EXHIBIT 4.1
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ FUNDING CORPORATION,
as Depositor
▇▇▇▇▇ FARGO BANK, N.A.,
as Master Servicer and as Securities Administrator
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated June 30, 2005
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Mortgage Pass-Through Certificates
Series 2005-D
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TABLE OF CONTENTS
Page
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PRELIMINARY STATEMENT..........................................................1
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms...................................................2
Section 1.02 Calculations...................................................23
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans...................................23
Section 2.02 Acceptance by the Trustee of the Mortgage Loans................27
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer....................................................31
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans..............................................32
Section 2.05 Designation of Interests in the REMICs.........................33
Section 2.06 Designation of Start-up Day....................................33
Section 2.07 REMIC Certificate Maturity Date................................33
Section 2.08 Execution and Delivery of Certificates.........................33
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.........................33
Section 3.02 Monitoring of the Servicer.....................................34
Section 3.03 Fidelity Bond; Errors and Omissions Insurance..................35
Section 3.04 Access to Certain Documentation................................35
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims.......35
Section 3.06 Rights of the Depositor, the Securities Administrator
and the Trustee in Respect of the Master Servicer.......... 36
Section 3.07 Trustee to Act as Master Servicer..............................36
Section 3.08 Servicer Custodial Account.....................................36
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Account, Servicer Custodial Account,
Distribution Account and Reserve Account....................37
Section 3.10 Collection of Taxes, Assessments and Similar Items;
Escrow Account..............................................39
Section 3.11 Access of Securities Administrator and Trustee to
Certain Documentation and Information Regarding the
Mortgage Loans..............................................39
Section 3.12 Permitted Withdrawals from the Master Servicer Custodial
Account and the Distribution Account........................39
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Section 3.13 Maintenance of Hazard Insurance and Other Insurance............40
Section 3.14 Presentment of Claims and Collection of Proceeds...............41
Section 3.15 Enforcement of Due-On-Sale Clauses; Assumption Agreements......41
Section 3.16 Realization Upon Defaulted Mortgage Loans; REO Property........41
Section 3.17 Trustee to Cooperate; Release of Mortgage Files................43
Section 3.18 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.........................44
Section 3.19 Master Servicer Compensation...................................44
Section 3.20 Annual Statement as to Compliance..............................44
Section 3.21 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.............................45
Section 3.22 Advances.......................................................45
Section 3.23 Reports to the Securities and Exchange Commission..............45
ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate..................................47
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS; REMIC ADMINISTRATION
Section 5.01 Distributions..................................................48
Section 5.02 Priorities of Distributions....................................48
Section 5.03 Allocation of Losses...........................................51
Section 5.04 Statements to Certificateholders...............................52
Section 5.05 Tax Returns and Reports to Certificateholders..................55
Section 5.06 Tax Matters Person.............................................55
Section 5.07 Rights of the Tax Matters Person in Respect of the
Securities Administrator....................................55
Section 5.08 REMIC Related Covenants........................................56
Section 5.09 Master Servicer, Securities Administrator and Trustee
Indemnification.............................................57
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates...............................................58
Section 6.02 Registration of Transfer and Exchange of Certificates..........59
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates..............63
Section 6.04 Persons Deemed Owners..........................................63
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ARTICLE VII
THE DEPOSITOR AND THE MASTER SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Master
Servicer....................................................64
Section 7.02 Merger or Consolidation of the Depositor or the Master
Servicer....................................................64
Section 7.03 Limitation on Liability of the Depositor, the Master
Servicer and Others.........................................64
Section 7.04 Depositor and Master Servicer Not to Resign....................65
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default..............................................65
Section 8.02 Remedies of Trustee............................................67
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default.....................................67
Section 8.04 Action upon Certain Failures of the Master Servicer and
upon Event of Default.......................................67
Section 8.05 Trustee to Act; Appointment of Successor.......................67
Section 8.06 Notification to Certificateholders.............................68
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator.................69
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator...............................................70
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans..............................72
Section 9.04 Trustee and Securities Administrator May Own Certificates......73
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator...............................................73
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator...............................................74
Section 9.07 Successor Trustee or Securities Administrator..................75
Section 9.08 Merger or Consolidation of Trustee or Securities
Administrator...............................................75
Section 9.09 Appointment of Co-Trustee or Separate Trustee..................76
Section 9.10 Authenticating Agents..........................................77
Section 9.11 Securities Administrator's Fees and Expenses and
Trustee's Expenses..........................................77
Section 9.12 Appointment of Custodian.......................................78
Section 9.13 Paying Agents..................................................78
Section 9.14 Limitation of Liability........................................79
Section 9.15 Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates..........................79
Section 9.16 Suits for Enforcement..........................................80
Section 9.17 Waiver of Bond Requirement.....................................80
Section 9.18 Waiver of Inventory, Accounting and Appraisal
Requirement.................................................80
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ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage
Loans.......................................................80
Section 10.02 Additional Termination Requirements............................82
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment......................................................83
Section 11.02 Recordation of Agreement; Counterparts.........................84
Section 11.03 Limitation on Rights of Certificateholders.....................84
Section 11.04 Governing Law..................................................85
Section 11.05 Notices........................................................85
Section 11.06 Severability of Provisions.....................................86
Section 11.07 Certificates Nonassessable and Fully Paid......................86
Section 11.08 Access to List of Certificateholders...........................86
Section 11.09 Recharacterization.............................................87
Section 11.10 Third Party Beneficiary........................................87
EXHIBITS
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Exhibit A-1 Form of Face of Class A-1 Certificate
Exhibit A-2 Form of Face of Class A-2 Certificate
Exhibit A-R Form of Face of Class A-R 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 Mortgage Loan Schedule
Exhibit E Form of Request for Release
Exhibit F Form of Certification of Establishment of Account
Exhibit G-1 Form of Transferor's Certificate
Exhibit G-2A Form I of Transferee's Certificate
Exhibit G-2B Form II of Transferee's Certificate
Exhibit H Form of Transferee Representation Letter for ERISA Restricted
Certificates
Exhibit I Form of Affidavit Regarding Transfer of Residual Certificate
Exhibit J List of Recordation States
Exhibit K Form of Initial Certification
Exhibit L Form of Final Certification
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Exhibit M Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
Exhibit N Form of Securities Administrator's Certification
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POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated June 30, 2005 is hereby
executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"), ▇▇▇▇▇
FARGO BANK, N.A., as master servicer (in such capacity, together with its
permitted successors and assigns, the "Master Servicer") and as securities
administrator (in such capacity, together with its permitted successors and
assigns, the "Securities Administrator") and WACHOVIA BANK, NATIONAL
ASSOCIATION, as trustee (together with its permitted successors and assigns, the
"Trustee").
WITNESSETH THAT:
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
agree as follows:
PRELIMINARY STATEMENT
The Trust Estate will be treated as a real estate mortgage investment
conduit within the menaing of Section 860D of the Code for United States federal
income tax purposes (the "REMIC"). The Certificates (other than the Class A-R
Certificate) shall constitute "regular interests" in the REMIC for purposes of
the REMIC Provisions. The Class A-R Certificate shall represent the single
"residual interest" in the REMIC for puposes of the REMIC Provisions. The
Certificates will represent the entire beneficial ownership interest in the
Trust. The "latest possible maturity date" for United States federal income tax
purposes of all interests created hereby will be the REMIC Certificate Maturity
Date.
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which the Classes of Certificates shall be issuable:
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Integral
Pass- Multiples
Initial Class Through Minimum in Excess
Classes Certificate Balance Rate Denomination of Minimum
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Class A-1 $1,000,000,000.00 (1) $ 1,000 $1
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Class A-2 $ 57,066,000.00 (1) $ 1,000 $1
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Class A-R $ 100.00 (1) $ 100 N/A
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Class B-1 $ 17,391,000.00 (1) $25,000 $1
--------------------------------------------------------------------------------
Class B-2 $ 4,892,000.00 (1) $25,000 $1
--------------------------------------------------------------------------------
Class B-3 $ 2,717,000.00 (1) $25,000 $1
--------------------------------------------------------------------------------
Class B-4 $ 2,174,000.00 (1) $25,000 $1
--------------------------------------------------------------------------------
Class B-5 $ 1,630,000.00 (1) $25,000 $1
--------------------------------------------------------------------------------
Class B-6 $ 1,087,911.00 (1) $25,000 $1
--------------------------------------------------------------------------------
(1) For each Distribution Date, interest will accrue on these Certificates at a
per annum rate equal to the Net WAC Rate.
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ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article:
1933 Act: The Securities Act of 1933, as amended.
Accrued Certificate Interest: For any Distribution Date and each Class
of Certificates, one month's interest accrued during the related Interest
Accrual Period at the applicable Pass-Through Rate on the related Class
Certificate Balance.
Adjusted Pool Amount: With respect to any Distribution Date, the
Cut-off Date Pool Principal Balance of the Mortgage Loans minus the sum of (i)
all amounts in respect of principal received in respect of the Mortgage Loans
(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 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 from the Cut-off Date through the end of the month preceding
such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Adverse REMIC Event: As defined in Section 5.08.
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 or tax assessed value and (b) the sales price for such
property, except that, in the case of Mortgage Loans the proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value of the related
Mortgaged Property is the appraised value thereof determined in an appraisal
obtained at the time of refinancing or, in certain cases, an automated valuation
model or tax assessed value, or (ii) the appraised value determined in an
appraisal made at the request of a Mortgagor subsequent to origination in order
to eliminate the Mortgagor's obligation to keep a Primary Mortgage Insurance
Policy in force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
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Authenticating Agents: As defined in Section 9.10.
BAFC: Banc of America Funding Corporation or its successor in
interest.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
Book-Entry Certificate: All Classes of Certificates other than the
Physical Certificates.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the State of North Carolina, the State of
New York, the State of Minnesota, the State of Maryland, the state in which the
master servicing offices of the Master Servicer is located or the states in
which the Corporate Trust Offices of the Trustee and the Securities
Administrator are located are required or authorized by law or executive order
to be closed.
Calculated Principal Distribution: As defined in Section 5.03(c).
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2005-D that are issued pursuant to this
Agreement.
Certificate Balance: With respect to any Certificate at any date, the
maximum dollar amount of principal to which the Holder thereof is then entitled
hereunder, such amount being equal to the product of the Percentage Interest of
such Certificate and the Class Certificate Balance of the Class of Certificates
of which such Certificate is a part.
Certificate Custodian: Initially, ▇▇▇▇▇ 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 or 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.
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Certification: As defined in Section 3.23.
Class: As to the Certificates, the Class A-1, Class A-2, Class A-R,
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 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 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 A-2 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class A-2 Certificates with respect to such
Distribution Date prior to any reduction for the Class A-2 Loss Allocation
Amount and (b) the Class A-1 Loss Amount with respect to such Distribution Date.
Class Certificate Balance: With respect to (i) any Class of
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, (ii) all reductions in
Class Certificate Balance previously allocated thereto pursuant to Section
5.03(a) and (iii) in the case of the Class A-2 Certificates, any reduction
allocated thereto pursuant to Section 5.03(d) plus (B) the sum of (x) all
increases in Class Certificate Balance previously allocated thereto pursuant to
Section 5.03(a) and (y) in the case of the A-2 Certificates, any increases
allocated thereto pursuant to Section 5.03(d).
Class Interest Shortfall: For any Distribution Date and each Class of
Certificates, the amount by which Accrued Certificate Interest for such Class
(as reduced pursuant to Section 5.02(c)) exceeds the amount of interest actually
distributed on such Class on such Distribution Date pursuant to clause (i) of
the definition of "Interest Distribution Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date and each
Class of Certificates, the amount by which the aggregate Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the amount of
interest actually distributed on such Class on such prior Distribution Dates
pursuant to clause (ii) of the definition of "Interest Distribution Amount."
Closing Date: June 30, 2005.
Code: The Internal Revenue Code of 1986, as amended.
Compensating Interest: With respect to any Distribution Date, an
amount equal to the lesser of (a) the aggregate Servicing Fee payable to the
Servicer as of the Due Date in the month preceding the month of such
Distribution Date and (b) the aggregate Prepayment Interest Shortfall with
respect to such Distribution Date.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: With respect to the Trustee, the principal
office of the Trustee, which office at the date of the execution of this
instrument is located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-▇-
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ Attention: Structured Finance
Trust Services, BAFC, Series 2005-D, or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Depositor,
the Securities Administrator and the Master Servicer. With respect to the
Securities Administrator, the principal corporate trust office of the Securities
Administrator at which at any particular time its corporate trust business with
respect to this Agreement is conducted, which office at the date of the
execution of this instrument is located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Services - BAFC 2005-D, and for
certificate transfer purposes is located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services - BAFC 2005-D,
or at such other address as the Securities Administrator may designate from time
to time by notice to the Certificateholders, the Depositor, the Trustee and the
Master Servicer.
Custodian: Initially, the Master Servicer, and thereafter the
Custodian, if any, appointed by the Trustee pursuant to Section 9.12. The
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 Depositor or any Person directly or indirectly controlling or controlled by
or under common control with the Depositor may be appointed Custodian.
Customary Servicing Procedures: Procedures (including collection
procedures) that the Servicer customarily employs and exercises in servicing and
administering mortgage loans for its own account and which are in accordance
with accepted mortgage servicing practices of prudent lending institutions
servicing mortgage loans of the same type as the Mortgage Loans in the
jurisdictions in which the related Mortgaged Properties are located.
Cut-off Date: June 1, 2005.
Cut-off Date Pool Principal Balance: The aggregate of the Cut-off Date
Principal Balances of the Mortgage Loans, which is $1,086,958,011.76.
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 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 Servicer in accordance with
the terms of such Mortgage Loan as in effect on the Cut-off Date.
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Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Section 2.02.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the 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 Servicer in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Depositor: Banc of America Funding Corporation, a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which is Cede
& Co., as the registered Holder of the Book-Entry Certificates or any successor
thereto appointed in accordance with this Agreement. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: With respect to any Distribution Date, as defined
in the Servicing Agreement.
Distribution Account: The Eligible Account created and maintained by
the Securities Administrator pursuant to Section 3.09(c) in the name of the
Securities Administrator for the benefit of the Certificateholders and
designated "▇▇▇▇▇ 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-D." Funds in the Distribution Account shall be held in trust for the
Holders of the Certificates for the uses and purposes set forth in this
Agreement.
Distribution Date: The 25th day of each month beginning in July 2005
(or, if such day is not a Business Day, the next Business Day).
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Document Transfer Event: The 60th day following the day on which
either (i) ▇▇▇▇▇ Fargo Bank is no longer the Servicer of any of the Mortgage
Loans or (ii) the senior, unsecured long-term debt rating of ▇▇▇▇▇ Fargo &
Company is less than "BBB-" by Fitch.
Due Date: As to any Distribution Date and each Mortgage Loan, the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee, the Securities Administrator and 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.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any of the Class B-4, Class B-5 and
Class B-6 Certificates and any other Regular Certificate that fails to meet the
ratings requirements of Prohibited Transaction Exemption 2002-41, 67 Fed. Reg.
54487 (August 22, 2002).
Escrow Account: As defined in Section 3.10.
