EXHIBIT 4
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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities Administrator,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated September 29, 2005
---------------------------------
Mortgage Pass-Through Certificates
Series 2005-5
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.................................................
Section 1.02 Interest Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans..................................
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage
Loans........................................................
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer.....................................................
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans...............................................
Section 2.05 Designation of Interests in the REMICs........................
Section 2.06 Designation of Start-up Day...................................
Section 2.07 REMIC Certificate Maturity Date...............................
Section 2.08 Execution and Delivery of Certificates........................
ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans........................
Section 3.02 Monitoring of Servicers.......................................
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.................
Section 3.04 Access to Certain Documentation...............................
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims......
Section 3.06 Rights of the Depositor, the Securities Administrator and
the Trustee in Respect of the Master Servicer................
Section 3.07 Trustee to Act as Master Servicer.............................
Section 3.08 Servicer Custodial Accounts and Escrow Accounts...............
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Account; Certificate Account and Reserve Funds.....
Section 3.10 Access to Certain Documentation and Information Regarding
the Mortgage Loans...........................................
Section 3.11 Permitted Withdrawals from the Certificate Account and
the Master Servicer Custodial Account........................
Section 3.12 Maintenance of Hazard Insurance and Other Insurance...........
Section 3.13 Presentment of Claims and Collection of Proceeds..............
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements.....
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property.......
Section 3.16 Trustee to Cooperate; Release of Mortgage Files...............
Section 3.17 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee..........................
Section 3.18 Master Servicer Compensation..................................
Section 3.19 Annual Statement as to Compliance.............................
Section 3.20 Annual Independent Public Accountants' Servicing
Statement; Financial Statements..............................
Section 3.21 Advances......................................................
Section 3.22 Reports to the Securities and Exchange Commission.............
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate.................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions.................................................
Section 5.02 Priorities of Distributions...................................
Section 5.03 Allocation of Losses..........................................
Section 5.04 Statements to Certificateholders..............................
Section 5.05 Tax Returns and Reports to Certificateholders.................
Section 5.06 Tax Matters Person............................................
Section 5.07 Rights of the Tax Matters Person in Respect of the
Securities Administrator.....................................
Section 5.08 REMIC Related Covenants.......................................
Section 5.09 Determination of LIBOR........................................
Section 5.10 Master Servicer, Securities Administrator and Trustee
Indemnification..............................................
Section 5.11 Grantor Trust Administration..................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates..............................................
Section 6.02 Registration of Transfer and Exchange of Certificates.........
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.............
Section 6.04 Persons Deemed Owners.........................................
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicer.....................................................
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicer.....................................................
Section 7.03 Limitation on Liability of the Depositor, the Master
Servicer and Others..........................................
Section 7.04 Depositor and Master Servicer Not to Resign...................
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.............................................
Section 8.02 Remedies of Trustee...........................................
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default......................................
Section 8.04 Action upon Certain Failures of the Master Servicer and
upon Event of Default........................................
Section 8.05 Trustee to Act; Appointment of Successor......................
Section 8.06 Notification to Certificateholders............................
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator................
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator................................................
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans...............................
Section 9.04 Trustee and Securities Administrator May Own Certificates.....
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator................................................
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator................................................
Section 9.07 Successor Trustee or Securities Administrator.................
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator................................................
Section 9.09 Appointment of Co-Trustee or Separate Trustee.................
Section 9.10 Authenticating Agents.........................................
Section 9.11 Securities Administrator's Fees and Expenses and
Trustee's Fees and Expenses..................................
Section 9.12 Appointment of Custodian......................................
Section 9.13 Paying Agents.................................................
Section 9.14 Limitation of Liability.......................................
Section 9.15 Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates...........................
Section 9.16 Suits for Enforcement.........................................
Section 9.17 Waiver of Bond Requirement....................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement.....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage
Loans........................................................
Section 10.02 Additional Termination Requirements...........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.....................................................
Section 11.02 Recordation of Agreement; Counterparts........................
Section 11.03 Limitation on Rights of Certificateholders....................
Section 11.04 Governing Law.................................................
Section 11.05 Notices.......................................................
Section 11.06 Severability of Provisions....................................
Section 11.07 Certificates Nonassessable and Fully Paid.....................
Section 11.08 Access to List of Certificateholders..........................
Section 11.09 Recharacterization............................................
EXHIBITS
Exhibit 1-A-1 Form of Face of Class 1-A-1 Certificate
Exhibit 1-A-2 Form of Face of Class 1-A-2 Certificate
Exhibit 1-A-3 Form of Face of Class 1-A-3 Certificate
Exhibit 1-A-4 Form of Face of Class 1-A-4 Certificate
Exhibit 1-A-5 Form of Face of Class 1-A-5 Certificate
Exhibit 1-A-6 Form of Face of Class 1-A-6 Certificate
Exhibit 1-A-7 Form of Face of Class 1-A-7 Certificate
Exhibit 1-A-8 Form of Face of Class 1-A-8 Certificate
Exhibit 1-A-9 Form of Face of Class 1-A-9 Certificate
Exhibit 1-A-10 Form of Face of Class 1-A-10 Certificate
Exhibit 1-A-11 Form of Face of Class 1-A-11 Certificate
Exhibit 1-A-R Form of Face of Class 1-A-R Certificate
Exhibit 2-A-1 Form of Face of Class 2-A-1 Certificate
Exhibit 2-A-2 Form of Face of Class 2-A-2 Certificate
Exhibit 3-A-1 Form of Face of Class 3-A-1 Certificate
Exhibit 3-A-2 Form of Face of Class 3-A-2 Certificate
Exhibit 3-A-3 Form of Face of Class 3-A-3 Certificate
Exhibit 3-A-4 Form of Face of Class 3-A-4 Certificate
Exhibit 3-A-5 Form of Face of Class 3-A-5 Certificate
Exhibit 3-A-6 Form of Face of Class 3-A-6 Certificate
Exhibit 3-A-7 Form of Face of Class 3-A-7 Certificate
Exhibit 3-A-8 Form of Face of Class 3-A-8 Certificate
Exhibit 30-IO Form of Face of Class 30-IO Certificate
Exhibit 30-PO Form of Face of Class 30-PO Certificate
Exhibit B-1 Form of Face of Class B-1 Certificate
Exhibit B-2 Form of Face of Class B-2 Certificate
Exhibit B-3 Form of Face of Class B-3 Certificate
Exhibit B-4 Form of Face of Class B-4 Certificate
Exhibit B-5 Form of Face of Class B-5 Certificate
Exhibit B-6 Form of Face of Class B-6 Certificate
Exhibit C Form of Reverse of all Certificates.....................
Exhibit D-1 Loan Group 1 Mortgage Loan Schedule.....................
Exhibit D-2 Loan Group 2 Mortgage Loan Schedule.....................
Exhibit D-3 Loan Group 3 Mortgage Loan Schedule.....................
Exhibit E Request for Release of Documents........................
Exhibit F Form of Certification of Establishment of Account.......
Exhibit G-1 Form of Transferor's Certificate........................
Exhibit G-2A Form 1 of Transferee's Certificate......................
Exhibit G-2B Form 2 of Transferee's Certificate......................
Exhibit H Form of Transferee Representation Letter for ERISA
Restricted Certificates.................................
Exhibit I Form of Affidavit Regarding Transfer of Residual Certificates
I-1
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 Form of Securities Administrator's Certification........
Exhibit O Form of Yield Maintenance Agreements....................
Exhibit P Principal Balance Schedules.............................
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated September 29, 2005, 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 WACHOVIA BANK, NATIONAL
ASSOCIATION, as trustee (together with its permitted successors and assigns, the
"Trustee").
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust Estate to the Trustee to create the Trust. As provided herein, the Trustee
will make an election to treat the segregated pool of assets consisting of the
Mortgage Loans and certain other related assets subject to this Agreement as a
real estate investment conduit (a "REMIC") for federal income tax purposes, and
such segregated pool of assets will be designated as the "Lower-Tier REMIC." The
Uncertificated Lower-Tier Interests will represent the "regular interests" in
the Lower-Tier REMIC for purposes of the REMIC Provisions. The Class LR Interest
will represent the sole class of "residual interest" in the Lower-Tier REMIC for
purposes of the REMIC Provisions. The Trustee will make another election to
treat the Uncertificated Lower-Tier Interests as another REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
the "Upper-Tier REMIC." The Senior Certificates (other than the Class 1-A-R
Certificate and the rights of the Class 1-A-2 Certificates and the Class 3-A-7
Certificates to receive amounts from the applicable Reserve Fund) and the Class
B Certificates are referred to collectively as the "Regular Certificates" and
shall constitute "regular interests" in the Upper-Tier REMIC for purposes of the
REMIC Provisions. The Class UR Interest shall be the "residual interest" in the
Upper-Tier REMIC for purposes of the REMIC Provisions. The Class 1-A-R
Certificate shall represent beneficial ownership of the Class LR Interest and
the Class UR Interest. The portion of the Trust Estate consisting of the Reserve
Funds, the Yield Maintenance Agreements and the rights of the Class 1-A-2 and
Class 3-A-7 Certificates to receive amounts from the applicable Reserve Fund
shall not be assets of either REMIC created hereunder, but rather shall be
assets of the Grantor Trust. The "latest possible maturity date" for federal
income tax purposes of all interests created hereby will be the REMIC
Certificate Maturity Date.
Lower-Tier REMIC
The following table sets forth the designation, the Lower-Tier REMIC
Rate and the initial uncertificated principal balance or notional balance of
such interest. None of the Uncertificated Lower-Tier Interests will be
certificated.
Uncertificated Uncertificated Initial
Lower-Tier Lower-Tier Uncertificated Corresponding Upper-Tier Class,
Interest REMIC Rate Balance Classes or Component
----------------- ---------------- ---------------- ----------------------------------
LT1A1 5.500% $162,211,000 Class 1-A-1, Class 1-A-5, Class
1-A-7, Class 1-A-8, Class 1-A-9,
Class 1-A-10, Class 1-A-11
LT1A2 5.500% $20,000,000 Class 1-A-2, Class 1-A-3
LT1A4 5.500% $10,000,000 Class 1-A-4, Class 1-A-6
LT1AIO (1) (2) Class 1-IO Component
LT1APO (3) (4) Class 1-PO Component
LT2A1 5.500% $179,283,000 Class 2-A-1, Class 2-A-2
LT2AIO (5) (6) Class 2-IO Component
LT2APO (7) (8) Class 2-PO Component
LT3A1 5.500% $25,000,000 Class 0-X-0, Xxxxx 0-X-0
XX0X0 5.500% $65,650,000 Class 3-A-2, Class 3-A-3, Class
3-A-4, Class 3-A-5, Class 3-A-6,
Class 3-A-8
LT3AIO (9) (10) Class 3-IO Component
LT3APO (11) (12) Class 3-PO Component
LTUR 5.500% $100 Class 1-A-R
LTB 5.500% $16,311,482 Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5, Class B-6
(1) For each Distribution Date, the excess of the weighted average of the Net
Mortgage Interest Rates of the Group 1 Premium Mortgage Loans over 5.500%.
(2) For each Distribution Date, a notional balance equal to the aggregate
Stated Principal Balance of the Group 1 Premium Mortgage Loans.
(3) The LT1APO Interest will not bear interest.
(4) For each Distribution Date, the principal balance in respect of the Class
1-PO Component. The initial principal balance of the LT1APO Interest will
be $51,086.
(5) For each Distribution Date, the excess of the weighted average of the Net
Mortgage Interest Rates of the Group 2 Premium Mortgage Loans over 5.500%.
(6) For each Distribution Date, a notional balance equal to the aggregate
Stated Principal Balance of the Group 2 Premium Mortgage Loans.
(7) The LT2APO Interest will not bear interest.
(8) For each Distribution Date, the principal balance in respect of the Class
2-PO Component. The initial principal balance of the LT2APO Interest will
be $558,593.
(9) For each Distribution Date, the excess of the weighted average of the Net
Mortgage Interest Rates of the Group 3 Premium Mortgage Loans over 5.500%.
(10) For each Distribution Date, a notional balance equal to the aggregate
Stated Principal Balance of the Group 3 Premium Mortgage Loans.
(11) The LT3APO Interest will not bear interest.
(12) For each Distribution Date, the principal balance in respect of the Class
3-PO Component. The initial principal balance of the LT3APO Interest will
be $645,992.
[Remainder of Page Intentionally Left Blank]
Upper-Tier REMIC
The following table sets forth characteristics of the Certificates
and the Components, together with the minimum denominations and integral
multiples in excess thereof in which the Classes of Certificates shall be
issuable:
Integral
Initial Class Pass- Multiples in
Certificate Balance Through Minimum Excess of
Classes or Notional Amount Rate Denomination Minimum
--------------- -------------------- --------- -------------- ------------
Class 1-A-1 $12,791,000.00 5.500% $1,000 $1
Class 1-A-2 $20,000,000.00 (1) $1,000 $1
Class 1-A-3 $20,000,000.00 (2) $1,000,000 $1
Class 1-A-4 $10,000,000.00 5.125% $1,000 $1
Class 1-A-5 $1,000,000.00 5.500% $1,000 $1
Class 1-A-6 $681,818.00 5.500% $681,818 N/A
Class 1-A-7 $25,000,000.00 5.500% $1,000 $1
Class 1-A-8 $60,000,000.00 5.500% $1,000 $1
Class 1-A-9 $9,270,000.00 5.500% $1,000 $1
Class 1-A-10 $1,679,000.00 5.500% $1,000 $1
Class 1-A-11 $52,471,000.00 5.500% $1,000 $1
Class 1-A-R $100.00 5.500% $100 N/A
Class 2-A-1 $173,187,000.00 5.500% $1,000 $1
Class 2-A-2 $6,096,000.00 5.500% $1,000 $1
Class 3-A-1 $25,000,000.00 (3) $1,000 $1
Class 3-A-2 $35,043,000.00 5.500% $1,000 $1
Class 3-A-3 $8,995,000.00 5.500% $1,000 $1
Class 3-A-4 $10,049,000.00 5.500% $1,000 $1
Class 3-A-5 $1,912,000.00 5.500% $1,000 $1
Class 3-A-6 $7,668,000.00 5.500% $1,000 $1
Class 3-A-7 $25,000,000.00 (4) $1,000,000 $1
Class 3-A-8 $1,983,000.00 5.500% $1,000 $1
Class 30-IO $14,738,247.00 (5) $1,000,000 $1
Class 30-PO $1,255,671.00 (6) $25,000 $1
Class B-1 $7,916,000.00 5.500% $25,000 $1
Class B-2 $3,118,000.00 5.500% $25,000 $1
Class B-3 $1,919,000.00 5.500% $25,000 $1
Class B-4 $1,439,000.00 5.500% $25,000 $1
Class B-5 $1,199,000.00 5.500% $25,000 $1
Class B-6 $720,482.00 5.500% $25,000 $1
Initial Component Integral
Balance or Pass- Multiples In
Component Notional Through Minimum Excess Of
Components Amount Rate Denomination Minimum
------------- -------------------- --------- -------------- --------------
Class 1-IO $8,414,663.91 5.500% N/A N/A
Class 2-IO $4,807,472.81 5.500% N/A N/A
Class 3-IO $1,516,111.14 5.500% N/A N/A
Class 1-PO $51,086.47 (7) N/A N/A
Class 2-PO $558,593.61 (7) N/A N/A
Class 3-PO $645,991.73 (7) N/A N/A
-------------
(1) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-2 Certificates at the rate of 4.150% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
1-A-2 Certificates at a per annum rate equal to (i) 0.500% plus (ii)
LIBOR, subject to a minimum rate of 0.500% and a maximum rate of 5.500%.
(2) During the initial Interest Accrual Period, interest will accrue on the
Class 1-A-3 Certificates at the rate of 1.350% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
1-A-3 Certificates at a per annum rate equal to (i) 5.000% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of 5.000%.
(3) During the initial Interest Accrual Period, interest will accrue on the
Class 3-A-1 Certificates at the rate of 4.470% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
3-A-1 Certificates at a per annum rate equal to (i) 0.700% plus (ii)
LIBOR, subject to a minimum rate of 0.700% and a maximum rate of 5.500%.
(4) During the initial Interest Accrual Period, interest will accrue on the
Class 3-A-7 Certificates at the rate of 1.030% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
3-A-7 Certificates at a per annum rate equal to (i) 4.800% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of 4.800%.
(5) The Class 30-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of three
Components described in the table: the Class 1-IO Component, the Class
2-IO Component and the Class 3-IO Component.
(6) The Class 30-PO Certificates are Principal Only Certificates and will be
deemed for purposes of distributions of principal to consist of three
Components described in the table: the Class 1-PO Component, the Class
2-PO Component and the Class 3-PO Component.
(7) The Class 1-PO Component, Class 2-PO Component and Class 3-PO Component
are Principal Only Components and will not bear interest.
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accretion Termination Date: The earlier to occur of (A) the
Distribution Date following the Distribution Date on which the Class Certificate
Balance of the Class 3-A-1 Certificates has been reduced to zero or (B) the
Senior Credit Support Depletion Date.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class (other than the Class 30-IO Certificates), one month's
interest accrued during the related Interest Accrual Period at the applicable
Pass-Through Rate on the applicable Class Certificate Balance. For any
Distribution Date and the Class 30-IO Certificates, the sum of the Accrued
Component Interest for each Class IO Component.
Accrued Component Interest: For any Distribution Date and each
interest-bearing Component, one month's interest accrued during the related
Interest Accrual Period at the applicable Pass-Through Rate on the related
Notional Amount.
Adjusted Pool Amount: With respect to any Distribution Date and 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 Certificates of the Related Group on such Distribution Date and
all prior Distribution Dates and (ii) the principal portion of all Realized
Losses (other than Debt Service Reductions) incurred on the Mortgage Loans in
such Loan Group from the Cut-off Date through the end of the month preceding
such Distribution Date.
Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date and Loan Group, the difference between the Adjusted Pool
Amount and the Adjusted Pool Amount (PO Portion) for such Loan Group.
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date and Loan Group, the sum of the amount, calculated as follows, with respect
to each Outstanding Mortgage Loan in such Loan Group: the product of (i) the PO
Percentage for such Mortgage Loan and (ii) the remainder of (A) the Cut-off Date
Principal Balance of such Mortgage Loan minus (B) the sum of (x) all amounts in
respect of principal received in respect of such Mortgage Loan (including,
without limitation, amounts received as Monthly Payments, Periodic Advances,
Principal Prepayments, Liquidation Proceeds and Substitution Adjustment Amounts)
and distributed to Holders of the Certificates of the Related Group on such
Distribution Date and all prior Distribution Dates and (y) the principal portion
of any Realized Loss (other than a Debt Service Reduction) incurred on such
Mortgage Loan from the Cut-off Date through the end of the month preceding such
Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Advance Date: As to any Distribution Date and each Mortgage Loan,
the Business Day preceding the related Remittance Date.
Aggregate Subordinate Percentage: As to any Distribution Date, the
aggregate Class Certificate Balance of the Subordinate Certificates divided by
the aggregate Pool Stated Principal Balance (Non-PO Portion) for the Loan
Groups.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Appraised Value: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal obtained by the
originator at origination of such Mortgage Loan 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.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation.
BAMCC: Banc of America Mortgage Capital Corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
a day on which banking institutions in the State of North Carolina, the State of
New York, the states in which the servicing offices of any Servicer, as
applicable, are located, the state 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 pursuant to 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 Mortgage Loan, with the resulting difference in interest payments being
provided from Buy-Down Funds.
Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2005-5 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 Wachovia Bank, National Association, as Trustee, in trust for
registered holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2005-5." The Certificate Account shall be deemed to consist
of four sub-accounts; one for each Loan Group and a fourth sub-account referred
to herein as the Upper-Tier Certificate Sub-Account. Funds in the Certificate
Account shall be held in trust for the Holders of the Certificates for the uses
and purposes set forth in this Agreement.
Certificate Balance: With respect to any Certificate (other than the
Class 1-A-3, Class 1-A-6, Class 3-A-7 and Class 30-IO Certificates) at any date,
the maximum dollar amount of principal to which the Holder thereof is then
entitled hereunder, such amount being equal to the product of the Percentage
Interest of such Certificate and the Class Certificate Balance of the Class of
Certificates of which such Certificate is a part. The Class 1-A-3, Class 1-A-6,
Class 3-A-7 and Class 30-IO Certificates have no Certificate Balance.
Certificate Custodian: Initially, Xxxxx Fargo Bank, N.A.; thereafter
any other Certificate Custodian acceptable to the Depository and selected by the
Securities Administrator.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of a Book-Entry Certificate. With respect to
any Definitive Certificate, the Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to Section
6.02.
Certificate Registrar: The registrar appointed pursuant to Section
6.02.
Certificateholder: The Person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor, the Master Servicer or any affiliate thereof shall be
deemed not to be outstanding and the Percentage Interest and Voting Rights
evidenced thereby shall not be taken into account in determining whether the
requisite amount of Percentage Interests or Voting Rights, as the case may be,
necessary to effect any such consent has been obtained, unless such entity is
the registered owner of the entire Class of Certificates, provided that the
Securities Administrator shall not be responsible for knowing that any
Certificate is registered in the name of an affiliate of the Depositor or the
Master Servicer unless one of its Responsible Officers has actual knowledge
thereof.
Certification: As defined in Section 3.22.
CitiMortgage: CitiMortgage, Inc. and its successors and assigns.
CitiMortgage Servicing Agreement: The Master Mortgage Loan Purchase
and Servicing Agreement, dated as of September 1, 2003, by and between Banc of
America Mortgage Capital Corporation (and Bank of America, N.A. as successor
thereto) and CitiMortgage, as amended by (i) the Amendment to the Mortgage Loan
Purchase and Servicing Agreement, dated as of July 1, 2004, by and among Banc of
America Mortgage Capital Corporation, Bank of America, N.A. and CitiMortgage,
(ii) the Assignment and Conveyance Agreements, dated May 26, 2005 and June 28,
2005 and (iii) the Assignment Assumption and Recognition Agreement, dated
September 29, 2005, by and among BANA, the Depositor, the Trustee and
CitiMortgage.
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 1-A-6, Class 1-A-7, Class 1-A-8, Class
1-A-9, Class 1-A-10, Class 1-A-11, Class 1-A-R, Class 2-A-1, Class 2-A-2, Class
3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 3-A-5, Class 3-A-6, Class
3-A-7, Class 3-A-8, Class 30-IO, Class 30-PO, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6 Certificates, as the case may be.
Class 1-A-1 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 1-A-1 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 1-A-2 Reserve Fund: The trust account created and maintained
by the Securities Administrator pursuant to Section 3.09(i) which shall be
entitled the "Reserve Account, Xxxxx Fargo Bank, N.A., as Securities
Administrator, in trust for registered Holders of the Class 1-A-2 Certificates
of the Banc of America Funding Corporation Mortgage Pass-Through Certificates,
Series 2005-5" and which must be an Eligible Account. Amounts on deposit in the
Class 1-A-2 Reserve Account shall not be invested. The Class 1-A-2 Reserve
Account shall not be an asset of either REMIC formed under this Agreement.
Class 1-A-2 Yield Maintenance Agreement: The yield maintenance
agreement between the Securities Administrator, on behalf of the Trust, and the
Counterparty, which will be primarily for the benefit of the Class 1-A-2
Certificates, substantially in the form attached hereto as Exhibit O. The Class
1-A-2 Yield Maintenance Agreement shall not be an asset of either REMIC formed
under this Agreement.
Class 0-X-0 Xxxxx Xxxxxxxxxxx Agreement Payment: For any
Distribution Date (other than the Distribution Date in October 2005) prior to
and including the Distribution Date in September 2008, the amount, if any,
required to be paid by the Counterparty to the Securities Administrator under
the Class 1-A-2 Yield Maintenance Agreement.
Class 0-X-0 Xxxxx Xxxxxxxxxxx Xxxxxx: For any Distribution Date
(other than the Distribution Date in October 2005) prior to and including the
Distribution Date in September 2008, an amount equal to the product of (a) the
notional amount for such Distribution Date as set forth on the applicable table
in Exhibit O hereto, (b) the excess of (i) the lesser of 9.000% and LIBOR over
(ii) 5.000% and (c) one-twelfth.
Class 1-A-2 Yield Maintenance Amount Shortfall: For any Distribution
Date, the amount, if any, by which the Class 1-A-2 Yield Maintenance Amount for
such Distribution Date exceeds the sum of the Class 1-A-2 Yield Maintenance
Agreement Payment for such Distribution Date and any Excess Funds in the Class
1-A-2 Reserve Fund.
Class 1-A-3 Notional Amount: As to any Distribution Date and the
Class 1-A-3 Certificates, the Class Certificate Balance of the Class 1-A-2
Certificates.
Class 1-A-6 Notional Amount: As to any Distribution Date and the
Class 1-A-6 Certificates, the 6.81818181% of the Class Certificate Balance of
the Class 1-A-4 Certificates.
Class 1-A-10 Loss Allocation Amount: With respect to any
Distribution Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class Certificate Balance of the Class 1-A-10 Certificates with respect
to such Distribution Date prior to any reduction for the Class 1-A-10 Loss
Allocation Amount and (b) the Class 1-A-1 Loss Amount with respect to such
Distribution Date.
Class 1-IO Notional Amount: With respect to each Distribution Date
and the Class 1-IO Component, an amount equal to the product of (i) the
aggregate of the Stated Principal Balances of the Group 1 Premium Mortgage Loans
as of the Due Date in the month preceding the month of such Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the weighted average
of the Net Mortgage Interest Rates of the Group 1 Premium Mortgage Loans (based
on the Stated Principal Balances of the Group 1 Premium Mortgage Loans as of the
Due Date in the month preceding the month of such Distribution Date) minus
5.500% and (b) the denominator of which is equal to 5.500%.
Class 2-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 2-A-1 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 2-A-2 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 2-A-2 Certificates with respect to such
Distribution Date prior to any reduction for the Class 2-A-2 Loss Allocation
Amount and (b) the Class 2-A-1 Loss Amount with respect to such Distribution
Date.
Class 2-IO Notional Amount: With respect to each Distribution Date
and the Class 2-IO Component, an amount equal to the product of (i) the
aggregate of the Stated Principal Balances of the Group 2 Premium Mortgage Loans
as of the due date in the month preceding the month of such Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the weighted average
of the Net Mortgage Interest Rates of the Group 2 Premium Mortgage Loans (based
on the Stated Principal Balances of the Group 2 Premium Mortgage Loans as of the
Due Date in the month preceding the month of such Distribution Date) minus
5.500% and (b) the denominator of which is equal to 5.500%.
Class 3-A-7 Notional Amount: As to any Distribution Date and the
Class 3-A-7 Certificates, the Class Certificate Balance of the Class 3-A-1
Certificates.
Class 3-A-7 Reserve Fund: The trust account created and maintained
by the Securities Administrator pursuant to Section 3.09(i) which shall be
entitled the "Reserve Account, Xxxxx Fargo Bank, N.A., as Securities
Administrator, in trust for registered Holders of the Class 3-A-7 Certificates
of the Banc of America Funding Corporation Mortgage Pass-Through Certificates,
Series 2005-5" and which must be an Eligible Account. Amounts on deposit in the
Class 3-A-7 Reserve Account shall not be invested. The Class 3-A-7 Reserve
Account shall not be an asset of either REMIC formed under this Agreement.
Class 0-X-0 Xxxxx Xxxxxxxxxxx Agreement Payment: For any
Distribution Date (other than the Distribution Date in October 2005) prior to
and including the Distribution Date in November 2009, the amount, if any,
required to be paid by the Counterparty to the Securities Administrator under
the Class 3-A-7 Yield Maintenance Agreement.
Class 0-X-0 Xxxxx Xxxxxxxxxxx Xxxxxx: For any Distribution Date
(other than the Distribution Date in October 2005) prior to and including the
Distribution Date in November 2009, an amount equal to the product of (a) the
notional amount for such Distribution Date as set forth on the applicable table
in Exhibit O hereto, (b) the excess of (i) the lesser of 8.800% and LIBOR over
(ii) 4.800% and (c) one-twelfth.
Class 3-A-7 Yield Maintenance Amount Shortfall: For any Distribution
Date, the amount, if any, by which the Class 3-A-7 Yield Maintenance Amount for
such Distribution Date exceeds the sum of the Class 3-A-7 Yield Maintenance
Agreement Payment for such Distribution Date and any Excess Funds in the Class
3-A-7 Reserve Fund.
