Loan by the Depositor, the
Sponsor or a Servicer, each Substitute Mortgage Loan shall be subject to the
terms of this Agreement in all respects, and the Depositor or the Sponsor, as
the case may be, shall be deemed to have made to the Trustee with respect to
such Substitute Mortgage Loan, as of the date of substitution, the
representations and warranties made pursuant to paragraph 4 of the Mortgage Loan
Purchase Agreement and the applicable Servicer shall be deemed to have made to
the Trustee with respect to such Substitute Mortgage Loan, as of the date of
substitution, the mortgage loan representations and warranties made pursuant to
the applicable Servicing Agreement. Upon any such substitution and the deposit
to the Master Servicer Custodial Account of any required Substitution Adjustment
Amount (as described in the next paragraph) and receipt by the Trustee of a
Request for Release, the Trustee shall release, or shall direct a Custodian to
release, the Mortgage File relating to such Defective Mortgage Loan to
applicable Person and shall execute and deliver at such Person's direction such
instruments of transfer or assignment prepared by such Person, without recourse,
as shall be necessary to vest title in such Person or its designee to the
Trustee's interest in any Defective Mortgage Loan substituted for pursuant to
this Section 2.02.
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For any month in which the Depositor, the Sponsor or a Servicer substitutes
one or more Substitute Mortgage Loans for one or more Defective Mortgage Loans,
the amount (if any) by which the aggregate principal balance of all such
Substitute Mortgage Loans substituted by such Person in a Loan Group as of the
date of substitution is less than the aggregate Stated Principal Balance of all
such Defective Mortgage Loans in a Loan Group substituted by such Person (after
application of the principal portion of the Monthly Payments due in the month of
substitution) (the "Substitution Adjustment Amount" for such Loan Group) plus an
amount equal to the aggregate of any unreimbursed Advances with respect to such
Defective Mortgage Loans shall be remitted by such Person to the Master Servicer
for deposit to the Master Servicer Custodial Account on or before the 18th day
of the month succeeding the calendar month during which the related Mortgage
Loan is required to be purchased or replaced hereunder.
The Trustee shall retain or shall cause a Custodian to retain, as
applicable, possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions set forth herein. The Master Servicer shall
cause to be promptly delivered to the Trustee or a Custodian on behalf of the
Trustee, as the case may be, upon the execution or, in the case of documents
requiring recording, receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the Master Servicer's
possession from time to time.
Neither the Trustee nor any Custodian shall be under any duty or obligation
(i) to inspect, review or examine any such documents, instruments, certificates
or other papers to determine that they are genuine, enforceable, or appropriate
for the represented purpose or that they are other than what they purport to be
on their face or (ii) to determine whether any Mortgage File should include any
of the documents specified in Section 2.01(b)(iv), (vi), (vii), (viii) and (ix).
In connection with making the certifications required hereunder, to the extent a
title search or opinion of counsel has been provided in lieu of a title policy
for any Mortgage Loan, the Trustee or a Custodian on its behalf, as applicable,
shall only be responsible for confirming that a title search or opinion of
counsel has been provided for such Mortgage Loan.
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer.
The Master Servicer hereby makes the following representations and
warranties to the Depositor, the Securities Administrator, the NIMS Insurer and
the Trustee, as of the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States of America and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in each of the states where a Mortgaged Property securing a
Mortgage Loan is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Master Servicer. The Master Servicer has power and authority to execute and
deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Master Servicer and the consummation of the transactions contemplated
hereby have been duly and validly authorized. This Agreement, assuming due
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authorization, execution and delivery by the other parties hereto,
evidences the valid, binding and enforceable obligation of the Master
Servicer, subject to applicable law except as enforceability may be limited
by (A) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the
rights of creditors and (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by the Master Servicer to make this
Agreement valid and binding upon the Master Servicer in accordance with its
terms.
(ii) No consent, approval, authorization or order is required for the
transactions contemplated by this Agreement from any court, governmental
agency or body, or federal or state regulatory authority having
jurisdiction over the Master Servicer is required or, if required, such
consent, approval, authorization or order has been or will, prior to the
Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer and
will not result in the breach of any term or provision of the charter or
by-laws of the Master Servicer or result in the breach of any term or
provision of, or conflict with or constitute a default under or result in
the acceleration of any obligation under, any agreement, indenture or loan
or credit agreement or other instrument to which the Master Servicer or its
property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Master Servicer or its
property is subject.
(iv) There is no action, suit, proceeding or investigation pending or,
to the best knowledge of the Master Servicer, threatened against the Master
Servicer which, either individually or in the aggregate, would result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Master Servicer, or in any material
impairment of the right or ability of the Master Servicer to carry on its
business substantially as now conducted or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken
or to be taken in connection with the obligations of the Master Servicer
contemplated herein, or which would materially impair the ability of the
Master Servicer to perform under the terms of this Agreement.
The representations and warranties made pursuant to this Section 2.03 shall
survive delivery of the respective Mortgage Files to the Trustee or a Custodian
on the Trustee's behalf and shall inure to 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 and the NIMS
Insurer 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:
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(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 any of its creditors.
(iv) Each Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code and Treasury Regulation section 1.860G-2.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or a Custodian on the Trustee's behalf and shall inure to
the benefit of the Certificateholders.
Upon discovery by any of the Depositor, the Master Servicer, the Securities
Administrator or the Trustee that any of the representations and warranties set
forth in this Section 2.04 is not accurate (referred to herein as a "breach")
and that such breach materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties; provided that a
breach of the representation that each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code shall be deemed to
materially and adversely affect the interests of the Certificateholders. Within
90 days of its discovery or its receipt of notice of any such breach, the
Depositor shall cure such breach in all material respects or shall either (i)
repurchase the Mortgage Loan or any property acquired in respect thereof from
the Trustee at a price equal to the Purchase Price or (ii) if within two years
of the Closing Date, substitute for such Mortgage Loan in the manner described
in Section 2.02; provided that if the breach relates to the representation that
each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of
the Code, any such repurchase or substitution must occur within 90 days from the
date the breach was discovered. The Purchase Price of any repurchase described
in this paragraph and the Substitution Adjustment Amount, if any, shall be
remitted to the Master Servicer for deposit to the Master Servicer Custodial
Account. It is understood and agreed that, except with respect to the second
preceding sentence, the obligation of the Depositor to repurchase or substitute
for any Mortgage Loan or Mortgaged Property as to which such a breach has
occurred and is continuing shall constitute the sole remedy respecting such
breach available to Certificateholders, or to the Trust and the Trustee on
behalf of Certificateholders, and such obligation shall survive until
termination of the Trust hereunder.
Section 2.05 Designation of Interests in the REMICs.
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The Depositor hereby designates the Shifting Interest Upper-Tier Regular
Interests as "regular interests" and the Class SI-UR Interest as the single
class of "residual interest" in the Shifting Interest Upper-Tier REMIC for the
purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively. The Depositor
hereby further designates (i) the Uncertificated Shifting Interest Middle-Tier
Regular Interests as classes of "regular interests" and the Class SI-MR Interest
as the single class of "residual interest" in the Shifting Interest Middle-Tier
REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively,
and (ii) the Uncertificated Shifting Interest Lower-Tier Regular Interests as
classes of "regular interests" and the Class SI-LR Interest as the single class
of "residual interest" in the Shifting Interest Lower-Tier REMIC for the
purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively.
The Depositor hereby designates the Upper-Tier II Regular Interests as
"regular interests" and the Class II-UR Interest as the single class of
"residual interest" in the Upper-Tier II REMIC for purposes of Code Section
860G(a)(1) and 860G(a)(2), respectively. The Depositor hereby further designates
the Uncertificated Lower-Tier II Regular Interests as classes of "regular
interests" and the Class II-LR Interest as the single class of "residual
interest" in the Lower-Tier II REMIC for purposes of Code Section 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
Shifting Interest Upper-Tier REMIC, the Shifting Interest Middle-Tier REMIC, the
Shifting Interest Lower-Tier REMIC, the Upper-Tier II REMIC and the Lower-Tier
II 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 Shifting Interest Upper-Tier REMIC, the Shifting Interest
Middle-Tier REMIC and the Shifting Interest Lower-Tier REMIC is the Distribution
Date immediately following the maturity date for the Shifting Interest Mortgage
Loan with the latest 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 II REMIC and the Lower-Tier II REMIC is the
Distribution Date immediately following the maturity date for the OC Mortgage
Loan with the latest maturity date.
Section 2.08 Execution and Delivery of Certificates.
(a) The Securities Administrator (i) acknowledges the issuance of and
hereby declares that it holds the Uncertificated Shifting Interest Lower-Tier
Regular Interests on behalf of the Shifting Interest Middle-Tier REMIC and the
Shifting Interest Certificateholders and that it holds the Uncertificated
Shifting Interest Middle-Tier Regular Interests on behalf of the Shifting
Interest Upper-Tier REMIC and the Shifting Interest Certificateholders, (ii)
acknowledges the issuance of and hereby declares that it holds the
Uncertificated Lower-Tier II Regular Interests on behalf of the Upper-Tier II
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REMIC and the Overcollateralized Certificateholders and (iii) has executed and
delivered to or upon the order of the Depositor, in exchange for the Mortgage
Loans, Uncertificated Shifting Interest Lower-Tier Interests, Uncertificated
Shifting Interest Middle-Tier Interests and Uncertificated Lower-Tier II
Interests, together with all other assets included in the definition of "Trust
Estate," receipt of which is hereby acknowledged, Certificates (other than the
Exchangeable Certificates) in authorized denominations which, together with the
Uncertificated Shifting Interest Lower-Tier Interests, the Uncertificated
Shifting Interest Middle-Tier Interests and the Uncertificated Lower-Tier II
Interests, evidence ownership of the entire Trust Estate. The Securities
Administrator acknowledges the obligation of the Class CE Certificates to pay
Rate Cap Carryover Amounts and declares that it holds the same on behalf of the
Class 1-A-1, Class 1-A-2, Class 1-A-3, Class 1-A-4, Class 1-A-5, Class X-0,
Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, respectively, which shall be treated as beneficially owning the
right to receive the Rate Cap Carryover Amounts. The Securities Administrator
also acknowledges the obligation of the Offered Overcollateralized Certificates
and the Class CE Certificates to pay the Class IO Distribution Amount.
(b) In addition, the Securities Administrator shall, from time to time as
requested by beneficial owners of Exchangeable REMIC Certificates or
Exchangeable Certificates pursuant to Section 5.14, exchange Exchangeable REMIC
Certificates for Exchangeable Certificates and vice versa.
Section 2.09 Establishment of the Trust.
The Depositor does hereby establish, pursuant to the further provisions of
this Agreement and the laws of the State of New York, an express trust to be
known, for convenience, as "Banc of America Funding 2007-D Trust" and does
hereby appoint U.S. Bank National Association as Trustee in accordance with the
provisions of this Agreement.
Section 2.10 Purpose and Powers of the Trust.
The purpose of the common law trust, as created hereunder, is to engage in
the following activities:
(a) to acquire and hold the Mortgage Loans and the other assets of the
Trust Estate and the proceeds therefrom;
(b) to issue the Certificates sold to the Depositor in exchange for the
Mortgage Loans;
(c) to make payments on the Certificates;
(d) to engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and
(e) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust
Estate and the making of distributions to the Certificateholders.
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The trust is hereby authorized to engage in the foregoing activities.
Neither the Trustee nor the Securities Administrator shall cause the trust to
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the terms of this Agreement (or those ancillary
thereto) while any Certificate is outstanding, and this Section 2.10 may not be
amended, without the consent of the Certificateholders evidencing 51% or more of
the aggregate voting rights of the Certificates.
Section 2.11 Rights of the NIMS Insurer.
Each of the rights of the NIMS Insurer set forth in this Agreement shall
exist so long as (i) the NIMS Insurer has undertaken to guarantee certain
payments of notes issued pursuant to the Indenture and (ii) any series of notes
issued pursuant to the Indenture remains outstanding or the NIMS Insurer is owed
amounts in respect of its guarantee of payments on such notes; provided,
however, the NIMS Insurer shall not have any rights hereunder (except pursuant
to Section 11.01 in the case of clause (ii) below) during the period of time, if
any, that (a) the NIMS Insurer has not undertaken to guarantee certain payments
of notes issued pursuant to the Indenture or (ii) any default has occurred and
is continuing under the insurance policy issued by the NIMS Insurer with respect
to such notes.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
supervise, monitor and oversee the obligations of the Servicers to service and
administer their respective Mortgage Loans in accordance with the terms of the
applicable Servicing Agreement and shall have full power and authority to do any
and all things which it may deem necessary or desirable in connection with such
master servicing and administration. In performing its obligations hereunder,
the Master Servicer shall act in a manner consistent with this Agreement,
subject to the prior sentence, and with Customary Servicing Procedures.
Furthermore, the Master Servicer shall oversee and consult with each Servicer as
necessary from time-to-time to carry out the Master Servicer's obligations
hereunder, shall receive, review and evaluate all reports, information and other
data provided to the Master Servicer by each Servicer and shall cause each
Servicer to perform and observe the covenants, obligations and conditions to be
performed or observed by such Servicer under the applicable Servicing Agreement.
The Master Servicer shall independently and separately monitor each Servicer's
servicing activities with respect to each related Mortgage Loan, reconcile the
results of such monitoring with such information provided in the previous
sentence on a monthly basis and coordinate corrective adjustments to the
Servicers' and the Master Servicer's records, and based on such reconciled and
corrected information, prepare the Master Servicer's Certificate and any other
information and statements required hereunder. The Master Servicer shall
reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the Servicers to the Master Servicer Custodial Account pursuant
to the applicable Servicing Agreements.
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Continuously from the date hereof until the termination of the Trust, the
Master Servicer shall enforce the obligations of the Servicers to collect all
payments due under the terms and provisions of the Mortgage Loans when the same
shall become due and payable to the extent such procedures shall be consistent
with the applicable Servicing Agreement.
The relationship of the Master Servicer (and of any successor to the Master
Servicer as master servicer under this Agreement) to the Trustee and the
Securities Administrator under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
Section 3.02 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to the Trustee,
the Securities Administrator and the Depositor the compliance by each Servicer
with its duties under the related Servicing Agreement. In the review of each
Servicer's activities, the Master Servicer may rely upon an officer's
certificate of the Servicer with regard to such Servicer's compliance with the
terms of its Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that a Servicer should be terminated in accordance with its
Servicing Agreement, or that a notice should be sent pursuant to such Servicing
Agreement with respect to the occurrence of an event that, unless cured, would
constitute grounds for such termination, the Master Servicer shall notify the
Depositor, the Securities Administrator, the NIMS Insurer and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trust and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as successor Servicer of the related Mortgage Loans
under the applicable Servicing Agreement (provided that in the case of the
termination of Xxxxx Fargo as a Servicer under the Xxxxx Fargo Servicing
Agreement, the Trustee shall appoint a successor Servicer of the related
Mortgage Loans under the Xxxxx Fargo Servicing Agreement) or cause the Trustee
to enter into a new Servicing Agreement with a successor Servicer selected by
the Master Servicer (except, in the case of the Xxxxx Fargo Servicing Agreement,
the Trustee shall select the successor Servicer); provided, however, it is
understood and acknowledged by the parties hereto that there will be a period of
transition (not to exceed 90 days) before the actual servicing functions can be
fully transferred to such successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer, in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement at
its own expense, 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 Loans or
(ii) from a specific recovery of costs, expenses or attorneys fees against the
party whom such enforcement is directed, provided that the Master Servicer and
the Trustee, as applicable, shall not be required to prosecute or defend any
legal action except to the extent that the Master Servicer or the Trustee, as
applicable, shall have received reasonable indemnity for its costs and expenses
in pursuing such action.
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(c) To the extent that the costs and expenses of the Master Servicer or the
Trustee, as applicable, related to any termination of a Servicer, appointment of
a successor Servicer or the transfer and assumption of servicing by the Master
Servicer or the Trustee, as applicable, with respect to any Servicing Agreement
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of the Servicer as a result of an event of default by such Servicer
under the related Servicing Agreement and (ii) all costs and expenses associated
with the complete transfer of servicing, including all servicing files and all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the successor Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
Servicer to service the Mortgage Loans in accordance with the related Servicing
Agreement) are not fully and timely reimbursed by the terminated Servicer, the
Master Servicer (except in the case of the termination of Xxxxx Fargo as a
Servicer) or the Trustee, as applicable, shall be entitled to reimbursement of
such costs and expenses from the Master Servicer Custodial Account; provided
that if such servicing transfer costs are ultimately reimbursed by the
terminated Servicer, then the Master Servicer or the Trustee, as applicable,
shall remit such amounts that are reimbursed by the terminated Servicer to the
Master Servicer Custodial Account.
(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of the Servicer, if any, that it
replaces.
(f) Subject to the conditions set forth in this Section 3.02(f), the Master
Servicer is permitted to utilize one or more Subcontractors to perform certain
of its obligations hereunder. The Master Servicer shall promptly upon request
provide to the Depositor a written description (in form and substance
satisfactory to the Depositor) of the role and function of each Subcontractor
utilized by the Master Servicer, specifying (i) the identity of each such
Subcontractor that is a Servicing Function Participant and (ii) which elements
of the Servicing Criteria will be addressed in Assessments of Compliance
provided by each Servicing Function Participant. As a condition to the
utilization by the Master Servicer of any Servicing Function Participant, the
Master Servicer shall cause any such Servicing Function Participant for the
benefit of the Depositor to comply with the provisions of Section 3.21 of this
Agreement to the same extent as if such Servicing Function Participant were the
Master Servicer. The Master Servicer shall be responsible for obtaining from
each such Servicing Function Participant and delivering to the applicable
Persons any Assessment of Compliance and related Attestation Report required to
be delivered by such Servicing Function Participant under Section 3.21, in each
case as and when required to be delivered.
Notwithstanding the foregoing, if the Master Servicer engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, the Master Servicer shall be responsible for determining whether such
Subcontractor is an Additional Servicer.
The Master Servicer shall indemnify the Depositor, the Sponsor, the
Trustee, the Custodian and the Securities Administrator and any of their
directors, officers, employees or agents and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
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necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain in any way related to a breach of the
Master Servicer's obligation set forth in the preceding paragraph or the failure
of the Master Servicer to perform any of its obligations under this Section
3.02(f), Section 3.20, Section 3.21 or Section 3.22.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.
The Master Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage on all
officers, employees or other persons involved in the performance of its
obligations as Master Servicer hereunder. These policies must insure the Master
Servicer against losses resulting from dishonest or fraudulent acts committed by
the Master Servicer's personnel, any employees of outside firms that provide
data processing services for the Master Servicer, and temporary contract
employees or student interns. No provision of this Section 3.03 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve the
Master Servicer from its duties and obligations as set forth in this Agreement.
The minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by Xxxxxx Mae in the Xxxxxx Xxx
Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' & Servicers'
Guide, as amended or restated from time to time, or in an amount as may be
permitted to the Master Servicer by express waiver of Xxxxxx Mae or Xxxxxxx Mac.
In the event that any such policy or bond ceases to be in effect, the Master
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer, meeting the requirements set forth above as of the date of such
replacement.
Section 3.04 Access to Certain Documentation.
The Master Servicer shall provide, and the Master Servicer shall cause each
Servicer to provide in accordance with the related Servicing Agreement, to the
OCC, the OTS, the FDIC and to comparable regulatory authorities supervising
Holders of Certificates and the examiners and supervisory agents of the OCC, the
OTS, the FDIC and such other authorities, access to the documentation required
by applicable regulations of the OCC, the OTS, the FDIC and such other
authorities with respect to the Mortgage Loans. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Master Servicer and the
related Servicer. In fulfilling such request for access, the Master Servicer
shall not be responsible to determine the sufficiency of any information
provided by such Servicer. Nothing in this Section 3.04 shall limit the
obligation of the Master Servicer and the related Servicer to observe any
applicable law and the failure of the Master Servicer or the related Servicer to
provide access as provided in this Section 3.04 as a result of such obligation
shall not constitute a breach of this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement) to
take, any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the Master
Servicer or such Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause each Servicer (to the
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extent required under the related Servicing Agreement) to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer (to
the extent required under the related Servicing Agreement) to present, on behalf
of the Trust, the Trustee and the Certificateholders, claims to the insurer
under any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Sections 3.08 and 3.09, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in the
Master Servicer Custodial Account, subject to withdrawal pursuant to Section
3.11.
Section 3.06 Rights of the Depositor, the Securities Administrator and the
Trustee in Respect of the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer hereunder
and in connection with any such defaulted obligation to exercise the related
rights of the Master Servicer hereunder; provided that the Master Servicer shall
not be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee. None of the Securities
Administrator, the Trustee or the Depositor shall have any responsibility or
liability for any action or failure to act by the Master Servicer and the
Securities Administrator, the Trustee or the Depositor shall not be obligated to
supervise the performance of the Master Servicer hereunder or otherwise.
Section 3.07 Trustee to Act as Master Servicer.
(a) In the event the Master Servicer or any successor master servicer shall
for any reason no longer be the Master Servicer hereunder (including by reason
of an Event of Default), the Trustee as trustee hereunder shall within 90 days
of such time, assume, if it so elects, or shall appoint a successor Master
Servicer to assume, all of the rights and obligations of the Master Servicer
hereunder arising thereafter. Any such assumption shall be subject to Sections
7.02 and 8.05.
(b) The predecessor Master Servicer at its expense shall, upon request of
the Trustee, deliver to the assuming party all master servicing documents and
records and an accounting of amounts collected or held by the Master Servicer,
and shall transfer control of the Master Servicer Custodial Account and any
investment accounts to the successor Master Servicer, and otherwise use its best
efforts to effect the orderly and efficient transfer of its rights and duties as
Master Servicer hereunder to the assuming party. The Trustee shall be entitled
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to be reimbursed from the predecessor Master Servicer (or the Trust if the
predecessor Master Servicer is unable to fulfill such obligations) for all
Master Servicing Transfer Costs.
Section 3.08 Servicer Custodial Accounts and Escrow Accounts.
(a) The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Servicer Custodial Account in accordance with the
applicable Servicing Agreement, with records to be kept with respect thereto on
a loan by loan basis, into which accounts shall be deposited within 48 hours (or
as of such other time specified in the related Servicing Agreement) of receipt
all collections of principal and interest on any Mortgage Loan and all
collections with respect to any REO Property received by a Servicer, including
Principal Prepayments, Insurance Proceeds, Liquidation Proceeds, Recoveries and
Advances made from the Servicer's own funds (less servicing compensation as
permitted by the applicable Servicing Agreement in the case of any Servicer) and
all other amounts to be deposited in the Servicer Custodial Account. The Master
Servicer is hereby authorized to make withdrawals from and deposits to the
related Servicer Custodial Account for purposes required or permitted by this
Agreement.
(b) The Master Servicer shall also enforce the obligation of each Servicer
to establish and maintain a Buy-Down Account in accordance with the applicable
Servicing Agreement, with records to be kept with respect thereto on a Mortgage
Loan by Mortgage Loan basis, into which accounts any Buy-Down Funds shall be
deposited within 48 hours (or as of such other time specified in the related
Servicing Agreement) of receipt thereof. In addition, the Master Servicer shall
enforce the obligation of each Servicer to withdraw from the Buy-Down Account
and deposit in immediately available funds in the Servicer Custodial Account an
amount which, when added to such Mortgagor's payment, will equal the full
monthly payment due under the related Mortgage Note.
(c) To the extent required by the related Servicing Agreement and by the
related Mortgage Note and not violative of current law, the Master Servicer
shall enforce the obligation of each Servicer to establish and maintain one or
more escrow accounts (for each Servicer, collectively, the "Escrow Account") and
deposit and retain therein all collections from the Mortgagors (or Advances by
such Servicer) for the payment of taxes, assessments, hazard insurance premiums
or comparable items for the account of the Mortgagors. Nothing herein shall
require the Master Servicer to compel a Servicer to establish an Escrow Account
in violation of applicable law.
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Account, Certificate Account and Rate Cap Carryover Reserve Account.
(a) Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full, the Master Servicer shall enforce the
obligations of the Servicers to collect all payments due under the terms and
provisions of the Mortgage Loans when the same shall become due and payable to
the extent such procedures shall be consistent with the applicable Servicing
Agreement.
(b) The Securities Administrator shall establish and maintain the
Certificate Account, which shall be deemed to consist of nine sub-accounts and
into which the Master Servicer will deposit on or prior to 11:00 a.m. New York
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time, on each Distribution Date (or, if the Securities Administrator is no
longer the same Person as, or an Affiliate of, the Master Servicer, the Business
Day preceding each Distribution Date) all amounts on deposit in the Master
Servicer Custodial Account for distribution to Certificateholders.
(c) The Master Servicer shall establish and maintain the Master Servicer
Custodial Account, which shall be an Eligible Account and which may be deemed to
be a sub-account of the Certificate Account for so long as the Master Servicer
and the Securities Administrator are the same person. The Master Servicer shall,
promptly upon receipt, deposit in the Master Servicer Custodial Account and
retain therein any amounts which are required to be deposited in the Master
Servicer Custodial Account by the Master Servicer.
(d) On a daily basis within one (1) Business Day of receipt (except as
otherwise specifically provided herein), the Master Servicer shall deposit or
cause to be deposited in the Master Servicer Custodial Account the following
payments and collections remitted to the Master Servicer by each Servicer from
its respective Servicer Custodial Account pursuant to the related Servicing
Agreement or otherwise or received by the Master Servicer in respect of the
related Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest due on the related Mortgage Loans on or before the
Cut-off Date) and the following amounts required to be deposited hereunder:
(i) all payments on account of principal of the related Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the related Mortgage
Loans, net of the related Servicing Fee;
(iii) (A) all related Insurance Proceeds and Liquidation Proceeds,
other than Insurance Proceeds to be (1) applied to the restoration or
repair of the Mortgaged Property, (2) released to the Mortgagor in
accordance with Customary Servicing Procedures or (3) required to be
deposited to an Escrow Account pursuant to Section 3.08 and (B) any
Insurance Proceeds released from an Escrow Account;
(iv) any amount required to be deposited by the Master Servicer
pursuant to Section 3.09(e) in connection with any losses on Permitted
Investments with respect to the Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted by
the applicable Servicer;
(vi) Periodic Advances made by the applicable Servicer pursuant to the
related Servicing Agreement (or, if applicable, by the Master Servicer or
the Trustee pursuant to Section 3.19 or the Trustee pursuant to Section
8.01) and any Compensating Interest paid by the applicable Servicer
pursuant to the related Servicing Agreement;
(vii) all related Purchase Prices, all related Substitution Adjustment
Amounts and all related Reimbursement Amounts to the extent received by the
Master Servicer;
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(viii) any related Recoveries;
(ix) any related Buy-Down Funds required to be deposited pursuant to
Section 3.08; and
(x) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to be deposited, it
may at any time withdraw such amount from the Master Servicer Custodial Account,
any provision herein to the contrary notwithstanding. All funds required to be
deposited in the Master Servicer Custodial Account shall be held by the Master
Servicer in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Section 3.11.
(e) Each institution at which the Master Servicer Custodial Account is
maintained shall invest the funds therein as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than the
Business Day next preceding the Distribution Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account, then
such Permitted Investment shall mature not later than such Distribution Date)
and, in each case, shall not be sold or disposed of prior to its maturity. All
such Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All Master Servicer Custodial Account
Reinvestment Income shall be for the benefit of the Master Servicer as part of
its master servicing compensation and shall be remitted to the Master Servicer
monthly as provided herein. The amount of any losses realized in the Master
Servicer Custodial Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Master Servicer from its own
funds in the Master Servicer Custodial Account.
(f) Each institution at which the Certificate Account is maintained shall
invest the funds therein if directed in writing by the Securities Administrator
in Permitted Investments that are obligations of the institution that maintains
the Certificate Account, which shall mature on the Distribution Date and shall
not be sold or disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the
Certificate Account shall be for the benefit of the Securities Administrator as
its compensation and the amount of any losses realized in the Certificate
Account in respect of any such Permitted Investments shall promptly be deposited
by the Securities Administrator from its own funds to the Certificate Account.
(g) The Master Servicer shall give notice to the Depositor, the Trustee,
the Securities Administrator and the Rating Agencies of any proposed change of
location of the Master Servicer Custodial Account not later than 30 days after
and not more that 45 days prior to any change thereof. The Securities
Administrator shall give notice to the Depositor, the Trustee, the Master
Servicer and the Rating Agencies of any proposed change of the location of the
Certificate Account maintained by the Securities Administrator not later than 30
days after and not more than 45 days prior to any change thereof. The creation
of the Master Servicer Custodial Account and the Certificate Account shall be
evidenced by a certification substantially in the form attached hereto as
Exhibit F.
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(h) The Securities Administrator shall designate each of the Lower-Tier II
Certificate Sub-Account, the Upper-Tier II Certificate Sub-Account, the Shifting
Interest Lower-Tier Certificate Sub-Account, the Shifting Interest Middle-Tier
Certificate Sub-Account and the Shifting Interest Upper-Tier Certificate
Sub-Account as a sub-account of the Certificate Account.
(i) On each Distribution Date (other than the Final Distribution Date,
if such Final Distribution Date is in connection with a purchase of the
assets of the Trust Estate by the Depositor), the Securities Administrator
shall from funds available on deposit in the Certificate Account, be deemed
to deposit into the Shifting Interest Lower-Tier Certificate Sub-Account,
all funds deemed on deposit in the the Loan Group 2 Sub-Account and the
Loan Group 3 Sub-Account; immediately thereafter, be deemed to deposit into
the Shifting Interest Middle-Tier Certificate Sub-Account and the Shifting
Interest Lower-Tier Distribution Amount; and immediately thereafter, be
deemed to deposit into the Shifting Interest Upper-Tier Certificate
Sub-Account, the Shifting Interest Middle-Tier Distribution Amount.
(ii) On each Distribution Date (other than the Final Distribution
Date, if such Final Distribution Date is in connection with a purchase of
the assets of the Trust Estate by the Depositor), the Securities
Administrator shall from funds available on deposit in the Certificate
Account, be deemed to deposit into the Lower-Tier II Certificate
Sub-Account, all funds deemed on deposit in the OC Loan Group Sub-Account,
and immediately thereafter, be deemed to deposit into the Upper-Tier II
Certificate Sub-Account, the Lower-Tier II Distribution Amount.
(i) No later than the Closing Date, the Securities Administrator shall
establish and maintain the Rate Cap Carryover Reserve Account. On each
Distribution Date as to which there is a Rate Cap Carryover Amount payable to
the Offered Overcollateralized Certificates, the Securities Administrator has
been directed by the Holders of the Class CE Certificates to, and therefore
will, deposit into the Rate Cap Carryover Reserve Account the amounts described
in Section 5.03(a) priority eighth, rather than distributing such amounts to the
Holders of the Class CE Certificates.
For federal and state income tax purposes, the Holders of the Class CE
Certificates will be deemed to be the owners of the Rate Cap Carryover Reserve
Account and the Rate Cap Carryover Reserve Account will be an asset of the Class
CE Grantor Trust as provided in Section 5.14 and all amounts deposited into the
Rate Cap Carryover Reserve Account shall be treated as amounts distributed by
the Upper-Tier II REMIC with respect to the Class CE Upper-Tier II Regular
Interest. Upon a termination relating to the Overcollateralized Certificates
pursuant to Section 10.01 or the payment in full of the Offered
Overcollateralized Certificates, all amounts remaining on deposit in the Rate
Cap Carryover Reserve Account will be released by the Trust Estate and
distributed to the Holders of the Class CE Certificates or their designees. The
Rate Cap Carryover Reserve Account will be part of the Trust Estate but not part
of any REMIC created hereunder and any payments to the Holders of the Offered
Overcollateralized Certificates of Rate Cap Carryover Amounts will not be
payments with respect to a "regular interest" in a REMIC within the meaning of
Code Section 860G(a)(1). The Rate Cap Carryover Reserve Account is an "outside
reserve fund" within the meaning of Treasury Regulation Section 1.860G-2(h).
