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 August 30, 2005
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Mortgage Pass-Through Certificates
Series 2005-4
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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 and Certificate Account...................
Section 3.10 Access to Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted Withdrawals from the Certificate Account 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............
Section 3.23 Maintenance of the Rounding Accounts; Collections
Thereunder..................................................
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 Master Servicer, Securities Administrator and Trustee
Indemnification.............................................
Section 5.10 Principal Distributions on the Special Retail Certificates...
Section 5.11 Reserve Fund.................................................
Section 5.12 Policy Matters...............................................
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...........................................
Section 11.10 Third Party Beneficiary......................................
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-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 2-A-3 Form of Face of Class 2-A-3 Certificate
Exhibit 2-A-4 Form of Face of Class 2-A-4 Certificate
Exhibit 30-IO Form of Face of Class 30-IO Certificate
Exhibit 30-PO Form of Face of Class 30-PO Certificate
Exhibit A Form of Face of Class A Certificate
Exhibit A-2 Form of Face of Class A-2 Certificate
Exhibit B-1 Form of Face of Class B-1 Certificate
Exhibit B-2 Form of Face of Class B-2 Certificate
Exhibit B-3 Form of Face of Class B-3 Certificate
Exhibit B-4 Form of Face of Class B-4 Certificate
Exhibit B-5 Form of Face of Class B-5 Certificate
Exhibit B-6 Form of Face of Class B-6 Certificate
Exhibit C Form of Reverse of all Certificates...................
Exhibit D-1 Loan Group 1 Mortgage Loan Schedule...................
Exhibit D-2 Loan Group 2 Mortgage Loan Schedule...................
Exhibit E Request for Release of Documents......................
Exhibit F Form of Certification of Establishment of Account.....
Exhibit G-1 Form of Transferor's Certificate......................
Exhibit G-2A Form 1 of Transferee's Certificate....................
Exhibit G-2B Form 2 of Transferee's Certificate....................
Exhibit H Form of Transferee Representation Letter for ERISA
Restricted Certificates...............................
Exhibit I Form of Affidavit Regarding Transfer of Residual
Certificates..........................................
Exhibit J 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 Policy........................................
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated August 30, 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 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 "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 Interest or Lower-Tier Uncertificated Corresponding Upper-Tier Class,
Certificate Designation REMIC Rate Balance Classes, or Component
----------------------- -------------- -------------- -------------------------------
LT1A1 5.500% $100,346,000.00 Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4
LT1A1A 5.410% $5,450,000.00 Class A-A Component and Class A-2-A
Component
LT1AIO (1) (2) Class 1-IO Component
LT1APO (3) (4) Class 1-PO Component
LT2A1 5.500% $172,643,000.00 Class 2-A-1, Class 2-A-2, Class 2-A-3,
Class 2-A-4
LT2A1A 5.410% $9,372,000.00 Class A-B Component and Class A-2-B
Component
LT2AIO (5) (6) Class 2-IO Component
LT2APO (7) (8) Class 2-PO Component
LTUR 5.500% $100 Class 1-A-R
LTB 5.500% $11,091,786.00 Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6
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(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 $220,244.
(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 $1,121,827.
[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:
Initial Class Integral
Certificate Multiples
Balance or Pass-Through Minimum in Excess
Classes Notional Amount Rate Denomination of Minimum
------- --------------- ---- ------------ ----------
Class 1-A-1 $10,509,000.00 5.500% $1,000 $1
Class 1-A-2 $79,986,000.00 5.500% $1,000 $1
Class 1-A-3 $9,351,000.00 5.500% $1,000 $1
Class 1-A-4 $500,000.00 5.500% $1,000 $1
Class 1-A-R $100.00 5.500% $100 N/A
Class 2-A-1 $18,017,000.00 5.500% $1,000 $1
Class 2-A-2 $17,361,000.00 5.500% $1,000 $1
Class 2-A-3 $136,265,000.00 5.500% $1,000 $1
Class 2-A-4 $1,000,000.00 5.500% $1,000 $1
Class A $14,822,000 (1) $1,000 $1,000
Class A-2 $431,185 (2) $1,000,000 $1
Class 30-IO $7,647,972 (3) $1,000,000 $1
Class 30-PO $1,342,071 (4) $25,000 $1
Class B-1 $6,006,000.00 5.500% $25,000 $1
Class B-2 $2,102,000.00 5.500% $25,000 $1
Class B-3 $900,000.00 5.500% $25,000 $1
Class B-4 $901,000.00 5.500% $25,000 $1
Class B-5 $751,000.00 5.500% $25,000 $1
Class B-6 $450,786.00 5.500% $25,000 $1
Initial Component Integral
Balance or Multiples
Component Pass-Through Minimum In Excess
Components Notional Amount Rate Denomination Of Minimum
---------- --------------- ------------- ------------ ----------
Class A-A 5,450,000 5.250% N/A N/A
Class A-B 9,372,000 5.250% N/A N/A
Class A-2-A 158,545 5.500% N/A N/A
Class A-2-B 272,640 5.500% N/A N/A
Class 1-IO $3,364,482 5.500% N/A N/A
Class 2-IO $4,283,490 5.500% N/A N/A
Class 1-PO $220,244 (5) N/A N/A
Class 2-PO $1,121,827 (5) N/A N/A
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(1) The Class A Certificates will be deemed for purposes of distributions of
interest and principal to consist of two Components as described in the
table: the Class A-A Component and the Class A-B Component.
(2) The Class A-2 Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of two
Components as described in the table: the Class A-2-A Component and the
Class A-2-B Component.
(3) The Class 30-IO Certificates are Interest Only Certificates and will be
deemed for purposes of distributions of interest to consist of two
Components described in the table: the Class 1-IO Component and the Class
2-IO Component.
(4) The Class 30-PO Certificates are Principal-Only Certificates and will be
deemed for purposes of distributions of principal to consist of two
Components described in the table: the Class 1-PO Component and the Class
2-PO Component.
(5) The Class 1-PO Component and Class 2-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.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class (other than the Class A, Class A-2 and 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 A Certificates, the sum of the
Accrued Component Interest for each Class A Component. For any Distribution Date
and the Class A-2 Certificates, the sum of the Accrued Component Interest for
each Class A-2 Component. 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
Component Balance or Notional Amount, as the case may be.
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.
Administrative Fee Rate: With respect to each Mortgage Loan, the sum
of (i) the Servicing Fee Rate and (ii) the Securities Administrator Fee Rate.
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.
Assured Guaranty: Assured Guaranty Corp., a Maryland insurance
corporation, or any successor thereto.
Assured Guaranty Contact Person: The officer designated by the
Master Servicer to provide information to Assured Guaranty pursuant to Section
5.12(g). The initial Assured Guaranty Contact Person is appointed in Section
5.12.
Assured Guaranty Default: The existence and continuance of any of
the following:
(i) Assured Guaranty fails to make a payment required under the
Policy in accordance with its terms;
(ii) Assured Guaranty (A) files any petition or commences any case
or proceeding under any provision or similar federal or state law relating to
insolvency, bankruptcy, rehabilitation, liquidation or reorganization, (B) makes
a general assignment for the benefit of its creditors, or (C) has an order for
relief entered against it under the United States Bankruptcy Code or any similar
federal or state law relating to insolvency, bankruptcy, rehabilitation,
liquidation or reorganization which is final and nonappealable; or
(iii) a court of competent jurisdiction, the Maryland Insurance
Administration or other competent regulatory authority enters a final and
nonappealable order, judgment or decree (1) appointing a custodian, trustee,
agent or receiver for Assured Guaranty or for all or any material portion of its
property or (2) authorizing the taking of possession by a custodian, trustee,
agent or receiver of Assured Guaranty (or the taking of possession of all or any
material portion of the property of Assured Guaranty).
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.
BANA Servicing Agreement: The Servicing Agreement, dated August 30,
2005, by and between BAFC, as depositor, and BANA, as servicer.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii)
with respect to any date which relates to an obligation of Assured Guaranty, a
day on which Assured Guaranty is closed or (iii) a day on which banking
institutions in the State of North Carolina, the State of New York, the State of
Maryland, 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 2005-4 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 2005-4." The Certificate Account shall be deemed to consist
of three sub-accounts; one for each Loan Group and a third 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 A-2 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 A-2 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 August
30, 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-R, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class
2-A-4, Class A, Class A-2, 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-4 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 1-A-4 Certificates with respect to such
Distribution Date prior to any reduction for the Class 1-A-4 Loss Allocation
Amount and (b) the Class 1-A-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-4 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 2-A-4 Certificates with respect to such
Distribution Date prior to any reduction for the Class 2-A-4 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 30-IO Notional Amount: With respect to any Distribution Date,
an amount equal to the sum of the Class 1-IO Notional Amount and Class 2-IO
Notional Amount for such Distribution Date.
Class A Component: Either of the Class A-A Component or the Class
A-B Component.
Class A Interest Loss Amount: As to any Distribution Date, the
excess, if any, of (a) the sum of the Component Interest Distribution Amounts
for each Class A Component determined without regard to clause (ii) of the
definition thereof and without regard to the reductions pursuant to Section
5.02(c) hereof, net of any Prepayment Interest Shortfalls and net of any Relief
Act Reductions allocated to the Class A Components over (b) the amount of the
Pool Distribution Amounts available to be distributed in respect of the Class A
Components on such Distribution Date pursuant to clause (ii) of Section 5.02(a)
applied to the amounts payable pursuant to clause (i) of the definition of
"Interest Distribution Amount" plus any amounts available to be distributed
pursuant to Section 5.02(b)(iii) to the Class A Components on such Distribution
Date.
Class A Principal Loss Amount: As to any Distribution Date, any
amount allocated to the Class A Components which reduces the Component Balance
of the Class A Components after the Senior Credit Support Depletion Date with
respect to such Distribution Date pursuant to clause (ii) of the definition of
"Component Balance."
Class A-2-A Notional Amount: As to any Distribution Date and the
Class A-2-A Component, an amount equal to 2.90909090% of the Component Balance
of the Class A-A Component.
Class A-2-B Notional Amount: As to any Distribution Date and the
Class A-2-B Component, an amount equal to 2.90909090% of the Component Balance
of the Class A-B Component.
Class A-2 Component: Either of the Class A-2-A Component or the
Class A-2-B Component.
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 A, Class A-2, 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 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-4 Certificates and the Class
2-A-4 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-4 Certificates and the Class 2-A-4 Certificates, any increases allocated
thereto pursuant to Section 5.03(e). The Class Certificate Balance of the Class
A Certificates as of any date of determination shall equal the sum of the
Component Balances of the Class A Components. 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 A-2 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 on such Distribution Date pursuant
to clause (i) of the definition of "Interest Distribution Amount."
Class IO Component: Either of the Class 1-IO Component or the Class
2-IO Component.
Class PO Component: Either of the Class 1-PO Component or the Class
2-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)(iv) 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 and (ii) in the case of Group 2,
the Class PO Deferred Amount for the Class 2-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 on prior Distribution Dates exceeds the amount of
interest actually distributed on such Class on such prior Distribution Dates
pursuant to clause (ii) of the definition of "Interest Distribution Amount."
Closing Date: August 30, 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 A Components, Class A-2 Components,
Class IO Components or Class PO Components.
Component Balance: With respect to any Class A or 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 A-2 and Class IO Components are
interest-only Components and have no Component Balance.
Component Interest Distribution Amount: For any Distribution Date
and any Class A Component, Class A-2 Component or 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 A Component, Class A-2 Component or 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 A-2-A Notional Amount, Class A-2-B Notional Amount, Class 1-IO Notional
Amount and Class 2-IO Notional Amount.