Class 3-A-8 Accrual Distribution Amount: For any Distribution Date
and the Class 3-A-8 Certificates prior to the Accretion Termination Date, an
amount with respect to such Class equal to the sum of (i) the amount allocated
but not currently distributable as interest to such Class pursuant to Section
5.02(a)(i) that is attributable to clause (i) of the definition of "Interest
Distribution Amount," and (ii) the amount allocated but not currently
distributable as interest to such Class pursuant to Section 5.02(a)(i) that is
attributable to clause (ii) of the definition of "Interest Distribution Amount."
Class 3-IO Notional Amount: With respect to each Distribution Date
and the Class 3-IO Component, an amount equal to the product of (i) the
aggregate of the Stated Principal Balances of the Group 3 Premium Mortgage Loans
as of the Due Date in the month preceding the month of such Distribution Date
and (ii) a fraction, (a) the numerator of which is equal to the weighted average
of the Net Mortgage Interest Rates of the Group 3 Premium Mortgage Loans (based
on the Stated Principal Balances of the Group 3 Premium Mortgage Loans as of the
Due Date in the month preceding the month of such Distribution Date) minus
5.500% and (b) the denominator of which is equal to 5.500%.
Class 30-IO Notional Amount: With respect to any Distribution Date,
an amount equal to the sum of the Class 1-IO Notional Amount, the Class 2-IO
Notional Amount and the Class 3-IO Notional Amount for such Distribution Date.
Class B Certificates: The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class B-6 Certificates.
Class Certificate Balance: With respect to any Class of Certificates
(other than the Class 1-A-3, Class 1-A-6, Class 3-A-7, Class 30-IO and Class
30-PO Certificates) and any date of determination, and subject to Section
5.03(f), the Initial Class Certificate Balance of such Class (plus, in the case
of the Class 3-A-8 Certificates, any Class 3-A-8 Accrual Distribution Amounts
previously added thereto) minus (A) the sum of (i) all distributions of
principal made with respect thereto (including in the case of a Class of Class B
Certificates, any principal otherwise payable to such Class of Class B
Certificates used to pay any Class PO Deferred Amounts), (ii) all reductions in
Class Certificate Balance previously allocated thereto pursuant to Section
5.03(b) and (iii) in the case of the Class 1-A-10 Certificates and the Class
2-A-2 Certificates, any reduction allocated thereto pursuant to Section 5.03(e)
plus (B) the sum of (i) all increases in Class Certificate Balance previously
allocated thereto pursuant to Section 5.03(b) and (ii) in the case of the Class
1-A-10 Certificates and the Class 2-A-2 Certificates, any increases allocated
thereto pursuant to Section 5.03(e). The Class Certificate Balance of the Class
30-PO Certificates as of any date of determination shall equal the sum of the
Component Balances of the Class PO Components. The Class 1-A-3, Class 1-A-6,
Class 3-A-7 and Class 30-IO Certificates are Interest Only Certificates and have
no Class Certificate Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class, the amount by which Accrued Certificate Interest for
such Class (as reduced pursuant to Section 5.02(c)) exceeds the amount of
interest actually distributed on such Class (or, in the case of the Class 3-A-8
Certificates prior to the Accretion Termination Date, the amount included in the
Class 3-A-8 Accrual Distribution Amount pursuant to clause (i) of the definition
thereof, but not distributed as interest on the Class 3-A-8 Certificates) on
such Distribution Date pursuant to clause (i) of the definition of "Interest
Distribution Amount."
Class IO Component: Any of the Class 1-IO Component, the Class 2-IO
Component or the Class 3-IO Component.
Class PO Component: Any of the Class 1-PO Component, the Class 2-PO
Component or the Class 3-PO Component.
Class PO Deferred Amount: As to any Distribution Date and each Class
PO Component, the sum of the amounts by which the Component Balance of such
Class PO Component will be reduced on such Distribution Date or has been reduced
on prior Distribution Dates as a result of Section 5.03(b) less the sum of (a)
the Class PO Recoveries with respect to the Related Loan Group for prior
Distribution Dates and (b) the amounts distributed to such Class PO Component
pursuant to Section 5.02(a)(iii) on prior Distribution Dates.
Class PO Recovery: As to any Distribution Date and Loan Group, the
lesser of (a) (i) in the case of Group 1, the Class PO Deferred Amount for the
Class 1-PO Component for such Distribution Date, (ii) in the case of Group 2,
the Class PO Deferred Amount for the Class 2-PO Component for such Distribution
Date and (iii) in the case of Group 3, the Class PO Deferred Amount for the
Class 3-PO Component for such Distribution Date and (b) an amount equal to the
sum, as to each Mortgage Loan in such Loan Group as to which there has been a
Recovery received during the calendar month preceding the month of such
Distribution Date, of the product of (x) the PO Percentage with respect to such
Mortgage Loan and (y) the amount of the Recovery received during the calendar
month preceding the month of such Distribution Date with respect to such
Mortgage Loan.
Class Unpaid Interest Shortfall: As to any Distribution Date and
each interest-bearing Class, the amount by which the aggregate Class Interest
Shortfalls for such Class (or, in the case of the Class 3-A-8 Certificates prior
to the Accretion Termination Date, the amount included in the Class 3-A-8
Accrual Distribution Amount pursuant to clause (ii) of the definition thereof,
but not distributed as interest on the Class 3-A-8 Certificates) on prior
Distribution Dates exceeds the amount of interest actually distributed on such
Class on such prior Distribution Dates pursuant to clause (ii) of the definition
of "Interest Distribution Amount."
Closing Date: September 29, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date and
Servicer, an amount equal to the lesser of (a) the 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 calendar month preceding the month of such Distribution Date;
provided, however, that Compensating Interest for any Distribution Date payable
by RFC will be capped at 1/12th of 0.125% of the aggregate Stated Principal
Balance of the Mortgage Loans serviced by RFC (calculated as of the Remittance
Date relating to such Distribution Date).
Component: Any of the Class IO Components or Class PO Components.
Component Balance: With respect to any Class PO Component and any
date of determination, the Initial Component Balance of such Component minus the
sum of (i) all distributions of principal made with respect thereto and (ii) all
reductions in the related Component Balance previously allocated thereto
pursuant to Section 5.03(b). The Class IO Components are interest only
Components and have no Component Balance.
Component Interest Distribution Amount: For any Distribution Date
and any Class IO Component, the sum of (i) the Accrued Component Interest for
such Component and (ii) any Component Unpaid Interest Shortfall for such
Component. The Class PO Components are principal only Components and are not
entitled to distributions of interest.
Component Interest Shortfall: For any Distribution Date and any
Class IO Component, the amount by which Accrued Component Interest for such
Component exceeds the amount of interest actually distributed on such Component
on such Distribution Date pursuant to clause (i) of the definition of "Component
Interest Distribution Amount."
Component Notional Amount: As of any Distribution Date, any of the
Class 1-IO Notional Amount, Class 2-IO Notional Amount and Class 3-IO Notional
Amount.
Component Unpaid Interest Shortfall: As to any Distribution Date and
any Class IO Component, the amount by which the aggregate Component Interest
Shortfall for such Component on prior Distribution Dates exceeds the amount of
interest actually distributed on such Component on such prior Distribution Dates
pursuant to clause (ii) of the definition of "Component Interest Distribution
Amount."
Cooperative: A private, cooperative housing corporation which owns
or leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned or leased by a Cooperative, which unit the Mortgagor has an exclusive
right to occupy pursuant to the terms of a proprietary lease or occupancy
agreement.
Cooperative Lease: With respect to a Cooperative Loan, the
proprietary lease or occupancy agreement with respect to the Cooperative
Apartment occupied by the Mortgagor and relating to the related Cooperative
Stock, which lease or agreement confers an exclusive right to the holder of such
Cooperative Stock to occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing statements and
(v) a stock power (or other similar instrument), and ancillary thereto, a
Recognition Agreement, each of which was transferred and assigned to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan,
the stock certificate or other instrument evidencing the related Cooperative
Stock.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee, which office at the date of the execution of this
instrument is located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
00000-0000 Attention: Structured Finance Trust Services, BAFC, Series 2005-5, or
at such other address as the Trustee may designate from time to time by notice
to the Certificateholders, the Depositor, the Securities Administrator and the
Master Servicer. With respect to the Securities Administrator, the principal
corporate trust office of the Securities Administrator at which at any
particular time its corporate trust business with respect to this Agreement is
conducted, which office at the date of the execution of this instrument is
located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Services - BAFC 2005-5, and for certificate transfer purposes is
located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Services - BAFC 2005-5, 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 Upper-Tier Class, Classes or Component: As defined in
the Preliminary Statement.
Counterparty: Bank of America, National Association.
Custodian: Initially, the Trustee and thereafter the Custodian, if
any, hereafter appointed by the Trustee pursuant to Section 9.12. A Custodian
may (but need not) be the Trustee or any Person directly or indirectly
controlling or controlled by or under common control of either of them. None of
the Master 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
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: September 1, 2005.
Cut-off Date Pool Principal Balance: For each Loan Group, the
aggregate of the Cut-off Date Principal Balances of the Mortgage Loans in such
Loan Group which is $199,029,631.17 for Loan Group 1, $186,171,909.68 for Loan
Group 2 and $94,509,713.00 for Loan Group 3.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer of such
Mortgage Loan is pursuing an appeal of the court order giving rise to any such
modification and (b)(1) such Mortgage Loan is not in default with respect to
payment due thereunder in accordance with the terms of such Mortgage Loan as in
effect on the Cut-off Date or (2) Monthly Payments are being advanced by the
applicable Servicer, the Master Servicer or the Trustee, as applicable, in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Sections 2.02 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the applicable Servicer
is pursuing an appeal of the court order giving rise to any such modification
and (b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the applicable
Servicer, the 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).
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.
Discount Mortgage Loan: Any Group 1 Discount Mortgage Loan, Group 2
Discount Mortgage Loan or Group 3 Discount Mortgage Loan.
Distribution Date: The 25th day of each month beginning in October
2005 (or, if such day is not a Business Day, the next Business Day).
Document Transfer Event: The 60th day following the day on which
either (i) Xxxxx Fargo Bank is no longer the Servicer of any of the Mortgage
Loans purchased by the Seller 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 Ratings.
Due Date: As to any Distribution Date and each Mortgage Loan, the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
a federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee, the Securities Administrator and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with the trust department of a federal or state chartered
depository institution or trust company (including the Trustee and the
Securities Administrator), acting in its fiduciary capacity or (iv) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee or the Securities Administrator. Notwithstanding
anything in the foregoing to the contrary, an account shall not fail to be an
Eligible Account solely because it is maintained with Xxxxx Fargo Bank, N.A., a
wholly owned subsidiary of Xxxxx Fargo & Co., provided that such subsidiary or
its parent's (A) commercial paper, short-term unsecured debt obligations or
other short-term deposits are at least "P-1" in the case of Moody's and "A-1+"
in the case of S&P, if the deposits are to be held in the account for 30 days or
less, or (B) long-term unsecured debt obligations are rated at least "Aa3" in
the case of Moody's and "AA-" (or "A" (without regard to any plus or minus), if
the short-term unsecured debt obligations are rated at least "A-1+") in the case
of S&P, if the deposits are to be held in the account for more than 30 days.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class B-4, Class B-5 or
Class B-6 Certificates.
Escrow Account: As defined in Section 3.08.
Escrow Payments: The amounts constituting taxes, assessments,
Primary Mortgage Insurance Policy premiums, fire and hazard insurance premiums
and other payments as may be required to be escrowed by the Mortgagor with the
mortgagee pursuant to the terms of any Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Funds: With respect to (A) the Class 1-A-2 Reserve Fund and
for any Distribution Date, the amount by which (a) the Class 1-A-2 Yield
Maintenance Agreement Payments for prior Distribution Dates exceed (b) the
amount actually paid from the Class 1-A-2 Reserve Fund with respect to (i) Class
1-A-2 Yield Maintenance Amounts for such prior Distribution Dates and (ii) Class
1-A-2 Yield Maintenance Amount Shortfalls for such prior Distribution Dates and
(B) the Class 3-A-7 Reserve Fund and for any Distribution Date, the amount by
which (a) the Class 3-A-7 Yield Maintenance Agreement Payments for prior
Distribution Dates exceed (b) the amount actually paid from the Class 3-A-7
Reserve Fund with respect to (i) Class 3-A-7 Yield Maintenance Amounts for such
prior Distribution Dates and (ii) Class 3-A-7 Yield Maintenance Amount
Shortfalls for such prior Distribution Dates.
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.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
Form 10-K: As defined in Section 3.22.
Fractional Interest: As defined in Section 5.02(d).
Grantor Trust: That portion of the Trust exclusive of the REMICs
consisting of (a) the right of the Class 1-A-2 Certificates to receive amounts
from the Class 1-A-2 Reserve Fund, (b) the right of the Class 3-A-7 Certificates
to receive amounts from the Class 3-A-7 Reserve Fund, (c) the Class 1-A-2 Yield
Maintenance Agreement and the Class 1-A-2 Reserve Fund and (d) the Class 3-A-7
Yield Maintenance Agreement and the Class 3-A-7 Reserve Fund.
Group: Any of Group 1, Group 2 or Group 3.
Group 1: The Group 1 Senior Certificates, the Class 1-IO Component
and the Class 1-PO Component.
Group 1 Discount Mortgage Loan: Any Group 1 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is less than 5.500% per
annum.
Group 1 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-1
hereto.
Group 1 Premium Mortgage Loan: Any Group 1 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than or equal to
5.500% per annum.
Group 1 Senior Certificates: The Class 1-A-1, Class 1-A-2, Class
1-A-3, Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8, Class
1-A-9, Class 1-A-10, Class 1-A-11 and Class 1-A-R Certificates.
Group 2: The Group 2 Senior Certificates, the Class 2-IO Component
and the Class 2-PO Component.
Group 2 Discount Mortgage Loan: Any Group 2 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is less than 5.500% per
annum.
Group 2 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-2
hereto.
Group 2 Premium Mortgage Loan: Any Group 2 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than or equal to
5.500% per annum.
Group 2 Senior Certificates: The Class 2-A-1 and Class 2-A-2
Certificates.
Group 3: The Group 3 Senior Certificates, the Class 3-IO Component
and the Class 3-PO Component.
Group 3 Discount Mortgage Loan: Any Group 3 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is less than 5.500% per
annum.
Group 3 Mortgage Loan: Each Mortgage Loan listed on Exhibit D-3
hereto.
Group 3 Premium Mortgage Loan: Any Group 3 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date that is greater than or equal to
5.500% per annum.
Group 3 Senior Certificates: The Class 3-A-1, Class 3-A-2, Class
3-A-3, Class 3-A-4, Class 3-A-5, Class 3-A-6, Class 3-A-7 and Class 3-A-8
Certificates.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor, the 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.
Initial Class Certificate Balance: As to each Class of Certificates
(other than the Class 1-A-3, Class 1-A-6, Class 3-A-7 and Class 30-IO
Certificates), the Class Certificate Balance set forth in the Preliminary
Statement. The Class 1-A-3, Class 1-A-6, Class 3-A-7 and Class 30-IO
Certificates are Interest Only Certificates and have no Initial Class
Certificate Balance.
Initial Component Balance: As to each Class PO Component, the
Component Balance set forth in the Preliminary Statement.
Initial Notional Amount: As to each Class of Interest Only
Certificates, the Notional Amount set forth in the Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Estate, any 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 interest-bearing Certificates (other than the Class 1-A-2, Class 1-A-3, Class
3-A-1 Certificates, Class 3-A-7 Certificates and Class 30-IO Certificates) and
each Class IO Component, 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 the Class 1-A-2, Class 1-A-3, Class 3-A-1 and Class
3-A-7 Certificates, the period from and including the 25th day of the calendar
month preceding the calendar month in which such Distribution Date occurs and
ending on the 24th day of the calendar month in which such Distribution Date
occurs.
Interest Distribution Amount: For any Distribution Date and each
interest-bearing Class (other than the Class 30-IO Certificates) and each Class
IO Component, the sum of (i) the Accrued Certificate Interest or Accrued
Component Interest, subject to reduction pursuant to Section 5.02(c) and (ii)
any Class Unpaid Interest Shortfall for such Class or Component Unpaid Interest
Shortfall for such Component.
Interest Only Certificates: Any Class of Certificates entitled to
distributions of interest, but no distributions of principal. The Class 1-A-3
Certificates, Class 1-A-6 Certificates, Class 3-A-7 Certificates and Class 30-IO
Certificates are the only Classes of Interest Only Certificates.
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations for one-month U.S. Dollar deposits,
as determined by the Securities Administrator in accordance with Section 5.09.
LIBOR Business Day: Any Business Day on which banks are open for
dealing in foreign currency and exchange in London, England or the City of New
York.
LIBOR Certificates: Any of the Class 1-A-2, Class 1-A-3, Class 3-A-1
or Class 3-A-7 Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
applicable Servicer has certified (in accordance with the applicable Servicing
Agreement) that it has received all proceeds it expects to receive in connection
with the liquidation of such Mortgage Loan including the final disposition of an
REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2 or Loan Group 3.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan-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 5.10(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account, the insurance policies, if any,
relating to a Mortgage Loan and the Mortgaged Property which secured a Mortgage
Loan and which has been acquired by foreclosure or deed in lieu of foreclosure.
Master Servicer: Xxxxx Fargo Bank, 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 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
Banc of America Funding Corporation Mortgage Pass-Through Certificates, Series
2005-5."
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 Indemnified Parties: As defined in Section 3.22(c).
Master Servicer's Certificate: The monthly report required by the
Master Servicer pursuant to 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 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.
MERS: As defined in Section 2.01(b)(iii).
Monthly Form 8-K: As defined in Section 3.22.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate
of interest at which interest accrues on the principal balance of such Mortgage
Loan in accordance with the terms of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated September 29, 2005, 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; (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; and (xvii) the closing date of the Mortgage Loan.
With respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall set forth the following information, as of the Cut-off Date: (i) the
number of Mortgage Loans; (ii) the current aggregate outstanding principal
balance of the Mortgage Loans; (iii) the weighted average Mortgage Interest Rate
of the Mortgage Loans; and (iv) the weighted average months to maturity of the
Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are held as a part
of the Trust Estate (including any Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
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.
National City Mortgage: National City Mortgage Co.
National City Mortgage Servicing Agreement: Collectively, the Master
Seller's Warranties and Servicing Agreement, dated as of September 1, 2003, by
and between BANA (as successor in interest to BAMCC) and National City Mortgage,
as amended by (i) Amendment No. 1, dated as of July 1, 2004, by and among Banc
of America Mortgage Capital Corporation, National City Mortgage and BANA, (ii)
the Master Assignment, Assumption and Recognition Agreement, dated as of July 1,
2004, by and among Banc of America Mortgage Capital Corporation, National City
Mortgage, BANA and Wachovia Bank, (iii) Amendment No. 2, dated as of October 1,
2004, by and between National City Mortgage and BANA, (iv) the Assignment and
Conveyance Agreements, dated May 19, 2005, June 1, 2005 and June 16, 2005 and
(v) the Assignment Assumption and Recognition Agreement, dated September 29,
2005, by and among BANA, the Depositor, the Trustee and National City Mortgage.
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
Servicing Fee Rate for such Mortgage Loan.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage), the numerator of which is the Net Mortgage Interest
Rate as of the Cut-off Date of such Discount Mortgage Loan and the denominator
of which is 5.500%. As to any Mortgage Loan that is not a Discount Mortgage
Loan, 100%.
Non-PO Principal Amount: As to any Distribution Date and Loan Group,
the sum of (i) the sum of the applicable Non-PO Percentage of (a) the principal
portion of each Monthly Payment due on each Mortgage Loan in such Loan Group on
the related Due Date, (b) the Stated Principal Balance, as of the date of
repurchase, of (i) each Mortgage Loan in such Loan Group that was repurchased by
a Servicer pursuant to the applicable Servicing Agreement as of such
Distribution Date, (ii) each Mortgage Loan in such Loan Group repurchased by the
Seller pursuant to the Mortgage Loan Purchase Agreement or a Purchase Obligation
as of such Distribution Date, (iii) each Mortgage Loan in such Loan Group
repurchased by the Depositor pursuant to Section 2.04 or (iv) each Mortgage Loan
in such Loan Group purchased by the Master Servicer pursuant to Section 10.01,
(c) any Substitution Adjustment Amount in connection with a Defective Mortgage
Loan in such Loan Group received during the calendar month preceding the month
of such Distribution Date, (d) any Liquidation Proceeds allocable to recoveries
of principal of Mortgage Loans in such Loan Group that are not yet Liquidated
Mortgage Loans received by a Servicer during the calendar month preceding the
month of such Distribution Date, (e) with respect to each Mortgage Loan in such
Loan Group that became a Liquidated Mortgage Loan during the calendar month
preceding the month of such Distribution Date, the amount of Liquidation
Proceeds (excluding Excess Proceeds) allocable to principal received by a
Servicer with respect to such Mortgage Loan during such period and (f) with
respect to each Mortgage Loan, all Principal Prepayments on the Mortgage Loans
in such Loan Group received by a Servicer during the calendar month preceding
the month of such Distribution Date; and (ii) the Non-PO Recovery with respect
to such Loan Group for such Distribution Date.
Non-PO Recovery: As to any Distribution Date and Loan Group, the
amount of all Recoveries received with respect to such Loan Group during the
calendar month preceding the month of such Distribution Date less the Class PO
Recovery with respect to such Loan Group for such Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
the aggregate Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the applicable Servicer will
not or, in the case of a proposed Advance, would not be ultimately recoverable
from the related Mortgagor, related Liquidation Proceeds, Insurance Proceeds or
other recoveries in respect of the related Mortgage Loan.
Notional Amount: With respect to (a) the Class 1-A-3 Certificates
and any date of determination, the Class 1-A-3 Notional Amount, (b) the Class
1-A-6 Certificates and any date of determination, the Class 1-A-6 Notional
Amount, (c) the Class 3-A-7 Certificates and any date of determination, the
Class 3-A-7 Notional Amount and (d) the Class 30-IO Certificates and any date of
determination, the Class 30-IO Notional Amount.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Senior, Class B-1, Class B-2 and Class B-3
Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or the Master
Servicer, as the case may be, and delivered to the Trustee or the Securities
Administrator, as the case may be.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee if such opinion is delivered to the Trustee, or acceptable to the
Securities Administrator if such opinion is delivered to the Securities
Administrator, who may be counsel for the Depositor or the Master Servicer,
except that any opinion of counsel relating to the qualification of the Trust
Estate as two REMICs or compliance with the REMIC Provisions must be an opinion
of Independent counsel.
Original Fractional Interest: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class B-1 1.75%
Class B-2 1.10%
Class B-3 0.70%
Class B-4 0.40%
Class B-5 0.15%
Class B-6 0.00%
Original Subordinate Certificate Balance: $16,311,482.00.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full, 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.
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.
PAC Certificates: The Class 3-A-2, Class 3-A-3, Class 3-A-4 and
Class 3-A-5 Certificates.
PAC Group: The PAC Certificates.
PAC Principal Amount: As to any Distribution Date and the PAC Group,
the amount, if any, that would reduce the aggregate Class Certificate Balance of
the PAC Group to the applicable balance shown in the table set forth in Exhibit
P with respect to such Distribution Date.
Pass-Through Rate: As to each Class of interest-bearing Certificates
and each Component, the per annum rate set forth or described in the Preliminary
Statement.
Payahead Amount: As to any Distribution Date and Mortgage Loan,
early prepayments of scheduled installments of principal and interest made by a
Mortgagor during the calendar month preceding the month of such Distribution
Date that are intended by such Mortgagor to be applied on subsequent Due Dates.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage obtained
by dividing the initial Certificate Balance of such Certificate (or the initial
notional amount for the Class 1-A-3, Class 1-A-6, Class 3-A-7 and Class 30-IO
Certificates) by the Initial Class Certificate Balance or Initial Notional
Amount, as applicable, of the Class of which such Certificate is a part.
Periodic Advance: With respect to each Servicer, shall have the
meaning given to term "Monthly Advance" in the applicable Servicing Agreement.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, 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 Moody's 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 Moody's 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 Moody's
and "A-1+" by S&P;
(v) investments in money market funds (including funds of the
Securities Administrator or its affiliates, or funds for which an
affiliate of the Securities Administrator acts as advisor, as well as
funds for which the Securities Administrator and its affiliates may
receive compensation) rated either "Aaa" by Moody's 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 the Trust Estate as two REMICs;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on a
Residual Certificate is allocable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of such Person or
any other U.S. Person, and (vi) any other Person so designated by the Master
Servicer based on an Opinion of Counsel to the effect that any transfer to such
Person may cause the Trust or any other Holder of a Residual Certificate to
incur tax liability that would not be imposed other than on account of such
transfer. The terms "United States," "State" and "international organization"
shall have the meanings set forth in Code Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
PHH:..PHH Mortgage Corporation, or its successor in interest.
PHH Servicing Agreement: Collectively, the Mortgage Loan Flow
Purchase, Sale and Servicing Agreement, dated as of August 1, 2005, by and among
BANA, as purchaser, PHH, as a seller and servicer, and Xxxxxx'x Gate Residential
Mortgage Trust, as a seller, (ii) the related Warranty Xxxx of Sale, dated
August 31, 2005, and (iii) the Assignment, Assumption and Recognition Agreement
dated September 29, 2005, among the BANA, the Depositor, the Master Servicer,
the Trustee, PHH and Xxxxxx'x Gate Residential Mortgage Trust.
Physical Certificates: The Class 1-A-R, Class B-4, Class B-5 and
Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date and Loan
Group, the excess of (a) the sum of (i) the aggregate of (A) the interest
portion of any Monthly Payment on a Mortgage Loan in such Loan Group and the
principal portion of any Monthly Payment on a Mortgage Loan in such Loan Group
due on the Due Date in the month in which such Distribution Date occurs and
which is received prior to the related Determination Date and (B) all Periodic
Advances made by a Servicer (or the Master Servicer or the Trustee, as
applicable) in respect of such Loan Group and payments of Compensating Interest
allocable to such Loan Group made by the applicable Servicer in respect of such
Loan Group and such Distribution Date deposited to the 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 Loan Group during
the calendar month preceding the month of such Distribution Date and deposited
to the Master Servicer Custodial Account pursuant to Section 3.09(d)(iii); (iii)
all Principal Prepayments received on the Mortgage Loans in such Loan Group
during the calendar month preceding the month of such Distribution Date and
deposited to the Master Servicer Custodial Account pursuant to Section
3.09(d)(i) during such period; (iv) in connection with any Mortgage Loans that
are Defective Mortgage Loans in such Loan Group, the aggregate of the Purchase
Prices and Substitution Adjustment Amounts remitted on the related Remittance
Date pursuant to Section 3.09(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 such Loan
Group; (vi) any Reimbursement Amount required to be included pursuant to Section
5.02(a); and (vii) any Non-PO Recovery with respect to such Distribution Date
and Loan Group over (b) any amounts permitted to be withdrawn from the Master
Servicer Custodial Account pursuant to clauses (i) through (viii), inclusive, of
Section 3.11(a) in respect of such Loan Group.
Pool Stated Principal Balance: As to any Distribution Date and Loan
Group, the aggregate Stated Principal Balance of all Mortgage Loans in such Loan
Group that were Outstanding Mortgage Loans immediately following the Due Date in
the month preceding the month in which such Distribution Date occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date and Loan Group, the sum of the product, for each Mortgage Loan
of such Loan Group, of (a) the Non-PO Percentage of such Mortgage Loan
multiplied by (b) the Stated Principal Balance of such Mortgage Loan that was an
Outstanding Mortgage Loan immediately following the Due Date in the month
preceding the month in which such Distribution Date occurs.
PO Percentage: As to any Discount Mortgage Loan, 100% minus the
Non-PO Percentage for such Mortgage Loan. As to any Mortgage Loan that is not a
Discount Mortgage Loan, 0%.
PO Principal Amount: As to any Distribution Date and Loan Group, (i)
the sum of the applicable PO Percentage of (a) the principal portion of each
Monthly Payment due on each Mortgage Loan in such Loan Group on the related Due
Date; (b) the Stated Principal Balance, as of the date of repurchase, of (i)
each Mortgage Loan in such Loan Group that was repurchased by a Servicer
pursuant to the applicable Servicing Agreement as of such Distribution Date,
(ii) each Mortgage Loan in such Loan Group repurchased by the Seller pursuant to
the Mortgage Loan Purchase Agreement or a Purchase Obligation as of such
Distribution Date, (iii) each Mortgage Loan in such Loan Group repurchased by
the Depositor pursuant to Section 2.04, or (iv) each Mortgage Loan in each Loan
Group purchased by the Master Servicer pursuant to Section 10.01; (c) any
Substitution Adjustment Amount in connection with any Defective Mortgage Loan in
such Loan Group received with respect to such Distribution Date; (d) any
Liquidation Proceeds allocable to recoveries of principal of Mortgage Loans in
such Loan Group that are not yet Liquidated Mortgage Loans received by a
Servicer during the calendar month preceding the month of such Distribution
Date; (e) with respect to each Mortgage Loan in such Loan Group that became a
Liquidated Mortgage Loan during the calendar month preceding the month of such
Distribution Date, the amount of Liquidation Proceeds (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 calendar
month preceding the month of such Distribution Date; and (ii) the Class PO
Recovery with respect to such Loan Group for such Distribution Date.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan, Group 2
Premium Mortgage Loan or Group 3 Premium Mortgage Loan.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding the month of such Distribution Date, the amount, if any, by
which one month's interest at the related Mortgage Interest Rate (net of the
Servicing Fee Rate) on such Principal Prepayment exceeds the amount of interest
paid in connection with such Principal Prepayment.