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By accepting a Class CE Certificate, each Holder of a Class CE Certificate
hereby agrees to direct the Securities Administrator, and the Securities
Administrator hereby is directed, to deposit into the Rate Cap Carryover Reserve
Account the amounts described above on each Distribution Date as to which there
is any Rate Cap Carryover Amount rather than distributing such amounts to the
Holders of the Class CE Certificates. By accepting a Class CE Certificate, each
Holder of a Class CE Certificate further agrees that such direction is given for
good and valuable consideration, the receipt and sufficiency of which is
acknowledged by such acceptance. Amounts held in the Rate Cap Carryover Reserve
Account shall be held uninvested.
For federal tax return and information reporting, the value of the right of
the Holders of the Offered Overcollateralized Certificates to receive payments
from the Rate Cap Carryover Reserve Account in respect of any Rate Cap Carryover
Amount shall be assumed to have a value of zero as of the Closing Date unless
and until required otherwise by an applicable taxing authority.
Section 3.10 Access to Certain Documentation and Information Regarding the
Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation of the
Servicers to afford the Securities Administrator and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the Master Servicer or
the applicable Servicer.
Section 3.11 Permitted Withdrawals from the Certificate Account and the
Master Servicer Custodial Account.
(a) The Securities Administrator shall withdraw funds from the Certificate
Account for distributions to Certificateholders in the manner specified in this
Agreement. In addition, the Master Servicer may from time to time make
withdrawals from the Master Servicer Custodial Account for the following
purposes:
(i) to pay to the Servicers (to the extent not previously retained by
them), the Servicing Fee to which they are entitled pursuant to the
Servicing Agreements and to pay itself any Master Servicer Custodial
Account Reinvestment Income;
(ii) to pay to the Securities Administrator and the Trustee any
amounts due to the Securities Administrator and the Trustee under this
Agreement (including, but not limited to, all amounts provided for under
Section 3.02, Section 3.07, Section 8.05 and Section 9.11, other than the
amounts provided for in the first sentence of Section 9.11);
(iii) to reimburse the Servicers (or, if applicable, itself or the
Trustee) for unreimbursed Advances made pursuant to the related Servicing
Agreement (or in the case of itself or the Trustee, pursuant to Section
3.19 or Section 8.01, as applicable), such right of reimbursement pursuant
to this clause (iii) being limited first to amounts received on the
Mortgage Loans serviced by such Servicer in the related Loan Group in
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respect of which any such Advance was made and then limited to amounts
received on all the Mortgage Loans serviced by such Servicer (or, if
applicable, the Master Servicer or the Trustee) in respect of which any
such Advance was made;
(iv) to reimburse the Servicers (or, if applicable, itself or the
Trustee) for any Nonrecoverable Advance previously made, such right of
reimbursement pursuant to this clause (iv) being limited first to amounts
received on the Mortgage Loans in the same Loan Group as the Mortgage
Loan(s) in respect of which such Nonrecoverable Advance was made and then
limited to amounts received on all the Mortgage Loans serviced by such
Servicer (of, if applicable, the Master Servicer or the Trustee);
(v) to reimburse the Servicers for Insured Expenses from the related
Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02 or 2.04, all
amounts received thereon after the date of such purchase;
(vii) to reimburse itself or the Depositor for expenses incurred by
either of them and reimbursable pursuant to this Agreement, including but
not limited to, Section 3.02 and Section 7.03;
(viii) to withdraw any amount deposited in the Master Servicer
Custodial Account and not required to be deposited therein; and
(ix) to clear and terminate the Master Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
If the Master Servicer shall remit to the Securities Administrator any amount
not required to be remitted, it may at any time direct the Securities
Administrator to withdraw such amount from the Certificate Account, any
provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering an Officer's Certificate to the Securities
Administrator which describes the amounts remitted in error to the Securities
Administrator for deposit to the Certificate Account.
(b) On each Distribution Date, funds on deposit in the Certificate Account
and deemed to be on deposit in the Shifting Interest Upper-Tier Certificate
Sub-Account shall be used to make payments on the Shifting Interest Upper-Tier
Interests as provided in Sections 5.01 and 5.02, and funds on deposit in the
Certificate Account and deemed to be on deposit in the Upper-Tier II Certificate
Sub-Account shall be used to make payments on the Upper-Tier II Interests as
provided in Sections 5.01 and 5.03. The Certificate Account shall be cleared and
terminated upon termination of this Agreement pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance and Other Insurance.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained fire, flood and hazard insurance with extended
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coverage customary in the area where the Mortgaged Property is located in
accordance with the related Servicing Agreements. It is understood and agreed
that such insurance provided for in this Section 3.12 shall be with insurers
meeting the eligibility requirements set forth in the applicable Servicing
Agreement and that no earthquake or other additional insurance is to be required
of any Mortgagor or to be maintained on property acquired in respect of a
defaulted loan, other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
(b) Pursuant to Sections 3.08 and 3.09, any amounts collected by the Master
Servicer, or by any Servicer, under any insurance policies (other than amounts
to be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the Master Servicer Custodial
Account, subject to withdrawal pursuant to Sections 3.09 and 3.11. Any cost
incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 3.08 and 3.09.
Section 3.13 Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the applicable
Servicing Agreement) cause the related Servicer to, prepare and present on
behalf of the Trust and the Certificateholders all claims under the Insurance
Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Master Servicer Custodial Account upon receipt, except that any amounts realized
that are to be applied to the repair or restoration of the related Mortgaged
Property as a condition precedent to the presentation of claims on the related
Mortgage Loan to the insurer under any applicable Insurance Policy need not be
so deposited (or remitted).
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements.
To the extent provided in the applicable Servicing Agreement and to the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicers to enforce such clauses in accordance with
the applicable Servicing Agreement. If applicable law prohibits the enforcement
of a due-on-sale clause or such clause is otherwise not enforced in accordance
with the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
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Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property.
(a) The Master Servicer shall cause each Servicer (to the extent required
under the related Servicing Agreement) to foreclose upon or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the applicable Servicing Agreement.
(b) With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trust for the benefit of the Certificateholders, or
its nominee, on behalf of the Certificateholders. The Master Servicer shall
enforce the obligation of the Servicers, to the extent provided in the
applicable Servicing Agreement, to (i) cause the name of the Trust to be placed
on the title to such REO Property and (ii) ensure that the title to such REO
Property references this Agreement. The Master Servicer shall, to the extent
provided in the applicable Servicing Agreement, cause the applicable Servicer to
sell any REO Property as expeditiously as possible and in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
Pursuant to its efforts to sell such REO Property, the Master Servicer shall
cause the applicable Servicer to protect and conserve such REO Property in the
manner and to the extent required by the applicable Servicing Agreement, subject
to the REMIC Provisions. In the event that the Trust Estate acquires any
Mortgaged Property as aforesaid or otherwise in connection with a default or
imminent default on a Mortgage Loan, the Master Servicer shall enforce the
obligation of the related Servicer to dispose of such Mortgaged Property within
the time period specified in the applicable Servicing Agreement, but in any
event within three years after the acquisition by the Servicer for the Trust
(such period, the "REO Disposition Period") unless (i) the Servicer provides to
the Trustee, the Master Servicer and the Securities Administrator an Opinion of
Counsel to the effect that the holding by the Trust of such Mortgaged Property
subsequent to three years after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of the Trust as defined in
Section 860F of the Code or under the law of any state in which real property
securing a Mortgage Loan owned by the Trust is located or cause any REMIC
created hereunder to fail to qualify as a REMIC for federal income tax purposes
or for state tax purposes under the laws of any state in which real property
securing a Mortgage Loan owned by the Trust is located at any time that any
Certificates are outstanding or (ii) the Servicer shall have applied for and
received an extension of such period from the Internal Revenue Service, in which
case the Trust Estate may continue to hold such Mortgaged Property for the
period of such extension.
(c) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Servicer Custodial Account.
(d) The applicable Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition of
such REO Property; provided that any such unreimbursed Advances as well as any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
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(e) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the applicable Servicer as provided above shall
be deposited in the related Servicer Custodial Account on or prior to the
Determination Date in the month following receipt thereof and be remitted by
wire transfer in immediately available funds to the Master Servicer for deposit
into the Master Servicer Custodial Account.
Notwithstanding any other provision of this Agreement, the Master Servicer
shall not permit any Mortgaged Property acquired by the Trust to be rented (or
allowed to continue to be rented) or otherwise used for the production of income
by or on behalf of the Trust in such a manner or pursuant to any terms that
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, (ii) result in
the receipt by any REMIC created hereunder of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or any "net
income from foreclosure property" which is subject to taxation under the REMIC
Provisions or (iii) subject any REMIC created hereunder to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless the Master
Servicer or related Servicer, as applicable, has agreed to indemnify and hold
harmless the Trust with respect to the imposition of any such taxes.
Notwithstanding any other provision of this Agreement, the Master Servicer
and the Securities Administrator, as applicable, shall comply with all federal
withholding requirements with respect to payments to Certificateholders of
interest or original issue discount that the Master Servicer or the Securities
Administrator reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. Without
limiting the foregoing, the Securities Administrator agrees that it will not
withhold with respect to payments of interest or original issue discount in the
case of a Certificateholder that has furnished or caused to be furnished an
effective Form W-8 or an acceptable substitute form or a successor form and who
is not a "10 percent shareholder" within the meaning of Code Section
871(h)(3)(B) or a "controlled foreign corporation" described in Code Section
881(c)(3)(C) with respect to the Trust or the Depositor. In the event the
Securities Administrator withholds any amount from interest or original issue
discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholder.
Section 3.16 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer or the related Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer or the
related Servicer will immediately notify the Trustee (or, at the direction of
the Trustee, a Custodian) by delivering, or causing to be delivered, two copies
(one of which will be returned to the related Servicer with the Mortgage File)
of a Request for Release (which may be delivered in an electronic format
acceptable to the Trustee and the Master Servicer or the related Servicer). Upon
receipt of such request, the Trustee or a Custodian, as applicable, shall within
seven (7) Business Days release the related Mortgage File to the Master Servicer
or the related Servicer. The Trustee shall at the Master Servicer's or the
related Servicer's direction execute and deliver to the Master Servicer or the
related Servicer the request for reconveyance, deed of reconveyance or release
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or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage relating to the Mortgage Loan, in each case provided by the Master
Servicer or the related Servicer, together with the Mortgage Note with written
evidence of cancellation thereon. If the Mortgage has been recorded in the name
of MERS or its designee, the Master Servicer shall enforce the applicable
Servicer's obligation under the related Servicing Agreement take all necessary
action to reflect the release of the Mortgage on the records of MERS. Expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor of the Mortgage Loan.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any Primary Mortgage Insurance Policy, any policy of flood insurance, any
fidelity bond or errors or omissions policy, or for the purposes of effecting a
partial release of any Mortgaged Property from the lien of the Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or any of the
other documents included in the Mortgage File, the Trustee or a Custodian, as
applicable, shall, upon delivery to the Trustee (or, at the direction of the
Trustee, a Custodian) of a Request for Release signed by a Master Servicing
Officer or a Servicing Officer, release the Mortgage File within seven (7)
Business Days to the Master Servicer or the related Servicer. Subject to the
further limitations set forth below, the Master Servicer or the applicable
Servicer shall cause the Mortgage Files so released to be returned to the
Trustee or a Custodian, as applicable, when the need therefor no longer exists,
unless the Mortgage Loan is liquidated and the proceeds thereof are deposited in
the related Servicer Custodial Account, in which case such Servicer shall
deliver to the Trustee or a Custodian, as applicable, a Request for Release,
signed by a Servicing Officer.
If the Master Servicer or any related Servicer at any time seeks to
initiate a foreclosure proceeding in respect of any Mortgaged Property as
authorized by this Agreement or the Servicing Agreement, the Master Servicer or
any related Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
Section 3.17 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall enforce the obligation of each Servicer to transmit to the Trustee (or a
Custodian on behalf of the Trustee) as required by this Agreement and the
Servicing Agreements all documents and instruments in respect of a Mortgage Loan
coming into the possession of the Servicer from time to time and shall account
fully to the Trustee as required by this Agreement and the Servicing Agreements
for any funds received by the Master Servicer or the related Servicer or which
otherwise are collected by the Master Servicer or the related Servicer as
Liquidation Proceeds, Recoveries or Insurance Proceeds in respect of any
Mortgage Loan. All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer or the related Servicer in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including but not limited to, any funds on deposit
in the Master Servicer Custodial Account or any Servicer Custodial Account,
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shall be held by the Master Servicer or the related Servicer for and on behalf
of the Trustee and shall be and remain the sole and exclusive property of the
Trustee on behalf of the Trust, subject to the applicable provisions of this
Agreement and the related Servicing Agreement. The Master Servicer also agrees
that it shall not, and shall enforce any requirement under the related Servicing
Agreement that the related Servicer shall not, knowingly create, incur or
subject any Mortgage File or any funds that are deposited in any Master Servicer
Custodial Account, any Servicer Custodial Account, the Certificate Account or
any Escrow Account, or any funds that otherwise are or may become due or payable
to the Trustee for the benefit of the Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance
created by the Master Servicer or Servicer, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Master Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Master Servicer under
this Agreement.
Section 3.18 Master Servicer Compensation.
As compensation for its services hereunder, the Master Servicer shall be
entitled to compensation in the form of the Master Servicer Custodial Account
Reinvestment Income. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its master servicing activities hereunder and
shall not be entitled to reimbursement therefor except as specifically provided
in this Agreement.
Section 3.19 Advances.
The Master Servicer shall enforce the obligations of each Servicer to make
a Periodic Advance in accordance with the applicable Servicing Agreement. A
Servicer shall be entitled to be reimbursed from the applicable Servicer
Custodial Account for all Advances of its own funds made pursuant to the related
Servicing Agreement. Based upon information set forth in the servicer reports,
the Master Servicer shall inform the Securities Administrator of the amount of
the Periodic Advance to be made by a Servicer no later than the related
Remittance Date. If a Servicer fails to make any required Periodic Advance
pursuant to the related Servicing Agreement, the Master Servicer shall (i)
unless the Master Servicer determines that such Periodic Advance would not be
recoverable in its good faith business judgment, make such Periodic Advance not
later than the Business Day preceding the related Distribution Date and (ii) to
the extent such failure leads to the termination of the Servicer and until such
time as a successor Servicer is appointed, continue to make Periodic Advances
required pursuant to the related Servicing Agreement for any Distribution Date,
within the same time frame set forth in (i) above, unless the Master Servicer
determines (to the extent provided in the related Servicing Agreement) that such
Periodic Advance would not be recoverable. If the Master Servicer is unable to
make a Periodic Advance required to be made by it in accordance with this
Section 3.19, the Master Servicer shall immediately, and in no event later than
5:00 P.M. New York time on the last Business Day preceding the related
Distribution Date, give written notice thereof to the Trustee, the Securities
Administrator and the Depositor.
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Section 3.20 Annual Statement as to Compliance.
(a) Each of the Master Servicer and the Securities Administrator shall
deliver, and shall cause any Additional Servicer engaged by it to deliver, or
otherwise make available to the Depositor and the Securities Administrator (and
the Securities Administrator will make available to the Trustee and each Rating
Agency), no later than March 15th of each calendar year beginning in 2008, an
Officer's Certificate (each, together with such similar certificate delivered by
each Servicer as described in Section 3.20(b), a "Compliance Statement"), signed
by an officer of such party, stating, as to the signer thereof, that (a) a
review of the activities of such party during the preceding calendar year or
portion thereof and of performance of such party under this Agreement or such
applicable agreement in case of an Additional Servicer has been made under such
officers' supervision and (b) to the best of such officer's knowledge, based on
such review, such party has fulfilled all of its obligations under this
Agreement or such applicable agreement in case of an Additional Servicer in all
material respects throughout such year, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Such Compliance
Statements shall contain no restrictions or limitations on their use. The
obligations of the Master Servicer and the Securities Administrator under this
Section apply to each entity that acted as Master Servicer or Securities
Administrator, as applicable, during the applicable period, whether or not such
entity is acting as Master Servicer or Securities Administrator at the time such
Compliance Statement is required to be delivered.
(b) In the event the Master Servicer or the Securities Administrator is
terminated or resigns pursuant to the terms of this Agreement, such party shall
provide, and shall use its reasonable efforts to cause any Additional Servicer
that resigns or is terminated under any applicable servicing agreement to
provide, a Compliance Statement pursuant to this Section 3.20 with respect to
the period of time that the Master Servicer or the Securities Administrator was
subject to this Agreement or such applicable agreement in the case of an
Additional Servicer or the period of time that the Additional Servicer was
subject to such other servicing agreement. The Master Servicer shall enforce any
obligation of each Servicer, to the extent set forth in the related Servicing
Agreement, to deliver to the Master Servicer a Compliance Statement within the
time frame set forth in, and in such form and substance as may be required
pursuant to, the related Servicing Agreement. The Master Servicer shall include
such Compliance Statements of the Servicers with its own Compliance Statement to
be submitted pursuant to this Section 3.20.
Section 3.21 Assessments of Compliance and Attestation Reports.
(a) Each of the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall deliver, and shall cause each
Servicing Function Participant engaged by it to deliver, or otherwise make
available to the Depositor and the Securities Administrator on or before March
10th of each calendar year beginning in 2008 (provided that each of the Master
Servicer, the Securities Administrator and the Custodian shall make its best
efforts to deliver such report by March 10th, but will not be in default in its
obligation to so deliver such report unless it is not delivered by March 15th),
a report regarding such party's assessment of compliance with the Relevant
Servicing Criteria (each, together with such similar report delivered by each
Servicer as described in Section 3.21(c), an "Assessment of Compliance") that
contains (i) a statement by such party of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (ii) a statement that such
party used the Relevant Servicing Criteria to assess compliance with the
Relevant Servicing Criteria, (iii) such party's assessment of compliance with
the Relevant Servicing Criteria as of and for the fiscal year covered by the
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Form 10-K required to be filed pursuant to Section 3.22(c), including, if there
has been any material instance of noncompliance with the Relevant Servicing
Criteria, a discussion of each such failure and the nature and status thereof
and (iv) a statement that a registered public accounting firm has issued an
attestation report on such party's assessment of compliance with the Relevant
Servicing Criteria as of and for such period.
No later than February 1 of each fiscal year for the Trust for which a 10-K
is required to be filed, the Master Servicer, the Securities Administrator and
the Custodian shall each forward to the Depositor and the Securities
Administrator the name of each Servicing Function Participant engaged by it and
what Relevant Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function Participant. When the Master
Servicer, the Securities Administrator and the Custodian (or any Servicing
Function Participant engaged by them) submit their assessments to the Depositor
and the Securities Administrator, such parties will also at such time include
the assessment (and attestation pursuant to Section 3.21(b)) of each Servicing
Function Participant engaged by it.
At any time after February 1 of each fiscal year, if the Master Servicer,
the Securities Administrator or the Custodian determines or is informed that the
list of Relevant Servicing Criteria to be addressed in the report on assessment
of compliance prepared by each Servicing Function Participant is no longer in
complete accordance or no longer reasonably likely to be in complete accordance
with the Relevant Servicing Criteria for such Servicing Function Participant as
notified to the Depositor and Securities Administrator in the paragraph
immediately above, the Master Servicer, the Securities Administrator or the
Custodian, as the case may be, shall promptly inform the Depositor and the
Securities Administrator by written notice that such Servicing Function
Participant is likely to address different Relevant Servicing Criteria in the
report on assessment of compliance prepared by such Servicing Function
Participant. Following transmission of such notice, the Master Servicer, the
Securities Administrator or the Custodian, as the case may be, shall negotiate
with such Servicing Function Participants that the Master Servicer, Securities
Administrator or Custodian, as applicable, deems necessary so that all Relevant
Servicing Criteria shall be addressed by one or more Servicing Function
Participants and so that all Assessments of Compliance shall, in the
determination of the Depositor, be satisfactory.
Within ten calendar days of receipt of such Assessments of Compliance, the
Securities Administrator shall confirm that the Assessments of Compliance, taken
individually address the Relevant Servicing Criteria for each party as set forth
on Exhibit N and on any similar exhibit set forth in each Servicing Agreement in
respect of each Servicer and notify the Depositor of any exceptions. None of
such parties shall be required to deliver any such Assessments of Compliance
until April 15 in any given year so long as it has received written confirmation
from the Depositor that a Form 10-K is not required to be filed in respect of
the Trust for the preceding calendar year. The Custodian and any Servicing
Function Participant engaged by it shall not be required to deliver or cause the
delivery of such Assessments of Compliance in any given year that a Form 10-K is
not required to be filed in respect of the Trust for the preceding fiscal year;
provided, however, the Custodian shall deliver to the Depositor on or before
March 15th of any such year in which the Custodian is not required to deliver an
Assessment of Compliance with respect to any other transaction for which the
Depositor is the depositor, a copy of the Assessment of Compliance for the
preceding fiscal year prepared by the Custodian relating to the Custodian's
servicing platform with respect to asset-backed securities that are backed by
assets of the type backing the Offered Certificates.
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(b) Each of the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall cause, and shall cause each Servicing
Function Participant engaged by it to cause, on or before March 10th of each
calendar year beginning in 2008 (provided that each of the Master Servicer, the
Securities Administrator and the Custodian shall make its best efforts to
deliver such report by March 10th, but will not be in default in its obligation
to so deliver such report unless it is not delivered by March 15th), a
registered public accounting firm (which may also render other services to the
Master Servicer, the Securities Administrator, the Custodian or such other
Servicing Function Participants, as the case may be) and that is a member of the
American Institute of Certified Public Accountants to furnish a report (each,
together with such similar report delivered by each Servicer as described in
Section 3.21(c), an "Attestation Report") to the Securities Administrator and
the Depositor, to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii) on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the Public Company Accounting
Oversight Board, it is expressing an opinion as to whether such party's
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party's assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such Attestation Report why it was unable to
express such an opinion. Each such related Attestation Report shall be made in
accordance with Rules 1-02(a)(3) and 2-02(g) of the Commission's Regulation S-X.
Such Attestation Reports must be available for general use and not contain
restricted use language. If requested by the Depositor, such report shall
contain or be accompanied by a consent of such accounting firm to inclusion or
incorporation of such report in the Depositor's registration statement on Form
S-3 relating to the Offered Certificates and the Form 10-K for the Trust.
Within ten calendar days of receipt of such Attestation Reports, the
Securities Administrator shall confirm that each Assessment of Compliance is
coupled with a related Attestation Report and shall notify the Depositor of any
exceptions. None of the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by such parties shall be required to
deliver or cause the delivery of such Attestation Reports until April 15 in any
given year so long as it has received written confirmation from the Depositor
that a Form 10-K is not required to be filed in respect of the Trust for the
preceding fiscal year. The Custodian and any Servicing Function Participant
engaged by it shall not be required to deliver or cause the delivery of such
Attestation Report in any given year that a Form 10-K is not required to be
filed in respect of the Trust for the preceding fiscal year; provided, however,
the Custodian shall deliver to the Depositor on or before March 15th of any such
year in which the Custodian is required to deliver an Assessment of Compliance
pursuant to the proviso in the last paragraph of Section 3.21(a), a copy of an
attestation report relating to such Assessment of Compliance.
(c) The Master Servicer shall enforce any obligation of each Servicer, to
the extent set forth in the related Servicing Agreement, to deliver to the
Master Servicer an Assessment of Compliance and related Attestation Report
within the time frame set forth in, and in such form and substance as may be
required pursuant to, the related Servicing Agreement. The Master Servicer shall
include such Assessments of Compliance and Attestation Reports of the Servicers
with its own Assessment of Compliance and related Attestation Report to be
submitted pursuant to this Section 3.21.
(d) In the event the Master Servicer, the Custodian or the Securities
Administrator is terminated or resigns pursuant to the terms of this Agreement,
such party shall provide, and each such party shall cause any Servicing Function
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Participant engaged by it to provide, an Assessment of Compliance pursuant to
this Section 3.21, coupled with an Attestation Report as required in this
Section 3.21 with respect to the period of time that the Master Servicer or the
Securities Administrator was subject to this Agreement.
Section 3.22 Reports to the Commission.
(a) The Securities Administrator and the Master Servicer shall reasonably
cooperate with the Depositor in connection with the Trust's satisfying its
reporting requirements under the Exchange Act. Without limiting the generality
of the foregoing, the Securities Administrator shall prepare and file on behalf
of the Trust any Form 8-K, Form 10-D and Form 10-K required by the Exchange Act
and the rules and regulations of the Commission thereunder, and the Master
Servicer shall sign such Forms on behalf of the Trust. Notwithstanding the
previous sentence, the Depositor shall file the Form 8-K in connection with the
filing of this Agreement.
(b) Within 15 days after each Distribution Date (subject to permitted
extensions under the Exchange Act), the Securities Administrator shall prepare
and file on behalf of the Trust any Form 10-D required by the Exchange Act, in
form and substance as required by the Exchange Act. The Securities Administrator
shall file each Form 10-D with a copy of the Monthly Statement for such
Distribution Date attached thereto. Any disclosure in addition to the Monthly
Statement for such Distribution Date that is required to be included on Form
10-D ("Additional Form 10-D Disclosure") shall be reported by the parties set
forth on Exhibit O hereto to the Depositor and the Securities Administrator and
directed and approved by the Depositor pursuant to the following paragraph, and
the Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, except as
set forth in this Section 3.22(b).
As set forth on Exhibit O hereto, within 5 calendar days after the related
Distribution Date, (i) the parties described on Exhibit O shall be required to
provide to the Securities Administrator (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
with a copy by facsimile to 000-000-0000) and the Depositor, to the extent known
by a responsible officer thereof, in XXXXX-compatible format, or in such other
format as otherwise agreed upon by the Securities Administrator and such party,
any Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification in the form of Exhibit S and (ii) the Depositor shall
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Securities
Administrator shall compile all such information provided to it in a Form 10-D
prepared by it. The Securities Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit O of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-D Disclosure information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Additional Form 10-D
Disclosure on Form 10-D pursuant to this paragraph.
After preparing the Form 10-D, the Securities Administrator shall forward
electronically a copy of the Form 10-D to the Depositor and, upon request, the
Master Servicer for review. Within 2 Business Days after receipt of such copy,
the Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-D. In
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the absence of any written changes or approval, the Securities Administrator
shall be entitled to assume that such Form 10-D is in final form and the
Securities Administrator may proceed with the execution and filing of the Form
10-D. A duly authorized officer of the Master Servicer shall sign each Form
10-D. If a Form 10-D cannot be filed on time or if a previously filed Form 10-D
needs to be amended, the Securities Administrator will follow the procedures set
forth in Section 3.22(h)(ii). Form 10-D requires the registrant to indicate (by
checking "yes" or "no") that it "(1) has filed all reports required to be filed
by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or
for such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days." The
Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that is
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the Securities Administrator in writing, no later than the fifth
calendar day after the related Distribution Date with respect to the filing of a
report on Form 10-D, if the answer to either question should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report. Promptly (but no later than
1 Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-D prepared and filed by the Securities Administrator. The signing party at
the Master Servicer can be contacted at the address specified in Section 11.05.
Each party to this Agreement acknowledges that the performance by the Master
Servicer and Securities Administrator of its duties under this Section 3.22(b)
related to the timely preparation, arrangement for execution and filing of Form
10-D is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 3.22(b) and also
contingent upon the Servicers, the Custodian and any Servicing Function
Participant strictly observing deadlines no later than those set forth in this
paragraph that are applicable to the parties to this Agreement in the delivery
to the Securities Administrator of any necessary Additional Form 10-D Disclosure
pursuant to the related Servicing Agreements, any custodial agreement or any
other applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 10-D, where such failure results from the
Master Servicer's or the Securities Administrator's inability or failure to
receive, on a timely basis, any information from any other party hereto or any
Servicer, Custodian or Servicing Function Participant needed to prepare, arrange
for execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
(c) On or prior to the 90th day after the end of each fiscal year of the
Trust or such earlier date as may be required by the Exchange Act (the "10-K
Filing Deadline") (it being understood that the fiscal year for the Trust ends
on December 31st of each year), commencing in March 2008, the Securities
Administrator shall prepare and file on behalf of the Trust a Form 10-K, in form
and substance as required by the Exchange Act. Each such Form 10-K shall include
the following items, in each case to the extent they have been delivered to the
Securities Administrator within the applicable time frames set forth in this
Agreement and the related Servicing Agreements:
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(i) a Compliance Statement for each Servicer, the Master Servicer and
the Securities Administrator (each such party, together with the Custodian,
a "Reporting Servicer") as described under Section 3.20;
(ii) (A) the Assessment of Compliance for each Reporting Servicer, as
described under Section 3.21(a) and (c), and (B) if each Reporting
Servicer's Assessment of Compliance identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
each Reporting Servicer's Assessment of Compliance is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an explanation why such report is not included; provided, however, that the
Securities Administrator, at its discretion, may omit from the Form 10-K
any Assessment of Compliance described in this clause (ii) or Attestation
Report described in clause (iii) below that is not required to be filed
with such Form 10-K pursuant to Regulation AB;
(iii) (A) the Attestation Report for each Reporting Servicer, as
described under Section 3.21(b) and (c), and (B) if any Reporting
Servicer's Attestation Report identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
any Reporting Servicer's Attestation Report is not included as an exhibit
to such Form 10-K, disclosure that such Attestation Report is not included
and an explanation why such Attestation Report is not included; and
(iv) a Xxxxxxxx-Xxxxx Certification, as described in Section 3.22(e).
Any disclosure or information in addition to (i) through (iv) above that is
required to be included on Form 10-K ("Additional Form 10-K Disclosure") shall
be reported by the parties set forth on Exhibit P to the Depositor and the
Securities Administrator and directed and approved by the Depositor pursuant to
the following paragraph, and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-K Disclosure, except as set forth in this Section 3.22(d).
As set forth on Exhibit P hereto, no later than March 1 of each year that
the Trust is subject to the Exchange Act reporting requirements, commencing in
2008, (i) the parties described in Exhibit P shall be required to provide to the
Securities Administrator (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx with a copy by
facsimile to 000-000-0000) and the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible format, or in such other format
as otherwise agreed upon by the Securities Administrator and such party, any
Additional Form 10-K Disclosure, together with an Additional Disclosure
Notification in the form attached hereto as Exhibit S and (ii) the Depositor
shall approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Securities
Administrator shall compile all such information provided to it in a Form 10-K
prepared by it. The Securities Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit P of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-K Disclosure information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
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After preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Master Servicer and Depositor for
review. Within three Business Days after receipt of such copy, the Depositor
shall notify the Securities Administrator in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-K. A senior
officer of the Master Servicer in charge of the master servicing function shall
sign the Form 10-K. If a Form 10-K cannot be filed on time or if a previously
filed Form 10-K needs to be amended, the Securities Administrator will follow
the procedures set forth in Section 3.22(h)(ii). Form 10-K requires the
registrant to indicate (by checking "yes" or "no") that it "(1) has filed all
reports required to be filed by Section 13 or 15(d) of the Exchange Act during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days." The Depositor hereby represents to the
Securities Administrator that the Depositor has filed all such required reports
during the preceding 12 months and that is has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Securities
Administrator in writing, no later than March 15th with respect to the filing of
a report on Form 10-K, if the answer to either question should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report. Promptly (but no later than
1 Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-K prepared and filed by the Securities Administrator. The signing party at
the Master Servicer can be contacted at the address specified in Section 11.05.
The parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of its duties under this Section
3.22(c) related to the timely preparation, arrangement for execution and filing
of Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 3.22(c), Section
3.22(e), Section 3.20 and Section 3.21 and is also contingent upon the
Servicers, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Securities
Administrator of any necessary Additional Form 10-K Disclosure, any Compliance
Statement and any Assessment of Compliance and Attestation Report pursuant to
the related Servicing Agreements, any custodial agreement or any other
applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 10-K, where such failure results from the
Securities Administrator's inability or failure to receive, on a timely basis,
any information from any other party hereto or any Servicer or Servicing
Function Participant needed to prepare, arrange for execution or file such Form
10-K, not resulting from its own negligence, bad faith or willful misconduct.