Escrow Payments: The amounts constituting taxes, assessments, Primary
Mortgage Insurance Policy premiums, fire and hazard insurance premiums and other
payments as may be required to be escrowed by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Event of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.12(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
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the Due Date as to which interest was last paid or for which a Periodic Advance
was made (and not reimbursed) up to the Due Date applicable to the Distribution
Date immediately following the calendar month during which such liquidation
occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Securities Administrator.
Fitch: Fitch Ratings, or any successor thereto.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
FNMA: ▇▇▇▇▇▇ ▇▇▇, or any successor thereto.
Form 10-K: As defined in Section 3.23(a).
Fractional Interest: As defined in Section 5.02(d).
Gross Margin: As to each Mortgage Loan, the fixed percentage set forth
in the related Mortgage Note and indicated in the Mortgage Loan Schedule as the
"Gross Margin," which percentage is added to the Index on each Rate Adjustment
Date to determine (subject to rounding, the Periodic Cap and the Rate Ceiling)
the Mortgage Interest Rate on such Mortgage Loan until the next Rate Adjustment
Date.
Holder: A Certificateholder.
Incremental Interest: As to any Mortgage Loan, the amount of interest
accrued on such Mortgage Loan attributable to the Incremental Rate; provided,
however, that with respect to any payment of interest received in respect of a
Mortgage Loan (whether paid by the Mortgagor or received as Liquidation Proceeds
or otherwise) which is less than the full amount of interest then due with
respect to such Mortgage Loan, only that portion of such payment of interest
that bears the same relationship to the total amount of such payment of interest
as the Incremental Rate, if any, in respect of such Mortgage Loan bears to the
Mortgage Interest Rate shall be allocated to the Incremental Interest with
respect thereto.
Incremental Rate: Prior to the first Rate Adjustment Date for a
Mortgage Loan, the per annum increase to the initial Mortgage Interest Rate set
forth in an addendum to the related Mortgage Note, which increase takes effect
upon the happening of certain specified conditions and remains in effect until
the first Rate Adjustment Date.
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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 Servicer, (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 Servicer 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 Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Index: As to any Mortgage Loan and Rate Adjustment Date, the One-Year
CMT Index. In the event that such Index is no longer available, the Servicer
will select a substitute Index in accordance with the terms of the related
Mortgage Note and in compliance with federal and state law.
Initial Class Certificate Balance: As to each Class of Certificates,
the Class Certificate Balance set forth in the Preliminary Statement.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Estate, any related insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each Class of
Certificates, the period from and including the first day of the previous
calendar month to but not including the first day of the calendar month of the
current Distribution Date. Interest on each Class of Certificates will be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
Interest Distribution Amount: For any Distribution Date and each Class
of Certificates, the sum of (i) the Accrued Certificate Interest, subject to
reduction pursuant to Section 5.02(c) and (ii) any Class Unpaid Interest
Shortfall for such Class.
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
Servicer has certified (in accordance with the 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
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condemnation or partial release of a Mortgaged Property and any other proceeds
received in connection with an REO Property, less the sum of related
unreimbursed Servicing Fees and Advances.
Loan-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 the date of
determination and the denominator of which is the Appraised Value of the related
Mortgaged Property.
Master Servicer: ▇▇▇▇▇ Fargo Bank, N.A., and any
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(b) in the name of the
Master Servicer for the benefit of the Certificateholders and designated "▇▇▇▇▇
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-D."
Master Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the Master
Servicer Custodial Account.
Master Servicer Indemnified Parties: As defined in Section 3.23(c).
Master Servicer's Certificate: The monthly report required by Section
4.01.
Master Servicing Officer: With respect to the Master Servicer, 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
incurred by the Trustee in connection with the transfer of master servicing from
a predecessor master servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data and
the completion, correction or manipulation of such master servicing data as may
be required by the Trustee to correct any errors or insufficiencies in the
master servicing data or otherwise to enable the Trustee to master service the
Mortgage Loans properly and effectively.
MERS: As defined in Section 2.01(b)(ii).
Monthly Form 8-K: As defined in Section 3.23(a).
Monthly Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan.
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Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on a Mortgaged Property securing a Mortgage Note or creating a first
lien on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate of
interest at which interest accrues on the principal balance of such Mortgage
Loan, as adjusted from time to time in accordance with the provisions of the
related Mortgage Note, which rate is (a) prior to the first Rate Adjustment Date
for each such Mortgage Loan, the initial Mortgage Interest Rate for such
Mortgage Loan indicated on the Mortgage Loan Schedule and (b) from and after
such Rate Adjustment Date, the sum of the Index, as of the Rate Adjustment Date
applicable to such Due Date, and the Gross Margin, rounded as set forth in such
Mortgage Note, subject to the Periodic Cap and the Rate Ceiling applicable to
such Mortgage Loan at any time during the life of such Mortgage Loan.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated June 30, 2005, between Bank of America, National Association,
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 setting forth the following information with respect to each Mortgage
Loan: (i) the Mortgage Loan identifying number; (ii) a code indicating whether
the Mortgaged Property is owner-occupied; (iii) the property type for each
Mortgaged Property; (iv) the original months to maturity or the remaining months
to maturity from the Cut-off Date; (v) the Loan-to-Value Ratio at origination;
(vi) the Mortgage Interest Rate as of the Cut-off Date; (vii) the date on which
the first Monthly Payment was due on the Mortgage Loan, and, if such date is not
the Due Date currently in effect, such Due Date; (viii) the stated maturity
date; (ix) the amount of the Monthly Payment as of the Cut-off Date; (x) the
paid-through date; (xi) the original principal amount of the Mortgage Loan;
(xii) the principal balance of the Mortgage Loan as of the close of business on
the Cut-off Date, after application of payments of principal due on or before
the Cut-off Date, whether or not collected, and after deduction of any payments
collected of scheduled principal due after the Cut-off Date; (xiii) a code
indicating the purpose of the Mortgage Loan; (xiv) a code indicating the
documentation style; (xv) the Appraised Value; (xvi) the first Rate Adjustment
Date; (xvii) the Rate Ceiling; (xviii) the Periodic Cap; (xix) the Gross Margin;
(xx) the Index; (xxi) the closing date of such Mortgage Loan; (xxii) whether
such Mortgage Loan is a convertible Mortgage Loan; and (xxiii) whether such
Mortgage Loan is subject to a prepayment premium. 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.
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Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 as from time to time are held as a part of
the Trust Estate (including any Substitute Mortgage Loans and REO Property), the
Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which may include Co-op Shares or residential long term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon (without giving effect
to any Incremental Rate) on the first day of the month preceding the month of
the related Distribution Date reduced by the Servicing Fee Rate.
Net WAC Rate: As to any Distribution Date, a rate equal to the
weighted average of the Net Mortgage Interest Rates of the Mortgage Loans (based
on Stated Principal Balances of the Mortgage Loans on the Due Date in the month
preceding the month of such Distribution Date).
Non-Supported Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
the aggregate Compensating Interest received from the Servicer for the Mortgage
Loans 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 Servicer, will not or,
in the case of a proposed Advance, would not be ultimately recoverable from the
related Mortgagor, related Liquidation Proceeds, or other recoveries in respect
of the related Mortgage Loan.
NYCEMA: A New York Consolidation, Extension and Modification
Agreement.
Offered Certificates: The Senior Certificates and the Class B-1, Class
B-2 and Class B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or the Master
Servicer, as the case may be, and delivered to the Trustee or the Securities
Administrator, as the case may be.
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One-Year CMT Index: A rate per annum that is defined to be the weekly
average yield on United States Treasury Securities adjusted to a constant
maturity of one year, as made available by the Federal Reserve Board, published
in Federal Reserve Statistical Release H.15 (519) and most recently available as
of the date 45 days before the applicable Rate Adjustment Date.
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 a REMIC or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
Optional Termination Date: The first Distribution Date on which the
Master Servicer may opt to repurchase the Mortgage Loans and related REO
Property pursuant to Section 10.01.
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 1.15%
Class B-2 0.70%
Class B-3 0.45%
Class B-4 0.25%
Class B-5 0.10%
Class B-6 0.00%
Original Subordinate Certificate Balance: $29,891,911.00.
OTS: The Office of Thrift Supervision.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage Loan prior to such Due Date and which
was not purchased from the Trust prior to such Due Date pursuant to Section
2.02.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: With respect to each Class of Certificates, the Net
WAC Rate.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage obtained by
dividing the initial Certificate Balance of such Certificate by the Initial
Class Certificate Balance of the Class of which such Certificate is a part.
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Periodic Advance: Shall have the meaning given to the term "Monthly
Advance" in the Servicing Agreement.
Periodic Cap: For each Mortgage Loan, the applicable limit on
adjustment of the Mortgage Interest Rate for each Rate Adjustment Date specified
in the applicable Mortgage Note, if any, and designated as such in the Mortgage
Loan Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, FHLMC, FNMA or any agency or instrumentality of the United
States when such obligations are backed by the full faith and credit of the
United States; provided that such obligations of FHLMC or FNMA shall be
limited to senior debt obligations and mortgage participation certificates
other than investments in mortgage-backed or mortgage participation
securities with yields evidencing extreme sensitivity to the rate of
principal payments on the underlying mortgages, which shall not constitute
Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any state
thereof rated not lower than "A-1" by S&P and "F1" by Fitch;
(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 "A-1" by S&P and "F1" by Fitch;
(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 "A-1" by S&P and "F1" by
Fitch;
(v) investments in money market funds (including funds of the Trustee,
the Securities Administrator or their affiliates, or funds for which an
affiliate of the Trustee or the Securities Administrator acts as advisor,
as well as funds for which the Trustee and its affiliates or the Securities
Administrator and its affiliates may receive compensation) either rated
"AAAm G" by S&P and "AAA" by Fitch (if rated by Fitch) 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 and addressed to the Depositor and the Securities
Administrator, will not affect the qualification of the Trust Estate as a
REMIC;
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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 A-R, Class B-4, Class B-5 and Class
B-6 Certificates.
Plan: As defined in Section 6.02(e).
Pool Distribution Amount: As to any Distribution Date, the excess of
(a) the sum of (i) the aggregate of (A) the interest portion of any Monthly
Payments on the Mortgage Loans (net of the Servicing Fee and any Incremental
Interest) and the principal portion of any Monthly Payments on the Mortgage
Loans due on the Due Date in the calendar month in which such Distribution Date
occurs and which is received prior to the related Determination Date and (B) all
Periodic Advances made by the Servicer (or the Trustee) in respect of the
Mortgage Loans and payments of Compensating Interest in respect of such
Distribution Date deposited to the Master Servicer Custodial Account pursuant to
Section 3.09(d)(vi); (ii) all Liquidation Proceeds received on the Mortgage
Loans during the preceding calendar month and deposited to the Master Servicer
Custodial Account pursuant to Section 3.09(d)(iii); (iii) all Principal
Prepayments received on the Mortgage Loans 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); (iv) in connection with
Defective Mortgage Loans, the aggregate of the Repurchase Prices and
Substitution Adjustment Amounts received 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)(vii); (v) any other amounts in the Master
Servicer Custodial Account deposited therein pursuant to Sections 3.09(d)(iv),
(v) and (ix) in respect of such
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Distribution Date; (vi) any Reimbursement Amount required to be included
pursuant to Section 5.02(a) and (vii) any Recovery in respect of such
Distribution Date; over (b) any amounts permitted to be withdrawn from the
Master Servicer Custodial Account pursuant to clauses (i) through (viii),
inclusive, of Section 3.12(a).
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate Stated Principal Balance of all Mortgage Loans in such Loan Group that
were Outstanding Mortgage Loans at the close of business on the Due Date in the
month preceding the month in which such Distribution Date occurs.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding such Distribution Date, the amount, if any, by which one month's
interest at the related Mortgage Interest Rate (net of the Servicing Fee 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 FNMA or FHLMC.
Principal Amount: As to any Distribution Date, the sum of (i) the sum
of (a) the principal portion of each Monthly Payment due on each Mortgage Loan
on the related Due Date, (b) the Stated Principal Balance, as of the date of
repurchase, of each Mortgage Loan that was repurchased by the Seller or the
Servicer as of such Distribution Date, (c) any Substitution Adjustment Amount in
connection with a Defective Mortgage Loan in such Loan Group received with
respect to such Distribution Date, (d) any Liquidation Proceeds allocable to
recoveries of principal of Mortgage Loans that are not yet Liquidated Mortgage
Loans received by the Servicer during the calendar month preceding the month of
such Distribution Date, (e) with respect to each Mortgage Loan 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 the Servicer with respect to such
Mortgage Loan during the calendar month preceding the month of such Distribution
Date and (f) all Principal Prepayments on the Mortgage Loans received by the
Servicer during the calendar month preceding the month of such Distribution
Date; and (ii) any Recovery for such Distribution Date.
Principal Prepayment: Any payment or other recovery of principal on a
Mortgage Loan (other than Liquidation Proceeds) which is received in advance of
its scheduled Due Date and is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the portion of the
Subordinate Principal Distribution
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Amount allocable to such Class, equal to the product of the Subordinate
Principal Distribution Amount for such Distribution Date and a fraction, the
numerator of which is the related Class Certificate Balance thereof and the
denominator of which is the aggregate Class Certificate Balance of the
Subordinate Certificates that are not Restricted Classes. The Pro Rata Share of
a Restricted Class shall be 0%. The Pro Rata Share of a Class of Subordinate
Certificates may be computed for each of clause (i) and clause (ii) of the
definition of "Subordinate Principal Distribution Amount" in the event the
Restricted Classes differ with respect to each clause.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on which
date an adjustment to the Mortgage Interest Rate of such Mortgage Loan becomes
effective under the related Mortgage Note.
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted
under the related Mortgage Note and indicated on the Mortgage Loan Schedule.
Rating Agency: Each of S&P and Fitch. If either such organization or a
successor is no longer in existence, "Rating Agency" shall be such nationally
recognized statistical rating organization, or other comparable Person, as is
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer and the Securities Administrator. References herein
to a given rating or rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Record Date: With respect to all of the Certificates, the last
Business Day of the month immediately preceding the month in which the related
Distribution Date occurs.
Recovery: As to any Distribution Date, the sum of all amounts received
during the calendar month preceding the month of such Distribution Date on each
Mortgage Loan subsequent to such Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Regular Certificates: The Offered Certificates and the Private
Certificates.
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇: As defined in Section 2.02.
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: As defined in the Preliminary Statement.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.07.
REMIC Provisions: Provisions of the United States 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.
REO Property: A Mortgaged Property acquired by the Servicer on behalf
of the Trust through foreclosure or deed-in-lieu of foreclosure in connection
with a defaulted Mortgage Loan.
Repurchase Price: As to any Defective Mortgage Loan repurchased on any
date pursuant to Section 2.02, an amount equal to (a) in the case of the Seller,
the sum of (i) the unpaid principal balance thereof and (ii) the unpaid accrued
interest thereon at the applicable Mortgage Interest Rate from the Due Date to
which interest was last paid by the Mortgagor to the first day of the month
following the month in which such Mortgage Loan became eligible to be
repurchased and (b) in the case of the Servicer, 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 Servicer Custodial Account
for distribution in the month of repurchase and (y) if the Servicer is servicing
such Mortgage Loan under the Servicing Agreement, the Servicing Fee Rate for
such Mortgage Loan.