Primary Mortgage Insurance Policy: Each policy of primary mortgage
guaranty insurance or any replacement policy therefor with respect to any
Mortgage Loan, in each case issued by an insurer acceptable to Xxxxxx Mae or
Xxxxxxx Mac.
Principal Only Certificates: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest. The Class 30-PO
Certificates are the only Principal Only Certificates.
Principal Prepayment: With respect to each Mortgage Loan, any
payment or other recovery of principal on a Mortgage Loan (other than
Liquidation Proceeds or Payaheads) 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.
Priority Amount: As to any Distribution Date, the least of (i) the
aggregate Class Certificate Balance of the Class 1-A-1 and Class 1-A-10
Certificates, (ii) the product of (a) the Shift Percentage, (b) the Priority
Percentage and (c) the Non-PO Principal Amount for the Group 1 Senior
Certificates or (iii) the Senior Principal Distribution Amount for Loan Group 1.
Priority Percentage: As to any Distribution Date, the percentage
equivalent (carried to six places rounded up) of a fraction the numerator of
which is the aggregate Class Certificate Balance of the Class 1-A-1 and Class
1-A-10 Certificates immediately prior to such date and the denominator of which
is the Pool Stated Principal Balance (Non-PO Portion) for Loan Group 1
immediately prior to such date.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the portion of the
Subordinate Principal Distribution Amounts allocable to such Class, equal to the
product of the Subordinate Principal Distribution Amounts for such Distribution
Date and a fraction, the numerator of which is the related Class Certificate
Balance thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinate Certificates that are not Restricted Classes. The Pro
Rata Share of a Restricted Class shall be 0%.
Purchase Obligation: An obligation of the Seller 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 Determination Date: As to any Class of LIBOR Certificates, the
second LIBOR Business Day prior to the beginning of the applicable Interest
Accrual Period for such Class and such Distribution Date.
Rating Agency: Each of Xxxxx'x and S&P. If either such organization
or a successor is no longer in existence, "Rating Agency" shall be such
nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee, the Master Servicer and the Securities Administrator.
References herein to a given rating or rating category of a Rating Agency shall
mean such rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Recognition Agreement: With respect to a Cooperative Loan, the
recognition agreement between the Cooperative and the originator of such
Cooperative Loan.
Record Date: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month of the related
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Regular Certificates: As defined in the Preliminary Statement
hereto.
Reimbursement Amount: As defined in Section 2.02.
Related Group: For Loan Group 1, Group 1, for Loan Group 2, Group 2,
and for Loan Group 3, Group 3.
Related Loan Group: For Group 1, Loan Group 1, for Group 2, Loan
Group 2, and for Group 3, Loan Group 3.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or comparable state legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan for the most
recently ended calendar month is less than (ii) interest accrued pursuant to the
terms of the Mortgage Note on the same principal amount and for the same period
as the interest collectible on such Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates and the Components as that term is defined in
Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: The 18th day of each month beginning in October
2005 (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 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.
Request for Release: The Request for Release submitted by a Servicer
to the Trustee or the Custodian on behalf of the Trustee, as the case may be,
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 Fund: Either of the Class 1-A-2 Reserve Fund or the Class
3-A-7 Reserve Fund.
Residual Certificate: The Class 1-A-R Certificate.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust Department of the
Trustee or the Securities Administrator, as applicable, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee or Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers and
having responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
RFC: Residential Funding Corporation, in its capacity as Servicer
under the RFC Servicing Agreement.
RFC Servicing Agreement: Collectively, (i) the Standard Terms and
Provisions of Sale and Servicing Agreement, dated as of November 1, 2004, by and
between BANA and RFC, as amended by that certain Reference Agreement, dated as
of July 1, 2005, by and between RFC and BANA, and (ii) the Assignment,
Assumption and Recognition Agreement, dated September 29, 2005, by and among
BANA, the Depositor, the Trustee and RFC and acknowledged by the Master
Servicer.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Scheduled Certificates: The Class 3-A-6 Certificates.
Scheduled Principal Amount: As to any Distribution Date and the
Scheduled Certificates, the amount, if any, that would reduce the aggregate
Class Certificate Balance of the Scheduled Certificates to the applicable
balance shown in the table set forth in Exhibit P with respect to such
Distribution Date.
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.
Seller: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-5, Class 1-A-6, Class 1-A-7, Class 1-A-8, Class 1-A-9,
Class 1-A-10, Class 1-A-11, Class 1-A-R, Class 2-A-1, Class 2-A-2, Class 3-A-1,
Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 3-A-5, Class 3-A-6, Class 3-A-7,
Class 3-A-8, Class 30-IO and Class 30-PO Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Percentage: With respect to any Distribution Date and Loan
Group, the percentage, carried to six places rounded up, obtained by dividing
(i) the sum of the aggregate Class Certificate Balance of the Senior
Certificates of the Related Group immediately prior to such Distribution Date,
by (ii) the Pool Stated Principal Balance (Non-PO Portion) of such Loan Group
for such Distribution Date.
Senior Prepayment Percentage: For any Distribution Date and Loan
Group during the five (5) years beginning on the first Distribution Date, 100%.
The Senior Prepayment Percentage for any Loan Group and for any Distribution
Date occurring on or after the fifth anniversary of the first Distribution Date
will, except as provided herein, be as follows: for any Distribution Date in the
first (1st) 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 (2nd) 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
(3rd) 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 (4th) year thereafter, the Senior Percentage for
such Loan Group plus 20% of the Subordinate Percentage for such Loan Group for
such Distribution Date; and for any Distribution Date in the fifth (5th) or
later years thereafter, the Senior Percentage for such Loan Group for such
Distribution Date (unless on any of the foregoing Distribution Dates, the Total
Senior Percentage exceeds the initial Total Senior Percentage, in which case the
Senior Prepayment Percentage for each Loan Group for such Distribution Date will
once again equal 100%). Notwithstanding the foregoing, no decrease in the Senior
Prepayment Percentage for either Loan Group will occur unless both of the Senior
Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date
and Loan Group, the sum of (i) the Senior Percentage for such Loan Group of the
applicable Non-PO Percentage of the amounts described in clauses (i)(a) through
(d) of the definition of "Non-PO Principal Amount" for such Distribution Date
and Loan Group and (ii) the Senior Prepayment Percentage for such Loan Group of
(1) the applicable Non-PO Percentage of the amounts described in clauses (i)(e)
and (f) and (2) the amount described in clause (ii) of the definition of "Non-PO
Principal Amount" for such Distribution Date and Loan Group.
Senior Step Down Conditions: As of any Distribution Date and as to
which any decrease in the Senior Prepayment Percentage for any Loan Group
applies, (i) the outstanding principal balance of all Mortgage Loans (including,
for this purpose, any Mortgage Loans in foreclosure, any REO Property and any
Mortgage Loan for which the Mortgagor has filed for bankruptcy after the Closing
Date) delinquent 60 days or more (averaged over the preceding six month period),
as a percentage of the aggregate Class Certificate Balance of the Subordinate
Certificates, is not equal to or greater than 50% or (ii) cumulative Realized
Losses with respect to the Mortgage Loans as of the applicable Distribution Date
do not exceed the percentages of the Original Subordinate Certificate Balance
set forth below:
Percentage of
Original Subordinate
Distribution Date Occurring Certificate Balance
------------------------------------- --------------------
October 2010 through September 2011 30%
October 2011 through September 2012 35%
October 2012 through September 2013 40%
October 2013 through September 2014 45%
October 2014 and thereafter 50%
Servicer: Any of CitiMortgage, National City Mortgage, PHH, RFC,
Washington Mutual or Xxxxx Fargo Bank, 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 CitiMortgage Servicing Agreement,
the National City Mortgage Servicing Agreement, the PHH Servicing Agreement, the
RFC Servicing Agreement, the Washington Mutual Servicing Agreement, and the
Xxxxx Fargo Servicing Agreement.
Servicing Fee: With respect to each Servicer, as defined in the
applicable Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as defined
in the applicable Servicing Agreement.
Servicing File: With respect to each Mortgage Loan, as defined in
the applicable Servicing Agreement.
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
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).
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Distribution Date Occurring In Shift Percentage
--------------------------------------------- --------------------
October 2005 through September 2010 0%
October 2010 through September 2011 30%
October 2011 through September 2012 40%
October 2012 through September 2013 60%
October 2013 through September 2014 80%
October 2014 and thereafter 100%
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such date as specified in
the amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor, and
after giving effect to any Deficient Valuation.
Subordinate Certificates: The Class B Certificates.
Subordinate Percentage: As of any Distribution Date and Loan Group,
100% minus the Senior Percentage for such Loan Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
Loan Group, 100% minus the Senior Prepayment Percentage for such Loan Group and
such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, an amount equal to the sum of (i) the
Subordinate Percentage for such Loan Group of the applicable Non-PO Percentage
of the amounts described in clauses (i)(a) through (d) of the definition of
"Non-PO Principal Amount" for such Distribution Date and Loan Group and (ii) the
Subordinate Prepayment Percentage for such Loan Group of the applicable Non-PO
Percentage of the amounts described in clauses (i)(e)and (f) and (2) the amount
described in clause (ii) of the definition of "Non-PO Principal Amount" for such
Distribution Date and Loan Group.
Substitute Mortgage Loan: A Mortgage Loan substituted for a
Defective Mortgage Loan which must, on the date of such substitution (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Monthly Payment due in the month of substitution, not in excess of 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 credit grade not lower in quality than that of the
Defective Mortgage Loan, (vii) have a remaining term to maturity not greater
than (and not more than one (1) year less than) that of the Defective Mortgage
Loan; (viii) have the same lien priority as the Defective Mortgage Loan; and
(ix) comply with each Mortgage Loan representation and warranty set forth in the
Mortgage Loan Purchase Agreement, the Servicing Agreements and this Agreement.
More than one Substitute Mortgage Loan may be substituted for a Defective
Mortgage Loan if such Substitute Mortgage Loans meet the foregoing attributes in
the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Total Senior Percentage: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing (x) the sum of
the Class Certificate Balance of the Group 1 Senior Certificates, the Group 2
Senior Certificates and the Group 3 Senior Certificates by (y) the aggregate
Pool Stated Principal Balance (Non-PO Portion) for all Loan Groups with respect
to such Distribution Date.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named the
"Banc of America Funding 2005-5 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 two 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) amounts in the Rounding Accounts, the Reserve Account,
the Policy Payment Account and the right to receive amounts, if any, payable on
behalf of any Mortgagor from the Buy-Down Account relating to any Buy-Down
Mortgage Loan, (v) the Depositor's rights under the Servicing Agreements and the
Mortgage Loan Purchase Agreement (including any security interest created
thereby), (vi) the Securities Administrator's rights under the Yield Maintenance
Agreements and (vii) the Servicer Custodial Accounts, the Master Servicer
Custodial Account, the Certificate Account and the Reserve Funds 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: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed hereunder, such
successor, as trustee.
Uncertificated Lower-Tier Interest: Each of the Class LT1A1, Class
LT1A2, Class LT1A4, Class LT1AIO, Class LT1APO, Class LT2A1, Class LT2AIO, Class
LT2APO, Class LT3A1, Class LT3A2, Class LT3AIO, Class LT3APO, Class LTUR and
Class LTB Interests. Each such Uncertificated Lower-Tier interest shall
represent a "regular interest" in the Lower-Tier REMIC for purposes of the REMIC
Provisions and shall be held as an asset of the Upper-Tier REMIC. Each
Uncertificated Lower-Tier Interest shall accrue interest, if any, at the related
Uncertificated Lower-Tier REMIC Rate in effect from time to time, and shall be
entitled to distributions of principal, if any, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial uncertificated
principal balance as set forth in the Preliminary Statement hereto.
Uncertificated Lower-Tier REMIC Rate: With respect to each
Uncertificated Lower-Tier Interest, the rate set forth in the Preliminary
Statement for the Lower-Tier REMIC.
Undercollateralized Amount: As defined in Section 5.02.
Undercollateralized Group: As defined in Section 5.02.
Uninsured Cause: Any cause of damage to a Mortgaged Property, the
cost of the complete restoration of which is not fully reimbursable under the
hazard insurance policies required to be maintained pursuant to Section 3.12.
Upper-Tier Certificate Sub-Account: The deemed sub-account of the
Certificate Account designated by the Securities Administrator pursuant to
Section 3.09(h).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be deemed held in the Upper-Tier Certificate
Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holder of
the Residual Certificate, (b) 1% of all Voting Rights shall be allocated to the
Holders of the Class 1-A-3 Certificates, (c) 1% of all Voting Rights shall be
allocated to the Holders of the Class 1-A-6 Certificates, (d) 1% of all Voting
Rights shall be allocated to the Holders of the Class 3-A-7 Certificates, (e) 1%
of all Voting Rights shall be allocated to the Holders of the Class 30-IO
Certificates and (f) the remaining Voting Rights shall be allocated among
Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
Washington Mutual: Washington Mutual Bank.
Washington Mutual Servicing Agreement: Collectively, the Mortgage
Loan Purchase and Sale Agreement (Amended and Restated), dated as of July 1,
2003, by and between Washington Mutual Bank and BANA, as amended by that
Mortgage Loan Purchase and Sale Agreement (Amended and Restated), dated as of
July 1, 2003, by and between Washington Mutual and BANA (as successor in
interest to BAMCC), as amended by (i) the Master Assignment, Assumption and
Recognition Agreement, dated as of July 1, 2004 (the "Master AAR"), by and
between BANA (as successor in interest to BAMCC) and Washington Mutual, (ii) the
Servicing Agreement (Amended and Restated), dated as of July 1, 2003, by and
between BANA (as successor in interest to BAMCC) and Washington Mutual, as
amended by the Master AAR, (iii) the Term Sheet, dated May 24, 2005, by and
between Washington Mutual and BANA, (iv) the Term Sheet, dated May 24, 2005, by
and between Washington Mutual and BANA, (v) the Term Sheet, dated July 26, 2005,
by and between Washington Mutual, and BANA and (vi) the Assignment, Assumption
and Recognition Agreement, dated September 29, 2005, by and among BANA, the
Depositor, the Trustee and Washington Mutual.
Xxxxx Fargo Bank: Xxxxx Fargo Bank, N.A., in its capacity as
Servicer under the Xxxxx Fargo Servicing Agreement.
Xxxxx Fargo Servicing Agreement: Collectively, the Mortgage Loan
Purchase Agreement, dated as of March 1, 2005, by and between BANA and Xxxxx
Fargo Bank, the Master Seller's Warranties and Servicing Agreement, dated as of
March 1, 2005, by and between BANA and Xxxxx Fargo Bank, as seller and servicer,
the Assignment and Conveyance Agreements, dated May 25, 2005, June 28, 2005 and
July 26, 2005, and the Assignment, Assumption and Recognition Agreement, dated
September 29, 2005, by and among BANA, the Depositor, the Trustee and Xxxxx
Fargo Bank.
Yield Maintenance Agreement: Either of the Class 1-A-2 Yield
Maintenance Agreement or the Class 3-A-7 Yield Maintenance Agreement.
Yield Maintenance Agreement Payment: Either of the Class 1-A-2 Yield
Maintenance Agreement Payment or the Class 3-A-7 Yield Maintenance Agreement
Payment.
Yield Maintenance Amount: Either of the Class 1-A-2 Yield
Maintenance Amount or the Class 3-A-7 Yield Maintenance Amount.
Yield Maintenance Amount Shortfall: Either of the Class 1-A-2 Yield
Maintenance Amount Shortfall or the Class 3-A-7 Yield Maintenance Amount
Shortfall.
Section 1.02 Interest Calculations. All calculations of interest will be
made on a 360-day year consisting of twelve (12) 30-day months. All dollar
amounts calculated hereunder shall be rounded to the nearest xxxxx with one-half
of one xxxxx being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor, concurrently
with the execution and delivery hereof, hereby sells, transfers, assigns, sets
over and otherwise conveys to the Trustee on behalf of the Trust for the benefit
of the Certificateholders, without recourse, all the right, title and interest
of the Depositor in and to the Mortgage Loans 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 Seller with respect to the Seller's rights under the Servicing
Agreements. The foregoing sale, transfer, assignment and set over does not and
is not intended to result in a creation of an assumption by the Trustee of any
obligation of the Depositor or any other Person in connection with the Mortgage
Loans or any agreement or instrument relating thereto, except as specifically
set forth herein. 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 Wachovia Bank,
National Association, as trustee for holders of Banc of America Funding
Corporation Mortgage Pass-Through Certificates, Series 2005-5, without
recourse," with all necessary intervening endorsements showing a complete
chain of endorsement from the originator to the Trustee (each such
endorsement being sufficient to transfer all right, title and interest of
the party so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note) and, in the case of any Mortgage Loan originated in the
State of New York documented by a NYCEMA, the NYCEMA, the new Mortgage
Note, if applicable, the consolidated Mortgage Note and the consolidated
Mortgage;
(ii) except as provided below and other than with respect to the
Mortgage Loans purchased by the Seller from Xxxxx Fargo Bank, N.A., the
original recorded Mortgage with evidence of a recording thereon, or if any
such Mortgage has not been returned from the applicable recording office
or has been lost, or if such public recording office retains the original
recorded Mortgage, a copy of such Mortgage certified by the applicable
Servicer (which may be part of a blanket certification) as being a true
and correct copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "Wachovia Bank, National Association,
as trustee for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2005-5" (which may be included in a
blanket assignment or assignments), together with, except as provided
below and other than with respect to the Mortgage Loans purchased by the
Seller from Xxxxx Fargo Bank, N.A., 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
Seller from Xxxxx Fargo Bank, any of (A) the original or duplicate
original mortgagee title insurance policy and all riders thereto, (B) a
title search showing no lien (other than standard exceptions) on the
Mortgaged Property senior to the lien of the Mortgage or (C) an opinion of
counsel of the type customarily rendered in the applicable jurisdiction in
lieu of a title insurance policy;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of
recording indicated thereon, or, if the lease is in the process of being
recorded, a photocopy of the lease, certified by an officer of the
respective prior owner of such Mortgage Loan or by the applicable title
insurance company, closing/settlement/escrow agent or company or closing
attorney to be a true and correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Cooperative Stock (other than
with respect to any Mortgage Loan secured by Cooperative Stock purchased
by the Seller from Xxxxx Fargo Bank, N.A.), 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 Seller 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,
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
Bank, the Master Servicer or Securities Administrator that a Document Transfer
Event has occurred, the Depositor shall, with respect to Mortgage Loans
purchased by the Seller from Xxxxx Fargo Bank, deliver or cause to be delivered
to the Trustee or the Custodian, on behalf of the Trustee, within 60 days copies
(which may be in electronic form mutually agreed upon by the Depositor and the
Trustee) of the following additional documents or instruments to the Mortgage
File with respect to each such Mortgage Loan; provided, however, that originals
of such documents or instruments shall be delivered to the Trustee or a
Custodian, 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 Bank
(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
(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 either Rating Agency to obtain the initial ratings of the
Certificates. The Securities Administrator, the Trustee and the Custodian may
rely and shall be protected in relying upon the information contained in such
Exhibit J.
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 and the Master Servicer 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 for which such Person is acting as Custodian listed on the
Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this Agreement,
the Trustee shall review, 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 and the Master Servicer a certification in the form attached hereto as
Exhibit L (the "Final Certification") to the effect that, as to each Mortgage
Loan for which it is acting as Custodian listed in the Mortgage Loan Schedule,
except as may be specified in a list of exceptions attached to such Final
Certification, such Mortgage File contains all of the items required to be
delivered pursuant to Section 2.01(b). In performing any such review, the
Trustee and any Custodian may conclusively rely on the purported genuineness of
any such document and any signature thereon.
If, in the course of such review, the Trustee or 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 or the Securities
Administrator discovers a breach by a Servicer or the Seller of any
representation, warranty or covenant under the Servicing Agreements or the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan and such breach
materially adversely affects the interest of the Certificateholders in the
related Mortgage Loan (provided that any such breach that causes the Mortgage
Loan not to be a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code shall be deemed to materially and adversely affect the interests of
the Certificateholders), then such party shall promptly so notify the Master
Servicer, the Seller, such Servicer and the Depositor of such failure to meet
the requirements of Section 2.01 or of such breach and request that the
applicable Servicer or the Seller, as applicable, deliver such missing
documentation or cure such defect or breach within 90 days of its discovery or
its receipt of notice of any such failure to meet the requirements of Section
2.01 or of such breach. If the Seller or the applicable Servicer, as applicable,
does not deliver such missing document or cure such defect or breach in all
material respects during such period, the Trustee shall enforce the applicable
Servicer's or Seller's obligation, as the case may be, under the applicable
Servicing Agreement or the Mortgage Loan Purchase Agreement, as applicable, and
cause the applicable Servicer or Seller, as applicable, to either (a) other than
in the case of RFC, PHH and Washington Mutual, 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
either 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 and a Custodian's
review of the Mortgage Files is limited solely to confirming that the documents
listed in Section 2.01 have been received and further confirming that any and
all documents delivered pursuant to Section 2.01 appear on their face to have
been executed and relate to the applicable Mortgage Loans identified in the
related Mortgage Loan Schedule based solely upon the review of items (i) and
(xi) in the definition of Mortgage Loan Schedule. Neither the Trustee nor 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.
In the event of a discovery of a breach of any representation or
warranty of a related Servicer or the Seller, the Trustee shall enforce the
rights of the Trust under the Servicing Agreements and the Mortgage Loan
Purchase Agreement for the benefit of the Certificateholders. In the event of a
breach of the representations or warranties with respect to the Mortgage Loans
set forth in a Servicing Agreement, the Trustee shall enforce the right of the
Trust to be indemnified for such breach of representation or warranty. In
addition, if a breach of a representation with respect to a Mortgage Loan set
forth in clauses (k) or (o) of paragraph 3 of the Mortgage Loan Purchase
Agreement occurs as a result of a violation of an applicable predatory or
abusive lending law, the Trustee shall enforce the right of the Trust to
reimbursement by the Seller for all costs or damages incurred by the Trust as a
result of the violation of such law (such amount, the "Reimbursement Amount"),
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 or the
Seller to cure or to repurchase (or, other than in the case of RFC, PHH and
Washington Mutual, to substitute for) any Mortgage Loan as to which a document
is missing, a material defect in a constituent document exists or as to which
such a breach has occurred and is continuing shall constitute the sole remedy
against a Servicer or the Seller in respect of such omission, defect or breach
available to the Trustee on behalf of the Certificateholders.
With respect to the representations and warranties relating to the
Mortgage Loans set forth in the Mortgage Loan Purchase Agreement that are made
to the best of the Seller's knowledge or as to which the Seller had no
knowledge, if it is discovered by the Depositor, the Master Servicer or the
Trustee that the substance of such representation or warranty is inaccurate and
such inaccuracy materially and adversely affects the interest of the
Certificateholders in the related Mortgage Loan then, notwithstanding the
Seller's lack of knowledge with respect to the substance of such representation
or warranty being inaccurate 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 and
shall inure to the benefit of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. It is understood and agreed
that the obligations of the Seller set forth in this Section 2.02 to cure,
substitute for or repurchase a Mortgage Loan pursuant to the Mortgage Loan
Purchase Agreement constitute the sole remedies available to the
Certificateholders and to the Trustee on their behalf respecting a breach of the
representations and warranties contained in the Mortgage Loan Purchase
Agreement.
The representations and warranties of each Servicer with respect to
the applicable Mortgage Loans in the related Servicing Agreement, which have
been assigned to the Trustee hereunder, were made as of the date specified in
such Servicing Agreement. To the extent that any fact, condition or event with
respect to a Mortgage Loan constitutes a breach of both (i) a representation or
warranty of a Servicer under the related Servicing Agreement and (ii) a
representation or warranty of the Seller under the Mortgage Loan Purchase
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right to enforce the obligations of the applicable
Servicer under any applicable representation or warranty made by it. The Trustee
acknowledges that the Seller shall have no obligation or liability with respect
to any breach of a representation or warranty made by it with respect to the
Mortgage Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by the applicable
Servicer in the applicable Servicing Agreement, without regard to whether such
Servicer fulfills its contractual obligations in respect of such representation
or warranty. The Trustee further acknowledges that the Depositor shall have no
obligation or liability with respect to any breach of any representation or
warranty with respect to the Mortgage Loans (except as set forth in Section
2.04) under any circumstances.
With respect to each Substitute Mortgage Loan the Seller shall
deliver to the Trustee (or a Custodian on behalf of the Trustee), for the
benefit of the Certificateholders, the Mortgage Note, the Mortgage, the related
Assignment of Mortgage (except for any Mortgage which has been recorded in the
name of MERS or its designee), and such other documents and agreements as are
otherwise required by Section 2.01, with the Mortgage Note endorsed and the
Mortgage assigned as required by Section 2.01. No substitution is permitted to
be made in any calendar month after the Determination Date for such month.
Monthly Payments due with respect to any such Substitute Mortgage Loan in the
month of substitution shall not be part of the Trust Estate. 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 Seller
or a Servicer (other than RFC, PHH and Washington Mutual) has substituted a
Substitute Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the
benefit of the Certificateholders to reflect the removal of each Mortgage Loan
that has become a Defective Mortgage Loan and the substitution of the Substitute
Mortgage Loan or Loans and the Master Servicer shall deliver the amended
Mortgage Loan Schedule to the Securities Administrator, the Trustee and any
Custodian. Upon such substitution of a Mortgage Loan by the Seller or a Servicer
(other than RFC, PHH and Washington Mutual), each Substitute Mortgage Loan shall
be subject to the terms of this Agreement in all respects, the Seller shall be
deemed to have made to the Trustee with respect to such Substitute Mortgage
Loan, as of the date of substitution, the representations and warranties made
pursuant to paragraph 4 of the Mortgage Loan Purchase Agreement 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.
For any month in which Seller or a Servicer (other than RFC, PHH and
Washington Mutual) 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 the Custodian on behalf of the
Trustee, as the case may be, upon the execution or, in the case of documents
requiring recording, receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the Master Servicer's
possession from time to time.
The Trustee or a Custodian, on behalf of the Trustee, shall be under
no duty or obligation (i) to inspect, review or examine any such documents,
instruments, certificates or other papers to determine that they are genuine,
enforceable, or appropriate for the represented purpose or that they are other
than what they purport to be on their face or (ii) to determine whether any
Mortgage File should include any of the documents specified in Section
2.01(b)(iv), (vi), (vii), (viii) and (ix). In connection with making the
certifications required hereunder, to the extent a title search or opinion of
counsel has been provided in lieu of a title policy for any Mortgage Loan, the
Trustee 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.
The Securities Administrator is hereby directed to execute and
deliver, on behalf of the Trust, the Yield Maintenance Agreements.
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer. (a) The Master Servicer hereby makes the following representations and
warranties to the Depositor, the Securities Administrator and the Trustee, as of
the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States of America and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in each of the states where a Mortgaged Property securing a
Mortgage Loan is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Master Servicer. The Master Servicer has power and authority to execute
and deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Master Servicer and the consummation of the transactions contemplated
hereby have been duly and validly authorized. This Agreement, assuming due
authorization, execution and delivery by the other parties hereto,
evidences the valid, binding and enforceable obligation of the Master
Servicer, subject to applicable law except as enforceability may be
limited by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of the rights of creditors and (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by the Master Servicer to make this
Agreement valid and binding upon the Master Servicer in accordance with
its terms.