(d) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Securities Administrator shall prepare and file
on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided
that the Depositor shall file the initial Form 8-Ks in connection with the
issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K other
than the initial Form 8-Ks filed in connection with the issuance of the
Certificates ("Form 8-K Disclosure Information") shall be reported by the
parties set forth on Exhibit Q hereto to the Depositor and the Securities
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Administrator and directed and approved by the Depositor pursuant to the
following paragraph, and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
8-K Disclosure Information, or any Form 8-K, except as set forth in this Section
3.22(d).
As set forth on Exhibit Q hereto, no later than the end of business on the
2nd Business Day after the occurrence of a Reportable Event (i) the parties
described in Exhibit Q shall be required to provide to the Securities
Administrator (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx with a copy by facsimile
to 000-000-0000) and to the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible format, or in such other format as
otherwise agreed upon by the Securities Administrator and such party, any Form
8-K Disclosure Information, if applicable, together with an Additional
Disclosure Notification in the form attached hereto as Exhibit S and (ii) the
Depositor shall approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Form 8-K Disclosure Information. The Securities
Administrator shall compile all such information provided to it in a Form 8-K
prepared by it. The Securities Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit Q of their
duties under this paragraph or proactively solicit or procure from such parties
any Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Master Servicer and Depositor for
review. No later than the close of business New York City time on the 3rd
Business Day after the Reportable Event, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically) of
any changes to or approval of such Form 8-K. In the absence of receipt of any
written changes or approval, the Securities Administrator shall be entitled to
assume that such Form 8-K is in final form and the Securities Administrator may
proceed with the execution and filing of the Form 8-K. A duly authorized officer
of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on
time or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 3.22(h)(ii).
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Securities Administrator will, make available on its internet website a
final executed copy of each Form 8-K prepared and filed by the Securities
Administrator. The signing party at the Master Servicer can be contacted at the
address specified in Section 11.05. The parties to this Agreement acknowledge
that the performance by the Securities Administrator of its duties under this
Section 3.22(d) related to the timely preparation, arrangement for execution and
filing of Form 8-K is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Section
3.22(d) and also contingent upon the Servicers, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those set forth
in this paragraph that are applicable to the parties to this Agreement in the
delivery to the Securities Administrator of any necessary Form 8-K Disclosure
Information pursuant to the related Servicing Agreements, any custodial
agreement or any other applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, arrange
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for execution and/or timely file such Form 8-K, where such failure results from
the Securities Administrator's inability or failure to receive, on a timely
basis, any information from any other party hereto or any Servicer, Custodian or
Servicing Function Participant needed to prepare, arrange for execution or file
such Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(e) Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit M attached hereto, required to
be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Securities
Administrator (if the Securities Administrator is not the same entity as the
Master Servicer) shall provide, and shall cause any Servicing Function
Participant engaged by it to provide, to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the "Certifying Person"), by March 10th of each year in which the
Trust is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, together
with such similar certification delivered by each Servicer as described in
Section 3.22(f), a "Back-up Certification"), in the form attached hereto as
Exhibit R, upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of the
Trust. Such officer of the Certifying Person can be contacted by email at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx. In the event the Master Servicer, the
Securities Administrator or any Servicing Function Participant engaged by such
parties is terminated or resigns pursuant to the terms of this Agreement, or any
applicable sub-servicing agreement, as the case may be, such party shall provide
a Back-up Certification to the Certifying Person pursuant to this Section
3.22(e) with respect to the period of time it was subject to this Agreement or
any applicable sub-servicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall not be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Xxxxxxxx-Xxxxx Certification in the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this Section or any Servicing Agreement or Custodial
Agreement.
(f) Pursuant to the related Servicing Agreements, the Master Servicer shall
enforce the obligation of each Servicer to provide the Back-up Certification
required pursuant to each of the Servicing Agreements.
(g) Upon any filing with the Commission prepared and filed by the
Securities Administrator, the Securities Administrator shall make available to
the Depositor a copy of any such executed report, statement or information.
(h) (i) The obligations set forth in paragraphs (a) through (h) of this
Section shall only apply with respect to periods for which reports are required
to be filed with respect to the Trust under the Exchange Act. On or prior to
January 30 of the first year in which the Securities Administrator is able to do
so under applicable law, unless otherwise requested by the Depositor, the
Securities Administrator shall prepare and file with the Commission a Form 15
Suspension Notification executed by the Master Servicer with respect to the
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Trust, with a copy to the Depositor. At the beginning of the calendar year after
the filing of a Form 15 Suspension Notification, if the Depositor or the
Certificate Registrar determines that the number of Certificateholders of the
Offered Certificates of record exceeds the number set forth in Section 15(d) of
the Exchange Act or the regulations promulgated pursuant thereto which would
cause the Trust to again become subject to the reporting requirements of the
Exchange Act, it shall promptly notify the Securities Administrator and the
Securities Administrator shall recommence preparing and filing reports on Form
8-K, Form 10-D and Form 10-K as required pursuant to this Section and the
then-current reporting requirements of the Exchange Act and the parties hereto
will again have the obligations set forth in paragraphs (a) through (h) of this
Section.
(ii) In the event that the Securities Administrator is unable to
timely file with the Commission all or any required portion of any Form
8-K, Form 10-D or Form 10-K required to be filed by this Agreement because
required disclosure information was either not delivered to it or delivered
to it after the delivery deadlines set forth in this Agreement or for any
other reason, the Securities Administrator will immediately electronically
notify the Depositor and the Master Servicer of such inability to make a
timely filing with the Commission. In the case of Form 10-D and Form 10-K,
the Securities Administrator, the Master Servicer, the Trustee and the
Depositor will cooperate to prepare and file a Form 12b-25 and a Form
10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Securities Administrator will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed
Form 8-K, Form 10-D or Form 10-K needs to be amended in connection with any
Additional Form 10-D Disclosure (other than, in the case of Form 10-D, for
the purpose of restating any Monthly Statement), Additional Form 10-K
Disclosure or Form 8-K Disclosure Information, the Securities Administrator
will notify the Depositor within one calendar day of discovery and such
other parties to the transaction as are affected by such amendment, and
such parties will cooperate to prepare any necessary Form 8-K/A, Form
10-D/A or Form 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form
8-K or Form 10-D shall be signed by a duly authorized officer (and a senior
officer with respect to the Form 10-K) of the Master Servicer. The parties
to this Agreement acknowledge that the performance by the Master Servicer
and the Securities Administrator of their duties under this Section 3.22(h)
related to the timely preparation, arrangement for execution and filing of
Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K
is contingent upon each such party performing its duties under this Section
3.22(h). Neither the Master Servicer nor the Securities Administrator shall
have any liability for any loss, expense, damage, claim arising out of or
with respect to any failure to properly prepare, arrange for execution
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms
8-K, Form 10-D or Form 10-K, where such failure results from the Securities
Administrator's inability or failure to receive, on a timely basis, any
information from any other party hereto or any Servicer, the Custodian or
any Servicing Function Participant needed to prepare, arrange for execution
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or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, Form 10-D
or Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
(i) Notwithstanding the provision of Section 11.01, this Section 3.22 may
be amended without the consent of the Certificateholders.
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate.
Each month, not later than 12:00 noon Eastern time on the 18th calendar day
of such month (or if such day is not a Business Day, the following Business
Day), the Master Servicer shall deliver to the Securities Administrator, a
Master Servicer's Certificate based solely on the information provided by the
Servicers (in substance and format mutually acceptable to the Master Servicer
and the Securities Administrator) certified by a Master Servicing Officer
setting forth the information necessary in order for the Securities
Administrator to perform its obligations under this Agreement. The Securities
Administrator may conclusively rely upon the information contained in a Master
Servicer's Certificate delivered by the Master Servicer for all purposes
hereunder and shall have no duty to verify or re-compute any of the information
contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;REMIC ADMINISTRATION
Section 5.01 Distributions.
On each Distribution Date, based solely on the information in the Master
Servicer's Certificate, the Securities Administrator shall distribute or be
deemed to distribute out of the Certificate Account, the Exchangeable
Certificates Grantor Trust Account, the Lower-Tier II Certificate Sub-Account,
the Upper-Tier II Certificate Sub-Account, the Shifting Interest Lower-Tier
Certificate Sub-Account, the Shifting Interest Middle-Tier Certificate
Sub-Account or the Shifting Interest Upper-Tier Certificate Sub-Account, as
applicable (to the extent funds are available therein), to each
Certificateholder of record on the related Record Date (other than as provided
in Section 10.01 respecting the final distribution) (a) by check mailed to such
Certificateholder entitled to receive a distribution on such Distribution Date
at the address appearing in the Certificate Register, or (b) upon written
request by the Holder of a Certificate (other than a Residual Certificate), by
wire transfer or by such other means of payment as such Certificateholder and
the Securities Administrator shall agree upon, such Certificateholder's
Percentage Interest in the amount to which the related Class of Certificates is
entitled in accordance with the priorities set forth below in Section 5.02 or
5.03, as applicable.
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None of the Holders of any Class of Certificates, the Depositor, the Master
Servicer, the Securities Administrator or the Trustee shall in any way be
responsible or liable to Holders of any Class of Certificates in respect of
amounts properly previously distributed on any such Class.
Amounts distributed with respect to any Class of Certificates shall be
applied first to the distribution of interest thereon and then to principal
thereon.
Section 5.02 Priorities of Distributions on the Shifting Interest
Certificates.
(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 Master Servicer, the
Securities Administrator and the Trustee pursuant to Section 3.09(e) and (f) and
Section 3.11 and shall pay such funds to itself, the Master Servicer and the
Trustee, as applicable, and (2) based solely on the information contained in the
Master Servicer's Certificate, the Pool Distribution Amount (after the payment
of the Servicing Fees for such Mortgage Loans and expenses and indemnities
reimbursable pursuant to this Agreement, in each case to the extent not
previously retained by or distributed to a Servicer, the Securities
Administrator, the Master Servicer or the Trustee) for each Shifting Interest
Loan Group, and shall apply such funds, first, to distributions in respect of
the Uncertificated Shifting Interest Lower-Tier Interests, and then to the
Uncertificated Shifting Interests Middle-Tier Interests as specified in this
Section 5.02(a) and then to distributions on the Shifting Interest Certificates
in the following order of priority and to the extent of such funds, paying the
Senior Certificates of each Shifting Interest Group solely from the Pool
Distribution Amount for the Related Loan Group and paying the Class X-B
Certificates from the Pool Distribution Amounts for the Shifting Interest Loan
Groups, 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 such Group, in an aggregate amount
up to the applicable Shifting Interest Senior Principal Distribution Amount
for the Related Loan Group, such distribution to be allocated among such
Classes in accordance with Section 5.02(b);
(iii) to each Class of Class X-B Certificates, subject to paragraph
(d) below, in the following order of priority:
(A) to the Class X-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 X-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;
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(C) to the Class X-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 X-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 X-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 X-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 X-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 X-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 X-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 X-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 X-B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(L) to the Class X-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 2-A-R Certificate (in respect of the
Class SI-UR Interest, the Class SI-MR Interest or the Class SI-LR Interest,
as applicable), any amounts remaining in the Shifting Interest Upper-Tier
Certificate Sub-Account, the Shifting Interest Middle-Tier Certificate
Sub-Account and the Shifting Interest Lower-Tier Certificate Sub-Account
and any remaining Pool Distribution Amounts.
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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 received with respect to each Shifting Interest Loan
Group sequentially to each related Class of Shifting Interest Certificates then
outstanding which bore the loss to which such Reimbursement Amount relates,
beginning with the most senior of such Classes of Certificates, up to, with
respect to each Class, the amount of loss borne by such Class. Any Reimbursement
Amount remaining after the application described in the preceding sentence shall
be included in the Pool Distribution Amount for the applicable Loan Group.
Distributions on the Uncertificated Shifting Interest Lower-Tier Interests.
On each Distribution Date, Uncertificated Accrued Interest shall be deemed
distributed in respect of the Uncertificated Shifting Interest Lower-Tier
Interests at the Uncertificated Shifting Interest Lower-Tier REMIC Pass-Through
Rate thereon, plus any amounts in respect thereof remaining unpaid from previous
Distribution Dates. For purposes of calculating the Uncertificated Accrued
Interest distributable in respect of each Uncertificated Shifting Interest
Lower-Tier Interest and any Distribution Date, Non-Supported Interest Shortfalls
and Relief Act Reductions shall be allocated to each Uncertificated Shifting
Interest Lower-Tier Interest in the same relative proportions as interest is
allocated to such Uncertificated Shifting Interest Lower-Tier Interest. Any
Non-Supported Interest Shortfalls and Relief Act Reductions allocated to the
Uncertificated Shifting Interest Lower-Tier Interests pursuant to this paragraph
shall be (a) from Non-Supported Interest Shortfalls and Relief Act Reductions
allocated to Loan Group 2 in the case of Uncertificated Shifting Interest
Lower-Tier Interests beginning with the numeral "2" and (b) from Non-Supported
Interest Shortfalls and Relief Act Reductions allocated to Loan Group 3 in the
case of Uncertificated Shifting Interest Lower-Tier Interests beginning with the
numeral "3."
All distributions of principal shall be made first to the Class 2-LS
Interest and the Class 3-LS Interest so as to keep the Uncertificated Balances
thereof (computed to eight decimal places) equal to 0.100% of the Group
Subordinate Amount for Loan Group 2 and Loan Group 3, respectively (except that
if any such amount is greater than on the preceding Distribution Date, the least
amount of principal shall be distributed to the Class 2-LS Interest and the
Class 3-LS Interest such that the Subordinate Balance Ratio is maintained), and
second, any remaining principal to the Class 2-L Interest and the Class 3-L
Interest. Any distributions of principal made to the Uncertificated Shifting
Interest Lower-Tier Interests pursuant to this paragraph shall be made from the
Group 2 Mortgage Loans to the Uncertificated Shifting Interest Lower-Tier
Interests beginning with the numeral "2," from the Group 3 Mortgage Loans to the
Uncertificated Shifting Interest Loan Group Lower-Tier Interests beginning with
the numeral "3."
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Realized Losses with respect to the Shifting Interest Loan Groups shall be
applied after all distributions have been made on each Distribution Date first,
to the Class 2-LS Interest and the Class 3-LS Interest so as to keep the
Uncertificated Balances thereof (computed to eight decimal places) equal to
0.100% of the Group Subordinate Amount for Loan Group 2 and Loan Group 3,
respectively (except that if any such amount is greater than on the preceding
Distribution Date, the least amount of Realized Losses shall be allocated to the
Class 2-LS Interest and the Class 3-LS Interest such that the Subordinate
Balance Ratio is maintained); and second, the remaining Realized Losses shall be
allocated to the Class 2-L Interest and the Class 3-L Interest. Any Realized
Losses allocated to the Uncertificated Shifting Interest Lower-Tier Interests
pursuant to this paragraph shall be (a) from Realized Losses allocated to Loan
Group 2 in the case of Uncertificated Shifting Interest Lower-Tier Interests
beginning with the numeral "2" and (b) from Realized Losses allocated to Loan
Group 3 in the case of Uncertificated Shifting Interest Lower-Tier Interests
beginning with the numeral "3."
Recoveries and Reimbursement Amounts received with respect to the Shifting
Interest Loan Groups shall be applied to the Uncertificated Shifting Interest
Lower-Tier Interests in a manner analogous to the application of Realized Losses
to the Uncertificated Shifting Interest Lower-Tier Interests.
As of any date, the aggregate Uncertificated Balance of the Class 2-L
Interest and the Class 2-LS Interest shall equal the aggregate Pool Principal
Balance of Loan Group 2. As of any date, the aggregate Uncertificated Balance of
the Class 3-L Interest and the Class 3-LS Interest shall equal the aggregate
Pool Principal Balance of Loan Group 3.
Amounts distributed to the Uncertificated Shifting Interest Lower-Tier
Interests in respect of principal and interest with respect to any Distribution
Date are referred to herein collectively as the "Shifting Interest Lower-Tier
Distribution Amount."
Distributions on the Uncertificated Shifting Interest Middle-Tier
Interests. On each Distribution Date, each Uncertificated Shifting Interest
Middle-Tier Interest shall receive distributions in respect of principal in an
amount equal to the amount of principal distributed to its respective
Corresponding Class or Classes of Shifting Interest Certificates as provided
herein and shall have its principal balance increased in the event of Recoveries
in an amount equal to any such increase in the Class Certificate Balance of the
respective Corresponding Class or Classes of Shifting Interest Certificates. On
each Distribution Date, each Uncertificated Shifting Interest Middle-Tier
Interest shall receive distributions in respect of interest based on its
Uncertificated Shifting Interest Middle-Tier REMIC Pass-Through Rate based on
its Uncertificated Balance in an amount equal to the Uncertificated Accrued
Interest of such class, and any amounts undistributed from prior Distribution
Dates, which such amount shall equal the Interest Distribution Amount in respect
of its Corresponding Class or Classes of Shifting Interest Certificates, in each
case to the extent actually distributed thereon. Such amounts distributed to the
Uncertificated Shifting Interest Middle-Tier Interests in respect of principal
and interest with respect to any Distribution Date are referred to herein
collectively as the "Shifting Interest Middle-Tier Distribution Amount."
As of any date, the Uncertificated Balance of each Uncertificated Shifting
Interest Middle-Tier Interest equals the aggregate of the Class Certificate
Balances of the respective Corresponding Class or Classes of Shifting Interest
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Certificates. The initial Uncertificated Balance of each Uncertificated Shifting
Interest Middle-Tier Interest equals the aggregate of the Initial Class
Certificate Balances of the respective Corresponding Class or Classes of
Shifting Interest Certificates.
Distributions on the Shifting Interest Upper-Tier Interests. Each Shifting
Interest Upper-Tier Regular Interest will be entitled to receive interest and
principal payments at the times and in the amounts equal to those made on the
Certificate to which it corresponds.
(b) (i) With respect to the Group 2 Senior Certificates:
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,
sequentially, as follows:
first, to the Class 2-A-R Certificate, until its Class Certificate
Balance has been reduced to zero; and
second, to the Class 2-A-1 Certificates, until their Class Certificate
Balance has been reduced to zero;
(ii) With respect to the Group 3 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support Depletion
Date, the amount distributable to the Group 3 Senior Certificates (other
than the Exchangeable Certificates) pursuant to Section 5.02(a)(ii) for
such Distribution Date, will be distributed, concurrently, as follows:
(A) 96.1262681630%, concurrently, as follows:
(0) 00.0000000000% to the Class 3-A-1 Certificates, until
its Class Certificate Balance has been reduced to zero; and
(0) 00.0000000000% to the Class 3-A-2 and Class 3-A-3
Certificates, in that order, until their Calculation Balances
have been reduced to zero;
(B) 3.8737318370% to the Class 3-A-4 Certificates, until its
Class Certificate Balance has been reduced to zero.
(iii) 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 each
Shifting Interest Loan Group available to be distributed as principal of
the Senior Certificates of the Related Group shall be distributed,
concurrently, as principal of such Classes of Senior Certificates (other
than the Exchangeable Certificates), pro rata, on the basis of their
respective Class Certificate Balances (or, in the case of a Class of
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Exchangeable REMIC Certificates, its Calculation Balance) immediately prior
to that Distribution Date, until the Class Certificate Balances or
Calculation Balances thereof are reduced to zero.
(iv) Notwithstanding the foregoing, on each Distribution Date prior to
the Senior Credit Support Depletion Date but on or after the date on which
the Class Certificate Balances of the Senior Shifting Interest Certificates
of a Shifting Interest Group have been reduced to zero, amounts otherwise
distributable from the amounts described in clauses 1(e) and (f) of the
definition of "Principal Amount" for such Distribution Date with respect to
the Related Loan Group on the Class X-B Certificates will be paid as
principal to the remaining classes of Senior Shifting Interest Certificates
of the other Shifting Interest Group together with the applicable Shifting
Interest Senior Principal Distribution Amount in accordance with the
priorities set forth for such Shifting Interest Group in clause (i) or (ii)
above, provided that on such Distribution Date either (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 the Shifting Interest Mortgage Loans in the Shifting Interest
Loan Groups (including, for this purpose, any such Shifting Interest
Mortgage Loan in foreclosure or any related REO Property and any such
Shifting Interest Mortgage Loans for which the mortgagor has filed for
bankruptcy) delinquent sixty (60) days or more (averaged over the preceding
six month period), as a percentage of the aggregate Class Certificate
Balance of the Class X-B Certificates is greater than or equal to 50%.
In addition, after giving effect to the preceding paragraph, if on any
Distribution Date the aggregate Class Certificate Balance of the Senior
Shifting Interest Certificates of a Shifting Interest Group is greater than
the Adjusted Pool Amount of the Related Loan Group (any such Shifting
Interest Group, an "Undercollateralized Group" and any such excess, an
"Undercollateralized Amount"), all amounts otherwise distributable as
principal on the Class X-B Certificates pursuant to Sections
5.02(a)(iii)(L), (J), (H), (F), (D) and (B) in that order, will be paid as
principal to the Senior Shifting Interest Certificates of such
Undercollateralized Group together with the applicable Shifting Interest
Senior Principal Distribution Amount in accordance with the priorities set
forth for the applicable Shifting Interest Group above under (i) or (ii)
until the aggregate Class Certificate Balance of the Senior Shifting
Interest Certificates of such Undercollateralized Group equals the Adjusted
Pool Amount of the Related Shifting Interest Loan Group. Also, the amount
of any Class Unpaid Interest Shortfalls with respect to an
Undercollateralized Group (including any Class Unpaid Interest Shortfalls
for such Distribution Date) will be paid to such Undercollateralized Group
prior to the payment of any Undercollateralized Amount from amounts
otherwise distributable as principal on the Class X-B Certificates pursuant
to Sections 5.02(a)(iii)(L), (J), (H), (F), (D) and (B), in that order;
such amount will be paid to the Senior Certificates of such
Undercollateralized Group up to their Interest Distribution Amounts for
such Distribution Date.
(v) On each Distribution Date, the amount distributable as principal
to the Class of Exchangeable Certificates shall equal its Class Principal
Distribution Amount. Such amount shall reduce proportionately the amount
distributable as principal to the Classes of Exchangeable REMIC
Certificates.
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(c) On each Distribution Date, Shifting Interest Accrued Certificate
Interest for each Class of Shifting Interest 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 an amount equal to the
sum of (A) Non-Supported Interest Shortfalls on the Shifting Interest Mortgage
Loans, (B) on and after the Senior Credit Support Depletion Date, any other
Realized Losses on the Mortgage Loans in the Related Loan Group allocable to
interest and (C) Relief Act Reductions incurred on the Shifting Interest
Mortgage Loans with respect to such Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iii), if with respect to any Class of Class X-B on any Distribution
Date, (i) the aggregate of the Class Certificate Balances immediately prior to
such Distribution Date of all Classes of Class X-B which have a higher numerical
Class designation than such Class, divided by (ii) the aggregate Pool Principal
Balance for the Shifting Interest Loan Groups immediately prior to such
Distribution Date (for each Class, the "Fractional Interest") is less than the
Original Fractional Interest for such Class, no distribution of principal in
respect of clause (ii) of the Subordinate Principal Distribution Amounts will be
made to any Classes of Class X-B which have a higher numerical Class designation
than such Class (the "Restricted Classes") and the Class Certificate Balances of
the Restricted Classes of Class X-B will not be used in determining the Pro Rata
Share for the Class X-B Certificates that are not Restricted Classes. If the
aggregate Class Certificate Balances of the Class X-B Certificates that are not
Restricted Classes are reduced to zero, notwithstanding the previous sentence,
any funds remaining will be distributed sequentially to the Class X-B
Certificates that are Restricted Classes in order of their respective numerical
Class designations (beginning with the Class of Class X-B Certificates that is a
Restricted Class then outstanding with the lowest numerical Class designation).
Section 5.03 Priorities of Distributions on the Overcollateralized
Certificates.
(a) Distributions of Available Funds with Respect to the Overcollateralized
Certificates
On each Distribution Date, the Securities Administrator shall withdraw from
the Certificate Account (to the extent funds are available therein) the
Available Funds and apply such amounts in the following order of priority and to
the extent of such funds:
first, concurrently, to the Senior Overcollateralized Certificates, pro
rata, the Accrued Certificate Interest thereon for such Distribution Date;
second, concurrently, to the Senior Overcollateralized Certificates, pro
rata, the Interest Carryforward Amount thereon for such Distribution Date;
third, sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that order, the
Accrued Certificate Interest thereon for such Distribution Date;
fourth, up to the Senior Principal Distribution Amount, concurrently, as
follows:
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(i) 90.0000174776%, concurrently, as follows:
(A) 46.4486498558% to the Class 1-A-1 Certificates, until the
Class Certificate Balance thereof has been reduced to zero; and
(B) 53.5513501442%, sequentially, to the Class 1-A-3, Class 1-A-4
and Class 1-A-5 Certificates, in that order, until the Class
Certificate Balances thereof have been reduced to zero; and
(ii) 9.0000000000% to the Class 1-A-2 Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
fifth, either:
(i) with respect to each Distribution Date (a) before the Stepdown
Date or (b) as to which a Trigger Event is in effect, sequentially, to the
Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7
and Class M-8 Certificates, in that order, up to the Principal Distribution
Amount, until the Class Certificate Balances thereof have been reduced to
zero; or
(ii) with respect to each Distribution Date (a) on or after the
Stepdown Date and (b) as long as a Trigger Event is not in effect,
sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7 and Class M-8 Certificates, in that order, up to the
respective Mezzanine Principal Distribution Amount for each such class,
until the Class Certificate Balances thereof have been reduced to zero;
sixth, sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that order, the
Interest Carryforward Amount thereon for such Distribution Date;
seventh, first, concurrently, to the Senior Overcollateralized
Certificates, based on Unpaid Realized Loss Amounts, and then sequentially, to
the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7
and Class M-8 Certificates, in that order, any Realized Loss Amortization
Amounts for such Classes for such Distribution Date;
eighth, from amounts otherwise distributable to the Class CE Certificates,
to the Rate Cap Carryover Reserve Account to pay Rate Cap Carryover Amounts
first, concurrently, to the Class Senior Overcollateralized Certificates, based
on Rate Cap Carryover Amounts for each such Class, and then sequentially, to the
Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and
Class M-8 Certificates, in that order, any Rate Cap Carryover Amounts for such
Classes;
ninth, from amounts otherwise distributable to the Class CE Certificates,
to the Supplemental Interest Trust to fund any Defaulted Swap Termination
Payments; and
tenth, to the Class CE Certificates, up to the Class CE Distributable
Amount.
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(b) On each Distribution Date, there shall be distributed to the Holder of
the Class 2-A-R Certificate (in respect of the Class II-UR Interest), any
amounts remaining in the Certificate Account in respect of OC Loan Group on such
date after the application pursuant to Sections 5.03(a).
(c) On each Distribution Date, after the Securities Administrator makes the
distributions of the Available Funds and amounts on deposit in the Rate Cap
Carryover Reserve Account as set forth above, the Supplemental Interest Trust
Trustee shall distribute the amount on deposit in the Swap Account in the
following order of priority:
first, to the Swap Provider, any Net Swap Payment owed to the Swap Provider
pursuant to the Interest Rate Swap Agreement for such Distribution Date;
second, to the Swap Provider, any Swap Termination Payment, other than a
Defaulted Swap Termination Payment, pursuant to the Interest Rate Swap
Agreement;
third, concurrently, to the Senior Overcollateralized Certificates, the
related Accrued Certificate Interest and Interest Carryforward Amount remaining
undistributed after the distribution of Available Funds, based on unpaid Accrued
Certificate Interest and remaining Interest Carryforward Amounts;
fourth, sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that order, the
related Accrued Certificate Interest and Interest Carry Forward Amount remaining
undistributed after the distributions of the Available Funds;
fifth, to the holders of the Class or Classes of Overcollateralized
Certificates then entitled to receive distributions in respect of principal, in
accordance with Section 5.03(a) priorities fourth and fifth, in an amount
necessary to maintain the applicable Targeted Overcollateralization Amount;
sixth, first, concurrently, to the Senior Overcollateralized Certificates,
based on Unpaid Realized Loss Amounts, and then sequentially, to the Class X-0,
Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, to the extent of any remaining related Unpaid
Realized Loss Amounts for each such Class;
seventh, concurrently, to the Senior Overcollateralized Certificates, the
related Rate Cap Carryover Amounts, to the extent remaining undistributed after
distributions are made from the Rate Cap Carryover Reserve Account pursuant to
Section 5.03(a) priority eighth, based on such respective remaining Rate Cap
Carryover Amounts;
eighth, sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that order, the
related Rate Cap Carryover Amounts, to the extent remaining undistributed after
distributions are made from the Rate Cap Carryover Reserve Account pursuant to
Section 5.03(a) priority eighth;
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ninth, to the Swap Provider, any Defaulted Swap Termination Payment, to the
extent not already paid; and
tenth, to the Class CE Certificates, any remaining amounts.
Amounts distributed in respect of priorities fifth and sixth above,
together with any amounts distributed in respect of priorities fifth and sixth
above on previous Distribution Dates, shall not exceed the aggregate of current
or prior Realized Losses on the OC Mortgage Loans not previously reimbursed by
Recoveries on the OC Mortgage Loans or the Monthly Excess Cashflow Amount.
(d) On each Distribution Date, Unpaid Realized Loss Amounts on the Offered
Overcollateralized Certificates will be reduced by the amount of any Recoveries
relating to the OC Mortgage Loans received during the related Prepayment Period
in the same order as Realized Loss Amortization Amounts are paid to the Offered
Overcollateralized Certificates pursuant to Section 5.03(a) above.
(e) Any amounts distributed to the Senior Overcollateralized Certificates
and Mezzanine Certificates in respect of interest pursuant to Section 5.03(a)
priority eighth which constitute Rate Cap Carryover Amounts shall first be
deemed distributed by the Upper-Tier II REMIC as a distribution with respect to
the Class CE Upper-Tier II Regular Interest, and then distributed to the Senior
Overcollateralized Certificates and Mezzanine Certificates as payments on
notional principal contracts in the nature of cap contracts. Any remaining
amount with respect to the Class CE Certificates shall be treated as having been
distributed to the Holders of the Class CE Certificates. Any amounts distributed
to the Senior Overcollateralized Certificates and Mezzanine Certificates
pursuant to Section 5.03(c) priority eighth which constitute Rate Cap Carryover
Amounts shall be deemed to be payments on notional principal contracts in the
nature of cap contracts.
(f) Distributions on the Uncertificated Lower-Tier II Interests. On each
Distribution Date, the Securities Administrator shall be deemed to cause in the
following order of priority, the following amounts to be distributed to the
Upper-Tier II REMIC on account of the Uncertificated Lower-Tier II Regular
Interests (such amount, the "Lower-Tier II Distribution Amount") or withdrawn
from the Certificate Account and distributed to the Holder of the Class 2-A-R
Certificate (in respect of the Class II-LR Interest), as the case may be:
(i) concurrently, to
(A) each of the Class X Lower-Tier II REMIC Interests whose
related Class X Lower-Tier II REMIC Target Principal Balance (as
calculated for the Distribution Date), is exceeded by the
Uncertificated Balance of such Class X Lower-Tier II REMIC Interest
for the prior Distribution Date, until the Uncertificated Balance of
such Class X Lower-Tier II REMIC Interest is equal to the related
Class X Lower-Tier II REMIC Target Principal Balance (as calculated
for the Distribution Date), and
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(B) each of the Class Y Lower-Tier II REMIC Interests whose
related Class Y Lower-Tier II REMIC Target Principal Balance (as
calculated for the Distribution Date), is exceeded by the
Uncertificated Balance of such Class Y Lower-Tier II REMIC Interest
for the prior Distribution Date, until the Uncertificated Balance of
such Class Y Lower-Tier II REMIC Interest is equal to the related
Class Y Lower-Tier II REMIC Target Principal Balance (as calculated
for the Distribution Date)
(ii) to the extent of amounts remaining after the distributions made
pursuant to clause (i) above, to Holders of the Uncertificated Lower-Tier
II Regular Interests, pro rata, in an amount equal to (A) Uncertificated
Accrued Interest for such Uncertificated Lower-Tier II Regular Interest for
such Distribution Date, plus (B) any amounts payable in respect thereof
remaining unpaid from previous Distribution Dates;
(iii) to the extent of amounts remaining after the distributions made
pursuant to clause (i) and (ii) above, to the Holders of the Uncertificated
Lower-Tier II Regular Interests, pro rata, based on their Uncertificated
Balances following the allocations made pursuant to clause (i) and (ii)
above until the Uncertificated Balance of each such Uncertificated
Lower-Tier II Regular Interest is reduced to zero; and
(iv) any remaining amount to the Holder of the Class 2-A-R Certificate
(in respect of the Class II-LR Interest).