Request for Release: The Request for Release submitted by the Servicer
to the Trustee or the Custodian on behalf of the Trustee, as the case may be,
substantially in the form of Exhibit E.
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Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under the
Servicing Agreement in respect of such Mortgage Loan.
Residual Certificate: The Class 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).
S&P: Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.,
or any successor thereto.
Securities Administrator: ▇▇▇▇▇ Fargo Bank, N.A., and any
successors-in-interest and, if a successor securities administrator is appointed
hereunder, such successor, as securities administrator.
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 A-1, Class A-2 and Class A-R
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, the
percentage, carried to at least six places rounded up, obtained by dividing the
aggregate Class Certificate Balance of the Senior Certificates immediately prior
to such Distribution Date by the Pool Stated Principal Balance for such
Distribution Date.
Senior Prepayment Percentage: During the seven years beginning on the
first Distribution Date, 100%. The Senior Prepayment Percentage for any
Distribution Date occurring on or after the seventh year anniversary of the
first Distribution Date will, except as provided herein, be as follows: for any
Distribution Date in the first year thereafter, the Senior Percentage plus 70%
of the Subordinate Percentage for such Distribution Date; for any Distribution
Date in the second year thereafter, the Senior Percentage plus 60% of the
Subordinate Percentage for such Distribution Date; for any Distribution Date in
the third year thereafter, the Senior Percentage plus 40% of the Subordinate
Percentage for such Distribution Date; for any Distribution Date in the fourth
year thereafter, the Senior Percentage plus 20% of the Subordinate Percentage
for such Distribution Date; and for any Distribution Date in the fifth or later
years thereafter, the Senior Percentage for such Distribution Date. If, however,
on any of
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the foregoing Distribution Dates (i) the Senior Percentage exceeds the initial
Senior Percentage, the Senior Prepayment Percentage for such Distribution Date
will once again equal 100%, (ii) before the Distribution Date occurring in July
2008, the Subordinate Percentage for such Distribution Date is greater than or
equal to twice the initial Subordinate Percentage, the Senior Prepayment
Percentage for such Distribution Date will equal the Senior Percentage plus 50%
of the Subordinate Percentage or (iii) on or after the Distribution Date in July
2008, the Subordinate Percentage for such Distribution Date is greater than or
equal to twice the initial Subordinate Percentage, the Senior Prepayment
Percentage for such Distribution Date will equal the Senior Percentage.
Notwithstanding the foregoing, no decrease in the share of the Subordinate
Percentage (for calculating the Senior Prepayment Percentage) will occur and the
Senior Prepayment Percentage will be calculated without regard to clause (ii) or
(iii) in the preceding sentence unless both of the Senior Step Down Conditions
are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date, the
sum of (i) the Senior Percentage of the amounts described in clauses (i)(a)
through (d) of the definition of "Principal Amount" for such Distribution Date
and (ii) the Senior Prepayment Percentage of the amounts described in clauses
(i)(e) and (f) and the amount described in clause (ii) of the definition of
"Principal Amount" for such Distribution Date.
Senior Step Down Conditions: As of any Distribution Date as to which
any decrease in the Senior Prepayment Percentage 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
--------------------------- -------------------
July 2005 through June 2008 20%
July 2008 through June 2013 30%
July 2013 through June 2014 35%
July 2014 through June 2015 40%
July 2015 through June 2016 45%
July 2016 and thereafter 50%
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Servicer: ▇▇▇▇▇ Fargo Bank, in its capacity as originator or servicer
of the Mortgage Loans, or any successor servicer appointed as herein provided.
Servicer Custodial Account: The separate account created and
maintained by the Servicer pursuant to the Servicing Agreement.
Servicer Remittance Date: Shall have the meaning given to the term
"Remittance Date" in the Servicing Agreement.
Servicing Advance: Shall have the meaning given to the term "Servicing
Advances" in the Servicing Agreement.
Servicing Agreement: The Master Seller's Warranties and Servicing
Agreement, dated as of March 1, 2005, by and between BANA and ▇▇▇▇▇ Fargo Bank.
Servicing Fee: As defined in the Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as defined in
the Servicing Agreement.
Servicing Officer: As defined in the Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of the
Master Servicer or the Trustee, as applicable, related to any termination of the
Servicer, appointment of a successor Servicer or the transfer and assumption of
servicing by the Trustee with respect to the 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 the 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 to correct any errors or insufficiencies
in the servicing data or otherwise to enable the Trustee to service the Mortgage
Loans properly and effectively).
Similar Law: As defined in Section 6.02(e).
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such date as specified in
the amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor, and
after giving effect to any Deficient Valuation.
Subordinate Certificates: The Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5 and Class ▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇.
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇: As to any Distribution Date, 100% minus the
Senior Percentage for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date, 100%
minus the Senior Prepayment Percentage for such Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the sum of (i) the Subordinate Percentage
of the amounts described in clauses (i)(a) through (d) of the definition of
"Principal Amount" for such Distribution Date and (ii) the Subordinate
Prepayment Percentage of the amounts described in clauses (i)(e) and (f) and the
amount described in clause (ii) of the definition of "Principal Amount" for such
Distribution Date.
Substitute Mortgage Loan: A Mortgage Loan substituted for a Defective
Mortgage Loan which must, on the date of such substitution (i) have a Stated
Principal Balance, after deduction of the principal portion of the Monthly
Payment due in the month of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) have a Net Mortgage Interest Rate
not less than and not more than 2% greater than that of the Defective Mortgage
Loan; (iii) be of the same type as the Defective Mortgage Loan; (iv) have a
Loan-to-Value Ratio not higher than that of the Defective Mortgage Loan; (v)
have a Gross Margin not less than that of the Defective Mortgage Loan; (vi) have
a credit grade not lower in quality than that of the Defective Mortgage Loan;
(vii) have the same Index as the Defective Mortgage Loan; (viii) have the same
lien priority as the Defective Mortgage Loan; (ix) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Defective Mortgage Loan; and (x) comply with each Mortgage Loan representation
and warranty set forth in the Servicing Agreement, the Mortgage Loan Purchase
Agreement and this Agreement relating to the Defective Mortgage Loan. More than
one Substitute Mortgage Loan may be substituted for a Defective Mortgage Loan if
such Substitute Mortgage Loans meet the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulations
Section 1.860F-4(d) and Treasury Regulations Section 301.6231(a)(7)-1.
Treasury Regulations: The final and temporary regulations promulgated
under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement, which shall be named "Banc
of America Funding 2005-D Trust."
Trust Estate: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder,
with respect to which a REMIC election is 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
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Mortgage Loans under all insurance policies required to be maintained pursuant
to this Agreement and any proceeds thereof, (iv) the Depositor's rights under
the Servicing Agreement and the Mortgage Loan Purchase Agreement (including any
security interest created thereby) and (v) the Servicer Custodial Account, the
Master Servicer Custodial Account and the Distribution Account and such assets
that are deposited therein from time to time and any investments thereof,
together with any and all income, proceeds and payments with respect thereto.
Trustee: Wachovia Bank, National Association, and its
successors-in-interest and, if a successor trustee is appointed hereunder, such
successor, as trustee.
Unscheduled Principal Payments: As to any Distribution Date, the sum
of (i) with respect to each Mortgage Loan 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 the Servicer with respect to such Mortgage Loan during the
calendar month preceding the month of such Distribution Date and (b) all
Principal Prepayments on the Mortgage Loans received by the Servicer during the
calendar month preceding the month of such Distribution Date.
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 United States 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 and (b) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of their respective Certificates on such date.
▇▇▇▇▇ Fargo Bank: ▇▇▇▇▇ Fargo Bank, N.A., or its successor in
interest.
Section 1.02 Calculations. All calculations of interest will be made
on a 360-day year consisting of twelve (12) 30-day moths. All dollar amounts
calculated hereunder shall be rounded to the nearest ▇▇▇▇▇ with one-half of one
▇▇▇▇▇ 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
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conveys to the Trustee on behalf of the Trust for the benefit of the
Certificateholders, without recourse, all the right, title and interest of the
Depositor in and to the Mortgage Loans, including all interest and principal
received on or with respect to the Mortgage Loans (other than payments of
principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date), the Depositor's rights under the Mortgage Loan Purchase
Agreement, including the rights of the Depositor as assignee of the Seller with
respect to the Seller's rights under the 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-D, without
recourse," with all necessary intervening endorsements showing a complete
chain of endorsement from the originator to the Trustee (each such
endorsement being sufficient to transfer all right, title and interest of
the party so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note) and, in the case of any Mortgage Loan originated in the
State of New York documented by a NYCEMA, the NYCEMA, the new Mortgage
Note, if applicable, the consolidated Mortgage Note and the consolidated
Mortgage;
(ii) 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-D" (which may be included in a
blanket assignment or assignments); 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 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;
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(iii) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(iv) the original of any guarantee executed in connection with the
Mortgage Note;
(v) 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; and
(vi) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage;
provided, however, that on the Closing Date, with respect to item (ii), 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 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). As set forth on Exhibit J attached hereto is a list of all
states where recordation is required by any 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.
If in connection with any Mortgage Loans, the Depositor cannot deliver
(A) all assumption, modification, consolidation or extension agreements, if any,
or (B) the lender's title policy, if any (together with all riders thereto),
satisfying the requirements of clause (iii) or (iv) 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 (iii) above, or because the title policy, if any, has not
been delivered to the Servicer, the Seller or the Depositor by the applicable
title insurer in the case of clause (iv) 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 (iii) above, such assumption,
modification, consolidation or extension agreement with evidence of recording
indicated thereon upon receipt thereof from the public recording office, but in
no event shall any such delivery of any such documents or instruments be made
later than one year following the Closing Date, unless, in the case of clause
(iii) above, there has been a continuing delay at the applicable recording
office or, in the case of clause (iv) above, there has been a continuing delay
at the applicable insurer and the Depositor has delivered the Officer's
Certificate to such effect to the Trustee. The Depositor shall forward or cause
to be forwarded to the Trustee or a Custodian on behalf of the Trustee, as the
case may be, (1) from time to time additional original documents
-25-
evidencing an assumption or modification of a Mortgage Loan and (2) any other
documents required to be delivered by the Depositor or the Servicer to the
Trustee or a Custodian on behalf of the Trustee, as the case may be. In the
event that 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.
Following a Document Transfer Event, the Depositor shall deliver, or
cause to be delivered, to the Trustee or a Custodian on behalf of the Trustee,
as the case may be, 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
Mortgage Loan; provided, however, that originals of such documents or
instruments shall be delivered to the Trustee or Custodian, as the case may be,
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, an original copy of any intervening assignment of
Mortgage showing a complete chain of assignments;
(2) the original or a certified copy of 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 Co-op Shares, the originals of
the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete and
unbroken line from the mortgagee to the Trustee with evidence of recording
thereon (or in a form suitable for recordation).
-26-
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 Servicer
pursuant to the 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 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 Servicer has not received the information required to
prepare such assignment in recordable form, the 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 Servicing Agreement and,
no recording of an Assignment of Mortgage will be required in a state if either
(i) the Depositor furnishes to the Trustee and the Securities Administrator an
unqualified Opinion of Counsel reasonably acceptable to the Trustee and the
Securities Administrator to the effect that recordation of such assignment is
not necessary under applicable state law to preserve the Trustee's interest in
the related 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 any Rating Agency in order to obtain
the initial ratings on the Certificates on the Closing Date.
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 behalf of the Trustee, as the case may be, will cause
the Servicer to deliver 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 Master Servicer Custodial 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 acting
as its agent, as the case may be, constituting the Mortgage Files, and that it
will hold such other assets as are included in the Trust Estate delivered to it,
in trust for the exclusive use and benefit of all present and future
Certificateholders. Upon execution and delivery of this document, the Trustee
shall deliver or cause a Custodian to deliver to the Depositor and the Master
Servicer a certification in the form of Exhibit K hereto (the "Initial
Certification") to the effect that, except as may be specified in a list of
exceptions attached thereto, such Person has received the original Mortgage Note
relating to each of the Mortgage Loans for which such Person is acting as
Custodian listed on the Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this Agreement, the
Trustee shall review, or cause a Custodian on behalf of the Trustee to review,
the Mortgage Files in such Person's possession, and shall deliver to the
Depositor and the Master Servicer a certification in the form of Exhibit L
hereto (the "Final Certification") to the effect that, as to each Mortgage Loan
for which it is acting as Custodian listed in the Mortgage Loan Schedule, except
as may be specified in a list of exceptions attached to such Final
Certification, such Mortgage File contains all of the items required to be
delivered pursuant to Section 2.01(b).
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If 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 the
Servicer or the Seller of any representation, warranty or covenant under the
Servicing Agreement 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, the Servicer and the
Depositor of such failure to meet the requirements of Section 2.01 or of such
breach and request that the 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 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 Servicer's
or Seller's obligation, as the case may be, under the Servicing Agreement or the
Mortgage Loan Purchase Agreement, as applicable, and cause the Servicer or
Seller, as applicable, to either (a) solely in the case of the Seller,
substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth below or (b) purchase such Mortgage Loan from the Trust at the
Repurchase Price for such Mortgage Loan; provided, however, that in no event
shall such a substitution occur more than two years from the Closing Date;
provided, further, that such substitution or repurchase must occur within 90
days of when such defect was discovered if such defect will cause the Mortgage
Loan not to be a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code.
In performing any such review, the Trustee or a Custodian may
conclusively rely on the purported genuineness of any such document and any
signature thereon. It is understood that the scope of the Trustee's or 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 Mortgage Loans identified in the
Mortgage Loan Schedule based solely upon the review of items (i) and (xi) in the
definition of Mortgage Loan Schedule. Neither the Trustee nor 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 the Servicer or the Seller, the Trustee shall enforce the rights of
the Trust under the Servicing Agreement and the Mortgage Loan Purchase Agreement
for the benefit of the Certificateholders. In the event of a breach of the
representations or warranties with respect to the Mortgage Loans set forth in
the 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 set forth in clauses (k) and (o) of paragraph 3 of
the Mortgage Loan Purchase Agreement occurs as a result of a violation of an
applicable predatory or abusive lending law, the
-28-
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 only to the extent the
Servicer does not so reimburse the Trust. It is understood and agreed that,
except for any indemnification provided in the Servicing Agreement and the
payment of any Reimbursement Amount, the obligation of the Servicer or the
Seller to cure or to repurchase (or substitute, in the case of the Seller) 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 the 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 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
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 the Servicer with respect to the
Mortgage Loans in the Servicing Agreement, which have been assigned to the
Trustee hereunder, were made as of the date specified in the 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
the Servicer under the 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 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 Servicer in the Servicing Agreement, without regard to
whether the 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.
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With respect to each Substitute Mortgage Loan, the Seller shall
deliver to the Trustee or Custodian on behalf of the Trustee, as the case may
be, for the benefit of the Certificateholders, the Mortgage Note, 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
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, each Substitute Mortgage Loan shall be
subject to the terms of this Agreement in all respects, and the Seller shall be
deemed to have made to the Trustee with respect to such Substitute Mortgage
Loan, as of the date of substitution, the representations and warranties made
pursuant to paragraph 3 of the Mortgage Loan Purchase 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 of a Request for Release, the Trustee shall upon receipt of written
notice from the Master Servicer of such deposit, release, or shall direct a
Custodian to release, the Mortgage File relating to such Defective Mortgage Loan
to the Seller and shall execute and deliver at the Seller's direction such
instruments of transfer or assignment prepared by the Seller, in each case
without recourse, as shall be necessary to vest title in the Seller, or its
designee, to the Trustee's interest in any Defective Mortgage Loan substituted
for pursuant to this Section 2.02.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Defective Mortgage Loans, the amount (if any) by
which the aggregate principal balance of all such Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Stated Principal Balance
of all such Defective Mortgage Loans (after application of the principal portion
of the Monthly Payments due in the month of substitution) (the "Substitution
Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed
Advances with respect to such Defective Mortgage Loans shall be remitted to the
Master Servicer Custodial Account by the Seller on or before the Servicer
Remittance Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan is required to be purchased or
replaced hereunder. The Repurchase Price of any repurchase and the Substitution
Adjustment Amount, if any, shall be deposited in the Master Servicer Custodial
Account. The Master Servicer shall give the Securities Administrator and the
Trustee written notice of such deposits.
Notwithstanding anything to the contrary contained herein, no
substitution shall occur more than two years from the Closing Date.
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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)(iii), (iv), (v) and (vi).
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer.
The Master Servicer hereby makes the following representations and
warranties to the Depositor, the Securities Administrator 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. 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
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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 a Custodian and shall inure to the benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement or assignment.
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Section 2.05 Designation of Interests in the REMICs. The Trustee
hereby designates the Classes of Certificates (other than the Class A-R
Certificate) as "regular interests" and the Class A-R Certificate as the single
class of "residual interest" in the REMIC for the purposes of Code Sections
860G(a)(1) and 860G(a)(2), respectively, and the REMIC Provisions generally.
Section 2.06 Designation of Start-up Day. The Closing Date is hereby
designated as the "start-up day" of the 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 Certificates is August 25, 2035.
Section 2.08 Execution and Delivery of Certificates. The Depositor,
concurrently with the execution and delivery hereof, does hereby transfer,
assign, set over and otherwise convey in trust to the Trustee without recourse
all the right, title and interest of the Depositor in and to the Mortgage Loans
for the benefit of the Holders of the Regular Certificates and the Class A-R
Certificate. The Trustee acknowledges receipt of the Mortgage Loans and declares
that it holds and shall hold the same in trust for the exclusive use and benefit
of the Holders of the Regular Certificates and the Class A-R Certificate. The
interests evidenced by the Regular Certificates and the Class A-R Certificate
constitute the entire beneficial ownership interest in the REMIC.
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 Servicer to service and administer the Mortgage
Loans in accordance with the terms of the 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 and usual standards of practice of prudent mortgage loan master
servicers. Furthermore, the Master Servicer shall oversee and consult with the
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 the Servicer and
shall cause the Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by the Servicer under the Servicing
Agreement. The Master Servicer shall independently and separately monitor the
Servicer's servicing activities with respect to each 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
Servicer's and 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
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results of its Mortgage Loan monitoring with the actual remittances of the
Servicer to the Master Servicer Custodial Account pursuant to the 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 the Servicer.
(a) The Master Servicer shall be responsible for reporting to the
Trustee, the Securities Administrator and the Depositor the compliance by the
Servicer with its duties under the Servicing Agreement. In the review of the
Servicer's activities, the Master Servicer may rely upon an officer's
certificate of the Servicer with regard to the Servicer's compliance with the
terms of the Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that the Servicer should be terminated in accordance with
the Servicing Agreement, or that a notice should be sent pursuant to the
Servicing Agreement with respect to the occurrence of an event that, unless
cured, would constitute grounds for such termination, the Master Servicer shall
notify the Depositor, the Securities Administrator and the Trustee thereof and
the Master Servicer shall issue such notice or take such other action as it
deems appropriate.
(b) In the event that the Servicer fails to perform its obligations in
accordance with the Servicing Agreement, the Master Servicer shall, subject to
the preceding paragraph, notify the Trustee in writing of such failure. Pursuant
to its receipt of such notification from the Master Servicer, the Trustee shall
terminate the rights and obligations of the Servicer under the Servicing
Agreement, and the Trustee, if it so elects, shall act as successor Servicer, or
shall enter into a new Servicing Agreement with a successor Servicer appointed
by the Trustee; 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. Enforcement of the Servicing Agreement, including, without limitation,
the legal prosecution of claims, termination of the Servicing Agreement 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 Trustee, in its good faith business
judgment, would require were it the owner of the related Mortgage Loans. The
Trustee 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 Mortgage Loan or (ii) from a specific recovery of costs, expenses
or attorneys fees against the party whom such enforcement is directed, provided
that the Trustee shall not be required to prosecute or defend any legal action
except to the extent that the Trustee shall have received reasonable indemnity
for its costs and expenses in pursuing such action.
(c) To the extent that any Servicing Transfer Costs are not fully and
timely reimbursed by the terminated Servicer, the Master Servicer or the
Trustee, as applicable, shall be entitled to reimbursement of such costs and
expenses from the Master Servicer Custodial Account.
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(d) The Master Servicer shall require the Servicer to comply with the
remittance requirements and other obligations set forth in the Servicing
Agreement.
(e) If the Trustee or other party acts as succesor Servicer, such
party will not assume liability for the representations and warranties of the
Servicer.
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 FNMA in the FNMA Servicing Guide or by FHLMC
in the FHLMC Sellers' & Servicers' Guide, as amended or restated from time to
time, or in an amount as may be permitted to the Master Servicer by express
waiver of FNMA or FHLMC. 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 cause the Servicer to provide in accordance with the 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 Servicer. In fulfilling such request for access, the Master
Servicer shall not be responsible to determine the sufficiency of any
information provided by the Servicer. Nothing in this Section 3.04 shall limit
the obligation of the Master Servicer and the Servicer to observe any applicable
law and the failure of the Master Servicer or the 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 the Servicer (to the
extent such action is prohibited under the Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Mortgage
Insurance Policy of any loss which, but for the actions of such Master Servicer
or Servicer, would have been covered thereunder. The Master Servicer shall use
its best reasonable efforts to cause the Servicer (to the extent required under
the 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 Servicing
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Agreement, as applicable. The Master Servicer shall not, and shall not permit
the Servicer (to the extent required under the 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 Servicing Agreement, as applicable
(b) The Master Servicer agrees to present, or to cause the Servicer
(to the extent required under the 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 the Servicer under any
Primary Mortgage Insurance Policies shall be deposited in the Master Servicer
Custodial Account, subject to withdrawal pursuant to Section 3.12.
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.
If the Master Servicer shall for any reason no longer be the Master
Servicer hereunder (including by reason of an Event of Default), the Trustee
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 shall, upon request of the Trustee,
but at the expense of the predecessor Master Servicer, deliver to the assuming
party all master servicing documents and records and an accounting of amounts
collected or held by it and otherwise use its best efforts to effect the orderly
and efficient transfer of such substitute documentation and records to the
assuming party. The Trustee shall be entitled to be reimbursed from the Master
Servicer (or the Trust if the Master Servicer is unable to fulfill its
obligations hereunder) for all Master Servicing Transfer Costs.
Section 3.08 Servicer Custodial Account.
The Master Servicer shall enforce the obligation of the Servicer to
establish and maintain a Servicer Custodial Account in accordance with the
Servicing Agreement, with
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records to be kept with respect thereto on a Mortgage Loan by Mortgage Loan
basis, into which accounts shall be deposited within 48 hours (or as of such
other time specified in the Servicing Agreement) of receipt all collections of
principal and interest on any Mortgage Loan and with respect to any REO Property
received by the 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 Servicing Agreement) 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
Servicer Custodial Account for purposes required or permitted by this Agreement.
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Account, Servicer Custodial Account, Distribution Account and Reserve
Account.
(a) Continuously from the date hereof until the principal and interest
on all Mortgage Loans are paid in full, the Master Servicer shall enforce the
obligations of the Servicer 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 Servicing Agreement.
(b) The Master Servicer shall establish and maintain the Master
Servicer Custodial Account, which shall be an Eligible Account. 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.
(c) The Securities Administrator shall establish and maintain the
Distribution Account, into which the Master Servicer will deposit on or prior to
11:00 AM 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. The Distribution Account shall be an Eligible Account.
(d) On a daily basis within one Business Day of receipt, except as
otherwise specifically provided herein, the Master Servicer shall deposit or
cause to be deposited into the Master Servicer Custodial Account the following
payments and collections remitted to the Master Servicer by the Servicer from
the Servicer Custodial Account pursuant to the Servicing Agreement or otherwise
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 Servicing Fee and any Incremental Interest;
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(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 the
Escrow Account pursuant to Section 3.10 and (B) any Insurance Proceeds
released from the 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 Servicer;
(vi) Periodic Advances made by the Servicer pursuant to the Servicing
Agreement (or, if applicable, by the Trustee pursuant to Section 3.22) and
any Compensating Interest paid by the Servicer pursuant to the Servicing
Agreement;
(vii) all Repurchase Prices, all Substitution Adjustment Amounts and
all Reimbursement Amounts to the extent received by the Servicer;
(viii) any Recoveries; and
(ix) 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 3.12.
(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 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. Each institution at which the
Distribution 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 Distribution 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
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Certificateholders. All income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the
Distribution Account shall be for the benefit of the Securities Administrator as
compensation for its services hereunder and the amount of any losses realized in
the Distribution Account in respect of any such Permitted Investments shall
promptly be deposited by the Securities Administrator from its own funds in the
Distribution Account.
(f) 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
Distribution 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 Distribution Account
shall be evidenced by a certification substantially in the form of Exhibit F
hereto.
Section 3.10 Collection of Taxes, Assessments and Similar Items;
Escrow Account.
To the extent required by the Servicing Agreement and by the related
Mortgage Note and not violative of current law, the Master Servicer shall
require the Servicer to establish and maintain one or more escrow accounts
(collectively, the "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or Advances by the 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 the Servicer to establish the Escrow Account in violation of applicable
law.
Section 3.11 Access of Securities Administrator and Trustee to Certain
Documentation and Information Regarding the Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation of
the Servicer 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 Servicer.
Section 3.12 Permitted Withdrawals from the Master Servicer Custodial
Account and the Distribution Account.
(a) The Securities Administrator shall withdraw funds from the
Distribution Account for distributions to Certificateholders in the manner
specified in this Agreement. In addition, the Master Servicer may from time to
time make withdrawals from the Master Servicer Custodial Account for the
following purposes:
(i) to pay to the Servicer (to the extent not previously retained by
it) the Servicing Fee to which it is entitled pursuant to the Servicing
Agreement and any
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Incremental Interest and to pay itself any Master Servicer Custodial
Account Reinvestment Income;
(ii) to pay the Securities Administrator and the Trustee any amounts
due to the Securities Administrator and the Trustee under this Agreement
(including, but not limited to, all amounts provided for under Section
9.11, other than the amounts provided for in the first sentence of Section
9.11);
(iii) to reimburse the Servicer (or, if applicable, the Trustee) for
unreimbursed Advances made pursuant to the Servicing Agreement (or in the
case of the Trustee, pursuant to Section 3.22), such right of reimbursement
pursuant to this clause (iii) being limited to amounts received on the
Mortgage Loans in respect of which any such Advance was made;
(iv) to reimburse the Servicer 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 respect of
which such Nonrecoverable Advance was made and then to amounts received on
all the Mortgage Loans;
(v) to reimburse the Servicer 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, all amounts
received thereon in error after the date of such purchase;
(vii) to reimburse itself or the Depositor for expenses incurred by
any 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.
(b) On each Distribution Date, funds on deposit in the Distribution
Account shall be used to make payments on the Regular Certificates and the Class
A-R Certificate as provided in Sections 5.01 and 5.02. The Distribution Account
shall be cleared and terminated upon termination of this Agreement pursuant to
Section 10.01.
Section 3.13 Maintenance of Hazard Insurance and Other Insurance.
For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicer under the Servicing Agreement 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
Servicing Agreement. It is understood and agreed that such insurance provided
for in this Section 3.13 shall be with insurers meeting the eligibility
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requirements set forth in the 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 the 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
Servicing Agreement) shall be deposited into the Master Servicer Custodial
Account, subject to withdrawal pursuant to Section 3.12. Any cost incurred by
the Master Servicer or the Servicer in maintaining any such insurance if the
Mortgagor defaults in its obligation to do so shall be added to the amount owing
under the Mortgage Loan where the terms of the Mortgage Loan so permit;
provided, however, that the addition of any such cost shall not be taken into
account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or the
Servicer pursuant to Sections 3.08 and 3.09.
Section 3.14 Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the Servicing
Agreement) cause the 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 the 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 3.15 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
To the extent provided in the Servicing Agreement and to the extent
Mortgage Loans contain enforceable due-on-sale clauses, the Master Servicer
shall cause the Servicer to enforce such clauses in accordance with the
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 Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the
original Mortgagor may be released from liability in accordance with the
Servicing Agreement.
Section 3.16 Realization Upon Defaulted Mortgage Loans; REO Property.
(a) The Master Servicer shall cause the Servicer (to the extent
required under the 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 Servicing Agreement.
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(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 Servicer, to the extent
provided in the 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 Servicing Agreement, cause the Servicer to sell any REO Property
as expeditiously as possible and in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable. Pursuant to its efforts to
sell such REO Property, the Master Servicer shall cause the Servicer to protect
and conserve such REO Property in the manner and to the extent required by the
Servicing Agreement, subject to the REMIC Provisions.
(c) The Master Servicer shall, to the extent required by the Servicing
Agreement, cause the Servicer to deposit all funds collected and received in
connection with the operation of any REO Property in the Servicer Custodial
Account.
(d) The Servicer, upon the final disposition of any REO Property,
shall be entitled to reimbursement for any related unreimbursed Periodic
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 Periodic 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 Servicer as provided above shall be
deposited in the 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.
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 Servicer
to dispose of such Mortgaged Property within the time period specified in the
Servicing Agreement unless 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. Notwithstanding any other provision of this Agreement, no Mortgaged
Property acquired by the Trust shall be rented (or allowed to continue to be
rented) or otherwise used for the production of income by or on behalf of the
Trust in such a manner or pursuant to any terms that would (i) cause such
Mortgaged Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or (ii) subject the 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 Servicer, as applicable, has agreed to
indemnify and hold harmless the Trust with respect to the imposition of any such
taxes.
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Section 3.17 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 Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer or the
Servicer will immediately notify the Trustee (or, at the direction of the
Trustee, the Custodian) by delivering, or causing to be delivered, two copies
(one of which will be returned to the Servicer with the Mortgage File) of a
Request for Release (which may be delivered in an electronic format acceptable
to the Trustee, the related Servicer and the Master Servicer). Upon receipt of
such request, the Trustee or the Custodian, as applicable, shall within seven
Business Days release the related Mortgage File to the Master Servicer or the
Servicer. The Trustee shall at the Master Servicer's or the Servicer's direction
execute and deliver to the Master Servicer or the Servicer the request for
reconveyance, deed of reconveyance or release or satisfaction of mortgage or
such instrument releasing the lien of the Mortgage, in each case provided by the
Master Servicer or the 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 Servicer's
obligation under the Servicing Agreement to take all necessary action to reflect
the release of the Mortgage on the records of MERS. Expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the related Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee or the Custodian, as applicable, shall, upon delivery to the
Trustee (or, at the direction of the Trustee, the Custodian) of a Request for
Release signed by a Master Servicing Officer or a Servicing Officer, release the
Mortgage File within seven Business Days to the Master Servicer or the Servicer.