(ii) No consent, approval, authorization or order is required for
the transactions contemplated by this Agreement from any court,
governmental agency or body, or federal or state regulatory authority
having jurisdiction over the Master Servicer is required or, if required,
such consent, approval, authorization or order has been or will, prior to
the Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer
and will not result in the breach of any term or provision of the charter
or by-laws of the Master Servicer or result in the breach of any term or
provision of, or conflict with or constitute a default under or result in
the acceleration of any obligation under, any agreement, indenture or loan
or credit agreement or other instrument to which the Master Servicer or
its property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Master Servicer or its
property is subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of the Master Servicer, threatened against the
Master Servicer which, either individually or in the aggregate, would
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Master Servicer, or in
any material impairment of the right or ability of the Master Servicer to
carry on its business substantially as now conducted or which would draw
into question the validity of this Agreement or the Mortgage Loans or of
any action taken or to be taken in connection with the obligations of the
Master Servicer contemplated herein, or which would materially impair the
ability of the Master Servicer to perform under the terms of this
Agreement.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders.
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans. The Depositor hereby represents and warrants to the Trustee with
respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as of
the date hereof or such other date set forth herein that as of the Closing Date:
(i) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans.
The Mortgage Loans were not assigned or pledged by the Depositor and the
Depositor had good and marketable title thereto, and the Depositor had
full right to transfer and sell the Mortgage Loans to the Trustee free and
clear of any encumbrance, participation interest, lien, equity, pledge,
claim or security interest and had full right and authority subject to no
interest or participation in, or agreement with any other party to sell or
otherwise transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all
right, title and interest in the Mortgage Loans to the Trustee on behalf
of the Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud any of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or the related Custodian and shall inure to the benefit of
the Trustee, notwithstanding any restrictive or qualified endorsement or
assignment.
Upon discovery by any of the Depositor, the Master Servicer, the
Securities Administrator or the Trustee that any of the representations and
warranties set forth in this Section 2.04 is not accurate (referred to herein as
a "breach") and that such breach materially and adversely affects the interests
of the Certificateholders in the related Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties; provided that
any such breach that causes the Mortgage Loan not to be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code shall be deemed to
materially and adversely affect the interests of the Certificateholders. Within
90 days of its discovery or its receipt of notice of any such breach, the
Depositor shall cure such breach in all material respects or shall either (i)
repurchase the Mortgage Loan or any property acquired in respect thereof from
the Trustee at a price equal to the Purchase Price or (ii) if within two years
of the Closing Date, substitute for such Mortgage Loan in the manner described
in Section 2.02; provided that if the breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code,
any such repurchase or substitution must occur within 90 days from the date the
breach was discovered. The Purchase Price of any repurchase described in this
paragraph and the Substitution Adjustment Amount, if any shall be remitted to
the Master Servicer for deposit to the Master Servicer Custodial Account. It is
understood and agreed that, except with respect to the second preceding
sentence, the obligation of the Depositor to repurchase or substitute for any
Mortgage Loan or Mortgaged Property as to which such a breach has occurred and
is continuing shall constitute the sole remedy respecting such breach available
to Certificateholders, or to the Trustee on behalf of Certificateholders, and
such obligation shall survive until termination of the Trust hereunder.
Section 2.05 Designation of Interests in the REMICs. The Depositor hereby
designates the Classes of Senior Certificates (other than the Class 1-A-R
Certificate) and the Classes of Subordinate Certificates as "regular interests"
and the Class UR Interest as the sole class of "residual interest" in the
Upper-Tier REMIC for the purposes of Code Sections 860G(a)(1) and 860G(a)(2),
respectively. The Depositor hereby further designates the Uncertificated
Lower-Tier Interests as classes of "regular interests" and the Class LR Interest
as the sole class of "residual interest" in the Lower-Tier REMIC for the
purposes of Code Sections 860G(a)(1) and 860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is hereby
designated as the "start-up day" of each of the Upper-Tier REMIC and Lower-Tier
REMIC within the meaning of Section 860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the "latest
possible maturity date" of the regular interests in the Upper-Tier REMIC and the
Lower-Tier REMIC is October 25, 2035.
Section 2.08 Execution and Delivery of Certificates. The Securities
Administrator (i) acknowledges the issuance of and hereby declares that it holds
the Uncertificated Lower-Tier Interests on behalf of the Upper-Tier REMIC and
the Certificateholders and (ii) has executed and delivered to or upon the order
of the Depositor, in exchange for the Mortgage Loans and Uncertificated
Lower-Tier Interests, together with all other assets included in the definition
of "Trust Estate," receipt of which, together with the Uncertificated Lower-Tier
Interests, is hereby acknowledged, the Certificates in authorized denominations
which evidence ownership of the entire Trust Estate.
ARTICLE III
ADMINISTRATION AND 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.
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 and the Trustee thereof and the Master Servicer shall issue such
notice or take such other action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trustee and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as successor Servicer of the related Mortgage Loans
under the applicable Servicing Agreement (except, in the case of the termination
of Xxxxx Fargo Bank as a Servicer under the Xxxxx Fargo Servicing Agreement, the
Trustee shall, subject to the preceding paragraph, terminate the rights and
obligations of Xxxxx Fargo Bank thereunder and either act as successor Servicer
of the related Mortgage Loans under the Xxxxx Fargo Servicing Agreement or
appoint a successor Servicer of the related Mortgage Loans under the Xxxxx Fargo
Servicing Agreement) or cause the Trustee to enter in to a new Servicing
Agreement with a successor Servicer selected by the 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 and Trustee, as applicable, shall pay the costs of such enforcement at
its own expense, and shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Mortgage 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.
(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 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 Bank 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.
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 extent required
under the related Servicing Agreement) to keep in force and effect (to the
extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer
(to the extent required under the related Servicing Agreement) to present, on
behalf of the Trustee and the Certificateholders, claims to the insurer under
any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Sections 3.08 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. 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.
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
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. 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.
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. The Master Servicer is hereby
authorized to make withdrawals from and deposits to the related Buy-Down Account
for purposes required or permitted by this Agreement. 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.
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 Reserve Funds. (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 four sub-accounts and
into which the Master Servicer will deposit on or prior to 11:00 a.m. New York
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 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 Mortgage Loans subsequent to the Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans on or
before the Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than Insurance Proceeds to be (1) applied to the restoration or repair of
the Mortgaged Property, (2) released to the Mortgagor in accordance with
Customary Servicing Procedures or (3) required to be deposited to an
Escrow Account pursuant to Section 3.08 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 3.21) and any Compensating Interest
paid by the applicable Servicer pursuant to the related Servicing
Agreement;
(vii) all Purchase Prices, all Substitution Adjustment Amounts and
all Reimbursement Amounts to the extent received by the Servicer;
(viii) any Recoveries;
(ix) any 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 in 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.
(h) The Securities Administrator shall designate the Upper-Tier
Certificate Sub-Account as a sub-account of the Certificate Account. On each
Distribution Date (other than the Final Distribution Date, if such Final
Distribution Date is in connection with a purchase of the assets of the Trust
Estate by the Master Servicer), the Securities Administrator shall from funds
available on deposit in the Certificate Account, be deemed to deposit into the
Upper-Tier Certificate Sub-Account, the Lower-Tier Distribution Amount.
(i) (i) The Securities Administrator shall establish and maintain
the Class 1-A-2 Reserve Fund and the Class 3-A-7 Reserve Fund, held in
trust for the benefit of the Holders of the Class 1-A-2 and Class 3-A-7
Certificates, respectively, and Banc of America Securities LLC. The
Securities Administrator shall deposit in the applicable Reserve Fund on
the date received by it, any Yield Maintenance Agreement Payment received
from the Counterparty for the related Distribution Date. Funds on deposit
in the Reserve Funds shall remain uninvested. On each Distribution Date,
the Securities Administrator shall withdraw from the applicable Reserve
Fund any Yield Maintenance Agreement Payment received in respect of such
Distribution Date and any Excess Funds in the Reserve Funds and shall
distribute such amounts to the Class 1-A-2 and Class 3-A-7 Certificates,
as the case may be, in an amount up to the sum of the applicable Yield
Maintenance Amount for such Distribution Date and any applicable Yield
Maintenance Amount Shortfalls for prior Distribution Dates. Any amounts
remaining in the Class 1-A-2 Reserve Fund and the Class 3-A-7 Reserve Fund
on the date on which the Class Certificate Balance of the Class 1-A-2
Certificates or Class 3-A-7 Certificates is reduced to zero (after payment
of the Yield Maintenance Amounts for such date and the amount of any Yield
Maintenance Amount Shortfalls from previous Distribution Dates not yet
paid) shall be distributed by the Securities Administrator to Banc of
America Securities LLC.
(ii) The Securities Administrator shall account for the Reserve
Funds and the Yield Maintenance Agreements and the rights with respect
thereto as assets of the Grantor Trust and not as assets of either REMIC
created pursuant to this Agreement. The beneficial owner of the Yield
Maintenance Agreements and the Reserve Funds is Banc of America Securities
LLC.
(iii) Any amounts in the applicable Reserve Fund paid by the
Securities Administrator pursuant to this Section 3.09(i) to the Class
1-A-2 or Class 3-A-7 Certificates shall be accounted for by the Securities
Administrator as amounts paid to the Class 1-A-2 or Class 3-A-7
Certificates, respectively, from the Grantor Trust. In addition, the
Securities Administrator shall account for the rights of the Class 1-A-2
and Class 3-A-7 Certificates to receive amounts from the applicable
Reserve Fund as rights in limited recourse interest rate cap contracts
written by Banc of America Securities LLC in favor of the Class 1-A-2 and
Class 3-A-7 Certificates.
(iv) For federal tax return and information reporting purposes, the
right of the Holders of the Class 1-A-2 and Class 3-A-7 Certificates to
receive payments under the applicable Yield Maintenance Agreement shall be
assigned a value of zero as of the Closing Date.
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 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
Trustee) for unreimbursed Advances made pursuant to the related Servicing
Agreement (or in the case of itself or the Trustee, pursuant to Section
3.21), such right of reimbursement pursuant to this clause (iii) being
limited first to amounts received on the Mortgage Loans serviced by such
Servicer in the related Loan Group in respect of which any such Advance
was made and then limited to amounts received on all the Mortgage Loans
serviced by such Servicer (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 Upper-Tier Certificate Sub-Account shall be used
to make payments on the Regular Certificates, the Components and the Class 1-A-R
Certificate as provided in Sections 5.01 and 5.02. The Certificate Account shall
be cleared and terminated upon termination of this Agreement pursuant to Section
10.01.
Section 3.12 Maintenance of Hazard Insurance and Other Insurance. For each
Mortgage Loan, the Master Servicer shall enforce any obligation of the Servicers
under the related Servicing Agreements to maintain or cause to be maintained
fire, flood and hazard insurance with extended coverage customary in the area
where the Mortgaged Property is located in accordance with the related Servicing
Agreements. It is understood and agreed that such insurance provided for in this
Section 3.12 shall be with insurers meeting the eligibility requirements set
forth in the applicable Servicing Agreement and that no earthquake or other
additional insurance is to be required of any Mortgagor or to be maintained on
property acquired in respect of a defaulted loan, other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance.
Pursuant to Sections 3.08 and 3.09, any amounts collected by the
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 Trustee and
the Certificateholders all claims under the Insurance Policies and take such
actions (including the negotiation, settlement, compromise or enforcement of the
insured's claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to a Servicer and
remitted to the Master Servicer) in respect of such policies, bonds or contracts
shall be promptly deposited in the 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.
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.
(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 Master Servicer agrees that it will not
withhold with respect to payments of interest or original issue discount in the
case of a Certificateholder that has furnished or caused to be furnished an
effective Form W-8 or an acceptable substitute form or a successor form and who
is not a "10 percent shareholder" within the meaning of Code Section
871(h)(3)(B) or a "controlled foreign corporation" described in Code Section
881(c)(3)(C) with respect to the Trust or the Depositor. In the event the
Securities Administrator withholds any amount from interest or original issue
discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholder.
Section 3.16 Trustee to Cooperate; Release of Mortgage Files. Upon the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer or
the related Servicer of a notification that payment in full will be escrowed in
a manner customary for such purposes, the Master Servicer or the related
Servicer will immediately notify the Trustee (or, at the direction of the
Trustee, the related 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 the related 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 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 the related
Custodian, as applicable, shall, upon delivery to the Trustee (or, at the
direction of the Trustee, the Custodian) of a Request for Release signed by a
Master Servicing Officer or a Servicing Officer, release the Mortgage File
within seven (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 the Custodian, as applicable, when the need therefor no longer
exists, unless the Mortgage Loan is liquidated and the proceeds thereof are
deposited in the related Servicer Custodial Account, in which case such Servicer
shall deliver to the Trustee or the Custodian, as applicable, a Request for
Release, signed by a Servicing Officer.
If the Master Servicer or any related Servicer at any time seeks to
initiate a foreclosure proceeding in respect of any Mortgaged Property as
authorized by this Agreement or the Servicing Agreement, the Master Servicer or
any related Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
Section 3.17 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee Notwithstanding any other provisions of this
Agreement, the Master Servicer shall cause 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 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, shall be held by the Master Servicer or the related Servicer
for and on behalf of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement
and the related Servicing Agreement. The Master Servicer also agrees that it
shall not, 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 a fee in an amount
agreed upon between the Master Servicer and the Securities Administrator,
payable by the Securities Administrator out of its own funds and not out of any
funds of the Trust Estate. The Master Servicer shall also be entitled to
additional 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 Annual Statement as to Compliance. The Master Servicer shall
deliver to the Securities Administrator (and the Securities Administrator will
forward to the Trustee and each Rating Agency), no later than March 15 following
the end of each calendar year commencing with March 2006, an Officer's
Certificate, signed by two officers of the Master Servicer, stating, as to the
signers thereof, that (a) a review of the activities of the Master Servicer
during the preceding calendar year and of the performance of the Master Servicer
under this Agreement or similar agreements has been made under such officer's
supervision, and (b) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
In addition, the Master Servicer shall enforce each Servicer's
obligation under the related Servicing Agreement to provide a similar statement
to the Securities Administrator relating to compliance with the related
Servicing Agreement.
Section 3.20 Annual Independent Public Accountants' Servicing Statement;
Financial Statements The Master Servicer shall enforce each Servicer's
obligation under the related Servicing Agreement to provide a report to the
Securities Administrator, as required to be provided each year pursuant to each
Servicing Agreement, prepared by a firm of independent public accountants (who
may also render other services to such Servicer or any affiliate thereof) which
is a member of the American Institute of Certified Public Accountants to the
effect that such firm has, with respect to such Servicer's overall servicing
operations, examined such operations in accordance with the requirements of the
Uniform Single Attestation Program for Mortgage Bankers, and stating such firm's
conclusions relating thereto.
Section 3.21 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 on
each applicable Advance Date 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; provided that if the Servicer that fails to make such
Periodic Advance is Xxxxx Fargo Bank, the Trustee shall have such obligation to
make such Periodic Advance set forth in this paragraph.
Section 3.22 Reports to the Securities and Exchange Commission. (a) The
Securities Administrator and the Master Servicer shall reasonably cooperate with
the Depositor in connection with the Trust's satisfying its reporting
requirements under the Exchange Act. Without limiting the generality of the
foregoing, the Securities Administrator shall prepare on behalf of the Trust any
monthly Current Reports on Form 8-K (each, a "Monthly Form 8-K") and Annual
Reports on Form 10-K (each, a "Form 10-K") customary for similar securities as
required by the Exchange Act and the rules and regulations of the Securities and
Exchange Commission thereunder, and the Securities Administrator shall sign and
file (via the Securities and Exchange Commission's Electronic Data Gathering and
Retrieval System) such Forms (other than any Annual Report on Form 10-K, which
shall be signed by the Master Servicer) on behalf of the Trust. Notwithstanding
the previous sentence, the Depositor shall file the Monthly Form 8-K in
connection with the filing of this Agreement.
(b) Each Monthly Form 8-K shall be filed by the Securities
Administrator within 15 days after each Distribution Date, including a copy of
the monthly statement to Certificateholders delivered pursuant to Section
5.04(b) (each, a "Distribution Date Statement") for such Distribution Date as an
exhibit thereto. On or prior to March 30th of each year (or such earlier date as
may be required by the Exchange Act and the rules and regulations of the
Securities and Exchange Commission), commencing in the calendar year following
the date of this Agreement, the Securities Administrator shall file a Form 10-K,
in substance as required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include as exhibits the
Master Servicer's and each Servicer's annual statement of compliance described
under Section 3.19 and the accountant's reports referenced under Section 3.20,
in each case, to the extent they have been timely delivered to the Securities
Administrator. If they are not so timely delivered, the Securities Administrator
shall file an amended Form 10-K including such documents as exhibits reasonably
promptly after they are delivered to the Securities Administrator. The
Securities Administrator shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to the
Securities Administrator's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or bad faith. The Form
10-K shall also include a certification in the form attached hereto as Exhibit M
(the "Certification"), which shall be signed by a senior officer of the Master
Servicer in charge of the master servicing functions. The Master Servicer shall
deliver the Certification to the Securities Administrator three (3) Business
Days prior to the latest date on which the Form 10-K may be timely filed. The
Securities Administrator, the Depositor and the Master Servicer shall reasonably
cooperate to enable the Securities and Exchange Commission requirements with
respect to the Trust to be met in the event that the Securities and Exchange
Commission issues additional interpretive guidelines or promulgates rules or
regulations, or in the event of any other change of law that would require
reporting arrangements or the allocation of responsibilities with respect
thereto, as described in this Section 3.22, to be conducted or allocated in a
different manner.
(c) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Securities Administrator shall sign and deliver to the
Master Servicer a certification (in the form attached hereto as Exhibit N) for
the benefit of the Master Servicer and its officers, directors and affiliates
(provided, however, that the Securities Administrator shall not undertake an
analysis of any accountants' report attached as an exhibit to the Form 10-K). In
addition, the Securities Administrator shall indemnify and hold harmless the
Master Servicer, each person, if any, who "controls" the Master Servicer within
the meaning of the 1933 Act, as amended and their respective officers,
directors, agents and affiliates (collectively, the "Master Servicer Indemnified
Parties") from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other costs
and expenses arising out of or based upon any inaccuracy in the certification
provided by the Securities Administrator pursuant to this Section 3.22(c), any
breach by the Securities Administrator or any of its officers, directors, agents
or affiliates of its obligations under this Section 3.22(c) or any material
misstatements or omission contained in the certification delivered pursuant to
this Section 3.22(c) or the Securities Administrator's negligence, bad faith or
willful misconduct in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Master Servicer
Indemnified Parties, then the Securities Administrator agrees that it shall
contribute to the amount paid or payable by such Master Servicer Indemnified
Parties as a result of the losses, claims, damages or liabilities of such Master
Servicer Indemnified Parties in such proportion as is appropriate to reflect the
relative fault of such Master Servicer Indemnified Parties on the one hand and
the Securities Administrator on the other in connection with a breach of the
Securities Administrator's obligations under this Section 3.22(c), any material
misstatement or omission contained in the certification delivered pursuant to
this Section 3.22(c) or the Securities Administrator's negligence, bad faith or
willful misconduct in connection therewith. The Master Servicer hereby
acknowledges and agrees that the Depositor and the Securities Administrator are
relying on the Master Servicer's performance of its obligations under Sections
3.19 and 3.20 in order to perform their respective obligations under this
Section 3.22.
(d) Prior to the latest date on which the Form 10-K may be timely
filed each year, the Master Servicer shall enforce the obligation of each
Servicer to provide the certification required pursuant to each of the Servicing
Agreements.
(e) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
The obligations set forth in paragraphs (a) through (e) of this
Section shall only apply with respect to periods for which the Securities
Administrator is obligated to file reports on Form 8-K or 10-K pursuant to
paragraph (b) of this Section. Upon request of the Depositor, the Securities
Administrator shall prepare, execute and file with the Securities and Exchange
Commission a Form 15 Suspension Notification with respect to the Trust, and
thereafter there shall be no further obligations under paragraphs (a) through
(e) of this Section commencing with the fiscal year in which the Form 15 is
filed (other than the obligations to be performed in such fiscal year that
relate back to the prior fiscal year).
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 out of the Certificate Account (to the extent funds are
available therein), to each Certificateholder of record on the related Record
Date (other than as provided in Section 10.01 respecting the final distribution)
(a) by check mailed to such Certificateholder entitled to receive a distribution
on such Distribution Date at the address appearing in the Certificate Register,
or (b) upon written request by the Holder of a Certificate (other than a
Residual Certificate), by wire transfer or by such other means of payment as
such Certificateholder and the Securities Administrator shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth below in
Section 5.02.
None of the Holders of any Class of Certificates, the Depositor, the
Master Servicer, the Securities Administrator or the Trustee shall in any way be
responsible or liable to Holders of any Class of Certificates in respect of
amounts properly previously distributed on any such Class.
Amounts distributed with respect to any Class of Certificates shall
be applied first to the distribution of interest thereon and then to principal
thereon.
Section 5.02 Priorities of Distributions. (a) On each Distribution Date,
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(f) and Section 3.11(a) 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 Loan Group, and shall apply such funds first, to distributions in
respect of the Uncertificated Lower-Tier Interests as specified in this Section
5.02(a) and to the Class 1-A-R Certificate, and then to the Certificates in the
following order of priority and to the extent of such funds, paying Group 1
solely from the Pool Distribution Amount for Loan Group 1, paying Group 2 solely
from the Pool Distribution Amount for Loan Group 2, paying Group 3 solely from
the Pool Distribution Amount for Loan Group 3 and paying the Subordinate
Certificates (including amounts used to pay Class PO Deferred Amounts) from the
combined Pool Distribution Amounts for all Loan Groups, in the following order
of priority and to the extent of such funds:
(i) to each Class of Senior Certificates (other than the Class 30-IO
Certificates) and the Class IO Component of such Group, an amount
allocable to interest equal to the Interest Distribution Amount for such
Class or Component Interest Distribution Amount for such Component and any
shortfall being allocated among such Classes or Component in proportion to
the amount of the Interest Distribution Amount or Component Interest
Distribution Amount, as the case may be, that would have been distributed
in the absence of such shortfall; provided, however, that until the
Accretion Termination Date, amounts that would have been distributed
pursuant to this clause to the Class 3-A-8 Certificates will instead be
distributed in reduction of the Class Certificate Balance of the
Certificates specified in Section 5.02(b);
(ii) concurrently, to each Class of Senior Certificates (other than
the Class 1-A-3 Certificates, Class 1-A-6 Certificates, Class 3-A-7
Certificates and Class 30-PO Certificates) and the Class PO Component of
such Group, pro rata, based on their Senior Principal Distribution Amount
and PO Principal Amount, respectively, (A) to the Senior Certificates, in
an aggregate amount up to the Senior Principal Distribution Amount for
such Group, such distribution to be allocated among such Classes in
accordance with Section 5.02(b) and (B) to the Class PO Component of such
Group in an aggregate amount up to the applicable PO Principal Amount for
such Group;
(iii) to the applicable Class PO Component of such Group, any
applicable Class PO Deferred Amount (after giving effect to the
distribution to such Class PO Component of the Class PO Recovery for the
Related Loan Group), up to the Subordinate Principal Distribution Amount
for all Loan Groups from amounts otherwise distributable, first to the
Class B-6 Certificates pursuant to clause (iv)(L) below, second to the
Class B-5 Certificates, pursuant to clause (iv)(J) below, third to the
Class B-4 Certificates, pursuant to clause (iv)(H) below, fourth to the
Class B-3 Certificates, pursuant to clause (iv)(F) below, fifth to the
Class B-2 Certificates, pursuant to clause (iv)(D) below and finally to
the Class B-1 Certificates, pursuant to clause (iv)(B) below;
(iv) to each Class of Subordinate Certificates, subject to paragraph
(d) below, in the following order of priority:
(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the Class PO Deferred Amount pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero; and
(v) to the Holder of the Class 1-A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Sub Account in respect of the
Class UR Interest and any remaining Pool Distribution Amounts in respect
of the Class LR Interest.
No Class of Certificates or Component will be entitled to any
distributions with respect to the amount payable pursuant to clause (ii) of the
definition of "Interest Distribution Amount" or "Component Interest Distribution
Amount" after its Class Certificate Balance or Notional Amount, as the case may
be, has been reduced to zero.
For any Group and on any Distribution Date, amounts distributed in
respect of the Class PO Deferred Amounts (including the distribution of the
Class PO Recoveries) will not reduce the Component Balance of the applicable
Class PO Component.
All distributions in respect of the Interest Distribution Amount for
a Class or the Component Interest Distribution Amount for a Component will be
applied first with respect to the amount payable pursuant to clause (i) of the
definition of "Interest Distribution Amount" or "Component Interest Distribution
Amount" as applicable, and second with respect to the amount payable pursuant to
clause (ii) of such definitions.
On each Distribution Date, the Securities Administrator shall
distribute any Reimbursement Amount sequentially to each Class of Certificates
then outstanding which bore the loss to which such Reimbursement Amount relates,
beginning with the most senior of such Classes of Certificates, up to, with
respect to each Class, the amount of loss borne by such Class. Any Reimbursement
Amount remaining after the application described in the preceding sentence shall
be included in the Pool Distribution Amount for the applicable Loan Group.
With respect to each Distribution Date, each Uncertificated
Lower-Tier Interest (other than the Class LT1AIO, Class LT2AIO and Class LT3AIO
Interests) shall receive distributions in respect of principal in an amount
equal to the amount of principal distributed to its respective Corresponding
Upper-Tier Class, Classes or Component as provided herein. On each Distribution
Date, each Uncertificated Lower-Tier Interest (other than the Class LT1APO,
Class LT2APO and Class LT3APO Interests) shall receive distributions in respect
of interest at its Lower-Tier REMIC Rate as applied to its principal or notional
balance in an amount that will be equal to the Interest Distribution Amounts or
Component Interest Distribution Amount and Unpaid Interest Shortfalls or
Component Unpaid Interest Shortfall, as the case may be, in respect of its
Corresponding Upper-Tier Class, Classes or Component, in each case to the extent
actually distributed thereon. With respect to any Distribution Date, the
principal portion of Realized Losses and recoveries attributable to previously
allocated Realized Losses allocated pursuant to this Section 5.02(a) will be
allocated to each Uncertificated Lower-Tier Interest in an amount equal to the
amount allocated to its respective Corresponding Upper-Tier Class, Classes or
Component as provided above, and the interest portion of Realized Losses
allocated pursuant to this Section 5.02(a) will be allocated to each
Uncertificated Lower-Tier Interest in the same relative proportions as interest
is allocated to its respective Corresponding Upper-Tier Class, Classes or
Component as provided above.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest shall equal the Class Certificate Balance or Component
Balance of the respective Corresponding Upper-Tier Class, Classes or Component.
The initial principal balance of each Uncertificated Lower-Tier Interest equals
the Initial Class Certificate Balance or Initial Component Balance of the
respective Corresponding Upper-Tier Class, Classes or Component. As of any date,
the notional balance of the Class LT1AIO Interest, the Class LT2AIO Interest and
the Class LT3AIO Interest shall equal the amount specified in footnote (2), (6)
or (10), respectively, of the table in the Preliminary Statement relating to the
Lower-Tier REMIC. Any Recoveries shall be allocated in the same manner as
Recoveries are allocated to the respective Corresponding Upper-Tier Class,
Classes or Components.
It is the intention of this section that as of any date, (i) the
principal balance of the Class LT1APO Interest, the LT2APO Interest and the
LT3APO Interest will be equal to the Component Balance of the Class 1-PO
Component, Class 2-PO Component and Class 3-PO Component, respectively, (ii) the
interest distributed in respect of the LT1AIO Interest, the LT2AIO Interest and
the LT3AIO Interest will equal the interest distributed in respect of the Class
1-IO Component, the Class 2-IO Component and the Class 3-IO Component,
respectively and (iii) the interest and principal distributed on each of the
other Uncertificated Lower-Tier Interests will be equal to the interest and
principal distributed on each related Corresponding Class, Classes or
Components. Any inconsistencies in respect of distributions to the
Uncertificated Lower-Tier Interests and from the Lower-Tier Interests to the
Regular Certificates, the Components and the Residual Certificate shall be
resolved in a manner that complies with the intentions of this paragraph.