(g) Distributions on the Upper-Tier II Interests. On each Distribution
Date, 100% of the amounts deemed distributed by the Lower-Tier II REMIC to the
Upper-Tier II REMIC shall be deemed distributed with respect to Upper-Tier II
Interests so as to (i) pay the Uncertificated Accrued Interest on such
Upper-Tier II Interest plus any amounts in respect thereof remaining unpaid from
previous Distribution Dates and (ii) reduce the Uncertificated Balance of each
such Upper-Tier II Interest to the extent necessary so that it equals the Class
Certificate Balance or Notional Amount of the Corresponding Class of
Certificates. Any remaining amounts will be deemed distributed with respect to
the Class II-UR Interest.
(h) Allocation of Losses on the Uncertificated Lower-Tier II Interests and
the Upper-Tier II Interests.
(i) The Securities Administrator shall be deemed to cause the
following allocation of losses:
(a) For purposes of calculating the amount of Uncertificated
Accrued Interest for the Uncertificated Lower-Tier II Interests, the
aggregate amount of any Relief Act Reductions shall be allocated to
the Uncertificated Lower-Tier II Interests pro rata based on, and to
the extent of, one month's interest at the then applicable respective
Uncertificated Lower-Tier II REMIC Pass-Through Rates on the
respective Uncertificated Balances of each such Uncertificated
Lower-Tier II Interest.
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(b) The aggregate amount of any Relief Act Reductions incurred in
respect of the OC Mortgage Loans for any Distribution Date shall be
allocated to the Upper-Tier II Interests in the same manner and
priority as such amounts are allocated to the corresponding Class of
Certificates for such Distribution Date.
(ii) (a) All Realized Losses on the OC Mortgage Loans shall be
allocated on each Distribution Date to the Uncertificated Lower-Tier II
Interests in the same order of priority as principal is allocated to the
Uncertificated Lower-Tier II Interests pursuant to Section 5.03(f) above.
(b) All Realized Losses on the OC Mortgage Loans shall be
allocated by the Securities Administrator on each Distribution Date to
the Upper-Tier II Interests such that the Uncertificated Balance of
each such Upper-Tier II Interest equals the Class Certificate Balance
of the corresponding Class of Certificates.
(i) Notwithstanding anything to the contrary contained herein, the above
distributions in Sections 5.03(e) through (h) (other than on the Certificates)
are deemed distributions, and distributions of funds from the Certificate
Account shall be made only in accordance with Sections 5.03(a) through (d)
hereof.
Section 5.04 Allocation of Losses.
(a) No later than five (5) Business Days prior to the related Distribution
Date, the Master Servicer shall inform the Securities Administrator in writing
with respect to each Mortgage Loan: (1) whether any Realized Loss is a Deficient
Valuation or a Debt Service Reduction, (2) of the amount of such loss or
Deficient Valuation, or of the terms of such Debt Service Reduction and (3) of
the total amount of Realized Losses on the Mortgage Loans 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 (i) in the case of the Shifting Interest Certificates,
pursuant to the operation of Section 5.04(b)(i) and (ii) in the case of the
Overcollateralized Certificates, pursuant to the operation of Section 5.04(c).
(b) Allocation of Losses on the Shifting Interest Certificates.
(i) The Class Certificate Balance of the Class of Class X-B
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 Senior Shifting Interest Certificates and the Class X-B
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 all the Shifting Interest Loan Groups for such
Distribution Date.
After the Senior Credit Support Depletion Date, the Class Certificate
Balances or, in the case of the Exchangeable REMIC Certificates, the
Calculation Balances, of the Senior Shifting Interest Certificates of each
Shifting Interest Group (other than the Exchangeable Certificates) in the
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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 or, in the case of the Exchangeable REMIC Certificates, the
Calculation 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 for such Distribution Date.
Any such reduction or increase shall be allocated among the Senior
Certificates of such Shifting Interest Group (other than the Exchangeble
Certificates) pro rata based on the Class Certificate Balances or, in the
case of the Exchangeable REMIC Certificates, the Calculation Balances,
immediately prior to such Distribution Date, until the Class Certificate
Balances or, in the case of the Exchangeable REMIC Certificates, the
Calculation Balances, thereof have been reduced to zero. In the event that
all or a portion of the Classes of Exchangeable REMIC Certificates are
exchanged for a proportionate portion of the Class of Exchangeable
Certificates, the Class of such Exchangeable Certificates will be allocated
a proportionate share of Realized Losses allocated to the Classes of
Exchangeable REMIC Certificates.
(ii) Any reduction or increase in the Class Certificate Balance of a
Class of Certificates pursuant to Section 5.04(b) above shall be allocated
among the Certificates of such Class in proportion to their respective
Percentage Interests.
(iii) The calculation of the amount to be distributed as principal to
any Class of Class X-B Certificates with respect to a Distribution Date
(the "Calculated Principal Distribution") shall be made prior to the
allocation of any Realized Losses with respect to the Shifting Interest
Mortgage Loans for such Distribution Date; provided, however, the actual
payment of principal to the Classes of Class X-B Certificates shall be made
subsequent to the allocation of Realized Losses with respect to the
Shifting Interest Mortgage Loans for such Distribution Date. In the event
that after the allocation of Realized Losses with respect to the Shifting
Interest Mortgage Loans for a Distribution Date, the Calculated Principal
Distribution for a Class of Class X-B Certificates is greater than the
Class Certificate Balance of such Class, the excess shall be distributed
(i) first, sequentially, to the Classes of Class X-B Certificates then
outstanding (beginning with the Class of Class X-B then outstanding with
the lowest numerical designation) until the respective Class Certificate
Balance of each such Class is reduced to zero and (ii) then to the Senior
Certificates of the Shifting Interest Groups (other than the Exchangeble
Certificates), pro rata.
(iv) On any Distribution Date after the Senior Credit Support
Depletion Date on which the Class 3-A-4 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 3-A-4 Certificates
will be reduced by the Class 3-A-4 Loss Allocation Amount and,
notwithstanding Section 5.04(b)(i), the Class Certificate Balances (or
Calculation Balances, in the case of the Class 3-A-2 and Class 3-A-3
Certificates) of the Class 3-A-1 Certificates, the Class 3-A-2 Certificates
and the Class 3-A-3 Certificates will not be reduced by the Class 3-A-4
Loss Allocation Amount. Notwithstanding the foregoing, on any Distribution
Date in which the sum of the Class 3-A-1 Loss Amount, the Class 3-A-2 Loss
Amount and the Class 3-A-3 Loss Amount exceeds the Class Certificate
Balance of the Class 3-A-4 Certificates prior to any reduction for the
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Class 3-A-4 Loss Allocation Amount, such excess will be distributed, pro
rata, in reduction of the Class Certificate Balances (or Calculation
Balances, in the case of the Class 3-A-2 and Class 3-A-3 Certificates) of
the Class 3-A-1 Certificates, the Class 3-A-2 Certificates and the Class
3-A-3 Certificates. Any increase in the Class Certificate Balance (or
Calculation Balance, in the case of the Class 3-A-2 and Class 3-A-3
Certificates) allocated to the Class 3-A-1 Certificates, the Class 3-A-2
Certificates and the Class 3-A-3 Certificates pursuant to Section
5.04(b)(i) will instead increase the Class Certificate Balance of the Class
3-A-4 Certificates.
(v) With respect to any Distribution Date, Realized Losses allocated
pursuant to this Section 5.04(b) will be allocated to each Uncertificated
Shifting Interest Lower-Tier Interest as described in Section 5.02 and to
each Uncertificated Shifting Interest Middle-Tier Interest in an amount
equal to the Realized Losses allocated to such Uncertificated Shifting
Interest Middle-Tier Interest's Corresponding Shifting Interest Upper-Tier
Class or Classes.
(vi) Notwithstanding any other provision of this Section 5.04(b), no
Class Certificate Balance of a Class of Shifting Interest Certificates will
be increased on any Distribution Date such that the Class Certificate
Balance of such Class exceeds its Initial Class Certificate Balance or, in
the case of a Class of Exchangeable REMIC Certificate or Exchangeable
Certificates, its Aggregate Denomination, less all distributions of
principal previously distributed in respect of such Class on prior
Distribution Dates.
(c) Allocation of Losses on the Overcollateralized Certificates. Any
Mezzanine Applied Realized Loss Amount for a Distribution Date will be
allocated sequentially in reduction of the Class Certificate Balances of
the Class M-8, Class M-7, Class M-6, Class M-5, Class M-4, Class M-3, Class
M-2 and Class M-1 Certificates, in that order, until their respective Class
Certificate Balances have been reduced to zero. After the Distribution Date
on which the Class Certificate Balance of the Mezzanine Certificates has
been reduced to zero, each Senior Applied Realized Loss Amount for a
Distribution Date will be allocated in reduction of the Class Certificate
Balance of the related class of Senior Overcollateralized Certificates;
provided, however, that for so long as the Class 1-A-2 Certificates are
outstanding, the Senior Applied Realized Loss Amounts for the Class 1-A-1,
Class 1-A-3, Class 1-A-4 and Class 1-A-5 Certificates will be allocated to
the Class 1-A-2 Certificates in addition to the Senior Applied Realized
Loss Amount for the Class 1-A-2 Certificates.
Notwithstanding any other provision of this Section 5.04(c), no Class
Certificate Balance of a Class of Overcollateralized Certificates 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.
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Section 5.05 Statements to Certificateholders.
(a) (i) Prior to the Distribution Date in each month, based upon the
information provided to the Securities Administrator on the Master Servicer's
Certificate delivered to the Securities Administrator pursuant to Section 4.01
and with respect to subsections (V) and (W) below, after consultation with the
Depositor, the Securities Administrator shall determine the following
information with respect to the Shifting Interest Certificates and such
Distribution Date:
(A) the actual Distribution Date, the related Record Date and the
Interest Accrual Period for each Class of Shifting Interest Certificates
for such Distribution Date;
(B) for each Shifting Interest Loan Group, the related Pool
Distribution Amount;
(C) for each Shifting Interest Loan Group, the amount of the Pool
Distribution Amount allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments, Liquidation Proceeds and
other components included therein;
(D) for each Shifting Interest Loan Group, the amount of the Pool
Distribution 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;
(E) if the distribution to the Holders of such Class of Shifting
Interest 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;
(F) the Class Certificate Balance of each Class of Shifting Interest
Certificates before and after giving effect to the distribution of
principal on such Distribution Date;
(G) for each Shifting Interest Loan Group, the aggregate Stated
Principal Balance of the Mortgage Loans in such Loan Group for the
preceding Distribution Date and the related Distribution Date;
(H) for each Shifting Interest Loan Group, the Senior Percentage, the
Senior Prepayment Percentage, the Subordinate Percentage and the
Subordinate Prepayment Percentage for such Distribution Date;
(I) the Aggregate Senior Percentage and the Aggregate Subordinate
Percentage for such Distribution Date;
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(J) the amount of the Servicing Fees paid to or retained by the
Servicers with respect to each Shifting Interest Loan Group and such
Distribution Date;
(K) the Pass-Through Rate for each such Class of Shifting Interest
Certificates with respect to such Distribution Date;
(L) with respect to the Shifting Interest Mortgage Loans, 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 the Determination Date immediately preceding such
Distribution Date;
(M) for each Shifting Interest Loan Group, the number and aggregate
principal amounts of Shifting Interest Mortgage Loans (A) delinquent
(exclusive of Mortgage Loans in foreclosure or bankruptcy) 31 to 60 days,
61 to 90 days and 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;
(N) for each Shifting Interest Loan Group, with respect to any
Shifting Interest Mortgage Loans that became REO Properties during the
preceding calendar month, the aggregate number of such Mortgage Loans and
the aggregated Stated Principal Balance of such Mortgage Loans as of the
close of business on the Determination Date preceding such Distribution
Date and the date of acquisition of the REO Properties;
(O) for each Shifting Interest 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;
(P) for each Shifting Interest Loan Group, the aggregate amount of
Realized Losses incurred during the preceding calendar month;
(Q) for each Shifting Interest Loan Group, the Reimbursement Amount;
(R) for each Shifting Interest Loan Group, the amount of Recoveries;
(S) any expenses or indemnification amounts paid by the Trust, the
specific purpose of each payment and the parties to whom such payments were
made;
(T) any material modifications, extensions or waivers to Shifting
Interest Mortgage Loan terms, fees, penalties or payments since the
previous Distribution Date;
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(U) for each Shifting Interest Loan Group, the number and aggregate
Stated Principal Balance of Shifting Interest Mortgage Loans, the weighted
average Mortgage Interest Rate, the weighted average remaining term, each
as of the close of business on the last day of the calendar month preceding
such Distribution Date;
(V) unless such information is otherwise set forth in the Form 10-D
relating to such Distribution Date and provided that the Securities
Administrator is reasonably able to include such information in the
statement, material breaches of Shifting Interest Mortgage Loan
representations and warranties of which the Securities Administrator has
knowledge or has received written notice;
(W) unless such information is otherwise set forth in the Form 10-D
relating to such Distribution Date and provided that the Securities
Administrator is reasonably able to include such information in the
statement, material breaches of any covenants under this Agreement of which
the Securities Administrator has knowledge or has received written notice;
and
(X) whether any exchanges of Exchangeable Certificates or Exchangeable
REMIC Certificates have taken place since the preceding Distribution Date,
and, if applicable, the Class designations, Class Certificate Balances and
any interest and principal paid, including any shortfalls allocated, of any
Classes of Exchangeable REMIC Certificates or Exchangeable Certificates
that were received by the Certificateholder as a result of such exchange.
(ii) Prior to the Distribution Date in each month, based upon the
information provided to the Securities Administrator on the Master Servicer's
Certificate delivered to the Securities Administrator pursuant to Section 4.01
and with respect to subsections (P) and (Q) below, after consultation with the
Depositor, the Securities Administrator shall determine the following
information with respect to the Overcollateralized Certificates and such
Distribution Date:
(A) the actual Distribution Date, the related Record Date, the LIBOR
Determination Date and the Interest Accrual Period for each Class of
Overcollateralized Certificates for such Distribution Date;
(B) if the distribution to the Holders of such Class of
Overcollateralized 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;
(C) the Class Certificate Balance of each Class of Overcollateralized
Certificates before and after giving effect to the distribution of
principal on such Distribution Date;
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(D) the amount of the Servicing Fees paid to or retained by the
Servicers with respect to the OC Loan Group and such Distribution Date;
(E) the Pass-Through Rate and Certificate Interest Rate for each such
Class of Overcollateralized Certificates with respect to such Distribution
Date;
(F) with respect to the Overcollateralized Mortgage Loans, 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 the Determination Date immediately preceding such
Distribution Date;
(G) with respect to the OC Loan Group, the number and aggregate
principal amounts of OC Mortgage Loans (A) delinquent (exclusive of
Mortgage Loans in foreclosure or bankruptcy) 1 to 30 days, 31 to 60 days,
61 to 90 days and 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;
(H) with respect to any OC Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such Mortgage
Loans and the aggregated Stated Principal Balance of such Mortgage Loans as
of the close of business on the Determination Date preceding such
Distribution Date and the date of acquisition of the REO Properties;
(I) with respect to the OC 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;
(J) with respect to the OC Loan Group, the aggregate amount of
Realized Losses with respect to the OC Mortgage Loans and Applied Realized
Loss Amounts incurred during the related Collection Period separately
identifying any reduction thereof due to the allocations of Applied
Realized Loss Amounts;
(K) with respect to the OC Loan Group, the Reimbursement Amount;
(L) with respect to the OC Loan Group, the amount of Recoveries;
(M) any expenses or indemnification amounts paid by the Trust, the
specific purpose of each payment and the parties to whom such payments were
made;
(N) any material modifications, extensions or waivers to OC Mortgage
Loan terms, fees, penalties or payments since the previous Distribution
Date;
(O) with respect to the OC Loan Group, the number of OC Mortgage Loans
at the beginning and end of the related Collection Period, the weighted
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average Mortgage Interest Rate of the Mortgage Loans as of the last day of
the related Collection Period and the weighted average remaining term of
the Mortgage Loans;
(P) unless such information is otherwise set forth in the Form 10-D
relating to such Distribution Date and provided that the Securities
Administrator is reasonably able to include such information in the
statement, material breaches of OC Mortgage Loan representations and
warranties of which the Securities Administrator has knowledge or has
received written notice;
(Q) unless such information is otherwise set forth in the Form 10-D
relating to such Distribution Date and provided that the Securities
Administrator is reasonably able to include such information in the
statement, material breaches of any covenants under this Agreement of which
the Securities Administrator has knowledge or has received written notice;
(R) the Overcollateralized Accrued Certificate Interest in respect of
each Class of Overcollateralized Certificates for such Distribution Date
and any related Rate Cap Carryover Amounts, and the respective portions
thereof, if any, remaining unpaid following the distributions made in
respect of such Certificates on such Distribution Date;
(S) the Rate Cap Carryover Amounts distributed on such Distribution
Date, the amounts remaining after giving effect to distributions thereof on
such Distribution Date, the amount of all Rate Cap Carryover Amounts
covered by withdrawals from the Rate Cap Carryover Reserve Account and the
Swap Account on such Distribution Date;
(T) whether a Trigger Event has occurred and is continuing, and the
cumulative Realized Losses on the OC Mortgage Loans as a percentage of the
Cut-off Date Pool Principal Balance for the OC Loan Group;
(U) the Overcollateralization Amount, the Overcollateralization
Release Amount, the Overcollateralization Deficiency and the Targeted
Overcollateralization Amount as of such Distribution Date and the Monthly
Excess Interest Amount and Monthly Excess Cashflow Amount for such
Distribution Date;
(V) the Principal Remittance Amount, the Interest Remittance Amounts
and the Available Funds;
(W) only for so long as the Trust is subject to the Exchange Act
reporting requirements, the aggregate "significance percentage" of the
Interest Rate Swap Agreement and the Interest Rate Corridor Agreement;
(X) the amount of any Net Swap Payments or Swap Termination Payments;
and
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(Y) the amounts received under the Interest Rate Corridor Agreement.
For all purposes of this Agreement, with respect to any Mortgage Loan,
delinquencies shall be determined and reported based on the so-called "MBA"
methodology for determining delinquencies on mortgage loans similar to the
Mortgage Loans. By way of example, a Mortgage Loan would be delinquent with
respect to a Monthly Payment due on a Due Date if such Monthly Payment is not
made by the close of business on the Mortgage Loan's next succeeding Due Date,
and a Mortgage Loan would be more than 30-days delinquent with respect to such
Monthly Payment if such Monthly Payment were not made by the close of business
on the Mortgage Loan's second succeeding Due Date.
(b) No later than each Distribution Date, the Securities Administrator,
based upon information supplied to it on the Master Servicer's Certificate,
shall make available to each Holder of a Certificate, each Rating Agency and the
Master Servicer, a single statement setting forth the information set forth in
Sections 5.05(a)(i) and (ii) (a "Monthly Statement").
On each Distribution Date, the Securities Administrator shall prepare and
furnish to each Financial Market Service, in electronic or such other format and
media mutually agreed upon by the Securities Administrator, the Financial Market
Service and the Depositor, the information contained in the Master Servicer's
Certificate described in Section 4.01 for such Distribution Date.
The Securities Administrator will make the Monthly Statement to
Certificateholders (and, at its option, any additional files containing the same
or additional information in an alternative format) available each month to
Certificateholders, the NIMS Insurer 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 the NIMS Insurer and 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 (C) and (D) of Section 5.05(a)(i) and clauses (C) and (R) of
Section 5.05(a)(ii), 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
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the Holders of Certificates, and the Securities Administrator shall prepare and
provide to the Certificateholders (by mail, telephone, or publication as may be
permitted by applicable Treasury Regulations) such other reasonable information
as the Securities Administrator deems necessary or appropriate or is required by
the Code, Treasury Regulations, and the REMIC Provisions including, but not
limited to, (i) information to be reported to the Holder of the Residual
Certificate for quarterly notices on Schedule Q (Form 1066) (which information
shall be forwarded to the Holder of the Residual Certificate by the Securities
Administrator), (ii) information to be provided to the Holders of Certificates
with respect to amounts which should be included as interest and original issue
discount in such Holders' gross income and (iii) information to be provided to
all Holders of Certificates setting forth the percentage of 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 created hereunder, 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 5.06 REMIC Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC created hereunder shall
have a taxable year ending on December 31st and shall maintain its books on the
accrual method of accounting.
(b) The Securities Administrator shall prepare or cause to be prepared,
shall execute or cause to be executed by such Person as is required by the Code,
Treasury Regulations or state or local tax laws, regulations or rules and shall
file or cause to be filed with the Internal Revenue Service and applicable state
or local tax authorities income tax and information returns for each taxable
year with respect to each REMIC created hereunder 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 created hereunder and the
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby. The Master Servicer shall provide on a
timely basis to the Securities Administrator or its designee such information
with respect to the assets of the Trust Estate as is in its possession and
reasonably required by the Securities Administrator to enable it to perform its
obligations under this Article V. Within 30 days of the Closing Date, the
Securities Administrator shall obtain for each REMIC created hereunder a
taxpayer identification number on Form SS-4 and any similarly required state or
local forms 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
and any similarly required state or local forms or as otherwise required by the
Code or the Treasury Regulations, the name, title, address and telephone number
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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 and 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 (and any similar required state
or local income tax returns) of each REMIC created hereunder for its short
taxable year ending December 31, 2007, REMIC status shall be elected for such
taxable year and all succeeding taxable years.
(d) The Securities Administrator will maintain or cause to be maintained
such records relating to each REMIC created hereunder, 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 5.07 Tax Matters Person.
The Tax Matters Person shall have the same duties with respect to the
applicable REMIC as those of a "tax matters partner" under Subchapter C of
Chapter 63 of Subtitle F of the Code. The Holder of the Class 2-A-R Certificate
is hereby designated as the Tax Matters Person for the Shifting Interest
Upper-Tier REMIC, the Shifting Interest Middle-Tier REMIC, the Shifting Interest
Lower-Tier REMIC, the Upper-Tier II REMIC and the Lower-Tier II REMIC. By its
acceptance of the Class 2-A-R Certificate, such Holder irrevocably appoints the
Securities Administrator as its agent to perform all of the duties of the Tax
Matters Person for the Shifting Interest Upper-Tier REMIC, the Shifting Interest
Middle-Tier REMIC, the Shifting Interest Lower-Tier REMIC, the Upper-Tier II
REMIC and the Lower-Tier II REMIC.
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Section 5.08 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 5.09 REMIC and Grantor Trust Related Covenants.
For as long as any REMIC or Exchangeable Certificate created hereunder
shall exist, the Trustee, the Securities Administrator, the Depositor and the
Master Servicer shall act in accordance herewith to assure continuing treatment
of each REMIC created hereunder as a REMIC and each grantor trust created
hereunder as a "grantor trust" within the meaning of the Code and related
regulations and avoid the imposition of tax on any REMIC or grantor trust
created hereunder. In particular:
(a) Neither the Securities Administrator nor the Trustee shall create, or
permit the creation of, any "interests" in any REMIC created hereunder within
the meaning of Code Section 860D(a)(2) other than the interests represented by
the Shifting Interest Upper-Tier Regular Interests, the Upper-Tier II Regular
Interests, the Residual Certificate, the Uncertificated Lower-Tier II Regular
Interests, the Uncertificated Shifting Interest Middle-Tier Regular Interests
and the Uncertificated Shifting Interest Lower-Tier Regular Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and the
Master Servicer shall not contribute to the Trust Estate and the Trustee shall
not accept property unless substantially all of the property held in each REMIC
constitutes either "qualified mortgages" or "permitted investments" as defined
in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property shall be
contributed, or deemed contributed, to any REMIC created hereunder after the
start-up day unless such contribution would not subject the Trust Estate to the
100% tax on contributions to a REMIC created hereunder after the start-up day of
such REMIC imposed by Code Section 860G(d).
(c) Neither the Securities Administrator, on behalf of the Trust Estate or
the Trustee, nor the Trustee shall accept on behalf of any REMIC created
hereunder any fee or other compensation for services and none of the Securities
Administrator, the Trustee or the Master Servicer shall knowingly accept, on
behalf of the Trust Estate any income from assets other than those permitted to
be held by a REMIC.
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(d) Neither the Securities Administrator, on behalf of the Trust Estate or
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 2.04),
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 created hereunder on a calendar year taxable year basis and
on an accrual basis.
None of the Master Servicer, the Securities Administrator or the Trustee shall
engage in a "prohibited transaction" (as defined in Code Section 860F(a)(2)),
except that, with the prior written consent of the Master Servicer and the
Depositor, the Securities Administrator may engage in the activities otherwise
prohibited by the foregoing paragraphs (b), (c) and (d); provided that the
Master Servicer shall have delivered to the Securities Administrator an Opinion
of Counsel to the effect that such transaction will not result in the imposition
of a tax on any REMIC created hereunder or the Exchangeable Certificates Grantor
Trust and will not disqualify any such REMIC from treatment as a REMIC or
disqualify the Exchangeable Certificates Grantor Trust from treatment as a
grantor trust; and, provided further, that the Master Servicer shall have
demonstrated to the satisfaction of the Securities Administrator that such
action will not adversely affect the rights of the Holders of the Certificates
and the Securities Administrator and that such action will not adversely impact
the rating of the Certificates. None of the Master Servicer, the Securities
Administrator, the Trustee or any Servicer shall, unless the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in the judgment of
the Servicer, reasonably foreseeable, permit any modification with respect to
any Mortgage Loan that would (i) change the Mortgage Rate, defer or forgive the
payment thereof of any principal or interest payments, reduce the Stated
Principal Balance (except for actual payments of principal) or extend the final
maturity date with respect to such Mortgage Loan, (ii) affect adversely the
status of any REMIC as a REMIC or (iii) cause any REMIC to be subject to a tax
on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions. Further, none of the Master Servicer, the Securities Administrator,
the Trustee or any Servicer shall permit any modification with respect to any
Mortgage Loan that would both (x) effect an exchange or reissuance of such
Mortgage Loan under Section 1.860G 2(b) of the Treasury regulations and (y)
cause any REMIC constituting part of the Trust Estate to fail to qualify as a
REMIC under the Code or the imposition of any tax on "prohibited transactions"
or "contributions" after the Start-up Day under the REMIC Provisions.
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Section 5.10 Determination of One-Month LIBOR.
On each LIBOR Determination Date for a Class of Offered Overcollateralized
Certificates, the Securities Administrator shall determine One-Month LIBOR for
the applicable Distribution Date on the basis of the British Bankers'
Association ("BBA") "Interest Settlement Rate" for one-month deposits in U.S.
Dollars as found on Reuters Screen LIBOR01 as of 11:00 A.M. London time on such
LIBOR Determination Date. As used herein, "Reuters Screen LIBOR01" means the
screen designated on the Reuters Monitor Money Rates Service (or such other
screen as may replace that screen on that service for the purpose of displaying
comparable rates or prices).
If on any LIBOR Determination Date for a Class of Offered
Overcollateralized Certificates, the Securities Administrator is unable to
determine One-Month LIBOR on the basis of the method set forth in the preceding
paragraph, One-Month LIBOR for the applicable Distribution Date will be
whichever is higher of (x) One-Month LIBOR as determined on the previous LIBOR
Determination Date for such Class of Offered Overcollateralized Certificates or
(y) the Reserve Interest Rate. The "Reserve Interest Rate" will be the rate per
annum which the Securities Administrator determines to be either (A) the
arithmetic mean (rounding such arithmetic mean upwards if necessary to the
nearest whole multiple of 1/16%) of the one-month U.S. Dollar lending rates that
New York City banks selected by the Securities Administrator are quoting, on the
relevant LIBOR Determination Date, to the principal London offices of at least
two leading banks in the London interbank market or (B) in the event that the
Securities Administrator can determine no such arithmetic mean, the lowest
one-month U.S. Dollar lending rate that the New York City banks selected by the
Securities Administrator are quoting on such LIBOR Determination Date to leading
European banks.
If on any LIBOR Determination Date for a Class of Offered
Overcollateralized Certificates, the Securities Administrator is required but is
unable to determine the Reserve Interest Rate in the manner provided in the
preceding paragraph, One-Month LIBOR for the applicable Distribution Date will
be One-Month LIBOR as determined on the previous LIBOR Determination Date for
such Class of Offered Overcollateralized Certificates, or, in the case of the
first LIBOR Determination Date for which the Securities Administrator is
required to determine One-Month LIBOR, 5.320000%.
The establishment of LIBOR by the Securities Administrator and the
Securities Administrator's subsequent calculation of the rates of interest
applicable to each of the Offered Overcollateralized Certificates in the absence
of manifest error, will be final and binding. After a LIBOR Determination Date,
the Securities Administrator shall provide the Certificate Interest Rates of the
Offered Overcollateralized Certificates for the related Distribution Date to
Beneficial Owners or Holders of Offered Overcollateralized Certificates who
place a telephone call to the Securities Administrator at (000) 000-0000 and
make a request therefor.
Section 5.11 Master Servicer, Securities Administrator and Trustee
Indemnification.
(a) In the event that any REMIC created hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due solely to (i) the negligent performance by the Trustee of its
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duties and obligations set forth herein or (ii) any state, local or franchise
taxes imposed upon the Trust Estate as a result of the location of the Trustee
or any co-trustee, the Trustee shall indemnify the Trust Estate against any and
all losses, claims, damages, liabilities or expenses ("Losses") resulting from
such negligence, including, without limitation, any reasonable attorneys' fees
imposed on or incurred as a result of a breach of the Trustee's or any
co-trustee's covenants.
(b) In the event that any REMIC created hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due solely to (i) the negligent performance by the Master Servicer of
its duties and obligations set forth herein or (ii) any state, local or
franchise taxes imposed upon the Trust Estate as a result of the location of the
Master Servicer, the Master Servicer shall indemnify the Trust Estate against
any and all Losses resulting from such negligence, including, without
limitation, any reasonable attorneys' fees imposed on or incurred as a result of
a breach of the Master Servicer's covenants.
(c) In the event that any REMIC created hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due solely to (i) the negligent performance by the Securities
Administrator of its duties and obligations set forth herein or (ii) any state,
local or franchise taxes imposed upon the Trust Estate as a result of the
location of the Securities Administrator, the Securities Administrator shall
indemnify the Trust Estate against any and all Losses resulting from such
negligence, including, without limitation, any reasonable attorneys' fees
imposed on or incurred as a result of a breach of the Securities Administrator's
covenants.
Section 5.12 Supplemental Interest Trust.
(a) A separate trust is hereby established (the "Supplemental Interest
Trust"), into which the Depositor shall deposit the Interest Rate Agreements.
The Supplemental Interest Trust shall be maintained by the Supplemental Interest
Trust Trustee. No later than the Closing Date, the Supplemental Interest Trust
Trustee shall establish and maintain a separate, segregated trust account to be
held in the Supplemental Interest Trust, titled, "Xxxxx Fargo Bank, N.A., as
Supplemental Interest Trust Trustee for U.S. Bank National Association, as
Trustee, in trust for registered holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2007-D--Swap Account." Such account
shall be an Eligible Account and funds on deposit therein shall be held separate
and apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Securities Administrator held pursuant
to this Agreement. Amounts therein shall be held uninvested.