Component Unpaid Interest Shortfall: As to any Distribution Date and
any Class A Component, Class A-2 Component or 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 2005-4, 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 2005-4, and for certificate transfer purposes is
located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Corporate Trust Services - BAFC 2005-4, or at such other address as
the Securities Administrator may designate from time to time by notice to the
Certificateholders, Assured Guaranty, the Depositor, the Trustee and the Master
Servicer.
Corresponding Upper-Tier Class, Classes, Component or Components: As
defined in the Preliminary Statement.
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: August 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 $110,089,833.74 for Loan Group 1 and $190,174,124.72 for
Loan Group 2.
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.
Deceased Holder: A Certificate Owner of a Special Retail Certificate
who was living at the time such interest was acquired and whose executor or
other authorized representative causes to be furnished to the Securities
Administrator and the Depository Participant a certified copy of the death
certificate and any additional evidence of death satisfactory to the Securities
Administrator and the Depository Participant and any tax waivers requested by
the Securities Administrator and the Depository Participant.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Sections 2.02 or 2.04.
Deficiency Amount: With respect to the Class A Certificates, the sum
of (i) for each Distribution Date, the sum of the Class A Interest Loss Amount
for such Distribution Date and the Class A Principal Loss Amount for such
Distribution Date and (ii) on the Distribution Date occurring in August 2035 or,
with the consent of Assured Guaranty, upon the earlier termination of the Trust
pursuant to the terms hereof, the Class Certificate Balance of the Class A
Certificates after giving effect to any distributions on such Distribution Date.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the applicable Servicer
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 or Group
2 Discount Mortgage Loan.
Distribution Date: The 25th day of each month beginning in September
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 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).
Group: Any of Group 1 or Group 2.
Group 1: The Group 1 Senior Certificates, the Class A-A Component,
the Class A-2-A Component, 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 and Class 1-A-R Certificates.
Group 2: The Group 2 Senior Certificates, the Class A-B Component,
the Class A-2-B Component, 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, Class 2-A-2, Class
2-A-3 and Class 2-A-4 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.
Indirect Depository Participant: A broker, dealer, bank or other
financial institution or other Person maintaining a custodial relationship with
a Depository Participant.
Initial Class Certificate Balance: As to each Class of Certificates
(other than the Class A-2 and Class 30-IO Certificates), the Class Certificate
Balance set forth in the Preliminary Statement. The Class A-2 Certificates and
Class 30-IO Certificates are Interest-Only Certificates and have no Initial
Class Certificate Balance.
Initial Component Balance: As to each Class A Component and 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 Amount: With respect to any Distribution Date and the Class
A Certificates, the Deficiency Amount for such Distribution Date and any
Preference Amount.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Insured Payment: With respect to any Distribution Date and the Class
A Certificates, the aggregate amount paid by Assured Guaranty to the Securities
Administrator in respect of (i) the Deficiency Amount for such Distribution Date
and (ii) Preference Amounts for any given Business Day.
Interest Accrual Period: As to any Distribution Date and each Class
of interest-bearing Certificates (other than the Class A Certificates, Class A-2
Certificates and Class 30-IO Certificates) and each Class A Component, Class A-2
Component and 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.
Interest Distribution Amount: For any Distribution Date and each
interest-bearing Class (other than the Class A Certificates, Class A-2
Certificates and Class 30-IO Certificates) and 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 A-2
Certificates and Class 30-IO Certificates are the only Classes of Interest-Only
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.
Living Holder: A Certificate Owner of a Special Retail Certificate
other than a Deceased Holder.
Loan Group: Any of Loan Group 1 or Loan Group 2.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2: The Group 2 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 5.09(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
2005-4."
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 August 30, 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 D-1 and Exhibit D-2, 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 August 30, 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
Administrative 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.
Notice of Nonpayment: The notice to be delivered by the Securities
Administrator to Assured Guaranty with respect to any date as to which a claim
for an Insured Amount shall be made, which shall be in the form attached to the
Policy.
Notional Amount: With respect to (a) the Class A-2 Certificates and
any date of determination, the Class A-2 Notional Amount and (b) 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 1.71%
Class B-2 1.00%
Class B-3 0.70%
Class B-4 0.40%
Class B-5 0.15%
Class B-6 0.00%
Original Subordinate Certificate Balance: $11,091,786.
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.
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 (other than a Special
Retail Certificate), the percentage obtained by dividing the initial Certificate
Balance of such Certificate (or the initial notional amount for the Class A-2
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. With respect to a Special Retail Certificate, the percentage obtained
by dividing the current Certificate Balance of each such Certificate by the
current Class Certificate Balance 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.
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).
Policy: The irrevocable Assured Guaranty Insurance Policy No.
D-2005-65, including any endorsements thereto, issued by Assured Guaranty with
respect to the Class A Certificates, in the form attached hereto as Exhibit O.
Policy Payment Account: The account maintained pursuant to Section
5.12(b).
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.
Preference Amount: Any payment of principal or interest previously
distributed by or behalf of the Trust to a Class A Certificateholder, which
would have been covered under the Policy as a Deficiency Amount if there had
been a shortfall in funds available to make such a payment on the required
Distribution Date of such payment, which has been deemed a preferential transfer
and has been recovered from such Class A Certificateholder pursuant to the
United States Bankruptcy Code (11 U.S.C.), as amended from time to time, in
accordance with a final nonappealable order of a court or other body exercising
jurisdiction in an insolvency proceeding by or against the Trust, to the effect
that a Class A Certificateholder or the Securities Administrator, as applicable,
is required to return or repay all or any portion of a Preference Amount.
Premium Distribution Amount: As to any Distribution Date, an amount
equal to the sum of (i) the Premium Payment and (ii) any Premium Unpaid
Shortfall.
Premium Mortgage Loan: Any Group 1 Premium Mortgage Loan or Group 2
Premium Mortgage Loan.
Premium Payment: For any Distribution Date and Loan Group, the
product of 1/12th of 0.09% and the Component Balance of the Class A Component in
the related Group for such Distribution Date prior to any distributions therein.
The Premium Payment shall be payable from the Lower-Tier REMIC.
Premium Shortfall: For any Distribution Date, the amount by which
the Premium Payment exceeds the amount of premium actually distributed to
Assured Guaranty on such Distribution Date pursuant to clause (i) of the
definition of Premium Distribution Amount.
Premium Unpaid Shortfall: As to any Distribution Date, the amount by
which the aggregate Premium Shortfalls on prior Distribution Dates exceeds the
amount of premium actually distributed to Assured Guaranty on such prior
Distribution Dates pursuant to clause (ii) of the definition of Premium
Distribution Amount.
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 Xxx 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, (A) with respect to
the Pool Distribution Amount for Loan Group 1, the least of (i) the aggregate
Class Certificate Balance of the Class 1-A-1 and Class 1-A-4 Certificates, (ii)
the product of (a) the Shift Percentage, (b) the applicable 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 and (B) with respect
to the Pool Distribution Amount for Loan Group 2, the least of (i) the aggregate
Class Certificate Balance of the Class 2-A-1 and Class 2-A-4 Certificates, (ii)
the product of (a) the Shift Percentage, (b) the applicable Priority Percentage
and (c) the Non-PO Principal Amount for the Group 2 Senior Certificates or (iii)
the Senior Principal Distribution Amount for Loan Group 2.
Priority Percentage: As to any Distribution Date, (A) with respect
to the Pool Distribution Amount for Loan Group 1, 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-4
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 and (B) with respect to the Pool Distribution Amount for Loan
Group 2, 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 2-A-1 and Class 2-A-4 Certificates immediately prior to such date and
the denominator of which is the Pool Stated Principal Balance (Non-PO Portion)
for Loan Group 2 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.
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, the Securities Administrator and
Assured Guaranty. 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, and for Loan Group 2,
Group 2.
Related Loan Group: For Group 1, Loan Group 1, and for Group 2, Loan
Group 2.
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. None of the Reserve Fund, the Rounding
Accounts, the Policy or the Policy Payment Account will be an asset of either
REMIC created hereunder.
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 September
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: The separate non-interest bearing trust account
established with the Securities Administrator and maintained by the Securities
Administrator pursuant to Section 5.11 for the benefit of the Class A
Certificateholders. The Reserve Fund shall be an Eligible Account.
Reserve Withdrawal: With respect to any Distribution Date, the
lesser of (a) an amount on deposit in the Reserve Fund and (b) the amount of
Non-Supported Interest Shortfalls allocated to the Class A Components.
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 August 30, 2005, by and among BANA,
the Depositor, the Trustee and RFC and acknowledged by the Master Servicer.
Rounding Account: As defined in Section 3.23.
Rounding Amount: As defined in Section 3.23.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
Securities Administrator: Xxxxx Fargo Bank, N.A., and its
successors-in-interest and, if a successor securities administrator is appointed
hereunder, such successor, as securities administrator.
Securities Administrator Fee: As to any Distribution Date, an amount
equal to one-twelfth of the Securities Administrator Fee Rate multiplied by the
aggregate Stated Principal Balance of the Mortgage Loans immediately following
the Due Date in the month preceding the month in which such Distribution Date
occurs.
Securities Administrator Fee Rate: With respect to each Mortgage
Loan, 0.005% per annum.
Security Agreement: With respect to a Cooperative Loan, the
agreement or mortgage creating a security interest in favor of the originator of
the Cooperative Loan in the related Cooperative Stock.
Seller: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Senior Certificates: The Class 1-A-1, Class 1-A-2, Class 1-A-3,
Class 1-A-4, Class 1-A-R, Class 2-A-1, Class 2-A-2, Class 2-A-3, Class 2-A-4,
Class A, Class A-2, 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 (but not the Class PO Component of such Group)
and the Component Balance of the Class A Component 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
--------------------------- --------------------
September 2010 through August 2011 30%
September 2011 through August 2012 35%
September 2012 through August 2013 40%
September 2013 through August 2014 45%
September 2014 and thereafter 50%
Servicer: Any of BANA, CitiMortgage, National City Mortgage, 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 BANA Servicing Agreement, the
CitiMortgage Servicing Agreement, the National City Mortgage 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
------------------------------ ----------------
September 2005 through August 2010 0%
September 2010 through August 2011 30%
September 2011 through August 2012 40%
September 2012 through August 2013 60%
September 2013 through August 2014 80%
September 2014 and thereafter 100%
Similar Law: As defined in Section 6.02(e).
Special Retail Certificates: The Class A Certificates.
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 and the Group 2
Senior Certificates and the Component Balances of the Class A Components by (y)
the aggregate Pool Stated Principal Balance (Non-PO Portion) for both 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 2005-4 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) the rights of the Trustee under the Policy, 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) and (vi) the Servicer
Custodial Accounts, the Master Servicer Custodial Account and the Certificate
Account and such assets that are deposited therein from time to time and any
investments thereof, together with any and all income, proceeds and payments
with respect thereto. 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
LT1A1A, Class LT1AIO, Class LT1APO, Class LT2A1, Class LT2A1A, Class LT2AIO,
Class LT2APO, 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 A-2 Certificates, (c) 1% of all Voting Rights shall be
allocated to the Holders of the Class 30-IO Certificates and (d) 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.
For so long as no Assured Guaranty Default has occurred and is
continuing, Assured Guaranty shall be entitled to exercise on behalf of the
Holders of the Class A Certificates the Voting Rights of such Class unless
Assured Guaranty has consented in writing to the exercise of such Voting Rights
by such Holders.