(b) (i) On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 1 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed,
concurrently, as follows:
(A) 27.2986315567% to the Class 1-A-11 Certificates, until their
Class Certificate Balance has been reduced to zero; and
(B) 72.7013684433%, sequentially, as follows:
(i) to the Class 1-A-R Certificate, until its Class Certificate
Balance has been reduced to zero;
(ii)concurrently, to the Class 1-A-1 and Class 1-A-10
Certificates, pro rata, up to the Priority Amount for such Distribution
Date;
(iii) concurrently, until the Class Certificate Balance of the
Class 1-A-5 Certificates has been reduced to zero, as follows:
(a) 23.5325125193% to the Class 1-A-7 Certificates, until
their Class Certificate Balance has been reduced to zero;
(b) 1.163447419% to the Class 1-A-5 Certificates, until
their Class Certificate Balance has been reduced to zero; and
(c) 75.3040400617%, sequentially, as follows:
(1) $1,000 to the Class 1-A-2 Certificates, until their
Class Certificate Balance has been reduced to zero;
(2) $487,500 to the Class 1-A-8 Certificates, until
their Class Certificate Balance has been reduced to zero; and
(3) sequentially, to the Class 1-A-2 and Class 1-A-8
Certificates, in that order, until their Class Certificate
Balances have been reduced to zero;
(iv) concurrently, until the Class Certificate Balance of the Class
1-A-7 Certificates has been reduced to zero, as follows:
(a) 23.5325125193% to the Class 1-A-7 Certificates, until
their Class Certificate Balance has been reduced to zero;
(b) 1.163447419% to the Class 1-A-4 Certificates, until
their Class Certificate Balance has been reduced to zero; and
(c) 75.3040400617%, sequentially, as follows:
(1) $1,000 to the Class 1-A-2 Certificates, until their
Class Certificate Balance has been reduced to zero;
(2) $487,500 to the Class 1-A-8 Certificates, until
their Class Certificate Balance has been reduced to zero; and
(3) sequentially, to the Class 1-A-2 and Class 1-A-8
Certificates, in that order, until their Class Certificate
Balances have been reduced to zero;
(v) concurrently, until the Class Certificate Balance of the Class
1-A-4 Certificates has been reduced to zero, as follows:
(a) 35.2842282232% to the Class 1-A-9 Certificates, until
their Class Certificate Balance has been reduced to zero; and
(b) 64.7157717768% to the Class 1-A-4 Certificates, until
their Class Certificate Balance has been reduced to zero;
(vi)to the Class 1-A-9 Certificates, until their Class
Certificate Balance has been reduced to zero; and
(vii) concurrently, to the Class 1-A-1 and Class 1-A-10
Certificates, pro rata, until their Class Certificate Balances have
been reduced to zero.
(ii) On each Distribution Date prior to the Senior Credit Support Depletion
Date, the amount distributable to the Group 2 Senior Certificates pursuant
to Section 5.02(a)(ii) for such Distribution Date, will be distributed,
concurrently, to the Class 2-A-1 and Class 2-A-2 Certificates, pro rata,
until their Class Certificate Balances have been reduced to zero.
(iii) With respect to the Group 3 Senior Certificates:
I. On each Distribution Date occurring prior to the Accretion
Termination Date, the Class 3-A-8 Accrual Distribution Amount will be allocated
sequentially, to the Class 3-A-1 and Class 3-A-8 Certificates, in that order,
until their Class Certificate Balances have been reduced to zero.
II. On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 3 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed,
sequentially, as follows:
first, up to the PAC Principal Amount for such Distribution,
sequentially, as follows:
(i) to the Class 3-A-2 Certificates, until their Class Certificate
Balance is less than or equal to $14,993,000;
(ii) concurrently, as follows:
(a) 62.5020843755% to the Class 3-A-2 Certificates, until
their Class Certificate Balance has been reduced to zero; and
(b) 37.0000000000% to the Class 3-A-3 Certificates, until
their Class Certificate Balance has been reduced to zero; and
(iii) sequentially, to the Class 3-A-4 and Class 3-A-5 Certificates,
in that order, until their Class Certificate Balances have been reduced to
zero;
second, up to the Scheduled Principal Amount for such Distribution
Date, to the Class 3-A-6 Certificates, until their Class Certificate Balance has
been reduced to zero;
third, sequentially, to the Class 3-A-1, Class 3-A-8 and Class 3-A-6
Certificates, in that order, until their Class Certificate Balances have been
reduced to zero;
fourth, to the Class 3-A-2 Certificates, until their Class Certificate
Balance is less than or equal to $14,993,000;
fifth, concurrently, as follows:
(i) 62.5020843755% to the Class 3-A-2 Certificates, until their
Class Certificate Balance has been reduced to zero; and
(ii) 37.0000000000% to the Class 3-A-3 Certificates, until their
Class Certificate Balance has been reduced to zero; and
sixth, sequentially, to the Class 3-A-4 and Class 3-A-5 Certificates,
in that order, until their Class Certificate Balances have been reduced to zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth above, the
portion of the Pool Distribution Amount with respect to a Loan Group available
to be distributed as principal of the Senior Certificates of the Related Group
shall be distributed, concurrently, as principal of such Classes of Senior
Certificates, pro rata, on the basis of their respective Class Certificate
Balances immediately prior to that Distribution Date, until the Class
Certificate Balances thereof are reduced to zero.
The Class 1-A-3, Class 1-A-6, Class 3-A-7 and Class 30-IO
Certificates are Interest Only Certificates and are not entitled to
distributions in respect of principal.
(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 aggregate Class Certificate Balance of the Senior Certificates
of a Group has been reduced to zero, amounts otherwise distributable as
principal payments on the Subordinate Certificates will be paid as
principal to the Classes of Senior Certificates of the other Groups in
accordance with the priorities set forth for the applicable Groups in (b)
(i), (ii) or (iii) above, provided that on such Distribution Date (a) the
Aggregate Subordinate Percentage for such Distribution Date is less than
twice the initial Aggregate Subordinate Percentage or (b) the outstanding
principal balance of all Mortgage Loans (including, for this purpose, any
Mortgage Loans in foreclosure, any REO Property and any Mortgage Loan for
which the Mortgagor has filed for bankruptcy after the Closing Date)
delinquent 60 days or more (averaged over the preceding six month period),
as a percentage of the aggregate Class Certificate Balance of the
Subordinate Certificates, is equal to or greater than 50%. If the Senior
Certificates of two or more Groups remain outstanding, the distributions
described above will be made to the Senior Certificates of such Groups,
pro rata, in proportion to the aggregate Class Certificate Balance of the
Senior Certificates of each such Group. In addition, after giving effect
to the previous sentence, if on any Distribution Date the aggregate Class
Certificate Balance of the Senior Certificates of a Group is greater than
the Adjusted Pool Amount (Non-PO Portion) of related Loan Group (any such
Group, the "Undercollateralized Group" and any such excess, the
"Undercollateralized Amount"), all amounts otherwise distributable as
principal on the Subordinate Certificates pursuant to 5.02(a)(iv)(L), (J),
(H), (F), (D) and (B), in that order, will be paid as principal to the
Senior Certificates of the Undercollateralized Group in accordance with
the priorities set forth for the applicable Group above under (b)(i), (ii)
or (iii) until the aggregate Class Certificate Balance of the Senior
Certificates of the Undercollateralized Group equals the Adjusted Pool
Amount (Non-PO Portion) of the Related Loan Group. If two Groups are
Undercollateralized Groups, the distributions described above will be
made, pro rata, in proportion to the amount by which the aggregate Class
Certificate Balance of the Senior Certificates of each such Group exceeds
the Pool Principal Balance (Non-PO Portion) of the related Loan Group.
Also, the amount of any Class Unpaid Interest Shortfalls and Component
Unpaid Interest Shortfalls with respect to the Undercollateralized Group
(including any Class Unpaid Interest Shortfalls or Component Unpaid
Interest Shortfalls for such Distribution Date) will be paid to the
Undercollateralized Group pursuant to Section 5.02(a)(i) prior to the
payment of any Undercollateralized Amount from amounts otherwise
distributable as principal on the Subordinate Certificates pursuant to
Section 5.02(a)(iv)(L), (J), (H), (F), (D) and (B), in that order: such
amount will be paid to the Senior Certificates and Components (other than
the Class PO Component) of such Undercollateralized Group in accordance
with the priorities set forth in Section 5.02(a)(i) up to their Interest
Distribution Amounts or Component Interest Distribution Amounts for such
Distribution Date.
The Class PO Deferred Amounts for the Class PO Components will be
paid from amounts otherwise distributable as principal on the Subordinate
Certificates before any payments are made pursuant to the preceding paragraph.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Certificates (other than the Class 30-IO Certificates) and Accrued
Component Interest for each Class IO Component for such Distribution Date shall
be reduced by such Class' or Component's pro rata share, based on such Class'
Interest Distribution Amount or Component's Component 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, (B) on and after the Senior Credit Support Depletion Date,
any other Realized Loss on the Mortgage Loans allocable to interest and (C)
Relief Act Reductions incurred on any Mortgage Loans during the calendar month
preceding the month of such Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iv), if with respect to any Class of Subordinate Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Subordinate
Certificates that have a higher numerical Class designation than such Class,
divided by (ii) the aggregate Pool Stated Principal Balance (Non-PO Portion) of
the 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 will be made to any Classes of Subordinate
Certificates junior to such Class (the "Restricted Classes"), and the Class
Certificate Balances of the Restricted Classes of Subordinate Certificates will
not be used in determining the Pro Rata Share for the Subordinate Certificates
that are not Restricted Classes. If the aggregate Class Certificate Balances of
the Subordinate Certificates that are not Restricted Classes are reduced to
zero, notwithstanding the previous sentence, any funds remaining will be
distributed sequentially to the Subordinate Certificates that are Restricted
Classes in order of their respective numerical Class designations (beginning
with the Class of Subordinate Certificates that is a Restricted Class then
outstanding with the lowest numerical Class designation).
(e) Any amounts distributed to the Class 1-A-2 and Class 3-A-7
Certificates from the applicable Reserve Fund shall be deemed to be a
distribution to such Certificates from the Grantor Trust as payments on a
notional principal contract in the nature of a cap contract written by Banc of
America Securities LLC.
Section 5.03 Allocation of Losses. (a) No later than five (5) Business
Days prior to the related Distribution Date, the Master Servicer shall inform
the Securities Administrator in writing with respect to each Mortgage Loan: (1)
whether any Realized Loss is a Deficient Valuation or a Debt Service Reduction,
(2) of the amount of such loss or Deficient Valuation, or of the terms of such
Debt Service Reduction and (3) of the total amount of Realized Losses on the
Mortgage Loans in each Loan Group. Based on such information, the Securities
Administrator shall determine the total amount of Realized Losses on the
Mortgage Loans in each Loan Group with respect to the related Distribution Date.
Realized Losses shall be allocated to the Certificates by a reduction in the
Class Certificate Balances of the designated Classes pursuant to the operation
of Section 5.03(b).
(b) The Component Balance of the Class PO Component of a Group shall
be reduced on each Distribution Date by the amount, if any, by which the
Component Balance of such Class PO Component (after giving effect to the amounts
to be distributed as a distribution of principal and the allocation of Realized
Losses on such Distribution Date) exceeds the Adjusted Pool Amount (PO Portion)
for such Loan Group for such Distribution Date.
The Class Certificate Balance of the Class of Subordinate
Certificates then outstanding with the highest numerical Class designation shall
be reduced or increased on each Distribution Date by the amount, if any,
necessary such that the aggregate of the Class Certificate Balances of all
outstanding Classes of Certificates (after giving effect to the amount to be
distributed as a distribution of principal and the allocation of the Class PO
Deferred Amounts on such Distribution Date) equals the sum of the Adjusted Pool
Amounts (Non-PO Portion) for such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Certificates of a Group in the aggregate
shall be reduced or increased on each Distribution Date by the amount, if any,
necessary such that the aggregate of the Class Certificate Balances of all
outstanding Classes of Senior Certificates of such Group (after giving effect to
the amount to be distributed as a distribution of principal on such Distribution
Date) equals the Adjusted Pool Amount (Non-PO Portion) for the Related Loan
Group for such Distribution Date.
Any such reduction or increase shall be allocated among the Senior
Certificates of such Group based on the Class Certificate Balances immediately
prior to such Distribution Date until the Class Certificate Balances thereof
have been reduced to zero.
(c) Any reduction or increase in the Class Certificate Balance of a
Class of Certificates pursuant to Section 5.03(b) above shall be allocated among
the Certificates of such Class in proportion to their respective Percentage
Interests.
(d) The calculation of the amount to be distributed as principal to
any Class of Subordinate Certificates with respect to a Distribution Date (the
"Calculated Principal Distribution") shall be made prior to the allocation of
any Realized Losses for such Distribution Date; provided, however, the actual
payment of principal to the Classes of Certificates shall be made subsequent to
the allocation of Realized Losses for such Distribution Date. In the event that
after the allocation of Realized Losses for a Distribution Date, the Calculated
Principal Distribution for a Class of Subordinate Certificates is greater than
the Class Certificate Balance of such Class, the excess shall be distributed
first, sequentially, to the Classes of Subordinate Certificates then outstanding
(beginning with the Class of Subordinate Certificates then outstanding with the
lowest numerical designation) until the respective Class Certificate Balance of
each such Class is reduced to zero and then to the Senior Certificates of the
related Group, pro rata, in accordance with the priorities set forth in Section
5.02.
(e) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 1-A-10 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 1-A-10 Certificates will
be reduced by the Class 1-A-10 Loss Allocation Amount and, notwithstanding
Section 5.03(b), the Class Certificate Balance of the Class 1-A-1 Certificates
will not be reduced by the Class 1-A-10 Loss Allocation Amount.
Any increase in the Class Certificate Balance allocated to the Class
1-A-1 Certificates pursuant to Section 5.03(b) will instead increase the Class
Certificate Balance of the Class 1-A-10 Certificates.
After the Senior Credit Support Depletion Date, on any Distribution
Date on which the Class 2-A-2 Loss Allocation Amount is greater than zero, the
Class Certificate Balance of the Class 2-A-2 Certificates will be reduced by the
Class 2-A-2 Loss Allocation Amount and, notwithstanding Section 5.03(b), the
Class Certificate Balance of the Class 2-A-1 Certificates will not be reduced by
the Class 2-A-2 Loss Allocation Amount.
Any increase in the Class Certificate Balance allocated to the Class
2-A-1 Certificates pursuant to Section 5.03(b) will instead increase the Class
Certificate Balance of the Class 2-A-2 Certificates.
(f) Notwithstanding any other provision of this Section 5.03, no
Class Certificate Balance of a Class will be increased on any Distribution Date
such that the Class Certificate Balance of a Class exceeds its Initial Class
Certificate Balance (plus, in the case of the Class 3-A-8 Certificates, any
Class 3-A-8 Accrual Distribution Amounts previously added to the Class
Certificate Balance of the Class 3-A-8 Certificates) less all distributions of
principal previously distributed in respect of such Class on prior Distribution
Dates (excluding in the case of any Class of Subordinate Certificates any
principal otherwise payable to such Class of Subordinate Certificates but used
to pay any Class PO Deferred Amount).
(g) With respect to any Distribution Date, Realized Losses allocated
pursuant to this Section 5.03 will be allocated to each Uncertificated
Lower-Tier Interest as described in Section 5.02(a).
Section 5.04 Statements to Certificateholders. (a) Prior to the
Distribution Date in each month, based upon the information provided to the
Securities Administrator on the Master Servicer's Certificate delivered to the
Securities Administrator pursuant to Section 4.01, the Securities Administrator
shall determine the following information with respect to such Distribution
Date:
(i) for each Loan Group, the amount allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(ii) for each Loan Group, the amount allocable to interest, any
Class Unpaid Interest Shortfall and Component Unpaid Interest Shortfall
included in such distribution and any remaining Class Unpaid Interest
Shortfall and Component Unpaid Interest Shortfall after giving effect to
such distribution and the Class 3-A-8 Accrual Distribution Amount;
(iii) if the distribution to the Holders of such Class of
Certificates is less than the full amount that would be distributable to
such Holders if there were sufficient funds available therefor, the amount
of the shortfall and the allocation thereof as between principal and
interest;
(iv) the Class Certificate Balance of each Class of Certificates and
the Component Balance of each Component after giving effect to the
distribution of principal on such Distribution Date;
(v) for each Loan Group, the Pool Stated Principal Balance for the
following Distribution Date;
(vi) for each Loan Group, (A) the Senior Percentage, the Senior
Prepayment Percentage, the Subordinate Percentage and the Subordinate
Prepayment Percentage for such Distribution Date and (B) the Senior
Percentage, the Senior Prepayment Percentage, the Subordinate Percentage
and the Subordinate Prepayment Percentage for the following Distribution
Date;
(vii) the amount of the Servicing Fee paid to or retained by each
Servicer with respect to each Loan Group and such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates
with respect to such Distribution Date;
(ix) for each Loan Group, the amount of Periodic Advances included
in the distribution on such Distribution Date and the aggregate amount of
Periodic Advances outstanding as of the close of business on such
Distribution Date;
(x) for each Loan Group, the number and aggregate principal amounts
of Mortgage Loans (A) delinquent (exclusive of Mortgage Loans in
foreclosure or bankruptcy) (1) 1 to 30 days (2) 31 to 60 days (3) 61 to 90
days and (4) 91 or more days, (B) in foreclosure, as of the close of
business on the last day of the calendar month preceding such Distribution
Date and (C) in bankruptcy, as of the close of business on the last day of
the calendar month preceding such Distribution Date;
(xi) for each Loan Group, with respect to any Mortgage Loan that
became an REO Property during the preceding calendar month, the loan
number and Stated Principal Balance of such Mortgage Loan as of the close
of business on the Determination Date preceding such Distribution Date and
the date of acquisition thereof;
(xii) for each Loan Group, the total number and principal balance of
any REO Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution Date;
(xiii) for each Loan Group, the aggregate amount of Realized Losses
incurred during the preceding calendar month and for each Group or any
Class PO Deferred Amounts for such Distribution Date;
(xiv) the Notional Amount for each Class of Interest Only
Certificates and the notional amount for each interest only Component for
such Distribution Date;
(xv) for each Loan Group, the Reimbursement Amount;
(xvi) the Yield Maintenance Agreement Payments received from the
Counterparty and Yield Maintenance Amounts and Yield Maintenance Amount
Shortfalls paid to the Class 1-A-2 and Class 3-A-7 Certificates; and
(xvii) for each Loan Group, the amount of Recoveries, the Class PO
Recovery and the Non-PO Recovery.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Master Servicer's
Certificate, shall make available to each Holder of a Certificate, each Rating
Agency and the Master Servicer, a statement setting forth the information set
forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i) and
(ii) of Section 5.04(a), the amounts shall be expressed as a dollar amount per
Certificate with a $1,000 denomination.
On each Distribution Date, the Securities Administrator shall
prepare and furnish to each Financial Market Service, in electronic or such
other format and media mutually agreed upon by the Securities Administrator, the
Financial Market Service and the Depositor, the information contained in the
statement described in Section 5.04(a) for such Distribution Date.
The Securities Administrator will make the monthly statement to
Certificateholders (and, at its option, any additional files containing the same
information in an alternative format) available each month to Certificateholders
and other parties to this Agreement via the Securities Administrator's Internet
website. The Securities Administrator's Internet website shall initially be
located at "xxx.xxxxxxx.xxx." Assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at (000) 000-0000.
Parties that are unable to use the website are entitled to have a paper copy
mailed to them via first class mail by calling the customer service desk and
indicating such. The Securities Administrator shall have the right to change the
way the monthly statements to Certificateholders are distributed in order to
make such distribution more convenient and/or more accessible to the above
parties and the Securities Administrator shall provide timely and adequate
notification to all above parties regarding any such changes.
Within a reasonable period of time after the end of each calendar
year, the Securities Administrator shall furnish to each Person who at any time
during the calendar year was the Holder of a Certificate, if requested in
writing by such Person, a statement containing the information set forth in
clauses (i) and (ii) of Section 5.04(a), in each case aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in force.
The Securities Administrator shall deliver to the Holders of
Certificates any reports or information the Securities Administrator is required
by this Agreement or the Code, Treasury Regulations or REMIC Provisions to
deliver to the Holders of Certificates, and the Securities Administrator shall
prepare and provide to the Certificateholders (by mail, telephone, or
publication as may be permitted by applicable Treasury Regulations) such other
reasonable information as the Securities Administrator deems necessary or
appropriate or is required by the Code, Treasury Regulations, and the REMIC
Provisions including, but not limited to, (i) information to be reported to the
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 5.05 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 cause to be timely signed by the Trustee, and shall file or
cause to be filed with the Internal Revenue Service and applicable state or
local tax authorities income tax information returns for each taxable year with
respect to each REMIC 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 or as otherwise permitted by the Internal Revenue Service, and
shall furnish or cause to be furnished to the Internal Revenue Service, on Form
8811 or as otherwise required by the Code or the Treasury Regulations, the name,
title, address and telephone number of the person that Holders of the
Certificates may contact for tax information relating thereto, together with
such additional information at the time or times and in the manner required by
the Code or the Treasury Regulations. Such federal, state, or local income tax
or information returns shall be signed by the Trustee, or such other Person as
may be required to sign such returns by the Code, the Treasury Regulations or
state or local tax laws, regulations, or rules.
(c) In the first federal income tax return of each REMIC created
hereunder for its short taxable year ending December 31, 2005, 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 5.06 Tax Matters Person. The Tax Matters Person shall have the
same duties with respect to the applicable REMIC as those of a "tax matters
partner" under Subchapter C of Chapter 63 of Subtitle F of the Code. The Holder
of the Class 1-A-R Certificate is hereby designated as the Tax Matters Person
for the Upper-Tier REMIC and the Lower-Tier REMIC. By its acceptance of the
Class 1-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 Upper-Tier REMIC and the Lower-Tier REMIC.
Section 5.07 Rights of the Tax Matters Person in Respect of the Securities
Administrator. The Securities Administrator shall afford the Tax Matters Person,
upon reasonable notice during normal business hours, access to all records
maintained by the Securities Administrator in respect of its duties hereunder
and access to officers of the Securities Administrator responsible for
performing such duties. Upon request, the Securities Administrator shall furnish
the Tax Matters Person with its most recent report of condition published
pursuant to law or to the requirements of its supervisory or examining authority
publicly available. The Securities Administrator shall make available to the Tax
Matters Person such books, documents or records relating to the Securities
Administrator's services hereunder as the Tax Matters Person shall reasonably
request. The Tax Matters Person shall not have any responsibility or liability
for any action or failure to act by the Securities Administrator and is not
obligated to supervise the performance of the Securities Administrator under
this Agreement or otherwise.
Section 5.08 REMIC Related Covenants. For as long as any REMIC created
hereunder shall exist, the Trustee, the Securities Administrator, the Depositor
and the Master Servicer shall act in accordance herewith to assure continuing
treatment of each REMIC created hereunder as a REMIC and avoid the imposition of
tax on any REMIC created hereunder. In particular:
(a) Neither the Securities Administrator nor the Trustee shall
create, or permit the creation of, any "interests" in any REMIC created
hereunder within the meaning of Code Section 860D(a)(2) other than the interests
represented by the Regular Certificates, the Components, the Residual
Certificate and the Uncertificated Lower-Tier Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and
the Master Servicer shall not contribute to the Trust Estate and the Trustee
shall not accept property unless substantially all of the property held in each
REMIC constitutes either "qualified mortgages" or "permitted investments" as
defined in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property
shall be contributed, 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) The Securities Administrator, on behalf of the Trustee, shall
not 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.
(d) Neither the Securities Administrator, on behalf of the Trustee,
nor the Trustee shall sell or permit the sale of all or any portion of the
Mortgage Loans (other than in accordance with Sections 2.02 or 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 and will not disqualify any
such REMIC from treatment as a REMIC; and, provided further, that the Master
Servicer shall have demonstrated to the satisfaction of the Securities
Administrator that such action will not adversely affect the rights of the
Holders of the Certificates and the Securities Administrator and that such
action will not adversely impact the rating of the Certificates.
Section 5.09 Determination of LIBOR. On each Rate Determination Date for a
Class of LIBOR Certificates, the Securities Administrator shall determine 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 Telerate page 3750 as of 11:00 A.M. London time on such Rate
Determination Date. As used herein, "Telerate page 3750" means the display
designated as page 3750 on the Reuters Telerate Service.
If on any Rate Determination Date for a Class of LIBOR Certificates,
the Securities Administrator is unable to determine LIBOR on the basis of the
method set forth in the preceding paragraph, LIBOR for the applicable
Distribution Date will be whichever is higher of (x) LIBOR as determined on the
previous Rate Determination Date for such Class of LIBOR 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 Rate
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 Rate Determination Date to leading European
banks.
If on any Rate Determination Date for a Class of LIBOR Certificates,
the Securities Administrator is required but is unable to determine the Reserve
Interest Rate in the manner provided in the preceding paragraph, LIBOR for the
applicable Distribution Date will be LIBOR as determined on the previous Rate
Determination Date for such Class of LIBOR Certificates, or, in the case of the
first Rate Determination Date for which the Securities Administrator is required
to determine LIBOR, 3.65% with respect to the Class 1-A-2 and Class 1-A-3
Certificates, and 3.77% with respect to the Class 3-A-1 and Class 3-A-7
Certificates.
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 LIBOR Certificates in the absence of manifest error,
will be final and binding. After a Rate Determination Date, the Securities
Administrator shall provide the Pass-Through Rates of the LIBOR Certificates for
the related Distribution Date to Beneficial Owners or Holders of LIBOR
Certificates who place a telephone call to the Securities Administrator at (301)
815-6600 and make a request therefor.
Section 5.10 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 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 5.11 Grantor Trust Administration.(a) The Securities Administrator
shall treat the portions of the Trust Estate consisting of the Reserve Funds and
the Yield Maintenance Agreements and rights with respect thereto as a "grantor
trust" under the Code, and the provisions hereof shall be interpreted
consistently with this treatment. The Securities Administrator shall furnish or
cause to be furnished (i) to the Holders of the Class 1-A-2 and Class 3-A-7
Certificates and (ii) to Banc of America Securities LLC, and shall file or cause
to be filed with the Internal Revenue Service together with Form 1041 or such
other form as may be applicable, their allocable shares of income and expenses
with respect to the property held by the Grantor Trust (Yield Maintenance
Amounts and Yield Maintenance Amount Shortfalls, in the case of the Class 1-A-2
and Class 3-A-7 Certificates, and Yield Maintenance Agreement Payments, in the
case of Banc of America Securities LLC), at the time or times and in the manner
required by the Code.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Classes of Senior Certificates and the
Subordinate Certificates shall be substantially in the forms attached hereto as
Exhibits 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 1-A-7, 0-X-0, 0-X-0, 0-X-00,
0-X-00, 0-X-X, 0-X-0, 0-X-0, 3-A-1, 3-A-2, 0-X-0, 0-X-0, 0-X-0, 0-X-0, 0-X-0,
0-X-0, 30-IO, 30-PO, X-0, X-0, X-0, X-0, X-0, B-6 and C (reverse of all
Certificates) and shall, on original issue, be executed by the Securities
Administrator and shall be authenticated and delivered by the Securities
Administrator to or upon the order of the Depositor upon receipt by the Trustee
of the documents specified in Section 2.01. The Classes of Certificates shall be
available to investors in minimum denominations of initial Certificate Balance
(or initial notional amount) and integral multiples in excess thereof set forth
in the Preliminary Statement. The Senior Certificates (other than the Class
1-A-R Certificate) and the Class B-1, Class B-2 and Class B-3 Certificates shall
initially be issued in book-entry form through the Depository and delivered to
the Depository or, pursuant to the Depository's instructions on behalf of the
Depository to, and deposited with, the Certificate Custodian, and all other
Classes of Certificates shall initially be issued in definitive,
fully-registered form.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Securities Administrator by an authorized officer or signatory.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the execution and delivery of such Certificates or did not
hold such offices or positions at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless such Certificate shall have been manually authenticated by the
Securities Administrator substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 6.02 Registration of Transfer and Exchange of Certificates. (a)
The Securities Administrator shall cause to be kept at an office or agency in
the city in which the Corporate Trust Office of the Securities Administrator is
located a Certificate Register in which, subject to such reasonable regulations
as it may prescribe, the Securities Administrator shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided. The Securities Administrator shall initially serve as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute and the
Securities Administrator shall authenticate and deliver the Certificates which
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the
Book-Entry Certificates shall at all times remain registered in the name of the
Depository or its nominee and at all times: (A) registration of the Book-Entry
Certificates may not be transferred by the Securities Administrator except to
another Depository; (B) the Depository shall maintain book-entry records with
respect to the Certificate Owners and with respect to ownership and transfers of
such Book-Entry Certificates; (C) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (D) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (E) the Securities Administrator shall deal with the Depository as
the representative of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(F) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If the Depository advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository and the Securities
Administrator or the Depositor is unable to locate a qualified successor,
the Securities Administrator shall notify all Certificate Owners, through
the Depository, of the occurrence of such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates")
to 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
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates, the Securities Administrator shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No transfer of a Private Certificate shall be made unless such
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
such laws. In the event of any such transfer, (i) unless such transfer is made
in reliance on Rule 144A under the 1933 Act, the Securities Administrator or the
Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities Administrator
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached hereto as Exhibit G-1 and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached hereto either as Exhibit G-2A or as Exhibit G-2B, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such
certificate without registration thereof under the 1933 Act pursuant to the
registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(e) No transfer of an ERISA Restricted Certificate shall be made
unless the transferee delivers to the Securities Administrator either (i) a
representation letter in the form attached hereto as Exhibit H from the
transferee of such Certificate, which representation letter shall not be an
expense of the Depositor, the Trustee, the Securities Administrator or the
Master Servicer, or (ii) in the case of any ERISA Restricted Certificate
presented for registration in the name of an employee benefit plan or
arrangement, including an individual retirement account, subject to ERISA, the
Code, or any federal, state or local law ("Similar Law") which is similar to
ERISA or the Code (collectively, a "Plan"), or a trustee or custodian of any of
the foregoing, an Opinion of Counsel in form and substance satisfactory to the
Securities Administrator to the effect that the purchase or holding of such
ERISA Restricted Certificate by or on behalf of such Plan will not constitute or
result in a non-exempt prohibited transaction within the meaning of ERISA,
Section 4975 of the Code or Similar Law and will not subject the Trustee, the
Depositor, the Securities Administrator or the Master Servicer to any obligation
in addition to those undertaken in this Agreement, which Opinion of Counsel
shall not be an expense of the Securities Administrator, the Trustee or the
Master Servicer. Any transferee of an ERISA Restricted Certificate that does not
comply with either clause (i) or (ii) of the preceding sentence will be deemed
to have made one of the representations set forth in Exhibit H. For purposes of
clause (i) of the second preceding sentence, such representation shall be deemed
to have been made to the Certificate Registrar by the acceptance by a
Certificate Owner of a Book-Entry Certificate of the beneficial interest in any
such Class of ERISA-Restricted Certificates, unless the Certificate Registrar
shall have received from the transferee an alternative representation acceptable
in form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA Restricted Certificate to or
on behalf of a Plan without the delivery to the Securities Administrator of an
Opinion of Counsel satisfactory to the Securities Administrator as described
above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate Registrar
shall have any liability for transfers of Book-Entry Certificates made through
the book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA Restricted Certificate
that is in fact not permitted by this Section 6.02 or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit in the form attached hereto as Exhibit I from the proposed
transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Securities Administrator has actual knowledge that the proposed transferee
is not a Permitted Transferee, no transfer of any Ownership Interest in a
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor
and the Securities Administrator with an effective Internal Revenue
Service Form W-8ECI (or successor thereto) or (B) the transferee delivers
to both the transferor and the Securities Administrator an Opinion of
Counsel from a nationally-recognized tax counsel to the effect that such
transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of a Residual
Certificate will not be disregarded for federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest
in a Residual Certificate in violation of the provisions of this Section
6.02 shall be absolutely null and void and shall vest no rights in the
purported transferee. If any purported transferee shall, in violation of
the provisions of this Section 6.02, become a Holder of a Residual
Certificate, then the prior Holder of such Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of such Residual Certificate was not in fact permitted by this
Section 6.02, be restored to all rights as Holder thereof retroactive to
the date of registration of transfer of such Residual Certificate. The
Securities Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of the Agreement so long as
the transfer was registered in accordance with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities
Administrator to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator,
based on information provided to the Securities Administrator by the
Master Servicer, will provide to the Internal Revenue Service, and to the
Persons specified in Section 860E(e)(3) and (6) of the Code, information
needed to compute the tax imposed under Section 860E(e) of the Code on
transfers of residual interests to disqualified organizations. The
expenses of the Securities Administrator under this clause (vii) shall be
reimbursable by the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired by a Plan or any Person acting on behalf of a Plan.