(b) On each Distribution Date, prior to any distribution to any
Overcollateralized Certificate, the Supplemental Interest Trust Trustee shall
deposit into the Swap Account: (i) the amount of any Net Swap Payment or Swap
Termination Payment (other than any Swap Termination Payment resulting from a
Swap Provider Trigger Event (as defined in the Interest Rate Swap Agreement))
owed to the Swap Provider (after taking into account any upfront payment
received from the counterparty to a replacement interest rate swap agreement)
from funds transferred from the Trust that were collected and received with
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respect to the OC Mortgage Loans and (ii) any Net Swap Receipts received by the
Supplemental Interest Trust Trustee and any payments from the Corridor Provider
with respect to the Interest Rate Corridor Agreement. For federal income tax
purposes, any amounts paid to the Swap Provider on each Distribution Date shall
be first deemed paid to the Supplemental Interest Trust in respect of the Class
CE Upper-Tier II Regular Interest, provided however that any Class IO
Distribution Amount (as defined below) will be deemed paid to the Supplemental
Interest Trust by the other Overcollateralized Certificates pursuant to Section
5.12(e). Any Swap Termination Payment triggered by a Swap Provider Trigger Event
(as defined in the Interest Rate Swap Agreement) owed to the Swap Provider
pursuant to the Interest Rate Swap Agreement will be subordinated to
distributions to the Holders of the Overcollateralized Certificates and shall be
paid as set forth under Section 5.03(a) priority ninth.
(c) For federal income tax purposes, the Supplemental Interest Trust shall
be owned by the Class CE Grantor Trust. The Supplemental Interest Trust
constitutes an "outside reserve fund" within the meaning of Treasury Regulation
ss. 1.860G-2(h) and is not an asset of any REMIC created hereunder.
(d) To the extent that the Supplemental Interest Trust is determined to be
a separate legal entity from the Supplemental Interest Trust Trustee, any
obligation of the Supplemental Interest Trust Trustee under the Interest Rate
Swap Agreement shall be deemed to be an obligation of the Supplemental Interest
Trust.
(e) The Securities Administrator and the Supplemental Interest Trust
Trustee shall treat the Holders of the Offered Overcollateralized Certificates
as having entered into a notional principal contract with respect to the Holders
of the Class CE Certificates. Pursuant to each such notional principal contract,
all Holders of Offered Overcollateralized Certificates shall be treated as
having agreed to pay, on each Distribution Date, to the Holder of the Class CE
Certificates an aggregate amount equal to the excess, if any, of (i) the amount
payable on such Distribution Date on the Upper-Tier II Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable on such
Class of Certificates on such Distribution Date (such excess, a "Class IO
Distribution Amount"). A Class IO Distribution Amount payable from interest
collections shall be allocated pro rata among such Overcollateralized
Certificates based on the excess of (a) the amount of interest otherwise payable
to such Certificates over (ii) the amount of interest payable to such
Certificates at a per annum rate equal to the Upper-Tier II REMIC Net Rate Cap,
and a Class IO Distribution Amount payable from principal collections shall be
allocated to the most subordinate Class of Overcollateralized Certificates with
an outstanding Class Certificate Balance to the extent of such balance. In
addition, pursuant to such notional principal contract, the Holder of the Class
CE Certificates shall be treated as having agreed to pay Rate Cap Carryover
Amounts to the Holders of the Offered Overcollateralized Certificates in
accordance with the terms of this Agreement. Any payments to the
Overcollateralized Certificates from amounts deemed received in respect of this
notional principal contract shall not be payments with respect to a regular
interest in a REMIC within the meaning of Code Section 860G(a)(1). However, any
payment from the Offered Overcollateralized Certificates of a Class IO
Distribution Amount shall be treated for tax purposes as having been received by
the Holders of such Certificates in respect of the corresponding Upper-Tier II
Regular Interest and as having been paid by such Holders to the Supplemental
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Interest Trust Trustee pursuant to the notional principal contract. Thus, each
Offered Overcollateralized Certificate shall be treated as representing not only
ownership of an Upper-Tier II Regular Interest, but also ownership of an
interest in, and obligations with respect to, a notional principal contract.
Section 5.13 Tax Treatment of Swap Payments and Swap Termination Payments.
(a) For federal income tax purposes, each Holder of an Overcollateralized
Certificate is deemed to own an undivided beneficial ownership interest in an
Upper-Tier II Regular Interest and the right to receive payments from either the
Rate Cap Carryover Reserve Account or the Swap Account in respect of the Rate
Cap Carryover Amount or the obligation to make payments to Supplemental Interest
Trust for deposit to the Swap Account. For federal income tax purposes, the
Supplemental Interest Trust Trustee will account for payments to each
Overcollateralized Certificate as follows: each Offered Overcollateralized
Certificate will be treated as receiving its entire payment from the
corresponding Upper-Tier II Regular Interest (regardless of any Swap Termination
Payment or obligation under the Interest Rate Swap Agreement) and subsequently
paying their portion of any Swap Termination Payment in respect of each such
Class' obligation under the Interest Rate Swap Agreement. In the event that any
such Class is resecuritized in a REMIC, the obligation under the Interest Rate
Swap Agreement to pay any such Swap Termination Payment (or any shortfall in the
Net Swap Payment), will be made by one or more of the REMIC regular interests
issued by the resecuritization REMIC subsequent to such REMIC regular interest
receiving its full payment from any such Offered Overcollateralized Certificate.
Resecuritization of any Overcollateralized Certificate in a REMIC will be
permissible only if the Securities Administrator hereunder is the trustee in
such resecuritization.
(b) The Upper-Tier II Regular Interest corresponding to an
Overcollateralized Certificate will be entitled to receive interest and
principal payments at the times and in the amounts equal to those made on the
Certificate to which it corresponds, except that the maximum interest rate
payable on that Upper-Tier II Interest will equal the Upper-Tier II REMIC Net
Rate Cap. As a result of the foregoing, the amount of distributions and taxable
income on the Upper-Tier II Regular Interest corresponding to an
Overcollateralized Certificate may exceed the actual amount of distributions on
the Offered Overcollateralized Certificates.
Section 5.14 Grantor Trust Administration.
(a) The Trustee and the Securities Administrator shall treat the portions
of the Trust Estate consisting of any interests in the Exchangeable REMIC
Certificates beneficially owned in the form of Exchangeable Certificates and
rights with respect thereto as assets of the Exchangeable Certificates Grantor
Trust and provisions of this Agreement shall be interpreted consistently with
this treatment. Each beneficial owner of Exchangeable REMIC Certificates that
elects to hold its interest in the Exchangeable REMIC Certificates in the form
of Exchangeable Certificates pursuant to Sections 6.05 and 6.06 of this
Agreement shall be deemed to have instructed the Securities Administrator to
deposit the applicable Exchangeable REMIC Certificates into the Exchangeable
Certificates Grantor Trust and all distributions in respect of such Exchangeable
REMIC Certificates shall be deposited into the Exchangeable Certificates Grantor
Trust Account. Funds in the Exchangeable Certificates Grantor Trust Account
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shall remain uninvested. The Securities Administrator hereby designates the
Exchangeable Certificates Grantor Trust Account as a sub-account of the
Certificate Account.
(b) On each Distribution Date, the Securities Administrator shall be deemed
to deposit all distributions in respect of the Exchangeable REMIC Certificates
deemed received by it from the Shifting Interest Upper-Tier Certificate Account
pursuant to paragraph (a) of this Section 5.14 in the Exchangeable Certificates
Grantor Trust Account and shall immediately distribute such amounts in respect
of the related Exchangeable Certificates.
(c) Any beneficial owner of Exchangeable Certificates that exchanges such
Exchangeable Certificates for the related Exchangeable REMIC Certificates shall
be deemed to have instructed the Securities Administrator to remove such
Exchangeable REMIC Certificates from the Exchangeable Certificates Grantor
Trust, so that distributions on such Exchangeable REMIC Certificates are made
directly from the Shifting Interest Upper-Tier Certificate Account to such
beneficial owner.
(d) The Trustee and the Securities Administrator shall treat the portions
of the Trust consisting of the Rate Cap Carryover Reserve Account and the
Supplemental Interest Trust and rights and obligations with respect thereto as
the Class CE Grantor Trust and provisions of this Agreement shall be interpreted
consistently with this treatment.
(e) On each Distribution Date, the Securities Administrator shall be deemed
to deposit all distributions in respect of the Rate Cap Carryover Reserve
Account and the Supplemental Interest Trust in the Class CE Grantor Trust, and
shall immediately distribute such amounts as provided in Section 5.03(a)
priority eighth and Section 5.03(c).
(f) The Securities Administrator and the Trustee shall account for the
Exchangeable Certificates Grantor Trust and the Class CE Grantor Trust and the
respective assets and rights and obligations with respect thereto as, for
federal income tax purposes, separate grantor trusts as described in Subpart E
of Part I of Subchapter J of the Code and Treasury Regulation
ss.301.7701-4(c)(2) and not as assets of any REMIC created pursuant to this
Agreement. The Securities Administrator shall apply for a taxpayer
identification number for each grantor trust on IRS Form SS-4 and any similarly
required state or local forms. The Securities Administrator shall furnish or
cause to be furnished to the Holders of the Exchangeable Certificates and the
Holders of the Class CE Certificates, respectively, and shall file or cause to
be filed such forms as may be required by the Code and regulations promulgated
thereunder and any similar state or local laws with respect to the allocable
shares of income and expenses with respect to the assets of each grantor trust
at the time and in the manner required by the Code and regulations promulgated
thereunder and any similar state or local laws. The Securities Administrator
shall sign any forms required above.
(g) The Exchangeable Certificates Grantor Trust is a WHFIT that is a WHMT.
The Class CE Grantor Trust is a WHFIT that is a NMWHFIT. The Securities
Administrator will report as required under the WHFIT Regulations to the extent
such information as is reasonably necessary to enable the Securities
Administrator to do so, and is not in its possession, is provided to the
Securities Administrator on a timely basis. The Securities Administrator shall
assume that DTC is the only "middleman" (as such term is defined in the WHFIT
Regulations) with respect to the Book-Entry Certificates. The Depositor will pay
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for any tax reporting penalties that may arise as a result of the Depositor
incorrectly determining the status of a grantor trust as a WHFIT.
(h) The Securities Administrator, in its discretion, will report required
WHFIT information using either the cash or accrual method, except to the extent
the WHFIT Regulations specifically require a different method. The Securities
Administrator will be under no obligation to determine whether any certificate
holder or other beneficial owner of a certificate uses the cash or accrual
method. The Securities Administrator will make available information as required
by the WHFIT Regulations to certificate holders annually. In addition, the
Securities Administrator will not be responsible or liable for providing
subsequently amended, revised or updated information to any certificate holder,
unless requested by the certificate holder.
(i) The Securities Administrator shall not be liable for failure to meet
the reporting requirements of the WHFIT Regulations nor for any penalties
thereunder if such failure is due to: (i) the lack of reasonably necessary
information being provided to the Securities Administrator, (ii) incomplete,
inaccurate or untimely information being provided to the Securities
Administrator or (iii) the inability of the Securities Administrator, after good
faith efforts, to alter its existing information reporting systems to capture
information necessary to fully comply with the WHFIT Regulations for the 2007
calendar year. Absent receipt of information regarding any sale of securities,
including the price, amount of proceeds and date of sale from the beneficial
owner thereof, the Depositor and the Securities Administrator may assume there
is no secondary market trading of WHFIT interests.
(j) To the extent required by the WHFIT Regulations, the Securities
Administrator will use reasonable efforts to publish on an appropriate website
the CUSIPs for the certificates that represent ownership of a WHFIT. The
Securities Administrator will make reasonable good faith efforts to keep the
website accurate and updated to the extent CUSIPs have been received. The
Securities Administrator will not be liable for investor reporting delays that
result from the receipt of inaccurate or untimely CUSIP information.
Section 5.15 Distributions on the Exchangeable Certificates.
On each Distribution Date, the Securities Administrator shall withdraw from
the Exchangeable Certificates Grantor Trust Account the Class Distribution
Amount for each Class with an Outstanding Exchangeable Certificate and shall
make the appropriate distributions to the Certificateholders of each such Class.
All distributions of such Class Distribution Amount that are made with respect
to the Class of Exchangeable Certificates shall be made pro rata among all
Certificates of such Class in proportion to their respective Certificate
Balances, with no preference or priority of any kind.
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ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.
The Classes of Certificates shall be substantially in the forms attached
hereto as Exhibits X-0X0, X-0X0, X-0X0, X-0X0, X-0X0, X-0XX, X-0X0, A-3A1,
A-3A2, A-3A3, A-3A4, A-3A5, B-XB1, B-XB2, B-XB3, B-XB4, B-XB5, B-XB6, B-M1,
B-M2, B-M3, B-M4, B-M5, B-M6, B-M7, B-M8, B-CE and C (reverse of all
Certificates) and shall, on original issue, be executed by the Securities
Administrator and shall be authenticated and delivered by the Securities
Administrator to or upon the order of the Depositor upon receipt by the Trustee
of the documents specified in Section 2.01. The Classes of Certificates shall be
available to investors in minimum denominations of initial Certificate Balance
and integral multiples in excess thereof set forth in the Preliminary Statement.
The minimum denomination for the Class CE Certificates shall be a 10% Percentage
Interest in such Class. The Offered Certificates (other than the Class 2-A-R
Certificate) 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
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surrendered for exchange, the Securities Administrator shall execute and the
Securities Administrator shall authenticate and deliver the Certificates that
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (A) registration of the Book-Entry Certificates
may not be transferred by the Securities Administrator except to another
Depository; (B) the Depository shall maintain book-entry records with respect to
the Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (C) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (D) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (E) the Securities Administrator shall deal with the Depository as
the representative of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(F) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If the Depository advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository and the Securities
Administrator or the Depositor is unable to locate a qualified successor,
the Securities Administrator shall notify all Certificate Owners through
the Depository of the occurrence of such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates")
to such Certificate Owners requesting the same. Upon surrender to the
Securities Administrator of the related Class of Certificates by the
Depository (or by the Certificate Custodian, if it holds such Class on
behalf of the Depository), accompanied by the instructions from the
Depository for registration, the Securities Administrator shall issue the
Definitive Certificates. None of the Master Servicer, the Depositor, the
Securities Administrator or the Trustee shall be liable for any delay in
delivery of such instruction and may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide the
Securities Administrator with an adequate inventory of certificates to
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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 (other than in connection with (i) the initial
transfer of any such Certificate by the Depositor to an Affiliate of the
Depositor or, in the case of the Class 2-A-R Certificate, the first transfer by
an Affiliate of the Depositor, (ii) the transfer of any such Class CE or Class
2-A-R Certificate to the issuer under an Indenture or the indenture trustee
under an Indenture or (iii) a transfer of any such Class CE or Class 2-A-R
Certificate from the issuer under an Indenture or the indenture trustee under an
Indenture to the Depositor or an Affiliate of the Depositor), (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,
in the case of the Class X-B-4, Class X-B-5 and Class X-B-6 Certificates only,
as Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Sponsor, their affiliates or both. The
Depositor shall provide to any Holder of a Private Certificate and any
prospective transferees designated by any such Holder, information regarding the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for transfer of any such certificate without registration thereof
under the 1933 Act pursuant to the registration exemption provided by Rule 144A.
The Holder of a Private Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws. For purposes of clause (ii)
of this Section 6.02(d) the representations required in any transferor
certificate (substantially in the form of Exhibit G-1 hereto) and any investment
letter (substantially in the form of Exhibit G-2A hereto) shall be deemed to
have made in connection with the transfer of any Private Certificate that is a
Book-Entry Certificate.
(e) No transfer of an ERISA Restricted Certificate (other than (i) a
transfer to the indenture trustee under an Indenture with respect to a related
NIM trust or (ii) a transfer from the indenture trustee under an Indenture with
respect to a related NIM trust to the Depositor or an Affiliate of the
Depositor) shall be made unless the transferee delivers to the Securities
Administrator either (i) a representation letter substantially in the form
attached hereto as Exhibit H from the transferee of such Certificate, which
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representation letter shall not be an expense of the Depositor, the Trustee, the
Securities Administrator or the Master Servicer, or (ii) in the case of any
ERISA Restricted Certificate (other than the Class 2-A-R Certificate) presented
for registration in the name of an employee benefit plan or arrangement, subject
to Title I of ERISA or Section 4975 of the Code, or a Person acting on behalf of
or using assets of any such employee benefit plan or arrangement (collectively,
a "Plan") an Opinion of Counsel in form and substance satisfactory to the
Securities Administrator to the effect that the purchase or holding of such
ERISA Restricted Certificate will not constitute or result in a non-exempt
prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code and will not subject the Trustee, the Depositor, the Securities
Administrator or the Master Servicer to any obligation in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Securities Administrator, the Trustee or the Master Servicer. Any
transferee of an ERISA Restricted Certificate that does not comply with either
clause (i) or (ii) of the preceding sentence will be deemed to have made one of
the representations set forth in Exhibit H. For purposes of clause (i) of the
second preceding sentence, such representation shall be deemed to have been made
to the Certificate Registrar by the acceptance by a Certificate Owner of a
Book-Entry Certificate of the beneficial interest in any such Class of
ERISA-Restricted Certificates, unless the Certificate Registrar shall have
received from the transferee an alternative representation or Opinion of Counsel
acceptable in form and substance to the Depositor. Notwithstanding anything else
to the contrary herein, any purported transfer of an ERISA Restricted
Certificate to a Plan without the delivery to the Securities Administrator of an
Opinion of Counsel satisfactory to the Securities Administrator as described
above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate Registrar shall
have any liability for transfers of Book-Entry Certificates made through the
book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Securities Administrator shall be under no liability to any
Person for any registration of transfer of any ERISA Restricted Certificate that
is in fact not permitted by this Section 6.02 or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Securities Administrator in accordance with the foregoing
requirements.
For so long as the Supplemental Interest Trust is in existence, each
beneficial owner of an Offered Overcollateralized Certificate or any interest
therein, shall be deemed to have represented, by virtue of its acquisition or
holding of such Certificate, or interest therein, that either (i) it is not a
Plan or (ii) (A) it is an accredited investor within the meaning of the
Underwriter's Exemption and (B) the acquisition and holding of such Certificate
or any interest therein and the separate right to receive payments from the
Supplemental Interest Trust are eligible for the exemptive relief available
under Department of Labor Prohibited Transaction Class Exemption ("PTCE") 84-14
(for transactions by independent "qualified professional asset managers"), PTCE
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91-38 (for transactions by bank collective investment funds), XXXX 00-0 (for
transactions by insurance company pooled separate accounts), PTCE 95-60 (for
transactions by insurance company general accounts) or PTCE 96-23 (for
transactions effected by "in-house asset managers") or the prohibited
transaction statutory exemption set forth under section 408(b)(17) of ERISA (for
transactions with certain service providers).
(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 substantially in the form attached hereto as Exhibit I from the
proposed transferee and a certificate substantially in the form attached
hereto as Exhibit W from the transferor.
(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
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Residual Certificate was not in fact permitted by this Section 6.02, be
restored to all rights as Holder thereof retroactive to the date of
registration of transfer of such Residual Certificate. The Securities
Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of the Agreement so long as the
transfer was registered in accordance with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities
Administrator to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator, based
on information provided to the Securities Administrator by the Master
Servicer, will provide to the Internal Revenue Service, and to the Persons
specified in Section 860E(e)(3) and (6) of the Code, information needed to
compute the tax imposed under Section 860E(e) of the Code on transfers of
residual interests to disqualified organizations. The expenses of the
Securities Administrator under this clause (vii) shall be reimbursable by
the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired by a Plan.
(g) 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.
(h) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
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Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Securities Administrator, the Trustee, the Depositor and the Certificate
Registrar such security or indemnity reasonably satisfactory to each, to save
each of them harmless, then, in the absence of actual notice to the Securities
Administrator or the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor, Class
and Percentage Interest but bearing a number not contemporaneously outstanding.
Upon the issuance of any new Certificate under this Section, the Securities
Administrator may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Securities Administrator and
the Certificate Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the Certificate Registrar and any agent of the Depositor, the Master Servicer,
the Trustee, the Securities Administrator or the Certificate Registrar may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 5.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Trustee, the Securities Administrator, the Certificate Registrar,
the NIMS Insurer or any agent of the Depositor, the Master Servicer, the
Trustee, the Securities Administrator, the NIMS Insurer or the Certificate
Registrar shall be affected by notice to the contrary.
Section 6.05 Transfer of Exchangeable REMIC Certificates and Exchangeable
Certificates.
(a) Upon the presentation and surrender by any Certificateholder of its
Exchangeable REMIC Certificates or Exchangeable Certificates, such
Certificateholder shall thereby transfer, assign, set over and otherwise convey
to the Securities Administrator, all of such Certificateholder's right, title
and interest in and to such Exchangeable REMIC Certificates or Exchangeable
Certificates, including all payments of interest thereon received after the date
of such presentation and surrender and until such Certificateholder informs the
Securities Administrator that it wishes to again hold its interest in the form
of Exchangeable REMIC Certificates or Exchangeable Certificates, as applicable.
(b) The Securities Administrator acknowledges any transfer and assignment
of Exchangeable REMIC Certificates or Exchangeable Certificates pursuant to the
foregoing paragraph, and hereby declares that it will hold the same in trust for
the Certificateholders on the terms set forth in this Agreement, and shall treat
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such Exchangeable REMIC Certificates and Exchangeable Certificates in accordance
with Section 5.14 of this Agreement.
Section 6.06 Exchanges of Exchangeable REMIC Certificates and Exchangeable
Certificates.
(a) Exchangeable Certificates shall be exchangeable on the books of DTC for
Exchangeable REMIC Certificates and Exchangeable REMIC Certificates shall be
exchangeable on the books of DTC for Exchangeable Certificates, on and after the
Closing Date, by notice to the Securities Administrator substantially in the
form of Exhibit V hereto or under the terms and conditions hereinafter set forth
and otherwise in accordance with the procedures specified in this Agreement.
(b) Certificates of the Classes of Exchangeable REMIC Certificates shall be
exchangeable for Certificates of the Class of Exchangeable Certificates in
respective Denominations, determined based on the proportion that the Maximum
Initial Class Certificate Balances of such Exchangeable REMIC Certificates bear
to the Maximum Initial Class Certificate Balance of the related Exchangeable
Certificates. Except as provided in Section 5.14 of this Agreement, upon any
such exchange, the portions of the Exchangeable REMIC Certificates designated
for exchange shall be deemed cancelled and replaced by the Exchangeable
Certificates issued in exchange therefor. Correspondingly, Exchangeable
Certificates may be further designated for exchange for Exchangeable REMIC
Certificates in respective Denominations determined based on the proportion that
the Maximum Initial Class Certificate Balances of such Exchangeable REMIC
Certificates bear to the Maximum Initial Class Certificate Balance of the
related Exchangeable Certificates. There shall be no limitation on the number of
exchanges authorized pursuant to this Section 6.06 and, except as provided
below, no fee or other charge shall be payable to the Securities Administrator
or DTC in connection therewith.
(c) In order to effect an exchange of Exchangeable REMIC Certificates or
Exchangeable Certificates, the Certificateholder shall notify the Securities
Administrator by e mail at xxxxxxxxxxxxxxx@xxxxxxxxxx.xxx no later than two
Business Days before the proposed exchange date. The exchange date may be any
Business Day other than the first or last Business Day of the month, subject to
the Securities Administrator's approval. In addition, the Certificateholder must
provide notice on the Certificateholder's letterhead, which notice must carry a
medallion stamp guarantee and set forth the following information: the CUSIP
number of each Exchangeable REMIC Certificate or Exchangeable Certificate to be
exchanged and Exchangeable REMIC Certificate or Exchangeable Certificate to be
received; the outstanding Certificate Balance and the portion of the Maximum
Initial Class Certificate Balance of the Exchangeable REMIC Certificate or
Exchangeable Certificates to be exchanged; the Certificateholder's DTC
participant number; and the proposed exchange date. After receiving the notice,
the Securities Administrator shall e-mail the Certificateholder with wire
payment instructions relating to the exchange fee. The Certificateholder will
utilize the "deposit and withdrawal system" at DTC to exchange the Certificates.
The Securities Administrator shall verify the proposed proportions to ensure
that the principal and interest entitlements of the Certificates received equal
the entitlements of the Certificates surrendered. If there is an error, the
exchange will not occur until such error is corrected. Unless rejected for
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error, a notice becomes irrevocable on the second Business Day before the
proposed exchange date.
(d) Notwithstanding any other provision herein set forth, a fee of $5,000
shall be payable to the Securities Administrator in connection with each
exchange.
(e) The Securities Administrator shall make the first distribution on an
Exchangeable REMIC Certificate or Exchangeable Certificate received in an
exchange transaction on the Distribution Date in the month following the month
of the exchange to the Certificateholder of record as of the close of business
on the last day of the month of the exchange.
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicer.
The Depositor and the Master Servicer shall each be liable in accordance
herewith only to the extent of the obligations specifically and respectively
imposed upon and undertaken by the Depositor and the Master Servicer herein. By
way of illustration and not limitation, the Depositor is not liable for the
master servicing and administration of the Mortgage Loans, nor is it obligated
by Section 8.01 to assume any obligations of the Master Servicer or to appoint a
designee to assume such obligations, nor is it liable for any other obligation
hereunder that it may, but is not obligated to, assume unless it elects to
assume such obligation in accordance herewith.
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicer.
The Depositor and the Master Servicer will each keep in full effect its
existence, rights and franchises as a separate entity under the laws governing
its organization, and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any Person
succeeding to the business of the Depositor or the Master Servicer, shall be the
successor of the Depositor or the Master Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Xxx or Xxxxxxx Mac.
In connection with the succession to the Master Servicer under this
Agreement by any Person (i) into which the Master Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Master
Servicer, the Master Servicer shall notify the Depositor of such succession or
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appointment and shall furnish to the Depositor and the Securities Administrator
in writing and in form and substance reasonably satisfactory to the Depositor
and the Securities Administrator, all information reasonably necessary for the
Securities Administrator to accurately and timely report, pursuant to Section
3.22(d), the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section 7.03 Limitation on Liability of the Depositor, the Master Servicer
and Others.
None of the Depositor, the Master Servicer or any of the directors,
officers, employees or agents of the Depositor or of the Master Servicer shall
be under any liability to the Trust Estate or the Certificateholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer shall be indemnified
by the Trust Estate and held harmless against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither of the Depositor nor the
Master Servicer shall be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its respective duties under this
Agreement and which in its opinion may involve it in any expense or liability;
provided, however, that the Depositor or the Master Servicer may in its
discretion undertake any such action which it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Estate (except any expenses, costs
or liabilities incurred as a result of any breach of representations or
warranties of the related party or by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties of such party hereunder or by
reason of reckless disregard of obligations and duties of such party hereunder),
and the Depositor and the Master Servicer shall each be entitled to be
reimbursed therefor out of amounts attributable to the applicable Mortgage Loans
on deposit in the Master Servicer Custodial Account as provided by Section 3.11.
Section 7.04 Depositor and Master Servicer Not to Resign.
Subject to the provisions of Section 7.02, neither the Depositor nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
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resignation of the Depositor or the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Securities Administrator. No
such resignation by the Master Servicer shall become effective until the
Securities Administrator or a successor Master Servicer shall have assumed such
Master Servicer's responsibilities and obligations in accordance with Section
8.05 hereof.
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.
If any one of the following events ("Events of Default") shall occur and be
continuing:
(a) any failure by the Master Servicer to remit amounts to the Securities
Administrator for deposit into the Certificate Account in the amount and manner
provided herein so as to enable the Securities Administrator to distribute to
Holders of Certificates any payment required to be made under the terms of such
Certificates and this Agreement which continues unremedied by 12:00 P.M. New
York time on the related Distribution Date; or
(b) failure on the part of the Master Servicer duly to observe or perform
in any material respect any other covenants or agreements of the Master Servicer
set forth in the Certificates or in this Agreement, which covenants and
agreements continue unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Securities Administrator, the Trustee,
the NIMS Insurer or the Depositor, or to the Master Servicer, the Depositor, the
Securities Administrator, the NIMS Insurer and the Trustee by the Holders of
Certificates evidencing Voting Rights aggregating not less than 25% of all
Certificates affected thereby; or
(c) the entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against the Master
Servicer, or for the winding up or liquidation of the Master Servicer's affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(d) the consent by the Master Servicer to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Master
Servicer or of or relating to substantially all of its property; or the Master
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(e) failure by the Master Servicer to duly perform, within the required
time period, its obligations under Section 3.20, Section 3.21 or Section 3.22;
or
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(f) failure by the Master Servicer to make a Periodic Advance required to
be made by it pursuant to Section 3.19 by 5:00 P.M. New York time on the
Business Day preceding the related Distribution Date.
then, (i) in the case of Event of Default described in clauses (a) through (e)
hereof, so long as such Event of Default is actually known by a Responsible
Officer of the Trustee or the Depositor and shall not have been remedied by the
Master Servicer, either the Trustee or the Depositor may, and at the direction
of the Holders of Certificates evidencing Voting Rights aggregating not less
than 51% of all Certificates affected thereby shall, by notice then given in
writing to the Master Servicer (and to the Trustee, if given by the Depositor,
and to the Depositor, if given by the Trustee), terminate all of the rights and
obligations of the Master Servicer under this Agreement and (ii) in the case of
an Event of Default described in clause (f) hereof, so long as such event is
known by a Responsible Officer of the Trustee, the Trustee shall be obligated to
make such Periodic Advance and then, so long as such Event of Default shall not
have been remedied by 5:00 P.M. New York time on the related Distribution Date
(including the reimbursement to the Trustee by the Master Servicer, with
interest thereon at the Prime Rate (as set forth in The Wall Street Journal),
for any Periodic Advance made), the Trustee may, by notice given in writing to
the Master Servicer and the Depositor, terminate all of the rights and
obligations of the Master Servicer under this Agreement. On or after the receipt
by the Master Servicer of such written notice and subject to Section 8.05, all
authority and power of the Master Servicer under this Agreement, whether with
respect to the Certificates or the Mortgage Loans or otherwise, shall pass to
and be vested in the Trustee pursuant to and under this Section 8.01 and Section
8.05, unless and until such time as the Trustee shall appoint a successor Master
Servicer pursuant to Section 8.05, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the applicable Mortgage Loans and
related documents, or otherwise, including, without limitation, the recordation
of the assignments of the applicable Mortgage Loans to it. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the
responsibilities and rights of the Master Servicer hereunder, including, without
limitation, the transfer to the Trustee for the administration by it of all cash
amounts that have been deposited by the Master Servicer in the Master Servicer
Custodial Account or thereafter received by the Master Servicer with respect to
the Mortgage Loans. Upon obtaining notice or knowledge of the occurrence of any
Event of Default, the Person obtaining such notice or knowledge shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency. All
costs and expenses (including attorneys' fees) incurred in connection with
transferring the master servicing data and information to the successor Master
Servicer and amending this Agreement to reflect such succession as Master
Servicer pursuant to this Section 8.01 shall be paid by the predecessor Master
Servicer (unless the predecessor Master Servicer is the Trustee, in which event
the previous Master Servicer shall be responsible for payment of such costs and
expenses so long as the transfer of servicing is not the result of an Event of
Default on the part of the Trustee in its capacity as the predecessor Master
Servicer). Notwithstanding the termination of the Master Servicer pursuant
hereto, the Master Servicer shall remain liable for any causes of action arising
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out of any Event of Default occurring prior to such termination, subject to the
terms and conditions of this Agreement.
Section 8.02 Remedies of Trustee.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 8.01, shall have the right, in its own name as trustee of
an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filing of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
Section 8.03 Directions by Certificateholders and Duties of Trustee During
Event of Default.
During the continuance of any Event of Default, Holders of Certificates
evidencing Voting Rights aggregating not less than 25% (or such other percentage
as may be required herein) of each Class of Certificates affected thereby may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Agreement; provided, however, that the Trustee shall be under
no obligation to pursue any such remedy, or to exercise any of the trusts or
powers vested in it by this Agreement (including, without limitation, (a) the
conducting or defending of any administrative action or litigation hereunder or
in relation hereto, and (b) the terminating of the Master Servicer or any
successor Master Servicer from its rights and duties as master servicer
hereunder) at the request, order or direction of any of the Certificateholders,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby and, provided further,
that, subject to the provisions of Section 9.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of the Master Servicer and upon
Event of Default.