Subject to the further limitations set forth below, the Master Servicer or the
Servicer shall cause the Mortgage Files so released to be returned to the
Trustee or the Custodian, as applicable, when the need therefor no longer
exists, unless the Mortgage Loan is liquidated and the proceeds thereof are
deposited in the Servicer Custodial Account, in which case the 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 the 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 the 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.
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Section 3.18 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 the Servicer to transmit to the Trustee or the Custodian on
behalf of the Trustee as required by this Agreement and the Servicing Agreement
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 Servicer or which
otherwise are collected by the Master Servicer or the 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 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 the Servicer Custodial Account, shall be held by the Master
Servicer or the 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 Servicing Agreement. The Master Servicer
also agrees that it shall not knowingly create, incur or subject any Mortgage
File or any funds that are deposited in the Master Servicer Custodial Account or
the 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 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 3.19 Master Servicer Compensation.
Master servicing compensation in the form of Master Servicer Custodial
Account Reinvestment Income shall be remitted to or retained by the Master
Servicer pursuant to Section 3.12. 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 3.20 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.
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In addition, the Master Servicer shall enforce the Servicer's
obligation under the Servicing Agreement to provide a similar statement to the
Securities Administrator relating to compliance with the Servicing Agreement.
Section 3.21 Annual Independent Public Accountants' Servicing
Statement; Financial Statements.
The Master Servicer shall enforce the Servicer's obligation under the
Servicing Agreement to provide a report to the Securities Administrator, as
required to be provided each year pursuant to the 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 the 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 3.22 Advances.
The Master Servicer shall enforce the obligations of the Servicer to
make Periodic Advances in accordance with the Servicing Agreement. The Servicer
shall be entitled to be reimbursed from the Servicer Custodial Account for all
Advances of its own funds made pursuant to the 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
the Servicer no later than the related Servicer Remittance Date. If the Servicer
fails to make any required Periodic Advance pursuant to the Servicing Agreement,
the Trustee shall (i) unless the Trustee 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 Servicing Agreement for any Distribution Date,
within the same time frame set forth in (i) above, unless the Trustee determines
(to the extent provided in the Servicing Agreement) that such Periodic Advance
would not be recoverable.
Section 3.23 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.
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(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 the Servicer's annual statement of compliance described
under Section 3.20 and the accountant's report referenced under Section 3.21, 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 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 3.23, 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 the accountant's 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 3.23(c), any
breach by the Securities Administrator or any of its officers, directors, agents
or affiliates of its obligations under this Section 3.23(c) or any material
misstatements or omission contained in the certification delivered pursuant to
this Section 3.23(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
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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 3.23(c), any material
misstatement or omission contained in the certification delivered pursuant to
this Section 3.23(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
3.20 and 3.21 in order to perform their respective obligations under this
Section 3.23.
(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 the
Servicer to provide the certification required pursuant to each of the Servicing
Agreement.
(e) Upon any filing with the Securities and Exchange Commission, the
Securities Administrator shall promptly deliver to the Depositor a copy of any
such executed report, statement or information.
(f) The obligations set forth in paragraphs (a) through (e) of this
Section shall only apply with respect to periods for which the Securities
Administrator is obligated to file reports on Form 8-K or 10-K pursuant to
paragraph (b) of this Section. Upon request of the Depositor, the Securities
Administrator shall prepare, execute and file with the Securities and Exchange
Commission a Form 15 Suspension Notification with respect to the Trust, and
thereafter there shall be no further obligations under paragraphs (a) through
(e) of this Section commencing with the fiscal year in which the Form 15 is
filed (other than the obligations to be performed in such fiscal year that
relate back to the prior fiscal year); provided, however, that at any time after
the filing of a Form 15 Suspension Notification, if the number of
Certificateholders of record exceeds the number set forth in Section 15(d) of
the Exchange Act or the regulations promulgated pursuant thereto which would
cause the Trust to again become subject to the reporting requirements of the
Exchange Act, the Securities Administrator shall recommence preparing and filing
reports on Form 8-K and 10-K as required pursuant to this Section and the
parties hereto will again have the obligations set forth in paragraphs (a)
through (e) of this Section.
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 (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
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Servicer's Certificate for all purposes hereunder and shall have no duty to
verify or re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions. On each Distribution Date, based solely on
the information in the Master Servicer's Certificate, the Securities
Administrator shall distribute out of the Distribution Account (to the extent
funds are available therein) to each Certificateholder of record on the related
Record Date (other than as provided in Section 10.01 respecting the final
distribution) (a) by check mailed to such Certificateholder entitled to receive
a distribution on such Distribution Date at the address appearing in the
Certificate Register, or (b) upon written request by the Holder of a Certificate
(other than a Residual Certificate), by wire transfer or by such other means of
payment as such Certificateholder and the Securities Administrator shall agree
upon, such Certificateholder's Percentage Interest in the amount to which the
related Class of Certificates is entitled in accordance with the priorities set
forth below in Section 5.02.
None of the Holders of any Class of Certificates, the Depositor, the
Master Servicer, the Securities Administrator or the Trustee shall in any way be
responsible or liable to Holders of any Class of Certificates in respect of
amounts properly previously distributed on any such Class. Amounts distributed
with respect to any Class of Certificates shall be applied first to the
distribution of interest thereon and then to principal thereon.
Section 5.02 Priorities of Distributions.
(a) On each Distribution Date, based solely on the information
contained in the Master Servicer's Certificate, the Securities Administrator
shall withdraw from the Distribution Account (to the extent funds are available
therein), the Pool Distribution Amount, in an amount as specified in written
notice received by the Securities Administrator from the Master Servicer
pursuant to Section 4.01 hereof, and shall apply such funds to distributions on
the Certificates. Distributions shall be made on the Certificates in the
following order of priority and to the extent of such funds:
(i) to each Class of Senior Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class and any
shortfall being allocated among such Classes in proportion to the amount of
the Interest Distribution Amount that would have been distributed in the
absence of such shortfall;
(ii) to the Senior Certificates, in an aggregate amount up to the
Senior Principal Distribution Amount, such distribution to be allocated
among such Classes in accordance with Section 5.02(b);
(iii) to each Class of Subordinate Certificates, subject to paragraph
(d) below, in the following order of priority:
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(A) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(B) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date until
the Class Certificate Balance thereof has been reduced to zero;
(C) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(D) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date until
the Class Certificate Balance thereof has been reduced to zero;
(E) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(F) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date until
the Class Certificate Balance thereof has been reduced to zero;
(G) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(H) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date until
the Class Certificate Balance thereof has been reduced to zero;
(I) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date;
(J) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date until
the Class Certificate Balance thereof has been reduced to zero;
(K) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class for
such Distribution Date; and
(L) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date until
the Class Certificate Balance thereof has been reduced to zero; and
(iv) to the Holder of the Class A-R Certificate, any remaining Pool
Distribution Amount.
No Class of Certificates will be entitled to any distributions with
respect to the amount payable pursuant to clause (ii) of the definition of
"Interest Distribution Amount" after its Class Certificate Balance has been
reduced to zero.
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All distributions in respect of the Interest Distribution Amount for a
Class of Certificates will be applied first with respect to the amount payable
pursuant to clause (i) of the definition of "Interest Distribution Amount," and
second with respect to the amount payable pursuant to clause (ii) of such
definition.
On each Distribution Date, the Securities Administrator shall
distribute any Reimbursement Amounts received with respect to the Mortgage Loans
sequentially to the Classes of Certificates then outstanding which bore the loss
to which such Reimbursement Amount relates beginning with the most senior of
such Classes of Certificates, up to, with respect to each Class, the amount of
loss borne by such Class. Any Reimbursement Amount remaining after the
application described in the preceding sentence shall be included in the Pool
Distribution Amount.
(b) With respect to the Senior Certificates:
On each Distribution Date prior to the Senior Credit Support Depletion
Date, the amount distributable to the Senior Certificates pursuant to Section
5.02(a)(ii) for such Distribution Date, will be distributed as principal,
sequentially, as follows:
first, to the Class A-R Certificate, until its Class Certificate
Balance has been reduced to zero; and
second, to the Class A-1 Certificates and Class A-2 Certificates, pro
rata, until their Class Certificate Balances have been reduced to zero.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Certificates for such Distribution Date shall be reduced by such Class'
pro rata share, based on such Class' Interest Distribution Amount for such
Distribution Date, without taking into account the allocation made by this
Section 5.02(c), of (A) Non-Supported Interest Shortfalls, (B) on and after the
Senior Credit Support Depletion Date, any other Realized Loss on the Mortgage
Loans allocable to interest and (C) Relief Act Reductions incurred on the
Mortgage Loans during the calendar month preceding the month of such
Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iii), if with respect to any Class of Subordinate Certificates on any
Distribution Date, (i) the sum of the Class Certificate Balances immediately
prior to such Distribution Date of all Classes of Subordinate Certificates which
have a higher numerical Class designation than such Class, divided by (ii) the
aggregate Pool Stated Principal Balance (for each Class, the "Fractional
Interest") is less than the Original Fractional Interest for such Class, no
distribution of principal in respect of clause (ii) of the Subordinate Principal
Distribution Amount 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 sum of the 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
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Subordinate Certificates that is a Restricted Class then outstanding with the
lowest numerical Class designation).
Section 5.03 Allocation of Losses.
(a) On or prior to each Determination 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. Based on such information, the Securities
Administrator shall determine the total amount of Realized Losses on the
Mortgage Loans with respect to the related Distribution Date. Realized Losses
shall be allocated to the Certificates by a reduction in the Class Certificate
Balances of the designated Classes pursuant to Section 5.03(b) below.
The Class Certificate Balance of the Subordinate Certificates then
outstanding with the highest numerical Class designation shall be reduced or
increased on each Distribution Date by the amount, if any, necessary such that
the aggregate of the Class Certificate Balances of all outstanding Classes of
Certificates (after giving effect to the amount to be distributed as a
distribution of principal on such Distribution Date) equals the sum of the
Adjusted Pool Amount for such Distribution Date.
After the Senior Credit Support Depletion Date, the Class Certificate
Balances of the Senior Certificates 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 (after giving effect to the amount to be distributed as a
distribution of principal on such Distribution Date) equals the Adjusted Pool
Amount for such Distribution Date.
Any such reduction or increase shall be allocated among the Senior
Certificates, based on the Class Certificate Balances immediately prior to such
Distribution Date until the Class Certificate Balances thereof have been reduced
to zero.
(b) Any reduction or increase in the Class Certificate Balance of a
Class of Certificates pursuant to Section 5.03(a) above shall be allocated among
the Certificates of such Class in proportion to their respective Percentage
Interests.
(c) 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 Subordinate 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
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Certificate Balance of each such Class is reduced to zero and then to the Senior
Certificates, pro rata, in accordance with the priorities set forth in Section
5.02.
(d) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class A-2 Loss Allocation Amount is greater than
zero, the Class Certificate Balance of the Class A-2 Certificates will be
reduced by the Class A-2 Loss Allocation Amount and, notwithstanding Section
5.03(a), the Class Certificate Balance of the Class A-1 Certificates will not be
reduced by the Class A-2 Loss Allocation Amount.
(e) Any increase in the Class Certificate Balance allocated to the
Class A-1 Certificates pursuant to Section 5.03(a) will instead increase the
Class Certificate Balance of the Class A-2 Certificates.
(f) Notwithstanding any other provision of this Section 5.03, no Class
Certificate Balance of a Class of Certificates will be increased on any
Distribution Date such that the Class Certificate Balance of such Class exceeds
its Initial Class Certificate Balance less all distributions of principal
previously distributed in respect of such Class on prior Distribution Dates.
Section 5.04 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon the
information provided to the Securities Administrator in 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) the amount allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds
included therein;
(ii) the amount allocable to interest, any Class Unpaid Interest
Shortfall included in such distribution and any remaining Class Unpaid
Interest Shortfall after giving effect to such distribution;
(iii) with respect to the Shifting Interest Certificates, if the
distribution to the Holders of such Class of Certificates is less than the
full amount that would be distributable to such Holders if there were
sufficient funds available therefor, the amount of the shortfall and the
allocation thereof as between principal and interest;
(iv) the Class Certificate Balance of each Class of Certificates after
giving effect to the distribution of principal on such Distribution Date;
(v) the Pool Stated Principal Balance for the following Distribution
Date, as of the Due Date in the month of such Distribution Date;
(vi) the Senior Percentage and the Subordinate Percentage for the
following Distribution Date;
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(vii) the amount of the Servicing Fee paid to or retained by the
Servicer with respect to such Distribution Date;
(viii) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(ix) 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) the number and aggregate principal amounts of Mortgage Loans (A)
delinquent (exclusive of Mortgage Loans in foreclosure or in bankruptcy)
(1) 1 to 30 days, (2) 31 to 60 days, (3) 61 to 90 days and (4) 91 or more
days, (B) in foreclosure, as of the close of business on the last day of
the calendar month preceding such Distribution Date and (C) in bankruptcy,
as of the close of business on the last day of the calendar month preceding
such Distribution Date;
(xi) 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) 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) the Senior Prepayment Percentage and the Subordinate Prepayment
Percentage for the following Distribution Date;
(xiv) the aggregate amount of Realized Losses incurred during the
preceding calendar month and for such Distribution Date separately
identifying any reduction thereof due to the allocations of Realized
Losses; and
(xv) the amount of Recoveries and Reimbursement Amounts.
(b) No later than each Distribution Date, the Securities
Administrator, based upon information supplied to it on the Master Servicer's
Certificates, shall make available to each Holder of a Certificate, each Rating
Agency and the Master Servicer a statement setting forth the information set
forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (i) and (ii)
of Section 5.04(a), the amounts shall be expressed as a dollar amount per
Certificate with a $1,000 denomination.
On each Distribution Date, the Securities Administrator shall prepare
and make available to each Financial Market Service, in electronic or such other
format and media mutually agreed upon by the Securities Administrator, the
Financial Market Service and the
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Depositor, the information contained in the statement described in Section
5.04(a) for such Distribution Date.
The Securities Administrator will make the monthly statement to
Certificateholders (and, at its option, any additional files containing the same
information in an alternative format) available each month to Certificateholders
and other parties to this Agreement via the Securities Administrator's Internet
website. The Securities Administrator's Internet website shall initially be
located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇." Assistance in using the website can be obtained by
calling the Securities Administrator's customer service desk at (▇▇▇) ▇▇▇-▇▇▇▇.
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 Holder 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 the 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 the REMIC, nothing contained in
this Agreement, including without limitation Section 7.03 hereof, shall be
interpreted to require the Securities Administrator periodically to appraise the
fair market values of the assets of the Trust Estate or to indemnify the Trust
Estate or any Certificateholders from any adverse federal, state or local tax
consequences associated with a change subsequently required to be made in the
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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 United States federal income tax purposes, the REMIC shall
have a calendar year taxable year and shall maintain its books on the accrual
method of accounting.
(b) The Securities Administrator shall prepare or cause to be
prepared, the Trustee shall timely sign, and the Securities Administrator shall
file or cause to be filed with the Internal Revenue Service and applicable state
or local tax authorities income tax information returns for each taxable year
with respect to the REMIC containing such information at the times and in the
manner as may be required by the Code, the Treasury Regulations or state or
local tax laws, regulations, or rules, and shall furnish or cause to be
furnished to the REMIC and the Certificateholders the schedules, statements or
information at such times and in such manner as may be required thereby. Within
30 days of the Closing Date, the Securities Administrator shall obtain for the
REMIC a taxpayer identification number on Form SS-4 or as otherwise permitted by
the Internal Revenue Service, and shall furnish or cause to be furnished to the
Internal Revenue Service, on Form 8811 or as otherwise required by the Code or
the Treasury Regulations, the name, title, address and telephone number of the
person that Holders of the Certificates may contact for tax information relating
thereto, together with such additional information at the time or times and in
the manner required by the Code or the Treasury Regulations. Such federal,
state, or local income tax or information returns shall be signed by the
Trustee, or such other Person as may be required to sign such returns by the
Code, the Treasury Regulations or state or local tax laws, regulations, or
rules.
(c) In the first United States federal income tax return of the REMIC
for its short taxable year ending December 31, 2005, REMIC status shall be
elected for the REMIC for such taxable year and all succeeding taxable years.
(d) The Securities Administrator will maintain or cause to be
maintained such records relating to the REMIC, including but not limited to
records relating to the income, expenses, assets and liabilities of the Trust
Estate, and the initial fair market value and adjusted basis of the Trust Estate
property and assets determined at such intervals as may be required by the Code
or the Treasury Regulations, as may be necessary to prepare the foregoing
returns, schedules, statements or information.
Section 5.06 Tax Matters Person. The Tax Matters Person shall have the
same duties with respect to the 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
A-R Certificate is hereby designated as the Tax Matters Person for the REMIC. By
its acceptance of the Class 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 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
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Securities Administrator in respect of its duties hereunder and access to
officers of the Securities Administrator responsible for performing such duties.
Upon request, the Securities Administrator shall furnish the Tax Matters Person
with its most recent report of condition published pursuant to law or to the
requirements of its supervisory or examining authority publicly available. The
Securities Administrator shall make available to the Tax Matters Person such
books, documents or records relating to the Securities Administrator's services
hereunder as the Tax Matters Person shall reasonably request. The Tax Matters
Person shall not have any responsibility or liability for any action or failure
to act by the Securities Administrator and is not obligated to supervise the
performance of the Securities Administrator under this Agreement or otherwise.
Section 5.08 REMIC Related Covenants. For as long as the Trust shall
exist, the Trustee, the Securities Administrator, the Depositor and the Master
Servicer shall act in accordance herewith to assure continuing treatment of the
the REMIC as a REMIC and avoid the imposition of tax on the REMIC created
hereunder. In particular:
(a) Neither the Securities Administrator nor the Trustee shall create,
or permit the creation of, any "interests" in the REMIC within the meaning of
Code Section 860D(a)(2) other than the interests represented by the Regular
Certificates and the Residual Certificate.
(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 the
REMIC constitutes either "qualified mortgages" or "permitted investments" as
defined in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property
shall be contributed to the REMIC after the start-up day unless such
contribution would not subject the Trust Estate to the 100% tax on contributions
to a REMIC after the start-up day of the REMIC imposed by Code Section 860G(d).
(c) The Securities Administrator, on behalf of the Trustee, shall not
accept on behalf of the REMIC 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 Section 2.02), unless such sale is
pursuant to a "qualified liquidation" of the 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 the REMIC on a calendar year taxable year and on an accrual basis.
The Trustee and the Securities Administrator shall take such action
and shall cause the REMIC created hereunder to take such action as shall be
necessary to create or maintain the status thereof as a REMIC under the REMIC
Provisions (and the Master Servicer shall, to the extent reasonably requested,
assist such parties therewith). The Trustee and the Securities Administrator
shall not take any action, cause the Trust to take any action or fail to take
(or fail to cause to be taken) any action that, under the REMIC Provisions, if
taken or not
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taken, as the case may be, could (i) endanger the status of the REMIC as a REMIC
or (ii) result in the imposition of a tax upon the Trust Estate (including but
not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code) (either such event, an "Adverse REMIC Event")
unless the Trustee and the Securities Administrator have received an Opinion of
Counsel, addressed to the Trustee and the Securities Administrator (at the
expense of the party seeking to take such action but in no event at the expense
of the Trustee or the Securities Administrator) to the effect that the
contemplated action shall not, with respect to the REMIC, endanger such status
or result in the imposition of such a tax, nor shall the Master Servicer take or
fail to take any action (whether or not authorized hereunder) as to which the
Trustee and the Securities Administrator has advised it in writing that it has
received an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action. In addition, prior to taking any action with
respect to the REMIC or its assets, or causing the REMIC to take any action,
which is not contemplated under the terms of this Agreement, the Master Servicer
shall consult with the Trustee, the Securities Administrator or its designee, in
writing, with respect to whether such action could cause an Adverse REMIC Event
to occur with respect to the REMIC, and the Master Servicer shall not take any
such action or cause the REMIC to take any such action as to which the Trustee
or the Securities Administrator has advised it in writing that an Adverse REMIC
Event could occur. The Trustee or the Securities Administrator may consult with
counsel to make such written advice, and the cost of same shall be borne by the
party seeking to take the action not permitted by this Agreement, but in no
event shall such cost be an expense of the Trustee or the Securities
Administrator. At all times as may be required by the Code, the Master Servicer
on behalf of the Trustee shall ensure that substantially all of the assets of
the REMIC shall consist of "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code. Morevoer, 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 the REMIC 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, prohibited contribution or net income from foreclosure
property 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 the REMIC 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, prohibited contribution or net income from foreclosure
property under the REMIC Provisions due solely to (i) the negligent performance
by the Master Servicer of its duties and obligations set forth herein
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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 the REMIC 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, prohibited contribution or net income from foreclosure
property 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.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Classes of Senior Certificates and
the Subordinate Certificates shall be substantially in the forms set forth in
Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, 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 A-R
Certificate), 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.
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Section 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Securities Administrator shall cause to be kept at an office
or agency in the city in which the Corporate Trust Office of the Securities
Administrator is located a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Securities Administrator shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Securities Administrator shall initially
serve as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like Class,
tenor and aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute and the
Securities Administrator shall authenticate and deliver the Certificates which
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (A) registration of the Book-Entry Certificates
may not be transferred by the Securities Administrator except to another
Depository; (B) the Depository shall maintain book-entry records with respect to
the Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (C) ownership and transfers of registration of the
Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (D) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (E) the Securities Administrator shall deal with the Depository as
the representative of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(F) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If the Depository advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as
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Depository, and the Securities Administrator or the Depositor is unable to
locate a qualified successor, the Securities Administrator shall notify all
Certificate Owners, through the Depository, of the occurrence of such event
and of the availability of definitive, fully-registered Certificates (the
"Definitive Certificates") to Certificate Owners requesting the same. Upon
surrender to the Securities Administrator of the related Class of
Certificates by the Depository (or by the Certificate Custodian, if it
holds such Class on behalf of the Depository), accompanied by the
instructions from the Depository for registration, the Securities
Administrator shall issue the Definitive Certificates. None of the Master
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 of Exhibit H from the transferee of such
Certificate, which representation letter shall not be an expense of the
Depositor, the Trustee, the Securities Administrator or the Master Servicer, or
(ii) in the case of any ERISA Restricted Certificate presented for registration
in the name of an
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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 and the Master Servicer of an
Opinion of Counsel satisfactory to the Securities Administrator and the Master
Servicer as described above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate Registrar
shall have any liability for transfers of Book-Entry Certificates made through
the book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Securities Administrator shall be under no liability to
any Person for any registration of transfer of any ERISA Restricted Certificate
that is in fact not permitted by this Section 6.02 or for making any payments
due on such Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of this Agreement so long as the
transfer was registered by the Securities Administrator in accordance with the
foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee.
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(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit in the form of Exhibit I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Securities Administrator has actual knowledge that the proposed transferee
is not a Permitted Transferee, no transfer of any Ownership Interest in a
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor and
the Securities Administrator with an effective Internal Revenue Service
Form W-8ECI (or successor thereto) or (B) the transferee delivers to both
the transferor and the Securities Administrator an Opinion of Counsel from
a nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual Certificate
will not be disregarded for United States 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
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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) [Reserved]
(h) No service charge shall be imposed for any transfer or exchange of
Certificates of any Class, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate, and (b) there is delivered to the Securities
Administrator, the Trustee, the Depositor and the Certificate Registrar such
security or indemnity reasonably satisfactory to each, to save each of them
harmless, then, in the absence of actual notice to the Securities Administrator
or the Certificate Registrar that such Certificate has been acquired by a bona
fide purchaser, the Securities Administrator shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor, Class and Percentage Interest but
bearing a number not contemporaneously outstanding. Upon the issuance of any new
Certificate under this Section, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator and the Certificate Registrar)
connected therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 6.04 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Trustee, the Securities Administrator, the Certificate Registrar and any
agent of the Depositor, the Master Servicer, the Trustee, the Securities
Administrator or the Certificate Registrar may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 5.01 and for all other purposes
whatsoever, and none of the Depositor, the Master Servicer, the Trustee, the
Securities Administrator, the Certificate Registrar or any agent of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator or the
Certificate Registrar shall be affected by notice to the contrary.
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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
FNMA or FHLMC.
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
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(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, and the Depositor and the Master Servicer shall
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 3.12.
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 the 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 deposit amounts in the
Distribution 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 required
date of deposit; 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
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(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 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, 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 Mortgage
Loans and related documents, or otherwise, including, without limitation, the
recordation of the assignments of the 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 Distribution
Account or thereafter received by the Master Servicer with respect to the
Mortgage Loans and, if the Master Servicer is acting as Custodian, the orderly
transfer of the Mortgage Files to the successor Master Servicer or another
Custodian appointed pursuant to Section 9.12. 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 Mortgage Files 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.
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Section 8.02 Remedies of Trustee. During the continuance of any Event
of Default, so long as such Event of Default shall not have been remedied, the
Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default. During the continuance of any Event of Default, Holders
of Certificates evidencing Voting Rights aggregating not less than 25% of each
Class of Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (a) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto, and (b) the
terminating of 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 the Master
Servicer's failure to remedy the same after notice, the Trustee shall give
notice thereof to the Master Servicer. If a Responsible Officer of the Trustee
shall have knowledge of an Event of Default, the Trustee shall give prompt
written notice thereof to the Certificateholders.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) Within 90 days of the time the Master Servicer 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
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 or shall appoint a successor pursuant to Section 3.07. Notwithstanding
the foregoing, (i)
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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
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 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. 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 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 the 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, not to exceed the Master
Servicer compensation hereunder.
(c) Any successor, including the Trustee, to the Master Servicer as
master servicer shall during the term of its service as master servicer maintain
in force (i) a policy or policies of insurance covering errors and omissions in
the performance of its obligations as master servicer hereunder and (ii) a
fidelity bond in respect of its officers, employees and agents to the same
extent as the Master Servicer is so required pursuant to Section 3.03.
Section 8.06 Notification to Certificateholders. Upon any termination
or appointment of a successor to the Master Servicer pursuant to this Article
VIII, the Securities Administrator shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to each Rating Agency.
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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;
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(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
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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
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(vii) the right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans. The recitals contained herein and in the
Certificates (other than the execution of, and the authentication on the
Certificates) shall be taken as the statements of the Depositor or Master
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 be
accountable for the use or application by the Depositor of funds paid to the
Depositor in consideration of the assignment of the Mortgage Loans hereunder by
the Depositor.
Neither the Trustee nor the Securities Administrator shall at any time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage or any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority or for or with respect to the sufficiency of the Trust
or its ability to generate the payments to be distributed to Certificateholders
under this Agreement, including, without limitation: the existence, condition
and ownership of any Mortgaged Property; the existence and enforceability of any
hazard insurance thereon (other than if the Trustee 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 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 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 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 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
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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 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 least "A" by
S&P and Fitch or (ii) whose serving as Trustee or Securities Administrator
hereunder would not result in the lowering of the ratings originally assigned to
any Class of Certificates. The Trustee shall not be an affiliate of the
Depositor or the Master 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, 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 "A-1" by S&P and "F1" by Fitch
(or such other rating acceptable to S&P and Fitch pursuant to a ratings
confirmation). If no successor Securities Administrator shall have been
appointed and shall have
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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 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.
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Any resignation or removal of the Trustee or the Securities
Administrator and appointment of a successor Trustee pursuant to any of the
provisions of this Section 9.06 shall become effective upon acceptance of
appointment by the successor Trustee or Securities Administrator, as the case
may be, as provided in Section 9.07.
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
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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 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
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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
▇▇▇▇▇ 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 Expenses. The Trustee, as compensation for its services hereunder,
shall be entitled to a fee in an amount agreed upon between the Securities
Administrator and the Trustee, payable by the Securities Administrator out of
its own funds and not out of any funds of the Trust Estate. As set forth in
Section 3.09(e), the Securities Administrator shall be entitled all income and
gains net of
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any losses realized from Permitted Investments of funds in the Distribution
Account as compensation for its services hereunder. The Trustee and the
Securities Administrator, as the case may be, and any director, officer,
employee or agent of the Trustee or the Securities Administrator, as the case
may be, shall be indemnified and held harmless by the Trust against any claims,
damage, loss, liability or expense (including reasonable attorney's fees) (a)
incurred in connection with or arising from or relating to (i) this Agreement,
(ii) the Certificates, or (iii) the performance of any of the Trustee's or
Securities Administrator's, as the case may be, duties hereunder, other than any
claims, damage, loss, liability or expense incurred by reason of willful
misfeasance, bad faith or gross negligence in the performance of any of the
Trustee's or Securities Administrator's, as the case may be, duties hereunder,
(b) resulting from any tax or information return which was prepared by, or
should have been prepared by, the Master Servicer and (c) arising out of the
transfer of any ERISA-Restricted Certificate or Residual Certificate not in
compliance with ERISA. Without limiting the foregoing, except as otherwise
agreed upon in writing by the Depositor and the Trustee or the Securities
Administrator, and except for any such expense, disbursement or advance as may
arise from the Trustee's or the Securities Administrator's gross negligence, bad
faith or willful misconduct, the Trust shall reimburse the Trustee and the
Securities Administrator for all reasonable expenses, disbursements and advances
incurred or made by the Trustee or the Securities Administrator in accordance
with any of the provisions of this Agreement to the extent permitted by Treasury
Regulations Section 1.860G-1(b)(3)(ii) and (iii). Except as otherwise provided
herein, neither the Trustee nor the Securities Administrator shall be entitled
to payment or reimbursement for any routine ongoing expenses incurred by the
Trustee or the Securities Administrator, as applicable, in the ordinary course
of its duties as Trustee or Securities Administrator, Certificate Registrar or
Paying Agent hereunder or for any other expenses. The provisions of this Section
9.11 shall survive the termination of this Agreement or the resignation or
removal of the Trustee or the Securities Administrator, as applicable,
hereunder.