(g) 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.
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (a) any
mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Securities
Administrator, the Trustee, the Depositor and the Certificate Registrar such
security or indemnity reasonably satisfactory to each, to save each of them
harmless, then, in the absence of actual notice to the Securities Administrator
or the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Securities Administrator shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator and the Certificate Registrar)
connected therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 6.04 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Trustee, the Securities Administrator, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator or the Certificate Registrar may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 5.01 and for all other purposes
whatsoever, and none of the Depositor, the Master Servicer, the Trustee, the
Securities Administrator, the Certificate Registrar or any agent of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator or the
Certificate Registrar shall be affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicer. The Depositor and the Master Servicer shall each be liable in
accordance herewith only to the extent of the obligations specifically and
respectively imposed upon and undertaken by the Depositor and the Master
Servicer herein. By way of illustration and not limitation, the Depositor is not
liable for the master servicing and administration of the Mortgage Loans, nor is
it obligated by Section 8.01 to assume any obligations of the Master Servicer or
to appoint a designee to assume such obligations, nor is it liable for any other
obligation hereunder that it may, but is not obligated to, assume unless it
elects to assume such obligation in accordance herewith.
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicer. The Depositor and the Master Servicer will each keep in full effect
its existence, rights and franchises as a separate entity under the laws
governing its organization, and will each obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Depositor or the Master Servicer shall be a party, or
any Person succeeding to the business of the Depositor or the Master Servicer,
shall be the successor of the Depositor or the Master Servicer, as the case may
be, hereunder, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that the successor or surviving Person to
the Master Servicer shall be qualified to service mortgage loans on behalf of
Xxxxxx Xxx or Xxxxxxx Mac.
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 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 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 3:00
P.M. New York time on the related Distribution Date; or
(b) failure on the part of the Master Servicer duly to observe or
perform in any material respect any other covenants or agreements of the Master
Servicer set forth in the Certificates or in this Agreement, which covenants and
agreements continue unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Securities Administrator, the Trustee
or the Depositor, or to the Master Servicer, the Depositor, the Securities
Administrator and the Trustee by the Holders of Certificates evidencing Voting
Rights aggregating not less than 25% of all Certificates affected thereby; or
(c) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against the Master
Servicer, or for the winding up or liquidation of the Master Servicer's affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(d) the consent by the Master Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or relating to
the Master Servicer or of or relating to substantially all of its property; or
the Master Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations;
then, and in each and every such case, so long as an Event of Default is
actually known by the Trustee or the Depositor and shall not have been remedied
by the Master Servicer, either the Trustee or the Depositor may, and at the
direction of the Holders of Certificates evidencing Voting Rights aggregating
not less than 51% of all Certificates affected thereby shall, by notice then
given in writing to the Master Servicer (and to the Trustee, if given by the
Depositor, and to the Depositor, if given by the Trustee), terminate all of the
rights and obligations of the Master Servicer under this Agreement. On or after
the receipt by the Master Servicer of such written notice and subject to Section
8.05, all authority and power of the Master Servicer under this Agreement,
whether with respect to the Certificates or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee pursuant to and under this Section
8.01 and Section 8.05(a), unless and until such time as the Trustee shall
appoint a successor Master Servicer pursuant to Section 8.05, and, without
limitation, the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the applicable
Mortgage Loans and related documents, or otherwise, including, without
limitation, the recordation of the assignments of the applicable Mortgage Loans
to it. 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. Notwithstanding the termination of
the Master Servicer pursuant hereto, the Master Servicer shall remain liable for
any causes of action arising out of any Event of Default occurring prior to such
termination, subject to the terms and conditions of this Agreement.
Section 8.02 Remedies of Trustee. During the continuance of any Event of
Default, so long as such Event of Default shall not have been remedied, the
Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 8.03 Directions by Certificateholders and Duties of Trustee During
Event of Default. During the continuance of any Event of Default, Holders of
Certificates evidencing Voting Rights aggregating not less than 25% (or such
other percentage as may be required herein) of each Class of Certificates
affected thereby may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Agreement; provided, however, that
the Trustee shall be under no obligation to pursue any such remedy, or to
exercise any of the trusts or powers vested in it by this Agreement (including,
without limitation, (a) the conducting or defending of any administrative action
or litigation hereunder or in relation hereto, and (b) the terminating of the
Master Servicer or any successor Master Servicer from its rights and duties as
servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby and, provided
further, that, subject to the provisions of Section 9.01, the Trustee shall have
the right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of the Master Servicer and upon
Event of Default. In the event that a Responsible Officer of the Trustee shall
have actual knowledge of any failure of the Master Servicer specified in Section
8.01(a) or (b) which would become an Event of Default upon 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 Certificateholders in accordance with Section
8.01.
Section 8.05 Trustee to Act; Appointment of Successor. (a) Within 90 days
of the time the Master Servicer (and the Trustee if such notice of termination
is delivered by the Depositor) receives a notice of termination pursuant to
Section 8.01, the Trustee (or other named successor) shall be the successor in
all respects to the Master Servicer in its capacity as master servicer under
this Agreement and the transactions set forth or provided for herein and shall
be subject to all the responsibilities, duties and liabilities relating thereto
placed on the Master Servicer by the terms and provisions hereof and thereof, as
applicable, or shall appoint a successor pursuant to Section 3.07.
Notwithstanding the foregoing, (i) the parties hereto agree that the Trustee, in
its capacity as successor Master Servicer, immediately will assume all of the
obligations of the Master Servicer to make advances (including, without
limitation, Advances pursuant to Section 3.21) under this Agreement, (ii) the
Trustee, in its capacity as successor Master Servicer, shall not be responsible
for the lack of information and/or documents that it cannot obtain through
reasonable efforts and (iii) under no circumstances shall any provision of this
Agreement be construed to require the Trustee, acting in its capacity as
successor to the Master Servicer in its obligation to make advances (including
Advances pursuant to Section 3.21) to advance, expend or risk its own funds or
otherwise incur any financial liability in the performance of its duties
hereunder if it shall have reasonable grounds for believing that such funds are
non-recoverable. Subject to Section 8.05(b), as compensation therefor, the
Trustee shall be entitled to such compensation as the terminated Master Servicer
would have been entitled to hereunder if no such notice of termination had been
given, except for those amounts due to the Master Servicer as reimbursement for
Advances previously made or amounts previously expended and are otherwise
reimbursable hereunder. Notwithstanding the above, the Trustee may, if it shall
be unwilling so to act, or shall, if it is legally unable so to act, appoint, or
petition a court of competent jurisdiction to appoint, any established housing
and home finance institution having a net worth of not less than $10,000,000 as
the successor to 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 capacity as
provided above. The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. All Master Servicing Transfer Costs shall be paid by the predecessor
Master Servicer upon presentation of reasonable documentation of such costs, and
if such predecessor Master Servicer defaults in its obligation to pay such
costs, such costs shall be paid by the successor Master Servicer or the Trustee
(in which case the successor Master Servicer or the Trustee shall be entitled to
reimbursement therefor from the assets of the Trust).
(b) In connection with the appointment of a successor Master
Servicer or the assumption of the duties of the Master Servicer, as specified in
Section 8.05(a), the Trustee may make such arrangements for the compensation of
such successor as it and such successor 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) The
Trustee and the Securities Administrator, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, each undertake to perform such duties and only such duties as are
specifically set forth in this Agreement as duties of the Trustee and the
Securities Administrator, respectively. In case an Event of Default has occurred
of which a Responsible Officer of the Trustee shall have actual knowledge (which
has not been cured or waived), the Trustee shall exercise such of the rights and
powers vested in it by this Agreement, and use the same degree of care and skill
in their exercise as a reasonably prudent investor would exercise or use under
the circumstances in the conduct of such investor's own affairs. In case an
Event of Default has occurred of which a Responsible Officer of the Securities
Administrator shall have actual knowledge (which has not been cured or waived),
the Securities Administrator shall exercise such of the rights and powers vested
in it by this Agreement, and use the same degree of care and skill in their
exercise as a reasonably prudent investor would exercise or use under the
circumstances in the conduct of such investor's own affairs.
The Trustee and the Securities Administrator, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee and the Securities Administrator
which are specifically required to be furnished pursuant to any provision of
this Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided, however, that neither the Trustee nor
the Securities Administrator shall be responsible for the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or the Depositor hereunder.
(b) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misfeasance; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred,
the duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement,
the Trustee and the Securities Administrator shall not be liable except
for the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and the Securities Administrator
and, in the absence of bad faith on the part of the Trustee and the
Securities Administrator, the Trustee and the Securities Administrator may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and the Securities Administrator by the Depositor
or the Master Servicer and which on their face, do not contradict the
requirements of this Agreement;
(ii) The Trustee (in its individual capacity) shall not be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) The Trustee (in its individual capacity) and the Securities
Administrator (in its individual capacity) shall not be personally liable
with respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of Certificateholders as
provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any default
specified in clauses (a) and (b) of Section 8.01 or an Event of Default
under clauses (c) and (d) of Section 8.01 unless a Responsible Officer of
the Trustee assigned to and working in the Corporate Trust Office of the
Trustee obtains actual knowledge of such failure or event or any
Responsible Officer of the Trustee receives written notice of such failure
or event at its Corporate Trust Office from the Master Servicer, the
Securities Administrator, the Depositor or any Certificateholder. The
Securities Administrator shall not be charged with knowledge of any
default specified in clauses (a) and (b) of Section 8.01 or an Event of
Default under clauses (c) and (d) of Section 8.01 unless a Responsible
Officer of the Securities Administrator assigned to and working in the
Corporate Trust Office of the Securities Administrator obtains actual
knowledge of such failure or event or any Responsible Officer of the
Securities Administrator receives written notice of such failure or event
at its Corporate Trust Office from the Master Servicer, the Trustee, the
Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 8.05 in respect of the
Trustee, no provision in this Agreement shall require the Trustee or the
Securities Administrator to expend or risk its own funds or otherwise
incur any personal financial liability in the performance of any of its
duties as Trustee or Securities Administrator hereunder, or in the
exercise of any of its rights or powers, if the Trustee or the Securities
Administrator shall have reasonable grounds for believing that repayment
of funds or adequate indemnity or security satisfactory to it against such
risk or liability is not reasonably assured to it and none of the
provisions contained in this Agreement shall in any event require the
Securities Administrator to perform, or be responsible for the manner of
performance of, any of the obligations of the Master Servicer under this
Agreement.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator. Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may request and
rely upon and shall be protected in acting or refraining from acting upon
any resolution, Officer's Certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties and the manner of obtaining consents and of
evidencing the authorization of the execution thereof by
Certificateholders shall be subject to the reasonable regulations as the
Trustee and the Securities Administrator, as applicable, may prescribe;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion
of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee or the
Securities Administrator, as the case may be, reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby; nothing contained herein shall,
however, relieve the 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 applicable, not reasonably assured to the Trustee or the
Securities Administrator, as applicable, by the security afforded to it by
the terms of this Agreement, the Trustee or the Securities Administrator,
as the case may be, may require reasonable indemnity or security
satisfactory to it against such expense or liability or payment of such
estimated expenses as a condition to so proceeding;
(vi) The Trustee and the Securities Administrator may each execute
any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, attorneys, accountants, custodian
or independent contractor; and
(vii) The right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the execution of, and the authentication on the
Certificates) shall be taken as the statements of the Depositor or 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
Securities Administrator; the failure of the Master Servicer to act or perform
any duties required of it as agent of the Trust or the Securities Administrator
hereunder; or any action by the Trustee or the Securities Administrator taken at
the instruction of the Master Servicer (other than if the Trustee shall assume
the duties of the Master Servicer pursuant to Section 8.05 and thereupon only
for the acts or omissions of the Trustee as successor to the Master Servicer);
provided, however, that the foregoing shall not relieve the Trustee or the
Securities Administrator of its obligation to perform its duties under this
Agreement, including, without limitation, the Trustee's review of the Mortgage
Files pursuant to Section 2.02. The Trustee shall execute and file any financing
or continuation statement in any public office at any time required to maintain
the perfection of any security interest or lien granted to it hereunder.
Section 9.04 Trustee and Securities Administrator May Own Certificates.
Each of the Trustee and the Securities Administrator in their individual or any
other capacities may become the owner or pledgee of Certificates with the same
rights it would have if it were not Trustee or the Securities Administrator and
may otherwise deal with the Master Servicer or any of its affiliates with the
same 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 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 rated at least "P1" by Moody's
and "A-1" by S&P (or such other rating acceptable to Moody's and S&P pursuant to
a ratings confirmation). If no successor Securities Administrator shall have
been appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant to
this Section 9.05, then the Trustee shall perform the duties of the Securities
Administrator pursuant to this Agreement. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, an
institution qualified under Section 9.05 hereof as the successor to the
Securities Administrator hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of a Securities Administrator hereunder;
provided, however, that any such institution appointed as successor Securities
Administrator shall not, as evidenced in writing by each Rating Agency,
adversely affect the then current rating of any Class of Certificates
immediately prior to the termination of the Securities Administrator. The
Trustee shall notify the Rating Agencies of any change of the Securities
Administrator.
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator. The Trustee or the Securities Administrator may at any time
resign and be discharged from the trust hereby created by giving written notice
thereof to the Master Servicer and the Depositor and mailing a copy of such
notice to all Holders of record. The Trustee or the Securities Administrator, as
applicable, shall also mail a copy of such notice of resignation to each Rating
Agency. Upon receiving such notice of resignation, the Depositor shall use its
best efforts to promptly appoint a mutually acceptable successor Trustee or
Securities Administrator, as applicable, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee or
Securities Administrator, as applicable, and one copy to the successor Trustee
or Securities Administrator, as applicable. If no successor Trustee or
Securities Administrator, as the case may be, shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee or Securities Administrator may petition
any court of competent jurisdiction for the appointment of a successor Trustee
or Securities Administrator.
If at any time the Trustee or Securities Administrator shall cease
to be eligible in accordance with the provisions of Section 9.05 and shall fail
to resign after written request therefor by the Master Servicer, or if at any
time the Trustee or the Securities Administrator shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or the Securities Administrator or of their respective property shall be
appointed, or any public officer shall take charge or control of the Trustee or
the Securities Administrator or of their respective property or affairs for the
purpose of rehabilitation, conservation or liquidation, then the Master Servicer
may remove the Trustee or the Securities Administrator, as the case may be, and
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee or the Securities
Administrator, as applicable, so removed and one copy to the successor.
The Holders of Certificates evidencing not less than 50% of the
Voting Rights may at any time remove the Trustee or the Securities Administrator
by written instrument or instruments delivered to the Master Servicer and the
Trustee or the Securities Administrator, as applicable; the Master Servicer
shall thereupon use their best efforts to appoint a mutually acceptable
successor Trustee or Securities Administrator, as the case may be, in accordance
with this Section 9.06.
Any resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee pursuant to any of the
provisions of this Section 9.06 shall become effective upon acceptance of
appointment by the successor Trustee or Securities Administrator, as the case
may be, as provided in Section 9.07.
Section 9.07 Successor Trustee or Securities Administrator. Any successor
Trustee or successor Securities Administrator appointed as provided in Section
9.06 shall execute, acknowledge and deliver to the Master Servicer and to its
predecessor Trustee or Securities Administrator, as applicable, an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee or Securities Administrator shall become effective
and such successor Trustee or Securities Administrator, as the case may be,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee or Securities Administrator, as
applicable, herein. The predecessor Trustee or Securities Administrator shall
duly assign, transfer, deliver and pay over to the successor Trustee or
Securities Administrator, as the case may be, the whole of the Mortgage Files
and related documents and statements held by it hereunder, together with all
instruments of transfer and assignment or other documents properly executed as
may be reasonably required to effect such transfer and such of the records or
copies thereof maintained by the predecessor Trustee or Securities Administrator
in the administration hereof as may be reasonably requested by the successor
Trustee or Securities Administrator, as the case may be, and shall thereupon be
discharged from all duties and responsibilities under this Agreement; provided,
however, that if the predecessor Trustee or Securities Administrator has been
removed pursuant to the third paragraph of Section 9.06, all reasonable expenses
of the predecessor Trustee or Securities Administrator incurred in complying
with this Section 9.07 shall be reimbursed by the Trust.
No successor Trustee or Securities Administrator shall accept
appointment as provided in this Section 9.07 unless at the time of such
appointment such successor Trustee or Securities Administrator, as the case may
be, shall be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee or Securities
Administrator, as applicable, as provided in this Section 9.07, the Master
Servicer shall cooperate to mail notice of the succession of such Trustee or
Securities Administrator, as the case may be, hereunder to all Holders of
Certificates at their addresses as shown in the Certificate Register and to each
Rating Agency. If the Master Servicer fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee or Securities
Administrator, the successor Trustee or Securities Administrator, as the case
may be, shall cause such notice to be mailed at the expense of the Master
Servicer.
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator. Any corporation or banking association into which either the
Trustee or the Securities Administrator may be merged or converted or with which
it may be consolidated, or any corporation or banking association resulting from
any merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate trust business of the
Trustee or the Securities Administrator, shall be the successor of the Trustee
or the Securities Administrator, as applicable, hereunder, if such corporation
or banking association is eligible under the provisions of Section 9.05, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 9.09 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the Master Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
as co-trustee or separate trustee of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity, such title to the Trust
Estate, or any part thereof, and, subject to the other provision of this Section
9.09, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If 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 thereof in any such jurisdiction) shall be exercised and performed
by such separate trustee or co-trustee at the direction of the Trustee. No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; provided, however, that no appointment
of a co-trustee or separate trustee hereunder shall relieve the Trustee of its
obligations hereunder.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, or shall be adjudged a
bankrupt or insolvent, or a receiver of its property shall be appointed, or any
public officer shall take charge or control of such trustee or co-trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 9.10 Authenticating Agents. The Securities Administrator may
appoint one or more authenticating agents ("Authenticating Agents") which shall
be authorized to act on behalf of the Securities Administrator in authenticating
or countersigning Certificates. Initially, the Authenticating Agent shall be
Xxxxx Fargo Bank, N.A. Wherever reference is made in this Agreement to the
authentication or countersigning of Certificates by the Securities Administrator
or the Securities Administrator's certificate of authentication or
countersigning, such reference shall be deemed to include authentication or
countersigning on behalf of the Securities Administrator by an Authenticating
Agent and a certificate of authentication or countersignature executed on behalf
of the Securities Administrator by an Authenticating Agent. Each Authenticating
Agent must be acceptable to the Master Servicer and must be a corporation or
banking association organized and doing business under the laws of the United
States of America or of any State, having a place of business in New York, New
York, having a combined capital and surplus of at least $15,000,000, authorized
under such laws to do a trust business and subject to supervision or examination
by Federal or State authorities.
Any corporation or banking association into which any Authenticating
Agent may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation or banking association succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Securities Administrator or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Securities Administrator and to the Master
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 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
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.
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.
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.
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 5.04(b) and
5.05(b)) shall terminate upon the last action required to be taken by the
Securities Administrator on the Final Distribution Date pursuant to this Article
X following the earlier of (a) the purchase of all the Mortgage Loans and all
REO Property remaining in the Trust Estate by the Master Servicer at a price
equal to the sum of (i) 100% of the Stated Principal Balance of each Mortgage
Loan (other than any Mortgage Loan as to which REO Property has been acquired
and whose fair market value is included pursuant to clause (ii) below) and (ii)
the fair market value of such REO Property, plus any Class Unpaid Interest
Shortfall for any Class of Certificates as well as any accrued and unpaid
interest through the last day of the month of such purchase at the related
Mortgage Interest Rate on the Stated Principal Balance of each Mortgage Loan
(including any Mortgage Loan as to which REO Property has been acquired) or (b)
the final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan remaining in the Trust Estate and the disposition of all
REO Property.
The Master Servicer may not exercise its purchase option for the
Mortgage Loans until all Reimbursement Amounts for the Mortgage Loans have been
paid. The Securities Administrator shall notify the Seller, upon notice of
Master Servicer's intent to exercise its purchase option of any Reimbursement
Amount outstanding.
Regardless of the foregoing, in no event shall the Trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
The right of the Master Servicer to purchase the Mortgage Loans is
conditioned upon the aggregate Stated Principal Balance of the Mortgage Loans
being less than 1% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans. In addition, the right of the Master Servicer to purchase the
Mortgage Loans is conditioned on the sum of clause (a)(i) and (ii) of the first
paragraph of this Section 10.01 being less than or equal to the aggregate fair
market value of the Mortgage Loans being purchased (other than any Mortgage Loan
as to which REO Property has been acquired) and the REO Properties; provided,
however, that this sentence shall not apply to any purchase by the Master
Servicer if, at the time of 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 the purposes of the previous
sentence and the first paragraph of this Section 10.01 will be determined by the
Master Servicer exercising its purchase right as of the close of business on the
third (3rd) Business Day next preceding the date upon which such notice of the
exercise of any purchase right is furnished to Certificateholders pursuant to
the sixth paragraph of this Section 10.01.
If such right is exercised by the Master Servicer, the Trustee
shall, promptly following payment of the purchase price, release to the Master
Servicer or its respective designees, the Mortgage Files pertaining to such
Mortgage Loans being purchased. The Master Servicer's right, title and interest
in and to such purchased 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 by the Master Servicer
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 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 Master Servicer shall remit to the Securities Administrator for
deposit to the Certificate Account on or before the Final Distribution Date or
the applicable Distribution Date, in immediately available funds an amount equal
to the amount necessary to make the amount, if any, on deposit in the
Certificate Account on such Final Distribution Date or Distribution Date, as
applicable, equal to the purchase price for the related assets of the Trust
Estate or any portion of the Trust Estate computed as above provided together
with a statement as to the amount to be distributed on each applicable Class of
Certificates pursuant to the next succeeding paragraph.
Upon presentation and surrender of the applicable Certificates, the
Securities Administrator shall cause to be distributed to Certificateholders of
each Class, in the order set forth in Section 5.02 hereof, on the Final
Distribution Date or the applicable Distribution Date, and in proportion to
their respective Percentage Interests, with respect to Certificateholders of the
same Class, an amount equal to (I) as to each such Class of Certificates, the
Class Certificate Balance thereof plus (a) accrued interest thereon in the case
of an interest-bearing Certificate and (b) the applicable Class PO Deferred
Amount with respect to the Class PO Components and (II) as to the Class 1-A-R
Certificate, the amounts, if any, which remain on deposit in the Certificate
Account with respect to the related Mortgage Loans (and are deemed to be on
deposit in the Upper-Tier Certificate Sub-Account, as applicable, other than the
amounts retained to meet claims) after any distributions pursuant to clause (I)
above. An amount shall be distributed in respect of interest and principal, as
applicable, to the Uncertificated Lower-Tier Interests in the same manner as
principal and interest are distributed to the Uncertificated Lower-Tier
Interests as provided in Section 5.02.
If the applicable Certificateholders do not surrender their
Certificates for final payment and cancellation on or before the Final
Distribution Date, the Securities Administrator shall on such date cause all
funds in the Certificate Account not distributed in final distribution to such
Certificateholders of such Group to continue to be held by the Securities
Administrator in an Eligible Account for the benefit of such Certificateholders
and the Securities Administrator shall give a second written notice to the
remaining applicable Certificateholders to surrender their Certificates for
cancellation and receive a final distribution with respect thereto. If within
one (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) If the Master
Servicer exercises its purchase option as provided in Section 10.01, the Trust
shall be terminated in accordance with the following additional requirements,
unless the Securities Administrator and the Trustee have received an Opinion of
Counsel to the effect that the failure of the Trust to comply with the
requirements of this Section 10.02 will not (i) result in the imposition of
taxes on "prohibited transactions" or "prohibited contributions" in respect of
any REMIC created hereunder as defined in the REMIC Provisions, or (ii) cause
any REMIC created hereunder to fail to qualify as a REMIC at any time that any
related Certificates are outstanding:
(i) The Securities Administrator shall specify the first day in the
90-day liquidation period in a statement attached to each REMIC's final
tax return pursuant to Treasury Regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder;
(ii) During such 90-day liquidation period, and at or prior to the
time of making of the final payment on the Certificates, the Securities
Administrator shall sell all of the assets of the Trust Estate to the
Master Servicer for cash; and
(iii) At the time of the making of the final payment on the
Certificates, the Securities Administrator shall distribute or credit, or
cause to be distributed or credited to the Holder of the Residual
Certificate all cash on hand in the Trust Estate (other than cash retained
to meet claims), and the Trust shall terminate at that time.
(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 or the Securities Administrator.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Securities Administrator and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity or mistake, (ii) to correct or supplement any provisions herein or
therein which may be inconsistent with any other provisions of this Agreement,
any amendment to this Agreement or the related Prospectus Supplement, (iii) to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of any REMIC created hereunder as a
REMIC at all times that any related Certificates are outstanding or to avoid or
minimize the risk of the imposition of any tax on any REMIC 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 not, as evidenced by such Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Certificate Account
provided that (a) such change shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder
and (b) such change shall not adversely affect the then-current rating of the
Senior Certificates, Class B-1, Class B-2, Class B-3, Class B-4, or Class B-5
Certificates as evidenced by a letter from each Rating Agency rating such
Certificates to such effect and (v) to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder, provided that the
amendment shall not be deemed to adversely affect in any material respect the
interests of the Certificateholders and no Opinion of Counsel to that effect
shall be required if the Person requesting the amendment obtains a letter from
each Rating Agency stating that the amendment would not result in the
downgrading or withdrawal of the respective ratings then assigned to the
Certificates.
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee 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 and the Securities Administrator with an Opinion of Counsel
stating whether such amendment would adversely affect the qualification of any
REMIC created hereunder as a REMIC and notice of the conclusion expressed in
such Opinion of Counsel shall be included with any such solicitation.
Promptly after the execution of any such amendment or consent the
Securities Administrator shall furnish written notification of the substance of
or a copy of such amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Securities Administrator may prescribe.
Section 11.02 Recordation of Agreement; Counterparts. This Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Securities Administrator at its expense at the direction of
Holders of Certificates evidencing not less than 50% of all Voting Rights, but
only upon delivery to the Securities Administrator at the expense of the
requesting Certificateholders of an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Securities Administrator a
written notice of default and of the continuance thereof, as provided herein,
and unless also the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of each Class of Certificates affected thereby
shall have made written request upon the Securities Administrator to institute
such action, suit or proceeding in its own name as Securities Administrator
hereunder and shall have offered to the Securities Administrator such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Securities Administrator, for 60 days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Securities Administrator, that no one or
more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Securities Administrator
shall be entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05 Notices. All demands, notices, instructions, directions,
requests and communications required or permitted to be delivered hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified mail, return receipt requested, (provided,
however, that notices to the Securities Administrator may be delivered by
facsimile and shall be deemed effective upon receipt) to (a) in the case of the
Depositor, Banc of America Funding Corporation, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel and Chief Financial
Officer, (b) in the case of the Master Servicer, Xxxxx Fargo Bank, N.A., 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: BAFC 2005-5, (c) in the
case of the Securities Administrator, Xxxxx Fargo Bank, N.A., X.X. Xxx 00,
Xxxxxxxx, Xxxxxxxx 00000, Attention: BAFC, Series 2005-5, and for overnight
delivery purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: BAFC, Series 2005-5, with a copy to Xxxxx Fargo
Bank, N.A., Sixth and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000,
Attention: BAFC, Series 2005-5, (d) in the case of the Trustee, Wachovia Bank,
National Association, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Structured Finance Services, BAFC 2005-5, (e) in the case of Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Residential Mortgage Monitoring Group and (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 Manager or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register. Any
notice to a Certificateholder so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid. It is the
intention of the Securities Administrator that Certificateholders shall not be
personally liable for obligations of the Trust Estate, that the beneficial
ownership interests represented by the Certificates shall be nonassessable for
any losses or expenses of the Trust Estate or for any reason whatsoever, and
that Certificates upon execution, authentication and delivery thereof by the
Securities Administrator pursuant to Section 6.01 are and shall be deemed fully
paid.
Section 11.08 Access to List of Certificateholders. The Certificate
Registrar will furnish or cause to be furnished to the Trustee and the
Securities Administrator, within 15 days after the receipt of a request by the
Trustee and/or the Securities Administrator in writing, a list, in such form as
the Trustee and/or the Securities Administrator may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record Date
for payment of distributions to Certificateholders.
If three or more Certificateholders apply in writing to the
Securities Administrator, and such application states that the applicants desire
to communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then the Securities
Administrator shall, within five (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 pursuant to this Agreement to constitute a
purchase and sale and not a loan. Notwithstanding the foregoing, to the extent
that such conveyance is held not to constitute a sale under applicable law, it
is intended that this Agreement shall constitute a security agreement under
applicable law and that the Depositor shall be deemed to have granted to the
Trustee a first priority security interest in all of the Depositor's right,
title and interest in and to the Mortgage Loans.
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Securities Administrator and the Trustee have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized to be hereunto
affixed, all as of the day and year first above written.
BANC OF AMERICA FUNDING
CORPORATION,
as Depositor
By:
------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.,
as Master Servicer
By:
------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By:
------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
[Signature Page to the Pooling and Servicing Agreement]
STATE OF )
) ss.:
COUNTY )
)
On the __th day of September, 2005, before me, a notary public in
and for the State of ___________, personally appeared _________________, known
to me who, being by me duly sworn, did depose and say that s/he is a
_______________ of Xxxxx Fargo Bank, N.A., a national banking association, one
of the parties that executed the foregoing instrument; and that s/he signed
her/his name thereto by order of the Board of Directors of such association.
--------------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling and Servicing Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of September, 2005, before me, a notary public in
and for the State of North Carolina, personally appeared Xxxxx Xxxxx, known to
me who, being by me duly sworn, did depose and say that he is a Senior Vice
President of Banc of America Funding Corporation, a Delaware corporation, one of
the parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such corporation.
--------------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________
[Notary Page to the Pooling and Servicing Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the __th day of September, 2005, before me, a notary public in
and for the State of North Carolina, personally appeared ______________, known
to me who, being by me duly sworn, did depose and say that s/he is a
_____________ of Wachovia Bank, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
s/he signed her/his name thereto by order of the Board of Directors of such
association.
--------------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling and Servicing Agreement]
STATE OF _________ )
) ss.:
COUNTY OF ________ )
)
On the __th day of September, 2005, before me, a notary public in
and for the State of ___________, personally appeared ___________________, known
to me who, being by me duly sworn, did depose and say that s/he is a
__________________ of Xxxxx Fargo Bank, N.A., a national banking association,
one of the parties that executed the foregoing instrument; and that s/he signed
her/his name thereto by order of the Board of Directors of such association.
--------------------------------------------
Notary Public
[Notarial Seal]
My commission expires ____________.
[Notary Page to the Pooling and Servicing Agreement]
EXHIBIT A-1-A-1
[FORM OF FACE OF CLASS 1-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $12,791,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X D3 4
ISIN No.: US05946XD344
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-2
[FORM OF FACE OF CLASS 1-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
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 REPRESENTS
BENEFICIAL OWNERSHIP OF 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.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-2
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $20,000,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X D4 2
ISIN No.: US05946XD427
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
(i) 0.500% plus (ii) LIBOR, subject to a minimum rate of 0.500% and a maximum
rate of 5.500%.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-3
[FORM OF FACE OF CLASS 1-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-3
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $20,000,000.00
Pass-Through Rate: Inverse Floating
CUSIP No.: 05946X D5 9
ISIN No.: US05946XD591
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Notional Amount of the Class to
which this Certificate belongs) in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 1-A-3 Certificate is not entitled to any distributions with
respect to principal.
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 equal to
(i) 5.000% minus (ii) LIBOR, subject to a minimum rate of 0.000% and a maximum
rate of 5.000%.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-4
[FORM OF FACE OF CLASS 1-A-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-4
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-4
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $10,000,000.00
Pass-Through Rate: 5.125%
CUSIP No.: 05946X D6 7
ISIN No.: US05946XD674
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-5
[FORM OF FACE OF CLASS 1-A-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
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").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-5
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,000,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X D7 5
ISIN No.: US05946XD757
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-6
[FORM OF FACE OF CLASS 1-A-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-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").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-6
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $681,818.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X D8 3
ISIN No.: US05946XD831
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Notional Amount of the Class to
which this Certificate belongs) in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 1-A-6 Certificate is not entitled to any distributions with
respect to principal.
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.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-7
[FORM OF FACE OF CLASS 1-A-7 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-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").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-7
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $25,000,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X D9 1
ISIN No.: US05946XD914
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-8
[FORM OF FACE OF CLASS 1-A-8 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-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").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-8
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $60,000,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X E2 5
ISIN No.: US05946XE250
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-9
[FORM OF FACE OF CLASS 1-A-9 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-9
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-9
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $9,270,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X E3 3
ISIN No.: US05946XE334
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-10
[FORM OF FACE OF CLASS 1-A-10 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-10
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS 1-A-1 CERTIFICATES WILL BE BORNE BY THE
CLASS 1-A-10 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-10
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,679,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X E4 1
ISIN No.: US05946XE417
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-11
[FORM OF FACE OF CLASS 1-A-11 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-11
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-11
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $52,471,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X E5 8
ISIN No.: US05946XE581
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-1-A-R
[FORM OF FACE OF CLASS 1-A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
THIS CLASS 1-A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS 1-A-R CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 1-A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of three loan groups of fixed-rate mortgage loans (the "Mortgage
Loans") secured by first liens on one- to four-family residential properties
deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $100.00
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X E6 6
ISIN No.: US05946XE664
THIS CERTIFIES THAT __________ is the registered owner of 100%
Percentage Interest evidenced by this Certificate in certain monthly
distributions with respect to a Trust consisting primarily of the Mortgage Loans
deposited by Banc of America Funding Corporation (the "Depositor"). The Trust
was created pursuant to a Pooling and Servicing Agreement, dated September 29,
2005 (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 Wachovia Bank, National
Association, as trustee (the "Trustee"). To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Pooling and
Servicing Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement the Holder of this Certificate by virtue
of the acceptance hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee 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 subaccount of the Certificate Account will be made only upon
presentment and surrender of this Class 1-A-R Certificate at the Corporate Trust
Office.
Each Person who has or who acquires this Class 1-A-R Certificate shall
be deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class
1-A-R Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 1-A-R Certificate shall be a Permitted
Transferee and shall promptly notify the Securities Administrator of any change
or impending change in its status as a Permitted Transferee; (ii) no Person
shall acquire an ownership interest in this Class 1-A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 1-A-R Certificate, the Securities
Administrator shall require delivery to it, in form and substance satisfactory
to it, of an affidavit in the form of Exhibit I to the Pooling and Servicing
Agreement; (iv) notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the Securities
Administrator has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in this Class 1-A-R
Certificate to such proposed transferee shall be effected; (v) this Class 1-A-R
Certificate may not be purchased by or transferred to any Person that is not a
U.S. Person, unless (A) such Person holds this Class 1-A-R Certificate in
connection with the conduct of a trade or business within the United States and
furnishes the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Securities Administrator an
Opinion of Counsel from a nationally-recognized tax counsel to the effect that
such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of this Class 1-A-R
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class 1-A-R Certificate in violation of
the provisions of such restrictions shall be absolutely null and void and shall
vest no rights in the purported transferee; and (vii) if any Person other than a
Permitted Transferee acquires the Class 1-A-R Certificate in violation of such
restrictions, then the Securities Administrator, based on information provided
to the Securities Administrator by the related Master Servicer, will provide to
the Internal Revenue Service, and to the Persons specified in Section 860E(e)(3)
and (6) of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-1
[FORM OF FACE OF CLASS 2-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 2-A-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 2-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $173,187,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X E7 4
ISIN No.: US05946XE748
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-2-A-2
[FORM OF FACE OF CLASS 2-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 2-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF
REALIZED LOSSES ALLOCATED TO THE CLASS 2-A-1 CERTIFICATES WILL BE BORNE BY THE
CLASS 2-A-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 2-A-2
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $6,096,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X E8 2
ISIN No.: US05946XE821
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-1
[FORM OF FACE OF CLASS 3-A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
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 REPRESENTS
BENEFICIAL OWNERSHIP OF 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.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-1
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $25,000,000.00
Pass-Through Rate: Floating
CUSIP No.: 05946X E9 0
ISIN No.: US05946XE904
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate equal to
(i) 0.700% plus (ii) LIBOR, subject to a minimum rate of 0.700% and a maximum
rate of 5.500%.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-2
[FORM OF FACE OF CLASS 3-A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-2
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $35,043,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X F2 4
ISIN No.: US05946XF240
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-3
[FORM OF FACE OF CLASS 3-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-3
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $8,995,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X F3 2
ISIN No.: US05946XF323
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 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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-4
[FORM OF FACE OF CLASS 3-A-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
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").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-4
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $10,049,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X F4 0
ISIN No.: US05946XF406
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-5
[FORM OF FACE OF CLASS 3-A-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-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").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-5
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate Balance
of this Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,912,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X F5 7
ISIN No.: US05946XF570
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-6
[FORM OF FACE OF CLASS 3-A-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-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").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-6
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate Balance
of this Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $7,668,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X F6 5
ISIN No.: US05946XF653
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-7
[FORM OF FACE OF CLASS 3-A-7 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-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").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-7
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Notional Amount
of this Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $25,000,000.00
Pass-Through Rate: Inverse Floating
CUSIP No.: 05946X F7 3
ISIN No.: US05946XF737
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Notional Amount of the Class to
which this Certificate belongs) in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 3-A-7 Certificate is not entitled to any distributions with
respect to principal.
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 equal to
(i) 4.800% minus (ii) LIBOR, subject to a minimum rate of 0.000% and a maximum
rate of 4.800%.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-3-A-8
[FORM OF FACE OF CLASS 3-A-8 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-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").
UNTIL THE ACCRETION TERMINATION DATE, THE INTEREST THAT ACCRUES ON THE
CERTIFICATE BALANCE OF THIS CERTIFICATE WILL NOT BE PAYABLE BECAUSE SUCH UNPAID
INTEREST IS ADDED TO THE CERTIFICATE BALANCE OF THIS CERTIFICATE AND BECAUSE
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN, THE
OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MORE OR LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 3-A-8
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate Balance
of this Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,983,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X F8 1
ISIN No.: US05946XF810
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-30-IO
[FORM OF FACE OF CLASS 30-IO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 30-IO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THE AMOUNT
SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 30-IO
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $14,738,247.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X F9 9
ISIN No.: US05946XF992
THIS CERTIFIES THAT __________ is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
Denomination of this Certificate by the Initial Notional Amount of the Class to
which this Certificate belongs) in certain monthly distributions with respect to
a Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 30-IO Certificate is not entitled to any distributions with
respect to principal.
For the purposes of determining distributions of interest, the Class
30-IO will be deemed to consist of three components (each, a "Component"). The
amount of interest which accrues on the Class 30-IO Certificates in any month
will equal the sum of the interest which accrues on the Components. The
Components are not severable.
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.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT A-30-PO
[FORM OF FACE OF CLASS 30-PO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 30-PO
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class 30-PO
evidencing an interest in a Trust consisting primarily of three loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,255,671.00
CUSIP No.: 05946X G2 3
ISIN No.: US05946XG230
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This Class 30-PO Certificate represents the right to receive principal
only.
For the purposes of determining distributions of principal in reduction
of Class Certificate Balance, the Class 30-PO Certificates will be deemed to
consist of three components (each, a "Component"). The Components are not
severable.
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.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-1
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $7,916,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X G3 1
ISIN No.: US05946XG313
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-2
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-2
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,118,000.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X G4 9
ISIN No.: US05946XG495
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-3
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1 AND CLASS B-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-3
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,919,000.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X G5 6
ISIN No.: US05946XG560
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-4
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS
NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY
SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE
SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12,
1995)), THERE IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL
ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF
SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE
THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE
ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH
GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60)
AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL
ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN
FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT
THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN
WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT
THE DEPOSITOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR THE TRUSTEE
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-4
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,439,000.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X G6 4
ISIN No.: US05946XG644
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-5
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES AS DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS
NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY
SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE
SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12,
1995)), THERE IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL
ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF
SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE
THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE
ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH
GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60)
AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL
ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN
FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT
THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN
WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT
THE DEPOSITOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR THE TRUSTEE
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-5
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,199,000.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X G7 2
ISIN No.: US05946XG727
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT B-6
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS B-5 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE SECURITIES ADMINISTRATOR EITHER (I) A REPRESENTATION LETTER, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, STATING THAT (A) IT IS
NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY
SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE
SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY
GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12,
1995)), THERE IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL
ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF
SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE
THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE
ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH
GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60)
AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL
ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN
FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT
THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN
WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT
THE DEPOSITOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR THE TRUSTEE
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING
AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE
PRECEDING SENTENCE TO THE SECURITIES ADMINISTRATOR. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-5
Class B-6
evidencing an interest in a Trust consisting primarily of three loan groups of
fixed-rate mortgage loans (the "Mortgage Loans") secured by first liens on one-
to four-family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: September 1, 2005
First Distribution Date: October 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $720,482.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X G8 0
ISIN No.: US05946XG800
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 September 29, 2005 (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 Wachovia Bank, National Association, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Pooling and Servicing Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as
set forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement either as Exhibit G-2A or as
Exhibit G-2B, which certificates shall not be an expense of the Securities
Administrator or the Depositor; provided that the foregoing requirements under
clauses (i) and (ii) shall not apply to a transfer of a Private Certificate
between or among the Depositor, the Seller, their affiliates or both. The Holder
of a Private Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Securities Administrator and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Funding Corporation Mortgage Pass-Through
Certificates, of the Series specified on the face hereof (collectively, the
"Certificates"), and representing a beneficial ownership interest in the Trust
created by the Pooling and Servicing Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Certificate Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the Pooling
and Servicing Agreement or, except as expressly provided in the Pooling and
Servicing Agreement, subject to any liability under the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to the Pooling and Servicing Agreement
for the interests, rights and limitations of rights, benefits, obligations and
duties evidenced thereby, and the rights, duties and immunities of the
Securities Administrator.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 25th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement.
On each Distribution Date, the Securities Administrator shall
distribute out of the Certificate Account to each Certificateholder of record on
the related Record Date (other than respecting the final distribution) (a) by
check mailed to such Certificateholder entitled to receive a distribution on
such Distribution Date at the address appearing in the Certificate Register, or
(b) upon written request by the Holder of a Certificate (other than a Residual
Certificate), by wire transfer or by such other means of payment as such
Certificateholder and the Securities Administrator shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth in
Section 5.02 of the Pooling and Servicing Agreement. The final distribution on
each Certificate will be made in like manner, but only upon presentation and
surrender of such Certificate to the Securities Administrator as contemplated by
Section 10.01 of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Securities Administrator and the rights of the
Certificateholders under the Pooling and Servicing Agreement at any time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Pooling and
Servicing Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register of the Securities Administrator upon
surrender of this Certificate for registration of transfer at the Corporate
Trust Office of the Securities Administrator accompanied by a written instrument
of transfer in form satisfactory to the Securities Administrator and the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Master Servicer, the Certificate Registrar, the
Securities Administrator and the Trustee and any agent of the Depositor, the
Master Servicer, the Certificate Registrar, the Securities Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Certificate Registrar, the Trustee, the Securities Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal
Balance of the Mortgage Loans is less than 1% of the aggregate Cut-off Date Pool
Principal Balance of such Mortgage Loans, the Master Servicer has the option to
purchase the Mortgage Loans under the conditions set forth in Section 10.01 of
the Pooling and Servicing Agreement. In the event that no such termination
occurs, the obligations and responsibilities created by the Pooling and
Servicing Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust or the disposition of all property in respect thereof and
the distribution to Certificateholders of all amounts required to be distributed
pursuant to the Pooling and Servicing Agreement. In no event shall the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late ambassador of the United States to the Court of St. Xxxxx,
living on the date thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and
Servicing Agreement referenced herein.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By
--------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________________
____________________________________________________ for the account of
___________________, account number _________________________, or, if mailed by
check, to Applicable statements should be mailed to ___________________
This information is provided by ____________________________, the
assignee named above, or , as its agent.
EXHIBIT D-1
LOAN GROUP 1 MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
EXHIBIT D-2
LOAN GROUP 2 MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
EXHIBIT D-3
LOAN GROUP 3 MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
September 29, 2005
To: Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: The Pooling and Servicing Agreement dated September 29, 2005, among
Banc of America Funding Corporation, as Depositor, Xxxxx Fargo Bank,
N.A., as Securities Administrator and Master Servicer, and Wachovia
Bank, National Association, as Trustee.
In connection with the administration of the Mortgage Loans held by
you, as Custodian, pursuant to the above-captioned Pooling and Servicing
Agreement, we request the release, and hereby acknowledge receipt, of the
Mortgage File for the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one)
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By:
------------------------------------
(authorized signer of Bank of
America, National Association)
Issuer:
---------------------------------
Address:
--------------------------------
Date:
-----------------------------------
Custodian
Wachovia Bank, National Association
Please acknowledge the execution of the above request by your signature and date
below:
---------------------------------- ---------------
Signature Date
Documents returned to Custodian:
----------------------------------- ----------------
Custodian Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
September 29, 2005
[_______________] hereby certifies that it has established a
[__________] Account pursuant to Section [________] of the Pooling and Servicing
Agreement, dated September 29, 2005, among Banc of America Funding Corporation,
as Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and Wachovia Bank, National Association, as Trustee.
[_______________],
By: ___________________________________
Name: _________________________________
Title: ________________________________
EXHIBIT G-1
FORM OF TRANSFEROR'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
September 29, 2005
Xxxxx Fargo Bank, N.A.
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-5, Class ___, having an initial
aggregate Certificate Balance as of September 29, 2005 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 September 29, 2005, among Banc of America Funding
Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator
and Master Servicer, and Wachovia Bank, National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Securities
Administrator, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or
any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a transfer, pledge or other disposition of
any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Transferred Certificate, any interest
in a Transferred Certificate or any other similar security by means of
general advertising or in any other manner, or (e) taken any other
action with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security, which (in the
case of any of the acts described in clauses (a) through (e) hereof)
would constitute a distribution of the Transferred Certificates under
the Securities Act of 1933, as amended (the "1933 Act"), would render
the disposition of the Transferred Certificates a violation of Section
5 of the 1933 Act or any state securities laws, or would require
registration or qualification of the Transferred Certificates pursuant
to the 1933 Act or any state securities laws.
Very truly yours,
________________________________________
(Transferor)
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT G-2A
FORM 1 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
September 29, 2005
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-5, Class ___, having an initial aggregate
Certificate Balance as of September 29, 2005 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 September 29, 2005, among Banc of America
Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as Securities
Administrator and Master Servicer, and Wachovia Bank, National Association, as
Trustee. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Securities
Administrator, that:
1. The Transferee is a "qualified institutional buyer" (a
"Qualified Institutional Buyer") as that term is defined in Rule 144A
("Rule 144A") under the Securities Act of 1933, as amended (the "1933
Act"), and has completed one of the forms of certification to that
effect attached hereto as Annex 1 and Annex 2. The Transferee is aware
that the sale to it is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own
account or for the account of another Qualified Institutional Buyer,
and understands that such Transferred Certificates may be resold,
pledged or transferred only (a) to a person reasonably believed to be
a Qualified Institutional Buyer that purchases for its own account or
for the account of another Qualified Institutional Buyer to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the nature, performance and servicing of
the Mortgage Loans, (d) the Pooling and Servicing Agreement and the
Trust created pursuant thereto, (e) any credit enhancement mechanism
associated with the Transferred Certificate, and (f) all related
matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
________________________________________
(Transferor)
By:_____________________________________
Name:___________________________________
Title:__________________________________
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
________________________________________
(Nominee)
By:_____________________________________
Name:___________________________________
Title:__________________________________
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________]
(the "Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator with
respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
--------
(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the state or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in the case
of a U.S. bank, and not more than 18 months preceding such date of
sale in the case of a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a state or federal authority having supervision over any
such institutions, or is a foreign savings and loan association or
equivalent institute and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Transferred Certificates in
the case of a U.S. savings and loan association, and not more than 18
months preceding such date of sale in the case of a foreign savings
and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a state, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
________________________________________
Print Name of Transferee
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator, with respect
to the mortgage pass-through certificates (the "Transferred Certificates")
described in the Transferee certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other
than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the 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:___________________________________
EXHIBIT G-2B
FORM 2 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
September 29, 2005
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-5, Class ___, having an initial aggregate
Certificate Principal Balance as of September 29, 2005 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
September 29, 2005, among Banc of America Funding Corporation, as Depositor,
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master Servicer, and
Wachovia Bank, National Association, as Trustee. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Securities Administrator, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "1933 Act"), or
any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the 1933 Act or registered or qualified
under any applicable state securities laws, (b) neither the Depositor nor the
Securities Administrator is obligated so to register or qualify the Transferred
Certificates and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless such resale or transfer is exempt from the registration requirements of
the 1933 Act and any applicable state securities laws or is made in accordance
with the 1933 Act and laws, in which case (i) unless the transfer is made in
reliance on Rule 144A under the 1933 Act, the Securities Administrator or the
Depositor may require a written Opinion of Counsel (which may be in-house
counsel) acceptable to and in form and substance reasonably satisfactory to the
Securities Administrator and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from the 1933 Act and such laws or is being made pursuant to the 1933
Act and such laws, which Opinion of Counsel shall not be an expense of the
Securities Administrator or the Depositor and (ii) the Securities Administrator
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached to the Pooling and Servicing
Agreement as Exhibit G-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Pooling and
Servicing Agreement either as Exhibit G-2A or as Exhibit G-2B, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND
IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT
REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL
RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT
IN "PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR
SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE
TRANSFEREE DELIVERS TO THE SECURITIES ADMINISTRATOR EITHER (I) A
REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE SECURITIES
ADMINISTRATOR, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF,
ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH PURCHASE
OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS
SUCH TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE
IS NO BENEFIT PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL
ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF
OF SUCH BENEFIT PLAN AND ALL OTHER BENEFIT PLANS MAINTAINED BY THE SAME
EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60)
OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL
RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE
DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH
PTE 95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE
SATISFACTORY TO THE SECURITIES ADMINISTRATOR, TO THE EFFECT THAT THE
PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL
NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT
SUBJECT THE DEPOSITOR, THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR OR
THE TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE
POOLING AND SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS
REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE
UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH REPRESENTATION LETTER OR THE
OPINION OF COUNSEL REFERRED TO IN THE PRECEDING SENTENCE TO THE SECURITIES
ADMINISTRATOR. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY
ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS
WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (d) above) would constitute a distribution of the
Transferred Certificates under the 1933 Act, would render the disposition of the
Transferred Certificates a violation of Section 5 of the 1933 Act or any state
securities law or would require registration or qualification of the Transferred
Certificates pursuant thereto. The Transferee will not act, nor has it
authorized nor will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to the Transferred Certificates, any
interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
________________________________________
(Transferee)
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
________________________________________
(Nominee)
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-5, Class ___, having an initial aggregate
Certificate Principal Balance as of September 29, 2005 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
September 29, 2005, among Banc of America Funding Corporation, as Depositor,
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master Servicer, and
Wachovia Bank, National Association, as Trustee. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Securities Administrator, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan or
arrangement, including an individual retirement account, subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code"), or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) it is an insurance company and the source of funds used to purchase
the Transferred Certificates is an "insurance company general account" (as
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE
95-60"), 60 Fed. Reg. 35925 (July 12, 1995)), there is no Plan with respect to
which the amount of such general account's reserves and liabilities for the
contract(s) held by or on behalf of such Plan and all other Plans maintained by
the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization exceeds 10% of the total of all
reserves and liabilities of such general account (as such amounts are determined
under Section I(a) of PTE 95-60) at the date of acquisition and all Plans that
have an interest in such general account are Plans to which PTE 95-60 applies.
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
________________________________________
(Transferee)
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2005-5
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________, the
proposed transferee (the "Transferee") of the Class 1-A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated September 29, 2005, among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and Wachovia Bank, National Association, as Trustee. Capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in
the Agreement. The Transferee has authorized the undersigned to make this
affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the transfer, a Permitted Transferee. The Transferee is acquiring the
Residual Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person who is a Permitted Transferee and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become
due.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
___________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other U.S.
Person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
________________________________________
(Print Name of Transferee)
By:_____________________________________
Name:
Title:
Personally appeared before me the above-named ____________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of _____________________,
____
________________________________________
NOTARY PUBLIC
My Commission expires the ____ day of
______________, ____
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the anticipated
savings associated with holding such Residual Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Transferee.
OR
The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's two
fiscal years preceding the year of the transfer, the Transferee had
gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning of
U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of
$100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section
1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to acquire
the Residual Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment assumptions,
tax rates and other factors specific to the Transferee) that it has
determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of such
transferee's purchase of the Residual Certificate.