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 August 30, 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
August 30, 2005, by and among BANA, the Depositor, the Trustee and Xxxxx Fargo
Bank.
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), 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, and the Depositor's rights under the BANA Servicing
Agreement. The foregoing sale, transfer, assignment and set over does not and is
not intended to result in a creation of an assumption by the Trustee of any
obligation of the Depositor or any other Person in connection with the Mortgage
Loans or any agreement or instrument relating thereto, except as specifically
set forth herein. It is agreed and understood by the parties hereto that it is
not intended that any mortgage loan be included in the Trust that is a
"High-Cost Home Loan" as defined in any of (i) the New Jersey Home Ownership Act
effective November 27, 2003, (ii) the New Mexico Home Loan Protection Act
effective January 1, 2004, (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 2005-4, 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 2005-4" (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, the Master
Servicer and Assured Guaranty 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, the Master Servicer and Assured Guaranty 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, the Depositor and Assured Guaranty 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 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 or clauses (f) or (oo) of paragraph 4
of the Mortgage Loan Purchase Agreement occurs as a result of a violation of an
applicable predatory or abusive lending law, the Trustee shall enforce the right
of the Trust to reimbursement by the Seller for all costs or damages incurred by
the Trust as a result of the violation of such law (such amount, the
"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 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 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 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 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.
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 an of its creditors.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or the related Custodian and shall inure to the benefit of
the Trustee, notwithstanding any restrictive or qualified endorsement or
assignment.
Upon discovery by any of the Depositor, the 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 and to Assured
Guaranty; 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 August 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, the Trustee and Assured Guaranty 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 and Certificate Account. (a) Continuously from the date hereof
until the principal and interest on all Mortgage Loans are paid in full, the
Master Servicer shall enforce the obligations of the Servicers to collect all
payments due under the terms and provisions of the Mortgage Loans when the same
shall become due and payable to the extent such procedures shall be consistent
with the applicable Servicing Agreement.
(b) The Securities Administrator shall establish and maintain the
Certificate Account, which shall be deemed to consist of three 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
additional compensation and the amount of any losses realized in the Certificate
Account in respect of any such Permitted Investments shall promptly be deposited
by the Securities Administrator from its own funds in the Certificate Account.
(g) The Master 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.
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 and Assured Guaranty 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, the Securities Administrator Fee
and all amounts provided for under Section 9.11, other than the amounts
provided for in the first sentence of Section 9.11);
(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 Assured Guaranty 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).
Section 3.23 Maintenance of the Rounding Accounts; Collections
Thereunder. On or prior to the Closing Date, the Trustee shall establish two
separate accounts (each, a "Rounding Account") with respect to each of the Class
A Components, and Banc of America Securities LLC shall deposit $999.99 into each
such Rounding Account. The Securities Administrator shall maintain such account
to provide, if needed, the Rounding Amount (defined below) on any Distribution
Date.
If, on any Distribution Date, the Securities Administrator
determines that amounts are available out of the Pool Distribution Amount for
Loan Group 1 or Loan Group 2 (after giving effect to the repayment of any funds
withdrawn from the Rounding Accounts on prior Distribution Dates which have not
been repaid) or out of payments on the Policy for distributions of principal on
the Class A Components and the aggregate amount allocable to such distributions
of principal is not an amount equal to an integral multiple of $1,000, the
Securities Administrator shall withdraw from the applicable Rounding Account an
amount which, when added to the amount allocable to such distributions of
principal, would be an integral multiple of $1,000 (the "Rounding Amount"). On
each Distribution Date prior to the date on which Assured Guaranty fails to pay
an Insured Amount in respect of principal of the Class A Certificates with
respect to which the Securities Administrator determines that amounts are
available out of the Pool Distribution Amount for Loan Group 1 or Loan Group 2
for distributions of principal on the Class A Certificates, the amount allocable
to each Class A Component will be applied first to repay any funds withdrawn
from the applicable Rounding Account on prior Distribution Dates which have not
been repaid.
Any amounts withdrawn by the Securities Administrator from each
Rounding Account shall be deposited in the Certificate Account for distribution
to the Holders of the Class A Certificates as described in the preceding
paragraph.
On or promptly after the date on which Assured Guaranty fails to pay
an Insured Amount in respect of principal on the Class A Certificates or the
Class Certificate Balance thereof is reduced to zero, the Securities
Administrator shall remit to Banc of America Securities LLC any amounts
remaining in the applicable Rounding Account.
Amounts on deposit in each Rounding Account shall not be invested.
Each Rounding Account established hereunder, to the extent that it
constitutes a "reserve fund" for purposes of the REMIC Provisions, shall be an
"outside reserve fund" as defined in Section 1.860G-2(h) of the Treasury
Regulations, and in that regard (A) each Rounding Account shall be an outside
reserve fund and not an asset of either of the Upper-Tier REMIC or Lower-Tier
REMIC, (B) each Rounding Account shall be owned for federal tax purposes by Banc
of America Securities LLC and Banc of America Securities LLC shall report all
amounts of income, deduction, gain or loss accruing therefrom, and (C) amounts
transferred by the Lower-Tier REMIC to each Rounding Account shall be treated
for all federal tax purposes as distributed by the Lower-Tier REMIC to Banc of
America Securities LLC.
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; provided, however, that distributions of principal
to the Special Retail Certificates shall be made as described in Section 5.10.
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 3.11(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 and the Securities
Administrator 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 distributions to Assured Guaranty and to the
Certificates in the following order of priority and to the extent of such funds,
paying Group 1 and the portion of the Premium Distribution Amount related to the
Class A-A Component solely from the Pool Distribution Amount for Loan Group 1,
paying Group 2 and the portion of the Premium Distribution Amount related to the
Class A-B Component solely from the Pool Distribution Amount for Loan Group 2
and paying the Subordinate Certificates (including amounts used to pay Class PO
Deferred Amounts) from the combined Pool Distribution Amounts for both Loan
Groups, in the following order of priority and to the extent of such funds:
(i) to Assured Guaranty, to pay the Premium Distribution Amount;
(ii) to each Class of Senior Certificates (other than the Class A
Certificates, Class A-2 Certificates and Class 30-IO Certificates), the
Class A Components, the Class A-2 Components 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;
(iii) concurrently, to each Class of Senior Certificates (other than
the Class A and Class 30-PO Certificates) and the Class A Component and
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 and Class A Component of such Group, in an
aggregate amount up to the Senior Principal Distribution Amount for such
Group, such distribution to be allocated among such Classes and Component
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;
(iv) 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 both Loan Groups from amounts otherwise distributable, first to the
Class B-6 Certificates pursuant to clause (v)(L) below, second to the
Class B-5 Certificates, pursuant to clause (v)(J) below, third to the
Class B-4 Certificates, pursuant to clause (v)(H) below, fourth to the
Class B-3 Certificates, pursuant to clause (v)(F) below, fifth to the
Class B-2 Certificates, pursuant to clause (v)(D) below and finally to the
Class B-1 Certificates, pursuant to clause (v)(B) below;
(v) 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 (iv) 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 (iv) 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 (iv) 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 (iv) 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 (iv) 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 (iv) above until the Class Certificate Balance thereof has
been reduced to zero;
(vi) to Assured Guaranty, any remaining Pool Distribution Amounts,
up to the aggregate amount of previously unreimbursed Insured Payments;
and
(vii) 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.
Assured Guaranty will not be entitled to any distribution with
respect to the amount payable pursuant to clause (ii) of the definition of
"Premium Distribution Amount" after the Class Certificate Balance of the Class A
Certificates has been reduced to zero.
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, Component 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, the Component Interest Distribution Amount for a Component or the
Premium Distribution Amount for Assured Guaranty will be applied first with
respect to the amount payable pursuant to clause (i) of the definition of
"Interest Distribution Amount," "Component Interest Distribution Amount" or
"Premium 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. To
the extent any such loss allocated to the Class A Certificates was paid by
Assured Guaranty under the Policy, any portion of the Reimbursement Amount
payable to the Class A Certificates shall instead be paid to Assured Guaranty.
With respect to each Distribution Date, each Uncertificated
Lower-Tier Interest (other than the Class LT1AIO and Class LT2AIO 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 and Class LT2APO
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 Accrual Amounts and Unpaid Interest Shortfalls, 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 and the Class LT2AIO Interest
shall equal the Notional Amount of the Class 1-IO Component and the Class 2-IO
Component, respectively. The initial notional balance of the Class LT1AIO and
the Class LT2AIO Interest shall equal the Initial Notional Amount of the Class
1-IO Component and the Class 2-IO Component, respectively. 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 and the LT2APO Interests will be
equal to the Component Balance of the Class 1-PO Component and Class 2-PO
Component, respectively, (ii) the interest distributed in respect of the LT1A1A
Interest will equal the interest distributed in respect of the Class A-A
Component and the Class A-B Component, respectively, (iii) the interest
distributed in respect of the LT1AIO Interest and the LT2AIO Interest will equal
the interest distributed in respect of the Class 1-IO Component and the Class
2-IO Component, respectively and (iv) 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)(iii) for such Distribution Date, will be
distributed, sequentially, as follows:
First, to the Class 1-A-R Certificate, until its Class Certificate
Balance has been reduced to zero;
Second, concurrently, to the Class 1-A-1 and Class 1-A-4
Certificates, pro rata, up to the Priority Amount for such Distribution Date;
Third, for each Distribution Date on or after the Distribution Date
in September 2008, $5,450 to the Class A-A Component until the Class Certificate
Balances of the Class 1-A-1 and Class 1-A-2 Certificates have been reduced to
zero;
Fourth, sequentially, to the Class 1-A-2 Certificates and Class
1-A-3 Certificates, in that order, until their Class Certificate Balances have
been reduced to zero;
Fifth, to the Class A-A Component, until its Component Balance has
been reduced to zero; and
Sixth, concurrently, to the Class 1-A-1 and Class 1-A-4
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)(iii) for such Distribution Date,
will be distributed, sequentially, as follows:
First, concurrently, to the Class 2-A-1 and Class 2-A-4
Certificates, pro rata, up to the Priority Amount for such Distribution Date;
Second, for each Distribution Date on or after the Distribution Date
in September 2008, $9,372 to the Class A-B Component until its Component Balance
has been reduced to zero;
Third, sequentially, to the Class 2-A-3 Certificates and Class 2-A-2
Certificates, in that order, until their Class Certificate Balances have been
reduced to zero;
Fourth, to the Class A-B Component, until its Component Balance has
been reduced to zero; and Fifth, concurrently, to the Class 2-A-1 and Class
2-A-4 Certificates, pro rata, until their Class Certificate Balances have been
reduced to zero.
On each Distribution Date on or after the Senior Credit Support
Depletion Date, 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 and Class A Component
of the Related Group (other than the Class A-2 and Class 30-IO Certificates)
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 A-2 and Class 30-IO Certificates are Interest-Only
Certificates and are not entitled to distributions in respect of principal.
(iii) 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
and Class A Component 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 and Class A Component of the other Group in accordance with
the priorities set forth for the applicable Group in (b) (i) or (ii)
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%. In addition, after giving
effect to the previous sentence, if on any Distribution Date the aggregate
Class Certificate Balance of the Senior Certificates and Class A Component
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)(v)(L), (J), (H), (F), (D) and (B), in that order, will be paid as
principal to the Senior Certificates and Class A Component of the
Undercollateralized Group in accordance with the priorities set forth for
the applicable Group above under (b)(i) or (ii) until the aggregate Class
Certificate Balance of the Senior Certificates and Class A Component of
the Undercollateralized Group equals the Adjusted Pool Amount (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)(ii) prior to the payment of any Undercollateralized Amount from
amounts otherwise distributable as principal on the Subordinate
Certificates pursuant to Section 5.02(a)(v)(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)(ii) 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-PO Certificates) and Accrued
Component Interest for each Component (other than the Class PO Components) 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)(v), 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).