Section 9.12 Appointment of Custodian. The Trustee may at any time on
or after the Closing Date, with the consent of the Depositor, terminate the
Custodian and appoint one or more successor 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. Subject to this Article IX, the
Trustee agrees to comply with the terms of each custodial agreement and to
enforce the terms and provisions thereof against the Custodian for the benefit
of the Certificateholders. Each Custodian shall be a depository institution
subject to supervision by federal or state authority, shall have a combined
capital and surplus of at least $10,000,000 and shall be qualified to do
business in the jurisdiction in which it holds any Mortgage File.
Section 9.13 Paying Agents. The Securities Administrator may appoint
one or more Paying Agents (each, a "Paying Agent") which shall be authorized to
act on behalf of the Securities Administrator in making withdrawals from the
Distribution Account and distributions to Certificateholders as provided in
Section 3.09 and Section 5.02. Wherever reference is made in this Agreement to
withdrawal from the Distribution 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
▇▇▇▇▇ Fargo Bank, N.A. Whenever reference is made in this Agreement to a
distribution by the Securities Administrator or the furnishing of a statement to
Certificateholders by the Securities Administrator, such reference shall be
deemed to include such a distribution or furnishing on behalf of the Securities
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Administrator by a Paying Agent. Each Paying Agent shall provide to the
Securities Administrator such information concerning the Distribution 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 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 Distribution
Account or otherwise accounted, to the reasonable satisfaction of the Securities
Administrator, for all amounts it has withdrawn from the Distribution 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
Servicer and shall mail notice of such appointment to all Certificateholders.
Any successor Paying Agent upon acceptance of its appointment hereunder shall
become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Paying Agent.
The Securities Administrator shall remain liable for any duties and obligations
assumed by its appointed Paying Agent.
Section 9.14 Limitation of Liability. The Certificates are executed by
the Securities Administrator, not in its individual capacity but solely as
Securities Administrator of the Trust, in the exercise of the powers and
authority conferred and vested in it by this Agreement. Each of the undertakings
and agreements made on the part of the Securities Administrator in the
Certificates is made and intended not as a personal undertaking or agreement by
the Securities Administrator but is made and intended for the purpose of binding
only the Trust.
Section 9.15 Trustee or Securities Administrator May Enforce Claims
Without Possession of Certificates. All rights of action and claims under this
Agreement or the Certificates may be prosecuted and enforced by the Trustee or
the Securities Administrator without the possession of any of the Certificates
or the production thereof in any proceeding relating thereto, and such preceding
instituted by the Trustee or the Securities Administrator shall
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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 unpaid principal balance of each such
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 (as determined by the Master
Servicer as of the close of business on the third Business Day next preceding
the date upon which notice of any such termination is furnished to
Certificateholders pursuant to the fifth paragraph of this Article X), plus any
Class Unpaid Interest Shortfall 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 unpaid principal balance of each such Mortgage Loan
(including any Mortgage Loan as to which REO Property has been acquired) or (b)
the final
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payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan remaining in the Trust Estate or the disposition of all REO
Property.
The Master Servicer may not exercise the purchase option until all
Reimbursement Amounts for the Mortgage Loans and related REO Property have been
paid. The Securities Administrator shall notify the Seller, upon notice of the
Master Servicer's intent to exercise its purchase option, of any related
Reimbursement Amounts 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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the
United States to the Court of St. ▇▇▇▇▇, living on the date hereof.
The right of the Master Servicer to purchase the Mortgage Loans and
related REO Property is conditioned upon the aggregate Stated Principal Balance
of the Mortgage Loans being less than 1% of the aggregate Cut-off Date Stated
Principal Balance of the Mortgage Loans. In addition, the right of the Master
Servicer to purchase the Mortgage Loans and related REO Property is conditioned
on the purchase price 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 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 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 Custodian
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.
Notice of termination of the Trust, specifying the date upon which the
Certificateholders may surrender their Certificates to the Securities
Administrator for payment of the final distribution and for cancellation, shall
be given promptly by the Securities Administrator by letter to the
Certificateholders mailed not later than the 15th day of the month of such final
distribution specifying (1) 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 Certificates at the
office or agency of the Securities Administrator therein specified. The
Securities Administrator shall give such notice to the Trustee, the Master
Servicer and the Certificate Registrar at the time such notice is given to such
Certificateholders. The Master Servicer shall deposit in the Distribution
Account on or before 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 Distribution Account on such Distribution Date, as applicable,
equal to the purchase price for the
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related assets of the Trust Estate computed as above provided together with a
statement as to the amount to be distributed on each Class of Certificates
pursuant to the next succeeding paragraph.
Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to the Certificateholders of each
Class, in the order set forth in Section 5.02 hereof, as applicable, on the
applicable Distribution Date, and in proportion to their respective Percentage
Interests, with respect to Certificateholders of the same Class, all cash on
hand in respect of the REMIC (other than the amounts retained to meet claims).
If the Certificateholders do not surrender their Certificates for
final payment and cancellation on or before the Final Distribution Date, the
Securities Administrator shall on such date cause all funds in the Distribution
Account not distributed in final distribution to such Certificateholders 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 Certificateholders to surrender
their Certificates for cancellation and receive a final distribution with
respect thereto. If within one year after the second notice all the Certificates
shall not have been surrendered for cancellation, the Securities Administrator
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds on deposit in
such Eligible Account.
Section 10.02 Additional Termination Requirements.
(a) If the Master Servicer exercises the purchase option as provided
in Section 10.01, the REMIC shall be terminated in accordance with the following
additional requirements, unless the Securities Administrator and the Trustee
have received an Opinion of Counsel to the effect that the failure of the Trust
to comply with the requirements of this Section 10.02 will not (i) result in the
imposition of taxes on "prohibited transactions" of the Trust as defined in
Section 860F of the Code, or (ii) cause the REMIC created hereunder to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Securities Administrator shall specify the first day in the
90-day liquidation period in a statement attached to the 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 Holders 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 agrees to take such other action in connection with such plan of complete
liquidation as may be
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reasonably requested by the Depositor, the Master Servicer, the Trustee or the
Securities Administrator.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Securities Administrator and the
Trustee without the consent of any of the Certificateholders, (i) to cure any
ambiguity or mistake, (ii) to correct or supplement any provisions herein or
therein which may be inconsistent with any other provisions of this Agreement,
any amendment to this Agreement or the related Prospectus Supplement, (iii) to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the REMIC created hereunder as a
REMIC at all times that any Certificates are outstanding or to avoid or minimize
the risk of the imposition of any tax on the REMIC pursuant to the Code that
would be a claim against the Trust Estate, provided that (a) the Trustee and the
Securities Administrator have received an Opinion of Counsel to the effect that
such action is necessary or desirable to maintain such qualification or to avoid
or minimize the risk of the imposition of any such tax and (b) such action shall
not, as evidenced by such Opinion of Counsel, adversely affect in any material
respect the interests of any Certificateholder, (iv) to change the timing and/or
nature of deposits into the Distribution Account provided that (a) such change
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and (b) such change
shall not adversely affect the then-current rating of the Certificates (other
than the Class B-6 Certificates) as evidenced by a letter from each Rating
Agency rating such Certificates to such effect and (v) to make any other
provisions with respect to matters or questions arising under this Agreement
which shall not be materially inconsistent with the provisions of this
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder, provided that the amendment shall not be deemed to adversely
affect in any material respect the interests of the Certificateholders and no
Opinion of Counsel to that effect shall be required if the Person requesting the
amendment obtains a letter from each Rating Agency stating that the amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates.
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer, the Securities Administrator and the Trustee, with the
consent of the Holders of Certificates of each Class of Certificates which is
affected by such amendment, evidencing, as to each such Class of Certificates,
Percentage Interests aggregating not less than 66-2/3%, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of such Certificates; provided, however, that no such amendment shall
(A) reduce in any manner the amount of, or delay the timing of, collections of
payments on Mortgage Loans or distributions which are required to be made on any
Certificate without the consent of the Holder of such Certificate or (B) reduce
the aforesaid percentage required to consent to any such amendment, without the
consent of the Holders of all Certificates then Outstanding.
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Prior to the solicitation of consent of Certificateholders in
connection with any such amendment, the party seeking such amendment shall
furnish the Trustee and the Securities Administrator with an Opinion of Counsel
stating whether such amendment would adversely affect the qualification of the
REMIC created hereunder as a REMIC and notice of the conclusion expressed in
such Opinion of Counsel shall be included with any such solicitation. An
amendment made with the consent of all Certificateholders and executed in
accordance with this Section 11.01 shall be permitted or authorized by this
Agreement notwithstanding that such Opinion of Counsel may conclude that such
amendment would adversely affect the qualification of the REMIC created
hereunder as a REMIC.
Promptly after the execution of any such amendment or consent the
Securities Administrator shall furnish written notification of the substance of
or a copy of such amendment to each Certificateholder and 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 Master Servicer and at its expense on direction by the
Securities Administrator, who will act at the direction of Holders of
Certificates evidencing not less than 50% of all Voting Rights, but only upon
direction of the Securities Administrator accompanied by an Opinion of Counsel
to the effect that such recordation materially and beneficially affects the
interests of Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders. The death or
incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust, or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
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person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Holder previously shall have given to the Securities Administrator a
written notice of default and of the continuance thereof, as provided herein,
and unless also the Holders of Certificates evidencing Percentage Interests
aggregating not less than 25% of each Class of Certificates affected thereby
shall have made written request upon the Securities Administrator to institute
such action, suit or proceeding in its own name as Securities Administrator
hereunder and shall have offered to the Securities Administrator such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Securities Administrator, for 60 days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Securities Administrator, that no one or
more Holders of Certificates shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Holders of any other of the
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Agreement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Securities Administrator
shall be entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05 Notices. All demands, notices, instructions, directions,
requests and communications required or permitted to be delivered hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified mail, return receipt requested, (provided,
however, that notices to the Securities Administrator may be delivered by
facsimile and shall be deemed effective upon receipt) to (a) in the case of the
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Depositor, Banc of America Funding Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel and Chief Financial
Officer, (b) in the case of the Master Servicer, ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: BAFC 2005-D, (c) in the
case of the Securities Administrator, ▇▇▇▇▇ Fargo Bank, N.A., ▇.▇. ▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: BAFC, Series 2005-D, and for overnight
delivery purposes, ▇▇▇▇▇ Fargo Bank, N.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: BAFC, Series 2005-D, with a copy to ▇▇▇▇▇ Fargo
Bank, N.A., Sixth and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: BAFC, Series 2005-D, (d) in the case of the Trustee, Wachovia Bank,
National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Structured Finance Services, BAFC 2005-D, (e) in the case of S&P,
Standard & Poor's, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Residential Mortgage Surveillance Manager and
(f) in the case of Fitch, Fitch Ratings, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attn: Residential Mortgage Surveillance Group; or, as to each party,
at such other address as shall be designated by such party in a written notice
to each other party; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party. Any notice
required or permitted to be mailed to a Certificateholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register. Any notice to a Certificateholder so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid. It is the
intention of the Securities Administrator that Certificateholders shall not be
personally liable for obligations of the Trust Estate, that the beneficial
ownership interests represented by the Certificates shall be nonassessable for
any losses or expenses of the Trust Estate or for any reason whatsoever, and
that Certificates upon execution, countersignature and delivery thereof by the
Securities Administrator pursuant to Section 6.01 are and shall be deemed fully
paid.
Section 11.08 Access to List of Certificateholders. The Certificate
Registrar will furnish or cause to be furnished to the Trustee and the
Securities Administrator, within 15 days after the receipt of a request by the
Trustee and/or the Securities Administrator in writing, a list, in such form as
the Trustee and/or the Securities Administrator may reasonably require, of the
names and addresses of the Certificateholders as of the most recent Record Date
for payment of distributions to Certificateholders.
If three or more Certificateholders apply in writing to the Securities
Administrator, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then
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the Securities Administrator shall, within five Business Days after the receipt
of such application, afford such applicants access during normal business hours
to the most recent list of Certificateholders held by the Securities
Administrator. If such a list is as of a date more than 90 days prior to the
date of receipt of such applicants' request, the Securities Administrator shall
promptly request from the Certificate Registrar a current list as provided
above, and shall afford such applicants access to such list promptly upon
receipt.
Every Certificateholder, by receiving and holding such list, agrees
with the Certificate Registrar and the Securities Administrator that neither the
Certificate Registrar nor the Securities Administrator shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
Section 11.09 Recharacterization. The parties to this Agreement intend
the conveyance by the Depositor to the Trustee of all of its right, title and
interest in and to the Mortgage Loans pursuant to this Agreement to constitute a
purchase and sale and not a loan. Notwithstanding the foregoing, to the extent
that such conveyance is held not to constitute a sale under applicable law, it
is intended that this Agreement shall constitute a security agreement under
applicable law and that the Depositor shall be deemed to have granted to the
Trustee a first priority security interest in all of the Depositor's right,
title and interest in and to the Mortgage Loans.
Section 11.10 Third Party Beneficiary. Nothing in this Agreement or in
the Certificates, expressed or implied, shall give to any Person, other than the
Certificateholders and the parties hereto and their successors hereunder, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
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IN WITNESS WHEREOF, the Depositor, the Securities Administrator, the
Master Servicer and the Trustee have caused this Agreement to be duly executed
by their respective officers thereunto duly authorized to be hereunto affixed,
all as of the day and year first above written.
BANC OF AMERICA FUNDING CORPORATION,
as Depositor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇ FARGO BANK, N.A.,
as Master Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
[Signature Page to the Pooling and Servicing Agreement]
STATE OF MARYLAND )
) ss.:
COUNTY OF BALTIMORE )
)
On the 30th day of June, 2005, before me, a notary public in and for
the State of Maryland, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, known to me who,
being by me duly sworn, did depose and say that he is a Vice President of ▇▇▇▇▇
Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Notary Public
[Notarial Seal]
My commission expires 12-6-2008.
[Notary Page to the Pooling and Servicing Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of June, 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 he is a Senior Vice President of
Banc of America Funding Corporation, a Delaware corporation, one of the parties
that executed the foregoing instrument; and that he signed his name thereto by
order of the Board of Directors of such corporation.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Notary Public
[Notarial Seal]
My commission expires 12-15-2007.
[Notary Page to the Pooling and Servicing Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of June, 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 he is an Assistant Vice
President of Wachovia Bank, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
he signed his name thereto by order of the Board of Directors of such
association.
/s/ ▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Notary Public
[Notarial Seal]
My commission expires 8-30-2009.
[Notary Page to the Pooling and Servicing Agreement]
STATE OF MARYLAND )
) ss.:
COUNTY OF BALTIMORE )
)
On the 30th day of June, 2005, before me, a notary public in and for
the State of Maryland, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, known to me who,
being by me duly sworn, did depose and say that he is a Vice President of ▇▇▇▇▇
Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Notary Public
[Notarial Seal]
My commission expires 12-6-2008.
[Notary Page to the Pooling and Servicing Agreement]
EXHIBIT A-1
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class 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.
A-1-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class A-1
evidencing an interest in a Trust consisting primarily of a pool of 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: June 1, 2005
First Distribution Date: July 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $[___]
Initial Class Certificate
Balance of this Class: $1,000,000,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G DM 8
ISIN No.: US06051GDM87
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 June 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and as master servicer
(the "Master Servicer"), 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,
A-1-2
the Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates for each Distribution Date
at a per annum rate equal to the Net WAC Rate.
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.
* * *
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF FACE OF CLASS A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
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 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.
A-2-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class A-2
evidencing an interest in a Trust consisting primarily of a pool of 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: June 1, 2005
First Distribution Date: July 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $[___]
Initial Class Certificate
Balance of this Class: $57,066,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G DN 6
ISIN No.: US06051GDN60
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 June 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and as master servicer
(the "Master Servicer"), 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,
A-2-2
the Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates for each Distribution Date
at a per annum rate equal to the Net WAC Rate.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
* * *
A-2-3
EXHIBIT A-R
[FORM OF FACE OF CLASS A-R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class 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 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.
A-R-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class 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 a pool of 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: June 1, 2005
First Distribution Date: July 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $[____]
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: Variable
CUSIP No.: 06051G DP 1
ISIN No.: US06051GDP19
THIS CERTIFIES THAT __________ is the registered owner of 100%
Percentage Interest evidenced by this Certificate in certain monthly
distributions with respect to a Trust consisting primarily of the Mortgage Loans
deposited by Banc of America Funding Corporation (the "Depositor"). The Trust
was created pursuant to a Pooling and Servicing Agreement, dated June 30, 2005
(the "Pooling and Servicing Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank,
N.A., as securities administrator (the "Securities Administrator") and as master
servicer (the "Master Servicer"), 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
A-R-2
an obligation of, or an interest in, and is not guaranteed by the Depositor, the
Master Servicer, the Securities Administrator or the Trustee or any of their
respective affiliates. Neither this Certificate nor the Mortgage Loans are
guaranteed or insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates for each Distribution Date
at a per annum rate equal to the Net WAC Rate.
Any distribution of the proceeds of any remaining assets of the
Distribution Account will be made only upon presentment and surrender of this
Class A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 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 A-R
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring this Class 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 A-R Certificate unless such
ownership interest is a pro rata undivided interest; (iii) in connection with
any proposed transfer of this Class 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 A-R
Certificate to such proposed transferee shall be effected; (v) this Class 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 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 A-R
Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class 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 A-R Certificate in violation of such
restrictions, then the Securities Administrator, based on information provided
to the Securities Administrator by the Master Servicer, will provide to the
Internal Revenue Service, and to the Persons specified in Section 860E(e)(3) and
(6) of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-R-3
This Certificate shall not be entitled to any benefit under the
Pooling and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Securities Administrator.
A-R-4
EXHIBIT B-1
[FORM OF FACE OF CLASS B-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
B-1-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-1
evidencing an interest in a Trust consisting primarily of a pool of 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: June 1, 2005
First Distribution Date: July 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $[____]
Initial Class Certificate
Balance of this Class: $17,391,000.00
Pass-Through Rate: Variable
CUSIP No.: 06051G DQ 9
ISIN No.: US06051GDQ91
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 June 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and as master servicer
(the "Master Servicer"), 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,
B-1-2
the Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates for each Distribution Date
at a per annum rate equal to the Net WAC Rate.
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.
* * *
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF FACE OF CLASS B-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
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.
B-2-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-2
evidencing an interest in a Trust consisting primarily of a pool of 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: June 1, 2005
First Distribution Date: July 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $[____]
Initial Class Certificate
Balance of this Class: $4,892,000.00
Pass-Through Rate Variable
CUSIP No.: 06051G DR 7
ISIN No.: US06051DR74
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 June 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and as master servicer
(the "Master Servicer"), 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,
B-2-2
the Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates for each Distribution Date
at a per annum rate equal to the Net WAC Rate.
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.
* * *
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF FACE OF CLASS B-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
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.
B-3-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-3
evidencing an interest in a Trust consisting primarily of a pool of 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: June 1, 2005
First Distribution Date: July 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $[____]
Initial Class Certificate
Balance of this Class: $2,717,000.00
Pass-Through Rate Variable
CUSIP No.: 06051G DS 5
ISIN No.: US06051GDS57
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 June 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and as master servicer
(the "Master Servicer"), 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,
B-3-2
the Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates for each Distribution Date
at a per annum rate equal to the Net WAC Rate.
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.
* * *
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF FACE OF CLASS B-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-4
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
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
B-4-1
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.
B-4-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-4
evidencing an interest in a Trust consisting primarily of a pool of 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: June 1, 2005
First Distribution Date: July 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $[____]
Initial Class Certificate
Balance of this Class: $2,174,000.00
Pass-Through Rate Variable
CUSIP No.: 06051G DT 3
ISIN No.: US06051GDT31
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 June 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and as master servicer
(the "Master Servicer"), 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,
B-4-3
the Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates for each Distribution Date
at a per annum rate equal to the Net WAC Rate.
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.
* * *
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF FACE OF CLASS B-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-5
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
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
B-5-1
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.
B-5-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-5
evidencing an interest in a Trust consisting primarily of a pool of 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: June 1, 2005
First Distribution Date: July 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $[____]
Initial Class Certificate
Balance of this Class: $1,630,000.00
Pass-Through Rate Variable
CUSIP No.: 06051G DU 0
ISIN No.: US06051GDU04
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 June 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and as master servicer
(the "Master Servicer"), 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,
B-5-3
the Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates for each Distribution Date
at a per annum rate equal to the Net WAC Rate.
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.
* * *
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF FACE OF CLASS B-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-6
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
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
B-6-1
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.
B-6-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2005-D
Class B-6
evidencing an interest in a Trust consisting primarily of a pool of 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: June 1, 2005
First Distribution Date: July 25, 2005
Initial Certificate
Balance of this
Certificate
("Denomination"): $[____]
Initial Class Certificate
Balance of this Class: $1,087,911.00
Pass-Through Rate Variable
CUSIP No.: ▇▇▇▇▇▇ ▇▇ 8
ISIN No.: US06051GDV86
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 June 30, 2005 (the "Pooling and
Servicing Agreement"), among the Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
securities administrator (the "Securities Administrator") and as master servicer
(the "Master Servicer"), 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,
B-6-3
the Securities Administrator or the Trustee or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed or
insured by any governmental agency or instrumentality.
Interest will accrue on these Certificates for each Distribution Date
at a per annum rate equal to the Net WAC Rate.
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.
* * *
B-6-4
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 Distribution 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 Distribution 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 the Residual
Certificate), by wire transfer or by such other means of payment as such
Certificateholder and the Securities Administrator shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth in
Section 5.02 of the Pooling and Servicing Agreement. The final distribution on
each Certificate will be made in like manner, but only upon presentation and
surrender of such Certificate to the Securities Administrator as contemplated by
Section 10.01 of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Securities Administrator and the rights of the
Certificateholders under the Pooling and Servicing Agreement at any time by the
Depositor, the Master Servicer, the Securities Administrator and
C-1
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.
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 optional repurchase occurs, the obligations
and responsibilities created by the Pooling and Servicing Agreement will
terminate upon the later of the maturity or other liquidation (or any advance
with respect thereto) of the last Mortgage Loan remaining in the Trust or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Pooling and Servicing Agreement. In no event shall the Trust created by the
Pooling and Servicing Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late
ambassador of the United States to the Court of St. ▇▇▇▇▇, living on the date
thereof.
C-2
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
C-3
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
▇▇▇▇▇ 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.
▇▇▇▇▇ FARGO BANK, N.A.,
as Securities Administrator
By
------------------------------------
Authorized Signatory
C-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
---------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________________ for the
account of ___________________, account number _________________________, or, if
mailed by check, to Applicable statements should be mailed to
This information is provided by _____, the assignee named above, or ,
as its agent.
C-5
EXHIBIT D
MORTGAGE LOAN SCHEDULE
[See separate Excel file on Closing Binder CD]
D-1
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: The Pooling and Servicing Agreement, dated June 30, 2005, among Banc of
America Funding Corporation, as Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as
Securities Administrator and as 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
E-1
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
E-2
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 June 30, 2005, among Banc of America Funding Corporation, as Depositor,
▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator and as Master Servicer, and
Wachovia Bank, National Association, as Trustee.
[__________________],
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
F-1
EXHIBIT G-1
FORM OF TRANSFEROR'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
▇▇▇▇▇ Fargo Bank, N.A.
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-D, Class _____, having an initial
aggregate Certificate Balance as of June 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 June 30, 2005, among Banc of America Funding Corporation, as
Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator and as 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.
G-1-1
Very truly yours,
---------------------------------------
(Transferor)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
G-1-2
EXHIBIT G-2A
FORM 1 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
▇▇▇▇▇ Fargo Bank, N.A.
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-D, Class ___, having an initial
aggregate Certificate Balance as of June 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 June 30, 2005, among Banc of America Funding
Corporation, as Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator
and as 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.
G-2A-1
3. If the Transferee proposes that the Transferred Certificates
be registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
---------------------------------------
(Transferor)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
G-2A-2
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
---------------------------------------
(Nominee)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
G-2A-3
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________]
(the "Transferor") ▇▇▇▇▇ 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
----------
(1) Transferee must own and/or invest on a discretionary basis at
least $100,000,000 in securities unless Transferee is a dealer, and, in that
case, Transferee must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
G-2A-4
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
G-2A-5
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.
___ ___ Yes No Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
---------------------------------------
Print Name of Transferee
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
---------------------------------
G-2A-6
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________]
(the "Transferor") ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator, with
respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other
than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
G-2A-7
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
___ ___ Yes No Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
---------------------------------------
Print Name of Transferee or Adviser
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
IF AN ADVISER:
---------------------------------------
Print Name of Transferee
By:
-----------------------------------
Date:
---------------------------------
G-2B-8
EXHIBIT G-2B
FORM 2 OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
▇▇▇▇▇ Fargo Bank, N.A.
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-D, Class ___, having an initial
aggregate Certificate Principal Balance as of June 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
June 30, 2005, among Banc of America Funding Corporation, as Depositor, ▇▇▇▇▇
Fargo Bank, N.A., as Securities Administrator and as 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
G-2B-1
shall require a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached to the Pooling and Servicing
Agreement as Exhibit G-1 and a certificate from such Certificateholder's
prospective transferee substantially in the form attached to the Pooling and
Servicing Agreement either as Exhibit G-2A or 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
G-2B-2
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
G-2B-3
come within such paragraphs and has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment in the Transferred Certificates; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the economic
risks of such an investment and can afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
---------------------------------------
(Transferee)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
---------------------------------
G-2B-4
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
---------------------------------------
(Nominee)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
G-2B-5
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
▇▇▇▇▇ Fargo Bank, N.A.
Sixth and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2005-D, Class ___, having an initial
aggregate Certificate Principal Balance as of June 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 June 30, 2005, among Banc of
America Funding Corporation, as Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator and as 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.
H-1
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
---------------------------------------
(Transferee)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
---------------------------------
H-2
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 6.02
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2005-D
STATE OF )
) ss:
COUNTY OF )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of _______________________________,
the proposed transferee (the "Transferee") of the Class A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated June 30, 2005, among Banc of America Funding Corporation, as Depositor,
▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator and as 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
I-1
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.
* * *
I-2
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
---------------------------------------
Print Name of Transferee
By
------------------------------------
Name:
Title:
Personally appeared before me the above-named _______________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of _______________, ____
--------------------------------------------
NOTARY PUBLIC
My Commission expires the ___ day of ______,
_____.
I-3
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.
I-4
EXHIBIT J
LIST OF RECORDATION STATES
Florida
Maryland
J-1
EXHIBIT K
FORM OF INITIAL CERTIFICATION
June 30, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services - BAFC 2005-D
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Services, BAFC 2005-D
Re: The Pooling and Servicing Agreement, dated June 30, 2005 (the
"Pooling and Servicing Agreement"), among the Depositor, ▇▇▇▇▇
Fargo Bank, N.A., as securities administrator and as 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 Custodian, hereby certifies that, except as
specified in any list of exceptions attached hereto, it has received the
original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement in connection with this Initial Certification.
The Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability, recordability or genuineness of any of the
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
K-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
▇▇▇▇▇ FARGO BANK, N.A.,
as Custodian
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
K-2
EXHIBIT L
FORM OF FINAL CERTIFICATION
[__________ __, ____]
Banc of America Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services - BAFC 2005-D
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Services, BAFC 2005-D
Re: The Pooling and Servicing Agreement, dated June 30, 2005 (the
"Pooling and Servicing Agreement"), among the Depositor, ▇▇▇▇▇
Fargo Bank, N.A., as securities administrator and as 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 Custodian, hereby certifies that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in any list of exceptions attached hereto, such Mortgage File contains all of
the items required to be delivered pursuant to Section 2.01(b) of the Pooling
and Servicing Agreement.
The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement in connection with this Final Certification. The
Custodian makes no representations as to: (i) the validity, legality,
sufficiency, enforceability, recordability or genuineness of any of the
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
L-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
▇▇▇▇▇ FARGO BANK, N.A.,
as Custodian
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
L-2
EXHIBIT M
Form of ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2005-D
I, [________], a [_____________] of Banc of America Funding
Corporation, certify that:
1. I have reviewed the annual report on Form 10-K, and all Monthly Form 8-K's
containing Distribution Date Statements filed in respect of periods
included in the year covered by this annual report, of the Banc of America
Funding 2005-D Trust (the "Trust");
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to (i) the Master Servicer by the Servicer under the
Servicing Agreement (as defined in the Pooling Agreement) and (ii) the
Securities Administrator by the Master Servicer under the Pooling and
Servicing Agreement, dated June 30, 2005, among Banc of America Funding
Corporation, as Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator and as Master Servicer, and Wachovia Bank, National
Association, as Trustee, for inclusion in these reports is included in
these reports;
4. Based on my knowledge and upon the annual compliance statement included in
the report and required to be delivered by (i) the Master Servicer to the
Securities Administrator in accordance with the terms of the Pooling
Agreement and (ii) the Servicer to the Securities Administrator in
accordance with the terms of the Servicing Agreement, and except as
disclosed in the reports, the Master Servicer has fulfilled its obligations
under the Pooling Agreement and the Servicer has fulfilled its obligations
under the Servicing Agreement; and
5. The reports disclose all significant deficiencies relating to the Master
Servicer's and the 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 Pooling Agreement or Servicing Agreement, as the case may be, that
is included in these reports; and
6. In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: ▇▇▇▇▇ Fargo Bank,
N.A.
M-1
BANC OF AMERICA FUNDING
CORPORATION
By:
-----------------------------------
Name:
Title:
M-2
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-D
The Securities Administrator hereby certifies to the Depositor and its
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the calendar year [___]
and the Monthly Form 8-K's containing the Distribution Date Statements
filed in respect of periods included in the year covered by such annual
report;
2. Based on my knowledge, the distribution information in the Distribution
Date Statements contained in the Monthly Form 8-K's included in the year
covered by the annual report on Form 10-K for the calendar year [___],
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by that annual report;
and
3. Based on my knowledge, the distribution or servicing information required
to be provided by the Securities Administrator under the Pooling and
Servicing Agreement, dated June 30, 2005, among Banc of America Funding
Corporation, as Depositor, ▇▇▇▇▇ Fargo Bank, N.A., as Securities
Administrator and as Master Servicer, and Wachovia Bank, National
Association, as Trustee, for inclusion in these reports is included in
these reports.
▇▇▇▇▇ FARGO BANK, N.A.
as Securities Administrator
By:
-----------------------------------
Name:
Title:
N-1