In the event that a Responsible Officer of the Trustee shall have actual
knowledge of any failure of the Master Servicer specified in Section 8.01(a) or
(b) which would become an Event of Default upon such Master Servicer's failure
to remedy the same after notice, the Trustee shall give notice thereof to the
Master Servicer. If a Responsible Officer of the Trustee shall have knowledge of
an Event of Default, the Trustee shall give prompt written notice thereof to the
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Securities Administrator and the Securities Administrator shall give prompt
written notice thereof to the Certificateholders in accordance with Section
8.01.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) (i) Within 90 days of the time the Master Servicer (and the Trustee if
such notice of termination is delivered by the Depositor) receives a notice of
termination pursuant to Section 8.01, the Trustee (or other named successor)
shall, subject to Section 3.07, be the successor in all respects to the Master
Servicer in its capacity as master servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and thereof, as applicable, or shall
appoint a successor pursuant to Section 3.07. Notwithstanding the foregoing, (i)
the parties hereto agree that the Trustee, in its capacity as successor Master
Servicer, immediately will assume all of the obligations of the Master Servicer
to make advances (including, without limitation, Advances pursuant to Section
3.19) under this Agreement, (ii) the Trustee, in its capacity as successor
Master Servicer, shall not be responsible for the lack of information and/or
documents that it cannot obtain through reasonable efforts and (iii) under no
circumstances shall any provision of this Agreement be construed to require the
Trustee (a) acting in its capacity as successor to the Master Servicer in its
obligation to make advances (including Advances pursuant to Section 3.19) 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, (b) to be liable for any
losses of the Master Servicer or any acts or omissions of the predecessor Master
Servicer hereunder, (c) to be obligated to make Advances if it is prohibited
from doing so by applicable law, (d) to be obligated to effectuate repurchases
or substitutions of the Mortgage Loans hereunder or (e) to be obligated to
perform any obligation of the Master Servicer under Section 3.20, Section 3.21
or Section 3.22 with respect to any period of time during which the Trustee was
not the Master Servicer. Subject to Section 8.05(b), as compensation therefor,
the Trustee shall be entitled to such compensation as the terminated Master
Servicer would have been entitled to hereunder if no such notice of termination
had been given, except for those amounts due to the Master Servicer as
reimbursement for Advances previously made or amounts previously expended and
are otherwise reimbursable hereunder. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution having a net worth of not less
than $10,000,000 as the successor to the terminated Master Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer hereunder; provided, however, that any such institution
appointed as a successor Master Servicer shall not, as evidenced in writing by
each Rating Agency, adversely affect the then current rating of any Class of
Certificates immediately prior to the termination of the terminated Master
Servicer. The appointment of a successor Master Servicer shall not affect any
liability of the predecessor Master Servicer which may have arisen under this
Agreement prior to its termination as Master Servicer, nor shall any successor
Master Servicer be liable for any acts or omissions of the predecessor Master
Servicer or for any breach by the Master Servicer of any of its representations
or warranties contained herein or in any related document or agreement. Pending
appointment of a successor to a terminated Master Servicer hereunder, unless the
Trustee is prohibited by law from so acting, the Trustee shall act in such
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capacity as provided above. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. All Master Servicing Transfer Costs shall be paid by the
predecessor Master Servicer (unless the predecessor Master Servicer is the
Trustee, in which event the previous Master Servicer shall be responsible for
payment of such costs and expenses so long as the transfer of servicing is not
the result of an Event of Default on the part of the Trustee in its capacity as
the predecessor Master Servicer) upon presentation of reasonable documentation
of such costs, and if such predecessor Master Servicer defaults in its
obligation to pay such costs, such costs shall be paid by the successor Master
Servicer or the Trustee (in which case the successor Master Servicer or the
Trustee shall be entitled to reimbursement therefor from the assets of the
Trust).
(b) In connection with the appointment of a successor Master Servicer or
the assumption of the duties of the Master Servicer, as specified in Section
8.05(a), the Trustee may make such arrangements for the compensation of such
successor as it and such successor shall agree; provided, however, that such
compensation shall not exceed the compensation of the Master Servicer being
replaced.
(c) Any successor, including the Trustee, to the Master Servicer as master
servicer shall during the term of its service as master servicer maintain in
force (i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as master servicer hereunder and (ii) a fidelity
bond in respect of its officers, employees and agents to the same extent as the
Master Servicer is so required pursuant to Section 3.03.
Section 8.06 Notification to Certificateholders.
Upon any termination or appointment of a successor to the Master Servicer
pursuant to this Article VIII, the Securities Administrator shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator.
(a) (i) 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
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exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs.
The Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee and the Securities Administrator
which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however, that neither the Trustee nor
the Securities Administrator shall be responsible for the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or the Depositor hereunder.
(b) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misfeasance; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement, the
Trustee and the Securities Administrator shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and the Securities Administrator and, in the
absence of bad faith on the part of the Trustee and the Securities
Administrator, the Trustee and the Securities Administrator may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and the Securities Administrator by the Depositor or the
Master Servicer and which on their face, do not contradict the requirements
of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
grossly negligent in ascertaining the pertinent facts;
(iii) The Trustee and the Securities Administrator 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 or
an Event of Default under Section 8.01 unless a Responsible Officer of the
Trustee obtains actual knowledge of such default or Event of Default or any
Responsible Officer of the Trustee receives written notice of such default
or Event of Default at its Corporate Trust Office from the Master Servicer,
the Securities Administrator, the Depositor or any Certificateholder. The
Securities Administrator shall not be charged with knowledge of any default
or an Event of Default under Section 8.01 unless a Responsible Officer of
the Securities Administrator obtains actual knowledge of such failure or
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event or any Responsible Officer of the Securities Administrator receives
written notice of such default or Event of Default at its Corporate Trust
Office from the Master Servicer, the Trustee, the Depositor or any
Certificateholder; and
(v) No provision in this Agreement shall require the Trustee or the
Securities Administrator to expend or risk its own funds or otherwise incur
any personal financial liability in the performance of any of its duties as
Trustee or Securities Administrator hereunder, or in the exercise of any of
its rights or powers, if the Trustee or the Securities Administrator shall
have reasonable grounds for believing that repayment of funds or adequate
indemnity or security satisfactory to it against such risk or liability is
not reasonably assured to it and none of the provisions contained in this
Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement.
(c) Subject to the conditions set forth in this Section 9.01(c), the
Securities Administrator is permitted to utilize one or more Subcontractors to
perform certain of its obligations hereunder. The Securities Administrator shall
promptly upon request provide to the Depositor a written description (in form
and substance satisfactory to the Depositor) of the role and function of each
Subcontractor utilized by the Securities Administrator, specifying (i) the
identity of each such Subcontractor that is a Servicing Function Participant and
(ii) which elements of the Servicing Criteria will be addressed in Assessments
of Compliance provided by each Servicing Function Participant. As a condition to
the utilization by the Securities Administrator of any Servicing Function
Participant, the Securities Administrator shall cause any such Servicing
Function Participant for the benefit of the Depositor to comply with the
provisions of Section 3.20 of this Agreement to the same extent as if such
Servicing Function Participant were the Securities Administrator. The Securities
Administrator shall be responsible for obtaining from each such Servicing
Function Participant and delivering to the applicable Persons any Assessment of
Compliance and related Attestation Report required to be delivered by such
Servicing Function Participant under Section 3.20, in each case as and when
required to be delivered.
Notwithstanding the foregoing, if the Securities Administrator engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, the Securities Administrator shall be responsible for determining
whether such Subcontractor is an Additional Servicer.
The Securities Administrator shall indemnify the Depositor, the Sponsor,
the Trustee, the Custodian, the Master Servicer and any of their respective
directors, officers, employees or agents and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain in any way related to a breach of the
Securities Administrator's obligation set forth in the preceding paragraph or
the failure of the Securities Administrator to perform any of its obligations
under Section 3.20, Section 3.21, Section 3.22 or this Section 9.01(c).
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(d) Xxxxx Fargo Bank, N.A., in its capacity as Supplemental Interest Trust
Trustee, is hereby directed to execute, deliver and perform the obligations on
behalf of the Supplemental Interest Trust (including making any representations)
under the Interest Rate Agreements on the Closing Date and to enforce the
obligations of the Swap Provider and the Corridor Provider under such Interest
Rate Agreements thereafter, including by exercising any right that the
Supplemental Interest Trust Trustee may have to designate an "Early Termination
Date" under each Interest Rate Agreement upon the occurrence of an "Event of
Default" or a "Termination Event" thereunder. Upon the occurrence of an "Early
Termination Date" under an Interest Rate Agreement, the Depositor shall use
reasonable efforts to replace such Interest Rate Agreement with one that is
furnished by a replacement for the Swap Provider or Corridor Provider, as the
case may be, acceptable to each Rating Agency, and the Supplemental Interest
Trust Trustee shall hold in trust any amount that is paid to it by the Swap
Provider or Corridor Provider, as the case may be, in respect of any such "Early
Termination Date" and apply such amount to the purchase of the related
replacement. If any portion of such amount cannot be so used (either because a
replacement for such Interest Rate Agreement is not available or such amount
exceeds the amount necessary to purchase such replacement), the Supplemental
Interest Trust Trustee shall deposit such portion in the Swap Account. If such
amount is insufficient to purchase a replacement for the applicable Interest
Rate Agreement, the Supplemental Interest Trust Trustee shall apply such amount
to replace so much of the applicable Interest Rate Agreement as it is possible
to replace with such amount. If the Swap Provider or the Corridor Provider
transfers its rights and obligations under the related Interest Rate Agreement
to another party in accordance therewith or the Depositor replaces an Interest
Rate Agreement with one that is furnished by a replacement for the Swap Provider
or Corridor Provider, as the case may be, acceptable to each Rating Agency in
accordance with this Agreement, then the Supplemental Interest Trust Trustee
shall execute and deliver the related replacement for or novation of the related
Interest Rate Agreement.
The Depositor hereby represents to the Supplemental Interest Trust Trustee
that any representations made by the Supplemental Interest Trust Trustee under
an Interest Rate Agreement on behalf of the Supplemental Interest Trust are true
and accurate.
In addition, upon its receipt from BANA of each "significance estimate" of
an Interest Rate Agreement pursuant to the Mortgage Loan Purchase Agreement, the
Securities Administrator shall, on the basis of such "significance estimate,"
calculate each Interest Rate Agreement's "significance percentage" of the
aggregate Class Certificate Balance of the related Certificates as of the date
of such "significance estimate" in accordance with Item 1115 of Regulation AB.
For the avoidance of doubt, such "significance percentage" shall be a fraction,
expressed as a percentage, the numerator of which is such "significance
estimate" and the denominator of which is such related Class Certificate Balance
or Balances. For so long as the Swap Provider and the Corridor Provider are the
same entity, the "significance percentage" for each such agreement shall be
calculated on an aggregate basis. The Securities Administrator also shall
determine as of such date whether such "significance percentage" would require
disclosure of financial information with respect to the Swap Provider and/or
Corridor Provider, in any report required to be filed with the Commission
pursuant to Section 3.22, and if it does, the Securities Administrator shall
make a written request of the Swap Provider or Corridor Provider, as the case
may be, for such information in accordance with the schedule to the Interest
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Rate Swap Agreement (or the applicable Interest Rate Agreement, if the Swap
Provider and Corridor Provider are no longer the same entity) not later than the
third Business Day after it receives the related "significance estimate." Upon
its receipt of such information, the Securities Administrator shall furnish such
information to the Depositor and, if such information is approved by the
Depositor, shall include such information in the related report as provided in
Section 3.22.
If the Corridor Provider and the Swap Provider are no longer the same
entity, the Securities Administrator shall calculate the "significance
percentage" separately for the Interest Rate Corridor Agreement and the Interest
Rate Swap Agreement.
(e) The Trustee is hereby directed, on or prior to the Closing Date, not in
its individual capacity but solely on behalf of the Trust, to execute and
deliver the BANA Servicing Agreement and each assignment and recognition
agreement constituting a portion of a Servicing Agreement in the forms presented
to it by the Depositor, for the benefit of the Holders of the Certificates. The
Trustee shall not be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trustee on behalf
of the Trust under any Servicing Agreement or any other related documents, as to
all of which recourse shall be had solely to the assets of the Trust in
accordance with the terms of this Agreement. Every provision of this Agreement
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall apply to the Trustee's execution of any Servicing Agreement
and the performance of any obligations thereunder.
(f) Notwithstanding any other provision of this Agreement, any Servicing
Agreement or any other agreement, the Trustee shall not be required to review,
approve or consent to any modification proposed to be made by a Servicer or any
other Person to any Mortgage Loan.
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;
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(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; however, subject to Section
9.01(b)(v), nothing contained herein shall relieve the Trustee or the
Securities Administrator of the obligation, upon the occurrence of an Event
of Default (which has not been cured or waived), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent investor would
exercise or use under the circumstances in the conduct of such investor's
own affairs;
(iv) Neither the Trustee nor the Securities Administrator shall be
personally liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default which may have occurred,
neither the Trustee nor the Securities Administrator shall be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless requested
in writing so to do by Holders of Certificates of any Class evidencing, as
to such Class, Percentage Interests, aggregating not less than 50%;
provided, however, that if the payment within a reasonable time to the
Trustee or the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee or the Securities Administrator, as the
case may be, 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.
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The recitals contained herein and in the Certificates (other than the
execution of, and the authentication on the Certificates) shall be taken as the
statements of the Depositor or the Master Servicer, as applicable, and neither
the Trustee nor the Securities Administrator assumes responsibility for their
correctness. Neither the Trustee nor the Securities Administrator makes any
representations as to the validity or sufficiency of this Agreement or of the
Certificates or any Mortgage Loans save that the Trustee and the Securities
Administrator represent that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, subject, as to enforcement of remedies,
to applicable insolvency, receivership, moratorium and other laws affecting the
rights of creditors generally, and to general principles of equity and the
discretion of the court (regardless of whether enforcement of such remedies is
considered in a proceeding in equity or at law).
Neither the Trustee nor the Securities Administrator shall at any time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority
or for or with respect to the sufficiency of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation: the existence, condition and ownership
of any Mortgaged Property; the existence and enforceability of any hazard
insurance thereon (other than if the Trustee shall assume the duties of the
Master Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the Trustee as the successor to the Master Servicer); the validity
of the assignment of any Mortgage Loan to the Trustee or of any intervening
assignment; the completeness of any Mortgage Loan; the performance or
enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Master Servicer pursuant to Section 8.05 and thereupon only for
the acts or omissions of the Trustee as successor to the Master Servicer); the
compliance by the Depositor or the Master Servicer with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation; any investment of monies by or
at the direction of the Master Servicer or any loss resulting therefrom, it
being understood that the Trustee and the Securities Administrator shall remain
responsible for any Trust property that it may hold in its individual capacity;
the acts or omissions of any of the Depositor, the Master Servicer (other than
if the Trustee shall assume the duties of the Master Servicer pursuant to
Section 8.05 and thereupon only for the acts or omissions of the Trustee as
successor to the Master Servicer), or any Mortgagor; any action of the Master
Servicer (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.05 and thereupon only for the acts or omissions
of the Trustee as successor to the Master Servicer) taken in the name of the
Trust or the Securities Administrator; the failure of the Master Servicer to act
or perform any duties required of it as agent of the Trust or the Securities
Administrator hereunder; or any action by the Trustee or the Securities
Administrator taken at the instruction of the Master Servicer (other than if the
Trustee shall assume the duties of the Master Servicer pursuant to Section 8.05
and thereupon only for the acts or omissions of the Trustee as successor to the
Master Servicer); provided, however, that the foregoing shall not relieve the
Trustee or the Securities Administrator of its obligation to perform its duties
under this Agreement, including, without limitation, the Trustee's review of the
Mortgage Files pursuant to Section 2.02. The Trustee shall file any continuation
statement with respect to any financing statement for which the Trustee is the
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secured party in any public office at any time required to maintain the
perfection of any security interest or lien granted to it hereunder.
Section 9.04 Trustee and Securities Administrator May Own Certificates.
Each of the Trustee and the Securities Administrator in their individual or
any other capacities may become the owner or pledgee of Certificates with the
same rights it would have if it were not Trustee or the Securities Administrator
and may otherwise deal with the Master Servicer or any of its affiliates with
the same right it would have if it were not the Trustee or the Securities
Administrator.
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator.
The Trustee and the Securities Administrator hereunder shall at all times
be (a) an institution the deposits of which are fully insured by the FDIC and
(b) a corporation or banking association organized and doing business under the
laws of the United States of America or of any State, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of not
less than $50,000,000.00 and subject to supervision or examination by Federal or
State authority and (c) with respect to every successor trustee or securities
administrator hereunder either an institution (i) the long-term unsecured debt
obligations of which are rated at xxxxx "X0" by Moody's and "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, the Master
Servicer or any Servicer. If such corporation or banking association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.05, the combined capital and surplus of such corporation or
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. The principal
office of the Trustee and the Securities Administrator (other than the initial
Trustee or Securities Administrator) shall be in a state with respect to which
an Opinion of Counsel has been delivered to such Trustee at the time such
Trustee or Securities Administrator is appointed Trustee or Securities
Administrator to the effect that the Trust will not be a taxable entity under
the laws of such state. In case at any time the Trustee or the Securities
Administrator shall cease to be eligible in accordance with the provision of
this Section 9.05, the Trustee or the Securities Administrator, as the case may
be, shall resign immediately in the manner and with the effect specified in
Section 9.06.
The Securities Administrator (i) may not be an originator, the Master
Servicer, Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator is in an institutional trust department, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be either an institution (a) the long-term
unsecured debt obligations of which are rated at xxxxx "X0" by Moody's, at least
"A" by S&P and at least "A" by Fitch and or (b) whose serving as Securities
Administrator hereunder would not result in the lowering of the ratings
originally assigned to any Class of Certificates. 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.
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Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint, or petition a court of
competent jurisdiction to appoint, an institution qualified under Section 9.05
hereof as the successor to the Securities Administrator hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
a Securities Administrator hereunder; provided, however, that any such
institution appointed as successor Securities Administrator shall not, as
evidenced in writing by each Rating Agency, adversely affect the then current
rating of any Class of Certificates immediately prior to the termination of the
Securities Administrator. The Trustee shall notify the Rating Agencies of any
change of the Securities Administrator.
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator.
The Trustee or the Securities Administrator may at any time resign and be
discharged from the trust hereby created by giving written notice thereof to the
Master Servicer, the NIMS Insurer and the Depositor and mailing a copy of such
notice to all Holders of record. The Trustee or the Securities Administrator, as
applicable, shall also mail a copy of such notice of resignation to each Rating
Agency. Upon receiving such notice of resignation, the Depositor shall use its
best efforts to promptly appoint a mutually acceptable successor Trustee or
Securities Administrator, as applicable, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee or
Securities Administrator, as applicable, and one copy to the successor Trustee
or Securities Administrator, as applicable. If no successor Trustee or
Securities Administrator, as the case may be, shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee or Securities Administrator may petition
any court of competent jurisdiction for the appointment of a successor Trustee
or Securities Administrator.
If at any time the Trustee or Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 9.05 and shall fail to
resign after written request therefor by the Master Servicer, or if at any time
the Trustee or the Securities Administrator shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator or of their respective property shall be appointed, or
any public officer shall take charge or control of the Trustee or the Securities
Administrator or of their respective property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if at any time the Securities
Administrator has failed to duly perform, within the required time period, its
obligations under Section 3.20, Section 3.21 or Section 3.22, then the Master
Servicer or the Depositor may remove the Trustee or the Securities
Administrator, as the case may be, and appoint a successor trustee or securities
administrator by written instrument, in duplicate, one copy of which instrument
shall be delivered to the Trustee or the Securities Administrator, as
applicable, so removed and one copy to the successor.
The Holders of Certificates evidencing not less than 50% of the Voting
Rights may at any time remove the Trustee or the Securities Administrator by
written instrument or instruments delivered to the Master Servicer and the
Trustee or the Securities Administrator, as applicable; the Master Servicer
shall thereupon use their best efforts to appoint a mutually acceptable
successor Trustee or Securities Administrator, as the case may be, in accordance
with this Section 9.06.
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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.
Notwithstanding anything to the contrary contained herein, the Master
Servicer and the Securities Administrator shall at all times be the same Person.
Section 9.07 Successor Trustee or Securities Administrator.
Any successor Trustee or successor Securities Administrator appointed as
provided in Section 9.06 shall execute, acknowledge and deliver to the Master
Servicer and to its predecessor Trustee or Securities Administrator, as
applicable, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee or Securities
Administrator shall become effective and such successor Trustee or Securities
Administrator, as the case may be, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with like effect as if originally named as Trustee or
Securities Administrator, as applicable, herein. The predecessor Trustee or
Securities Administrator shall duly assign, transfer, deliver and pay over to
the successor Trustee or Securities Administrator, as the case may be, the whole
of the Mortgage Files and related documents and statements held by it hereunder,
together with all instruments of transfer and assignment or other documents
properly executed as may be reasonably required to effect such transfer and such
of the records or copies thereof maintained by the predecessor Trustee or
Securities Administrator in the administration hereof as may be reasonably
requested by the successor Trustee or Securities Administrator, as the case may
be, and shall thereupon be discharged from all duties and responsibilities under
this Agreement; provided, however, that if the predecessor Trustee or Securities
Administrator has been removed pursuant to the third paragraph of Section 9.06,
all reasonable expenses of the predecessor Trustee or Securities Administrator
incurred in complying with this Section 9.07 shall be reimbursed by the Trust.
No successor Trustee or Securities Administrator shall accept appointment
as provided in this Section 9.07 unless at the time of such appointment such
successor Trustee or Securities Administrator, as the case may be, shall be
eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee or Securities
Administrator, as applicable, as provided in this Section 9.07, the Master
Servicer shall cooperate to mail notice of the succession of such Trustee or
Securities Administrator, as the case may be, hereunder to the NIMS Insurer, all
Holders of Certificates at their addresses as shown in the Certificate Register
and to each Rating Agency. If the Master Servicer fails to mail such notice
within ten days after acceptance of appointment by the successor Trustee or
Securities Administrator, the successor Trustee or Securities Administrator, as
the case may be, shall cause such notice to be mailed at the expense of the
Master Servicer.
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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. In
connection with the succession to the Trustee or the Securities Administrator
under this Agreement by any Person (i) into which the Trustee or the Securities
Administrator may be merged or consolidated, or (ii) which may be appointed as a
successor to the Trustee or the Securities Administrator, the Trustee or the
Securities Administrator, as the case may be, shall notify the Depositor of such
succession or appointment and shall furnish to the Depositor in writing and in
form and substance reasonably satisfactory to the Depositor, all information
reasonably necessary for the Securities Administrator to accurately and timely
report, pursuant to Section 3.22(d), the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
Section 9.09 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the Master Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
as co-trustee or separate trustee of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity, such title to the Trust
Estate, or any part thereof, and, subject to the other provision of this Section
9.09, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If one or both of the
Master Servicer shall not have joined in such appointment within ten days after
the receipt by it of a request to do so, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor Trustee under Section
9.05 and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.07. The
Securities Administrator shall be responsible for the fees of any co-trustee or
separate trustee appointed hereunder.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 9.09, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Estate or any portion
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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") that shall be authorized to act on behalf of the
Securities Administrator in authenticating or countersigning Certificates.
Initially, the Authenticating Agent shall be Xxxxx Fargo Bank, N.A. Wherever
reference is made in this Agreement to the authentication or countersigning of
Certificates by the Securities Administrator or the Securities Administrator's
certificate of authentication or countersigning, such reference shall be deemed
to include authentication or countersigning on behalf of the Securities
Administrator by an Authenticating Agent and a certificate of authentication or
countersignature executed on behalf of the Securities Administrator by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the Master
Servicer and must be a corporation or banking association organized and doing
business under the laws of the United States of America or of any State, having
a place of business in New York, New York, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by Federal or State authorities.
Any corporation or banking association into which any Authenticating Agent
may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation or banking association succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
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without the execution or filing of any paper or any further act on the part of
the Securities Administrator or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Securities Administrator and to the Master Servicer. The
Securities Administrator may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case, at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Securities Administrator may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent.
Section 9.11 Securities Administrator's Fees and Expenses and Trustee's
Fees and Expenses.
The Trustee, as compensation for its services hereunder, shall be entitled
to a fee in an amount agreed upon between the Trustee and the Securities
Administrator, payable by the Securities Administrator out of its own funds and
not out of any funds of the Trust Estate. The Securities Administrator shall be
entitled to investment income from amounts on deposit in the Certificate Account
as compensation for its services hereunder. The Trustee and the Securities
Administrator, as the case may be, and any director, officer, employee or agent
of the Trustee or the Securities Administrator, as the case may be, shall be
indemnified and held harmless by the Trust against any claims, damage, loss,
liability or expense (including reasonable attorney's fees) (a) incurred in
connection with or arising from or relating to (i) this Agreement, (ii) the
Certificates, or (iii) the performance of any of the Trustee's or Securities
Administrator's, as the case may be, duties hereunder, other than any claims,
damage, loss, liability or expense incurred by reason of willful misfeasance,
bad faith or gross negligence in the performance of any of the Trustee's or
Securities Administrator's, as the case may be, duties hereunder, (b) resulting
from any tax or information return which was prepared by, or should have been
prepared by, the Master Servicer and (c) arising out of the transfer of any
ERISA Restricted Certificate or the 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). 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
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removal of the Trustee or the Securities Administrator, as applicable,
hereunder.
Section 9.12 Appointment of Custodian.
The Trustee may at any time on or after the Closing Date, with the consent
of the Depositor and the Master Servicer, appoint one or more Custodians to hold
all or a portion of the Mortgage Files as agent for the Trustee, by entering
into a custodial agreement in a form acceptable to the Depositor and the Master
Servicer. Subject to this Article IX, the Trustee agrees to enforce the terms
and provisions thereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have a combined capital and
surplus of at least $10,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File.
Each Custodian shall indemnify the Depositor, the Sponsor, the Trustee, the
Master Servicer, the Securities Administrator and any of their respective
directors, officers, employees or agents and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other reasonable
costs, fees and expenses that any of them may sustain in any way related to the
failure of a Custodian to perform any of its obligations under Section 3.21.
Notwithstanding the foregoing, in no event shall a Custodian be liable for any
consequential, indirect or punitive damages pursuant to this Section 9.12.
Section 9.13 Paying Agents.
The Securities Administrator may appoint one or more Paying Agents (each, a
"Paying Agent") which shall be authorized to act on behalf of the Securities
Administrator in making withdrawals from the Certificate Account and
distributions to Certificateholders as provided in Section 3.09 and Section
5.02. Wherever reference is made in this Agreement to the withdrawal from the
Certificate Account by the Securities Administrator, such reference shall be
deemed to include such a withdrawal on behalf of the Securities Administrator by
a Paying Agent. Initially, the Paying Agent shall be Xxxxx Fargo Bank, N.A.
Whenever reference is made in this Agreement to a distribution by the Securities
Administrator or the furnishing of a statement by the Securities Administrator,
such reference shall be deemed to include such a distribution or furnishing on
behalf of the Securities Administrator by a Paying Agent. Each Paying Agent
shall provide to the Securities Administrator such information concerning the
Certificate Account as the Securities Administrator shall request from time to
time. Each Paying Agent must be reasonably acceptable to the Master Servicer and
must be a corporation or banking association organized and doing business under
the laws of the United States of America or of any state, having (except in the
case of the Trustee or the Securities Administrator) a principal office and
place of business in New York, New York, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by federal or state authorities. Any fees
and expenses (but not including any indemnity payments) of a Paying Agent
appointed pursuant to this Agreement shall be payable by the Securities
Administrator out of its own funds and not out of any funds in the Trust Estate.
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Any corporation into which any Paying Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which any Paying Agent shall be a party, or any
corporation succeeding to the corporate agency business of any Paying Agent,
shall continue to be the Paying Agent provided that such corporation after the
consummation of such merger, conversion, consolidation or succession meets the
eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee, the Securities Administrator and to the Master
Servicer; provided that the Paying Agent has returned to the Certificate Account
or otherwise accounted, to the reasonable satisfaction of the Securities
Administrator, for all amounts it has withdrawn from the Certificate Account.
The Securities Administrator may, upon prior written approval of the Master
Servicer, at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent and to the Master Servicer. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any Paying Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 9.13, the Securities
Administrator may appoint, upon prior written approval of the Master Servicer, a
successor Paying Agent, shall give written notice of such appointment to the
Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Paying Agent upon acceptance of its
appointment hereunder shall become vested with all rights, 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.
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Section 9.16 Suits for Enforcement.
In case an Event of Default or other default by the Master Servicer or the
Depositor hereunder shall occur and be continuing, the Trustee, in its
discretion, may proceed to protect and enforce its rights and the rights of the
Holders of Certificates under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution of
any power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy, as the Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Trustee and the
Certificateholders.
Section 9.17 Waiver of Bond Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby waives,
any requirement of any jurisdiction in which the Trust, or any part thereof, may
be located that the Trustee post a bond or other surety with any court, agency
or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement.
The Trustee shall be relieved of, and each Certificateholder hereby waives,
any requirement of any jurisdiction in which the Trust, or any part thereof, may
be located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage
Loans.
Subject to Section 10.02, the respective obligations and responsibilities
of the Depositor, the Master Servicer, the Securities Administrator and the
Trustee created hereby (other than the obligation of the Securities
Administrator to make certain payments to Certificateholders after the Final
Distribution Date and to send certain notices as hereinafter set forth and the
obligations of the Securities Administrator pursuant to Sections 5.05(b) and
5.06(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 later of (I) the purchase by the Master
Servicer of all of the Shifting Interest Mortgage Loans and all related REO
Property remaining in the Trust Estate at a price equal to the sum of (x) 100%
of the unpaid principal balance of each Shifting Interest Mortgage Loan (other
than any Shifting Interest Mortgage Loan as to which REO Property has been
acquired and whose fair market value is included pursuant to clause (y) below),
(y) the fair market value of such REO Property plus one month's interest at the
related Mortgage Interest Rate on the unpaid principal balance of each Shifting
Interest Mortgage Loan (including any Shifting Interest Mortgage Loan as to
which REO Property has been acquired) and (z) any Reimbursement Amount owed to
the Trust pursuant to Section 2.02 related to a Shifting Interest Mortgage Loan
and (II) the purchase by the NIMS Insurer, if there is a NIMS Insurer, or if
there is no NIMS Insurer, the majority Holder of the Class CE Certificates (or
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if (i) such Holder fails to purchase on the OC Optional Termination Date or (ii)
such Holder is the Sponsor, or an affiliate of the Sponsor, the Master Servicer
of the Mortgage Loans) of all of the OC Mortgage Loans and all related REO
Property remaining in the Trust Estate at a price equal to the sum of (w) 100%
of the unpaid principal balance of each OC Mortgage Loan (other than any OC
Mortgage Loan as to which REO Property has been acquired and whose fair market
value is included pursuant to clause (y) below), (x) the fair market value of
such REO Property plus one month's interest at the related Mortgage Interest
Rate on the unpaid principal balance of each OC Mortgage Loan (including any OC
Mortgage Loan as to which REO Property has been acquired), (y) any Reimbursement
Amount owed to the Trust pursuant to Section 2.02 related to an OC Mortgage Loan
and (z) any Swap Termination Payments owed to the Swap Provider pursuant to the
Interest Rate Swap Agreements or (b) the final payment or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Estate and the disposition of all REO Property.
No party may exercise its purchase option with respect to the applicable
Mortgage Loans, until all Reimbursement Amounts for such Mortgage Loans have
been paid. The Securities Administrator shall notify the Sponsor, upon notice of
a party's intent to exercise its purchase option of any related Reimbursement
Amount outstanding.
Regardless of the foregoing, in no event shall the Trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof.