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 and Component Balance of the
Class A Component 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 and Component Balance of the Class A Component 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 and Class A Component of such Group based on the Class Certificate
Balances or Component Balance immediately prior to such Distribution Date until
the Class Certificate Balances or Component Balance 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-4 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 1-A-4 Certificates will be
reduced by the Class 1-A-4 Loss Allocation Amount and, notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 1-A-1 Certificates will not
be reduced by the Class 1-A-4 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-4 Certificates.
After the Senior Credit Support Depletion Date, on any Distribution
Date on which the Class 2-A-4 Loss Allocation Amount is greater than zero, the
Class Certificate Balance of the Class 2-A-4 Certificates will be reduced by the
Class 2-A-4 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-4 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-4 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 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;
(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) for each Loan Group, the amount of Recoveries, the Class PO
Recovery and the Non-PO Recovery;
(xvii)(a) the Deficiency Amount, if any, for such Distribution Date
and (b) amounts, if any, in respect of the Deficiency Amount paid under
the Policy;
(xviii) the amount remaining in the Reserve Fund after taking into
account the Reserve Withdrawal, if any, for such Distribution Date; and
(xix) any Rounding Amounts for such Distribution Date and the amount
applied to repay such Rounding Amounts withdrawn on the prior Distribution
Date.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Master Servicer's
Certificate, shall make available to Assured Guaranty, 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 Assured Guaranty,
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 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 5.10 Principal Distributions on the Special Retail
Certificates. Prior to the date on which Assured Guaranty fails to pay an
Insured Amount under the Policy in respect of principal with respect to the
Class A Certificates, distributions in reduction of the Class Certificate
Balance of the Class A Certificates will be made in integral multiples of $1,000
at the request of the appropriate representatives of Deceased Holders of Class A
Certificates and at the request of Living Holders of Class A Certificates or by
mandatory distributions, pursuant to Section 5.10(a) and Section 5.10(d). On or
after the date on which Assured Guaranty fails to pay an Insured Amount under
the Policy in respect of principal with respect to the Class A Certificates,
distributions in reduction of the Class Certificate Balance of the Class A
Certificates will be made on a pro rata basis pursuant to Section 5.10(e).
(a) Except as set forth in Section 5.10(e), on each Distribution
Date on which principal distributions to the Class A Certificates are made, such
distributions will be made in the following priority:
(i) first, to requesting Deceased Holders of such Class, in the
order in which such requests are received by the Depository, but not
exceeding an aggregate amount of $100,000 for each requesting Deceased
Holder; and
(ii) second, to requesting Living Holders of such Class, in the
order in which such requests are received by the Depository, but not
exceeding an aggregate amount of $10,000 for each requesting Living
Holder.
Thereafter, distributions will be made to the Class A Certificates
as provided in clauses (i) and (ii) above, up to a second $100,000 and $10,000,
respectively. This sequence of priorities will be repeated until all requests
for principal distributions by Deceased Holders and Living Holders of such Class
have been honored, to the extent of amounts available for principal
distributions to the Holders of such Class.
All requests for principal distributions to Class A Certificates
will be accepted in accordance with the provisions set forth in Section 5.10(c).
Requests for principal distributions that are received by the Depository after
the related Record Date and requests for principal distributions received in a
timely manner but not accepted with respect to any Distribution Date, will be
treated as requests for principal distributions to the Class A Certificates on
the next succeeding Distribution Date, and each succeeding Distribution Date
thereafter, until each such request is accepted or is withdrawn as provided in
Section 5.10(c). Such requests that are not withdrawn shall retain their order
of priority without the need for any further action on the part of the
appropriate Certificate Owner of the Class A Certificate, all in accordance with
the procedures of the Depository and the Securities Administrator. Upon the
transfer of beneficial ownership of any Class A Certificate, any distribution
request previously submitted with respect to such Certificate will be deemed to
have been withdrawn only upon the receipt by the Securities Administrator on or
before the Record Date for such Distribution Date of notification of such
withdrawal in the manner set forth in Section 5.10(c) on the Depository's
"participant terminal system."
Distributions in reduction of the Class Certificate Balance of the
Class A Certificates will be applied in an amount equal to the portion of the
Senior Principal Distribution Amount for Group 1 and Group 2, respectively,
allocable to the Class A Components of such Class pursuant to Section 5.02, plus
any Insured Amounts in respect of principal, plus any amounts available for
distribution from the Rounding Accounts established as provided in Section 3.23,
provided that, subject to 5.10(e), the aggregate distribution of principal to
such Class on any Distribution Date shall be made in an integral multiple of
$1,000.
To the extent that the portion of the Senior Principal Distribution
Amount for Group 1 or Group 2 allocable to the Class A-A or Class A-B Component,
respectively, on any Distribution Date exceeds the aggregate Certificate Balance
of Certificates of such Class with respect to which principal distribution
requests have been received, principal distributions in reduction of the Class
Certificate Balance of the Class A Certificates will be made by mandatory
distribution pursuant to Section 5.10(d).
(b) A Class A Certificate shall be deemed to be held by a Deceased
Holder for purposes of this Section 5.10 if the death of the Certificate Owner
thereof is deemed to have occurred. Class A Certificates beneficially owned by
tenants by the entirety, joint tenants or tenants in common will be considered
to be beneficially owned by a single owner. The death of a tenant by the
entirety, joint tenant or tenant in common will be deemed to be the death of the
Certificate Owner. Class A Certificates beneficially owned by a trust will be
considered to be beneficially owned by each beneficiary of the trust to the
extent of such beneficiary's beneficial interest therein, but in no event will a
trust's beneficiaries collectively be deemed to be Certificate Owners of a
number of Class A Certificates greater than the number of Class A Certificates
of which such trust is the owner. The death of a beneficiary of a trust will be
deemed to be the death of a Certificate Owner of the Class A Certificates
beneficially owned by the trust to the extent of such beneficiary's beneficial
interest in such trust. The death of an individual who was a tenant by the
entirety, joint tenant or tenant in common in a tenancy which is the beneficiary
of a trust will be deemed to be the death of the beneficiary of such trust. The
death of an individual who, during his or her lifetime, was entitled to
substantially all of the beneficial ownership interests in a Class A Certificate
will be deemed to be the death of the Certificate Owner of such Class A
Certificate regardless of the registration of ownership, if such beneficial
ownership interest can be established to the satisfaction of the Depository
Participant. Such beneficial interest will be deemed to exist in typical cases
of street name or nominee ownership, ownership by a trustee, ownership under the
Uniform Gifts to Minors Act and community property or other joint ownership
arrangements between a husband and wife. Beneficial interest shall include the
power to sell, transfer or otherwise dispose of a Class A Certificate and the
right to receive the proceeds therefrom, as well as interest and principal
distributions, as applicable, payable with respect thereto. The Securities
Administrator shall not be under any duty to determine independently the
occurrence of the death of any deceased Certificate Owner.
(c) Requests for principal distributions to the Certificate Owner of
any Class A Certificate must be made by delivering a written request therefor to
the Depository Participant or Indirect Depository Participant that maintains the
account evidencing such Certificate Owner's interest in such Certificate. In the
case of a request on behalf of a Deceased Holder, appropriate evidence of death
and any tax waivers are required to be forwarded to the Depository Participant
under separate cover. The Depository Participant should in turn make the request
of the Depository (or, in the case of an Indirect Depository Participant, such
Indirect Depository Participant must notify the related Depository Participant
of such request, which Depository Participant should make the request on the
Depository's participant terminal system). The Depository may establish such
procedures as it deems fair and equitable to establish the order of receipt of
requests for such distributions received by it on the same day. None of the
Depositor, the Master Servicer or the Securities Administrator shall be liable
for any delay in delivery of requests for distributions or withdrawals of such
requests by the Depository, a Depository Participant or any Indirect Depository
Participant.
Subject to the priorities described in Section 5.10(a) above, the
Depository will honor requests for distributions in the order of their receipt.
The Depository shall determine which requests should be honored on each
Distribution Date and the Securities Administrator shall notify the Depository
as to the portion of the applicable Senior Principal Distribution Amount
(together with any amounts available for distribution from the Rounding Account)
to be distributed to the Class A Certificates by mandatory distribution pursuant
to Section 5.10(d). Requests shall be honored by the Depository in accordance
with the procedures, and subject to the priorities and limitations, described in
this Section 5.10. The exact procedures to be followed by the Securities
Administrator and the Depository for purposes of determining such priorities and
limitations will be those established from time to time by the Securities
Administrator or the Depository, as the case may be. The decisions of the
Securities Administrator and the Depository concerning such matters will be
final and binding on all affected Persons.
Class A Certificates that have been accepted for a distribution
shall be due and payable on the applicable Distribution Date. Such Certificates
shall cease to bear interest after the last day of the calendar month preceding
the month in which such Distribution Date occurs.
Any Certificate Owner of a Class A Certificate that has requested a
principal distribution may withdraw its request by so notifying in writing the
Depository Participant or Indirect Depository Participant that maintains such
Certificate Owner's account. If such account is maintained by an Indirect
Depository Participant, such Indirect Depository Participant must notify the
related Depository Participant which in turn must make the request of the
Depository or on the Depository's participant terminal system. If such notice of
withdrawal of a request for distribution has not been received by the Depository
on or before the Record Date for the next Distribution Date, the previously made
request for a principal distribution will be irrevocable with respect to the
making of principal distributions on such Distribution Date.
If any requests for principal distributions are rejected by the
Depository for failure to comply with the requirements of this Section 5.10, the
Depository shall return such request to the appropriate Depository Participant
with an explanation as to the reason for such rejection.
(d) If principal distributions to be made to the Class A
Certificates on a Distribution Date exceed the aggregate amount of principal
distribution requests for such Class which have been received on or before the
applicable Record Date, as provided in Section 5.10(a) above, additional Class A
Certificates will be selected to receive mandatory principal distributions in
lots equal to $1,000 in accordance with the then-applicable random lot
procedures of the Depository, and the then-applicable procedures of the
Depository Participants and Indirect Depository Participants representing the
Certificate Owners (which procedures may or may not be by random lot). The
Securities Administrator shall notify the Depository of the aggregate amount of
the mandatory principal distribution to be made on the next Distribution Date.
The Depository shall then allocate such aggregate amount among the Depository
Participants on a random lot basis. Each Depository Participant and, in turn,
each Indirect Depository Participant will then select, in accordance with its
own procedures, Class A Certificates from among those held in its accounts to
receive mandatory principal distributions, such that the total amount of
principal distributed to the Class A Certificates so selected is equal to the
aggregate amount of such mandatory distributions allocated to such Depository
Participant by the Depository and to such Indirect Depository Participant by its
related Depository Participant, as the case may be. Depository Participants and
Indirect Depository Participants that hold Class A Certificates selected for
mandatory principal distributions are required to provide notice of such
mandatory distributions to the affected Certificate Owners.
(e) Notwithstanding any provisions herein to the contrary, on each
Distribution Date if Assured Guaranty fails to pay an Insured Amount under the
Policy in respect of principal with respect to the Class A Certificates,
distributions in reduction of the Class Certificate Balance of the Class A
Certificates will be made pro rata among the Certificate Owners of such Class
and will not be made in integral multiples of $1,000 or pursuant to requests for
distribution as permitted by Section 5.10(a) or by mandatory distributions as
provided for by Section 5.10(d).