EXHIBIT J
LIST OF RECORDATION STATES
Florida
Maryland
EXHIBIT K
FORM OF INITIAL CERTIFICATION OF THE TRUSTEE
September 29, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Services - BAFC 2005-5
Re: The Pooling and Servicing Agreement, dated September 29, 2005 (the
"Pooling and Servicing Agreement"), among the Depositor, Xxxxx Fargo
Bank, N.A., as securities administrator and master servicer and
Wachovia Bank, National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, except as specified in any list
of exceptions attached hereto, it has received the original Mortgage Note
relating to each of the Mortgage Loans listed on the Mortgage Loan Schedule.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement in connection with this Initial Certification. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File or any of the Mortgage Loans identified in the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT L
FORM OF FINAL CERTIFICATION OF THE TRUSTEE
[__________ __, ____]
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: Corporate Trust Services - BAFC 2005-5
Re: The Pooling and Servicing Agreement, dated September 29, 2005 (the
"Pooling and Servicing Agreement"), among the Depositor, Xxxxx Fargo
Bank, N.A., as securities administrator and master servicer and
Wachovia Bank, National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule, except as may be specified in any list of
exceptions attached hereto, such Mortgage File contains all of the items
required to be delivered pursuant to Section 2.01(b) of the Pooling and
Servicing Agreement.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement in connection with this Final Certification. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File or any of the Mortgage Loans identified in the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT M
Form of Xxxxxxxx-Xxxxx Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2005-5
I, [________], a [_____________] of Xxxxx Fargo Bank, N.A. (the "Master
Servicer"), certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly Form 8-K's
containing Distribution Date Statements filed in respect of periods
included in the year covered by this annual report, of the Banc of America
Funding 2005-5 Trust (the "Trust");
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the Securities Administrator by the Master Servicer under
the Pooling and Servicing Agreement, dated September 29, 2005 (the
"Agreement"), among Banc of America Funding Corporation, as depositor, the
Master Servicer, Xxxxx Fargo Bank, N.A., as securities administrator and
Wachovia Bank, National Association, as trustee, for inclusion in these
reports is included in these reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer under the Agreement and based upon my knowledge and the annual
compliance review required under the Agreement, and except as disclosed in
the reports, the Master Servicer has fulfilled its obligations under the
Agreement; and
5. The reports disclose all significant deficiencies relating to the Master
Servicer's compliance with the minimum servicing standards based upon the
report provided by an independent public accountant after conducting a
review in compliance with the Uniform Single Attestation Program for
Mortgage Bankers or similar procedure as set forth in the Agreement that is
included in these reports.
XXXXX FARGO BANK, N.A.
By:_____________________________________
Name:
Title:
EXHIBIT N
FORM OF CERTIFICATION TO BE PROVIDED BY
THE SECURITIES ADMINISTRATOR TO THE MASTER SERVICER
Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2005-5
The Securities Administrator hereby certifies to the Master Servicer
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the calendar year
[___] and the Monthly Form 8-K's containing the Distribution Date Statements
filed in respect of periods included in the year covered by such annual report;
2. Based on my knowledge, the distribution information in the
Distribution Date Statements contained in the Monthly Form 8-K's included in the
year covered by the annual report on Form 10-K for the calendar year [___],
taken as a whole, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading as of
the last day of the period covered by that annual report; and
3. Based on my knowledge, the distribution or servicing information
required to be provided to the Securities Administrator by the Master Servicer
under the Pooling and Servicing Agreement, dated September 29, 2005, among Banc
of America Funding Corporation, as depositor, Xxxxx Fargo Bank, N.A., as master
servicer and securities administrator, and Wachovia Bank, National Association,
as trustee, for inclusion in these reports is included in these reports.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:_____________________________________
Name:
Title:
EXHIBIT O
Form of Yield Maintenance Agreement
[Available Upon Request]
EXHIBIT P
Principal Balance Schedules
SCHEDULED
PAYMENT DATE CERTIFICATES PAC GROUP
------------ -------------- ---------
Initial Balance............................. $ 7,668,000.00 $ 55,999,000.00
October 25, 2005.................... $ 7,668,000.00 $ 55,999,000.00
November 25, 2005................... $ 7,668,000.00 $ 55,999,000.00
December 25, 2005................... $ 7,668,000.00 $ 55,999,000.00
January 25, 2006.................... $ 7,668,000.00 $ 55,999,000.00
February 25, 2006................... $ 7,668,000.00 $ 55,999,000.00
March 25, 2006...................... $ 7,668,000.00 $ 55,999,000.00
April 25, 2006...................... $ 7,668,000.00 $ 55,999,000.00
May 25, 2006........................ $ 7,668,000.00 $ 55,999,000.00
June 25, 2006....................... $ 7,668,000.00 $ 55,999,000.00
July 25, 2006....................... $ 7,668,000.00 $ 55,999,000.00
August 25, 2006..................... $ 7,668,000.00 $ 55,999,000.00
September 25, 2006.................. $ 7,668,000.00 $ 55,610,335.69
October 25, 2006.................... $ 7,668,000.00 $ 55,203,263.42
November 25, 2006................... $ 7,668,000.00 $ 54,777,995.14
December 25, 2006................... $ 7,668,000.00 $ 54,334,754.52
January 25, 2007.................... $ 7,668,000.00 $ 53,873,776.73
February 25, 2007................... $ 7,668,000.00 $ 53,395,308.25
March 25, 2007...................... $ 7,668,000.00 $ 52,899,606.68
April 25, 2007...................... $ 7,668,000.00 $ 52,386,940.47
May 25, 2007........................ $ 7,668,000.00 $ 51,857,588.74
June 25, 2007....................... $ 7,668,000.00 $ 51,311,841.00
July 25, 2007....................... $ 7,668,000.00 $ 50,749,996.88
August 25, 2007..................... $ 7,668,000.00 $ 50,172,365.91
September 25, 2007.................. $ 7,668,000.00 $ 49,579,267.17
October 25, 2007.................... $ 7,668,000.00 $ 48,971,029.06
November 25, 2007................... $ 7,668,000.00 $ 48,347,988.97
December 25, 2007................... $ 7,668,000.00 $ 47,711,915.68
January 25, 2008.................... $ 7,668,000.00 $ 47,080,175.38
February 25, 2008................... $ 7,668,000.00 $ 46,452,739.92
March 25, 2008...................... $ 7,668,000.00 $ 45,829,581.34
April 25, 2008...................... $ 7,668,000.00 $ 45,210,671.88
May 25, 2008........................ $ 7,668,000.00 $ 44,595,983.96
June 25, 2008....................... $ 7,668,000.00 $ 43,985,490.15
July 25, 2008....................... $ 7,668,000.00 $ 43,379,163.23
August 25, 2008..................... $ 7,668,000.00 $ 42,776,976.15
September 25, 2008.................. $ 7,668,000.00 $ 42,178,902.03
October 25, 2008.................... $ 7,668,000.00 $ 41,584,914.17
November 25, 2008................... $ 7,668,000.00 $ 40,994,986.05
December 25, 2008................... $ 7,668,000.00 $ 40,409,091.31
January 25, 2009.................... $ 7,668,000.00 $ 39,827,203.78
February 25, 2009................... $ 7,668,000.00 $ 39,249,297.44
March 25, 2009...................... $ 7,668,000.00 $ 38,675,346.47
April 25, 2009...................... $ 7,668,000.00 $ 38,105,325.17
May 25, 2009........................ $ 7,668,000.00 $ 37,539,208.07
June 25, 2009....................... $ 7,668,000.00 $ 36,976,969.81
July 25, 2009....................... $ 7,668,000.00 $ 36,418,585.24
August 25, 2009..................... $ 7,668,000.00 $ 35,864,029.33
September 25, 2009.................. $ 7,668,000.00 $ 35,313,277.26
October 25, 2009............................ $ 7,668,000.00 $ 34,766,304.35
November 25, 2009................... $ 7,668,000.00 $ 34,223,086.07
December 25, 2009................... $ 7,668,000.00 $ 33,683,598.07
January 25, 2010.................... $ 7,668,000.00 $ 33,147,816.15
February 25, 2010................... $ 7,668,000.00 $ 32,615,716.27
March 25, 2010...................... $ 7,668,000.00 $ 32,087,274.54
April 25, 2010...................... $ 7,668,000.00 $ 31,562,467.25
May 25, 2010........................ $ 7,668,000.00 $ 31,041,270.82
June 25, 2010....................... $ 7,668,000.00 $ 30,523,661.83
July 25, 2010....................... $ 7,668,000.00 $ 30,009,617.02
August 25, 2010..................... $ 7,668,000.00 $ 29,499,113.29
September 25, 2010.................. $ 7,668,000.00 $ 28,992,127.66
October 25, 2010.................... $ 7,668,000.00 $ 28,494,414.57
November 25, 2010................... $ 7,668,000.00 $ 28,000,145.23
December 25, 2010................... $ 7,668,000.00 $ 27,509,297.08
January 25, 2011.................... $ 7,668,000.00 $ 27,021,847.70
February 25, 2011................... $ 7,668,000.00 $ 26,537,774.80
March 25, 2011...................... $ 7,668,000.00 $ 26,057,056.27
April 25, 2011...................... $ 7,668,000.00 $ 25,579,670.11
May 25, 2011........................ $ 7,668,000.00 $ 25,105,594.50
June 25, 2011....................... $ 7,668,000.00 $ 24,634,807.72
July 25, 2011....................... $ 7,668,000.00 $ 24,167,288.22
August 25, 2011..................... $ 7,668,000.00 $ 23,703,014.58
September 25, 2011.................. $ 7,668,000.00 $ 23,241,965.53
October 25, 2011.................... $ 7,668,000.00 $ 22,785,965.78
November 25, 2011................... $ 7,668,000.00 $ 22,333,134.01
December 25, 2011................... $ 7,668,000.00 $ 21,883,449.40
January 25, 2012.................... $ 7,668,000.00 $ 21,436,891.23
February 25, 2012................... $ 7,668,000.00 $ 20,993,438.95
March 25, 2012...................... $ 7,668,000.00 $ 20,553,072.11
April 25, 2012...................... $ 7,668,000.00 $ 20,115,770.42
May 25, 2012........................ $ 7,668,000.00 $ 19,681,513.70
June 25, 2012....................... $ 7,668,000.00 $ 19,250,281.92
July 25, 2012....................... $ 7,668,000.00 $ 18,822,055.18
August 25, 2012..................... $ 7,668,000.00 $ 18,396,813.69
September 25, 2012.................. $ 7,664,005.98 $ 17,978,531.83
October 25, 2012.................... $ 7,648,098.44 $ 17,578,615.25
November 25, 2012................... $ 7,626,555.95 $ 17,187,225.13
December 25, 2012................... $ 7,599,535.89 $ 16,804,184.95
January 25, 2013.................... $ 7,567,192.24 $ 16,429,321.75
February 25, 2013................... $ 7,529,675.56 $ 16,062,466.07
March 25, 2013...................... $ 7,487,133.08 $ 15,703,451.94
April 25, 2013...................... $ 7,439,708.82 $ 15,352,116.72
May 25, 2013........................ $ 7,387,543.58 $ 15,008,301.09
June 25, 2013....................... $ 7,333,446.09 $ 14,671,848.97
July 25, 2013....................... $ 7,278,558.76 $ 14,342,607.46
August 25, 2013..................... $ 7,222,929.57 $ 14,020,426.75
September 25, 2013.................. $ 7,166,604.95 $ 13,705,160.12
October 25, 2013.................... $ 7,108,214.61 $ 13,404,681.09
November 25, 2013................... $ 7,049,303.36 $ 13,110,582.57
December 25, 2013................... $ 6,989,910.77 $ 12,822,732.13
January 25, 2014.................... $ 6,930,075.14 $ 12,541,000.00
February 25, 2014................... $ 6,869,833.52 $ 12,265,259.12
March 25, 2014...................... $ 6,809,221.80 $ 11,995,384.99
April 25, 2014...................... $ 6,748,274.67 $ 11,731,255.66
May 25, 2014........................ $ 6,687,025.72 $ 11,472,751.67
June 25, 2014....................... $ 6,625,507.40 $ 11,219,756.02
July 25, 2014....................... $ 6,563,751.11 $ 10,972,154.07
August 25, 2014..................... $ 6,501,787.20 $ 10,729,833.56
September 25, 2014.................. $ 6,439,644.97 $ 10,492,684.51
October 25, 2014.................... $ 6,376,449.24 $ 10,267,082.56
November 25, 2014................... $ 6,313,211.73 $ 10,046,185.03
December 25, 2014................... $ 6,249,955.45 $ 9,829,895.76
January 25, 2015.................... $ 6,186,702.59 $ 9,618,120.54
February 25, 2015................... $ 6,123,474.58 $ 9,410,767.03
March 25, 2015...................... $ 6,060,292.03 $ 9,207,744.79
April 25, 2015...................... $ 5,997,174.86 $ 9,008,965.17
May 25, 2015........................ $ 5,934,142.22 $ 8,814,341.34
June 25, 2015....................... $ 5,871,212.56 $ 8,623,788.20
July 25, 2015....................... $ 5,808,403.67 $ 8,437,222.37
August 25, 2015..................... $ 5,745,732.61 $ 8,254,562.17
September 25, 2015.................. $ 5,683,215.85 $ 8,075,727.55
October 25, 2015.................... $ 5,620,869.19 $ 7,900,640.09
November 25, 2015................... $ 5,558,707.82 $ 7,729,222.95
December 25, 2015................... $ 5,496,746.32 $ 7,561,400.85
January 25, 2016.................... $ 5,434,998.71 $ 7,397,100.01
February 25, 2016................... $ 5,373,478.42 $ 7,236,248.17
March 25, 2016...................... $ 5,312,198.34 $ 7,078,774.50
April 25, 2016...................... $ 5,251,170.81 $ 6,924,609.64
May 25, 2016........................ $ 5,190,407.67 $ 6,773,685.60
June 25, 2016....................... $ 5,129,920.23 $ 6,625,935.78
July 25, 2016....................... $ 5,069,719.31 $ 6,481,294.94
August 25, 2016..................... $ 5,009,815.27 $ 6,339,699.13
September 25, 2016.................. $ 4,950,217.99 $ 6,201,085.72
October 25, 2016.................... $ 4,890,936.90 $ 6,065,393.34
November 25, 2016................... $ 4,831,980.99 $ 5,932,561.86
December 25, 2016................... $ 4,773,358.82 $ 5,802,532.38
January 25, 2017.................... $ 4,715,078.55 $ 5,675,247.18
February 25, 2017................... $ 4,657,147.91 $ 5,550,649.72
March 25, 2017...................... $ 4,599,574.28 $ 5,428,684.59
April 25, 2017...................... $ 4,542,364.63 $ 5,309,297.53
May 25, 2017........................ $ 4,485,525.55 $ 5,192,435.37
June 25, 2017....................... $ 4,429,063.32 $ 5,078,046.00
July 25, 2017....................... $ 4,372,983.85 $ 4,966,078.38
August 25, 2017..................... $ 4,317,292.68 $ 4,856,482.53
September 25, 2017.................. $ 4,261,995.09 $ 4,749,209.44
October 25, 2017.................... $ 4,207,095.97 $ 4,644,211.14
November 25, 2017................... $ 4,152,599.97 $ 4,541,440.60
December 25, 2017................... $ 4,098,511.41 $ 4,440,851.76
January 25, 2018.................... $ 4,044,834.31 $ 4,342,399.50
February 25, 2018................... $ 3,991,572.44 $ 4,246,039.61
March 25, 2018...................... $ 3,938,729.29 $ 4,151,728.78
April 25, 2018...................... $ 3,886,308.07 $ 4,059,424.58
May 25, 2018........................ $ 3,834,311.77 $ 3,969,085.44
June 25, 2018....................... $ 3,782,743.09 $ 3,880,670.65
July 25, 2018....................... $ 3,731,604.52 $ 3,794,140.33
August 25, 2018..................... $ 3,680,898.33 $ 3,709,455.37
September 25, 2018.................. $ 3,630,626.53 $ 3,626,577.52
October 25, 2018.................... $ 3,580,790.95 $ 3,545,469.26
November 25, 2018................... $ 3,531,393.20 $ 3,466,093.85
December 25, 2018................... $ 3,482,434.66 $ 3,388,415.31
January 25, 2019.................... $ 3,433,916.58 $ 3,312,398.37
February 25, 2019................... $ 3,385,839.94 $ 3,238,008.51
March 25, 2019...................... $ 3,338,205.60 $ 3,165,211.88
April 25, 2019...................... $ 3,291,014.22 $ 3,093,975.35
May 25, 2019........................ $ 3,244,266.28 $ 3,024,266.45
June 25, 2019....................... $ 3,197,962.11 $ 2,956,053.37
July 25, 2019....................... $ 3,152,101.89 $ 2,889,304.96
August 25, 2019..................... $ 3,106,685.62 $ 2,823,990.71
September 25, 2019.................. $ 3,061,713.18 $ 2,760,080.71
October 25, 2019.................... $ 3,017,184.28 $ 2,697,545.69
November 25, 2019................... $ 2,973,098.51 $ 2,636,356.96
December 25, 2019................... $ 2,929,455.33 $ 2,576,486.42
January 25, 2020.................... $ 2,886,254.06 $ 2,517,906.55
February 25, 2020................... $ 2,843,493.91 $ 2,460,590.38
March 25, 2020...................... $ 2,801,173.96 $ 2,404,511.51
April 25, 2020...................... $ 2,759,293.20 $ 2,349,644.06
May 25, 2020........................ $ 2,717,850.46 $ 2,295,962.71
June 25, 2020....................... $ 2,676,844.52 $ 2,243,442.63
July 25, 2020....................... $ 2,636,274.03 $ 2,192,059.50
August 25, 2020..................... $ 2,596,137.54 $ 2,141,789.53
September 25, 2020.................. $ 2,556,433.54 $ 2,092,609.37
October 25, 2020.................... $ 2,517,160.38 $ 2,044,496.19
November 25, 2020................... $ 2,478,316.36 $ 1,997,427.60
December 25, 2020................... $ 2,439,899.69 $ 1,951,381.69
January 25, 2021.................... $ 2,401,908.50 $ 1,906,336.99
February 25, 2021................... $ 2,364,340.84 $ 1,862,272.47
March 25, 2021...................... $ 2,327,194.69 $ 1,819,167.54
April 25, 2021...................... $ 2,290,467.97 $ 1,777,002.02
May 25, 2021........................ $ 2,254,158.53 $ 1,735,756.15
June 25, 2021....................... $ 2,218,264.15 $ 1,695,410.58
July 25, 2021....................... $ 2,182,782.56 $ 1,655,946.36
August 25, 2021..................... $ 2,147,711.42 $ 1,617,344.92
September 25, 2021.................. $ 2,113,048.33 $ 1,579,588.09
October 25, 2021.................... $ 2,078,790.89 $ 1,542,658.04
November 25, 2021................... $ 2,044,936.59 $ 1,506,537.35
December 25, 2021................... $ 2,011,482.90 $ 1,471,208.92
January 25, 2022.................... $ 1,978,427.25 $ 1,436,656.03
February 25, 2022................... $ 1,945,767.01 $ 1,402,862.30
March 25, 2022...................... $ 1,913,499.53 $ 1,369,811.67
April 25, 2022...................... $ 1,881,622.12 $ 1,337,488.43
May 25, 2022........................ $ 1,850,132.05 $ 1,305,877.19
June 25, 2022....................... $ 1,819,026.55 $ 1,274,962.87
July 25, 2022....................... $ 1,788,302.83 $ 1,244,730.71
August 25, 2022..................... $ 1,757,958.07 $ 1,215,166.26
September 25, 2022.................. $ 1,727,989.43 $ 1,186,255.34
October 25, 2022.................... $ 1,698,394.03 $ 1,157,984.10
November 25, 2022................... $ 1,669,168.99 $ 1,130,338.95
December 25, 2022................... $ 1,640,311.37 $ 1,103,306.60
January 25, 2023.................... $ 1,611,818.24 $ 1,076,874.02
February 25, 2023................... $ 1,583,686.65 $ 1,051,028.46
March 25, 2023...................... $ 1,555,913.64 $ 1,025,757.42
April 25, 2023...................... $ 1,528,496.22 $ 1,001,048.67
May 25, 2023........................ $ 1,501,431.37 $ 976,890.25
June 25, 2023....................... $ 1,474,716.10 $ 953,270.41
July 25, 2023....................... $ 1,448,347.39 $ 930,177.67
August 25, 2023..................... $ 1,422,322.20 $ 907,600.78
September 25, 2023.................. $ 1,396,637.50 $ 885,528.72
October 25, 2023.................... $ 1,371,290.24 $ 863,950.72
November 25, 2023................... $ 1,346,277.37 $ 842,856.21
December 25, 2023................... $ 1,321,595.85 $ 822,234.84
January 25, 2024.................... $ 1,297,242.60 $ 802,076.49
February 25, 2024................... $ 1,273,214.58 $ 782,371.24
March 25, 2024...................... $ 1,249,508.72 $ 763,109.38
April 25, 2024...................... $ 1,226,121.97 $ 744,281.40
May 25, 2024........................ $ 1,203,051.26 $ 725,877.99
June 25, 2024............................... $ 1,180,293.55 $ 707,890.03
July 25, 2024....................... $ 1,157,845.77 $ 690,308.60
August 25, 2024..................... $ 1,135,704.87 $ 673,124.96
September 25, 2024.................. $ 1,113,867.82 $ 656,330.54
October 25, 2024.................... $ 1,092,331.58 $ 639,916.97
November 25, 2024................... $ 1,071,093.11 $ 623,876.04
December 25, 2024................... $ 1,050,149.37 $ 608,199.73
January 25, 2025.................... $ 1,029,497.37 $ 592,880.15
February 25, 2025................... $ 1,009,134.10 $ 577,909.61
March 25, 2025...................... $ 989,056.54 $ 563,280.58
April 25, 2025...................... $ 969,261.71 $ 548,985.66
May 25, 2025........................ $ 949,746.64 $ 535,017.63
June 25, 2025....................... $ 930,508.34 $ 521,369.42
July 25, 2025....................... $ 911,543.87 $ 508,034.09
August 25, 2025..................... $ 892,850.29 $ 495,004.86
September 25, 2025.................. $ 874,424.66 $ 482,275.09
October 25, 2025.................... $ 856,264.07 $ 469,838.27
November 25, 2025................... $ 838,365.60 $ 457,688.05
December 25, 2025................... $ 820,726.38 $ 445,818.19
January 25, 2026.................... $ 803,343.52 $ 434,222.58
February 25, 2026................... $ 786,214.17 $ 422,895.26
March 25, 2026...................... $ 769,335.47 $ 411,830.38
April 25, 2026...................... $ 752,704.60 $ 401,022.22
May 25, 2026........................ $ 736,318.76 $ 390,465.16
June 25, 2026....................... $ 720,175.14 $ 380,153.73
July 25, 2026....................... $ 704,270.97 $ 370,082.55
August 25, 2026..................... $ 688,603.47 $ 360,246.37
September 25, 2026.................. $ 673,169.92 $ 350,640.04
October 25, 2026.................... $ 657,967.58 $ 341,258.52
November 25, 2026................... $ 642,993.73 $ 332,096.89
December 25, 2026................... $ 628,245.71 $ 323,150.31
January 25, 2027.................... $ 613,720.82 $ 314,414.06
February 25, 2027................... $ 599,416.43 $ 305,883.51
March 25, 2027...................... $ 585,329.89 $ 297,554.14
April 25, 2027...................... $ 571,458.59 $ 289,421.51
May 25, 2027........................ $ 557,799.94 $ 281,481.29
June 25, 2027....................... $ 544,351.35 $ 273,729.24
July 25, 2027....................... $ 531,110.29 $ 266,161.18
August 25, 2027..................... $ 518,074.19 $ 258,773.07
September 25, 2027.................. $ 505,240.56 $ 251,560.91
October 25, 2027.................... $ 492,606.91 $ 244,520.80
November 25, 2027................... $ 480,170.73 $ 237,648.95
December 25, 2027................... $ 467,929.59 $ 230,941.60
January 25, 2028.................... $ 455,881.05 $ 224,395.11
February 25, 2028................... $ 444,022.69 $ 218,005.90
March 25, 2028...................... $ 432,352.12 $ 211,770.48
April 25, 2028...................... $ 420,866.96 $ 205,685.41
May 25, 2028........................ $ 409,564.88 $ 199,747.34
June 25, 2028....................... $ 398,443.51 $ 193,953.00
July 25, 2028....................... $ 387,500.57 $ 188,299.17
August 25, 2028............................. $ 376,733.75 $ 182,782.71
September 25, 2028.................. $ 366,140.79 $ 177,400.54
October 25, 2028.................... $ 355,719.44 $ 172,149.66
November 25, 2028................... $ 345,467.45 $ 167,027.13
December 25, 2028................... $ 335,382.65 $ 162,030.05
January 25, 2029.................... $ 325,462.82 $ 157,155.61
February 25, 2029................... $ 315,705.82 $ 152,401.04
March 25, 2029...................... $ 306,109.49 $ 147,763.66
April 25, 2029...................... $ 296,671.70 $ 143,240.81
May 25, 2029........................ $ 287,390.34 $ 138,829.92
June 25, 2029....................... $ 278,263.36 $ 134,528.44
July 25, 2029....................... $ 269,288.67 $ 130,333.90
August 25, 2029..................... $ 260,464.23 $ 126,243.89
September 25, 2029.................. $ 251,788.01 $ 122,256.03
October 25, 2029.................... $ 243,258.03 $ 118,368.00
November 25, 2029................... $ 234,872.30 $ 114,577.53
December 25, 2029................... $ 226,628.86 $ 110,882.40
January 25, 2030.................... $ 218,525.76 $ 107,280.45
February 25, 2030................... $ 210,561.09 $ 103,769.53
March 25, 2030...................... $ 202,732.95 $ 100,347.58
April 25, 2030...................... $ 195,039.46 $ 97,012.56
May 25, 2030........................ $ 187,478.75 $ 93,762.48
June 25, 2030....................... $ 180,048.98 $ 90,595.39
July 25, 2030....................... $ 172,748.34 $ 87,509.39
August 25, 2030..................... $ 165,575.04 $ 84,502.60
September 25, 2030.................. $ 158,527.27 $ 81,573.22
October 25, 2030.................... $ 151,603.27 $ 78,719.46
November 25, 2030................... $ 144,801.33 $ 75,939.56
December 25, 2030................... $ 138,119.69 $ 73,231.83
January 25, 2031.................... $ 131,556.67 $ 70,594.59
February 25, 2031................... $ 125,110.57 $ 68,026.21
March 25, 2031...................... $ 118,779.74 $ 65,525.09
April 25, 2031...................... $ 112,562.52 $ 63,089.67
May 25, 2031........................ $ 106,457.28 $ 60,718.42
June 25, 2031....................... $ 100,462.41 $ 58,409.85
July 25, 2031....................... $ 94,576.33 $ 56,162.49
August 25, 2031..................... $ 88,797.45 $ 53,974.92
September 25, 2031.................. $ 83,124.24 $ 51,845.72
October 25, 2031.................... $ 77,555.12 $ 49,773.55
November 25, 2031................... $ 72,088.62 $ 47,757.04
December 25, 2031................... $ 66,723.21 $ 45,794.91
January 25, 2032.................... $ 61,457.41 $ 43,885.86
February 25, 2032................... $ 56,289.76 $ 42,028.64
March 25, 2032...................... $ 51,218.80 $ 40,222.04
April 25, 2032...................... $ 46,243.12 $ 38,464.84
May 25, 2032........................ $ 41,361.28 $ 36,755.89
June 25, 2032....................... $ 36,571.90 $ 35,094.04
July 25, 2032....................... $ 31,873.60 $ 33,478.16
August 25, 2032..................... $ 27,265.00 $ 31,907.16
September 25, 2032.................. $ 22,744.78 $ 30,379.97
October 25, 2032.................... $ 18,311.58 $ 28,895.55
November 25, 2032................... $ 13,964.11 $ 27,452.86
December 25, 2032................... $ 9,701.05 $ 26,050.92
January 25, 2033.................... $ 5,521.14 $ 24,688.73
February 25, 2033................... $ 1,423.11 $ 23,365.34
March 25, 2033...................... - $ 22,079.83
April 25, 2033...................... - $ 20,831.26
May 25, 2033........................ - $ 19,618.75
June 25, 2033....................... - $ 18,441.42
July 25, 2033....................... - $ 17,298.42
August 25, 2033..................... - $ 16,188.91
September 25, 2033.................. - $ 15,112.08
October 25, 2033.................... - $ 14,067.12
November 25, 2033................... - $ 13,053.25
December 25, 2033................... - $ 12,069.72
January 25, 2034.................... - $ 11,115.78
February 25, 2034................... - $ 10,190.69
March 25, 2034...................... - $ 9,293.74
April 25, 2034...................... - $ 8,424.24
May 25, 2034........................ - $ 7,581.51
June 25, 2034....................... - $ 6,764.88
July 25, 2034....................... - $ 5,973.69
August 25, 2034..................... - $ 5,207.32
September 25, 2034.................. - $ 4,465.15
October 25, 2034.................... - $ 3,746.56
November 25, 2034................... - $ 3,050.96
December 25, 2034................... - $ 2,377.77
January 25, 2035.................... - $ 1,726.43
February 25, 2035................... - $ 1,096.39
March 25, 2035...................... - $ 487.09
April 25, 2035...................... - -