The right of the Master Servicer to exercise its purchase option with
respect to the Shifting Interest Mortgage Loans is conditioned upon (i) (A) the
aggregate Stated Principal Balance of all the Shifting Interest Mortgage Loans
being less than 10% of the aggregate unpaid principal balance of all the
Shifting Interest Mortgage Loans as of the Cut-off Date and (B) the purchase
price calculated pursuant to clause (a)(I) of the first paragraph of this
Section 10.01 being less than or equal to the aggregate fair market value of the
Shifting Interest Mortgage Loans (other than any Shifting Interest Mortgage Loan
as to which REO Property has been acquired) and the related REO Properties;
provided, however, that each clause (B) in this paragraph shall not apply to any
purchase by the Master Servicer if, at the time of the purchase, the Master
Servicer 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 first paragraph of this Section 10.01 will be
determined by the Master Servicer as of the close of business on the third
Business Day next preceding the date upon which notice of any such termination
is furnished to Certificateholders pursuant to this Article X. If such right is
exercised, the Trustee (or Custodian on the Trustee's behalf) shall, promptly
following payment of the purchase price, release to the Master Servicer or its
designee the Mortgage Files pertaining to the Shifting Interest Mortgage Loans
being purchased. The Master Servicer's right, title and interest in and to such
purchased Shifting Interest Mortgage Loans and the related Mortgage Files shall
be subject to the servicing rights of the Servicers pursuant to the related
Servicing Agreements.
The right of a party to exercise its purchase option with respect to the OC
Mortgage Loans is conditioned upon (A) the aggregate Stated Principal Balance of
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all of the OC Mortgage Loans being less than 10% of the aggregate unpaid
principal balance of the OC Mortgage Loans as of the Cut-off Date and (B) the
purchase price calculated pursuant to clause (a)(III) of the first paragraph of
this Section 10.01 being less than or equal to the aggregate fair market value
of the OC Mortgage Loans (other than any OC 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 a party if, at the time of the
purchase, such party is not subject to regulation by the Office of the
Comptroller of the Currency, the FDIC, the Federal Reserve or the OTS. Fair
market value for purposes of this paragraph and the first paragraph of this
Section 10.01 will be determined by the Master Servicer as of the close of
business on the third Business Day next preceding the date upon which notice of
any such termination is furnished to Certificateholders pursuant to this Article
X. If such right is exercised, the Trustee (or Custodian on the Trustee's
behalf) shall, promptly following payment of the purchase price, release to the
party exercising its purchase option or its designee the Mortgage Files
pertaining to the Mortgage Loans being purchased. The right, title and interest
of the party exercising its purchase option with respect to the OC Mortgage
Loans in and to such purchased OC Mortgage Loans and the related Mortgage Files
shall be subject to the servicing rights of the Servicers pursuant to the
related Servicing Agreements.
Notice of the exercise of any purchase option pursuant to this Section
10.01 and notice of any termination of the Trust or any portion of the Trust,
specifying the Final Distribution Date or the applicable Distribution Date, upon
which the applicable Certificateholders may surrender their Certificates to the
Securities Administrator for payment of the final distribution and for
cancellation, shall be given promptly by the Securities Administrator by letter
to the Certificateholders mailed not earlier than the 10th day and not later
than the 15th day of the month next preceding the month of such final
distribution specifying (1) the Final Distribution Date or the applicable
Distribution Date, upon which final payment of the applicable Certificates will
be made upon presentation and surrender of such Certificates at the office or
agency of the Securities Administrator therein designated, (2) the amount of any
such final payment and (3) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the applicable Certificates at the office or agency of the
Securities Administrator therein specified.
Upon the exercise of its purchase option, the applicable party shall remit
to the Securities Administrator for deposit to the Certificate Account on or
before the Final Distribution Date or the applicable Distribution Date, in
immediately available funds an amount equal to the amount necessary to make the
amount, if any, on deposit in the Certificate Account on such Final Distribution
Date or Distribution Date, as applicable, equal to the purchase price for the
related assets of the Trust Estate or any portion of the Trust Estate computed
as above provided together with a statement as to the amount to be distributed
on each applicable Class of Certificates pursuant to the next succeeding
paragraph.
Upon the exercise of any purchase option pursuant to this Section 10.01,
the Trustee shall assign to the applicable party exercising its purchase option
each of the applicable mortgage loan representations and warranties made
pursuant to the applicable Servicing Agreement, the North Fork Bank Assignment
Agreement and the Mortgage Loan Purchase Agreement, without recourse,
representation or warranty.
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Upon presentation and surrender of the applicable Certificates, the
Securities Administrator shall cause to be distributed to Certificateholders of
each Class, in the order set forth in Section 5.02 or 5.03 hereof, as
applicable, on the Final Distribution Date or the applicable Distribution Date,
and in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, all cash on hand with respect to the
related REMICs (other than the amounts retained to meet claims). An amount shall
be distributed in respect of interest and principal to the Uncertificated
Lower-Tier II Interests, the Uncertificated Shifting Interest Lower-Tier
Interests and the Uncertificated Shifting Interest Middle-Tier Interests, as
applicable, in the same manner as principal and interest are distributed to such
Uncertificated Lower-Tier II Interests, Uncertificated Shifting Interest
Lower-Tier Interests and Uncertificated Shifting Interest Middle-Tier Interests,
respectively, as provided in Section 5.02 or 5.03, as applicable.
If the applicable Certificateholders do not surrender their Certificates
for final payment and cancellation on or before the Final Distribution Date, the
Securities Administrator shall on such date cause all related funds in the
Certificate Account not distributed in final distribution to such
Certificateholders of such Group to continue to be held by the Securities
Administrator in an Eligible Account for the benefit of such Certificateholders
and the Securities Administrator shall give a second written notice to the
remaining applicable Certificateholders to surrender their Certificates for
cancellation and receive a final distribution with respect thereto. If within
one (1) year after the second notice all the applicable Certificates shall not
have been surrendered for cancellation, the Securities Administrator may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining applicable Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds on deposit in
such Eligible Account.
Section 10.02 Additional Termination Requirements.
(a) (i) If a party exercises its purchase option as provided in Section
10.01, the related REMIC or REMICs 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 (x)
result in the imposition of taxes on "prohibited transactions" or "prohibited
contributions" in respect of any REMIC created hereunder as defined in the REMIC
Provisions, or (y) cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any related Certificates are outstanding:
(ii) Within 90 days prior to the related Final Distribution Date set
forth in the notice given by the Securities Administrator pursuant to
Section 10.01, the Securities Administrator shall adopt plans of
liquidation for each related REMIC created hereunder specifying the first
day in the 90-day liquidation period and meeting the requirements of a
"qualified liquidation" under Section 860F of the Code and any regulations
thereunder. The Securities Administrator shall attach such plans of
liquidation to each related REMIC's final tax return;
(iii) During such 90-day liquidation period, and at or prior to the
time of making the final payment on the related Certificates, the Trustee
shall sell the related Mortgage Loans and REO Properties to the Master
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Servicer, the majority holder of the Class CE Certificates or the NIMS
Insurer, as the case may be, for cash;
(iv) On the date specified for final payment on the related
Certificates, the Securities Administrator shall make final distributions
of principal and interest on the related Certificates in accordance with
Section 5.02 or 5.03, as applicable, and shall distribute or credit, or
cause to be distributed or credited, to holders of the Residual
Certificates all cash on hand in the related REMICs after such final
payment (other than cash retained to meet claims) in complete liquidation
of the related REMICs; and
(v) the Upper-Tier II REMIC will be terminated on the same date that
the Lower-Tier II REMIC is terminated, and the Shifting Interest
Middle-Tier REMIC and the Shifting Interest Upper-Tier REMIC will be
terminated on the same date that the last outstanding of the Shifting
Interest Lower-Tier REMIC is terminated.
(b) By its acceptance of the Residual Certificate, the Holder 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, the
NIMS Insurer or the Securities Administrator and if such action is not
requested, is deemed to adopt such a plan of complete liquidation when the
related Mortgage Loans are purchased pursuant to Section 10.01.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee with the consent
of the NIMS Insurer (only to the extent such amendment relates to the
Overcollateralized Certificates), 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
any REMIC created hereunder as a REMIC or any Exchangeable Certificates Grantor
Trust as a grantor trust within the meaning of the Code and related regulations
at all times that any related Certificates are outstanding or to avoid or
minimize the risk of the imposition of any tax on any REMIC or any Exchangeable
Certificates Grantor Trust created hereunder 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
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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 Certificates as
evidenced by a letter from each Rating Agency rating such Certificates to such
effect, (v) to provide for the rights of the NIMS Insurer and (vi) to make any
other provisions with respect to matters or questions arising under this
Agreement which shall not be materially inconsistent with the provisions of this
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, provided that the amendment shall not be deemed to adversely
affect in any material respect the interests of the Certificateholders and no
Opinion of Counsel to that effect shall be required if the Person requesting the
amendment obtains a letter from each Rating Agency stating that the amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates. Notwithstanding any contrary provision of this
Agreement, the Trustee shall not consent to any amendment to this Agreement
pursuant to clause (i) through (vi) above unless it shall have first received an
Opinion of Counsel to the effect that such amendment shall not cause the
imposition of any tax on any REMIC created hereunder, any Exchangeable
Certificates Grantor Trust or the Certificateholders or cause any REMIC created
hereunder to fail to qualify as a REMIC or cause any Exchangeable Certificates
Grantor Trust to fail to qualify as a grantor trust within the meaning of the
Code and related regulations at any time that any Certificates are outstanding.
This Agreement may also be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee, with the consent
of the NIMS Insurer (if the NIMS Insurer is affected by such amendment) and 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, the NIMS Insurer and the Securities Administrator with an Opinion of
Counsel stating that such amendment would not adversely affect the qualification
of any REMIC created hereunder as a REMIC or of any Exchangeable Certificates
Grantor Trust as a grantor trust within the meaning of the Code and related
regulations or result in the imposition of any tax on any REMIC or Exchangeable
Certificates Grantor Trust created hereunder and notice of the conclusion
expressed in such Opinion of Counsel shall be included with any such
solicitation.
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, the NIMS Insurer 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
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execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Securities Administrator may prescribe.
Prior to the execution of any amendment to this Agreement, each of the
Trustee and the Securities Administrator shall receive and be entitled to
conclusively rely on any Opinion of Counsel (at the expense of the Person
seeking such amendment) stating that such amendment is authorized and permitted
by this Agreement. The Trustee and the Securities Administrator may, but shall
not be obligated to, enter into any such amendment which affects the Trustee's
or the Securities Administrator's own rights, duties or immunities under this
Agreement.
Notwithstanding the foregoing, any amendment to this Agreement shall
require the prior written consent of the Swap Provider if such amendment
materially and adversely affects the rights or interests of the Swap Provider.
Section 11.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Securities Administrator at its expense at the direction
of Holders of Certificates evidencing not less than 50% of all Voting Rights,
but only upon delivery to the Securities Administrator at the expense of the
requesting Certificateholders of an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 11.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust, or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
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in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Securities Administrator a written
notice of default and of the continuance thereof, as provided herein, and unless
also the Holders of Certificates evidencing Percentage Interests aggregating not
less than 25% of each Class of Certificates affected thereby shall have made
written request upon the Securities Administrator to institute such action, suit
or proceeding in its own name as Securities Administrator hereunder and shall
have offered to the Securities Administrator such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Securities Administrator, for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Securities Administrator, that no one or more Holders
of Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates,
or to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Securities Administrator
shall be entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND 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 WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW).
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: Xxxxx Xxxxx, with a copy to: Bank of America Legal Department, 101
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South Xxxxx Street, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Associate General Counsel, (b) in the case of the Master Servicer,
Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Client Manager - BAFC 2007-D, (c) in the case of the Securities
Administrator, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000,
Attention: BAFC, Series 2007-D, and for overnight delivery purposes, Xxxxx Fargo
Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Client Manager - BAFC, Series 2007-D, with a copy to Xxxxx Fargo Bank, N.A.,
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention:
Corporate Trust Services - BAFC, Series 2007-D, (d) in the case of the Trustee,
U.S. Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services, BAFC, Series 2007-D,
Attention: Structured Finance Services, BAFC 2007-D, (e) in the case of Fitch,
Fitch Ratings, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Mortgage Surveillance Group; (f) in the case of S&P, Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Surveillance Group; and (g) in
the case of Moody's, Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Surveillance Group or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice to a Certificateholder so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid.
It is the intention of the Securities Administrator that Certificateholders
shall not be personally liable for obligations of the Trust Estate, that the
beneficial ownership interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust Estate or for any reason
whatsoever, and that Certificates upon execution, authentication and delivery
thereof by the Securities Administrator pursuant to Section 6.01 are and shall
be deemed fully paid.
Section 11.08 Access to List of Certificateholders.
The Certificate Registrar will furnish or cause to be furnished to the
Trustee and the Securities Administrator, within fifteen (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
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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 (5) 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 and
the related Mortgage Files, including all interest and principal received on or
with respect to the Mortgage Loans (other than payments of principal and
interest due and payable on the Mortgage Loans on or before the Cut-off Date)
and the Depositor's rights under the Mortgage Loan Purchase Agreement, including
the rights of the Depositor as assignee of the Sponsor with respect to the
Sponsor's rights under the Servicing Agreements pursuant to this Agreement to
constitute a purchase and sale and not a loan. Notwithstanding the foregoing, to
the extent that such conveyance is held not to constitute a sale under
applicable law, it is intended that this Agreement shall constitute a security
agreement under applicable law and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
Section 11.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness.
The parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agree to
use its commercially reasonable efforts to comply with requests made by the
Depositor in good faith for delivery of information under these provisions on
the basis of evolving interpretations of Regulation AB. In connection with the
Trust, the Master Servicer, the Securities Administrator, the Trustee and the
Custodian shall cooperate fully with the Depositor to deliver to the Depositor
(including its assignees or designees), any and all statements, reports,
certifications, records and any other information available to such party and
reasonably necessary in the good faith determination of the Depositor to permit
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the Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Master Servicer, the Securities Administrator, the
Trustee and the Custodian, as applicable, reasonably believed by the Depositor
to be necessary in order to effect such compliance.
Section 11.11 Third Party Beneficiary.
Nothing in this Agreement or in the Certificates, expressed or implied,
shall give to any Person, other than the Certificateholders, the parties hereto
and their successors hereunder, the NIMS Insurer and the Swap Provider, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
The NIMS Insurer and the Swap Provider shall be deemed third-party
beneficiaries of this Agreement to the same extent as if they were a party
hereto, and shall have the right to enforce the provisions of this Agreement
directly against the parties to this Agreement.
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee have caused this Agreement to be duly executed by
their respective officers thereunto duly authorized to be hereunto affixed, all
as of the day and year first above written.
BANC OF AMERICA FUNDING CORPORATION, as Depositor
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A., as Master Servicer
By: /s/ Xxxxxx Xxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, N.A., as Securities Administrator
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
[Signature Page to the Pooling and Servicing Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 25th day of May, 2007, before me, a notary public in and for the
State of North Carolina, personally appeared Xxxxx Xxxxx, known to me who, being
by me duly sworn, did depose and say that he is a Senior Vice President of Banc
of America Funding Corporation, a Delaware corporation, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such corporation.
/s/ E. Xxxxx Xxxxxx
--------------------------------
Notary Public
[Notarial Seal]
My commission expires October 4, 2010.
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
)
On the 31st day of May, 2007, before me, a notary public in and for the
State of Maryland, personally appeared Xxxxxx Xxxxxx, known to me who, being by
me duly sworn, did depose and say that he is an Assistant Vice President of
Xxxxx Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Notary Public
[Notarial Seal]
My commission expires January 7, 2009.
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
)
On the 31st day of May, 2007, before me, a notary public in and for the
State of Maryland, personally appeared Xxxxxx Xxxxxx, known to me who, being by
me duly sworn, did depose and say that he is an Assistant Vice President of
Xxxxx Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Notary Public
[Notarial Seal]
My commission expires January 7, 2009.
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
)
On the 31st day of May, 2007, before me, a notary public in and for the
State of Illinois, personally appeared Xxxxxxx X. Xxxxx, known to me who, being
by me duly sworn, did depose and say that she is a Vice President of U.S. 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.
/s/ Xxxxx Xxxxxxxx
-----------------------------
Notary Public
[Notarial Seal]
My commission expires November 6, 2010.
EXHIBIT A-1A1
[FORM OF FACE OF CLASS 1-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 1-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
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.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 1-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $239,185,000.00
CUSIP No.: 05952G AA 9
ISIN No.: US05952GAA94
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
A-1A1-2
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-1A1-3
EXHIBIT A-1A2
[FORM OF FACE OF CLASS 1-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
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") AND CERTAIN OTHER PROPERTY.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE AGGREGATE CLASS CERTIFICATE BALANCE OF THE MEZZANINE CERTIFICATES HAS
BEEN REDUCED TO ZERO AND THE OVERCOLLATERALIZATION AMOUNT IS ZERO, THE PRINCIPAL
PORTION OF REALIZED LOSSES ALLOCATED TO THE CLASS 1-A-1 CERTIFICATES, THE CLASS
1-A-3 CERTIFICATES, THE CLASS 1-A-4 CERTIFICATES AND THE CLASS 1-A-5
CERTIFICATES WILL BE BORNE BY THE CLASS 1-A-2 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 1-A-2
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $57,216,000.00
CUSIP No.: 05952G AB 7
ISIN No.: US05952GAB77
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
A-1A2-2
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-1A2-3
EXHIBIT A-1A3
[FORM OF FACE OF CLASS 1-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
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") AND CERTAIN OTHER PROPERTY.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
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.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 1-A-3
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $152,688,000.00
CUSIP No.: 05952G AC 5
ISIN No.: US05952GAC50
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
A-1A3-2
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-1A3-3
EXHIBIT A-1A4
[FORM OF FACE OF CLASS 1-A-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
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") AND CERTAIN OTHER PROPERTY.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
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.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 1-A-4
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $73,072,000.00
CUSIP No.: 05952G AD 3
ISIN No.: US05952GAD34
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
A-1A4-2
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-1A4-3
EXHIBIT A-1A5
[FORM OF FACE OF CLASS 1-A-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 1-A-5
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
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.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 1-A-5
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $50,000,000.00
CUSIP No.: 05952G AE 1
ISIN No.: US05952GAE17
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and
A-1A5-2
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-1A5-3
EXHIBIT A-2AR
[FORM OF FACE OF CLASS 2-A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 2-A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
THIS CLASS 2-A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PLAN
(AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS 2-A-R CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO A PLAN (AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT)
A-2AR-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 2-A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of three loan groups of fully-amortizing and negatively amortizing
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $100.00
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: Variable
CUSIP No.: 05952G AS 0
ISIN No.: US05952GAS03
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
A-2AR-2
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the applicable
subaccounts of the Certificate Account will be made only upon presentment and
surrender of this Class 2-A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 2-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
2-A-R Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 2-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 2-A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 2-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 and a certificate substantially in the form set forth in Exhibit T to
the Pooling and Servicing Agreement; (iv) notwithstanding the delivery of an
affidavit by a proposed transferee under clause (iii) above, if a Responsible
Officer of the Securities Administrator has actual knowledge that the proposed
transferee is not a Permitted Transferee, no transfer of any Ownership Interest
in this Class 2-A-R Certificate to such proposed transferee shall be effected;
(v) this Class 2-A-R Certificate may not be purchased by or transferred to any
Person that is not a U.S. Person, unless (A) such Person holds this Class 2-A-R
Certificate in connection with the conduct of a trade or business within the
United States and furnishes the transferor and the Securities Administrator with
an effective Internal Revenue Service Form W-8ECI (or any successor thereto) or
(B) the transferee delivers to both the transferor and the Securities
Administrator an Opinion of Counsel from a nationally-recognized tax counsel to
the effect that such transfer is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such transfer of this Class
2-A-R Certificate will not be disregarded for federal income tax purposes; (vi)
any attempted or purported transfer of this Class 2-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 2-A-R Certificate in violation of
such restrictions, then the Securities Administrator, based on information
provided to the Securities Administrator by the Master Servicer, will provide to
the Internal Revenue Service, and to the Persons specified in Section 860E(e)(3)
and (6) of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations.
This Class 2-A-R Certificate may not be purchased by or transferred to any
Plan (as defined in the Pooling and Servicing Agreement).
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.
A-2AR-3
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-2AR-4
EXHIBIT A-2A1
[FORM OF FACE OF CLASS 2-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 2-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 2-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $96,066,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G AR 2
ISIN No.: US05952GAR20
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
A-2A1-2
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-2A1-3
EXHIBIT A-3A1
[FORM OF FACE OF CLASS 3-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $124,075,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G AT 8
ISIN No.: US05952GAT85
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
A-3A1-2
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-3A1-3
EXHIBIT A-3A2
[FORM OF FACE OF CLASS 3-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-A-2 Exchangeable REMIC Certificate
[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 AN EXCHANGEABLE REMIC CERTIFICATE AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN AND MAY BE EXCHANGED FOR THE
EXCHANGEABLE CERTIFICATES IN THE RELATED COMBINATION GROUP.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-A-2 Exchangeable REMIC Certificate
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Maximum Initial Class Certificate
Balance of this Class: $95,070,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G AU 5
ISIN No.: US05952GAU58
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained on any date of determination by
dividing the Denomination of this Certificate by the Aggregate Denomination on
such date 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 May 31, 2007
(the "Pooling and Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank,
N.A., as master servicer (the "Master Servicer"), and securities administrator
(the "Securities Administrator"), and U.S. 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.
A-3A2-2
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-3A2-3
EXHIBIT A-3A3
[FORM OF FACE OF CLASS 3-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-A-3 Exchangeable REMIC Certificate
[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 AN EXCHANGEABLE REMIC CERTIFICATE AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN AND MAY BE EXCHANGED FOR THE
EXCHANGEABLE CERTIFICATES IN THE RELATED COMBINATION GROUP.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-A-3 Exchangeable REMIC Certificate
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Maximum Initial Class Certificate
Balance of this Class: $29,004,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G AV 3
ISIN No.: US05952AV32
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained on any date of determination by
dividing the Denomination of this Certificate by the Aggregate Denomination on
such date 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 May 31, 2007
(the "Pooling and Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank,
N.A., as master servicer (the "Master Servicer"), and securities administrator
(the "Securities Administrator"), and U.S. 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.
A-3A3-2
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-3A3-3
EXHIBIT A-3A4
[FORM OF FACE OF CLASS 3-A-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-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").
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE FOR THE SHIFTING INTEREST GROUPS,
THE PRINCIPAL PORTION OF REALIZED LOSSES ALLOCATED TO THE CLASS 3-A-1
CERTIFICATES, THE CLASS 3-A-2 CERTIFICATES, THE CLASS 3-A-3 CERTIFICATES AND THE
CLASS 3-A-5 CERTIFICATES WILL BE BORNE BY THE CLASS 3-A-4 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
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.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-A-4
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $10,000,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G AW 1
ISIN No.: US05952GAW15
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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.
A-3A4-2
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-3A4-3
EXHIBIT A-3A5
[FORM OF FACE OF CLASS 3-A-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-A-5 Exchangeable Certificate
[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.]
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
UNDIVIDED BENEFICIAL INTEREST IN THE ASSETS OF AN ARRANGEMENT THAT IS CLASSIFIED
AS A GRANTOR TRUST UNDER SUBPART E, PART I OF SUBCHAPTER J OF THE CODE.
THIS CERTIFICATE IS AN EXCHANGEABLE CERTIFICATE AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN AND MAY BE EXCHANGED FOR THE EXCHANGEABLE
REMIC CERTIFICATES IN THE RELATED COMBINATION GROUP.
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.
X-0X0-0
XXXX XX XXXXXXX FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class 3-A-5 Exchangeable Certificate
evidencing an interest in the Exchangeable Certificate Grantor Trust Account and
the Related Exchangeable REMIC Certificates issued by a Trust consisting
primarily of three loan groups of fully-amortizing and negatively amortizing
adjustable interest rate mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $124,074,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G AX 9
ISIN No.: US05952GAX97
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained on any date of determination by
dividing the Denomination of this Certificate by the Aggregate Denomination on
such date 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 May 31, 2007
(the "Pooling and Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank,
N.A., as master servicer (the "Master Servicer"), and securities administrator
(the "Securities Administrator"), and U.S. 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.
A-3A5-2
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-3A5-3
EXHIBIT B-XB1
[FORM OF FACE OF CLASS X-B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-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 GROUP 2 SENIOR
CERTIFICATES AND THE GROUP 3 SENIOR CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB1-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-B-1
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $5,831,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G AY 7
ISIN No.: US05952GAY70
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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.
B-XB1-2
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB1-3
EXHIBIT B-XB2
[FORM OF FACE OF CLASS X-B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-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 GROUP 2 SENIOR
CERTIFICATES, THE GROUP 3 SENIOR CERTIFICATES AND THE CLASS X-B-1 CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB2-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-B-2
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,458,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G AZ 4
ISIN No.: US05952GAZ46
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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.
B-XB2-2
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB2-3
EXHIBIT B-XB3
[FORM OF FACE OF CLASS X-B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-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 GROUP 2 SENIOR
CERTIFICATES, THE GROUP 3 SENIOR CERTIFICATES, THE CLASS X-B-1 CERTIFICATES AND
THE CLASS X-B-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB3-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-B-3
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,093,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G BA 8
ISIN No.: US05952GBA85
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
B-XB3-2
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB3-3
EXHIBIT B-XB4
[FORM OF FACE OF CLASS X-B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-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 GROUP 2 SENIOR
CERTIFICATES, THE GROUP 3 SENIOR CERTIFICATES, THE CLASS X-B-1 CERTIFICATES, THE
CLASS X-B-2 CERTIFICATES AND THE CLASS X-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.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB4-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-B-4
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $729,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G BC 4
ISIN No.: US05952GBC42
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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.
B-XB4-2
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer and
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
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 Sponsor, their affiliates or both. The
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB4-3
EXHIBIT B-XB5
[FORM OF FACE OF CLASS X-B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-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 GROUP 2 SENIOR
CERTIFICATES, THE GROUP 3 SENIOR CERTIFICATES, THE CLASS X-B-1 CERTIFICATES, THE
CLASS X-B-2 CERTIFICATES, THE CLASS X-B-3 CERTIFICATES AND THE CLASS X-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.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB5-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-B-5
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $546,000.00
Pass-Through Rate: Variable
CUSIP No.: 05952G BD 2
ISIN No.: US05952GBD25
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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.
B-XB5-2
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
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 Sponsor, their affiliates or both. The
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB5-3
EXHIBIT B-XB6
[FORM OF FACE OF CLASS X-B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-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 GROUP 2 SENIOR
CERTIFICATES, THE GROUP 3 SENIOR CERTIFICATES, THE CLASS X-B-1 CERTIFICATES, THE
CLASS X-B-2 CERTIFICATES, THE CLASS X-B-3 CERTIFICATES, THE CLASS X-B-4
CERTIFICATES AND THE CLASS X-B-5 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-XB6-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class X-B-6
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $547,035.00
Pass-Through Rate: Variable
CUSIP No.: 05952G BE 0
ISIN No.: US05952GBE08
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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.
B-XB6-2
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
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 Sponsor, their affiliates or both. The
Holder of a Private Certificate desiring to effect such transfer shall, and does
hereby agree to, indemnify the Securities Administrator and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-XB6-3
EXHIBIT B-M1
[FORM OF FACE OF CLASS M-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-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") AND CERTAIN OTHER PROPERTY.
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
OVERCOLLATERALIZED CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M1-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M1-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-1
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $10,011,000.00
CUSIP No.: 05952G AF 8
ISIN No.: US05952GAF81
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
B-M1-3
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M1-4
EXHIBIT B-M2
[FORM OF FACE OF CLASS M-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-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") AND CERTAIN OTHER PROPERTY.
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
OVERCOLLATERALIZED CERTIFICATES AND THE CLASS M-1 CERTIFICATES AS DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M2-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M2-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-2
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $4,247,000.00
CUSIP No.: 05952G AG 6
ISIN No.: US05952GAG64
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
B-M2-3
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M2-4
EXHIBIT B-M3
[FORM OF FACE OF CLASS M-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-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") AND CERTAIN OTHER PROPERTY.
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
OVERCOLLATERALIZED CERTIFICATES, THE CLASS M-1 CERTIFICATES AND THE CLASS M-2
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M3-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M3-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-3
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,034,000.00
CUSIP No.: 05952G AH 4
ISIN No.: US05952GAH48
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
B-M3-3
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M3-4
EXHIBIT B-M4
[FORM OF FACE OF CLASS M-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-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") AND CERTAIN OTHER PROPERTY.
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
OVERCOLLATERALIZED CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2
CERTIFICATES AND THE CLASS M-3 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M4-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M4-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-4
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,034,000.00
CUSIP No.: 05952G AJ 0
ISIN No.: US06962GAJ04
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
B-M4-3
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M4-4
EXHIBIT B-M5
[FORM OF FACE OF CLASS M-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-5
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
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
OVERCOLLATERALIZED CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2
CERTIFICATES, THE CLASS M-3 CERTIFICATES AND THE CLASS M-4 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M5-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M5-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-5
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,034,000.00
CUSIP No.: 05952G AK 7
ISIN No.: US05952GAK76
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
B-M5-3
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M5-4
EXHIBIT B-M6
[FORM OF FACE OF CLASS M-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-6
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
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
OVERCOLLATERALIZED CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2
CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES AND THE
CLASS M-5 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M6-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M6-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-6
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,034,000.00
CUSIP No.: 05952G AL 5
ISIN No.: US05952GAL59
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
B-M6-3
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M6-4
EXHIBIT B-M7
[FORM OF FACE OF CLASS M-7 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-7
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
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
OVERCOLLATERALIZED CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2
CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS
M-5 CERTIFICATES AND THE CLASS M-6 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
B-M7-1
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M7-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-7
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,034,000.00
CUSIP No.: 05952G AM 3
ISIN No.: US05952GAM33
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
B-M7-3
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M7-4
EXHIBIT B-M8
[FORM OF FACE OF CLASS M-8 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-8
[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") AND CERTAIN OTHER PROPERTY.
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
OVERCOLLATERALIZED CERTIFICATES, THE CLASS M-1 CERTIFICATES, THE CLASS M-2
CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS
M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES AND THE CLASS M-7 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
B-M8-1
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M8-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class M-8
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,034,000.00
CUSIP No.: 05952G AN 1
ISIN No.: US05952GAN16
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 May 31, 2007 (the "Pooling and Servicing
Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master servicer
(the "Master Servicer"), and securities administrator (the "Securities
Administrator"), and U.S. 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
B-M8-3
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M8-4
EXHIBIT B-CE
[FORM OF FACE OF CLASS CE CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class CE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS 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") AND CERTAIN OTHER PROPERTY.
THE CLASS CE CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR
OVERCOLLATERALIZED CERTIFICATES AND THE MEZZANINE CERTIFICATES AS DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
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.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-CE-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-D
Class CE
evidencing an interest in a Trust consisting primarily of three loan groups of
fully-amortizing and negatively amortizing adjustable-rate mortgage loans (the
"Mortgage Loans") secured by first liens on one to four family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: 1
Cut-off Date: May 1, 2007
First Distribution Date: June 20, 2007
Percentage Interest:
CUSIP No.: 05952G AP 6
ISIN No.: US05952GAP63
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated May 31, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. 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.
The Class CE Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Pooling and Servicing Agreement.
Further, no transfer of a Class CE Certificate shall be made to a Plan (as
defined in the Pooling and Servicing Agreement) except as provided in Section
6.02 of the Pooling and Servicing Agreement.
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates. Neither this
B-CE-2
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-2A, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Sponsor, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-CE-3
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.
On each Distribution Date, the Securities Administrator shall distribute
out of the Certificate Account to each Certificateholder of record on the
related Record Date (other than respecting the final distribution) (a) by check
mailed to such Certificateholder entitled to receive a distribution on such
Distribution Date at the address appearing in the Certificate Register, or (b)
upon written request by the Holder of a Certificate (other than a Residual
Certificate), by wire transfer or by such other means of payment as such
Certificateholder and the Securities Administrator shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth in
Article V 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
C-1
Depositor, the Master Servicer, the Securities Administrator and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Pooling and
Servicing Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Securities Administrator upon surrender of
this Certificate for registration of transfer at the Corporate Trust Office of
the Securities Administrator accompanied by a written instrument of transfer in
form satisfactory to the Securities Administrator and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Master Servicer, the Certificate Registrar, the
Securities Administrator and the Trustee and any agent of the Depositor, the
Master Servicer, the Certificate Registrar, the Securities Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Certificate Registrar, the Trustee, the Securities Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Shifting Interest Mortgage Loans is less than 10% of the aggregate unpaid
principal balance of the Shifting Interest Mortgage Loans as of the Cut-off
Date, the Master Servicer has the option to purchase the Shifting Interest
Mortgage Loans and related REO Properties under the conditions set forth in
Section 10.01 of the Pooling and Servicing Agreement. On any Distribution Date
on which the aggregate Stated Principal Balance of the OC Mortgage Loans is less
than 10% of the aggregate unpaid principal balance of the OC Mortgage Loans as
of the Cut-off Date, certain parties specified Section 10.01 of the Pooling and
Servicing Agreement have the option to purchase the OC Mortgage Loans and
related REO Properties under the conditions set forth in Section 10.01 of the
C-2
Pooling and Servicing Agreement. In the event that no such terminations occur,
the obligations and responsibilities created by the Pooling and Servicing
Agreement will terminate upon the later of the maturity or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust or the disposition of all property in respect thereof and the distribution
to Certificateholders of all amounts required to be distributed pursuant to the
Pooling and Servicing Agreement. In no event shall the Trust created by the
Pooling and Servicing Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
thereof.
Any term used herein that is defined in the Pooling and Servicing Agreement
shall have the meaning assigned in the Pooling and Servicing Agreement, and
nothing herein shall be deemed inconsistent with that meaning.
C-3
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
C-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________
________________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
_________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________ for the
account of ___________________, account number _________________________, or, if
mailed by check, to Applicable statements should be mailed to
This information is provided by _________________, the assignee named
above, or, as its agent.
C-5
EXHIBIT D-1
OC LOAN GROUP MORTGAGE LOAN SCHEDULE
[Please see the Free Writing Prospectus filed and accepted by the
Securities and Exchange Commission on June 1, 2007, with a filing date
of June 1, 2007 and accession number 0001379434-07-000111.]
D-1
EXHIBIT D-2
LOAN GROUP 2 MORTGAGE LOAN SCHEDULE
[Please see the Free Writing Prospectus filed and accepted by the
Securities and Exchange Commission on June 1, 2007, with a filing date
of June 1, 2007 and accession number 0001379434-07-000111.]
D-2
EXHIBIT D-3
LOAN GROUP 3 MORTGAGE LOAN SCHEDULE
[Please see the Free Writing Prospectus filed and accepted by the
Securities and Exchange Commission on June 1, 2007, with a filing date
of June 1, 2007 and accession number 0001379434-07-000111.]
D-3
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[Date]
To: U.S. Bank National Association
0000 Xxxxxxxxxxxx Xx., Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Re: The Pooling and Servicing Agreement dated May 31, 2007, among Banc of
America Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as
Securities Administrator and Master Servicer, and U.S. 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 Servicer)
Issuer: _____________________________
Address:_____________________________
_____________________________________
Date:________________________________
E-1
Custodian
U.S. Bank National Association
Please acknowledge the execution of the above request by your signature and date
below:
_________________________________ __________________
Signature Date
Documents returned to Custodian:
_________________________________ __________________
Custodian Date
E-2
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
May 31, 2007
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated May 31, 2007, among Banc of America Funding Corporation, as Depositor,
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master Servicer, and
U.S. Bank National Association, as Trustee.
[__________________],
By:_________________________________
Name:_______________________________
Title:______________________________
F-1
EXHIBIT G-1
FORM OF TRANSFEROR'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-D
Re: Banc of America Funding Corporation, Mortgage Pass-Through Certificates,
Series 2007-D, Class ___, having an initial aggregate Certificate Balance
as of May 31, 2007 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 May 31, 2007, among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and U.S. 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
G-1-1
registration or qualification of the Transferred Certificates pursuant
to the 1933 Act or any state securities laws.
Very truly yours,
____________________________________
(Transferor)
By:_________________________________
Name:_______________________________
Title:______________________________
G-1-2
EXHIBIT G-2A
FORM 1 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-D
Re: Banc of America Funding Corporation, Mortgage Pass-Through Certificates,
Series 2007-D, Class ___, having an initial aggregate Certificate Balance
as of May 31, 2007 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 May 31, 2007, among Banc of America Funding
Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator
and Master Servicer, and U.S. 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
G-2A-1
Transferred Certificate, and (f) all related matters, that it has
requested. 3. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
____________________________________
(Transferor)
By:_________________________________
Name:_______________________________
Title:______________________________
G-2A-2
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial
owner thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
____________________________________
(Nominee)
By:_________________________________
Name:_______________________________
Title:______________________________
G-2A-3
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") 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.
___ 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
___________________
((1)) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
G-2A-4
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,
G-2A-5
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
____________________________________
Print Name of Transferee
By:_________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
G-2A-6
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") 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).
G-2A-7
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no," then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
____________________________________
Print Name of Transferee or Adviser
By:_________________________________
Name:_______________________________
Title:______________________________
IF AN ADVISER:
____________________________________
Print Name of Transferee
By:_________________________________
Date:_______________________________
G-2A-8
EXHIBIT G-2B
FORM 2 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-D
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2007-D, Class ___, having an initial aggregate
Certificate Balance as of May 31, 2007 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
May 31, 2007, among Banc of America Funding Corporation, as Depositor, Xxxxx
Fargo Bank, N.A., as Securities Administrator and as Master Servicer, and U.S.
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
G-2B-1
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, in the case of the Class X-B-4
Class X-B-5 and Class X-B-6 Certificates only, 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.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02
OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(d) above) would constitute a distribution of the Transferred Certificates under
the 1933 Act, would render the disposition of the Transferred Certificates a
violation of Section 5 of the 1933 Act or any state securities law or would
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
G-2B-2
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:_______________________________
G-2B-3
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
____________________________________
(Nominee)
By:_________________________________
Name:_______________________________
Title:______________________________
G-2B-4
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-D
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2007-D, Class ___, having an initial aggregate
Certificate Balance as of May 31, 2007 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
May 31, 2007, among Banc of America Funding Corporation, as Depositor, Xxxxx
Fargo Bank, N.A., as Securities Administrator and Master Servicer, and U.S. 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 an employee benefit plan or arrangement, subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a
Person acting on behalf of, or using the assets of, any such employee benefit
plan or arrangement (collectively, a "Plan") to effect the purchase of the
Transferred Certificates; or
(b) with respect to any ERISA Restricted Certificate other than a Class CE
or Class 2-A-R Certificate, it is an insurance company using funds from an
"insurance company general account" (as defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60"), 60 Fed. Reg. 35925 (July 12,
1995)), to purchase the Transferred Certificates and the purchase and holding of
the Transferred Certificates are covered by Section I and Section III of PTCE
95-60.
H-1
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
____________________________________
(Transferee)
By:_________________________________
Name:_______________________________
Title:______________________________
Date:_______________________________
H-2
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2007-D
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class 2-A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated May 31, 2007 (the "Agreement"), among Banc of America Funding Corporation,
as Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and U.S. 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
I-1
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. In connection with any such transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth in Exhibit T to the Agreement (a "Transferor
Certificate") to the effect that such Transferee has no actual knowledge that
the Person to which the transfer is to be made is not a Permitted Transferee and
no reason to believe that the statements in such Person's transfer affidavit are
false.
7. The Transferee historically has paid its debts as they have become due,
and it intends to do so in the future.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's (or the
Transferee's nominee, if applicable) is ___________.
10. The Transferee is a (i) U.S. Person as defined in Code Section
7701(a)(30) or (ii) (A) the Transferee holds the Residual Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or successor thereto) or (B) the
Transferee has delivered to both the transferor and the Securities Administrator
an Opinion of Counsel from a nationally-recognized tax counsel to the effect
that such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Residual
Certificate will not be disregarded for federal income tax purposes..
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
I-2
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
Person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
14. The Transferee is not an employee benefit plan or arrangement, subject
to Title I of ERISA, or Section 4975 of the Code and the Transferee is not
acting on behalf of, or using assets of, such an employee benefit plan or
arrangement.
15. The Transferee understands that it may incur tax liabilities with
respect to the Residual Certificate in excess of cash flows generated thereby.
16. The Transferee intends to pay taxes associated with holding the
Residual Certificate as such taxes become due.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
____________________________________
Print Name of Transferee
By:_________________________________
Name:
Title:
Personally appeared before me the above-named
______________________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the _______________________ of the
Transferee, and acknowledged that he executed the same as his free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this _____ day of _______________________,
____
________________________________
NOTARY PUBLIC
My Commission expires the ____
day of ______________, ____
I-4
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
I-5
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of such
transferee's purchase of the Residual Certificate.
I-6
EXHIBIT J
LIST OF RECORDATION STATES
Florida
Maryland
J-1
EXHIBIT K
FORM OF INITIAL CERTIFICATION
May 31, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - BAFC 2007-D
[Insert NIMS Insurer information, if applicable]
Re: The Pooling and Servicing Agreement, dated May 31, 2007 (the "Pooling
and Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank,
N.A., as securities administrator and master servicer, and U.S. Bank
National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as [Trustee] [Custodian], hereby certifies that, except as
specified in any list of exceptions attached hereto, it has received the
original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
The [Trustee] [Custodian] has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this Initial
Certification. The [Trustee] [Custodian] makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
K-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
[U.S. BANK NATIONAL ASSOCIATION,
as Trustee]
[_____________________________,
as Custodian]
By:_______________________________________
Name::____________________________________
Title::___________________________________
K-2
EXHIBIT L
FORM OF FINAL CERTIFICATION
[_______________ ___, ____]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - BAFC 2007-D
[Insert NIMS Insurer information, if applicable]
Re: The Pooling and Servicing Agreement, dated May 31, 2007 (the "Pooling
and Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank,
N.A., as securities administrator and master servicer, and U.S. Bank
National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as [Trustee] [Custodian], hereby certifies that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in any list of exceptions attached hereto, such Mortgage File contains all of
the items required to be delivered pursuant to Section 2.01(b) of the Pooling
and Servicing Agreement.
The [Trustee] [Custodian] has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this Final
Certification. The [Trustee] [Custodian] makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
L-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
[U.S. BANK NATIONAL ASSOCIATION,
as Trustee]
[_____________________________,
as Custodian]
By:_______________________________________
Name::____________________________________
Title::___________________________________
L-2
EXHIBIT M
FORM OF XXXXXXXX-XXXXX CERTIFICATION
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2007-D
I, [________], a [_____________] of Xxxxx Fargo Bank, N.A. (the "Master
Servicer"), certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on
Form 10-K of the Banc of America Funding 2007-D Trust (the "Exchange Act
Periodic Reports");
2. Based on my knowledge, the Exchange Act Periodic Reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act Periodic Reports;
4. I am responsible for reviewing the activities performed by the master
servicer and based on my knowledge and the compliance review conducted in
preparing the master servicer compliance statement required in this report
under Item 1123 of Regulation AB, and except as disclosed in the Exchange
Act Periodic Reports, the master servicer has fulfilled its obligations
under the pooling and servicing agreement in all material respects; and
5. All of the reports on assessment of compliance with the servicing criteria
for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d- 18 have been
included as an exhibit to this report, except as otherwise disclosed in
this report. Any material instances of noncompliance described in such
reports have been disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties:
[______________________________].
[_________], 20[__]
M-1
EXHIBIT N
RELEVANT SERVICING CRITERIA
------------------------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
------------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance Master Servicer and
or other triggers and events of default in accordance with Securities Administrator
the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, Master Servicer and
policies and procedures are instituted to monitor the third party's Securities Administrator
performance and compliance with such servicing activities.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up Not applicable
servicer for the mortgage loans are maintained.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the Master Servicer
party participating in the servicing function throughout the reporting
period in the amount of coverage required by and otherwise in
accordance with the terms of the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate Master Servicer and
custodial bank accounts and related bank clearing accounts no Securities Administrator
more than two business days following receipt, or such other
number of days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or Master Servicer and
to an investor are made only by authorized personnel. Securities Administrator
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or Master Servicer and
distributions, and any interest or other fees charged for such advances, Securities Administrator
are made, reviewed and approved as specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or Master Servicer and
accounts established as a form of overcollateralization, are separately Securities Administrator
maintained (e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
N-1
------------------------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
------------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository Master Servicer and
institution as set forth in the transaction agreements. For purposes of Securities Administrator
this criterion, "federally insured depository institution" with respect to a
foreign financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. Master Servicer and
securities Administrator
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities Master Servicer and
related bank accounts, including custodial accounts and related bank clearing Securities Administrator
accounts. These reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date, or such other
number of days specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the reconciliation; and
(D) contain explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original dentification, or such
other number of days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are Master Servicer and
maintained in accordance with the transaction agreements and applicable Securities Administrator
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of mortgage
loans serviced by the Servicer.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with Master Servicer and
timeframes, distribution priority and ther terms set forth in the transaction Securities Administrator
agreements. Administrator
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Master Servicer and
Servicer's investor records, or such other number of days specified in the Securities Administrator
transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled Master Servicer and
checks, or other form of payment, or custodial bank statements. Securities Administrator
------------------------------------------------------------------------------------------------------------------------------------
N-2
------------------------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
------------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the Custodian
transaction agreements or related mortgage loan documents.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the Custodian
transaction agreements
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made,
reviewed and approved in accordance with any conditions or requirements
in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs,
made in accordance with the related mortgage loan
documents are posted to the Servicer's obligor
records maintained no more than two business days
after receipt, or such other number of days
specified in the transaction agreements, and
allocated to principal, interest or other items
(e.g., escrow) in accordance with the related
mortgage loan documents.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage
loans agree with the Servicer's records with
respect to an obligor's unpaid principal balance.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications
or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in lieu
of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded
in accordance with the timeframes or other
requirements established by the transaction
agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a mortgage loan is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent mortgage loans including, for example,
phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
------------------------------------------------------------------------------------------------------------------------------------
N-3
------------------------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
------------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for mortgage loans with variable rates are
computed based on the related mortgage loan
documents.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's
mortgage loan documents, on at least an annual
basis, or such other period specified in the
transaction agreements; (B) interest on such funds
is paid, or credited, to obligors in accordance
with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment
of the related mortgage loans, or such other
number of days specified in the transaction
agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax
or insurance payments) are made on or before the
related penalty or expiration dates, as indicated
on the appropriate bills or notices for such
payments, provided that such support has been
received by the servicer at least 30 calendar days
prior to these dates, or such other number of days
specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be
made on behalf of an obligor are paid from the servicer's funds
and not charged to the obligor, unless the late payment was
due to the obligor's error or omission.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the servicer,
or such other number of days specified in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are Master Servicer and
recognized and recorded in accordance with the transaction agreements. Securities Administrator
------------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) Master Servicer and
through (3) or Item 1115 of Regulation AB, is maintained as set forth Securities Administrator
in the transaction agreements.
------------------------------------------------------------------------------------------------------------------------------------
N-4
EXHIBIT O
ADDITIONAL FORM 10-D DISCLOSURE
------------------------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
---------------------------------------------------------------------------- -------------------------------------------------------
Item on Form 10-D Party Responsible
---------------------------------------------------------------------------- -------------------------------------------------------
Item 1: Distribution and Pool Performance Information Master Servicer
Securities Administrator
Any information required by 1121 which is NOT included on the Depositor
Monthly Statement
---------------------------------------------------------------------------- -------------------------------------------------------
Item 2: Legal Proceedings
Any legal proceeding pending against the following entities or
their respective property, that is material to
Certificateholders, including any proceeding known to be
contemplated by governmental authorities:
---------------------------------------------------------------------------- -------------------------------------------------------
o Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator
and Depositor
---------------------------------------------------------------------------- -------------------------------------------------------
o Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
---------------------------------------------------------------------------- -------------------------------------------------------
o Depositor Depositor
---------------------------------------------------------------------------- -------------------------------------------------------
o Trustee Trustee
---------------------------------------------------------------------------- -------------------------------------------------------
o Securities Administrator Securities Administrator
---------------------------------------------------------------------------- -------------------------------------------------------
o Master Servicer Master Servicer
---------------------------------------------------------------------------- -------------------------------------------------------
o Custodian Custodian
---------------------------------------------------------------------------- -------------------------------------------------------
o 1110(b) Originator Depositor
---------------------------------------------------------------------------- -------------------------------------------------------
o Any 1108(a)(2) Servicer (other than the Master Servicer or Securities Master Servicer
Administrator)
---------------------------------------------------------------------------- -------------------------------------------------------
o Any other party contemplated by 1100(d)(1) Depositor
---------------------------------------------------------------------------- -------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
Information from Item 2(a) of Part II of Form 10-Q:
With respect to any sale of securities by the sponsor, depositor
or issuing entity, that are backed by the same asset pool or are
otherwise issued by the issuing entity, whether or not
registered, provide the sales and use of proceeds information in
Item 701 of Regulation S-K. Pricing information can be omitted if
securities were not registered.
---------------------------------------------------------------------------- -------------------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
Information from Item 3 of Part II of Form 10-Q:
------------------------------------------------------------------------------------------------------------------------------------
O-1
------------------------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
---------------------------------------------------------------------------- -------------------------------------------------------
Item on Form 10-D Party Responsible
---------------------------------------------------------------------------- -------------------------------------------------------
Report the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
---------------------------------------------------------------------------- -------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security Holders Securities Administrator
Information from Item 4 of Part II of Form 10-Q
---------------------------------------------------------------------------- -------------------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
Item 1112(b) - Significant Obligor Financial Information*
---------------------------------------------------------------------------- -------------------------------------------------------
*This information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the Item.
---------------------------------------------------------------------------- -------------------------------------------------------
Item 7: Significant Enhancement Provider Information
Item 1114(b)(2) - Credit Enhancement Provider Financial Information*
---------------------------------------------------------------------------- -------------------------------------------------------
o Determining applicable disclosure threshold Securities Administrator
---------------------------------------------------------------------------- -------------------------------------------------------
o Requesting required financial information or effecting incorporation by Securities Administrator
reference
---------------------------------------------------------------------------- -------------------------------------------------------
Item 1115(b) - Derivative Counterparty Financial Information*
---------------------------------------------------------------------------- -------------------------------------------------------
o Determining current maximum probable exposure Depositor
---------------------------------------------------------------------------- -------------------------------------------------------
o Determining current significance percentage Securities Administrator
---------------------------------------------------------------------------- -------------------------------------------------------
o Requesting required financial information or effecting incorporation by Securities Administrator
reference
---------------------------------------------------------------------------- -------------------------------------------------------
*This information need only be reported on the Form 10-D for the
distribution period in which updated information is required pursuant to
the Items.
----------------------------------------------------------------- ------------------------------------------------------------------
Item 8: Other Information Any party responsible for the applicable Form 8-K
Disclosure item
Disclose any information required to be reported on Form 8-K during the
period covered by the Form 10-D but not reported
---------------------------------------------------------------------------- -------------------------------------------------------
Item 9: Exhibits
---------------------------------------------------------------------------- -------------------------------------------------------
Monthly Statement to Certificateholders Securities Administrator
---------------------------------------------------------------------------- -------------------------------------------------------
Exhibits required by Item 601 of Regulation S-K, such as material Depositor
agreements
---------------------------------------------------------------------------- -------------------------------------------------------
O-2
EXHIBIT P
ADDITIONAL FORM 10-K DISCLOSURE
------------------------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
------------------------------------------------------------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
---------------------------------------------------------------------------- -------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure items on
Disclose any information required to be reported on Form 8-K during Form 8-K
the fourth quarter covered by the Form 10-K but not reported
--------------------------------------------------------------------------- --------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules Securities Administrator
Depositor
---------------------------------------------------------------------------- -------------------------------------------------------
Reg AB Item 1112(b): Significant Obligors of Pool Assets
---------------------------------------------------------------------------- -------------------------------------------------------
Significant Obligor Financial Information* Depositor
---------------------------------------------------------------------------- -------------------------------------------------------
*This information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the Item.
---------------------------------------------------------------------------- -------------------------------------------------------
Reg AB Item 1114(b)(2): Credit Enhancement Provider Financial Information
---------------------------------------------------------------------------- -------------------------------------------------------
o Determining applicable disclosure threshold Securities Administrator
---------------------------------------------------------------------------- -------------------------------------------------------
o Requesting required financial information or effecting incorporation by Securities Administrator
reference
---------------------------------------------------------------------------- -------------------------------------------------------
*This information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the Items.
---------------------------------------------------------------------------- -------------------------------------------------------
Reg AB Item 1115(b): Derivative Counterparty Financial Information
---------------------------------------------------------------------------- -------------------------------------------------------
o Determining current maximum probable exposure Depositor
---------------------------------------------------------------------------- -------------------------------------------------------
o Determining current significance percentage Securities Administrator
---------------------------------------------------------------------------- -------------------------------------------------------
o Requesting required financial information or effecting incorporation by Securities Administrator
reference
---------------------------------------------------------------------------- -------------------------------------------------------
*This information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the Items.
---------------------------------------------------------------------------- -------------------------------------------------------
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against the following entities or their respective
property, that is material to Certificateholders, including any proceeding known
to be contemplated by governmental authorities:
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o Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator
and Depositor
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P-1
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ADDITIONAL FORM 10-K DISCLOSURE
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Item on Form 10-K Party Responsible
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o Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
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o Depositor Depositor
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o Trustee Trustee
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o Securities Administrator Securities Administrator
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o Master Servicer Master Servicer
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o Custodian Custodian
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o 1110(b) Originator Depositor
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o Any 1108(a)(2) Servicer (other than the Master Servicer or Securities Master Servicer
Administrator)
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o Any other party contemplated by 1100(d)(1) Depositor
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Reg AB Item 1119: Affiliations and Relationships
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Whether (a) the Sponsor (Seller), Depositor or Issuing Entity is an Depositor as
to (a) affiliate of the following parties, and (b) to the extent known and
Sponsor/Seller as to (a) material, any of the following parties are affiliated
with one another:
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o Master Servicer Master Servicer
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o Securities Administrator Securities Administrator
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o Trustee Trustee
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o Any other 1108(a)(3) servicer Master Servicer
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o Any 1110 Originator Depositor/Sponsor
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o Any 1112(b) Significant Obligor Depositor/Sponsor
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o Any 1114 Credit Enhancement Provider Depositor/Sponsor
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o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
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P-2
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ADDITIONAL FORM 10-K DISCLOSURE
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Item on Form 10-K Party Responsible
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o Any other 1101(d)(1) material party Depositor/Sponsor
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Whether there are any "outside the ordinary course business arrangements"
Depositor as to (a) other than would be obtained in an arm's length transaction
between (a) Sponsor/Seller as to (a) the Sponsor (Seller), Depositor or Issuing
Entity on the one hand, and (b) any of the following parties (or their
affiliates) on the other hand, that exist currently or within the past two years
and that are material to a Certificateholder's understanding of the
Certificates:
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o Master Servicer Master Servicer
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o Securities Administrator Securities Administrator
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o Trustee Trustee
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o Any other 1108(a)(3) servicer Master Servicer
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o Any 1110 Originator Depositor/Sponsor
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o Any 1112(b) Significant Obligor Depositor/Sponsor
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o Any 1114 Credit Enhancement Provider Depositor/Sponsor
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o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
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o Any other 1101(d)(1) material party Depositor/Sponsor
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EXHIBIT Q
FORM 8-K DISCLOSURE
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FORM 8-K DISCLOSURE INFORMATION
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Item on Form 8-K Party Responsible
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Item 1.01- Entry into a Material Definitive Agreement All parties, but only to the extent they are a party
Disclosure is required regarding entry into or amendment of any definitive
agreement that is material to the securitization, even if depositor is not a
party.
Examples: servicing agreement, custodial agreement.
Note: disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
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Item 1.02- Termination of a Material Definitive Agreement All parties, but only to the extent they are a party
Disclosure is required regarding termination of any definitive agreement
that is material to the securitization (other than expiration in accordance
with its terms), even if depositor is not a party.
Examples: servicing agreement, custodial agreement.
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Item 1.03- Bankruptcy or Receivership Depositor
Disclosure is required regarding the bankruptcy or receivership, with
respect to any of the following:
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o Sponsor (Seller) Depositor/Sponsor (Seller)
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o Depositor Depositor
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o Master Servicer Master Servicer
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o Affiliated Servicer Master Servicer
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o Other Servicer servicing 20% or more of the pool assets at the time of Master Servicer
the report
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o Other material servicers Master Servicer
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o Trustee Trustee
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o Securities Administrator Securities Administrator
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o Significant Obligor Depositor
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o Credit Enhancer (10% or more) Depositor
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o Derivative Counterparty Depositor
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FORM 8-K DISCLOSURE INFORMATION
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Item on Form 8-K Party Responsible
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o Custodian Custodian
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Item 2.04- Triggering Events that Accelerate or Increase a Direct Depositor
Financial Obligation or an Obligation under an Off-Balance Sheet Master Servicer
Arrangement Securities Administrator
Includes an early amortization, performance trigger or other event, including
event of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure will be made of events other than waterfall triggers which are
disclosed in the monthly statements to the certificateholders.
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Item 3.03- Material Modification to Rights of Security Holders Securities Administrator
Trustee
Disclosure is required of any material modification to documents defining Depositor
the rights of Certificateholders, including the Pooling and Servicing (with respect to each, only to the extent they
Agreement. are a party)
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Item 5.03- Amendments of Articles of Incorporation or Bylaws; Change of Depositor
Fiscal Year
Disclosure is required of any amendment "to the governing documents of the
issuing entity".
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Item 6.01- ABS Informational and Computational Material Depositor
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Item 6.02- Change of Servicer or Securities Administrator Master Servicer/Securities
Administrator/Depositor
Requires disclosure of any removal, replacement, substitution or addition of any
master servicer, affiliated servicer, other servicer servicing 10% or more of
pool assets at time of report, other material servicers or trustee.
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Reg AB disclosure about any new master servicer is also required. Master Servicer
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Reg AB disclosure about any new Trustee is also required. Trustee
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Item 6.03- Change in Credit Enhancement or External Support Depositor/Securities Administrator
Covers termination of any enhancement in manner other than by its terms,
the addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
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Q-2
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FORM 8-K DISCLOSURE INFORMATION
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Item on Form 8-K Party Responsible
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Reg AB disclosure about any new enhancement provider is also required. Depositor
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Item 6.04- Failure to Make a Required Distribution Securities Administrator
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Item 6.05- Securities Act Updating Disclosure Depositor
If any material pool characteristic differs by 5% or more at the time of
issuance of the securities from the description in the final prospectus, provide
updated Reg AB disclosure about the actual asset pool.
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If there are any new servicers or originators required to be disclosed Depositor
under Regulation AB as a result of the foregoing, provide the information called
for in Items 1108 and 1110 respectively.
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Item 7.01- Reg FD Disclosure Depositor
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Item 8.01- Other Events Depositor
Any event, with respect to which information is not otherwise called for in
Form 8-K, that the registrant deems of importance to certificateholders.
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Item 9.01- Financial Statements and Exhibits Responsible party for reporting/disclosing the
financial statement or exhibit
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Q-3
EXHIBIT R
FORM OF BACK-UP CERTIFICATION
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2007-D
The [________] hereby certifies to the Master Servicer, and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[____] (the "Annual Report"), and all reports on Form 10-D required to be filed
in respect of period covered by the Annual Report (collectively with the Annual
Report, the "Reports"), of the Trust;
2. To my knowledge, (a) the Reports, taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by the
Annual Report, and (b) the [___________]'s assessment of compliance and related
attestation report referred to below, taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by such
assessment of compliance and attestation report;
3. To my knowledge, the distribution information required to be provided by
the [__________] under the Pooling and Servicing Agreement for inclusion in the
Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the
[_________] under the Pooling and Servicing Agreement, and based on my knowledge
and the compliance review conducted in preparing the compliance statement of the
[_________] required by the Pooling and Servicing Agreement, and except as
disclosed in the Reports, the [_________] has fulfilled its obligations under
the Pooling and Servicing Agreement in all material respects; and
5. The report on assessment of compliance with servicing criteria
applicable to the [_________] for asset-backed securities of the [_________] and
each Subcontractor utilized by the [_________] and related attestation report on
assessment of compliance with servicing criteria applicable to it required to be
included in the Annual Report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 has been included as an exhibit to the
Annual Report. Any material instances of non-compliance are described in such
report and have been disclosed in the Annual Report.
R-1
In giving the certifications above, the [_________] has reasonably relied
on information provided to it by the following unaffiliated parties: [names of
servicer(s), master servicer, subservicer, depositor, trustee, custodian(s)]
Date: ______________________________
[_________________________]
as [_____________]
By:________________________
Name:
Title:
R-2
EXHIBIT S
FORM OF ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO 000-000-0000 AND VIA EMAIL TO
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx AND VIA OVERNIGHT MAIL TO THE
ADDRESSES IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A., as Securities Administrator
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services- BAFC 2007-D--SEC REPORT PROCESSING
with copies to:
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Senior Vice President
Bank of America Legal Department
000 Xxxxx Xxxxx Xxxxxx
101 X. Xxxxx St., 30th Floor
NC1-002-29-01
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Associate General Counsel
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing Agreement, , dated
as of [ ][ ], 2007, among [ ], as [ ], [ ], as [ ], [ ], as [ ] and [ ], as [ ].
the undersigned, as [ ], hereby notifies you that certain events have come to
our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
S-1
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [ ], phone
number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By: ______________________________________
Name:
Title:
S-2
EXHIBIT T
INTEREST RATE SWAP AGREEMENT
[Included as Exhibit 10.3 to the Current Report on Form 8-K
pursuant to which this Pooling and Servicing Agreement is filed.]
T-1
EXHIBIT U
INTEREST RATE CORRIDOR AGREEMENT
[Included as Exhibit 10.4 to the Current Report on Form 8-K
pursuant to which this Pooling and Servicing Agreement is filed.]
U-1
EXHIBIT V
FORM OF REQUEST FOR EXCHANGE OF EXCHANGEABLE REMIC CERTIFICATES
OR EXCHANGEABLE CERTIFICATES
___, 20__
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-D
Re: Banc of America Funding Corporation,
Mortgage Pass-Through Certificates, Series 2007-D
Ladies and Gentlemen:
Pursuant to the terms of that certain Pooling and Servicing Agreement,
dated May 31, 2007, by and among Banc of America Funding Corporation, as
depositor, U.S. Bank National Association, as trustee, Xxxxx Fargo Bank, N.A.,
as securities administrator (in such capacity, the "Securities Administrator")
and as master servicer, we hereby present and surrender the [Exchangeable REMIC
Certificates] [Exchangeable Certificates] specified on Schedule I attached
hereto (the ["Exchangeable REMIC Certificates"] ["Exchangeable Certificates"])
and transfer, assign, set over and otherwise convey to the Securities
Administrator, all of our right, title and interest in and to the [Exchangeable
REMIC Certificates] [Exchangeable Certificates], including all payments of
interest thereon received after [______], 20[__], in exchange for the
[Exchangeable Certificates] [Exchangeable REMIC Certificates] specified on
Schedule I attached hereto (the ["Exchangeable Certificates"] ["Exchangeable
REMIC Certificates"]).
We agree that upon such exchange the portions of the [Exchangeable REMIC
Certificates] [Exchangeable Certificates] designated for exchange shall be
deemed cancelled and replaced by the [Exchangeable Certificates] [Exchangeable
REMIC Certificates] issued in exchange therefor. We confirm that we have paid a
fee of $5,000 to the Securities Administrator in connection with such exchange.
Sincerely,
By: ____________________________
Name:
Title:
V-1
Acknowledged by:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By: ____________________________
Name:
Title:
V-2
EXHIBIT W
FORM OF TRANSFEROR CERTIFICATE FOR RESIDUAL CERTIFICATE
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services - BAFC 0000-X
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2007-D
Ladies and Gentlemen:
In connection with our disposition of the BAFC Mortgage Pass-Through
Certificates, Series 2007-D, Class 2-A-R Certificate (the "Residual
Certificate"), we certify that we have no knowledge that the transferee is not a
Permitted Transferee and we have no reason to believe that the statements made
in the transferee's Affidavit Regarding Transfer of Residual Certificate are
false.
Very truly yours,
[_____________________]
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