(f) In the event that the pro rata distributions described in
Section 5.10(e) cannot be made through the facilities of the Depository, the
Class A Certificates will be withdrawn by the Securities Administrator at the
direction of the Depositor from the facilities of the Depository and Definitive
Certificates will be issued to replace such withdrawn Book-Entry Certificates
pursuant to Section 6.02(c)(iii). An amendment to this Agreement, which may be
approved without the consent of any Certificateholders, shall establish
procedures relating to the manner in which pro rata distributions in reduction
of the Component Balances of the Class A Components are to be made; provided
that such procedures shall be consistent, to the extent practicable and
customary for certificates similar to the Class A Certificates, with the
provisions of this Section 5.10.
Section 5.11 Reserve Fund.
(a) A separate Reserve Fund shall be established on the Closing Date
for the Class A Certificates. The Reserve Fund shall be maintained by the
Securities Administrator in accordance with this Section 5.11. At the time the
Reserve Fund is established, the Depositor shall cause to be deposited into the
Reserve Fund the amount of $9,000.
With respect to each Distribution Date, the applicable Reserve
Withdrawal shall be withdrawn by the Securities Administrator from the amount on
deposit in the Reserve Fund in accordance with this Section 5.11 and distributed
on such Distribution Date to the Holders of the Class A Certificates based on
the amount of Non-Supported Interest Shortfall allocated to the Class A
Components. Any amount distributed to the Class A Certificates for such
Distribution Date shall be allocated among such Certificates, pro rata, based
upon Percentage Interest. Such amounts shall be deemed deposited into the
Lower-Tier REMIC and first paid on the Uncertificated Lower-Tier Interest
corresponding to the related Class A Component.
Notwithstanding anything herein to the contrary, on the Distribution
Date on which the Class Certificate Balance of the Class A Certificates has been
reduced to zero, any funds then on deposit in the Reserve Fund shall be
distributed to Banc of America Securities LLC at the address provided by it to
the Securities Administrator.
(b) The Reserve Fund will be an "outside reserve fund" under the
REMIC Provisions that is beneficially owned for federal income tax purposes by
Banc of America Securities LLC, which shall report all income, gain, deduction
or loss with respect thereto, and will not be an asset of either REMIC created
hereunder. Any amount distributed or returned to the Reserve Fund from the
Lower-Tier REMIC shall be treated as distributed or returned to Banc of America
Securities LLC as beneficial owner of the Reserve Fund. Funds on deposit in the
Reserve Fund shall remain uninvested.
Section 5.12 Policy Matters.
(a) If on the third Business Day before any Distribution Date the
Securities Administrator determines that there will be a Deficiency Amount for
such Distribution Date, the Securities Administrator shall determine the amount
of such Deficiency Amount and shall give notice to Assured Guaranty by telephone
or telecopy of the amount of such deficiency confirmed in writing by the Notice
of Nonpayment by 12:00 noon, New York City time on such third Business Day.
(b) At the time of the execution and delivery of this Agreement, the
Securities Administrator shall establish a separate special purpose trust
account in the name of the Securities Administrator, on behalf of the Trustee,
for the benefit of Holders of the Class A Certificates referred to herein as the
"Policy Payment Account" over which the Securities Administrator shall have
exclusive control and sole right of withdrawal. The Securities Administrator
shall deposit any amounts paid under the Policy into the Policy Payment Account
and distribute such amounts only for purposes of payment to Holders of the Class
A Certificates of the Insured Amount for which a claim was made and such amounts
may not be applied to satisfy any costs, expenses or liabilities of the
Securities Administrator or the Trust Estate. Amounts paid under the Policy
shall be disbursed by the Securities Administrator to Holders of the Class A
Certificates in the same manner as distributions in reduction of the Component
Balance of and interest on the Class A Components are made under Section 5.02.
It shall not be necessary for such payments of the Insured Amount to be made by
checks or wire transfers separate from the check or wire transfer used to pay
distributions in reduction of the Component Balance of and interest on the Class
A Components with funds available to make such distributions. However, the
amount of any distribution to be paid from funds transferred from the Policy
Payment Account shall be noted as provided in (c) below and in the statement to
be furnished to Holders of the Class A Certificates and Assured Guaranty
pursuant to Section 5.04. Funds held in the Policy Payment Account shall not be
invested by the Securities Administrator.
On any Distribution Date with respect to which a claim has been made
under the Policy, the amount of any funds received by the Securities
Administrator as a result of the claim under the Policy to the extent necessary
to make distributions on the Class A Certificates equal to the Deficiency Amount
on such Distribution Date shall be withdrawn from the Policy Payment Account and
applied by the Securities Administrator to the payment in full of the Deficiency
Amount. Any funds deposited into the Policy Payment Account in respect of the
Class A Certificates that are remaining therein on the first Business Day
following a Distribution Date after the Deficiency Amount has been paid to the
Certificateholders shall be remitted in immediately available funds to Assured
Guaranty, pursuant to the instructions of Assured Guaranty, by the end of such
Business Day.
(c) The Securities Administrator shall keep a complete and accurate
record of the Class A Interest Loss Amount and the Class A Principal Loss Amount
paid from moneys received under the Policy. Assured Guaranty shall have the
right to inspect such records at reasonable times upon one Business Day's prior
notice to the Securities Administrator.
(d) In the event that the Securities Administrator has received a
certified copy of an order of the appropriate court that any distributions in
reduction of the Certificate Balance of or interest on a Class A Certificate has
been avoided in whole or in part as a preference payment under applicable
bankruptcy law, the Securities Administrator shall so notify Assured Guaranty
and shall comply with the provisions of the Policy to obtain payment by Assured
Guaranty of such avoided distribution, and shall, at the time it provides notice
to Assured Guaranty, notify, by mail to Holders of the Certificates that, in the
event that any Holder's distribution is so recovered, such Holder will be
entitled to payment pursuant to the terms of the Policy, a copy of which shall
be made available by the Securities Administrator and the Securities
Administrator shall furnish to Assured Guaranty its records evidencing the
distributions in reduction of the Certificate Balances of and interest on the
Class A Certificates, if any, which have been made by the Securities
Administrator and subsequently recovered from Holders, and the dates on which
such distributions were made. Such payment under the Policy shall be disbursed
to the receiver, conservator, debtor-in-possession or trustee in bankruptcy
named in the order and not to the Securities Administrator or any Class A
Certificateholder directly (unless such Certificateholder has previously paid
such amount to the receiver, conservator, debtor-in-possession or trustee in
bankruptcy named in the order, in which case such payment shall be disbursed to
the Securities Administrator for distribution to such Certificateholder upon
proof of such payment reasonably satisfactory to Assured Guaranty).
(e) The Securities Administrator shall promptly notify Assured
Guaranty of any proceeding or the institution of any action seeking the
avoidance as a preferential transfer under applicable bankruptcy, insolvency,
receivership or similar law (a "Preference Claim") of any distribution made with
respect to the Class A Certificates as to which it has actual knowledge. Each
Holder of a Class A Certificate, by its purchase of such Certificates and the
Securities Administrator hereby agree that Assured Guaranty (so long as no
Assured Guaranty Default exists) may at any time during the continuation of any
proceeding relating to a Preference Claim direct all matters relating to such
Preference Claim, including, without limitation, (i) the direction of any appeal
of any order relating to any Preference Claim and (ii) the posting of any
surety, supersedeas or performance bond pending any such appeal. In addition and
without limitation of the foregoing, Assured Guaranty shall be subrogated to the
rights of the Securities Administrator and each Holder in the conduct of any
Preference Claim, including, without limitation, all rights of any party to an
adversary proceeding or action with respect to any court order issued in
connection with any such Preference Claim.
(f) The Securities Administrator acknowledges, and each Holder of a
Class A Certificate by its acceptance of such Certificate agrees, that without
the need for any further action on the part of Assured Guaranty or the
Securities Administrator, to the extent that Assured Guaranty makes payments
directly or indirectly on account of principal or interest on any Class A
Certificate, Assured Guaranty shall be fully subrogated to all of the rights of
such Certificateholders with respect to any and all amounts paid under the
Policy. The Class A Certificateholders by acceptance of such Certificates assign
their rights as Holders of such Certificates to Assured Guaranty to the extent
of Assured Guaranty's interest with respect to amounts paid under the Policy.
Anything herein to the contrary notwithstanding, solely for purposes of
determining Assured Guaranty's rights, as applicable, as subrogee for payments
distributable pursuant to Section 5.02, any payment with respect to
distributions to the Class A Certificates which is made with funds received
pursuant to the terms of the Policy, shall not be considered payment of the
Class A Certificates from the Trust Estate and shall not result in the
distribution or the provision for the distribution in reduction of the Class
Certificate Balance of the Class A Certificates except to the extent such
payment has been reimbursed to Assured Guaranty pursuant to the terms hereof.
(g) The Master Servicer shall designate an Assured Guaranty Contact
Person who shall be available to Assured Guaranty to provide reasonable access
to information regarding the Mortgage Loans. The initial Assured Guaranty
Contact Person is Xxxxx Xxxxxxx.
(h) The Securities Administrator shall surrender the Policy to
Assured Guaranty for cancellation upon reduction of the Class Certificate
Balance of the Class A Certificates to zero.
(i) All references herein to the ratings assigned to the
Certificates and to the interests of any Certificateholders shall be without
regard to the Policy.
(j) For so long as there is no continuing default by Assured
Guaranty under its obligations under the Policy, each Holder of a Class A
Certificate agrees that Assured Guaranty shall be entitled to exercise the
voting, consent, directing and other control rights of the Holders of the Class
A Certificates without consent of such Holders and the Holders of the Class A
Certificates shall only exercise such rights with the prior written consent of
Assured Guaranty.
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-X, 2-A-1, 2-A-2, 2-A-3,
2-A-4, A, A-2, 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 (A) the Depository advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository and the Securities
Administrator or the Depositor is unable to locate a qualified successor,
the Securities Administrator shall notify all Certificate Owners, through
the Depository, of the occurrence of such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates")
to Certificate Owners requesting the same or (B) upon the occurrence of
the events specified in Section 5.10(f), the Securities Administrator
shall notify all Certificate Owners in the case of (A) or the Certificate
Owners of the Special Retail Certificates in the case of (B), through the
Depository, of the occurrence of any 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,
Assured Guaranty, the Trustee, the Securities Administrator, the Certificate
Registrar and any agent of the Depositor, the Master Servicer, Assured Guaranty,
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, Assured Guaranty, the Trustee, the Securities Administrator, the
Certificate Registrar or any agent of the Depositor, the Master Servicer,
Assured Guaranty, 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 and Assured Guaranty. 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 and to Assured Guaranty.
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, to Assured Guaranty 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 the Securities Administrator
Fee on each Distribution Date 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 and Assured Guaranty. 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 and Assured Guaranty 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 Assured Guaranty all
amounts required to be distributed pursuant to Section 5.02 hereof and to the
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 to Assured Guaranty or 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 and with respect to amendments affecting the rights or obligations of
Assured Guaranty, with the consent of Assured Guaranty, 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 (without, in the case of
the Class A Certificates, giving effect to the Policy).
This Agreement may also be amended from time to time by the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
with the consent of Assured Guaranty (only with respect to amendments affecting
the rights or obligations of Assured Guaranty) 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, to Assured Guaranty 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 2005-4,
(c) in the case of the Securities Administrator, Xxxxx Fargo Bank, N.A., X.X.
Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: BAFC, Series 2005-4, and for
overnight delivery purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: BAFC, Series 2005-4, with a copy to
Xxxxx Fargo Bank, N.A., Sixth and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx,
00000, Attention: BAFC, Series 2005-4, (d) in the case of the Trustee, Wachovia
Bank, National Association, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: Structured Finance Services, BAFC 2005-4, (e) in the case of
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Residential Mortgage Monitoring Group, (f) in the case of S&P, Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Surveillance Manager and (g) in
the case of Assured Guaranty, to Assured Guaranty Corp., 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Risk Management Department and
General Counsel, Re: Policy No. D-2005-65 (in each case in which notice or other
communication to Assured Guaranty refers to an Assured Guaranty Default or a
claim under the Policy or with respect to which failure on the part of Assured
Guaranty to respond shall be deemed to constitute consent or acceptance, then a
copy of such notice or other communication should also be sent to the attention
of the General Counsel and shall be marked to indicate "URGENT MATERIAL
ENCLOSED") 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.
Section 11.10 Third Party Beneficiary. For so long as no Assured
Guaranty Default has occurred and is continuing, Assured Guaranty shall be a
third party beneficiary to this Agreement to the extent of its rights hereunder
and the rights of the Holders of the Class A Certificates.
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 August, 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 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 __th day of August, 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
Banc of America Funding Corporation, a Delaware corporation, one of the parties
that executed the foregoing instrument; and that she signed her name thereto by
order of the Board of Directors of such corporation.
_______________________________
Notary Public
[Notarial Seal]
My commission expires ____________
[Notary Page to the Pooling and Servicing Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the __th day of August, 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 August, 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 she is a
__________________ of Xxxxx Fargo Bank, N.A., a national banking association,
one of the parties that executed the foregoing instrument; and that s/he signed
his name thereto by order of the Board of Directors of such association.
_______________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
[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 2005-4
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 2005-4
Class 1-A-1
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $10,509,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X ZV 8
ISIN No.: US05946XZV80
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 2005-4
Class 1-A-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class 1-A-2
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $79,986,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X ZW 6
ISIN No.: US05946XZW63
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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-3
[FORM OF FACE OF CLASS 1-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class 1-A-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class 1-A-3
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $9,351,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X ZX 4
ISIN No.: US05946XZX47
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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-4
[FORM OF FACE OF CLASS 1-A-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
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.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF ANY
REALIZED LOSSES ALLOCATED TO THE CLASS 1-A-1 CERTIFICATES WILL BE BORNE BY THE
CLASS 1-A-4 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class 1-A-4
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $500,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X ZY 2
ISIN No.: US05946XZY20
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 2005-4
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 2005-4
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 two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X B7 7
ISIN No.: US05946XB777
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 2005-4
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 2005-4
Class 2-A-1
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $18,017,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X ZZ 9
ISIN No.: US05946XZZ94
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 2005-4
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.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class 2-A-2
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $17,361,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X A2 9
ISIN No.: US05946XA290
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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-3
[FORM OF FACE OF CLASS 2-A-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class 2-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 2005-4
Class 2-A-3
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $136,265,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X A3 7
ISIN No.: US05946XA373
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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-4
[FORM OF FACE OF CLASS 2-A-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class 2-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.
AFTER THE SENIOR CREDIT SUPPORT DEPLETION DATE, THE PRINCIPAL PORTION OF ANY
REALIZED LOSSES ALLOCATED TO THE CLASS 2-A-1 CERTIFICATES WILL BE BORNE BY THE
CLASS 2-A-4 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class 2-A-4
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 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 A4 5
ISIN No.: US05946XA456
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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-A
[FORM OF FACE OF CLASS A CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class A
[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 2005-4
Class A
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $14,822,000.00
Pass-Through Rate: 5.250%
CUSIP No.: 05946X A5 2
ISIN No.: US05946XA522
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the current
Certificate Balance of this Certificate by the current Class Certificate Balance
of the Class to which this Certificate belongs) in certain monthly distributions
with respect to a Trust consisting primarily of the Mortgage Loans deposited by
Banc of America Funding Corporation (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated August 30, 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.
For the purposes of determining distributions of interest and
distributions of principal in reduction of Class Certificate Balance, the Class
A Certificates will be deemed to consist of two components (each, a "Component"
and individually, the "Class A-A Component" and the "Class A-B Component"). The
amount of interest which accrues on the Class A Certificates in any month will
equal the sum of the interest which accrues on the Components. 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 A-2
[FORM OF FACE OF CLASS A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
Class 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 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 2005-4
Class A-2
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Notional Amount
of this Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $431,185.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X A6 0
ISIN No.: US05946XA605
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 August 30, 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 A-2 Certificate is not entitled to any distributions with
respect to principal.
For the purposes of determining distributions of interest, the Class A-2
Certificates will be deemed to consist of two components (each, a "Component"
and individually, the "Class A-2-A Component" and the "Class A-2-B Component").
The amount of interest which accrues on the Class A-2 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-IO
[FORM OF FACE OF CLASS 30-IO CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-4
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 2005-4
Class 30-IO
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Notional
Amount of this
Certificate
("Denomination"): $
Initial Notional
Amount of this Class: $7,647,972.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X A7 8
ISIN No.: US05946XA787
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 August 30, 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 Certificates will be deemed to consist of two components (each, a
"Component" and individually, the "Class 1-IO Component" and the "Class 2-IO
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 2005-4
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 2005-4
Class 30-PO
evidencing an interest in a Trust consisting primarily two loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-Off Date: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $1,342,071.00
CUSIP No.: 05946X A8 6
ISIN No.: US05946XA860
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 two components (each, a "Component" and individually, the "Class 1-PO
Component" and the "Class 2-PO 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 2005-4
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 2005-4
Class B-1
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $6,006,000.00
Pass-Through Rate: 5.500%
CUSIP No.: 05946X A9 4
ISIN No.: US05946XA944
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 2005-4
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 2005-4
Class B-2
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,102,000.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X B2 8
ISIN No.: US05946XB280
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 2005-4
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 2005-4
Class B-3
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $900,000.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X B3 6
ISIN No.: US05946XB363
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 2005-4
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 2005-4
Class B-4
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $901,000.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X B4 4
ISIN No.: US05946XB447
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 2005-4
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 2005-4
Class B-5
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $751,000.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X B5 1
ISIN No.: US05946XB512
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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 2005-4
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 2005-4
Class B-6
evidencing an interest in a Trust consisting primarily of two 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: August 1, 2005
First Distribution Date: September 26, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $450,786.00
Pass-Through Rate 5.500%
CUSIP No.: 05946X B6 9
ISIN No.: US05946XB694
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the Denomination of
this Certificate by the Initial Class Certificate Balance of the Class to which
this Certificate belongs) in certain monthly distributions with respect to a
Trust consisting primarily of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated August 30, 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; provided, however, that in
the case of the Class A Certificates, distributions of principal to which such
Class is entitled will be made to the Holders of such Class as described in
Section 5.10 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 E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: The Pooling and Servicing Agreement dated August 30, 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 Banc of America
Funding Corporation)
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
[Date]
[_______________] hereby certifies that it has established a
[__________] Account pursuant to Section [________] of the Pooling and Servicing
Agreement, dated August 30, 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
[Date]
Xxxxx Fargo Bank, N.A.
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-4, Class ___, having an initial
aggregate Certificate Balance as of August 30, 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 August 30, 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
[Date]
Xxxxx Fargo Bank, N.A.
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-4, Class ___, having an initial
aggregate Certificate Balance as of August 30, 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 August 30, 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.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the state
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Transferred Certificates in the case of a U.S. bank, and
not more than 18 months preceding such date of sale in the case
of a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions, or is a foreign savings
and loan association or equivalent institute and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements, a copy of which is attached
hereto, as of a date not more than 16 months preceding the date
of sale of the Transferred Certificates in the case of a U.S.
savings and loan association, and not more than 18 months
preceding such date of sale in the case of a foreign savings and
loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency
or instrumentality of the state or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex
2 rather than this Annex 1.)
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee, (ii) securities that are
part of an unsold allotment to or subscription by the Transferee, if the
Transferee is a dealer, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
____________________________________
Print Name of Transferee
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Date: ______________________________________
--------
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.
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
[Date]
Xxxxx Fargo Bank, N.A.
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-4, Class ___, having an initial
aggregate Certificate Principal Balance as of August 30, 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 August 30, 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 (e) above) would constitute a distribution of the
Transferred Certificates under the 1933 Act, would render the disposition of the
Transferred Certificates a violation of Section 5 of the 1933 Act or any state
securities law or would require registration or qualification of the Transferred
Certificates pursuant thereto. The Transferee will not act, nor has it
authorized nor will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to the Transferred Certificates, any
interest in the Transferred Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
____________________________________
(Transferee)
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Date: ______________________________________
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
____________________________________________
(Nominee)
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-4, Class ___, having an initial
aggregate Certificate Principal Balance as of August 30, 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 August 30, 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 2005-4
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 August 30, 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
August 30, 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 2005-4
Re: The Pooling and Servicing Agreement, dated August 30, 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 2005-4
Re: The Pooling and Servicing Agreement, dated August 30, 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 2005-4
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 2005-4 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 August 30, 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 2005-4
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 August 30, 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 Policy]
ASSURED GUARANTY
Assured Guaranty Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
000-000-0000
xxx.xxxxxxxxxxxxxxx.xxx
--------------------------------------------------------------------------------
Financial Guaranty Insurance Policy
Insured Obligations: Banc of America Funding Policy No.: D-2005-65
Corporation, Banc of America Funding 2005-4 Trust
Mortgage Pass-Through Certificates, Series 2005-4,
$14,822,000 Class A Certificates Effective Date: August 30, 2005
Assured Guaranty Corp., a Maryland-domiciled insurance company ("Assured
Guaranty"), in consideration of the payment of the premium and subject to the
terms of this Policy (which includes each endorsement hereto), hereby
unconditionally and irrevocably agrees to pay to the Trustee for the benefit of
the Holders of the Insured Obligations, that portion of the Insured Amounts
which shall become Due for Payment but shall be unpaid by reason of Nonpayment.
Assured Guaranty will make payment of any amount required to be paid
under this Policy following receipt of notice as described in Endorsement No. 1
hereto. Such payments of principal and interest shall be made only upon
presentation of an instrument of assignment in form and substance satisfactory
to Assured Guaranty, transferring to Assured Guaranty all rights under such
Insured Obligations to receive the principal of and interest on the Insured
Obligations. Payment by Assured Guaranty to the Trustee for the benefit of the
Holders shall discharge the obligations of Assured Guaranty under this Policy to
the extent of such payment. Assured Guaranty shall be subrogated to the rights
of each Holder to receive payments in respect of the Insured Obligations to the
extent of any payment by Assured Guaranty under this Policy.
In the event that the Trustee for the Insured Obligations has notice
that any payment of principal of or interest on an Insured Obligation which has
become Due for Payment and which has been made to a Holder by or on behalf of
the Trustee has been deemed a preferential transfer and has been recovered from
such Holder pursuant to the United States Bankruptcy Code in accordance with a
final, nonappealable order of a court of competent jurisdiction, such Holder
will be entitled to payment from Assured Guaranty to the extent of such recovery
if sufficient funds are not otherwise available (in accordance with Endorsement
No. 1 to this Policy).
This Policy is non-cancelable by Assured Guaranty for any reason. The
premium on this Policy is not refundable for any reason. This Policy does not
insure against loss of any prepayment or other acceleration payment which at any
time may become due in respect of any Insured Obligation, other than at the sole
option of Assured Guaranty, nor against any risk other than Nonpayment,
including the failure of the Trustee to remit amounts received to the Holders of
Insured Obligations and any shortfalls attributable to taxes or withholding
taxes, including interest and penalties in respect of such liability.
To the fullest extent permitted by applicable law, Assured Guaranty
hereby waives, in each case for the benefit of the Holders only, all rights and
defenses of any kind that may be available to Assured Guaranty with respect to
the obligation to pay the amounts due hereunder in full.
This Policy (which includes each endorsement hereto) sets forth in full
the undertaking of Assured Guaranty with respect to the subject matter hereof,
and may not be modified, altered or affected by any other agreement or
instrument, including without limitation any modification thereto or amendment
thereof.
This Policy shall be governed by, and shall be construed in accordance
with, the laws of the State of New York.
THIS POLICY IS NOT COVERED BY THE PROPERTY/CASUALTY INSURANCE SECURITY
FUND SPECIFIED IN ARTICLE 76 OF THE NEW YORK INSURANCE LAW.
Capitalized terms used and not defined herein shall have the meanings
ascribed thereto in the endorsement attached hereto.
IN WITNESS WHEREOF, Assured Guaranty has caused this Policy to be
affixed with its corporate seal, signed by its duly authorized officer and to
become effective and binding upon Assured Guaranty by virtue of such signature.
ASSURED GUARANTY CORP.
[SEAL]
By: _____________________________
Name:
Title:
ASSURED GUARANTY
Assured Guaranty Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
000-000-0000
xxx.xxxxxxxxxxxxxxx.xxx
--------------------------------------------------------------------------------
Endorsement No. 1 to Financial Guaranty Insurance Policy
Attached to and forming a part of Effective Date: August 30, 2005
Financial Guaranty Insurance Policy No. D-2005-65
Issued To: Xxxxx Fargo Bank, N.A., for the Holders of the Banc of
America Funding Corporation, Banc of America Funding 2005-4 Trust
Mortgage Pass-Through Certificates, Series 2005-4, $14,822,000
Class A Certificates
This endorsement forms a part of the Policy referenced above. To the
extent the provisions of this endorsement conflict with the provisions of the
above-referenced Policy, the provisions of this endorsement shall govern.
SECTION 1. Definitions
(a) (i) All references to the "Trustee" in the first three paragraphs of
the Policy shall mean, and be reference to, "the Securities Administrator".
(ii) The reference to "the Trustee" in the fourth paragraph of the
Policy shall mean, and be reference to, "the Trustee or the Securities
Administrator".
(b) For purposes of the Policy, the following terms shall have the
following meanings:
"Beneficiary" shall mean the Securities Administrator, on behalf of and
for the benefit of, the Holders of the Insured Obligations.
"Business Day" shall mean any day other than (i) a Saturday or Sunday,
(ii) any other day on which banking institutions in the City of New York, the
State of Maryland, or the city in which the Corporate Trust Office of the
Securities Administrator or the Trustee is located are authorized or required by
law, executive order or governmental decree to be closed, or (iii) a day on
which the Insurer is closed.
"Deficiency Amount" shall mean, with respect to the Insured
Certificates, the sum of (i) for each Distribution Date, the sum of the Class A
Interest Loss Amount and the Class A Principal Loss Amount for such Distribution
Date and (ii) on the Final Scheduled Distribution Date or, with the consent of
the Insurer, upon the earlier termination of the Trust pursuant to the terms of
the Pooling Agreement, the principal balance of the Insured Certificates after
giving effect to any distributions on such Distribution Date; provided, however,
that "Deficiency Amount" shall not include any additional amounts owing by the
Trust as a result of the failure by the Trustee or the Securities Administrator
to pay an amount when due and payable, including, without limitation, any such
additional amounts as may be attributable to penalties or default interest
rates, amounts in respect of indemnification, or any other additional amounts
payable by reason of such a default. "Deficiency Amount" does not include any
Prepayment Interest Shortfalls or Relief Act Reductions allocated to the Class A
Certificates or any shortfall attributable to the liability of the Trust, any
REMIC, the Trustee or the Securities Administrator for withholding or other
taxes, including interest and penalties in respect of such liability allocated
to the Class A Certificates.
"Due for Payment" shall mean (i) with respect to the Class A Interest
Loss Amount and the Class A Principal Loss Amount for any Distribution Date, the
Distribution Date on which such amount is due and payable pursuant to the terms
of the Pooling Agreement (without giving effect to any acceleration thereof),
(ii) with respect to the amount in clause (ii) of the definition of "Deficiency
Amount," the date on which such amount is due and payable as described in such
clause (ii), and (iii) with respect to a Preference Amount, the Business Day on
which the documentation required by the Insurer has been Received by the
Insurer.
"Final Scheduled Distribution Date" shall mean the Distribution Date
occurring in August 2035.
"Fiscal Agent" shall have the meaning assigned thereto in Section 4.
"Holder" shall mean each Certificateholder who, on the applicable
Distribution Date, is entitled under the terms of the Insured Obligations to
payment thereunder.
"Insolvency Proceeding" shall mean the commencement after the date
hereof of any bankruptcy, insolvency, readjustment of debt, reorganization,
marshalling of assets and liabilities or similar proceedings by or against any
Person, or the commencement after the date hereof of any proceedings by or
against any Person for the winding up or the liquidation of its affairs, or the
consent after the date hereof to the appointment of a trustee, conservator,
administrator, receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, reorganization, marshalling of assets and liabilities or
similar proceedings relating to any Person.
"Insured Amount" shall mean, with respect to any Distribution Date and
the Insured Obligations, the Deficiency Amount for such Distribution Date and
any Preference Amount.
"Insured Obligation" shall mean the Banc of America Funding
Corporation, Banc of America Funding 2005-4 Trust Mortgage Pass-Through
Certificates, Series 2005-4, $14,822,000 Class A Certificates.
"Insured Payment" shall mean, with respect to any Distribution Date,
the aggregate amount paid by the Insurer to the Securities Administrator in
respect of (i) the Deficiency Amount for such Distribution Date and (ii)
Preference Amounts for any given Business Day.
"Insurer" shall mean Assured Guaranty Corp., a Maryland-domiciled
insurance company, and any successor thereto, as issuer of the Policy.
"Issuer" shall mean Banc of America Funding 2005-4 Trust.
"Nonpayment" shall mean, with respect to any Distribution Date, an
Insured Amount is Due for Payment but the funds, if any, remitted to the
Securities Administrator pursuant to the Pooling Agreement are insufficient for
payment in full of such Insured Amount.
"Notice of Claim" shall mean a notice of claim in the form of Exhibit A
hereto.
"Order" shall mean a final nonappealable order of a court or other body
exercising jurisdiction in an Insolvency Proceeding by or against the Trust, to
the effect that a Holder or the Beneficiary is required to return or repay all
or any portion of a Preference Amount.
"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
"Policy" shall mean Financial Guaranty Insurance Policy No. D-2005-65,
together with each and every endorsement thereto.
"Pooling Agreement" shall mean the Pooling and Servicing Agreement,
dated August 30, 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, without regard to any amendment
or supplement thereto unless such amendment or supplement has been approved in
writing by the Insurer if required pursuant to the amendment provisions of such
agreement.
"Preference Amount" shall mean any payment of principal or interest
previously distributed by or on behalf of the Trust to a Holder of Insured
Obligations, which would have been covered under the Policy as a Deficiency
Amount if there had been a shortfall in funds available to make such payment on
the required Distribution Date for such payment, which has been deemed a
preferential transfer and has been recovered from such Holder pursuant to the
United States Bankruptcy Code in accordance with an Order.
"Receipt" and "Received" shall mean actual delivery to the Insurer
prior to 12:00 p.m., New York City time, on a Business Day; provided, however,
that delivery either on a day that is not a Business Day, or after 12:00 p.m.,
New York City time, on a Business Day, shall be deemed to be "Received" on the
next succeeding Business Day. For purposes of this definition, "actual delivery"
to the Insurer shall mean (i) the delivery of the original Notice of Claim,
notice or other applicable documentation to the Insurer at its address set forth
in Section 7, or (ii) facsimile transmission of the original Notice of Claim,
notice or other applicable documentation to the Insurer at its facsimile number
set forth in Section 7. If presentation is made by facsimile transmission, the
Beneficiary (i) promptly shall confirm transmission by telephone to the Insurer
at its telephone number set forth in Section 7, and (ii) as soon as is
reasonably practicable, shall deliver the original Notice of Claim, notice or
other applicable documentation to the Insurer at its address set forth in
Section 7. If any Notice of Claim, notice or other documentation actually
delivered (or attempted to be delivered) under the Policy by the Beneficiary is
not in proper form or is not properly completed, executed or delivered, or
otherwise is insufficient for the purpose of making a claim hereunder, "Receipt"
by the Insurer shall be deemed not to have occurred, and the Insurer promptly
shall so advise the Beneficiary. In such case, the Beneficiary may submit an
amended Notice of Claim, notice or other documentation, as the case may be, to
the Insurer.
"Reimbursement Amount" shall mean the amount of all Insured Payments
and other payments made by the Insurer pursuant to the Policy which have not
been previously repaid (without any interest on such amount).
"Relief Act Reductions" shall mean interest shortfalls resulting from
the application of the Servicemembers Relief Act, as amended, or any similar
state law.
"Securities Administrator" shall mean Xxxxx Fargo Bank, N.A. and any
successor in interest, and, if a successor securities administrator is appointed
pursuant to the Pooling Agreement, such successor.
"Term of the Policy" shall mean the period from and including the
Effective Date to and including the date that is one year and one day following
the earlier to occur of (i) the date on which all amounts required to be paid on
the Class A Certificates have been paid in full and (ii) the Final Scheduled
Distribution Date; provided, however, that in the event that any amount with
respect to any Insured Payment paid to the Beneficiary pursuant to the Pooling
Agreement during the Term of the Policy becomes a Preference Amount, the
Insurer's obligations with respect thereto shall remain in effect or shall be
reinstated, as applicable, until payment in full by the Insurer pursuant to the
terms hereof.
"Trustee" shall mean Wachovia Bank, National Association and its
successors and, if a successor trustee is appointed pursuant to the Pooling
Agreement, such successor.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Pooling Agreement as of the date of execution of
the Policy, without giving effect to any subsequent amendment to or modification
of the Pooling Agreement unless such amendment or modification has been approved
in writing by the Insurer pursuant to the amendment provisions of the Pooling
Agreement.
SECTION 2. Claims
The Beneficiary may make a claim under this Policy for the amount of
any Deficiency Amount by executing and delivering, or causing to be executed and
delivered, to the Insurer a Notice of Claim, with appropriate insertions. Such
Notice of Claim, when so completed and delivered, shall constitute proof of a
claim hereunder when Received by the Insurer.
In the event that any amount shall be received by the Beneficiary in
respect of a Deficiency Amount forming the basis of a claim specified in a
Notice of Claim submitted hereunder, which amount had not been received when the
Notice of Claim was prepared but which is received by the Beneficiary prior to
the receipt of payment from the Insurer as contemplated by this Policy (any such
amount, a "Recovery"), the Beneficiary immediately shall so notify the Insurer
(which notice shall include the amount of any such Recovery). The fact that a
Recovery has been received by the Beneficiary shall be deemed to be incorporated
in the applicable Notice of Claim as of the date such Notice of Claim originally
was prepared, without necessity of any action on the part of any Person, and the
Insurer shall pay the amount of the claim specified in the Notice of Claim as
herein provided, net of the Recovery.
The Insurer will pay each Insured Amount that constitutes a Deficiency
Amount to the Beneficiary no later than noon, New York City time, on the later
of (i) the Distribution Date on which such Deficiency Amount becomes Due for
Payment or (ii) the third Business Day following Receipt by the Insurer on a
Business Day in New York, New York of a Notice of Claim as specified in the
second preceding paragraph.
The Insurer will pay each Insured Amount that constitutes a Preference
Amount when due to be paid pursuant to an applicable Order, but in any event no
earlier than the fourth Business Day following Receipt by the Insurer from the
Beneficiary of (i) a certified copy of such Order, (ii) a certificate by or on
behalf of the Beneficiary that such Order has been entered and is not subject to
any stay, (iii) an assignment, in form and substance satisfactory to the
Insurer, duly executed and delivered by the Beneficiary, irrevocably assigning
to the Insurer all rights and claims of the Beneficiary against the estate of
the Trust or otherwise, which rights and claims relate to or arise under or with
respect to the subject Preference Amount, and (iv) a Notice of Claim
appropriately completed and executed by the Beneficiary. Such payment shall be
disbursed to the receiver, conservator, administrator, debtor-in-possession or
trustee in bankruptcy named in the Order, and not to the Beneficiary directly,
unless the Beneficiary has previously paid the Preference Amount over to such
court or receiver, conservator, administrator, debtor-in-possession, or trustee
in bankruptcy, in which case the Insurer will pay the Beneficiary subject to the
delivery of (a) the items referred to in clauses (i), (ii), (iii) and (iv) above
to the Insurer, and (b) evidence satisfactory to the Insurer that payment has
been made to such court or receiver, conservator, administrator,
debtor-in-possession or trustee in bankruptcy named in the Order.
Notwithstanding the foregoing paragraph, in no event shall the Insurer
be obligated to make any payment in respect of a Preference Amount prior to the
date such Preference Amount is Due for Payment. In the event that the payment of
any amount in respect of any Insured Amount is accelerated or must otherwise be
paid by the Trust in advance of the scheduled payment date therefore, nothing in
this Policy shall be deemed to require the Insurer to make any payment hereunder
in respect of any such Insured Amount prior to the date such Insured Amount
otherwise would have been Due for Payment without giving effect to such
acceleration, unless the Insurer in its sole discretion elects to make any prior
payment, in whole or in part, with respect to any such Insured Amount.
No claim may be made hereunder except by the Beneficiary.
SECTION 3. Payments
Payments due hereunder in respect of Insured Amounts shall be disbursed
to the Beneficiary by wire transfer of immediately available funds to an account
of the Beneficiary specified in the applicable Notice of Claim.
The Insurer's obligations hereunder in respect of Insured Amounts shall
be discharged to the extent that funds are transferred to the Beneficiary as
provided in the Notice of Claim, whether or not such funds are properly applied
by the Beneficiary.
SECTION 4. Fiscal Agent
At any time during the Term of the Policy, the Insurer may appoint a
fiscal agent (the "Fiscal Agent") for purposes of this Policy by written notice
to the Beneficiary, specifying the name and notice address of such Fiscal Agent.
From and after the date of receipt of such notice by the Beneficiary, copies of
all notices and documents required to be delivered to the Insurer pursuant to
this Policy shall be simultaneously delivered to the Fiscal Agent and to the
Insurer. All payments required to be made by the Insurer under this Policy may
be made directly by the Insurer or by the Fiscal Agent on behalf of the Insurer.
The Fiscal Agent is the agent of the Insurer only, and the Fiscal Agent shall in
no event be liable to the Beneficiary for any acts of the Fiscal Agent or any
failure of the Insurer to deposit, or cause to be deposited, sufficient funds to
make payments due under this Policy.
SECTION 5. Subrogation
The Insurer shall be subrogated to the rights of each Holder to receive
distributions in respect of the Insured Obligations to the extent of any payment
by the Insurer hereunder. Any payment made by or on behalf of the Trust to, and
any amounts received under the Pooling Agreement for the benefit of, the Holders
in respect of any Insured Payment forming the basis of a claim hereunder (which
claim shall have been paid by the Insurer) shall be received and held in trust
for the benefit of the Insurer and shall be paid over to the Insurer in
accordance with the Pooling Agreement. The Beneficiary and each Holder shall
cooperate in all reasonable respects, and at the expense of the Insurer, with
any request by the Insurer for action to preserve or enforce the Insurer's
rights and remedies in respect of the Trust under the Insured Obligations, any
related security arrangements or otherwise, including without limitation any
request to (i) institute or participate in any suit, action or other proceeding,
(ii) enforce any judgment obtained and collect from the Trust or the Beneficiary
any amounts adjudged due or (iii) transfer to the Insurer, via absolute legal
assignment, the Beneficiary's or such Holder's rights in respect of any
Reimbursement Amount which may form the basis of a claim hereunder.
SECTION 6. Assignment
This Policy may not be assigned by the Beneficiary without the prior
written consent of the Insurer.
SECTION 7. Notices
All notices, presentations, transmissions, deliveries and
communications made by the Beneficiary to the Insurer with respect to this
Policy shall specifically refer to the number of this Policy, shall be in
writing (except as otherwise specifically provided herein) and shall be mailed
by registered mail or personally delivered or telecopied to the recipient as
follows:
if to the Insurer:
Assured Guaranty Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Risk Management Department
(BAFC 2005-4, Policy No. D-2005-65)
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to the General Counsel at the above address and telecopier number.
In each case in which a demand, notice or other communication to
Assured Guaranty refers to an Event of Default, a claim on this
Policy or any event with respect to which failure on the part of
Assured Guaranty to respond shall be deemed to constitute consent
or acceptance, then such demand, notice or other communication
shall be marked to indicate "URGENT MATERIAL ENCLOSED".
if to the Beneficiary:
Xxxxx Fargo Bank, N.A., as Securities Administrator
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: BAFC Series 2005-4
The Insurer or the Beneficiary may designate an additional or different
address, or telephone or telecopier number, by prior written notice. Each
notice, presentation, delivery and communication to the Insurer shall be
effective only upon Receipt by the Insurer.
SECTION 8. Premiums
The Beneficiary shall pay or cause to be paid to the Insurer in
accordance with the Pooling Agreement the premium payable to the Insurer in
respect of this Policy.
SECTION 9. Termination
This Policy and the obligations of the Insurer hereunder shall
terminate upon the expiration of the Term of the Policy.
SECTION 10. No Waiver
No waiver of any rights or powers of the Insurer or the Beneficiary, or
any consent by either of them, shall be valid unless in writing and signed by an
authorized officer or agent of the Insurer or Beneficiary, as applicable. The
waiver of any right by the Insurer or the Beneficiary, or the failure promptly
to exercise any such right, shall not be construed as a waiver of any other
right to exercise the same at any time thereafter.
SECTION 11. Submission to Jurisdiction
The Insurer hereby irrevocably submits to the jurisdiction of the
United States District Court for the Southern District of New York and any court
in the State of New York located in the City and County of New York, and any
appellate court which hears appeals from any such court, in any action, suit or
proceeding brought against it in connection with its obligations under this
Policy, or for recognition or enforcement of any judgment with respect thereto,
and the Insurer hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard or determined in such New
York State court or, to the extent permitted by law, in such United States
federal court. The Insurer agrees that a final judgment in any such action, suit
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment, or in any other manner provided by applicable law. To the
extent permitted by applicable law, the Insurer hereby waives and agrees not to
assert by way of motion, as a defense or otherwise in any such suit, action or
proceeding, any claim (i) that it is not personally subject to the jurisdiction
of such courts, (ii) that the suit, action or proceeding is brought in an
inconvenient forum, (iii) that the venue of the suit, action or proceeding is
improper or (iv) that the subject matter thereof may not be litigated in or by
such courts.
IN WITNESS WHEREOF, Assured Guaranty has caused this Endorsement to the
Policy to be signed by its duly authorized officer to become effective and
binding upon Assured Guaranty by virtue of such signature.
ASSURED GUARANTY CORP.
By: ___________________________
Name:
Title:
EXHIBIT A
NOTICE OF NONPAYMENT AND DEMAND FOR PAYMENT OF INSURED AMOUNTS
--------------------------------------------------------------
[Insert Date]
Assured Guaranty Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Risk Management Department and General Counsel
Reference is made to Financial Guaranty Insurance Policy No. D-2005-65 (the
"Policy") issued by Assured Guaranty Corp. (the "Insurer"). Capitalized terms
used herein and not otherwise defined shall have the meaning assigned to them in
the Policy and the Pooling and Servicing Agreement, dated August 30, 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 (the "Pooling Agreement"), as the case may be, unless
the context otherwise requires.
The undersigned, a duly authorized officer of the Securities Administrator,
hereby certifies to the Insurer that:
(i) The Securities Administrator is the Securities Administrator under the
Pooling Agreement for the Holders.
(ii) The relevant Distribution Date is [insert applicable payment date].
(iii) The amount due under clause (i) of the definition of Deficiency
Amount for such Distribution Date is $__________.
(iv) The amount due under clause (ii) of the definition of Deficiency
Amount for such Distribution Date is $__________.
(v) The sum of the amounts listed in paragraphs (iii) and (iv) above is
$__________ (the "Deficiency Amount").
(vi) The amount of previously distributed payments in respect of an Insured
Obligation that is recoverable and sought to be recovered as a voidable
preference by a trustee in bankruptcy pursuant to an Insolvency Proceeding in
accordance with a final nonappealable order of a court having competent
jurisdiction is $[insert applicable amount] (the "Preference Amount").
(vii) The total Insured Amount due is $__________, which amount equals the
sum of the Deficiency Amount and the Preference Amount.
(viii) The Securities Administrator is making a claim under the Policy for
the Insured Amount.
(ix) The Securities Administrator agrees that, following payment by the
Insurer made with respect to the Insured Amount, which is the subject of this
Notice of Claim, it (a) will cause such amounts to be applied directly to the
payment of the applicable Insured Amount; (b) will insure that such funds are
not applied for any other purpose; and (c) will cause an accurate record of such
payment to be maintained with respect to the appropriate Insured Amount(s), the
corresponding claim on the Policy, and the proceeds of such claim.
Payment should be made by wire transfer to the following account:
[______________]
ABA No.: [________]
Account No: [________]
Reference: [________]
Upon payment of the applicable Deficiency Amount(s), the Insurer shall be
subrogated to the rights of the Beneficiary with respect to such payment, to the
extent set forth on the face page to the Policy and Section 5 of Endorsement No.
1 thereto.
This Notice of Claim may be revoked at any time by written notice of such
revocation by the Securities Administrator to the Insurer.
ANY PERSON WHO KNOWINGLY AND WITH INTENT TO DEFRAUD ANY INSURANCE COMPANY
OR OTHER PERSON FILES AN APPLICATION FOR INSURANCE OR STATEMENT OF CLAIM
CONTAINING ANY MATERIALLY FALSE INFORMATION, OR CONCEALS FOR THE PURPOSE OF
MISLEADING, INFORMATION CONCERNING ANY FACT MATERIAL THERETO, COMMITS A
FRAUDULENT INSURANCE ACT, WHICH IS A CRIME AND SHALL ALSO BE SUBJECT TO A CIVIL
PENALTY NOT TO EXCEED FIVE THOUSAND DOLLARS AND THE STATED VALUE OF THE CLAIM
FOR EACH SUCH VIOLATION.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Notice
of Claim as of the __ day of _________ of 20__.
[Insert Name of Securities Administrator],
as Securities Administrator
By: ______________________________________
Name:
Title:
