Exhibit 4.1
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EXECUTION COPY
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XXXX XX XXXXXXX FUNDING CORPORATION,
as Depositor,
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities Administrator,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated March 30, 2007
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Mortgage Pass-Through Certificates
Series 2007-B
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................................................................5
Section 1.01 Defined Terms...............................................................................5
Section 1.02 Interest Calculations......................................................................42
ARTICLE II CONVEYANCE OF MORTGAGE LOANS ORIGINAL ISSUANCE OF CERTIFICATES........................................42
Section 2.01 Conveyance of Mortgage Loans...............................................................42
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage Loans...............................47
Section 2.03 Representations, Warranties and Covenants of the Master Servicer...........................51
Section 2.04 Representations and Warranties of the Depositor as to the Mortgage Loans...................53
Section 2.05 Designation of Interests in the REMICs.....................................................54
Section 2.06 Designation of Start-up Day................................................................54
Section 2.07 REMIC Certificate Maturity Date............................................................54
Section 2.08 Execution and Delivery of Certificates.....................................................54
Section 2.09 Establishment of the Trust.................................................................54
Section 2.10 Purpose and Powers of the Trust............................................................55
Section 2.11 Rights of the NIMS Insurer.................................................................55
ARTICLE III ADMINISTRATION AND MASTER SERVICING OF MORTGAGE LOANS................................................56
Section 3.01 Master Servicing of the Mortgage Loans.....................................................56
Section 3.02 Monitoring of Servicers....................................................................56
Section 3.03 Fidelity Bond; Errors and Omissions Insurance..............................................58
Section 3.04 Access to Certain Documentation............................................................59
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims...................................59
Section 3.06 Rights of the Depositor, the Securities Administrator and the Trustee in
Respect of the Master Servicer.............................................................60
Section 3.07 Trustee to Act as Master Servicer..........................................................60
Section 3.08 Servicer Custodial Accounts and Escrow Accounts............................................60
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer Custodial Account,
Certificate Account and Rate Cap Carryover Reserve Account.................................61
Section 3.10 Access to Certain Documentation and Information Regarding the Mortgage Loans...............64
Section 3.11 Permitted Withdrawals from the Certificate Account and the Master Servicer Custodial
Account....................................................................................64
Section 3.12 Maintenance of Hazard Insurance and Other Insurance........................................66
Section 3.13 Presentment of Claims and Collection of Proceeds...........................................66
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements..................................67
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property....................................67
Section 3.16 Trustee to Cooperate; Release of Mortgage Files............................................69
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Section 3.17 Documents, Records and Funds in Possession of the Master Servicer to be Held for
the Trustee................................................................................70
Section 3.18 Master Servicer Compensation...............................................................70
Section 3.19 Advances...................................................................................70
Section 3.20 Annual Statement as to Compliance..........................................................71
Section 3.21 Assessments of Compliance and Attestation Reports..........................................72
Section 3.22 Reports to the Commission..................................................................74
ARTICLE IV MASTER SERVICER'S CERTIFICATE.........................................................................81
Section 4.01 Master Servicer's Certificate..............................................................81
ARTICLE V PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;REMIC ADMINISTRATION.....................................81
Section 5.01 Distributions..............................................................................81
Section 5.02 Priorities of Distributions on the Certificates............................................82
Section 5.03 Allocation of Losses.......................................................................86
Section 5.04 Statements to Certificateholders...........................................................87
Section 5.05 REMIC Tax Returns and Reports to Certificateholders........................................90
Section 5.06 Tax Matters Person.........................................................................91
Section 5.07 Rights of the Tax Matters Person in Respect of the Securities Administrator................91
Section 5.08 REMIC Related Covenants....................................................................92
Section 5.09 Determination of One-Month LIBOR...........................................................93
Section 5.10 Master Servicer, Securities Administrator and Trustee Indemnification......................94
Section 5.11 Supplemental Interest Trust................................................................95
Section 5.12 Tax Treatment of Swap Payments and Swap Termination Payments...............................96
Section 5.13 Grantor Trust Administration...............................................................97
ARTICLE VI THE CERTIFICATES......................................................................................97
Section 6.01 The Certificates...........................................................................97
Section 6.02 Registration of Transfer and Exchange of Certificates......................................98
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.........................................103
Section 6.04 Persons Deemed Owners.....................................................................103
ARTICLE VII THE DEPOSITOR AND THE MASTER SERVICER...............................................................104
Section 7.01 Respective Liabilities of the Depositor and the Master Servicer...........................104
Section 7.02 Merger or Consolidation of the Depositor or the Master Servicer...........................104
Section 7.03 Limitation on Liability of the Depositor, the Master Servicer and Others..................104
Section 7.04 Depositor and Master Servicer Not to Resign...............................................105
ARTICLE VIII DEFAULT............................................................................................106
Section 8.01 Events of Default.........................................................................106
Section 8.02 Remedies of Trustee.......................................................................107
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Section 8.03 Directions by Certificateholders and Duties of Trustee During Event of Default............108
Section 8.04 Action upon Certain Failures of the Master Servicer and upon Event of Default.............108
Section 8.05 Trustee to Act; Appointment of Successor..................................................108
Section 8.06 Notification to Certificateholders........................................................110
ARTICLE IX THE TRUSTEE AND THE SECURITIES ADMINISTRATOR.........................................................110
Section 9.01 Duties of Trustee and Securities Administrator............................................110
Section 9.02 Certain Matters Affecting the Trustee and the Securities Administrator....................114
Section 9.03 Neither Trustee nor Securities Administrator Liable for Certificates or Mortgage Loans....115
Section 9.04 Trustee and Securities Administrator May Own Certificates.................................117
Section 9.05 Eligibility Requirements for Trustee and the Securities Administrator.....................117
Section 9.06 Resignation and Removal of Trustee and the Securities Administrator.......................118
Section 9.07 Successor Trustee or Securities Administrator.............................................119
Section 9.08 Merger or Consolidation of Trustee or Securities Administrator............................119
Section 9.09 Appointment of Co-Trustee or Separate Trustee.............................................120
Section 9.10 Authenticating Agents.....................................................................121
Section 9.11 Securities Administrator's Fees and Expenses and Trustee's Fees and Expenses..............122
Section 9.12 Appointment of Custodian..................................................................122
Section 9.13 Paying Agents.............................................................................123
Section 9.14 Limitation of Liability...................................................................124
Section 9.15 Trustee or Securities Administrator May Enforce Claims Without Possession of Certificates.124
Section 9.16 Suits for Enforcement.....................................................................124
Section 9.17 Waiver of Bond Requirement................................................................125
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement.................................125
ARTICLE X TERMINATION...........................................................................................125
Section 10.01 Termination upon Purchase or Liquidation of All Mortgage Loans............................125
Section 10.02 Additional Termination Requirements.......................................................127
ARTICLE XI MISCELLANEOUS PROVISIONS.............................................................................128
Section 11.01 Amendment.................................................................................128
Section 11.02 Recordation of Agreement; Counterparts....................................................129
Section 11.03 Limitation on Rights of Certificateholders................................................130
Section 11.04 Governing Law.............................................................................131
Section 11.05 Notices...................................................................................131
Section 11.06 Severability of Provisions................................................................132
Section 11.07 Certificates Nonassessable and Fully Paid.................................................132
Section 11.08 Access to List of Certificateholders......................................................132
Section 11.09 Recharacterization........................................................................133
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Section 11.10 Regulation AB Compliance; Intent of the Parties; Reasonableness...........................133
Section 11.11 Third Party Beneficiary...................................................................133
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EXHIBITS
Exhibit A-A1 Form of Face of Class A-1 Certificate
Exhibit A-A2 Form of Face of Class A-2 Certificate
Exhibit B-M1 Form of Face of Class M-1 Certificate
Exhibit B-M2 Form of Face of Class M-2 Certificate
Exhibit B-M3 Form of Face of Class M-3 Certificate
Exhibit B-M4 Form of Face of Class M-4 Certificate
Exhibit B-M5 Form of Face of Class M-5 Certificate
Exhibit B-M6 Form of Face of Class M-6 Certificate
Exhibit B-M7 Form of Face of Class M-7 Certificate
Exhibit B-M8 Form of Face of Class M-8 Certificate
Exhibit B-CE Form of Face of Class CE Certificate
Exhibit B-R Form of Face of Class R Certificate
Exhibit C Form of Reverse of all Certificates
Exhibit D Mortgage Loan Schedule
Exhibit E Request for Release of Documents
Exhibit F Form of Certification of Establishment of Account
Exhibit G-1 Form of Transferor's Certificate
Exhibit G-2 Form of Transferee's Certificate
Exhibit H Form of Transferee Representation Letter for ERISA
Restricted Certificates
Exhibit I Form of Affidavit Regarding Transfer of Residual Certificate
Exhibit J List of Recordation States
Exhibit K Form of Initial Certification
Exhibit L Form of Final Certification
Exhibit M Form of Xxxxxxxx-Xxxxx Certification
Exhibit N Relevant Servicing Criteria
Exhibit O Additional Form 10-D Disclosure
Exhibit P Additional Form 10-K Disclosure
Exhibit Q Form 8-K Disclosure Information
Exhibit R Form of Back-up Certification
Exhibit S Form of Additional Disclosure Notification
Exhibit T Form of Transferor Certificate for Residual Certificate
Exhibit U Interest Rate Swap Agreement
Exhibit V Interest Rate Cap Agreement
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POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated March 30, 2007, is hereby
executed by and among BANC OF AMERICA FUNDING CORPORATION, as depositor
(together with its permitted successors and assigns, the "Depositor"), XXXXX
FARGO BANK, N.A., as master servicer (together with its permitted successors and
assigns, in such capacity, the "Master Servicer") and as securities
administrator (together with its permitted successors and assigns, in such
capacity, the "Securities Administrator"), and U.S. BANK NATIONAL ASSOCIATION,
as trustee (together with its permitted successors and assigns, the "Trustee").
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Securities Administrator and the Trustee agree as
follows:
PRELIMINARY STATEMENT
The Depositor intends to sell pass-through certificates (collectively, the
"Certificates"), to be issued hereunder in multiple Classes, which in the
aggregate, will evidence the entire beneficial ownership interest in the Trust
Estate created hereunder. The Certificates will consist of twelve Classes of
Certificates, designated as (i) the Class A-1 and Class A-2 Certificates, (ii)
the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7
and Class M-8 Certificates, (iii) the Class CE Certificates and (iv) the Class R
Certificate. The descriptions of the Lower-Tier REMIC and the Upper-Tier REMIC
that follow are part of the Preliminary Statement. Any inconsistencies or
ambiguities in this Agreement or in the administration of this Agreement shall
be resolved pursuant to the terms of Section 11.01 hereof in a manner that
preserves the validity of such REMIC elections described below.
Lower-Tier REMIC
As provided herein, the Securities Administrator will make an election to
treat the segregated pool of assets consisting of the Mortgage Loans and certain
other related assets subject to this Agreement (but exclusive of the
Supplemental Interest Trust, the Interest Rate Swap Agreement, the Interest Rate
Cap Agreement, the Swap Account and the Rate Cap Carryover Reserve Account) as a
real estate mortgage investment conduit ("REMIC") for federal income tax
purposes, and such segregated pool of assets will be designated as the
"Lower-Tier REMIC." The Class LR Interest will represent the sole class of
"residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions. The following table irrevocably sets forth the designation, the
Uncertificated Lower-Tier REMIC Pass-Through Rate, the initial Uncertificated
Balance, and solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" for each of the
Uncertificated Lower-Tier Regular Interests. None of the Uncertificated
Lower-Tier Interests will be certificated.
-------------------------- ----------------------------- --------------------- -------------------------
Uncertificated
Initial Uncertificated Lower-Tier REMIC Latest Possible
Designations Balance Pass-Through Rate Maturity Date(1)
-------------------------- ----------------------------- --------------------- -------------------------
LR-X (2) Variable(3) April 22, 2047
-------------------------- ----------------------------- --------------------- -------------------------
LR-Y (4) Variable(3) April 22, 2047
-------------------------- ----------------------------- --------------------- -------------------------
LR-C-X (2) Variable(3) April 22, 2047
-------------------------- ----------------------------- --------------------- -------------------------
XX-X-X (4) Variable(3) April 22, 2047
-------------------------- ----------------------------- --------------------- -------------------------
LR-Support (5) Variable(3) April 22, 2047
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(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date immediately following the maturity date
for the Mortgage Loan with the latest maturity date has been designated as
the "latest possible maturity date" for each Uncertificated Lower-Tier
Regular Interest.
(2) Each Class X Lower-Tier REMIC Interest will have an initial Uncertificated
Balance equal to 0.5% of the initial aggregate Stated Principal Balance of
the Mortgage Loans.
(3) Calculated in accordance with the definition of "Uncertificated Lower-Tier
REMIC Pass-Through Rate" herein.
(4) Each Class Y Lower-Tier REMIC Interest will have an initial Uncertificated
Balance equal to the related Class Y Lower-Tier REMIC Target Principal
Balance based on the Uncertificated Balance of the related Class X
Lower-Tier REMIC Interest as set forth in Note (2) above.
(5) The Class LR-Support Interest will have an initial Uncertificated Balance
equal to the excess of the initial aggregate Stated Principal Balance of
the Mortgage Loans over the sum of the initial Uncertificated Balances of
each Class X and Class Y Lower-Tier REMIC Interest.
The foregoing Lower-Tier REMIC structure is intended to cause all the cash
from the Mortgage Loans to flow through the Upper-Tier REMIC as cash flow on an
Upper-Tier Regular Interest, without creating any shortfall, actual or potential
(other than for losses), to any Upper-Tier Regular Interest. To the extent that
the structure is believed to diverge from such intention, the party identifying
such ambiguity or drafting error shall notify the other parties hereto, and the
parties hereto shall attempt to resolve such ambiguity or drafting error in
accordance with Section 11.01 hereto.
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Upper-Tier REMIC
As provided herein, the Securities Administrator will make an election to
treat the segregated pool of assets consisting of the Uncertificated Lower-Tier
Regular Interests as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Upper-Tier REMIC." The
Class UR Interest will represent the sole class of "residual interests" in the
Upper-Tier REMIC for purposes of the REMIC Provisions.
The following table irrevocably sets forth (or describes) the Upper-Tier
Regular Interest designation, the initial Uncertificated Balance and the
Uncertificated Upper-Tier REMIC Pass-Through Rate for each Upper-Tier Regular
Interest comprising the "regular interests" in the Upper-Tier REMIC for purposes
of the REMIC Provisions and, solely for purposes of satisfying Treasury
Regulations Section 1.860G-1(a)(4)(iii), the "latest possible maturity date" for
each Upper-Tier Regular Interest.
-------------------------- ---------------------------- --------------------------- -----------------------
Uncertificated
Initial Upper-Tier
Uncertificated REMIC Pass- Latest Possible
Designation Balance Through Rate Maturity Date(1)
-------------------------- ---------------------------- --------------------------- -----------------------
A-1 $398,997,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
A-2 $44,332,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
M-1 $7,526,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
M-2 $3,293,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
M-3 $2,352,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
M-4 $2,352,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
M-5 $2,352,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
M-6 $2,587,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
M-7 $2,587,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
M-8 $2,352,000.00 (2) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
CE (3) (3) April 22, 2047
-------------------------- ---------------------------- --------------------------- -----------------------
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of Treasury Regulations,
the Distribution Date immediately following the maturity date for the
Mortgage Loan with the latest maturity date has been designated as the
"latest possible maturity date" for each Class of Upper-Tier Regular
Interests.
(2) Interest will accrue on these Upper-Tier Regular Interests at a per annum
rate equal to the lesser of (i) One-Month LIBOR plus the Certificate Margin
for the Corresponding Class of Certificates and (ii) the Upper-Tier REMIC
Net Rate Cap. On any Distribution Date on which the Certificate Interest
Rate for the Corresponding Class of Certificates exceeds the Upper-Tier
REMIC Net Rate Cap, interest accruals based on such excess shall be treated
as having been paid from the Rate Cap Carryover Reserve Account or the
Supplemental Interest Trust, as applicable. On any Distribution Date on
which the Certificate Interest Rate on a Class of Certificates is based on
the Net Rate Cap, the excess of the amount of interest that would have
accrued on such Class of Certificates if the Upper-Tier REMIC Net Rate Cap
were substituted for the Net Rate Cap over the interest accruals based on
the Net Rate Cap shall be treated as having been paid by the related Class
of Certificates to the Supplemental Interest Trust, all pursuant to and as
further provided in Sections 5.11 and 5.12 herein.
(3) Solely for federal income tax purposes, the Class CE Upper-Tier Regular
Interest will have an initial Uncertificated Balance equal to the Initial
Overcollateralization Amount. The Class CE Upper-Tier Regular Interest will
bear interest at its Pass-Through Rate on its Notional Amount.
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SUMMARY OF CERTIFICATES
The following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in excess thereof
in which the Classes of Certificates shall be issuable:
Integral
Multiples in
Initial Class Certificate Minimum Excess of
Classes Certificate Balance Interest Rate Denomination Minimum
Class A-1 $398,997,000 (1) $1,000 $1
Class A-2 $44,332,000 (1) $1,000 $1
Class M-1 $7,526,000 (1) $25,000 $1
Class M-2 $3,293,000 (1) $25,000 $1
Class M-3 $2,352,000 (1) $25,000 $1
Class M-4 $2,352,000 (1) $25,000 $1
Class M-5 $2,352,000 (1) $25,000 $1
Class M-6 $2,587,000 (1) $25,000 $1
Class M-7 $2,587,000 (1) $25,000 $1
Class M-8 $2,352,000 (1) $25,000 $1
Class CE (2) (2) N/A N/A
Class R $100 (3) N/A N/A
(1) The Certificate Interest Rate for these Certificates will be a per annum
rate equal to the lesser of (i) the sum of One-Month LIBOR plus the
applicable Certificate Margin (such sum, the "Pass-Through Rate") and (ii)
the Net Rate Cap.
(2) Solely for federal income tax purposes, the Class CE Certificates will have
an initial Class Certificate Balance equal to the Initial
Overcollateralization Amount. The Class CE Certificates will be entitled to
100% of the amount distributed on the Class CE Upper-Tier Regular Interest.
(3) The Class R Certificate will not bear interest.
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ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article:
10-K Filing Deadline: As defined in Section 3.22(c).
1933 Act: The Securities Act of 1933, as amended.
60+ Day Delinquent Loan: For each Distribution Date, each Mortgage Loan
(including each Mortgage Loan in foreclosure and each Mortgage Loan for which
the Mortgagor has filed for bankruptcy after the Closing Date) with respect to
which any portion of a Monthly Payment is, as of the Due Date in the prior
calendar month, two months or more past due and each Mortgage Loan relating to
an REO Property.
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 Certificate Interest Rate on the applicable Class
Certificate Balance minus such Class' Interest Percentage of Relief Act
Reductions related to any Mortgage Loan for such Distribution Date.
Additional Disclosure Notification: The form of notification to be included
with any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or
Form 8-K Disclosure Information which is attached hereto as Exhibit S.
Additional Form 10-D Disclosure: As defined in Section 3.22(b).
Additional Form 10-K Disclosure: As defined in Section 3.22(c).
Additional Servicer: A Subcontractor engaged by the Master Servicer or the
Securities Administrator that is a "servicer" within the meaning of Item 1101 of
Regulation AB and meets any of the criteria in Item 1108(a)(2)(i) through (iii)
of Regulation AB.
Administrative Fee Rate: With respect to each Mortgage Loan, an amount
equal to the sum of (i) the related Servicing Fee Rate and (ii) the Master
Servicing Fee Rate.
Administrative Fees: The sum of (a) the related Servicing Fee and (b) the
Master Servicing Fee.
Advance: A Periodic Advance or a Servicing Advance.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
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Applied Realized Loss Amount: With respect to each Distribution Date, the
excess, if any, of (a) the aggregate of the Class Certificate Balances of the
Certificates (after taking into account the distribution of Available Funds on
such Distribution Date and any increase in the Class Certificate Balance of a
Class of Certificates as a result of Recoveries) over (b) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period.
Appraised Value: With respect to any Mortgaged Property, either (i) the
lesser of (a) the appraised value determined in an appraisal obtained by the
originator generally no more than four months prior to origination (or, with
respect to newly constructed properties, no more than twelve months prior to
origination) of such Mortgage Loan or, in certain cases, an automated valuation
model (if applicable) or tax assessed value and (b) the sales price for such
property, except that, in the case of Mortgage Loans the proceeds of which were
used to refinance an existing mortgage loan, the Appraised Value of the related
Mortgaged Property is the appraised value thereof determined in an appraisal
obtained at the time of refinancing or, in certain cases, an automated valuation
model (if applicable) or tax assessed value, or (ii) the appraised value
determined in an appraisal made at the request of a Mortgagor subsequent to
origination in order to eliminate the Mortgagor's obligation to keep a Primary
Mortgage Insurance Policy in force.
Assessment of Compliance: As defined in Section 3.21(a).
Assignment of Mortgage: An individual assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to give
record notice of the sale of the Mortgage.
Attestation Report: As defined in Section 3.21(b).
Authenticating Agents: As defined in Section 9.10.
Available Funds: With respect to each Distribution Date, the sum of (i) the
Interest Remittance Amount for such Distribution Date and (ii) the Principal
Remittance Amount for such Distribution Date.
Available Funds Rate Cap: As of any Distribution Date, a per annum rate
(expressed on the basis of an assumed 360-day year and the actual number of days
elapsed during the related Interest Accrual Period) equal to the product of (a)
the amount of Available Funds for such Distribution Date and (b) a fraction, the
numerator of which is 12 and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans as of the first day of the related
Collection Period.
Back-up Certification: As defined in Section 3.22(e).
BAFC: Banc of America Funding Corporation, a Delaware corporation.
BAMCC: Banc of America Mortgage Capital Corporation, a North Carolina
corporation.
BANA: Bank of America, National Association, a national banking
association, or its successor in interest.
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BANA Servicing Agreement: The Servicing Agreement, dated March 30, 2007, by
and between BAFC, as depositor, and BANA, as servicer.
BBA: As defined in Section 5.09.
Book-Entry Certificate: All Classes of Certificates other than the Physical
Certificates.
BPP Mortgage Loan: Any Mortgage Loan which includes a Borrowers Protection
Plan(R) addendum to the related Mortgage Note whereby BANA agrees to cancel (i)
certain payments of principal and interest on such Mortgage Loan for up to
twelve months upon the disability or involuntary unemployment of the Mortgagor
or (ii) the outstanding principal balance of the Mortgage Loan upon the
accidental death of the Mortgagor; provided that such Borrowers Protection
Plan(R) has not been terminated in accordance with its terms.
BPP Mortgage Loan Payment: With respect to any BPP Mortgage Loan, the
Monthly Covered Amount or Total Covered Amount, if any, payable by BANA pursuant
to Section 7(b) of the Mortgage Loan Purchase Agreement.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the State of North Carolina, the State of New
York, the states in which the servicing offices of any Servicer are located, the
state or states in which the master servicing offices of the Master Servicer are
located or the state or states in which the Corporate Trust Offices of the
Trustee and the Securities Administrator are located are required or authorized
by law or executive order to be closed.
Buy-Down Account: The separate Eligible Account or Accounts created and
maintained by a Servicer as set forth in Section 3.08.
Buy-Down Agreement: An agreement governing the application of Buy-Down
Funds with respect to a Buy-Down Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other interested
party to reduce a Mortgagor's monthly payment during the initial years of a
Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which, pursuant to
a Buy-Down Agreement, the monthly interest payments made by the related
Mortgagor will be less than the scheduled monthly interest payments on such
Mortgage Loan, with the resulting difference in interest payments being provided
from related Buy-Down Funds.
Cap Provider: The Bank of New York.
Certificate: Any of the Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2007-B that are issued pursuant to this
Agreement.
Certificate Account: The Eligible Account created and maintained by the
Securities Administrator pursuant to Section 3.09(b) in the name of the
Securities Administrator, on behalf of the Trustee, for the benefit of the
Certificateholders and designated "Xxxxx Fargo Bank, N.A., as Securities
Administrator for U.S. Bank National Association, as Trustee, in trust for
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registered holders of Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2007-B." The Certificate Account shall be deemed to consist
of two sub-accounts; one for each of the Lower-Tier Certificate Sub-Account and
the Upper-Tier Certificate Sub-Account. Funds in the Certificate Account shall
be held in trust for the Holders of the Certificates for the uses and purposes
set forth in this Agreement.
Certificate Balance: With respect to any Certificate at any date (other
than a Class CE Certificate), the maximum dollar amount of principal to which
the Holder thereof is then entitled hereunder, such amount being equal to the
product of the Percentage Interest of such Certificate and the Class Certificate
Balance of the Class of Certificates of which such Certificate is a part.
Certificate Custodian: Initially, Xxxxx Fargo Bank, N.A.; thereafter any
other Certificate Custodian acceptable to the Depository and selected by the
Securities Administrator.
Certificate Interest Rate: With respect to each Class of Certificates, the
per annum rate set forth or calculated in the table under the caption "Summary
of Certificates" in the Preliminary Statement.
Certificate Margin: With respect to each Class of Offered Certificates, the
following percentages:
Class Margin Margin after the Optional Termination Date
Class A-1 0.210% 0.420%
Class A-2 0.270% 0.540%
Class M-1 0.450% 0.675%
Class M-2 0.500% 0.750%
Class M-3 0.650% 0.975%
Class M-4 0.900% 1.350%
Class M-5 1.000% 1.500%
Class M-6 1.250% 1.875%
Class M-7 1.250% 1.875%
Class M-8 1.250% 1.875%
Certificate Owner: With respect to a Book-Entry Certificate, the Person who
is the beneficial owner of a Book-Entry
Certificate. With respect to any Definitive Certificate, the
Certificateholder of such Certificate.
Certificate Register: The register maintained pursuant to Section 6.02.
Certificate Registrar: The registrar appointed pursuant to Section 6.02.
Certificateholder: The Person in whose name a Certificate is registered in
the Certificate Register, except that, solely for the purpose of giving any
consent pursuant to this Agreement, any Certificate registered in the name of
the Depositor, the Master Servicer or any affiliate thereof shall be deemed not
to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that neither the
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Securities Administrator nor the Trustee shall be responsible for knowing that
any Certificate is registered in the name of an affiliate of the Depositor or
the Master Servicer unless one of its Responsible Officers has actual knowledge
thereof.
Certification Parties: As defined in Section 3.22(e).
Certifying Person: As defined in Section 3.22(e).
Class: As to the Certificates, the Class X-0, Xxxxx X-0, Class M-1, Class
M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class CE
and Class R Certificates, as the case may be.
Class A/M Adjustment Factor: For each Distribution Date, the Net Rate Cap
for such Distribution Date, adjusted for this purpose by (i) defining the Swap
Notional Amount, for purposes of any calculation of the Net Swap Payment, to
equal the lesser of the related notional amount set forth on Schedule A of the
Interest Rate Swap Agreement and the then aggregate Stated Principal Balance of
the Mortgage Loans, (ii) excluding from the definition thereof, any Swap
Termination Payment made to the Swap Provider, regardless of whether such Swap
Termination Payment is due to a Swap Provider Trigger Event and (iii) excluding
from the definition of Interest Remittance Amount and Principal Remittance
Amount, for purposes of determining the Available Funds Rate Cap, any Swap
Termination Payment made to the Swap Provider, regardless of whether such Swap
Termination Payment is due to a Swap Provider Trigger Event.
Class CE Adjustment Factor: For each Distribution Date, the product of (a)
the amount of interest accrued in respect of the Upper-Tier Regular Interests
other than the Class CE Upper-Tier Regular Interest and (b) 12, divided by the
sum of the Uncertificated Balances of the Uncertificated Lower-Tier REMIC
Regular Interests.
Class CE Carryover: With respect to any Distribution Date, (a) the excess,
if any, of (x) the excess, if any, of the Uncertificated Accrued Interest with
respect to the Class CE Upper-Tier Regular Interest over the sum of (i) any
amount applied as an Extra Principal Distribution Amount and (ii) the sum of the
amounts paid pursuant to Section 5.02(a) priorities sixth through ninth over (y)
the amount paid to the Class CE Certificates pursuant to Section 5.02(a)
priority tenth other than any amounts attributable to an Overcollateralization
Release Amount or remaining amounts in the Swap Account or Rate Cap Carryover
Reserve Account, plus (b) any such excess remaining unpaid for prior
Distribution Dates.
Class CE Certificates: The Class CE Certificates, which represent (i) the
corresponding Upper-Tier Regular Interest for purposes of the REMIC Provisions,
(ii) the obligation to pay Rate Cap Carryover Amounts, Swap Termination Payments
and the Class IO Distribution Amount and (iii) the right to receive the Class IO
Distribution Amount and amounts from the Rate Cap Carryover Reserve Account and
the Swap Account.
Class CE Distributable Amount: With respect to any Distribution Date, the
sum of (i) the interest accrued on the Class CE Upper-Tier Regular Interests at
their Pass-Through Rate calculated on their Notional Amount less the amount
(without duplication) of Rate Cap Carryover Amounts paid pursuant to Section
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5.02(a) priority eighth and any Defaulted Swap Termination Payments paid
pursuant to Section 5.02(a) priority ninth, (ii) up to any remaining
Overcollateralization Release Amounts, (iii) the amounts remaining in (A) the
Rate Cap Carryover Reserve Account after the distributions in Section 3.09(i)
and (B) the Supplemental Interest Trust in respect of the Swap Account after
distributions in Section 5.02(c)(i) through (ix) and (iv) any Class CE Carryover
Class CE Grantor Trust: The grantor trust created pursuant to Section 5.13
consisting of any interests in the Rate Cap Carryover Reserve Account and
Supplemental Interest Trust beneficially owned by the holders of the Class CE
Certificates and rights and obligations with respect thereto. The Class CE
Grantor Trust shall not be an asset of any REMIC formed hereunder.
Class Certificate Balance: With respect to any Class of Certificates (other
than the Class CE Certificates) and any date of determination, and subject to
the last paragraph of Section 5.03(b), the Initial Class Certificate Balance of
such Class (a) reduced by the sum of (i) all amounts actually distributed in
respect of principal of such Class on all prior Distribution Dates and (ii)
Applied Realized Loss Amounts allocated thereto for previous Distribution Dates
and (b) increased by any Recoveries allocated to such Class for previous
Distribution Dates.
With respect to the Class CE Certificates and any date of determination,
and solely for federal income tax purposes, the excess, if any, of the then
aggregate Uncertificated Balances of the Uncertificated Lower-Tier Interests
over the aggregate Class Certificate Balance of the Certificates then
outstanding.
Class IO Distribution Amount: As defined in Section 5.11(e) hereof.
Class LR-C-X Target Principal Balance: The product of (a) the quotient of
(i) the Class CE Adjustment Factor and (ii) (x) two times the Net WAC minus (y)
the Class CE Adjustment Factor, and (b) the Uncertificated Balance of the Class
XX-X-X Interest for the immediately preceding Distribution Date.
Class XX-X-X Target Principal Balance: The product of (a) the quotient of
(i) (x) two times the Net WAC minus (y) the Class CE Adjustment Factor and (ii)
the Class CE Adjustment Factor and (b) the Uncertificated Balance of the Class
LR-C-X Interest for the immediately preceding Distribution Date.
Class LR-X Target Principal Balance: The product of (a) the quotient of (i)
the Class A/M Adjustment Factor and (ii) (x) two times the Net WAC minus (y) the
Class A/M Adjustment Factor, and (b) the Uncertificated Balance of the Class
LR-Y Interest for the immediately preceding Distribution Date.
Class LR-Y Target Principal Balance: The product of (a) the quotient of (i)
(x) two times the Net WAC minus (y) the Class A/M Adjustment Factor and (ii) the
Class A/M Adjustment Factor and (b) the Uncertificated Balance of the Class LR-X
Interest for the immediately preceding Distribution Date.
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Class M-1 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date) and (ii) the Class
Certificate Balance of the Class M-1 Certificates immediately prior to such
Distribution Date over (y) the lesser of (a) the product of (i) 91.70% and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Collection Period and (b) the amount by which the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period exceeds the product of (i) 0.35% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Class M-2 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date) and (iii) the Class Certificate Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (a) the
product of (i) 93.10% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Collection Period and (b) the
amount by which the aggregate Stated Principal Balance of the Mortgage Loans as
of the last day of the related Collection Period exceeds the product of (i)
0.35% and (ii) the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
Class M-3 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account the payment of the Class M-2 Principal Distribution Amount
on such Distribution Date) and (iv) the Class Certificate Balance of the Class
M-3 Certificates immediately prior to such Distribution Date over (y) the lesser
of (a) the product of (i) 94.10% and (ii) the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Collection Period and
(b) the amount by which the aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the related Collection Period exceeds the product of
(i) 0.35% and (ii) the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date.
Class M-4 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account the payment of the Class M-2 Principal Distribution Amount
on such Distribution Date), (iv) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date) and (v) the Class Certificate
Balance of the Class M-4 Certificates immediately prior to such Distribution
Date over (y) the lesser of (a) the product of (i) 95.10% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
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Collection Period and (b) the amount by which the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period exceeds the product of (i) 0.35% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
Class M-5 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account the payment of the Class M-2 Principal Distribution Amount
on such Distribution Date), (iv) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account the payment of
the Class M-4 Principal Distribution Amount on such Distribution Date) and (vi)
the Class Certificate Balance of the Class M-5 Certificates immediately prior to
such Distribution Date over (y) the lesser of (a) the product of (i) 96.10% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Collection Period and (b) the amount by which the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period exceeds the product of (i) 0.35% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Class M-6 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account the payment of the Class M-2 Principal Distribution Amount
on such Distribution Date), (iv) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account the payment of
the Class M-4 Principal Distribution Amount on such Distribution Date), (vi) the
Class Certificate Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date) and (vii) the Class Certificate Balance of the Class M-6
Certificates immediately prior to such Distribution Date over (y) the lesser of
(a) the product of (i) 97.20% and (ii) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Collection Period and (b)
the amount by which the aggregate Stated Principal Balance of the Mortgage Loans
as of the last day of the related Collection Period exceeds the product of (i)
0.35% and (ii) the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date.
Class M-7 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
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payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account the payment of the Class M-2 Principal Distribution Amount
on such Distribution Date), (iv) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account the payment of
the Class M-4 Principal Distribution Amount on such Distribution Date), (vi) the
Class Certificate Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date), (vii) the Class Certificate Balance of the Class M-6
Certificates (after taking into account the payment of the Class M-6 Principal
Distribution Amount on such Distribution Date) and (viii) the Class Certificate
Balance of the Class M-7 Certificates immediately prior to such Distribution
Date over (y) the lesser of (a) the product of (i) 98.30% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period and (b) the amount by which the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Collection
Period exceeds the product of (i) 0.35% and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
Class M-8 Principal Distribution Amount: As of any Distribution Date, the
excess of (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account the payment of the Senior
Principal Distribution Amount on such Distribution Date), (ii) the Class
Certificate Balance of the Class M-1 Certificates (after taking into account the
payment of the Class M-1 Principal Distribution Amount on such Distribution
Date), (iii) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account the payment of the Class M-2 Principal Distribution Amount
on such Distribution Date), (iv) the Class Certificate Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account the payment of
the Class M-4 Principal Distribution Amount on such Distribution Date), (vi) the
Class Certificate Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date), (vii) the Class Certificate Balance of the Class M-6
Certificates (after taking into account the payment of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Class Certificate
Balance of the Class M-7 Certificates (after taking into account the payment of
the Class M-7 Principal Distribution Amount on such Distribution Date) and (ix)
the Class Certificate Balance of the Class M-8 Certificates immediately prior to
such Distribution Date over (y) the lesser of (a) the product of (i) 99.30% and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day of the related Collection Period and (b) the amount by which the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period exceeds the product of (i) 0.35% and (ii) the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Class R Certificate: The Class R Certificate, which represents the
ownership of the Class UR Interest, the Class MR Interest and the Class LR
Interest.
Class X Lower-Tier REMIC Interests: The Class LR-X Interest and the Class
LR-C-X Interest.
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Class X Lower-Tier REMIC Target Principal Balance: Any of the Class LR-X
Target Principal Balance or Class LR-C-X Target Principal Balance.
Class Y Lower-Tier REMIC Interests: The Class LR-Y Interest and the Class
XX-X-X Interest.
Class Y Lower-Tier REMIC Target Principal Balance: Any of the Class LR-Y
Target Principal Balance or Class XX-X-X Target Principal Balance.
Closing Date: March 30, 2007.
Code: The Internal Revenue Code of 1986, as amended.
Collection Period: With respect to any Distribution Date, the period from
the second day of the calendar month preceding the month in which such
Distribution Date occurs through the first day of the month in which such
Distribution Date occurs.
Commission: The U.S. Securities and Exchange Commission.
Compensating Interest: With respect to any Distribution Date and Servicer,
an amount equal to the lesser of (a) the aggregate Servicing Fee payable to such
Servicer for the Mortgage Loans serviced by such Servicer with respect to such
Distribution Date and (b) the aggregate of the Prepayment Interest Shortfalls on
the Mortgage Loans serviced by such Servicer resulting from Principal
Prepayments on such Mortgage Loans during the related Prepayment Period;
provided, however, Compensating Interest payable for any month by BANA will be
limited to one-twelfth of 0.2500% of the aggregate Stated Principal Balance of
the Mortgage Loans serviced by BANA, calculated as of the Due Date of the month
preceding the month of such Distribution Date.
Compliance Statement: As defined in Section 3.20.
Cooperative: A private, cooperative housing corporation which owns or
leases land and all or part of a building or buildings, including apartments,
spaces used for commercial purposes and common areas therein and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building owned
or leased by a Cooperative, which unit the Mortgagor has an exclusive right to
occupy pursuant to the terms of a proprietary lease or occupancy agreement.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing statements and
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(v) a stock power (or other similar instrument), and ancillary thereto, a
Recognition Agreement, each of which was transferred and assigned to the Trust
pursuant to Section 2.01.
Cooperative Stock: With respect to a Cooperative Loan, the single
outstanding class of stock, partnership interest or other ownership instrument
in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
Corporate Trust Office: With respect to the Trustee, the office of the
Trustee, which office at the date of the execution of this instrument is located
at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services, BAFC, Series 2007-B, 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 execution of this instrument is located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Client Manager - BAFC 2007-B, and for
certificate transfer purposes is located at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services - BAFC 2007-B,
or at such other address as the Securities Administrator may designate from time
to time by notice to the Certificateholders, the Depositor, the Trustee and the
Master Servicer.
Corresponding Class or Classes: The class of interests in the Upper-Tier
REMIC that corresponds to a Class of Certificates in the manner set out below:
------------------------------------- -----------------------------------
Corresponding Upper-Tier Regular Corresponding Class of
Interest Certificates
------------------------------------- -----------------------------------
Class A-1 Class A-1 Certificates
------------------------------------- -----------------------------------
Class A-2 Class A-2 Certificates
------------------------------------- -----------------------------------
Class M-1 Class M-1 Certificates
------------------------------------- -----------------------------------
Class M-2 Class M-2 Certificates
------------------------------------- -----------------------------------
Class M-3 Class M-3 Certificates
------------------------------------- -----------------------------------
Class M-4 Class M-4 Certificates
------------------------------------- -----------------------------------
Class M-5 Class M-5 Certificates
------------------------------------- -----------------------------------
Class M-6 Class M-6 Certificates
------------------------------------- -----------------------------------
Class M-7 Class M-7 Certificates
------------------------------------- -----------------------------------
Class M-8 Class M-8 Certificates
------------------------------------- -----------------------------------
Class CE Class CE Certificates
------------------------------------- -----------------------------------
CWHLS: Countrywide Home Loans Servicing LP, in its capacity as Servicer
under the Countrywide Home Loans Servicing Agreement.
Countrywide Home Loans Servicing Agreement: Collectively, (i) that certain
Master Mortgage Loan Purchase and Servicing Agreement, dated as of April 1,
2003, by and between BANA (as successor in interest to BAMCC and the CWHLS, (ii)
that certain Amendment No. 1, dated as of July 1, 2003, by and among BAMCC,
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CWHLS and BANA, (iii) that certain Amendment No. 2, dated as of September 1,
2004, by and among BAMCC, CWHLS and BANA, (iv) that certain Amendment Reg AB to
the Master Mortgage Loan Purchase and Servicing Agreement (the "Amendment Reg
AB"), dated as of January 1, 2006, by and between the CWHLS and BANA, (v) that
certain Purchase Confirmation dated October 26, 2004, by and between the CWHLS
and BANA, (vi) certain Purchase Confirmations (BA2006-0137 and BA2006-0139),
each dated March 30, 2006, by and between the CWHLS and BANA, (vi) that certain
Purchase Confirmation, dated December 29, 2006, by and between the CWHLS and
BANA and (vii) that certain Assignment, Assumption and Recognition Agreement,
dated as of March 30, 2007, by and among CWHLS, BANA, the Depositor and the
Trustee.
Custodian: Initially, the Trustee and thereafter any custodian appointed by
the Trustee pursuant to Section 9.12. A Custodian may (but need not) be the
Trustee or any Person directly or indirectly controlling or controlled by or
under common control of either of them. None of the Master Servicer, any
Servicer or the Depositor, or any Person directly or indirectly controlling or
controlled by or under common control with any such Person may be appointed
Custodian.
Customary Servicing Procedures: With respect to (i) any Servicer,
procedures (including collection procedures) that a Servicer customarily employs
and exercises in servicing and administering mortgage loans for its own account
and which are in accordance with accepted mortgage servicing practices of
prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located and (ii) the Master Servicer, those master servicing procedures that
constitute customary and usual standards of practice of prudent mortgage loan
master servicers.
Cut-off Date: March 1, 2007.
Cut-off Date Principal Balance: The aggregate of the Stated Principal
Balances of the Mortgage Loans in the Mortgage Pool as of the Cut-off Date,
which is $470,375,789.65.
Debt Service Reduction: As to any Mortgage Loan and any Determination Date,
the excess of (i) the Monthly Payment due on the related Due Date under the
terms of such Mortgage Loan over (ii) the amount of the monthly payment of
principal and/or interest required to be paid with respect to such Due Date by
the Mortgagor as established by a court of competent jurisdiction (pursuant to
an order which has become final and nonappealable) as a result of a proceeding
initiated by or against the related Mortgagor under the Bankruptcy Code, as
amended from time to time (11 U.S.C.); provided that no such excess shall be
considered a Debt Service Reduction so long as (a) the Servicer of such Mortgage
Loan is pursuing an appeal of the court order giving rise to any such
modification and (b)(1) such Mortgage Loan is not in default with respect to
payment due thereunder in accordance with the terms of such Mortgage Loan as in
effect on the Cut-off Date or (2) Monthly Payments are being advanced by the
applicable Servicer, the Master Servicer or the Trustee, as applicable, in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Defaulted Swap Termination Payment: Any Swap Termination Payment required
to be paid by the Supplemental Interest Trust to the Swap Provider pursuant to
the Interest Rate Swap Agreement as a result of an Event of Default (as defined
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in the Interest Rate Swap Agreement) with respect to which the Swap Provider is
the defaulting party or a Termination Event (including a Downgrade Termination
Event) under the Interest Rate Swap Agreement (other than Illegality or a Tax
Event that is not a Tax Event Upon Merger (each as defined in the Interest Rate
Swap Agreement)) with respect to which the Swap Provider is the sole Affected
Party (as defined in the Interest Rate Swap Agreement).
Defective Mortgage Loan: Any Mortgage Loan which is required to be cured,
repurchased or substituted for pursuant to Sections 2.02 or 2.04.
Deferred Interest: With respect to any Mortgage Loan and the related Due
Date, the excess, if any, of the amount of interest accrued on such Mortgage
Loan from the preceding Due Date to such Due Date over the Monthly Payment for
such Due Date.
Deficient Valuation: As to any Mortgage Loan and any Determination Date,
the excess of (i) the then outstanding indebtedness under such Mortgage Loan
over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the applicable Servicer
is pursuing an appeal of the court order giving rise to any such modification
and (b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the applicable
Servicer, the Master Servicer or the Trustee, as applicable, in accordance with
the terms of such Mortgage Loan as in effect on the Cut-off Date.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Delinquent: Any Mortgage Loan with respect to which the Monthly Payment due
on a Due Date is not made by the close of business on the next scheduled Due
Date for such Mortgage Loan.
Denomination: The amount, if any, specified on the face of each Certificate
representing the principal portion of the Initial Class Certificate Balance
evidenced by such Certificate.
Depositor: Banc of America Funding Corporation, a Delaware corporation, or
its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which is Cede &
Co., as the registered Holder of the Book-Entry Certificates or any successor
thereto appointed in accordance with this Agreement. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
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Determination Date: With respect to any Distribution Date and for each
Servicer, as defined in the applicable Servicing Agreement.
Distribution Date: The 20th day of each month beginning in April 2007 (or,
if such day is not a Business Day, the next Business Day).
Document Transfer Event: The 60th day following the day on which either (i)
Xxxxx Fargo is no longer the Servicer of any of the Mortgage Loans purchased by
the Sponsor from Xxxxx Fargo or (ii) the senior, unsecured long-term debt rating
of Xxxxx Fargo & Company is less than "BBB-" by Fitch.
Downgrade Termination Event: An event whereby (x) the Swap Provider (or its
guarantor) ceases to have short term unsecured and/or long term debt ratings at
least equal to the levels specified in the Interest Rate Swap Agreement, and (y)
at least one of the following events has not occurred (except to the extent
otherwise approved by the Rating Agencies): (i) within the time period specified
in the Interest Rate Swap Agreement with respect to such downgrade, the Swap
Provider shall transfer the Interest Rate Swap Agreement, in whole, but not in
part, to a substitute swap provider that satisfied the requirements set forth in
the Interest Rate Swap Agreement, subject to the satisfaction of the rating
agency condition or (ii) within the time periods and otherwise as required by
the Interest Rate Swap Agreement, the Swap Provider shall obtain a qualified
guaranty of its obligations from an eligible third party or (iii) within the
time period specified in the Interest Rate Swap Agreement with respect to such
downgrade, the Swap Provider shall collateralize its exposure to the Issuing
Entity pursuant to the ISDA Credit Support Annex entered into as of March 30,
2007, between the Supplemental Interest Trust and the Swap Provider.
Due Date: As to any Distribution Date and each Mortgage Loan, the first day
in the calendar month of such Distribution Date.
XXXXX: The Commission's Electronic Data Gathering and Retrieval System.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee, the Securities Administrator and to each Rating Agency, the
Certificateholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which shall
be limited to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository institution or
trust company in which such account is maintained, or (iii) a trust account or
accounts maintained with the trust department of a federal or state chartered
depository institution or trust company (including the Trustee, the Master
Servicer and the Securities Administrator), acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency. Eligible Accounts may
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bear interest and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee, the Master Servicer or the Securities
Administrator.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Restricted Certificates: Any of the Class R and Class CE Certificates
and any Certificate that no longer meets the applicable rating requirements of
an Underwriter's Exemption.
Escrow Account: As defined in Section 3.08.
Escrow Payments: The amounts constituting taxes, assessments, Primary
Mortgage Insurance Policy premiums, fire and hazard insurance premiums and other
payments as may be required to be escrowed by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the amount,
if any, by which any Liquidation Proceeds of such Mortgage Loan received in the
calendar month in which such Mortgage Loan became a Liquidated Mortgage Loan,
net of any amounts previously reimbursed to the applicable Servicer as
Nonrecoverable Advance(s) with respect to such Mortgage Loan pursuant to Section
3.11(a)(iv), exceeds (i) the unpaid principal balance of such Liquidated
Mortgage Loan as of the Due Date in the month in which such Mortgage Loan became
a Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage Interest
Rate from the Due Date as to which interest was last paid or for which a
Periodic Advance was made (and not reimbursed) up to the Due Date applicable to
the Distribution Date immediately following the calendar month during which such
liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Extra Principal Distribution Amount: As of any Distribution Date, the
lesser of (x) the Monthly Excess Interest Amount for such Distribution Date and
(y) the Overcollateralization Deficiency for such Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of some or all of the Certificates will be made pursuant
to Section 10.01.
Financial Market Service: Bloomberg LP, Intex Solutions, Inc. and any other
financial information provider designated by the Depositor by written notice to
the Securities Administrator.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended.
Fitch: Fitch Ratings, or any successor thereto.
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Form 8-K Disclosure Information: As defined in Section 3.22(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, if any, and the Rate
Ceiling) the Mortgage Interest Rate on such Mortgage Loan until the next Rate
Adjustment Date.
Holder: A Certificateholder.
Indenture: An indenture relating to the issuance of net interest margin
notes secured entirely or in part by all or a portion of the Class CE
Certificates, which may or may not be guaranteed by the NIMS Insurer.
Independent: When used with respect to any specified Person means such a
Person who (i) is in fact independent of the Depositor, the Trustee, the
Securities Administrator, the Master Servicer and the Servicers, (ii) does not
have any direct financial interest or any material indirect financial interest
in the Depositor, the Trustee, the Securities Administrator, the Master Servicer
or the Servicers or in an affiliate of any of them, and (iii) is not connected
with the Depositor, the Trustee, the Securities Administrator, the Master
Servicer or the Servicers as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions. When used
with respect to any accountants, a Person who is "independent" within the
meaning of Rule 2-01(B) of the Commission's Regulation S-X.
Index: As to any Mortgage Loan and Rate Adjustment Date, the One-Year LIBOR
Index, the One-Year CMT Index or the LAMA Index. The Index applicable to each
Mortgage Loan will be indicated on the Mortgage Loan Schedule.
Initial Class Certificate Balance: As to each Class of Certificates (other
than the Class CE Certificates), the Class Certificate Balance set forth in the
Preliminary Statement.
Initial Overcollateralization Amount: $1,645,689.65.
Insurance Policy: With respect to any Mortgage Loan included in the Trust
Estate, any Primary Mortgage Insurance Policy or any other insurance policy
(including any policy covering any Mortgage Loan or Mortgaged Property,
including without limitation, any hazard insurance policy required pursuant to
Section 3.12, any title insurance policy described in Section 2.01 and any
Federal Housing Administration insurance policies and Department of Veterans
Affairs insurance policies), including all riders and endorsements thereto in
effect, including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
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Interest Accrual Period: As to any Distribution Date and each Class of
Certificates (other than the Class CE and Class R Certificates), the period from
and including the Distribution Date in the prior month (or the Closing Date, in
the case of the initial Distribution Date) to but not including the then current
Distribution Date. As to any Distribution Date and the Class CE Certificates,
the period from and including the first day of the calendar month preceding the
calendar month of such Distribution Date to but not including the first day of
the calendar month of such Distribution Date. The Class R Certificate does not
bear interest.
Interest Carryforward Amount: For any Class of Certificates (other than the
Class CE and Class R Certificates) and any Distribution Date, the sum of (a) the
excess, if any, of the Accrued Certificate Interest for such Distribution Date
over the amount in respect of interest actually distributed on such Class for
such Distribution Date, (b) any remaining unpaid Interest Carryforward Amount
from prior Distribution Dates and (c) interest on such remaining Interest
Carryforward Amount referred to in clause (b) at the applicable Certificate
Interest Rate for the related Interest Accrual Period.
Interest Percentage: With respect to any Class of Offered Certificates and
any Distribution Date, the ratio (expressed as a decimal carried to six places)
of the Accrued Certificate Interest for such Class to the sum of the Accrued
Certificate Interest for all Classes of Offered Certificates, in each case with
respect to such Distribution Date, without regard to Relief Act Reductions.
Interest Rate Cap Agreement: The Interest Rate Cap Agreement, dated March
30, 2007, between the Cap Provider and the Supplemental Interest Trust Trustee,
a copy of which is attached hereto as Exhibit V. The Interest Rate Cap Agreement
shall not be an asset of any REMIC formed under this Agreement.
Interest Rate Swap Agreement: The 1992 ISDA Master Agreement
(Multicurrency-Cross Border), dated as of March 30, 2007 (together with the
schedule thereto, the "Master Agreement"), between the Swap Provider and the
Supplemental Interest Trust Trustee, and a confirmation and credit support annex
of the same date, which supplement and form part of the Master Agreement, the
form of which has been attached hereto as Exhibit U. The Interest Rate Swap
Agreement shall not be an asset of any REMIC formed under this Agreement.
Interest Remittance Amount: As of any Distribution Date, (A) the sum,
without duplication, of (i) all interest collected or advanced with respect to
the related Collection Period on the Mortgage Loans received by the Servicers on
or prior to the Determination Date for such Distribution Date (less the
Administrative Fees for such Mortgage Loans, certain amounts available for
reimbursement of Advances with respect to such Mortgage Loans and certain other
reimbursable expenses and indemnities pursuant to this Agreement and the
Servicing Agreements), (ii) all Compensating Interest paid by the Servicers for
such Distribution Date with respect to the Mortgage Loans, (iii) the portion of
any payment in connection with any Principal Prepayment, Substitution Adjustment
Amount, Repurchase Price, Insurance Proceeds or Liquidation Proceeds relating to
interest with respect to the Mortgage Loans received during the related
Prepayment Period, (iv) any Reimbursement Amounts received with respect to the
Mortgage Loans during the related Prepayment Period and (v) on the Distribution
Date on which the Mortgage Loans and related REO Property are purchased in
accordance with Section 10.01 hereof, that portion of the purchase price in
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respect of interest less (B) any amounts payable to the Swap Provider (including
any Net Swap Payment and any Swap Termination Payment owed to the Swap Provider,
other than a Defaulted Swap Termination Payment).
LAMA Index: A rate per annum that is defined to be an annual average of the
arithmetic mean of the London interbank offered rate quotations for one-month
U.S. Dollar-denominated deposits, as published in Xxxxxx Xxx and most recently
available either (i) as of the first business day in the month preceding the
month of the applicable Rate Adjustment Date or (ii) up to forty-five days
before the applicable Rate Adjustment Date.
LIBOR Business Day: Any day on which banks in London, England and New York
City are open and conducting transactions in foreign currency and exchange.
LIBOR Determination Date: With respect to the Offered Certificates, for
each Distribution Date beginning with the second Distribution Date, the second
LIBOR Business Day prior to the immediately preceding Distribution Date.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
related Prepayment Period and as to which the applicable Servicer has certified
(in accordance with the applicable Servicing Agreement) that it has received all
proceeds it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property and any other proceeds received in connection with an REO Property,
less the sum of related unreimbursed Servicing Fees and Advances.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date of
determination, the fraction, expressed as a percentage, the numerator of which
is the outstanding principal balance of the related Mortgage Loan at origination
and the denominator of which is the Appraised Value of the related Mortgaged
Property.
Losses: As defined in Section 5.10.
Lower-Tier Certificate Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section 3.09(h).
Lower-Tier REMIC: As defined in the Preliminary Statement, the assets
of which consist of the Mortgage Loans, such amounts as shall be held in the
Lower-Tier Certificate Sub-Account, the insurance policies, if any, relating to
a Mortgage Loan and property which secured a Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure. The Lower-Tier REMIC
will not include the Rate Cap Carryover Reserve Account, the Supplemental
Interest Trust, the Interest Rate Swap Agreement, the Interest Rate Cap
Agreement and the Swap Account.
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Marker Rate: With respect to the Class CE Upper-Tier Regular Interest and
any Distribution Date, a per annum rate equal to two (2) times the weighted
average of the Uncertificated Lower-Tier Pass-Through Rates for the Class LR-C-X
Interest and Class XX-X-X Interest, subjecting the Uncertificated Lower-Tier
Pass-Through Rate on the Class XX-X-X Interest to a cap equal to zero.
Master Servicer: Xxxxx 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(c) in the name of the
Master Servicer for the benefit of the Certificateholders and designated "Xxxxx
Fargo Bank, N.A., as Master Servicer, in trust for the registered holders of
Banc of America Funding Corporation Mortgage Pass-Through Certificates, Series
2007-B."
Master Servicer Custodial Account Reinvestment Income: For each
Distribution Date, all income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the Master
Servicer Custodial Account.
Master Servicer's Certificate: The monthly report required by Section 4.01.
Master Servicing Fee: As to any Distribution Date, an amount equal to
one-twelfth of the Master Servicing Fee Rate multiplied by the aggregate Stated
Principal Balance of the Mortgage Loans as of the Due Date in the month
preceding the month in which such Distribution Date occurs.
Master Servicing Fee Rate: With respect to each Mortgage Loan, 0.007% per
annum.
Master Servicing Officer: Any officer of the Master Servicer involved in,
or responsible for, the administration and master servicing of the Mortgage
Loans whose name appears on a list of servicing officers furnished to the
Securities Administrator and the Trustee by the Master Servicer, as such list
may from time to time be amended.
Master Servicing Transfer Costs: All reasonable costs and expenses
(including attorney's fees) incurred by the Trustee or a successor master
servicer in connection with the transfer of master servicing or servicing from a
predecessor master servicer, including, without limitation, any costs or
expenses associated with the complete transfer of all master servicing data or
servicing data and the completion, correction or manipulation of such master
servicing data or servicing data as may be required by the Trustee or successor
master servicer to correct any errors or insufficiencies in the master servicing
data or servicing data or otherwise to enable the Trustee or a successor master
servicer to master service or service, as the case may be, the applicable
Mortgage Loans properly and effectively.
Maximum Negative Amortization: With respect to each Option ARM Mortgage
Loan, the percentage set forth in the related Mortgage Note as the percentage
equal to the principal balance of such Mortgage Loan as of the applicable date
of determination divided by the original principal balance of the such Mortgage
Loan, that if exceeded due to Deferred Interest, will result in a recalculation
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of the Monthly Payment so that the then unpaid principal balance of the Mortgage
Note will be fully amortized over such Mortgage Loan's remaining term to
maturity.
MERS: As defined in Section 2.01(b)(iii).
Mezzanine Certificates: The Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, each of which
represents (i) the corresponding Upper-Tier Regular Interest for purposes of the
REMIC Provisions, (ii) the right to receive the related Rate Cap Carryover
Amounts and (iii) the obligation to pay the Class IO Distribution Amount.
Mezzanine Principal Distribution Amount: With respect to the Class M-1
Certificates, the Class M-1 Principal Distribution Amount; with respect to the
Class M-2 Certificates, the Class M-2 Principal Distribution Amount; with
respect to the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount; with respect to the Class M-4 Certificates, the Class M-4 Principal
Distribution Amount; with respect to the Class M-5 Certificates, the Class M-5
Principal Distribution Amount; with respect to the Class M-6 Certificates, the
Class M-6 Principal Distribution Amount; with respect to the Class M-7
Certificates, the Class M-7 Principal Distribution Amount; and with respect to
the Class M-8 Certificates, the Class M-8 Principal Distribution Amount.
Monthly Covered Amount: As defined in the Mortgage Loan Purchase Agreement.
Monthly Excess Cashflow Amount: For any Distribution Date, any portion of
Available Funds remaining after distribution pursuant to Section 5.02(a)
priority fifth.
Monthly Excess Interest Amount: With respect to each Distribution Date, the
amount, if any, by which the Interest Remittance Amount for such Distribution
Date exceeds the aggregate amount distributed on such Distribution Date to the
Certificates pursuant to Section 5.02(a) priorities first through third.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which,
unless otherwise specified herein, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affect the amount of the monthly
payment due on such Mortgage Loan.
Monthly Statement: As defined in Section 5.04(b).
Moody's: Xxxxx'x Investors Service, Inc. or any successor thereto.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on a Mortgaged Property securing a Mortgage Note or creating a first lien
on a leasehold interest.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining to
a particular Mortgage Loan and any additional documents required to be added to
the Mortgage File pursuant to this Agreement.
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Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate of
interest at which interest accrues on the principal balance of such Mortgage
Loan in accordance with the provisions of the related Mortgage Note, which rate
is (a) prior to the first Rate Adjustment Date for each such Mortgage Loan, the
initial Mortgage Interest Rate for such Mortgage Loan indicated on the Mortgage
Loan Schedule and (b) from and after such Rate Adjustment Date, the sum of the
applicable Index, as of the Rate Adjustment Date applicable to such Due Date,
and the Gross Margin, rounded as set forth in such Mortgage Note, subject to the
Periodic Cap, if any, 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 March 30, 2007, between BANA, as seller, and the Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to time
amended by the Master Servicer to reflect the addition of Substitute Mortgage
Loans and the deletion of Defective Mortgage Loans pursuant to the provisions of
this Agreement) transferred to the Trustee as part of the Trust Estate and from
time to time subject to this Agreement, attached hereto as Exhibit 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) a code indicating the initial Servicer; (xvi) the Appraised Value; (xvii)
the first or next Rate Adjustment Date, as applicable; (xviii) the Rate Ceiling;
(xix) the Rate Floor; (xx) the Periodic Cap, if applicable; (xxi) the Gross
Margin; (xxii) the Index; (xxiii) the closing date of the Mortgage Loan; (xxiv)
the Servicing Fee Rate, (xxv) a code indicating whether the Mortgage Loan is an
Option ARM Mortgage Loan; (xxvi) the first Payment Adjustment Date, if
applicable; and (xxvii) the Maximum Negative Amortization, if applicable. With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall
set forth the following information, as of the Cut-off Date: (i) the number of
Mortgage Loans; (ii) the current aggregate outstanding principal balance of the
Mortgage Loans; (iii) the weighted average Mortgage Interest Rate of the
Mortgage Loans; and (iv) the weighted average months to maturity of the Mortgage
Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.01 as from time to time are held as a part of the
Trust Estate (including any Substitute Mortgage Loans and REO Property), the
Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule.
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Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage Loan, which
may include Cooperative Stock or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution Date,
such Mortgage Loan's Mortgage Interest Rate thereon on the first day of the
calendar month preceding the month of such Distribution Date reduced by the
applicable Administrative Fee Rate for such Mortgage Loan.
Net Rate Cap: As of any Distribution Date, a per annum rate (expressed on
the basis of an assumed 360-day year and the actual number of days elapsed
during the related Interest Accrual Period) equal to the lesser of (a) (i) the
Net WAC less (ii) 12 times the quotient of (x) the Net Swap Payment or Swap
Termination Payment, if any, made to the Swap Provider (only if such Swap
Termination Payment is not due to a Swap Provider Trigger Event (as defined in
the Interest Rate Swap Agreement)) and (y) the aggregate Stated Principal
Balance of the Mortgage Loans as of the first day of the related Collection
Period and (b) the Available Funds Rate Cap.
Net Swap Payment: With respect to any Distribution Date, any net payment
(other than a Swap Termination Payment) payable by the Supplemental Interest
Trust to the Swap Provider on the related Fixed Rate Payer Payment Date (as
defined in the Interest Rate Swap Agreement).
Net Swap Receipt: With respect to any Distribution Date, any net payment
(other than a Swap Termination Payment) made by the Swap Provider to the
Supplemental Interest Trust on the related Floating Rate Payer Payment Date (as
defined in the Interest Rate Swap Agreement), or any amount withdrawn from the
Swap Account that is required under Section 9.01(d) to be treated as a Net Swap
Receipt for purposes of determining the distributions from the Supplemental
Interest Trust.
Net WAC: For any Distribution Date, 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).
NIMS Insurer: Any insurer that is guaranteeing certain payments under notes
secured by collateral which includes all or a portion of the Class CE
Certificates.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the applicable Servicer will
not or, in the case of a proposed Advance, would not be ultimately recoverable
from the related Mortgagor, related Liquidation Proceeds, Insurance Proceeds or
other recoveries in respect of the related Mortgage Loan.
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Notional Amount: With respect to the Class CE Certificates and the Class CE
Upper-Tier Regular Interest and any date of determination, a notional amount
equal to the then aggregate Uncertificated Balances of the Uncertificated
Lower-Tier Interests.
NYCEMA: A New York Consolidation, Extension and Modification Agreement.
Offered Certificates: The Senior and Mezzanine Certificates.
Officer's Certificate: A certificate signed by the Chairman of the Board,
Vice Chairman of the Board, President or a Vice President and by the Treasurer,
the Secretary or one of the Assistant Treasurers or Assistant Secretaries, or
any other duly authorized officer of the Depositor or the Master Servicer, as
the case may be, and delivered to the Trustee or the Securities Administrator,
as required in this Agreement.
One-Month LIBOR: As to any Distribution Date, the arithmetic mean of London
Interbank offered rate quotations for one-month U.S. Dollar deposits, as
determined by the Securities Administrator in accordance with Section 5.09.
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 up
to the date 45 days before the applicable Rate Adjustment Date.
One-Year LIBOR Index: A rate per annum that is defined to be the average of
interbank offered rates for one-year U.S. dollar-denominated deposits in the
London market, as published in The Wall Street Journal and most recently
available either (i) as of the first Business Day in the month preceding the
month of the applicable Rate Adjustment Date or (ii) up to the date 45 days
before the applicable Rate Adjustment Date.
Opinion of Counsel: A written opinion of counsel acceptable to the Trustee
if such opinion is delivered to the Trustee, or acceptable to the Securities
Administrator if such opinion is delivered to the Securities Administrator, who
may be counsel for the Depositor or the Master Servicer, except that any opinion
of counsel relating to the qualification of any REMIC created hereunder as a
REMIC or compliance with the REMIC Provisions must be an opinion of Independent
counsel.
Option ARM Mortgage Loan: A Mortgage Loan with respect to which the related
Mortgagor may choose a flexible payment option each month pursuant to the terms
of the related Mortgage Note, as identified on the Mortgage Loan Schedule.
Optional Termination Date: The first Distribution Date on which all of the
Mortgage Loans and all related REO Property remaining in the Trust Estate may be
purchased pursuant to Section 10.01.
OTS: The Office of Thrift Supervision.
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Overcollateralization Amount: As of any Distribution Date, the excess, if
any, of (x) the aggregate Stated Principal Balance of the Mortgage Loans as of
the last day of the related Collection Period over (y) the aggregate Class
Certificate Balance of all Classes of Certificates (after taking into account
all distributions of principal on such Distribution Date and the increase of any
Class Certificate Balance of a Class of Certificates as a result of Recoveries
related to the Mortgage Loans).
Overcollateralization Deficiency: As of any Distribution Date, the excess,
if any, of (x) the Targeted Overcollateralization Amount over (y) the difference
(which may be negative) between (i) the aggregate Stated Principal Balance of
the Mortgage Loans as of the last day of the related Collection Period and (ii)
the aggregate Class Certificate Balance of all Classes of Certificates (after
taking into account the reduction on such Distribution Date of the Class
Certificate Balances of all Classes of Certificates resulting from the
distribution of the Principal Distribution Amount (but not the Extra Principal
Distribution Amount) on that Distribution Date, but prior to taking into account
any Applied Realized Loss Amounts on that Distribution Date).
Overcollateralization Release Amount: With respect to any Distribution Date
on or after the Stepdown Date on which a Trigger Event is not in effect, the
lesser of (x) the Principal Remittance Amount for such Distribution Date and (y)
the excess, if any, of (i) the Overcollateralization Amount for such
Distribution Date, assuming that 100% of the Principal Remittance Amount is
applied as a principal payment on the Certificates on such Distribution Date
over (ii) the Targeted Overcollateralization Amount for such Distribution Date.
With respect to any Distribution Date on which a Trigger Event is in effect, the
Overcollateralization Release Amount will be zero.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
Pass-Through Rate: With respect to each Distribution Date and any Class of
interest-bearing Certificates (other than the Class CE Certificates), the per
annum rate set forth or described in the Preliminary Statement. With respect to
each Distribution Date and the Uncertificated Lower-Tier Regular Interests, the
Uncertificated Lower-Tier REMIC Pass-Through Rate. With respect to each
Distribution Date and the Upper-Tier Regular Interests (other than the Class CE
Upper-Tier Regular Interest), the Uncertificated Upper-Tier REMIC Pass-Through
Rate. Solely for federal income tax purposes, each reference to the Net Rate Cap
in the applicable Pass-Through Rate shall be deemed to be a reference to the
Upper-Tier REMIC Net Rate Cap.
With respect to the Class CE Upper-Tier Regular Interest and any
Distribution Date, a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is (x) the sum of interest on the
Uncertificated Balance of each Uncertificated Lower-Tier Regular Interest listed
in clause (y) at a rate equal to the related Uncertificated Lower-Tier REMIC
Pass-Through Rate minus the Marker Rate and the denominator of which is (y) the
aggregate Uncertificated Balance of the Uncertificated Lower-Tier Regular
Interests.
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With respect to the Class CE Certificates and any Distribution Date, the
Class CE Certificates shall be entitled to 100% of the amounts distributable to
the Class CE Upper-Tier Regular Interest.
Paying Agent: As defined in Section 9.13.
Payment Adjustment Date: With respect to any Option ARM Mortgage Loan, each
date on which the Monthly Payment for such Option ARM Mortgage Loan is adjusted,
as indicated on the Mortgage Loan Schedule.
Percentage Interest: As to any Certificate (other than a Class CE
Certificate), the percentage obtained by dividing the Denomination of such
Certificate by the Initial Class Certificate Balance of the Class of which such
Certificate is a part. With respect to a Class CE Certificate, the portion of
the Class evidenced thereby, expressed as a percentage, as stated on the face of
such Certificate; provided, however, that the sum of all such percentages for
each such Certificate totals 100%.
Periodic Advance: With respect to each Servicer, shall have the meaning
given to term "Monthly Advance" in the applicable Servicing Agreement.
Periodic Cap: For each Mortgage Loan other than an Option ARM Mortgage
Loan, the applicable limit on adjustment of the Mortgage Interest Rate for each
Rate Adjustment Date specified in the applicable Mortgage Note and designated as
such in the Mortgage Loan Schedule.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest by the
United States, Xxxxxxx Mac, Xxxxxx Xxx or any agency or instrumentality of
the United States when such obligations are backed by the full faith and
credit of the United States; provided that such obligations of Xxxxxxx Mac
or Xxxxxx Xxx shall be limited to senior debt obligations and mortgage
participation certificates other than investments in mortgage-backed or
mortgage participation securities with yields evidencing extreme
sensitivity to the rate of principal payments on the underlying mortgages,
which shall not constitute Permitted Investments hereunder;
(ii) repurchase agreements on obligations specified in clause (i)
maturing not more than one month from the date of acquisition thereof with
a corporation incorporated under the laws of the United States or any state
thereof rated not lower than "P-1" by Moody's, "F1" by Fitch and "A-1+" by
S&P;
(iii) federal funds, certificates of deposit, demand deposits, time
deposits and bankers' acceptances (which shall each have an original
maturity of not more than 90 days and, in the case of bankers' acceptances,
shall in no event have an original maturity of more than 365 days or a
remaining maturity of more than 30 days) denominated in United States
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dollars of any U.S. depository institution or trust company incorporated
under the laws of the United States or any state thereof, rated not lower
than "P-1" by Moody's, "F1" by Fitch and "A-1+" by S&P;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United States
or any state thereof which is rated not lower than "P-1" by Moody's, "F1"
by Fitch and "A-1+" by S&P;
(v) investments in money market funds (including funds of the
Securities Administrator or its affiliates, or funds for which an affiliate
of the Securities Administrator acts as advisor, as well as funds for which
the Securities Administrator and its affiliates may receive compensation)
rated "Aaa" by Moody's, "AAA" by Fitch (if rated by Fitch) and "AAAm G" by
S&P or otherwise approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to each
Rating Agency and, as evidenced by an Opinion of Counsel obtained by the
Master Servicer or Securities Administrator, as the case may be, will not
affect the qualification of any REMIC created under this Agreement as a
REMIC;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States, or any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, international organization or
any agency or instrumentality of either of the foregoing, (iii) an organization
which is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) (except
certain farmers' cooperatives described in Code Section 521), (iv) rural
electric and telephone cooperatives described in Code Section 1381(a)(2)(C), (v)
a Person with respect to whom the income on a Residual Certificate is allocable
to a foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of such Person or any other U.S. Person, and (vi)
any other Person so designated by the Depositor based on an Opinion of Counsel
to the effect that any transfer to such Person may cause the Trust or any other
Holder of a Residual Certificate to incur tax liability that would not be
imposed other than on account of such transfer. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Code Section 7701 or successor provisions.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Physical Certificates: The Class R and Class CE Certificates.
Plan: As defined in Section 6.02(e).
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Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the related
Prepayment Period, the amount, if any, by which one month's interest at the
related Net Mortgage Interest Rate on such Principal Prepayment exceeds the
amount of interest paid in connection with such Principal Prepayment.
Prepayment Period: With respect to any Distribution Date, the calendar
month preceding the calendar month in which such Distribution Date occurs.
Primary Mortgage Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan,
in each case issued by an insurer acceptable to Xxxxxx Xxx or Xxxxxxx Mac.
Principal Distribution Amount: As to any Distribution Date, the sum of (i)
the Principal Remittance Amount (minus (a) the Overcollateralization Release
Amount, if any, and (b) any amounts used to pay Accrued Certificate Interest or
Interest Carryforward Amounts pursuant to Section 5.02(a) priorities first
through third.
Principal Prepayment: With respect to each Mortgage Loan, any payment or
other recovery of principal on a Mortgage Loan (other than Liquidation Proceeds)
which is received in advance of its scheduled Due Date and is not accompanied by
an amount of interest representing scheduled interest due on any date or dates
in any month or months subsequent to the month of prepayment.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution Date and the
Mortgage Loans, to the extent of funds available therefor, the amount equal to
(A) the sum (less amounts available for reimbursement to the Servicers for
Advances and expenses pursuant to the applicable Servicing Agreement and amounts
reimbursable or payable to the Master Servicer, Securities Administrator and
Trustee pursuant to this Agreement) of: (i) each payment of principal on a
Mortgage Loan due during the related Collection Period and received by the
Servicers on or prior to the related Determination Date, and any Advances with
respect thereto, (ii) all Principal Prepayments received by the Servicers during
the related Prepayment Period, (iii) Insurance Proceeds, Liquidation Proceeds
and Recoveries allocable to principal actually collected by the Servicers during
the related Prepayment Period, (iv) with respect to Defective Mortgage Loans
repurchased during the related Prepayment Period, the portion of the Repurchase
Price allocable to principal, (v) any Substitution Adjustment Amounts paid
during the related Prepayment Period and (vi) on the Distribution Date on which
the Mortgage Loans and related REO Property are purchased in accordance with
Section 10.01 hereof, that portion of the purchase price therefor in respect of
principal less (B) any amounts payable to the Swap Provider (including any Net
Swap Payment and any Swap Termination Payment owed to the Swap Provider, other
than a Defaulted Swap Termination Payment) not covered by the Interest
Remittance Amount (without giving effect to clause (B) of the definition
thereof).
Private Certificates: The Class R and Class CE Certificates.
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Purchase Obligation: An obligation of the Sponsor or the Depositor to
purchase Mortgage Loans under the circumstances and in the manner provided in
Section 2.02 or 2.04.
Purchase Price: With respect to each Mortgage Loan that was a Defective
Mortgage Loan repurchased on any date pursuant to Sections 2.02 or 2.04, an
amount equal to the sum of (i) the Stated Principal Balance of the Mortgage
Loan, (ii) interest on such Stated Principal Balance at the Mortgage Interest
Rate from the date on which interest has last been paid and distributed through
the last day of the month in which such repurchase takes place and (iii) any
costs and damages incurred by the Trust in connection with any violation by such
repurchased Mortgage Loan of any predatory or abusive lending law, less (x)
amounts received or advanced in respect of such repurchased Mortgage Loan which
are being held in the applicable Servicer Custodial Account for distribution in
the month of repurchase and (y) if the Person repurchasing such Mortgage Loan is
servicing such Mortgage Loan under the related Servicing Agreement, the
Servicing Fee for such Mortgage Loan.
Rate Adjustment Date: As to each Mortgage Loan, the Due Date on which an
adjustment to the Mortgage Interest Rate of such Mortgage Loan becomes effective
under the related Mortgage Note.
Rate Cap Carryover Amount: If on any Distribution Date, the Accrued
Certificate Interest for any Offered Certificate is based on the Net Rate Cap,
the excess of (i) the amount of interest such Class would have been entitled to
receive on such Distribution Date based on its Pass-Through Rate over (ii) the
amount of interest such class received on such Distribution Date based on the
Net Rate Cap, together with the unpaid portion of any such excess from prior
Distribution Dates (and interest accrued thereon at the then-applicable
Pass-Through Rate on such Class). For federal income tax purposes, each
application of the Net Rate Cap shall be an application of the Upper-Tier REMIC
Net Rate Cap for purposes of calculating the Rate Cap Carryover Amount.
Rate Cap Carryover Reserve Account: The Eligible Account created and
maintained by the Securities Administrator pursuant to Section 3.09(i) in the
name of the Securities Administrator, on behalf of the Trustee, for the benefit
of the Holders of the Offered Certificates and designated "Xxxxx Fargo Bank,
N.A., as Securities Administrator for U.S. Bank National Association, as
Trustee, in trust for registered holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2007-B." Funds in the Rate Cap
Carryover Reserve Account shall be held in trust for the Holders of the Offered
Certificates for the uses and purposes set forth in this Agreement. Funds in the
Rate Cap Carryover Reserve Account shall be held uninvested. The Rate Cap
Carryover Reserve Account shall not be an asset of any REMIC formed under this
Agreement.
Rate Ceiling: The maximum per annum Mortgage Interest Rate permitted under
the related Mortgage Note and indicated on the Mortgage Loan Schedule.
Rate Floor: The minimum per annum Mortgage Interest Rate permitted under
the related Mortgage Note and indicated on the Mortgage Loan Schedule.
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Rating Agency: Each of S&P, Xxxxx'x and Fitch. If any such organization or
a successor is no longer in existence, "Rating Agency" shall be such nationally
recognized statistical rating organization, or other comparable Person, as is
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer and the Securities Administrator. References herein
to a given rating or rating category of a Rating Agency shall mean such rating
category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount as
of the date of such liquidation, equal to (i) the unpaid principal balance of
the Liquidated Mortgage Loan as of the date of such liquidation, plus (ii)
interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Realized Loss Amortization Amount: As to each class of Offered Certificates
and any Distribution Date, the lesser of (x) the Unpaid Realized Loss Amount for
such class and (y) the remaining Available Funds available for distribution to
such Class in Section 5.02(a) priority seventh.
Recognition Agreement: With respect to a Cooperative Loan, the recognition
agreement between the Cooperative and the originator of such Cooperative Loan.
Record Date: With respect to the Class CE and Class R Certificates, the
last Business Day of the month immediately preceding the month in which the
related Distribution Date occurs. With respect to the Offered Certificates, the
Business Day immediately preceding each Distribution Date; provided, however, if
Definitive Certificates are issued for any of such Certificates, the Record Date
for such Certificates will be the last Business Day of the month preceding such
Distribution Date.
Recovery: Any amount received on a Mortgage Loan subsequent to such
Mortgage Loan being determined to be a Liquidated Mortgage Loan.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100 - 229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
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Xxxxxxxxxxxxx Xxxxxx: As defined in Section 2.02.
Relevant Servicing Criteria: The Servicing Criteria applicable to the
various parties, as set forth on Exhibit N attached hereto. The Servicing
Criteria applicable to each Servicer shall be as set forth on the applicable
Servicing Agreement. For clarification purposes, multiple parties can have
responsibility for the same Relevant Servicing Criteria. With respect to a
Servicing Function Participant engaged by the Master Servicer, the Securities
Administrator, the Custodian or any Servicer, the term "Relevant Servicing
Criteria" may refer to a portion of the Relevant Servicing Criteria applicable
to such parties.
Relief Act: The Servicemembers Civil Relief Act, as it may be amended from
time to time.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the related Collection Period as a result of the
application of the Relief Act or comparable state legislation, the amount, if
any, by which (i) interest collectible on such Mortgage Loan for such Collection
Period is less than (ii) interest accrued pursuant to the terms of the Mortgage
Note on the same principal amount and for the same period as the interest
collectible on such Mortgage Loan for the related Collection Period.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Certificate Maturity Date: As set forth in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating to real
estate mortgage investment conduits, which appear at Section 860A through 860G
of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time, as well as provisions of applicable state laws.
REMIC Regular Interests: Any of the Uncertificated Lower-Tier Regular
Interests, and the Upper-Tier Regular Interests.
Remittance Date: The 18th day of each month beginning in April 2007 (or, if
such day is not a Business Day, the preceding Business Day).
REO Disposition Period: As defined in Section 3.15.
REO Proceeds: Proceeds, net of any related expenses of a Servicer received
in respect of any REO Property (including, without limitation, proceeds from the
rental of the related Mortgaged Property), which are received prior to the final
liquidation of such Mortgaged Property.
REO Property: A Mortgaged Property acquired by a Servicer servicing the
related Mortgage Loan on behalf of the Trust through foreclosure or deed-in-lieu
of foreclosure in connection with a defaulted Mortgage Loan.
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Reportable Event: As defined in Section 3.22(d).
Reporting Servicer: As defined in Section 3.22(c)(i).
Request for Release: The Request for Release submitted by a Servicer to the
Custodian on behalf of the Trustee, substantially in the form attached hereto as
Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan, any insurance
policy which is required to be maintained from time to time under this Agreement
in respect of such Mortgage Loan.
Reserve Interest Rate: As defined in Section 5.09.
Residual Certificate: The Class R Certificate.
Responsible Officer: When used with respect to the Trustee or the
Securities Administrator, any officer of the Corporate Trust Department of the
Trustee or the Securities Administrator, as applicable, including any Senior
Vice President, any Vice President, any Assistant Vice President, any Assistant
Secretary, any Trust Officer or Assistant Trust Officer, or any other officer of
the Trustee or Securities Administrator, as applicable, customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Agreement.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., or
any successor thereto.
Xxxxxxxx-Xxxxx Certification: As defined in Section 3.22(e).
Securities Administrator: Xxxxx Fargo, and its successors-in-interest and,
if a successor securities administrator is appointed hereunder, such successor,
as securities administrator.
Security Agreement: With respect to a Cooperative Loan, the agreement or
mortgage creating a security interest in favor of the originator of the
Cooperative Loan in the related Cooperative Stock.
Senior Certificates: The Class A-1 and Class A-2 Certificates, each of
which represents (i) the corresponding Upper-Tier Regular Interest for purposes
of the REMIC Provisions, (ii) the right to receive the related Rate Cap
Carryover Amounts and (iii) the obligation to pay the Class IO Distribution
Amount.
Senior Enhancement Percentage: For any Distribution Date, the percentage
obtained by dividing (x) the sum of (i) the aggregate Class Certificate Balance
of the Mezzanine Certificates before taking into account distributions on such
Distribution Date and (ii) the Overcollateralization Amount as of the prior
Distribution Date by (y) the aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the related Collection Period.
Senior Principal Distribution Amount: As of any Distribution Date (i)
before the Stepdown Date or as to which a Trigger Event is in effect, the
Principal Distribution Amount and (ii) on or after the Stepdown Date and as long
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as a Trigger Event is not in effect, the excess of (a) the aggregate Class
Certificate Balance of the Senior Certificates immediately prior to such
Distribution Date over (b) the lesser of (x) the product of (1) 88.50% and (2)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of the related Collection Period and (y) the amount by which the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Collection Period exceeds the product of (1) 0.35% and (2) the Cut-off Date
Principal Balance.
Senior Specified Enhancement Percentage: For any date, 11.50%.
Servicer: Any of BANA, CWHLS and Xxxxx Fargo, each in their capacity as a
servicer of the Mortgage Loans, or any successor servicer appointed as herein
provided.
Servicer Custodial Accounts: The separate accounts created and maintained
by each of the Servicers pursuant to the applicable Servicing Agreement.
Servicing Advance: With respect to each Servicer, shall have the meaning
given to the term "Servicing Advances" in the applicable Servicing Agreement.
Servicing Agreements: Any of the BANA Servicing Agreement, the Countywide
Home Loans Servicing Agreement and the Xxxxx Fargo Servicing Agreement.
Servicing Criteria: The criteria set forth in paragraph (d) of Item 1122 of
Regulation AB, as such may be amended from time to time
Servicing Fee: With respect to each Servicer, as defined in the applicable
Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, as set forth on the
applicable Mortgage Loan Schedule.
Servicing File: With respect to each Mortgage Loan, as defined in the
applicable Servicing Agreement.
Servicing Function Participant: Any Subcontractor utilized by the Master
Servicer, the Securities Administrator or the Custodian that is "participating
in the servicing function" within the meaning of Item 1122 of Regulation AB.
Servicing Officer: With respect to each Servicer, as defined in the related
Servicing Agreement.
Servicing Transfer Costs: All reasonable costs and expenses of the Master
Servicer or the Trustee, as applicable, related to any termination of a
Servicer, appointment of a successor Servicer or the transfer and assumption of
servicing by the Master Servicer or the Trustee, as applicable, with respect to
any Servicing Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the Servicer as a result of an event of default
by such Servicer and (ii) any costs or expenses associated with the complete
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transfer of all servicing data and the completion, correction or manipulation of
such servicing data as may be required by the Master Servicer or the Trustee, as
applicable, to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Master Servicer or the Trustee, as applicable, to
service the Mortgage Loans properly and effectively).
Similar Law: As defined in Section 6.02(e).
Sponsor: Bank of America, National Association, a national banking
association, or its successor in interest, as seller of the Mortgage Loans under
the Mortgage Loan Purchase Agreement.
Stated Principal Balance: As to any Mortgage Loan and Due Date, (i) the
unpaid principal balance of such Mortgage Loan as of such date as specified in
the amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to any previous partial Principal Prepayments
and Liquidation Proceeds allocable to principal (other than with respect to any
Liquidated Mortgage Loan) and to the payment of principal due on such Due Date
and irrespective of any delinquency in payment by the related Mortgagor, and
after giving effect to any Deficient Valuation plus (ii) in the case of an
Option ARM Mortgage Loan, any Deferred Interest added to the principal balance
of such Mortgage Loan pursuant to the terms of the related Mortgage Note on or
prior to the applicable Due Date.
Stepdown Date: The earlier to occur of (i) the Distribution Date following
the Distribution Date on which the aggregate Class Certificate Balance of the
Senior Certificates is reduced to zero and (ii) the later to occur of (x) the
Distribution Date in April 2010 and (y) the Distribution Date on which the
Senior Enhancement Percentage is greater than or equal to the Senior Specified
Enhancement Percentage.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect to
Mortgage Loans under the direction or authority of the Master Servicer, the
Securities Administrator or the Custodian.
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 two percent (2%) greater than that of the
Defective Mortgage Loan; (iii) be of the same type as the Defective Mortgage
Loan; (iv) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (v) have a credit score not less than that of the Defective
Mortgage Loan; (vi) have a Gross Margin not less than that of the Defective
Mortgage Loan; (vii) have a credit grade not lower in quality than that of the
Defective Mortgage Loan; (viii) have a remaining term to maturity not greater
than (and not more than one (1) year less than) that of the Defective Mortgage
Loan; (ix) have the same lien priority as the Defective Mortgage Loan; (x) have
the same Index as the Defective Mortgage Loan; and (xi) comply with each
Mortgage Loan representation and warranty set forth in the applicable Servicing
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Agreement, Mortgage Loan Purchase Agreement and this Agreement. More than one
Substitute Mortgage Loan may be substituted for a Defective Mortgage Loan if
such Substitute Mortgage Loans meet the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
Supplemental Interest Trust: The trust created pursuant to Section 5.11 of
this Agreement and designated as the "Supplemental Interest Trust," consisting
of the Interest Rate Swap Agreement and the Interest Rate Cap Agreement, the
Supplemental Interest Trust Trustee's rights under the Interest Rate Swap
Agreement and the Interest Rate Cap Agreement, the Swap Account and the Rate Cap
Carryover Reserve Account. The Supplemental Interest Trust is not an asset of
any REMIC created hereunder.
Supplemental Interest Trust Trustee: Xxxxx Fargo Bank, N.A., or any
successor Supplemental Interest Trust Trustee appointed as herein provided.
Swap Account: The Eligible Account or Accounts created and maintained
pursuant to Section 5.11. The Swap Account shall not be an asset of any REMIC
formed under this Agreement.
Swap Notional Amount: With respect to each Distribution Date, the related
notional amount set forth in the Interest Rate Swap Agreement.
Swap Provider: The Bank of New York.
Swap Termination Payment: Any payment payable by the Supplemental Interest
Trust or the Swap Provider upon termination of the Interest Rate Swap Agreement
as a result of an Event of Default (as defined in the Interest Rate Swap
Agreement) or a Termination Event (as defined in the Interest Rate Swap
Agreement).
Targeted Overcollateralization Amount: As of any Distribution Date, 0.35%
of the Cut-off Date Principal Balance.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.07 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Telerate Page 3750: The display page currently so designated on the Reuters
Telerate Service (or such other page as may replace the Telerate Page 3750 page
on that service for the purpose of displaying London interbank offered rates of
major banks).
Total Covered Amount: As defined in the Mortgage Loan Purchase Agreement.
Treasury Regulations: The final and temporary regulations promulgated under
the Code by the U.S. Department of the Treasury.
Trigger Event: With respect to any Distribution Date, if (i) the
three-month rolling average of 60+ Day Delinquent Loans equals or exceeds 40.00%
of the Senior Enhancement Percentage or (ii) the aggregate amount of Realized
Losses incurred on the Mortgage Loans since the Cut-off Date through the last
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day of the related Collection Period (reduced by the aggregate amount of
Recoveries related to the Mortgage Loans received since the Cut-off Date through
the last day of the related Collection Period on the Mortgage Loans) divided by
the Cut-off Date Principal Balance exceeds the applicable percentages set forth
below with respect to such Distribution Date:
Distribution Date Occurring In Percentage
April 2009 through March 2010 0.20% for the first month, plus an additional 1/12th of 0.30%
for each month thereafter
April 2010 through March 2011 0.50% for the first month, plus an additional 1/12th of 0.35%
for each month thereafter
April 2011 through March 2012 0.85% for the first month, plus an additional 1/12th of 0.35%
for each month thereafter
April 2012 through March 2013 1.20% for the first month, plus an additional 1/12th of 0.20%
for each month thereafter
April 2013 through March 2014 1.40% for the first month, plus an additional 1/12th of 0.05%
for each month thereafter
April 2014 and thereafter 1.45%
Trust: The trust created by this Agreement, which shall be named the "Banc
of America Funding 2007-B Trust."
Trust Estate: The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder, with respect
to a portion of which multiple REMIC elections are to be made, such entire Trust
Estate consisting of: (i) such Mortgage Loans as from time to time are subject
to this Agreement, together with the Mortgage Files relating thereto, and
together with all collections thereon and proceeds thereof, (ii) any REO
Property, together with all collections thereon and proceeds thereof, (iii) the
Trustee's rights with respect to the Mortgage Loans under all insurance policies
required to be maintained pursuant to this Agreement and any proceeds thereof,
(iv) the right to receive amounts, if any, payable on behalf of any Mortgagor
from the Buy-Down Account relating to any Buy-Down Mortgage Loan, (v) the right
to receive any BPP Mortgage Loan Payment, (vi) the Depositor's rights under the
Servicing Agreements and the Mortgage Loan Purchase Agreement (including any
security interest created thereby) and (vii) the Servicer Custodial Accounts,
the Master Servicer Custodial Account, the Rate Cap Carryover Reserve Account
and the Certificate Account and such assets that are deposited therein from time
to time and any investments thereof, together with any and all income, proceeds
and payments with respect thereto. The Buy-Down Account shall not be part of the
Trust Estate.
Trustee: U.S. Bank National Association, and its successors-in-interest
and, if a successor trustee is appointed hereunder, such successor, as trustee.
Uncertificated Accrued Interest: With respect to each REMIC Regular
Interest (other than the Class CE Upper-Tier Regular Interest) and each
Distribution Date, an amount equal to one month's interest at the related
Pass-Through Rate on the Uncertificated Balance of such REMIC Regular Interest.
With respect to the Class CE Upper-Tier Regular Interest on each Distribution
Date, an amount equal to one month's interest at its Pass-Through Rate on its
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Notional Amount. In the case of each REMIC Regular Interest, Uncertificated
Accrued Interest will be reduced by any Relief Act Reductions, allocated to such
REMIC Regular Interest as provided in Section 5.02.
Uncertificated Balance: The amount of any REMIC Regular Interest
outstanding as of any date of determination. As of the Closing Date, the
Uncertificated Balance of each such REMIC Regular Interest shall equal the
amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Balance. On each Distribution Date, the Uncertificated Balance of
each such REMIC Regular Interest shall be reduced by all distributions of
principal made on such REMIC Regular Interest on such Distribution Date pursuant
to Section 5.02 and, if and to the extent necessary and appropriate, shall be
further reduced on such Distribution Date by Realized Losses as provided in
Section 5.03. The Uncertificated Balance of each REMIC Regular Interest shall
never be less than zero.
Uncertificated Lower-Tier Interests: The Uncertificated Lower-Tier Regular
Interests and the Class LR interest, which represents the sole class of
"residual interest" in the Lower-Tier REMIC.
Uncertificated Lower-Tier Regular Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02 hereof. Any of the
Class X Lower-Tier REMIC Interests and the Class Y Lower-Tier REMIC Interests
are Uncertificated Lower-Tier Regular Interests.
Uncertificated Lower-Tier REMIC Pass-Through Rate: For any Distribution
Date, the Net WAC.
Uncertificated Upper-Tier REMIC Pass-Through Rate: As set forth in the
Preliminary Statement.
Underwriter's Exemption: An exemption listed in, and as amended by,
Prohibited Transaction Exemption 2007-05, 72 Fed. Reg. 13130 (March 20, 2007)
and any successor exemption.
Unpaid Realized Loss Amount: For any Class of Offered Certificates and as
to any Distribution Date, the excess of (x) the cumulative amount of Applied
Realized Loss Amounts allocated to such Class for all prior Distribution Dates
over (y) the sum of (a) the cumulative amount of any Recoveries allocated to
such Class, (b) the cumulative amount of Realized Loss Amortization Amounts with
respect to such Class for all prior Distribution Dates and (c) the cumulative
amount of Unpaid Realized Loss Amounts reimbursed to such Class for all prior
Distribution Dates from the Supplemental Interest Trust.
Upper-Tier Interests: The Upper-Tier Regular Interests and the UR interest,
which represents the sole class of residual interest in the Upper-Tier REMIC.
Upper-Tier Certificate Sub-Account: The sub-account of the Certificate
Account designated by the Securities Administrator pursuant to Section 3.09(h).
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Upper-Tier Regular Interest: Any of the regular interests in the Upper-Tier
REMIC listed in the Preliminary Statement, the ownership of which is
represented, in part, by the Certificates.
Upper-Tier REMIC: As defined in the Preliminary Statement, the assets of
which consist of the Uncertificated Lower-Tier Regular Interests and such
amounts as shall be deemed held in the Upper-Tier Certificate Sub-Account.
Upper-Tier REMIC Net Rate Cap: For federal income tax purposes, for any
Distribution Date with respect to the Upper-Tier Regular Interests, the
ownership of which is represented by the Offered Certificates, a per annum rate
(adjusted for the actual number of days elapsed in the related Interest Accrual
Period) equal to two (2) times the weighted average of the Uncertificated
Lower-Tier Pass-Through Rates for the Class LR-X Interest and Class LR-Y
Interest, subjecting the Uncertificated Lower-Tier Pass-Through Rate on the
Class LR-Y Interest to a cap equal to zero.
U.S. Person: A citizen or resident of the United States, a corporation or
partnership (unless, in the case of a partnership, Treasury Regulations are
adopted that provide otherwise) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia, including an
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of such trust, and one or
more such U.S. Persons have the authority to control all substantial decisions
of such trust (or, to the extent provided in applicable Treasury Regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be
treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. As of any date of determination, (a) 98%
of all Voting Rights shall be allocated to the Holders of the Senior
Certificates and the Mezzanine Certificates in proportion to the Certificate
Balances of their respective Certificates, (b) 1% of all Voting Rights shall be
allocated to the Holder of the Class R Certificate and (c) 1% of all Voting
Rights shall be allocated to the Holders of the Class CE Certificates.
Xxxxx Fargo: Xxxxx Fargo Bank, N.A., in its capacity as Servicer under the
Xxxxx Fargo Servicing Agreement.
Xxxxx Fargo Servicing Agreement: Collectively, (i) that certain Second
Amended and Restated Master Seller's Warranties and Servicing Agreement, dated
as of May 1, 2006 (the "MSWSA"), by and between BANA and Xxxxx Fargo, (ii) that
certain Second Amended and Restated Master Mortgage Loan Purchase Agreement,
dated as of May 1, 2006 (the "MMLPA"), by and between BANA and Xxxxx Fargo,
(iii) that certain Assignment and Conveyance Agreement (2006-W46 and 2006-W47),
dated June 28, 2006, by and between Assignor and Xxxxx Fargo, (iv) that certain
Assignment and Conveyance Agreement (2006-W102), dated November 20, 2006, by and
between Assignor and Xxxxx Fargo, (v) those certain Assignment and Conveyance
Agreements (2006-W89, 2006-W98, and 2006-W100), each dated November 29, 2006, by
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and between Assignor and Xxxxx Fargo, (vi) those certain Assignment and
Conveyance Agreements (2006-W104 and 2006-W015), each dated December 18, 2006,
by and between Assignor and Xxxxx Fargo, (vii) those certain Assignment and
Conveyance Agreements (2006-W107), each dated December 20, 2006, (viii) those
certain Assignment and Conveyance Agreements (2007-W03, 2007-W04 and 2007-W05),
dated February 20, 2007, by and between Assignor and Xxxxx Fargo and (ix) that
certain Assignment, Assumption and Recognition Agreement, dated March 30, 2007,
by and among BANA, Xxxxx Fargo, the Depositor and the Trustee.
Section 1.02 Interest Calculations.
All calculations of interest with respect to the Class CE Certificates will
be made on a 360-day year consisting of twelve (12) 30-day months. All
calculations of interest with respect to the Offered Certificates will be made
on a 360-day year consisting of twelve (12) months, each of which has the actual
number of days in such month. All dollar amounts calculated hereunder shall be
rounded to the nearest xxxxx with one-half of one xxxxx being rounded down.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee
on behalf of the Trust for the benefit of the Certificateholders, without
recourse, all the right, title and interest of the Depositor in and to the
Mortgage Loans and the related Mortgage Files, including all interest and
principal received on or with respect to the Mortgage Loans (other than payments
of principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date) and the Depositor's rights under the BANA Servicing Agreement and
under the Mortgage Loan Purchase Agreement, including the rights of the
Depositor as assignee of the Sponsor with respect to the Sponsor's rights under
the Servicing Agreements (other than the BANA Servicing Agreement). The
foregoing sale, transfer, assignment and set over does not and is not intended
to result in a creation of an assumption by the Trustee of any obligation of the
Depositor or any other Person in connection with the Mortgage Loans or any
agreement or instrument relating thereto, except as specifically set forth
herein. In addition, the Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the
Trustee on behalf of the Trust for the benefit of the Certificateholders,
without recourse, the Depositor's rights to receive any BPP Mortgage Loan
Payment. It is agreed and understood by the parties hereto that it is not
intended that any mortgage loan be included in the Trust that is a "High-Cost
Home Loan" as defined in any of (i) the New Jersey Home Ownership Act effective
November 27, 2003, (ii) the New Mexico Home Loan Protection Act effective
January 1, 2004, (iii) the Massachusetts Predatory Home Loan Practices Act
effective November 7, 2004 or (iv) the Indiana Home Loan Practices Act,
effective January 1, 2005.
(b) In connection with such transfer and assignment, the Depositor has
delivered or caused to be delivered to the Trustee, or a Custodian on behalf of
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the Trustee, for the benefit of the Certificateholders, the following documents
or instruments with respect to each Mortgage Loan so assigned:
(i) the original Mortgage Note, endorsed by manual or facsimile
signature in the following form: "Pay to the order of U.S. Bank National
Association, as trustee for holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2007-B, without recourse," with
all necessary intervening endorsements showing a complete chain of
endorsement from the originator to the Trustee (each such endorsement being
sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note)
and, in the case of any Mortgage Loan originated in the State of New York
documented by a NYCEMA, the NYCEMA, the new Mortgage Note, if applicable,
the consolidated Mortgage Note and the consolidated Mortgage;
(ii) except as provided below and other than with respect to the
Mortgage Loans purchased by the Sponsor from Xxxxx Fargo, the original
recorded Mortgage with evidence of recording thereon, or if any such
Mortgage has not been returned from the applicable recording office or has
been lost, or if such public recording office retains the original recorded
Mortgage, a copy of such Mortgage certified by the applicable Servicer
(which may be part of a blanket certification) as being a true and correct
copy of the Mortgage;
(iii) subject to the provisos at the end of this paragraph, a duly
executed Assignment of Mortgage to "U.S. Bank National Association, as
trustee for the holders of Banc of America Funding Corporation Mortgage
Pass-Through Certificates, Series 2007-B" (which may be included in a
blanket assignment or assignments), together with, except as provided below
and other than with respect to the Mortgage Loans purchased by the Sponsor
from Xxxxx Fargo, originals of all interim recorded assignments of such
mortgage or a copy of such interim assignment certified by the applicable
Servicer (which may be part of a blanket certification) as being a true and
complete copy of the original recorded intervening assignments of Mortgage
(each such assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to the
assignee thereof, under the Mortgage to which the assignment relates);
provided that, if the related Mortgage has not been returned from the
applicable public recording office, such Assignment of Mortgage may exclude
the information to be provided by the recording office; and provided,
further, if the related Mortgage has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
Assignment of Mortgage in favor of the Trustee will be ---- required to be
prepared or delivered and instead, the Master Servicer shall enforce the
obligations of the applicable Servicer to take all actions as are necessary
to cause the Trust to be shown as the owner of the related Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
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(v) other than with respect to the Mortgage Loans purchased by the
Sponsor from Xxxxx Fargo, any of (A) the original or duplicate original
mortgagee title insurance policy and all riders thereto, (B) a title search
showing no lien (other than standard exceptions) on the Mortgaged Property
senior to the lien of the Mortgage or (C) an opinion of counsel of the type
customarily rendered in the applicable jurisdiction in lieu of a title
insurance policy;
(vi) the original of any guarantee executed in connection with the
Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of recording
indicated thereon, or, if the lease is in the process of being recorded, a
photocopy of the lease, certified by an officer of the respective prior
owner of such Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to be a true
and correct copy of the lease transmitted for recordation;
(viii) the original of any security agreement, chattel mortgage or
equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Cooperative Stock (other than
with respect to any Mortgage Loan secured by Cooperative Stock purchased by
the Sponsor from Xxxxx Fargo), the originals of the following documents or
instruments:
(A) The Cooperative Stock Certificate;
(B) The stock power executed in blank;
(C) The executed Cooperative Lease;
(D) The executed Recognition Agreement;
(E) The executed assignment of Recognition Agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete and
unbroken line from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for recordation).
provided, however, that on the Closing Date, with respect to item (iii), if an
Assignment of Mortgage is required to be recorded as set forth below, the
Depositor has delivered to the Trustee or a Custodian on behalf of the Trustee,
as the case may be, a copy of such Assignment of Mortgage in blank rather than
in the name of the Trustee and has caused the applicable Servicer to retain the
completed Assignment of Mortgage for recording as described below, unless such
Mortgage has been recorded in the name of MERS or its designee. In addition, if
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the Depositor is unable to deliver or cause the delivery of any original
Mortgage Note due to the loss of such original Mortgage Note, the Depositor may
deliver a copy of such Mortgage Note, together with a lost note affidavit, and
shall thereby be deemed to have satisfied the document delivery requirements of
this Section 2.01(b).
If in connection with any Mortgage Loans, the Depositor cannot deliver (A)
the Mortgage, (B) all interim recorded assignments, (C) all assumption,
modification, consolidation or extension agreements, if any, or (D) the lender's
title policy, if any, (together with all riders thereto), if applicable,
satisfying the requirements of clause (ii), (iii), (iv) or (v) above,
respectively, concurrently with the execution and delivery hereof because such
document or documents have not been returned from the applicable public
recording office in the case of clause (ii), (iii) or (iv) above, or because the
title policy, if applicable, has not been delivered to any of the related
Servicer, the Sponsor or the Depositor, as applicable, by the applicable title
insurer, if any, in the case of clause (v) above, the Depositor shall promptly
deliver or cause to be delivered to the Trustee or a Custodian on behalf of the
Trustee, as the case may be, in the case of clause (ii), (iii) or (iv) above,
such Mortgage, such interim assignment or such assumption, modification,
consolidation or extension agreement, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, but in no event shall any such delivery of any such documents or
instruments be made later than one (1) year following the Closing Date, unless,
in the case of clause (ii), (iii) or (iv) above, there has been a continuing
delay at the applicable recording office or, in the case of clause (v), there
has been a continuing delay at the applicable insurer and the Depositor has
delivered an Officer's Certificate to such effect to the Trustee. The Depositor
shall forward or cause to be forwarded to the Trustee or a Custodian, on behalf
of the Trustee, as the case may be, (1) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and (2)
any other documents required to be delivered by the Depositor, or the applicable
Servicer to the Trustee or a Custodian on the Trustee's behalf, as the case may
be. In the event that the original Mortgage is not delivered and in connection
with the payment in full of the related Mortgage Loan the public recording
office requires the presentation of a "lost instruments affidavit and indemnity"
or any equivalent document, because only a copy of the Mortgage can be delivered
with the instrument of satisfaction or reconveyance, the Depositor shall
prepare, execute and deliver or cause to be prepared, executed and delivered, on
behalf of the Trust, such a document to the public recording office.
Upon discovery by the Depositor or notice from Xxxxx Fargo, the Master
Servicer, the Securities Administrator or Trustee that a Document Transfer Event
has occurred, the Depositor shall, with respect to Mortgage Loans purchased by
the Sponsor from Xxxxx Fargo, deliver or cause to be delivered to the Trustee or
a Custodian, on behalf of the Trustee, within 60 days copies (which may be in
electronic form mutually agreed upon by the Depositor and the Trustee or such
Custodian) of the following additional documents or instruments to the Mortgage
File with respect to each such Mortgage Loan; provided, however, that originals
of such documents or instruments shall be delivered to the Trustee or a
Custodian on behalf of the Trustee, as applicable, if originals are required
under the law in which the related Mortgaged Property is located in order to
exercise all remedies available to the Trust under applicable law following
default by the related Mortgagor:
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(1) other than if the related Mortgage has been recorded in the name
of MERS or its designee, originals of all interim recorded assignments of such
mortgage or a copy of such interim assignments certified by Xxxxx Fargo (which
may be part of a blanket certification) as being a true and complete copy of the
original recorded intervening assignments of Mortgage (each such assignment,
when duly and validly completed, to be in recordable form and sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates);
(2) the original or a certified copy of the lender's title insurance
policy;
(3) the original Mortgage with evidence of recording thereon, and the
original recorded power of attorney, if the Mortgage was executed pursuant to a
power of attorney, with evidence of recording thereon or, if such Mortgage or
power of attorney has been submitted for recording but has not been returned
from the applicable public recording office, has been lost or is not otherwise
available, a copy of such Mortgage or power of attorney, as the case may be,
certified to be a true and complete copy of the original submitted for
recording; and
(4) for each Mortgage Loan secured by Cooperative Stock, the originals
of the following documents or instruments:
(A) The Cooperative Stock Certificate;
(B) The stock power executed in blank;
(C) The executed Cooperative Lease;
(D) The executed Recognition Agreement;
(E) The executed assignment of Recognition Agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete and
unbroken line from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for recordation).
With respect to each Mortgage Loan, as promptly as practicable subsequent
to such transfer and assignment, the Master Servicer shall (except for any
Mortgage which has been recorded in the name of MERS or its designee) enforce
the obligations of the related Servicer pursuant to the related Servicing
Agreement to (I) cause each Assignment of Mortgage to be in proper form for
recording in the appropriate public office for real property records within the
time period required in the applicable Servicing Agreement and (II) at the
Depositor's expense, cause to be delivered for recording in the appropriate
public office for real property records the Assignments of the Mortgages to the
Trustee, except that, with respect to any Assignment of a Mortgage as to which
the related Servicer has not received the information required to prepare such
assignment in recordable form, such Servicer's obligation to do so and to
deliver the same for such recording shall be as soon as practicable after
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receipt of such information and in accordance with the applicable Servicing
Agreement.
No recording of an Assignment of Mortgage will be required in a state if
either (i) the Depositor furnishes to the Trustee and the Securities
Administrator an unqualified Opinion of Counsel reasonably acceptable to the
Trustee and the Securities Administrator to the effect that recordation of such
assignment is not necessary under applicable state law to preserve the Trustee's
interest in the related Mortgage Loan against the claim of any subsequent
transferee of such Mortgage Loan or any successor to, or creditor of, the
Depositor or the originator of such Mortgage Loan or (ii) the recordation of an
Assignment of Mortgage in such state is not required by either Rating Agency in
order to obtain the initial ratings on the Certificates on the Closing Date.
Exhibit J attached hereto sets forth the list of all states where recordation is
required by any Rating Agency to obtain the initial ratings of the Certificates.
The Securities Administrator and the Trustee may rely and shall be protected in
relying upon the information contained in such Exhibit J.
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Depositor, in lieu of delivering the above documents to the
Trustee, or a Custodian on the Trustee's behalf, will cause the applicable
Servicer to remit to the Master Servicer for deposit in the Master Servicer
Custodial Account the portion of such payment that is required to be deposited
in the such account pursuant to Section 3.09.
Section 2.02 Acceptance by the Trustee or Custodian of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares
that it, or a Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it or a Custodian as its
agent, as the case may be, constituting the Mortgage Files, and that it will
hold such other assets as are included in the Trust Estate delivered to it, in
trust for the exclusive use and benefit of all present and future
Certificateholders. Upon execution and delivery of this document, the Trustee
shall deliver or cause a Custodian to deliver to the Depositor, the Master
Servicer and the NIMS Insurer a certification in the form attached hereto as
Exhibit K (the "Initial Certification") to the effect that, except as may be
specified in a list of exceptions attached thereto, such Person has received the
original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
Within 90 days after the execution and delivery of this Agreement, the
Trustee shall review, or cause a Custodian, on behalf of the Trustee, to review,
the Mortgage Files in such Person's possession, and shall deliver to the
Depositor, the Master Servicer and the NIMS Insurer a certification in the form
attached hereto as Exhibit L (the "Final Certification") to the effect that, as
to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be
specified in a list of exceptions attached to such Final Certification, such
Mortgage File contains all of the items required to be delivered pursuant to
Section 2.01(b). In performing any such review, the Trustee or a Custodian, as
the case may be, may conclusively rely on the purported genuineness of any such
document and any signature thereon.
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If, in the course of such review, the Trustee or a Custodian finds any
document constituting a part of a Mortgage File which does not meet the
requirements of Section 2.01 or is omitted from such Mortgage File or if the
Depositor, the Master Servicer, the Trustee, a Custodian, the NIMS Insurer or
the Securities Administrator discovers a breach by a Servicer, the Sponsor or
the Depositor of any representation, warranty or covenant under the Servicing
Agreements, the Mortgage Loan Purchase Agreement or this Agreement, as the case
may be, in respect of any Mortgage Loan and such breach materially adversely
affects the interest of the Certificateholders in the related Mortgage Loan
(provided that any such breach that causes the Mortgage Loan not to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code shall
be deemed to materially and adversely affect the interests of the
Certificateholders), then such party shall promptly so notify the Master
Servicer, the Sponsor, such Servicer, the Securities Administrator, the Trustee,
the NIMS Insurer and the Depositor of such failure to meet the requirements of
Section 2.01 or of such breach and request that the applicable Servicer, the
Sponsor or the Depositor, as applicable, deliver such missing documentation or
cure such defect or breach within 90 days of its discovery or its receipt of
notice of any such failure to meet the requirements of Section 2.01 or of such
breach. If the Trustee receives written notice that the Depositor, the Sponsor
or the applicable Servicer, as the case may be, has not delivered such missing
document or cured such defect or breach in all material respects during such
period, the Trustee, on behalf of the Trust, shall enforce the applicable
Servicer's, the Sponsor's or the Depositor's obligation, as the case may be,
under the applicable Servicing Agreement, the Mortgage Loan Purchase Agreement
or this Agreement, as the case may be, and cause the applicable Servicer, the
Sponsor or the Depositor, as the case may be, to either (a) other than in the
case of Washington Mutual Bank, substitute for the related Mortgage Loan a
Substitute Mortgage Loan, which substitution shall be accomplished in the manner
and subject to the conditions set forth below or (b) purchase such Mortgage Loan
from the Trust at the Purchase Price for such Mortgage Loan; provided, however,
that in no event shall such a substitution occur more than two years from the
Closing Date; provided, further, that such substitution or repurchase must occur
within 90 days of when such defect was discovered if such defect will cause the
Mortgage Loan not to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code.
Notwithstanding any contrary provision of this Agreement, no substitution
pursuant to this Section 2.02 shall be made more than 90 days after the Closing
Date unless the Depositor delivers to the Securities Administrator an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee, the Securities Administrator or the Trust Estate, addressed to the
Trustee and the Securities Administrator, to the effect that such substitution
will not (i) result in the imposition of the tax on "prohibited transactions" on
any REMIC created hereunder or contributions after the Start-up Day, as defined
in Sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause any
REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
It is understood that the scope of the Trustee's review (or a Custodian's
review on its behalf) of the Mortgage Files is limited solely to confirming that
the documents listed in Section 2.01 have been received and further confirming
that any and all documents delivered pursuant to Section 2.01 appear on their
face to have been executed and relate to the applicable Mortgage Loans
identified in the Mortgage Loan Schedule based solely upon the review of items
(i) and (xi) in the definition of Mortgage Loan Schedule. Neither the Trustee
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nor any Custodian shall have any responsibility for determining whether any
document is valid and binding, whether the text of any assignment or endorsement
is in proper or recordable form, whether any document has been recorded in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
If the Trustee receives written notice from the Depositor, the Master
Servicer or the Securities Administrator of a breach of any representation or
warranty of a related Servicer or the Sponsor, the Trustee, on behalf of the
Trust, shall enforce the rights of the Trust under the Servicing Agreements, the
Mortgage Loan Purchase Agreement and this Agreement for the benefit of the
Certificateholders. If the Trustee receives written notice from the Depositor,
the Master Servicer or the Securities Administrator of a breach of the
representations or warranties with respect to the Mortgage Loans set forth in a
Servicing Agreement, the Trustee, on behalf of the Trust, shall enforce the
right of the Trust to be indemnified for such breach of representation or
warranty. In addition, if the Trustee receives written notice from the
Depositor, the Master Servicer or the Securities Administrator of a breach of a
representation with respect to a Mortgage Loan set forth in clauses (k) or (o)
of paragraph 3 or clauses (f) and (oo) of paragraph 4 of the Mortgage Loan
Purchase Agreement that occurs as a result of a violation of an applicable
predatory or abusive lending law, the Trustee, on behalf of the Trust, shall
enforce the right of the Trust to reimbursement by the Sponsor for all costs or
damages incurred by the Trust as a result of the violation of such law (such
amount, the "Reimbursement Amount"), but in the case of a breach of a
representation set forth in clauses (k) or (o) of paragraph 3 of the Mortgage
Loan Purchase Agreement, only to the extent the applicable Servicer does not so
reimburse the Trust. It is understood and agreed that, except for any
indemnification provided in the Servicing Agreements and the payment of any
Reimbursement Amount, the obligation of a Servicer, the Sponsor or the Depositor
to cure or to repurchase (or, other than in the case of Washington Mutual Bank,
to substitute for) any Mortgage Loan as to which a document is missing, a
material defect in a constituent document exists or as to which such a breach
has occurred and is continuing shall constitute the sole remedy against a
Servicer, the Sponsor or the Depositor in respect of such omission, defect or
breach available to the Trustee on behalf of the Trust and the
Certificateholders.
With respect to the representations and warranties relating to the Mortgage
Loans set forth in the Mortgage Loan Purchase Agreement that are made to the
best of the Sponsor's knowledge or as to which the Sponsor had no knowledge, if
it is discovered by the Depositor, the Master Servicer, the NIMS Insurer or the
Trustee that the substance of such representation or warranty is inaccurate and
such inaccuracy materially and adversely affects the interest of the
Certificateholders in the related Mortgage Loan then, notwithstanding the
Sponsor's lack of knowledge with respect to the substance of such representation
or warranty being inaccurate at the time the representation or warranty was
made, such inaccuracy shall be deemed a breach of the applicable representation
or warranty.
It is understood and agreed that the representations and warranties
relating to the Mortgage Loans set forth in the Mortgage Loan Purchase Agreement
shall survive delivery of the Mortgage Files to the Trustee or a Custodian on
the Trustee's behalf and shall inure to the benefit of the Certificateholders
notwithstanding any restrictive or qualified endorsement or assignment. It is
understood and agreed that the obligations of the Sponsor set forth in this
Section 2.02 to cure, substitute for or repurchase a Mortgage Loan pursuant to
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the Mortgage Loan Purchase Agreement constitute the sole remedies available to
the Certificateholders and to the Trustee on their behalf respecting a breach of
the representations and warranties contained in the Mortgage Loan Purchase
Agreement.
The representations and warranties of each Servicer with respect to the
applicable Mortgage Loans in the related Servicing Agreement, which have been
assigned to the Trustee hereunder, were made as of the date specified in such
Servicing Agreement. To the extent that any fact, condition or event with
respect to a Mortgage Loan constitutes a breach of both (i) a representation or
warranty of a Servicer under the related Servicing Agreement and (ii) a
representation or warranty of the Sponsor under the Mortgage Loan Purchase
Agreement, the only right or remedy of the Trustee or of any Certificateholder
shall be the Trustee's right, on behalf of the Trust, to enforce the obligations
of the applicable Servicer under any applicable representation or warranty made
by it. It is hereby acknowledged that the Sponsor shall have no obligation or
liability with respect to any breach of a representation or warranty made by it
with respect to the Mortgage Loans if the fact, condition or event constituting
such breach also constitutes a breach of a representation or warranty made by
the applicable Servicer in the applicable Servicing Agreement, without regard to
whether such Servicer fulfills its contractual obligations in respect of such
representation or warranty. It is hereby further acknowledged that the Depositor
shall have no obligation or liability with respect to any breach of any
representation or warranty with respect to the Mortgage Loans (except as set
forth in Section 2.04) under any circumstances.
With respect to each Substitute Mortgage Loan the applicable Servicer, the
Sponsor or the Depositor, as the case may be, shall deliver to the Trustee (or a
Custodian on behalf of the Trustee), for the benefit of the Certificateholders,
the documents and agreements required by Section 2.01, with the Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. No substitution
is permitted to be made in any calendar month after the Determination Date for
such month. Monthly Payments due with respect to any such Substitute Mortgage
Loan in the month of substitution shall not be part of the Trust Estate. For the
month of substitution, distributions to Certificateholders will include the
Monthly Payment due for such month on any Defective Mortgage Loan for which the
Depositor, the Sponsor or a Servicer has substituted a Substitute Mortgage Loan.
The Master Servicer shall amend the Mortgage Loan Schedule for the benefit
of the Certificateholders to reflect the removal of each Mortgage Loan that has
become a Defective Mortgage Loan and the substitution of the Substitute Mortgage
Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan
Schedule to the Securities Administrator, the Trustee, the NIMS Insurer and any
Custodian. Upon such substitution of a Mortgage Loan by the Depositor, the
Sponsor or a Servicer, each Substitute Mortgage Loan shall be subject to the
terms of this Agreement in all respects, and the Depositor or the Sponsor, as
the case may be, shall be deemed to have made to the Trustee with respect to
such Substitute Mortgage Loan, as of the date of substitution, the
representations and warranties made pursuant to paragraph 4 of the Mortgage Loan
Purchase Agreement and the applicable Servicer shall be deemed to have made to
the Trustee with respect to such Substitute Mortgage Loan, as of the date of
substitution, the mortgage loan representations and warranties made pursuant to
the applicable Servicing Agreement. Upon any such substitution and the deposit
to the Master Servicer Custodial Account of any required Substitution Adjustment
Amount (as described in the next paragraph) and receipt by the Trustee of a
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Request for Release, the Trustee shall release, or shall direct a Custodian to
release, the Mortgage File relating to such Defective Mortgage Loan to
applicable Person and shall execute and deliver at such Person's direction such
instruments of transfer or assignment prepared by such Person, without recourse,
as shall be necessary to vest title in such Person or its designee to the
Trustee's interest in any Defective Mortgage Loan substituted for pursuant to
this Section 2.02.
For any month in which the Depositor, the Sponsor or a Servicer substitutes
one or more Substitute Mortgage Loans for one or more Defective Mortgage Loans,
the amount (if any) by which the aggregate principal balance of all such
Substitute Mortgage Loans substituted by such Person as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Defective Mortgage Loans substituted by such Person (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 by such Person to the Master Servicer for deposit to the Master
Servicer Custodial Account on or before the 18th day of the month succeeding the
calendar month during which the related Mortgage Loan is required to be
purchased or replaced hereunder.
The Trustee shall retain or shall cause a Custodian to retain, as
applicable, possession and custody of each Mortgage File in accordance with and
subject to the terms and conditions set forth herein. The Master Servicer shall
cause to be promptly delivered to the Trustee or a Custodian on behalf of the
Trustee, as the case may be, upon the execution or, in the case of documents
requiring recording, receipt thereof, the originals of such other documents or
instruments constituting the Mortgage File as come into the Master Servicer's
possession from time to time.
Neither the Trustee nor any Custodian shall be under any duty or obligation
(i) to inspect, review or examine any such documents, instruments, certificates
or other papers to determine that they are genuine, enforceable, or appropriate
for the represented purpose or that they are other than what they purport to be
on their face or (ii) to determine whether any Mortgage File should include any
of the documents specified in Section 2.01(b)(iv), (vi), (vii), (viii) and (ix).
In connection with making the certifications required hereunder, to the extent a
title search or opinion of counsel has been provided in lieu of a title policy
for any Mortgage Loan, the Trustee or a Custodian on its behalf, as applicable,
shall only be responsible for confirming that a title search or opinion of
counsel has been provided for such Mortgage Loan.
Section 2.03 Representations, Warranties and Covenants of the Master
Servicer.
The Master Servicer hereby makes the following representations and
warranties to the Depositor, the Securities Administrator, the NIMS Insurer and
the Trustee, as of the Closing Date:
(i) The Master Servicer is a national banking association duly
chartered and validly existing in good standing under the laws of the
United States of America and has all licenses necessary to carry on its
business as now being conducted and is licensed, qualified and in good
standing in each of the states where a Mortgaged Property securing a
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Mortgage Loan is located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted by the
Master Servicer. The Master Servicer has power and authority to execute and
deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement) by the
Master Servicer and the consummation of the transactions contemplated
hereby have been duly and validly authorized. This Agreement, assuming due
authorization, execution and delivery by the other parties hereto,
evidences the valid, binding and enforceable obligation of the Master
Servicer, subject to applicable law except as enforceability may be limited
by (A) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the
rights of creditors and (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by the Master Servicer to make this
Agreement valid and binding upon the Master Servicer in accordance with its
terms.
(ii) No consent, approval, authorization or order is required for the
transactions contemplated by this Agreement from any court, governmental
agency or body, or federal or state regulatory authority having
jurisdiction over the Master Servicer is required or, if required, such
consent, approval, authorization or order has been or will, prior to the
Closing Date, be obtained.
(iii) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Master Servicer and
will not result in the breach of any term or provision of the charter or
by-laws of the Master Servicer or result in the breach of any term or
provision of, or conflict with or constitute a default under or result in
the acceleration of any obligation under, any agreement, indenture or loan
or credit agreement or other instrument to which the Master Servicer or its
property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Master Servicer or its
property is subject.
(iv) There is no action, suit, proceeding or investigation pending or,
to the best knowledge of the Master Servicer, threatened against the Master
Servicer which, either individually or in the aggregate, would result in
any material adverse change in the business, operations, financial
condition, properties or assets of the Master Servicer, or in any material
impairment of the right or ability of the Master Servicer to carry on its
business substantially as now conducted or which would draw into question
the validity of this Agreement or the Mortgage Loans or of any action taken
or to be taken in connection with the obligations of the Master Servicer
contemplated herein, or which would materially impair the ability of the
Master Servicer to perform under the terms of this Agreement.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee or a
Custodian on the Trustee's behalf and shall inure to the benefit of the
Certificateholders.
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Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor hereby represents and warrants to the Trustee and the NIMS
Insurer with respect to the Mortgage Loans or each Mortgage Loan, as the case
may be, as of the date hereof or such other date set forth herein that as of the
Closing Date:
(i) Immediately prior to the transfer and assignment contemplated
herein, the Depositor was the sole owner and holder of the Mortgage Loans.
The Mortgage Loans were not assigned or pledged by the Depositor and the
Depositor had good and marketable title thereto, and the Depositor had full
right to transfer and sell the Mortgage Loans to the Trustee free and clear
of any encumbrance, participation interest, lien, equity, pledge, claim or
security interest and had full right and authority subject to no interest
or participation in, or agreement with any other party to sell or otherwise
transfer the Mortgage Loans.
(ii) As of the Closing Date, the Depositor has transferred all right,
title and interest in the Mortgage Loans to the Trustee on behalf of the
Trust.
(iii) As of the Closing Date, the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any intent to
hinder, delay or defraud any of its creditors.
(iv) Each Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code and Treasury Regulation section 1.860G-2.
It is understood and agreed that the representations and warranties set
forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or a Custodian on the Trustee's behalf and shall inure to
the benefit of the Certificateholders.
Upon discovery by any of the Depositor, the Master Servicer, the Securities
Administrator or the Trustee that any of the representations and warranties set
forth in this Section 2.04 is not accurate (referred to herein as a "breach")
and that such breach materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the party discovering such
breach shall give prompt written notice to the other parties; provided that a
breach of the representation that each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code shall be deemed to
materially and adversely affect the interests of the Certificateholders. Within
90 days of its discovery or its receipt of notice of any such breach, the
Depositor shall cure such breach in all material respects or shall either (i)
repurchase the Mortgage Loan or any property acquired in respect thereof from
the Trustee at a price equal to the Purchase Price or (ii) if within two years
of the Closing Date, substitute for such Mortgage Loan in the manner described
in Section 2.02; provided that if the breach relates to the representation that
each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of
the Code, any such repurchase or substitution must occur within 90 days from the
date the breach was discovered. The Purchase Price of any repurchase described
in this paragraph and the Substitution Adjustment Amount, if any, shall be
remitted to the Master Servicer for deposit to the Master Servicer Custodial
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Account. It is understood and agreed that, except with respect to the second
preceding sentence, the obligation of the Depositor to repurchase or substitute
for any Mortgage Loan or Mortgaged Property as to which such a breach has
occurred and is continuing shall constitute the sole remedy respecting such
breach available to Certificateholders, or to the Trust and the Trustee on
behalf of Certificateholders, and such obligation shall survive until
termination of the Trust hereunder.
Section 2.05 Designation of Interests in the REMICs.
The Depositor hereby designates the Upper-Tier Regular Interests as
"regular interests" and the Class UR Interest as the single class of "residual
interest" in the Upper-Tier REMIC for purposes of Code Section 860G(a)(1) and
860G(a)(2), respectively. The Depositor hereby further designates the
Uncertificated Lower-Tier Regular Interests as classes of "regular interests"
and the Class LR Interest as the single class of "residual interest" in the
Lower-Tier REMIC for purposes of Code Section 860G(a)(1) and 860G(a)(2),
respectively.
Section 2.06 Designation of Start-up Day.
The Closing Date is hereby designated as the "start-up day" of each of the
Upper-Tier REMIC and the Lower-Tier REMIC within the meaning of Section
860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date.
Solely for purposes of satisfying Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" of the regular
interests in the Upper-Tier REMIC and the Lower-Tier REMIC is the Distribution
Date immediately following the maturity date for the Mortgage Loan with the
latest maturity date.
Section 2.08 Execution and Delivery of Certificates.
The Securities Administrator (i) acknowledges the issuance of and hereby
declares that it holds the Uncertificated Lower-Tier Regular Interests on behalf
of the Upper-Tier REMIC and the Certificateholders, and (ii) has executed and
delivered to or upon the order of the Depositor, in exchange for the Mortgage
Loans and Uncertificated Lower-Tier Interests, together with all other assets
included in the definition of "Trust Estate," receipt of which is hereby
acknowledged, Certificates in authorized denominations which, together with the
Uncertificated Lower-Tier Interests, evidence ownership of the entire Trust
Estate. The Securities Administrator acknowledges the obligation of the Class CE
Certificates to pay Rate Cap Carryover Amounts and declares that it holds the
same on behalf of the Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates,
respectively, which shall be treated as beneficially owning the right to receive
the Rate Cap Carryover Amounts. The Securities Administrator also acknowledges
the obligation of the Offered Certificates and the Class CE Certificates to pay
the Class IO Distribution Amount.
Section 2.09 Establishment of the Trust.
The Depositor does hereby establish, pursuant to the further provisions of
this Agreement and the laws of the State of New York, an express trust to be
known, for convenience, as "Banc of America Funding 2007-B Trust" and does
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hereby appoint U.S. Bank National Association as Trustee in accordance with the
provisions of this Agreement.
Section 2.10 Purpose and Powers of the Trust.
The purpose of the common law trust, as created hereunder, is to engage in
the following activities:
(a) to acquire and hold the Mortgage Loans and the other assets of the
Trust Estate and the proceeds therefrom;
(b) to issue the Certificates sold to the Depositor in exchange for the
Mortgage Loans;
(c) to make payments on the Certificates;
(d) to engage in those activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto or connected
therewith; and
(e) subject to compliance with this Agreement, to engage in such other
activities as may be required in connection with conservation of the Trust
Estate and the making of distributions to the Certificateholders.
The trust is hereby authorized to engage in the foregoing activities.
Neither the Trustee nor the Securities Administrator shall cause the trust to
engage in any activity other than in connection with the foregoing or other than
as required or authorized by the terms of this Agreement (or those ancillary
thereto) while any Certificate is outstanding, and this Section 2.10 may not be
amended, without the consent of the Certificateholders evidencing 51% or more of
the aggregate voting rights of the Certificates.
Section 2.11 Rights of the NIMS Insurer.
Each of the rights of the NIMS Insurer set forth in this Agreement shall
exist so long as (i) the NIMS Insurer has undertaken to guarantee certain
payments of notes issued pursuant to the Indenture and (ii) any series of notes
issued pursuant to the Indenture remains outstanding or the NIMS Insurer is owed
amounts in respect of its guarantee of payments on such notes; provided,
however, the NIMS Insurer shall not have any rights hereunder (except pursuant
to Section 11.01 in the case of clause (ii) below) during the period of time, if
any, that (a) the NIMS Insurer has not undertaken to guarantee certain payments
of notes issued pursuant to the Indenture or (ii) any default has occurred and
is continuing under the insurance policy issued by the NIMS Insurer with respect
to such notes.
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ARTICLE III
ADMINISTRATION AND MASTER SERVICING
OF MORTGAGE LOANS
Section 3.01 Master Servicing of the Mortgage Loans.
For and on behalf of the Certificateholders, the Master Servicer shall
supervise, monitor and oversee the obligations of the Servicers to service and
administer their respective Mortgage Loans in accordance with the terms of the
applicable Servicing Agreement and shall have full power and authority to do any
and all things which it may deem necessary or desirable in connection with such
master servicing and administration. In performing its obligations hereunder,
the Master Servicer shall act in a manner consistent with this Agreement,
subject to the prior sentence, and with Customary Servicing Procedures.
Furthermore, the Master Servicer shall oversee and consult with each Servicer as
necessary from time-to-time to carry out the Master Servicer's obligations
hereunder, shall receive, review and evaluate all reports, information and other
data provided to the Master Servicer by each Servicer and shall cause each
Servicer to perform and observe the covenants, obligations and conditions to be
performed or observed by such Servicer under the applicable Servicing Agreement.
The Master Servicer shall independently and separately monitor each Servicer's
servicing activities with respect to each related Mortgage Loan, reconcile the
results of such monitoring with such information provided in the previous
sentence on a monthly basis and coordinate corrective adjustments to the
Servicers' and the Master Servicer's records, and based on such reconciled and
corrected information, prepare the Master Servicer's Certificate and any other
information and statements required hereunder. The Master Servicer shall
reconcile the results of its Mortgage Loan monitoring with the actual
remittances of the Servicers to the Master Servicer Custodial Account pursuant
to the applicable Servicing Agreements.
Continuously from the date hereof until the termination of the Trust, the
Master Servicer shall enforce the obligations of the Servicers to collect all
payments due under the terms and provisions of the Mortgage Loans when the same
shall become due and payable to the extent such procedures shall be consistent
with the applicable Servicing Agreement.
The relationship of the Master Servicer (and of any successor to the Master
Servicer as master servicer under this Agreement) to the Trustee and the
Securities Administrator under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
Section 3.02 Monitoring of Servicers.
(a) The Master Servicer shall be responsible for reporting to the Trustee,
the Securities Administrator and the Depositor the compliance by each Servicer
with its duties under the related Servicing Agreement. In the review of each
Servicer's activities, the Master Servicer may rely upon an officer's
certificate of the Servicer with regard to such Servicer's compliance with the
terms of its Servicing Agreement. In the event that the Master Servicer, in its
judgment, determines that a Servicer should be terminated in accordance with its
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Servicing Agreement, or that a notice should be sent pursuant to such Servicing
Agreement with respect to the occurrence of an event that, unless cured, would
constitute grounds for such termination, the Master Servicer shall notify the
Depositor, the Securities Administrator, the NIMS Insurer and the Trustee
thereof and the Master Servicer shall issue such notice or take such other
action as it deems appropriate.
(b) The Master Servicer, for the benefit of the Trust and the
Certificateholders, shall enforce the obligations of each Servicer under the
related Servicing Agreement, and shall, in the event that a Servicer fails to
perform its obligations in accordance with the related Servicing Agreement,
subject to the preceding paragraph, terminate the rights and obligations of such
Servicer thereunder and act as successor Servicer of the related Mortgage Loans
under the applicable Servicing Agreement or cause the Trustee to enter into a
new Servicing Agreement with a successor Servicer selected by the Master
Servicer (except, in the case of the Xxxxx Fargo Servicing Agreement, the
Trustee shall select the successor Servicer); provided, however, it is
understood and acknowledged by the parties hereto that there will be a period of
transition (not to exceed 90 days) before the actual servicing functions can be
fully transferred to such successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such form
and carried out to such an extent and at such time as the Master Servicer, in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement at
its own expense, and shall be reimbursed therefor only (i) from a general
recovery resulting from such enforcement to the extent, if any, that such
recovery exceeds all amounts due in respect of the related Mortgage Loans or
(ii) from a specific recovery of costs, expenses or attorneys fees against the
party whom such enforcement is directed, provided that the Master Servicer and
the Trustee, as applicable, shall not be required to prosecute or defend any
legal action except to the extent that the Master Servicer or the Trustee, as
applicable, shall have received reasonable indemnity for its costs and expenses
in pursuing such action.
(c) To the extent that the costs and expenses of the Master Servicer or the
Trustee, as applicable, related to any termination of a Servicer, appointment of
a successor Servicer or the transfer and assumption of servicing by the Master
Servicer or the Trustee, as applicable, with respect to any Servicing Agreement
(including, without limitation, (i) all legal costs and expenses and all due
diligence costs and expenses associated with an evaluation of the potential
termination of the Servicer as a result of an event of default by such Servicer
under the related Servicing Agreement and (ii) all costs and expenses associated
with the complete transfer of servicing, including all servicing files and all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the successor Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
Servicer to service the Mortgage Loans in accordance with the related Servicing
Agreement) are not fully and timely reimbursed by the terminated Servicer, the
Master Servicer (except in the case of the termination of Xxxxx Fargo as a
Servicer) or the Trustee, as applicable, shall be entitled to reimbursement of
such costs and expenses from the Master Servicer Custodial Account; provided
that if such servicing transfer costs are ultimately reimbursed by the
terminated Servicer, then the Master Servicer or the Trustee, as applicable,
shall remit such amounts that are reimbursed by the terminated Servicer to the
Master Servicer Custodial Account.
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(d) The Master Servicer shall require each Servicer to comply with the
remittance requirements and other obligations set forth in the related Servicing
Agreement.
(e) If the Master Servicer acts as Servicer, it will not assume liability
for the representations and warranties of the Servicer, if any, that it
replaces.
(f) Subject to the conditions set forth in this Section 3.02(f), the Master
Servicer is permitted to utilize one or more Subcontractors to perform certain
of its obligations hereunder. The Master Servicer shall promptly upon request
provide to the Depositor a written description (in form and substance
satisfactory to the Depositor) of the role and function of each Subcontractor
utilized by the Master Servicer, specifying (i) the identity of each such
Subcontractor that is a Servicing Function Participant and (ii) which elements
of the Servicing Criteria will be addressed in Assessments of Compliance
provided by each Servicing Function Participant. As a condition to the
utilization by the Master Servicer of any Servicing Function Participant, the
Master Servicer shall cause any such Servicing Function Participant for the
benefit of the Depositor to comply with the provisions of Section 3.21 of this
Agreement to the same extent as if such Servicing Function Participant were the
Master Servicer. The Master Servicer shall be responsible for obtaining from
each such Servicing Function Participant and delivering to the applicable
Persons any Assessment of Compliance and related Attestation Report required to
be delivered by such Servicing Function Participant under Section 3.21, in each
case as and when required to be delivered.
Notwithstanding the foregoing, if the Master Servicer engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, the Master Servicer shall be responsible for determining whether such
Subcontractor is an Additional Servicer.
The Master Servicer shall indemnify the Depositor, the Sponsor, the
Trustee, the Custodian and the Securities Administrator and any of their
directors, officers, employees or agents and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain in any way related to a breach of the
Master Servicer's obligation set forth in the preceding paragraph or the failure
of the Master Servicer to perform any of its obligations under this Section
3.02(f), Section 3.20, Section 3.21 or Section 3.22.
Section 3.03 Fidelity Bond; Errors and Omissions Insurance.
The Master Servicer shall maintain, at its own expense, a blanket fidelity
bond and an errors and omissions insurance policy, with broad coverage on all
officers, employees or other persons involved in the performance of its
obligations as Master Servicer hereunder. These policies must insure the Master
Servicer against losses resulting from dishonest or fraudulent acts committed by
the Master Servicer's personnel, any employees of outside firms that provide
data processing services for the Master Servicer, and temporary contract
employees or student interns. No provision of this Section 3.03 requiring such
fidelity bond and errors and omissions insurance shall diminish or relieve the
Master Servicer from its duties and obligations as set forth in this Agreement.
The minimum coverage under any such bond and insurance policy shall be at least
equal to the corresponding amounts required by Xxxxxx Xxx in the Xxxxxx Mae
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Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' & Servicers'
Guide, as amended or restated from time to time, or in an amount as may be
permitted to the Master Servicer by express waiver of Xxxxxx Xxx or Xxxxxxx Mac.
In the event that any such policy or bond ceases to be in effect, the Master
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer, meeting the requirements set forth above as of the date of such
replacement.
Section 3.04 Access to Certain Documentation.
The Master Servicer shall provide, and the Master Servicer shall cause each
Servicer to provide in accordance with the related Servicing Agreement, to the
OCC, the OTS, the FDIC and to comparable regulatory authorities supervising
Holders of Certificates and the examiners and supervisory agents of the OCC, the
OTS, the FDIC and such other authorities, access to the documentation required
by applicable regulations of the OCC, the OTS, the FDIC and such other
authorities with respect to the Mortgage Loans. Such access shall be afforded
without charge, but only upon reasonable and prior written request and during
normal business hours at the offices designated by the Master Servicer and the
related Servicer. In fulfilling such request for access, the Master Servicer
shall not be responsible to determine the sufficiency of any information
provided by such Servicer. Nothing in this Section 3.04 shall limit the
obligation of the Master Servicer and the related Servicer to observe any
applicable law and the failure of the Master Servicer or the related Servicer to
provide access as provided in this Section 3.04 as a result of such obligation
shall not constitute a breach of this Section 3.04.
Section 3.05 Maintenance of Primary Mortgage Insurance Policy; Claims.
(a) The Master Servicer shall not take, or permit any Servicer (to the
extent such action is prohibited under the applicable Servicing Agreement) to
take, any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the Master
Servicer or such Servicer, would have been covered thereunder. The Master
Servicer shall use its best reasonable efforts to cause each Servicer (to the
extent required under the related Servicing Agreement) to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain
such insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the related Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
any Servicer (to the extent required under the related Servicing Agreement) to,
cancel or refuse to renew any such Primary Mortgage Insurance Policy that is in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement and the related Servicing Agreement, as applicable.
(b) The Master Servicer agrees to present, or to cause each Servicer (to
the extent required under the related Servicing Agreement) to present, on behalf
of the Trust, the Trustee and the Certificateholders, claims to the insurer
under any Primary Mortgage Insurance Policies and, in this regard, to take such
reasonable action as shall be necessary to permit recovery under any Primary
Mortgage Insurance Policies respecting defaulted Mortgage Loans. Pursuant to
Sections 3.08 and 3.09, any amounts collected by the Master Servicer or any
Servicer under any Primary Mortgage Insurance Policies shall be deposited in the
Master Servicer Custodial Account, subject to withdrawal pursuant to Section
3.11.
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Section 3.06 Rights of the Depositor, the Securities Administrator and the
Trustee in Respect of the Master Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicer hereunder
and in connection with any such defaulted obligation to exercise the related
rights of the Master Servicer hereunder; provided that the Master Servicer shall
not be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee. None of the Securities
Administrator, the Trustee or the Depositor shall have any responsibility or
liability for any action or failure to act by the Master Servicer and the
Securities Administrator, the Trustee or the Depositor shall not be obligated to
supervise the performance of the Master Servicer hereunder or otherwise.
Section 3.07 Trustee to Act as Master Servicer.
(a) In the event the Master Servicer or any successor master servicer shall
for any reason no longer be the Master Servicer hereunder (including by reason
of an Event of Default), the Trustee as trustee hereunder shall within 90 days
of such time, assume, if it so elects, or shall appoint a successor Master
Servicer to assume, all of the rights and obligations of the Master Servicer
hereunder arising thereafter. Any such assumption shall be subject to Sections
7.02 and 8.05.
(b) The predecessor Master Servicer at its expense shall, upon request of
the Trustee, deliver to the assuming party all master servicing documents and
records and an accounting of amounts collected or held by the Master Servicer,
and shall transfer control of the Master Servicer Custodial Account and any
investment accounts to the successor Master Servicer, and otherwise use its best
efforts to effect the orderly and efficient transfer of its rights and duties as
Master Servicer hereunder to the assuming party. The Trustee shall be entitled
to be reimbursed from the predecessor Master Servicer (or the Trust if the
predecessor Master Servicer is unable to fulfill such obligations) for all
Master Servicing Transfer Costs.
Section 3.08 Servicer Custodial Accounts and Escrow Accounts.
(a) The Master Servicer shall enforce the obligation of each Servicer to
establish and maintain a Servicer Custodial Account in accordance with the
applicable Servicing Agreement, with records to be kept with respect thereto on
a loan by loan basis, into which accounts shall be deposited within 48 hours (or
as of such other time specified in the related Servicing Agreement) of receipt
all collections of principal and interest on any Mortgage Loan and all
collections with respect to any REO Property received by a Servicer, including
Principal Prepayments, Insurance Proceeds, Liquidation Proceeds, Recoveries and
Advances made from the Servicer's own funds (less servicing compensation as
permitted by the applicable Servicing Agreement in the case of any Servicer) and
all other amounts to be deposited in the Servicer Custodial Account. The Master
Servicer is hereby authorized to make withdrawals from and deposits to the
related Servicer Custodial Account for purposes required or permitted by this
Agreement.
(b) The Master Servicer shall also enforce the obligation of each Servicer
to establish and maintain a Buy-Down Account in accordance with the applicable
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Servicing Agreement, with records to be kept with respect thereto on a Mortgage
Loan by Mortgage Loan basis, into which accounts any Buy-Down Funds shall be
deposited within 48 hours (or as of such other time specified in the related
Servicing Agreement) of receipt thereof. The Master Servicer is hereby
authorized to make withdrawals from and deposits to the related Buy-Down Account
for purposes required or permitted by this Agreement. In addition, the Master
Servicer shall enforce the obligation of each Servicer to withdraw from the
Buy-Down Account and deposit in immediately available funds in the Servicer
Custodial Account an amount which, when added to such Mortgagor's payment, will
equal the full monthly payment due under the related Mortgage Note.
(c) To the extent required by the related Servicing Agreement and by the
related Mortgage Note and not violative of current law, the Master Servicer
shall enforce the obligation of each Servicer to establish and maintain one or
more escrow accounts (for each Servicer, collectively, the "Escrow Account") and
deposit and retain therein all collections from the Mortgagors (or Advances by
such Servicer) for the payment of taxes, assessments, hazard insurance premiums
or comparable items for the account of the Mortgagors. Nothing herein shall
require the Master Servicer to compel a Servicer to establish an Escrow Account
in violation of applicable law.
Section 3.09 Collection of Mortgage Loan Payments; Master Servicer
Custodial Account, Certificate Account and Rate Cap Carryover Reserve Account.
(a) Continuously from the date hereof until the principal and interest on
all Mortgage Loans are paid in full, the Master Servicer shall enforce the
obligations of the Servicers to collect all payments due under the terms and
provisions of the Mortgage Loans when the same shall become due and payable to
the extent such procedures shall be consistent with the applicable Servicing
Agreement.
(b) The Securities Administrator shall establish and maintain the
Certificate Account, which shall be deemed to consist of two sub-accounts and
into which the Master Servicer will deposit on or prior to 11:00 a.m. New York
time, on each Distribution Date (or, if the Securities Administrator is no
longer the same Person as, or an Affiliate of, the Master Servicer, the Business
Day preceding each Distribution Date) all amounts on deposit in the Master
Servicer Custodial Account for distribution to Certificateholders.
(c) The Master Servicer shall establish and maintain the Master Servicer
Custodial Account, which shall be an Eligible Account and which may be deemed to
be a sub-account of the Certificate Account for so long as the Master Servicer
and the Securities Administrator are the same person. The Master Servicer shall,
promptly upon receipt, deposit in the Master Servicer Custodial Account and
retain therein any amounts which are required to be deposited in the Master
Servicer Custodial Account by the Master Servicer.
(d) On a daily basis within one (1) Business Day of receipt (except as
otherwise specifically provided herein), the Master Servicer shall deposit or
cause to be deposited in the Master Servicer Custodial Account the following
payments and collections remitted to the Master Servicer by each Servicer from
its respective Servicer Custodial Account pursuant to the related Servicing
Agreement or otherwise or received by the Master Servicer in respect of the
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related Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest due on the related Mortgage Loans on or before the
Cut-off Date) and the following amounts required to be deposited hereunder:
(i) all payments on account of principal of the related Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the related Mortgage
Loans, net of the related Administrative Fee;
(iii) (A) all related Insurance Proceeds and Liquidation Proceeds,
other than Insurance Proceeds to be (1) applied to the restoration or
repair of the Mortgaged Property, (2) released to the Mortgagor in
accordance with Customary Servicing Procedures or (3) required to be
deposited to an Escrow Account pursuant to Section 3.08 and (B) any
Insurance Proceeds released from an Escrow Account;
(iv) in the case of the Master Servicer Custodial Account, any amount
required to be deposited by the Master Servicer pursuant to Section 3.09(e)
in connection with any losses on Permitted Investments with respect to the
Master Servicer Custodial Account;
(v) any amounts relating to REO Property required to be remitted by
the applicable Servicer;
(vi) Periodic Advances made by the applicable Servicer pursuant to the
related Servicing Agreement (or, if applicable, by the Master Servicer or
the Trustee pursuant to Section 3.19 or the Trustee pursuant to Section
8.01) and any Compensating Interest paid by the applicable Servicer
pursuant to the related Servicing Agreement;
(vii) all related Purchase Prices, all related Substitution Adjustment
Amounts and all related Reimbursement Amounts to the extent received by the
Master Servicer;
(viii) any related Recoveries;
(ix) any related Buy-Down Funds required to be deposited pursuant to
Section 3.08; and
(x) any other amounts required to be deposited hereunder.
If the Master Servicer shall deposit any amount not required to be deposited, it
may at any time withdraw such amount from the Master Servicer Custodial Account,
any provision herein to the contrary notwithstanding. All funds required to be
deposited in the Master Servicer Custodial Account shall be held by the Master
Servicer in trust for the Certificateholders until disbursed in accordance with
this Agreement or withdrawn in accordance with Section 3.11.
(e) Each institution at which the Master Servicer Custodial Account is
maintained shall invest the funds therein as directed in writing by the Master
Servicer in Permitted Investments, which shall mature not later than the
Business Day next preceding the Distribution Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account, then
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such Permitted Investment shall mature not later than such Distribution Date)
and, in each case, shall not be sold or disposed of prior to its maturity. All
such Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All Master Servicer Custodial Account
Reinvestment Income shall be for the benefit of the Master Servicer as part of
its master servicing compensation and shall be remitted to the Master Servicer
monthly as provided herein. The amount of any losses realized in the Master
Servicer Custodial Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Master Servicer from its own
funds in the Master Servicer Custodial Account.
(f) Each institution at which the Certificate Account is maintained shall
invest the funds therein if directed in writing by the Securities Administrator
in Permitted Investments that are obligations of the institution that maintains
the Certificate Account, which shall mature on the Distribution Date and shall
not be sold or disposed of prior to its maturity. All such Permitted Investments
shall be made in the name of the Trustee, for the benefit of the
Certificateholders. All income and gains net of any losses realized since the
preceding Distribution Date from Permitted Investments of funds in the
Certificate Account shall be for the benefit of the Securities Administrator as
its compensation and the amount of any losses realized in the Certificate
Account in respect of any such Permitted Investments shall promptly be deposited
by the Securities Administrator from its own funds to the Certificate Account.
(g) The Master Servicer shall give notice to the Depositor, the Trustee,
the Securities Administrator and the Rating Agencies of any proposed change of
location of the Master Servicer Custodial Account not later than 30 days after
and not more that 45 days prior to any change thereof. The Securities
Administrator shall give notice to the Depositor, the Trustee, the Master
Servicer and the Rating Agencies of any proposed change of the location of the
Certificate Account maintained by the Securities Administrator not later than 30
days after and not more than 45 days prior to any change thereof. The creation
of the Master Servicer Custodial Account and the Certificate Account shall be
evidenced by a certification substantially in the form attached hereto as
Exhibit F.
(h) The Securities Administrator shall designate each of the Lower-Tier
Certificate Sub-Account and the Upper-Tier Certificate Sub-Account as a
sub-account of the Certificate Account.
On each Distribution Date (other than the Final Distribution Date, if such
Final Distribution Date is in connection with a purchase of the assets of the
Trust Estate by the Depositor), the Securities Administrator shall (A) from
funds available on deposit in the Certificate Account, be deemed to deposit into
the Lower-Tier Certificate Sub-Account, all funds deemed on deposit in the
Certificate Account and (B) immediately thereafter, be deemed to deposit into
the Upper-Tier Certificate Sub-Account, the Lower-Tier Distribution Amount.
(i) No later than the Closing Date, the Securities Administrator shall
establish and maintain the Rate Cap Carryover Reserve Account. On each
Distribution Date as to which there is a Rate Cap Carryover Amount payable to
the Offered Certificates, the Securities Administrator has been directed by the
Holders of the Class CE Certificates to, and therefore will, deposit into the
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Rate Cap Carryover Reserve Account the amounts described in Section 5.02(a)
priority eighth, rather than distributing such amounts to the Holders of the
Class CE Certificates.
For federal and state income tax purposes, the Holders of the Class CE
Certificates will be deemed to be the owners of the Rate Cap Carryover Reserve
Account and the Rate Cap Carryover Reserve Account will be an asset of the Class
CE Grantor Trust as provided in Section 5.13, and all amounts deposited into the
Rate Cap Carryover Reserve Account shall be treated as amounts distributed by
the Upper-Tier REMIC with respect to the Class CE Upper-Tier Regular Interest.
Upon a termination relating to the Certificates pursuant to Section 10.01 or the
payment in full of the Offered Certificates, all amounts remaining on deposit in
the Rate Cap Carryover Reserve Account will be released by the Trust Estate and
distributed to the Holders of the Class CE Certificates or their designees. The
Rate Cap Carryover Reserve Account will be part of the Trust Estate but not part
of any REMIC created hereunder and any payments to the Holders of the Offered
Certificates of Rate Cap Carryover Amounts will not be payments with respect to
a "regular interest" in a REMIC within the meaning of Code Section 860G(a)(1).
The Rate Cap Carryover Reserve Account is an "outside reserve fund" within the
meaning of Treasury Regulation Section 1.860G-2(h).
By accepting a Class CE Certificate, each Holder of a Class CE Certificate
hereby agrees to direct the Securities Administrator, and the Securities
Administrator hereby is directed, to deposit into the Rate Cap Carryover Reserve
Account the amounts described above on each Distribution Date as to which there
is any Rate Cap Carryover Amount rather than distributing such amounts to the
Holders of the Class CE Certificates. By accepting a Class CE Certificate, each
Holder of a Class CE Certificate further agrees that such direction is given for
good and valuable consideration, the receipt and sufficiency of which is
acknowledged by such acceptance. Amounts held in the Rate Cap Carryover Reserve
Account shall be held uninvested.
For federal tax return and information reporting, the value of the right of
the Holders of the Offered Certificates to receive payments from the Rate Cap
Carryover Reserve Account in respect of any Rate Cap Carryover Amount shall be
assumed to have a value of zero as of the Closing Date unless and until required
otherwise by an applicable taxing authority.
Section 3.10 Access to Certain Documentation and Information Regarding the
Mortgage Loans.
The Master Servicer shall afford and shall enforce the obligation of the
Servicers to afford the Securities Administrator and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters relating to this Agreement,
such access being afforded without charge, but only upon reasonable request and
during normal business hours at the office designated by the Master Servicer or
the applicable Servicer.
Section 3.11 Permitted Withdrawals from the Certificate Account and the
Master Servicer Custodial Account.
(a) The Securities Administrator shall withdraw funds from the Certificate
Account for distributions to Certificateholders in the manner specified in this
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Agreement. In addition, the Master Servicer may from time to time make
withdrawals from the Master Servicer Custodial Account for the following
purposes:
(i) to pay to the Servicers (to the extent not previously retained by
them), the Servicing Fee to which they are entitled pursuant to the
Servicing Agreements and to pay itself the Master Servicing Fee and any
Master Servicer Custodial Account Reinvestment Income;
(ii) to pay to the Securities Administrator and the Trustee any
amounts due to the Securities Administrator and the Trustee under this
Agreement (including, but not limited to, all amounts provided for under
Section 3.02, Section 3.07, Section 8.05 and Section 9.11, other than the
amounts provided for in the first sentence of Section 9.11);
(iii) to reimburse the Servicers (or, if applicable, itself or the
Trustee) for unreimbursed Advances made pursuant to the related Servicing
Agreement (or in the case of itself or the Trustee, pursuant to Section
3.19 or Section 8.01, as applicable), such right of reimbursement pursuant
to this clause (iii) being limited first to amounts received on the
Mortgage Loans serviced by such Servicer in respect of which any such
Advance was made and then limited to amounts received on all the Mortgage
Loans serviced by such Servicer (or, if applicable, the Master Servicer or
the Trustee) in respect of which any such Advance was made;
(iv) to reimburse the Servicers (or, if applicable, itself or the
Trustee) for any Nonrecoverable Advance previously made, such right of
reimbursement pursuant to this clause (iv) being limited first to amounts
received on the Mortgage Loans in respect of which such Nonrecoverable
Advance was made and then limited to amounts received on all the Mortgage
Loans serviced by such Servicer (of, if applicable, the Master Servicer or
the Trustee);
(v) to reimburse the Servicers for Insured Expenses from the related
Insurance Proceeds;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
REO Property that has been purchased pursuant to Section 2.02 or 2.04, all
amounts received thereon after the date of such purchase;
(vii) to reimburse itself or the Depositor for expenses incurred by
either of them and reimbursable pursuant to this Agreement, including but
not limited to, Section 3.02 and Section 7.03;
(viii) to withdraw any amount deposited in the Master Servicer
Custodial Account and not required to be deposited therein; and
(ix) to clear and terminate the Master Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
If the Master Servicer shall remit to the Securities Administrator any amount
not required to be remitted, it may at any time direct the Securities
Administrator to withdraw such amount from the Certificate Account, any
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provision herein to the contrary notwithstanding. Such direction may be
accomplished by delivering an Officer's Certificate to the Securities
Administrator which describes the amounts remitted in error to the Securities
Administrator for deposit to the Certificate Account.
(b) On each Distribution Date, funds on deposit in the Certificate Account
and deemed to be on deposit in the Upper-Tier Certificate Sub-Account shall be
used to make payments on the Upper-Tier Interests as provided in Sections 5.01
and 5.02. The Certificate Account shall be cleared and terminated upon
termination of this Agreement pursuant to Section 10.01.
Section 3.12 Maintenance of Hazard Insurance and Other Insurance.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicers under the related Servicing Agreements to maintain
or cause to be maintained fire, flood and hazard insurance with extended
coverage customary in the area where the Mortgaged Property is located in
accordance with the related Servicing Agreements. It is understood and agreed
that such insurance provided for in this Section 3.12 shall be with insurers
meeting the eligibility requirements set forth in the applicable Servicing
Agreement and that no earthquake or other additional insurance is to be required
of any Mortgagor or to be maintained on property acquired in respect of a
defaulted loan, other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance.
(b) Pursuant to Sections 3.08 and 3.09, any amounts collected by the Master
Servicer, or by any Servicer, under any insurance policies (other than amounts
to be applied to the restoration or repair of the property subject to the
related Mortgage or released to the Mortgagor in accordance with the applicable
Servicing Agreement) shall be deposited into the Master Servicer Custodial
Account, subject to withdrawal pursuant to Sections 3.09 and 3.11. Any cost
incurred by the Master Servicer or any Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be added to
the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so
permit; provided, however, that the addition of any such cost shall not be taken
into account for purposes of calculating the distributions to be made to
Certificateholders and shall be recoverable by the Master Servicer or such
Servicer pursuant to Sections 3.08 and 3.09.
Section 3.13 Presentment of Claims and Collection of Proceeds.
The Master Servicer shall (to the extent provided in the applicable
Servicing Agreement) cause the related Servicer to, prepare and present on
behalf of the Trust and the Certificateholders all claims under the Insurance
Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Master Servicer Custodial Account upon receipt, except that any amounts realized
that are to be applied to the repair or restoration of the related Mortgaged
Property as a condition precedent to the presentation of claims on the related
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Mortgage Loan to the insurer under any applicable Insurance Policy need not be
so deposited (or remitted).
Section 3.14 Enforcement of Due-On-Sale Clauses; Assumption Agreements.
To the extent provided in the applicable Servicing Agreement and to the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the Servicers to enforce such clauses in accordance with
the applicable Servicing Agreement. If applicable law prohibits the enforcement
of a due-on-sale clause or such clause is otherwise not enforced in accordance
with the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
Section 3.15 Realization Upon Defaulted Mortgage Loans; REO Property.
(a) The Master Servicer shall cause each Servicer (to the extent required
under the related Servicing Agreement) to foreclose upon or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the applicable Servicing Agreement.
(b) With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trust for the benefit of the Certificateholders, or
its nominee, on behalf of the Certificateholders. The Master Servicer shall
enforce the obligation of the Servicers, to the extent provided in the
applicable Servicing Agreement, to (i) cause the name of the Trust to be placed
on the title to such REO Property and (ii) ensure that the title to such REO
Property references this Agreement. The Master Servicer shall, to the extent
provided in the applicable Servicing Agreement, cause the applicable Servicer to
sell any REO Property as expeditiously as possible and in accordance with the
provisions of this Agreement and the related Servicing Agreement, as applicable.
Pursuant to its efforts to sell such REO Property, the Master Servicer shall
cause the applicable Servicer to protect and conserve such REO Property in the
manner and to the extent required by the applicable Servicing Agreement, subject
to the REMIC Provisions. In the event that the Trust Estate acquires any
Mortgaged Property as aforesaid or otherwise in connection with a default or
imminent default on a Mortgage Loan, the Master Servicer shall enforce the
obligation of the related Servicer to dispose of such Mortgaged Property within
the time period specified in the applicable Servicing Agreement, but in any
event within three years after the acquisition by the Servicer for the Trust
(such period, the "REO Disposition Period") unless (i) the Servicer provides to
the Trustee, the Master Servicer and the Securities Administrator an Opinion of
Counsel to the effect that the holding by the Trust of such Mortgaged Property
subsequent to three years after its acquisition will not result in the
imposition of taxes on "prohibited transactions" of the Trust as defined in
Section 860F of the Code or under the law of any state in which real property
securing a Mortgage Loan owned by the Trust is located or cause any REMIC
created hereunder to fail to qualify as a REMIC for federal income tax purposes
or for state tax purposes under the laws of any state in which real property
securing a Mortgage Loan owned by the Trust is located at any time that any
Certificates are outstanding or (ii) the Servicer shall have applied for and
received an extension of such period from the Internal Revenue Service, in which
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case the Trust Estate may continue to hold such Mortgaged Property for the
period of such extension.
(c) The Master Servicer shall, to the extent required by the related
Servicing Agreement, cause the applicable Servicer to deposit all funds
collected and received in connection with the operation of any REO Property in
the Servicer Custodial Account.
(d) The applicable Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition of
such REO Property; provided that any such unreimbursed Advances as well as any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
(e) The Liquidation Proceeds from the final disposition of the REO
Property, net of any payment to the applicable Servicer as provided above shall
be deposited in the related Servicer Custodial Account on or prior to the
Determination Date in the month following receipt thereof and be remitted by
wire transfer in immediately available funds to the Master Servicer for deposit
into the Master Servicer Custodial Account.
Notwithstanding any other provision of this Agreement, the Master Servicer
shall not permit any Mortgaged Property acquired by the Trust to be rented (or
allowed to continue to be rented) or otherwise used for the production of income
by or on behalf of the Trust in such a manner or pursuant to any terms that
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, (ii) result in
the receipt by any REMIC created hereunder of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or any "net
income from foreclosure property" which is subject to taxation under the REMIC
Provisions or (iii) subject any REMIC created hereunder to the imposition of any
federal, state or local income taxes on the income earned from such Mortgaged
Property under Section 860G(c) of the Code or otherwise, unless the Master
Servicer or related Servicer, as applicable, has agreed to indemnify and hold
harmless the Trust with respect to the imposition of any such taxes.
Notwithstanding any other provision of this Agreement, the Master Servicer
and the Securities Administrator, as applicable, shall comply with all federal
withholding requirements with respect to payments to Certificateholders of
interest or original issue discount that the Master Servicer or the Securities
Administrator reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. Without
limiting the foregoing, the Securities Administrator agrees that it will not
withhold with respect to payments of interest or original issue discount in the
case of a Certificateholder that has furnished or caused to be furnished an
effective Form W-8 or an acceptable substitute form or a successor form and who
is not a "10 percent shareholder" within the meaning of Code Section
871(h)(3)(B) or a "controlled foreign corporation" described in Code Section
881(c)(3)(C) with respect to the Trust or the Depositor. In the event the
Securities Administrator withholds any amount from interest or original issue
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discount payments or advances thereof to any Certificateholder pursuant to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholder.
Section 3.16 Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the Master
Servicer or the related Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Master Servicer or the
related Servicer will immediately notify the Trustee (or, at the direction of
the Trustee, a Custodian) by delivering, or causing to be delivered, two copies
(one of which will be returned to the related Servicer with the Mortgage File)
of a Request for Release (which may be delivered in an electronic format
acceptable to the Trustee and the Master Servicer or the related Servicer). Upon
receipt of such request, the Trustee or a Custodian, as applicable, shall within
seven (7) Business Days release the related Mortgage File to the Master Servicer
or the related Servicer. The Trustee shall at the Master Servicer's or the
related Servicer's direction execute and deliver to the Master Servicer or the
related Servicer the request for reconveyance, deed of reconveyance or release
or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage relating to the Mortgage Loan, in each case provided by the Master
Servicer or the related Servicer, together with the Mortgage Note with written
evidence of cancellation thereon. If the Mortgage has been recorded in the name
of MERS or its designee, the Master Servicer shall enforce the applicable
Servicer's obligation under the related Servicing Agreement take all necessary
action to reflect the release of the Mortgage on the records of MERS. Expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor of the Mortgage Loan.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any Primary Mortgage Insurance Policy, any policy of flood insurance, any
fidelity bond or errors or omissions policy, or for the purposes of effecting a
partial release of any Mortgaged Property from the lien of the Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or any of the
other documents included in the Mortgage File, the Trustee or a Custodian, as
applicable, shall, upon delivery to the Trustee (or, at the direction of the
Trustee, a Custodian) of a Request for Release signed by a Master Servicing
Officer or a Servicing Officer, release the Mortgage File within seven (7)
Business Days to the Master Servicer or the related Servicer. Subject to the
further limitations set forth below, the Master Servicer or the applicable
Servicer shall cause the Mortgage Files so released to be returned to the
Trustee or a Custodian, as applicable, when the need therefor no longer exists,
unless the Mortgage Loan is liquidated and the proceeds thereof are deposited in
the related Servicer Custodial Account, in which case such Servicer shall
deliver to the Trustee or a Custodian, as applicable, a Request for Release,
signed by a Servicing Officer.
If the Master Servicer or any related Servicer at any time seeks to
initiate a foreclosure proceeding in respect of any Mortgaged Property as
authorized by this Agreement or the Servicing Agreement, the Master Servicer or
any related Servicer shall deliver or cause to be delivered to the Trustee, for
signature, as appropriate, any court pleadings, requests for trustee's sale or
other documents necessary to effectuate such foreclosure or any legal action
brought to obtain judgment against the Mortgagor on the Mortgage Note or the
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Mortgage or to obtain a deficiency judgment or to enforce any other remedies or
rights provided by the Mortgage Note or the Mortgage or otherwise available at
law or in equity.
Section 3.17 Documents, Records and Funds in Possession of the Master
Servicer to be Held for the Trustee.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall cause each Servicer to transmit to the Trustee (or a Custodian on behalf
of the Trustee) as required by this Agreement and the Servicing Agreements all
documents and instruments in respect of a Mortgage Loan coming into the
possession of the Servicer from time to time and shall account fully to the
Trustee for any funds received by the Master Servicer or the related Servicer or
which otherwise are collected by the Master Servicer or the related Servicer as
Liquidation Proceeds, Recoveries or Insurance Proceeds in respect of any
Mortgage Loan. All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer or the related Servicer in respect of any
Mortgage Loans, whether from the collection of principal and interest payments
or from Liquidation Proceeds, including but not limited to, any funds on deposit
in the Master Servicer Custodial Account or any Servicer Custodial Account,
shall be held by the Master Servicer or the related Servicer for and on behalf
of the Trustee and shall be and remain the sole and exclusive property of the
Trustee on behalf of the Trust, subject to the applicable provisions of this
Agreement and the related Servicing Agreement. The Master Servicer also agrees
that it shall not, and shall enforce any requirement under the related Servicing
Agreement that the related Servicer shall not, knowingly create, incur or
subject any Mortgage File or any funds that are deposited in any Master Servicer
Custodial Account, any Servicer Custodial Account, the Certificate Account or
any Escrow Account, or any funds that otherwise are or may become due or payable
to the Trustee for the benefit of the Certificateholders, to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance
created by the Master Servicer or Servicer, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Master Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Master Servicer under
this Agreement.
Section 3.18 Master Servicer Compensation.
As compensation for its services hereunder, the Master Servicer shall be
entitled to the Master Servicing Fee and additional compensation in the form of
the Master Servicer Custodial Account Reinvestment Income. The Master Servicer
shall be required to pay all expenses incurred by it in connection with its
master servicing activities hereunder and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
Section 3.19 Advances.
The Master Servicer shall enforce the obligations of each Servicer to make
a Periodic Advance in accordance with the applicable Servicing Agreement. A
Servicer shall be entitled to be reimbursed from the applicable Servicer
Custodial Account for all Advances of its own funds made pursuant to the related
Servicing Agreement. Based upon information set forth in the servicer reports,
the Master Servicer shall inform the Securities Administrator of the amount of
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the Periodic Advance to be made by a Servicer no later than the related
Remittance Date. If a Servicer fails to make any required Periodic Advance
pursuant to the related Servicing Agreement, the Master Servicer shall (i)
unless the Master Servicer determines that such Periodic Advance would not be
recoverable in its good faith business judgment, make such Periodic Advance not
later than the Business Day preceding the related Distribution Date and (ii) to
the extent such failure leads to the termination of the Servicer and until such
time as a successor Servicer is appointed, continue to make Periodic Advances
required pursuant to the related Servicing Agreement for any Distribution Date,
within the same time frame set forth in (i) above, unless the Master Servicer
determines (to the extent provided in the related Servicing Agreement) that such
Periodic Advance would not be recoverable. If the Master Servicer is unable to
make a Periodic Advance required to be made by it in accordance with this
Section 3.19, the Master Servicer shall immediately, and in no event later than
5:00 P.M. New York time on the last Business Day preceding the related
Distribution Date, give written notice thereof to the Trustee, the Securities
Administrator and the Depositor.
Section 3.20 Annual Statement as to Compliance.
(a) Each of the Master Servicer and the Securities Administrator shall
deliver, and shall cause any Additional Servicer engaged by it to deliver, or
otherwise make available to the Depositor and the Securities Administrator (and
the Securities Administrator will make available to the Trustee and each Rating
Agency), no later than March 15th of each calendar year beginning in 2008, an
Officer's Certificate (each, together with such similar certificate delivered by
each Servicer as described in Section 3.20(b), a "Compliance Statement"), signed
by an officer of such party, stating, as to the signer thereof, that (a) a
review of the activities of such party during the preceding calendar year or
portion thereof and of performance of such party under this Agreement or such
applicable agreement in case of an Additional Servicer has been made under such
officers' supervision and (b) to the best of such officer's knowledge, based on
such review, such party has fulfilled all of its obligations under this
Agreement or such applicable agreement in case of an Additional Servicer in all
material respects throughout such year, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Such Compliance
Statements shall contain no restrictions or limitations on their use. The
obligations of the Master Servicer and the Securities Administrator under this
Section apply to each entity that acted as Master Servicer or Securities
Administrator, as applicable, during the applicable period, whether or not such
entity is acting as Master Servicer or Securities Administrator at the time such
Compliance Statement is required to be delivered.
(b) In the event the Master Servicer or the Securities Administrator is
terminated or resigns pursuant to the terms of this Agreement, such party shall
provide, and shall use its reasonable efforts to cause any Additional Servicer
that resigns or is terminated under any applicable servicing agreement to
provide, a Compliance Statement pursuant to this Section 3.20 with respect to
the period of time that the Master Servicer or the Securities Administrator was
subject to this Agreement or such applicable agreement in the case of an
Additional Servicer or the period of time that the Additional Servicer was
subject to such other servicing agreement. The Master Servicer shall enforce any
obligation of each Servicer, to the extent set forth in the related Servicing
Agreement, to deliver to the Master Servicer a Compliance Statement within the
time frame set forth in, and in such form and substance as may be required
pursuant to, the related Servicing Agreement. The Master Servicer shall include
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such Compliance Statements of the Servicers with its own Compliance Statement to
be submitted pursuant to this Section 3.20.
Section 3.21 Assessments of Compliance and Attestation Reports.
(a) Each of the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall deliver, and shall cause each
Servicing Function Participant engaged by it to deliver, or otherwise make
available to the Depositor and the Securities Administrator on or before March
15th of each calendar year beginning in 2008, a report regarding such party's
assessment of compliance with the Relevant Servicing Criteria (each, together
with such similar report delivered by each Servicer as described in Section
3.21(c), an "Assessment of Compliance") that contains (i) a statement by such
party of its responsibility for assessing compliance with the Relevant Servicing
Criteria, (ii) a statement that such party used the Relevant Servicing Criteria
to assess compliance with the Relevant Servicing Criteria, (iii) such party's
assessment of compliance with the Relevant Servicing Criteria as of and for the
fiscal year covered by the Form 10-K required to be filed pursuant to Section
3.22(c), including, if there has been any material instance of noncompliance
with the Relevant Servicing Criteria, a discussion of each such failure and the
nature and status thereof and (iv) a statement that a registered public
accounting firm has issued an attestation report on such party's assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
No later than February 1 of each fiscal year for the Trust for which a 10-K
is required to be filed, the Master Servicer, the Securities Administrator and
the Custodian shall each forward to the Depositor and the Securities
Administrator the name of each Servicing Function Participant engaged by it and
what Relevant Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function Participant. When the Master
Servicer, the Securities Administrator and the Custodian (or any Servicing
Function Participant engaged by them) submit their assessments to the Depositor
and the Securities Administrator, such parties will also at such time include
the assessment (and attestation pursuant to Section 3.21(b)) of each Servicing
Function Participant engaged by it.
Promptly after receipt of such Assessments of Compliance, the Securities
Administrator shall confirm that the Assessments of Compliance, taken
individually address the Relevant Servicing Criteria for each party as set forth
on Exhibit N and on any similar exhibit set forth in each Servicing Agreement in
respect of each Servicer and notify the Depositor of any exceptions. None of
such parties shall be required to deliver any such Assessments of Compliance
until April 15 in any given year so long as it has received written confirmation
from the Depositor that a Form 10-K is not required to be filed in respect of
the Trust for the preceding calendar year. The Custodian and any Servicing
Function Participant engaged by it shall not be required to deliver or cause the
delivery of such Assessments of Compliance in any given year so long as it has
received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding fiscal year.
(b) Each of the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall cause, and shall cause each Servicing
Function Participant engaged by it to cause, on or before March 15th of each
calendar year beginning in 2008, a registered public accounting firm (which may
also render other services to the Master Servicer, the Securities Administrator,
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the Custodian or such other Servicing Function Participants, as the case may be)
and that is a member of the American Institute of Certified Public Accountants
to furnish a report (each, together with such similar report delivered by each
Servicer as described in Section 3.21(c), an "Attestation Report") to the
Securities Administrator and the Depositor, to the effect that (i) it has
obtained a representation regarding certain matters from the management of such
party, which includes an assertion that such party has complied with the
Relevant Servicing Criteria, and (ii) on the basis of an examination conducted
by such firm in accordance with standards for attestation engagements issued or
adopted by the Public Company Accounting Oversight Board, it is expressing an
opinion as to whether such party's compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party's assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such
Attestation Report why it was unable to express such an opinion. Each such
related Attestation Report shall be made in accordance with Rules 1-02(a)(3) and
2-02(g) of the Commission's Regulation S-X. Such Attestation Reports must be
available for general use and not contain restricted use language. If requested
by the Depositor, such report shall contain or be accompanied by a consent of
such accounting firm to inclusion or incorporation of such report in the
Depositor's registration statement on Form S-3 relating to the Offered
Certificates and the Form 10-K for the Trust.
Promptly after receipt of such Attestation Reports, the Securities
Administrator shall confirm that each Assessment of Compliance is coupled with a
related Attestation Report and shall notify the Depositor of any exceptions.
None of the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by such parties shall be required to deliver or
cause the delivery of such Attestation Reports until April 15 in any given year
so long as it has received written confirmation from the Depositor that a Form
10-K is not required to be filed in respect of the Trust for the preceding
fiscal year. The Custodian and any Servicing Function Participant engaged by it
shall not be required to deliver or cause the delivery of such Attestation
Report in any given year so long as it has received written confirmation from
the Depositor that a Form 10-K is not required to be filed in respect of the
Trust for the preceding fiscal year.
(c) The Master Servicer shall enforce any obligation of each Servicer, to
the extent set forth in the related Servicing Agreement, to deliver to the
Master Servicer an Assessment of Compliance and related Attestation Report
within the time frame set forth in, and in such form and substance as may be
required pursuant to, the related Servicing Agreement. The Master Servicer shall
include such Assessments of Compliance and Attestation Reports of the Servicers
with its own Assessment of Compliance and related Attestation Report to be
submitted pursuant to this Section 3.21.
(d) In the event the Master Servicer, the Custodian or the Securities
Administrator is terminated or resigns pursuant to the terms of this Agreement,
such party shall provide, and each such party shall cause any Servicing Function
Participant engaged by it to provide, an Assessment of Compliance pursuant to
this Section 3.21, coupled with an Attestation Report as required in this
Section 3.21 with respect to the period of time that the Master Servicer or the
Securities Administrator was subject to this Agreement.
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Section 3.22 Reports to the Commission.
(a) The Securities Administrator and the Master Servicer shall reasonably
cooperate with the Depositor in connection with the Trust's satisfying its
reporting requirements under the Exchange Act. Without limiting the generality
of the foregoing, the Securities Administrator shall prepare and file on behalf
of the Trust any Form 8-K, Form 10-D and Form 10-K required by the Exchange Act
and the rules and regulations of the Commission thereunder, and the Master
Servicer shall sign such Forms on behalf of the Trust. Notwithstanding the
previous sentence, the Depositor shall file the Form 8-K in connection with the
filing of this Agreement.
(b) Within 15 days after each Distribution Date (subject to permitted
extensions under the Exchange Act), the Securities Administrator shall prepare
and file on behalf of the Trust any Form 10-D required by the Exchange Act, in
form and substance as required by the Exchange Act. The Securities Administrator
shall file each Form 10-D with a copy of the Monthly Statement for such
Distribution Date attached thereto. Any disclosure in addition to the Monthly
Statement for such Distribution Date that is required to be included on Form
10-D ("Additional Form 10-D Disclosure") shall be reported by the parties set
forth on Exhibit O hereto to the Depositor and the Securities Administrator and
directed and approved by the Depositor pursuant to the following paragraph, and
the Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, except as
set forth in this Section 3.22(b).
As set forth on Exhibit O hereto, within 5 calendar days after the related
Distribution Date, (i) the parties described on Exhibit O shall be required to
provide to the Securities Administrator (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
with a copy by facsimile to 410-715-2380) and the Depositor, to the extent known
by a responsible officer thereof, in XXXXX-compatible format, or in such other
format as otherwise agreed upon by the Securities Administrator and such party,
any Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification in the form of Exhibit S and (ii) the Depositor shall
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-D Disclosure on Form 10-D. The Securities
Administrator shall compile all such information provided to it in a Form 10-D
prepared by it. The Securities Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit O of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-D Disclosure information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Additional Form 10-D
Disclosure on Form 10-D pursuant to this paragraph.
After preparing the Form 10-D, the Securities Administrator shall, upon
request, forward electronically a copy of the Form 10-D to the Master Servicer
for review and, only if Additional Form 10-D Disclosure is contained therein,
the Securities Administrator shall forward such Form 10-D to the Depositor for
review. Within 2 Business Days after receipt of such copy, the Depositor shall
notify the Securities Administrator in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-D. In the absence
of any written changes or approval, the Securities Administrator shall be
entitled to assume that such Form 10-D is in final form and the Securities
Administrator may proceed with the execution and filing of the Form 10-D. A duly
authorized officer of the Master Servicer shall sign each Form 10-D. If a Form
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10-D cannot be filed on time or if a previously filed Form 10-D needs to be
amended, the Securities Administrator will follow the procedures set forth in
Section 3.22(h)(ii). Form 10-D requires the registrant to indicate (by checking
"yes" or "no") that it "(1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past 90 days." The
Depositor hereby represents to the Securities Administrator that the Depositor
has filed all such required reports during the preceding 12 months and that is
has been subject to such filing requirement for the past 90 days. The Depositor
shall notify the Securities Administrator in writing, no later than the fifth
calendar day after the related Distribution Date with respect to the filing of a
report on Form 10-D, if the answer to either question should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report. Promptly (but no later than
1 Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-D prepared and filed by the Securities Administrator. The signing party at
the Master Servicer can be contacted at the address specified in Section 11.05.
Each party to this Agreement acknowledges that the performance by the Master
Servicer and Securities Administrator of its duties under this Section 3.22(b)
related to the timely preparation, arrangement for execution and filing of Form
10-D is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties under this Section 3.22(b) and also
contingent upon the Servicers, the Custodian and any Servicing Function
Participant strictly observing deadlines no later than those set forth in this
paragraph that are applicable to the parties to this Agreement in the delivery
to the Securities Administrator of any necessary Additional Form 10-D Disclosure
pursuant to the related Servicing Agreements, any custodial agreement or any
other applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 10-D, where such failure results from the
Master Servicer's or the Securities Administrator's inability or failure to
receive, on a timely basis, any information from any other party hereto or any
Servicer, Custodian or Servicing Function Participant needed to prepare, arrange
for execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
(c) On or prior to the 90th day after the end of each fiscal year of the
Trust or such earlier date as may be required by the Exchange Act (the "10-K
Filing Deadline") (it being understood that the fiscal year for the Trust ends
on December 31st of each year), commencing in March 2008, the Securities
Administrator shall prepare and file on behalf of the Trust a Form 10-K, in form
and substance as required by the Exchange Act. Each such Form 10-K shall include
the following items, in each case to the extent they have been delivered to the
Securities Administrator within the applicable time frames set forth in this
Agreement and the related Servicing Agreements:
(i) a Compliance Statement for each Servicer, the Master Servicer and
the Securities Administrator (each, a "Reporting Servicer") as described
under Section 3.20;
(ii) (A) the Assessment of Compliance for each Reporting Servicer, as
described under Section 3.21(a) and (c), and (B) if each Reporting
Servicer's Assessment of Compliance identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
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each Reporting Servicer's Assessment of Compliance is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an explanation why such report is not included; provided, however, that the
Securities Administrator, at its discretion, may omit from the Form 10-K
any Assessment of Compliance described in this clause (ii) or Attestation
Report described in clause (iii) below that is not required to be filed
with such Form 10-K pursuant to Regulation AB;
(iii) (A) the Attestation Report for each Reporting Servicer, as
described under Section 3.21(b) and (c), and (B) if any Reporting
Servicer's Attestation Report identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
any Reporting Servicer's Attestation Report is not included as an exhibit
to such Form 10-K, disclosure that such Attestation Report is not included
and an explanation why such Attestation Report is not included; and
(iv) a Xxxxxxxx-Xxxxx Certification, as described in Section 3.22(e).
Any disclosure or information in addition to (i) through (iv) above that is
required to be included on Form 10-K ("Additional Form 10-K Disclosure") shall
be reported by the parties set forth on Exhibit P to the Depositor and the
Securities Administrator and directed and approved by the Depositor pursuant to
the following paragraph, and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
10-K Disclosure, except as set forth in this Section 3.22(d).
As set forth on Exhibit P hereto, no later than March 1 of each year that
the Trust is subject to the Exchange Act reporting requirements, commencing in
2008, (i) the parties described in Exhibit P shall be required to provide to the
Securities Administrator (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx with a copy by
facsimile to 410-715-2380) and the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible format, or in such other format
as otherwise agreed upon by the Securities Administrator and such party, any
Additional Form 10-K Disclosure, together with an Additional Disclosure
Notification in the form attached hereto as Exhibit S and (ii) the Depositor
shall approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 10-K Disclosure on Form 10-K. The Securities
Administrator shall compile all such information provided to it in a Form 10-K
prepared by it. The Securities Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit P of their
duties under this paragraph or proactively solicit or procure from such parties
any Additional Form 10-K Disclosure information. The Depositor will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
After preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Master Servicer and Depositor for
review. Within three Business Days after receipt of such copy, the Depositor
shall notify the Securities Administrator in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-K. A senior
officer of the Master Servicer in charge of the master servicing function shall
sign the Form 10-K. If a Form 10-K cannot be filed on time or if a previously
filed Form 10-K needs to be amended, the Securities Administrator will follow
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the procedures set forth in Section 3.22(h)(ii). Form 10-K requires the
registrant to indicate (by checking "yes" or "no") that it "(1) has filed all
reports required to be filed by Section 13 or 15(d) of the Exchange Act during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days." The Depositor hereby represents to the
Securities Administrator that the Depositor has filed all such required reports
during the preceding 12 months and that is has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Securities
Administrator in writing, no later than March 15th with respect to the filing of
a report on Form 10-K, if the answer to either question should be "no." The
Securities Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such report. Promptly (but no later than
1 Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-K prepared and filed by the Securities Administrator. The signing party at
the Master Servicer can be contacted at the address specified in Section 11.05.
The parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of its duties under this Section
3.22(c) related to the timely preparation, arrangement for execution and filing
of Form 10-K is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section 3.22(c), Section
3.22(e), Section 3.20 and Section 3.21 and is also contingent upon the
Servicers, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that are
applicable to the parties to this Agreement in the delivery to the Securities
Administrator of any necessary Additional Form 10-K Disclosure, any Compliance
Statement and any Assessment of Compliance and Attestation Report pursuant to
the related Servicing Agreements, any custodial agreement or any other
applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, arrange for
execution and/or timely file such Form 10-K, where such failure results from the
Securities Administrator's inability or failure to receive, on a timely basis,
any information from any other party hereto or any Servicer or Servicing
Function Participant needed to prepare, arrange for execution or file such Form
10-K, not resulting from its own negligence, bad faith or willful misconduct.
(d) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"), and if
requested by the Depositor, the Securities Administrator shall prepare and file
on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided
that the Depositor shall file the initial Form 8-Ks in connection with the
issuance of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K other
than the initial Form 8-Ks filed in connection with the issuance of the
Certificates ("Form 8-K Disclosure Information") shall be reported by the
parties set forth on Exhibit Q hereto to the Depositor and the Securities
Administrator and directed and approved by the Depositor pursuant to the
following paragraph, and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional Form
8-K Disclosure Information, or any Form 8-K, except as set forth in this Section
3.22(d).
As set forth on Exhibit Q hereto, no later than the end of business on the
2nd Business Day after the occurrence of a Reportable Event (i) the parties
described in Exhibit Q shall be required to provide to the Securities
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Administrator (at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx with a copy by facsimile
to 410-715-2380) and to the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible format, or in such other format as
otherwise agreed upon by the Securities Administrator and such party, any Form
8-K Disclosure Information, if applicable, together with an Additional
Disclosure Notification in the form attached hereto as Exhibit S and (ii) the
Depositor shall approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Form 8-K Disclosure Information. The Securities
Administrator shall compile all such information provided to it in a Form 8-K
prepared by it. The Securities Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit Q of their
duties under this paragraph or proactively solicit or procure from such parties
any Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
After preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Master Servicer and Depositor for
review. No later than the close of business New York City time on the 3rd
Business Day after the Reportable Event, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically) of
any changes to or approval of such Form 8-K. In the absence of receipt of any
written changes or approval, the Securities Administrator shall be entitled to
assume that such Form 8-K is in final form and the Securities Administrator may
proceed with the execution and filing of the Form 8-K. A duly authorized officer
of the Master Servicer shall sign the Form 8-K. If a Form 8-K cannot be filed on
time or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 3.22(h)(ii).
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Securities Administrator will, make available on its internet website a
final executed copy of each Form 8-K prepared and filed by the Securities
Administrator. The signing party at the Master Servicer can be contacted at the
address specified in Section 11.05. The parties to this Agreement acknowledge
that the performance by the Securities Administrator of its duties under this
Section 3.22(d) related to the timely preparation, arrangement for execution and
filing of Form 8-K is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Section
3.22(d) and also contingent upon the Servicers, the Custodian and any Servicing
Function Participant strictly observing deadlines no later than those set forth
in this paragraph that are applicable to the parties to this Agreement in the
delivery to the Securities Administrator of any necessary Form 8-K Disclosure
Information pursuant to the related Servicing Agreements, any custodial
agreement or any other applicable agreement. Neither the Master Servicer nor the
Securities Administrator shall have any liability for any loss, expense, damage,
claim arising out of or with respect to any failure to properly prepare, arrange
for execution and/or timely file such Form 8-K, where such failure results from
the Securities Administrator's inability or failure to receive, on a timely
basis, any information from any other party hereto or any Servicer, Custodian or
Servicing Function Participant needed to prepare, arrange for execution or file
such Form 8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(e) Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification"), exactly as set forth in Exhibit M attached hereto, required to
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be included therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Securities
Administrator (if the Securities Administrator is not the same entity as the
Master Servicer) shall provide, and shall cause any Servicing Function
Participant engaged by it to provide, to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the "Certifying Person"), by March 15th of each year in which the
Trust is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, together
with such similar certification delivered by each Servicer as described in
Section 3.22(f), a "Back-up Certification"), in the form attached hereto as
Exhibit R, upon which the Certifying Person, the entity for which the Certifying
Person acts as an officer, and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties") can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of the
Trust. Such officer of the Certifying Person can be contacted by email at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx. In the event the Master Servicer, the
Securities Administrator or any Servicing Function Participant engaged by such
parties is terminated or resigns pursuant to the terms of this Agreement, or any
applicable sub-servicing agreement, as the case may be, such party shall provide
a Back-up Certification to the Certifying Person pursuant to this Section
3.22(e) with respect to the period of time it was subject to this Agreement or
any applicable sub-servicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall not be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Xxxxxxxx-Xxxxx Certification in the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing Agreement or Custodial
Agreement.
(f) Pursuant to the related Servicing Agreements, the Master Servicer shall
enforce the obligation of each Servicer to provide the Back-up Certification
required pursuant to each of the Servicing Agreements.
(g) Upon any filing with the Commission prepared and filed by the
Securities Administrator, the Securities Administrator shall promptly deliver or
make available to the Depositor a copy of any such executed report, statement or
information.
(h) (i) The obligations set forth in paragraphs (a) through (h) of this
Section shall only apply with respect to periods for which reports are required
to be filed with respect to the Trust under the Exchange Act. On or prior to
January 30 of the first year in which the Securities Administrator is able to do
so under applicable law, unless otherwise requested by the Depositor, the
Securities Administrator shall prepare and file with the Commission a Form 15
Suspension Notification executed by the Master Servicer with respect to the
Trust, with a copy to the Depositor. At the beginning of the calendar year after
the filing of a Form 15 Suspension Notification, if the Depositor or the
Certificate Registrar determines that the number of Certificateholders of the
Offered Certificates of record exceeds the number set forth in Section 15(d) of
the Exchange Act or the regulations promulgated pursuant thereto which would
cause the Trust to again become subject to the reporting requirements of the
Exchange Act, it shall promptly notify the Securities Administrator and the
Securities Administrator shall recommence preparing and filing reports on Form
8-K, Form 10-D and Form 10-K as required pursuant to this Section and the
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then-current reporting requirements of the Exchange Act and the parties hereto
will again have the obligations set forth in paragraphs (a) through (h) of this
Section.
(ii) In the event that the Securities Administrator is unable to
timely file with the Commission all or any required portion of any Form
8-K, Form 10-D or Form 10-K required to be filed by this Agreement because
required disclosure information was either not delivered to it or delivered
to it after the delivery deadlines set forth in this Agreement or for any
other reason, the Securities Administrator will immediately electronically
notify the Depositor and the Master Servicer of such inability to make a
timely filing with the Commission. In the case of Form 10-D and Form 10-K,
the Securities Administrator, the Master Servicer, the Trustee and the
Depositor will cooperate to prepare and file a Form 12b-25 and a Form
10-D/A and Form 10-K/A as applicable, pursuant to Rule 12b-25 of the
Exchange Act. In the case of Form 8-K, the Securities Administrator will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure
information on the next Form 10-D. In the event that any previously filed
Form 8-K, Form 10-D or Form 10-K needs to be amended in connection with any
Additional Form 10-D Disclosure (other than, in the case of Form 10-D, for
the purpose of restating any Monthly Statement), Additional Form 10-K
Disclosure or Form 8-K Disclosure Information, the Securities Administrator
will notify the Depositor and such other parties to the transaction as are
affected by such amendment, and such parties will cooperate to prepare any
necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form 15, Form 12b-25
or any amendment to Form 8-K or Form 10-D shall be signed by a duly
authorized officer (and a senior officer with respect to the Form 10-K) of
the Master Servicer. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 3.22(h) related to the timely preparation,
arrangement for execution and filing of Form 15, a Form 12b-25 or any
amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon each such
party performing its duties under this Section 3.22(h). Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss, expense, damage, claim arising out of or with respect to any failure
to properly prepare, arrange for execution and/or timely file any such Form
15, Form 12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K,
where such failure results from the Securities Administrator's inability or
failure to receive, on a timely basis, any information from any other party
hereto or any Servicer, the Custodian or any Servicing Function Participant
needed to prepare, arrange for execution or file such Form 15, Form 12b-25
or any amendments to Forms 8-K, Form 10-D or Form 10-K, not resulting from
its own negligence, bad faith or willful misconduct.
(i) Notwithstanding the provision of Section 11.01, this Section 3.22 may
be amended without the consent of the Certificateholders.
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ARTICLE IV
MASTER SERVICER'S CERTIFICATE
Section 4.01 Master Servicer's Certificate.
Each month, not later than 12:00 noon Eastern time on the 18th calendar day
of such month (or if such day is not a Business Day, the following Business
Day), the Master Servicer shall deliver to the Securities Administrator, a
Master Servicer's Certificate based solely on the information provided by the
Servicers (in substance and format mutually acceptable to the Master Servicer
and the Securities Administrator) certified by a Master Servicing Officer
setting forth the information necessary in order for the Securities
Administrator to perform its obligations under this Agreement. The Securities
Administrator may conclusively rely upon the information contained in a Master
Servicer's Certificate delivered by the Master Servicer for all purposes
hereunder and shall have no duty to verify or re-compute any of the information
contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;REMIC ADMINISTRATION
Section 5.01 Distributions.
On each Distribution Date, based solely on the information in the Master
Servicer's Certificate, the Securities Administrator shall distribute or be
deemed to distribute out of the Certificate Account, the Lower-Tier Certificate
Sub-Account or the Upper-Tier Certificate Sub-Account, as applicable (to the
extent funds are available therein), to each Certificateholder of record on the
related Record Date (other than as provided in Section 10.01 respecting the
final distribution) (a) by check mailed to such Certificateholder entitled to
receive a distribution on such Distribution Date at the address appearing in the
Certificate Register, or (b) upon written request by the Holder of a Certificate
(other than a Residual Certificate), by wire transfer or by such other means of
payment as such Certificateholder and the Securities Administrator shall agree
upon, such Certificateholder's Percentage Interest in the amount to which the
related Class of Certificates is entitled in accordance with the priorities set
forth below in Section 5.02.
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.
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Section 5.02 Priorities of Distributions on the Certificates.
(a) Distributions of Available Funds
On each Distribution Date, the Securities Administrator shall withdraw from
the Certificate Account (to the extent funds are available therein) Available
Funds and apply such amounts in the following order of priority and to the
extent of such funds:
first, concurrently, to the Class A-1 and Class A-2 Certificates, pro rata,
the Accrued Certificate Interest thereon for such Distribution Date;
second, concurrently, to the Class A-1 and Class A-2 Certificates, pro
rata, the Interest Carryforward Amount thereon for such Distribution Date;
third, sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that order, the
Accrued Certificate Interest thereon for such Distribution Date;
fourth, concurrently, to the Class A-1 and Class A-2 Certificates, pro
rata, the Senior Principal Distribution Amount, until their Class Certificate
Balances have been reduced to zero;
fifth, either:
(i) with respect to each Distribution Date (a) before the Stepdown
Date or (b) as to which a Trigger Event is in effect, sequentially, to the
Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7
and Class M-8 Certificates, in that order, up to the Principal Distribution
Amount, until the Class Certificate Balances thereof have been reduced to
zero; or
(ii) with respect to each Distribution Date (a) on or after the
Stepdown Date and (b) as long as a Trigger Event is not in effect,
sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7 and Class M-8 Certificates, in that order, up to the
respective Mezzanine Principal Distribution Amount for each such Class,
until the Class Certificate Balances thereof have been reduced to zero;
sixth, sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that the order,
the Interest Carryforward Amount thereon for such Distribution Date;
seventh, sequentially, to the Class X-0, Xxxxx X-0, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that the order, any Realized Loss Amortization Amount thereon
for such Distribution Date;
eighth, from amounts otherwise distributable to the Class CE Certificates,
to pay Rate Cap Carryover Amounts, first, concurrently, to the Class A-1 and
Class A-2 Certificates, pro rata, based on Rate Cap Carryover Amounts for each
such Class, and then sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
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M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that order,
any Rate Cap Carryover Amounts for such Classes;
ninth, from amounts otherwise distributable to the Class CE Certificates,
to the Supplemental Interest Trust to fund any Defaulted Swap Termination
Payments; and
tenth, to the Class CE Certificates, up to the Class CE Distributable
Amount.
(b) On each Distribution Date, there shall be distributed to the Holder of
the Class R Certificate (in respect of the Class-UR Interest), any amounts
remaining in the Certificate Account on such date after the application pursuant
to Sections 5.02(a).
(c) On each Distribution Date, after the Securities Administrator makes the
distributions of Available Funds and amounts on deposit in the Rate Cap
Carryover Reserve Account as set forth above, the Supplemental Interest Trust
Trustee shall distribute the amount on deposit in the Swap Account in the
following order of priority:
(i) to the Swap Provider, any Net Swap Payment owed to the Swap
Provider pursuant to the Interest Rate Swap Agreement for such Distribution
Date;
(ii) to the Swap Provider, any Swap Termination Payment, other than a
Defaulted Swap Termination Payment, pursuant to the Interest Rate Swap
Agreement;
(iii) concurrently, to the Class A-1 and Class A-2 Certificates, the
related Accrued Certificate Interest and Interest Carryforward Amount
remaining undistributed after the distributions of Available Funds, pro
rata, based on such respective remaining Accrued Certificate Interest and
Interest Carryforward Amount;
(iv) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that order,
the related Accrued Certificate Interest and Interest Carryforward Amount
remaining undistributed after the distributions of Available Funds;
(v) to the holders of the Class or Classes of Certificates then
entitled to receive distributions in respect of principal, in accordance
with Section 5.02(a) priorities fourth and fifth, in an amount necessary to
maintain the applicable Targeted Overcollateralization Amount;
(vi) sequentially, to the Class X-0, Xxxxx X-0, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, Class M-6, Class M-7 and Class M-8
Certificates, in that order, to the extent of any remaining related Unpaid
Realized Loss Amounts for each such Class;
(vii) concurrently, to the Class A-1 and Class A-2 Certificates, the
related Rate Cap Carryover Amounts, pro rata, based on such respective
remaining Rate Cap Carryover Amounts, to the extent remaining undistributed
after distributions are made from the Rate Cap Carryover Reserve Account
pursuant to Section 5.02(a) priority eighth;
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(viii) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, in that
order, the related Rate Cap Carryover Amounts, to the extent remaining
undistributed after distributions are made from the Rate Cap Carryover
Reserve Account pursuant to Section 5.02(a) priority eighth;
(ix) to the Swap Provider, any Defaulted Swap Termination Payment, to
the extent not already paid; and
(x) to the Class CE Certificates, any remaining amounts.
(d) On each Distribution Date, Unpaid Realized Loss Amounts on the Offered
Certificates will be reduced by the amount of any Recoveries relating to the
Mortgage Loans received during the related Prepayment Period in the same order
as Realized Loss Amortization Amounts are paid to the Offered Certificates
pursuant to Section 5.02(a) above.
(e) Any amounts distributed to the Senior Certificates and Mezzanine
Certificates in respect of interest pursuant to Section 5.02(a) priority eighth
which constitute Rate Cap Carryover Amounts shall first be deemed distributed by
the Upper-Tier REMIC as a distribution with respect to the Class CE Upper-Tier
Regular Interest, and then distributed to the Senior Certificates and Mezzanine
Certificates as payments on notional principal contracts in the nature of cap
contracts. Any remaining amount with respect to the Class CE Certificates shall
be treated as having been distributed to the Holders of the Class CE
Certificates.
(f) Distributions on the Uncertificated Lower-Tier Interests. On each
Distribution Date, the Securities Administrator shall be deemed to cause in the
following order of priority, the following amounts to be distributed to the
Upper-Tier REMIC on account of the Uncertificated Lower-Tier Regular Interests
(such amount, the "Lower-Tier Distribution Amount") or withdrawn from the
Certificate Account and distributed to the Holder of the Class R Certificate (in
respect of the Class LR Interest), as the case may be:
(i) concurrently, to
(a) each of the Class X Lower-Tier REMIC Interests whose related
Class X Lower-Tier REMIC Target Principal Balance (as calculated for
the Distribution Date), is exceeded by the Uncertificated Balance of
such Class X Lower-Tier REMIC Interest for the prior Distribution
Date, until the Uncertificated Balance of such Class X Lower-Tier
REMIC Interest is equal to the related Class X Lower-Tier Target
Principal Balance (as calculated for the Distribution Date); and
(b) each of the Class Y Lower-Tier REMIC Interests whose related
Class Y Lower-Tier REMIC Target Principal Balance (as calculated for
the Distribution Date), is exceeded by the Uncertificated Balance of
such Class Y Lower-Tier REMIC Interest for the prior Distribution
Date, until the Uncertificated Balance of such Class Y Lower-Tier
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REMIC Interest is equal to the related Class Y Lower-Tier Target
Principal Balance (as calculated for the Distribution Date);
(ii) to the extent of amounts remaining after the distributions
made pursuant to clause (i) above, to Holders of the Uncertificated
Lower-Tier Regular Interests, pro rata, in an amount equal to (A)
Uncertificated Accrued Interest for such Uncertificated Lower-Tier
Regular Interest for such Distribution Date, plus (B) any amounts
payable in respect thereof remaining unpaid from previous Distribution
Dates;
(iii) to the extent of amounts remaining after the distributions
made pursuant to clause (i) and (ii) above, to the Holders of the
Uncertificated Lower-Tier Regular Interests, pro rata based on their
Uncertificated Balances following the allocations made pursuant to
clause (i) and (ii) above until the Uncertificated Balance of each
such Uncertificated Lower-Tier Regular Interest is reduced to zero;
and
(iv) any remaining amount to the Holder of the Class R
Certificate (in respect of the Class LR Interest).
(g) Distributions on the Upper-Tier Interests. On each Distribution Date,
amounts deemed distributed by the Lower-Tier REMIC to the Upper-Tier REMIC shall
be deemed distributed with respect to Upper-Tier Interests so as to (i) pay the
Uncertificated Accrued Interest on such Upper-Tier Interest plus any amounts in
respect thereof remaining unpaid from previous Distribution Dates and (ii)
reduce the Uncertificated Balance or Notional Amount of each such Upper-Tier
Interest to the extent necessary so that it equals the Class Certificate Balance
or Notional Amount of the Corresponding Class of Certificates. Any remaining
amounts will be deemed distributed with respect to the Class UR Interest.
(h) Allocation of Losses on the Uncertificated Lower-Tier Interests and the
Upper-Tier Interests. The Securities Administrator shall be deemed to cause the
following allocation of losses:
(a) For purposes of calculating the amount of Uncertificated
Accrued Interest for the Uncertificated Lower-Tier Interests, the
aggregate amount of any Relief Act Reductions shall be allocated to
the Uncertificated Lower-Tier Interests pro rata based on, and to the
extent of, one month's interest at the then applicable respective
Uncertificated Lower-Tier REMIC Pass-Through Rates on the respective
Uncertificated Balances of each such Uncertificated Lower-Tier
Interest.
(b) The aggregate amount of any Relief Act Reductions incurred in
respect of the Mortgage Loans for any Distribution Date shall be
allocated to the Upper-Tier Interests in the same manner and priority
as such amounts are allocated to the corresponding Class of
Certificates for such Distribution Date.
(i) (a) All Realized Losses on the Mortgage Loans shall be allocated
on each Distribution Date to the Uncertificated Lower-Tier Interests in the
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same order of priority as principal is allocated to the Uncertificated
Lower-Tier Interests pursuant to Section 5.02(f) above.
(b) All Realized Losses on the Mortgage Loans shall be allocated
by the Securities Administrator on each Distribution Date to the
Upper-Tier Interests such that the Uncertificated Balance or Notional
Amount of each such Upper-Tier Interest equals the Class Certificate
Balance or Notional Amount of the corresponding Class of Certificates.
(i) Notwithstanding anything to the contrary contained herein, the above
distributions in Sections 5.02(e) through (h) (other than on the Certificates)
are deemed distributions, and distributions of funds from the Certificate
Account shall be made only in accordance with Sections 5.02(a) through (d)
hereof.
Section 5.03 Allocation of Losses.
(a) No later than five (5) Business Days prior to the related Distribution
Date, the Master Servicer shall inform the Securities Administrator in writing
with respect to each Mortgage Loan: (1) whether any Realized Loss is a Deficient
Valuation or a Debt Service Reduction, (2) of the amount of such loss or
Deficient Valuation, or of the terms of such Debt Service Reduction and (3) of
the total amount of Realized Losses on the Mortgage Loans. 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 the
operation of Section 5.03(b).
(b) Any Applied Realized Loss Amount for a Distribution Date will be
allocated in reduction of the Class Certificate Balances of the Class M-8, Class
M-7, Class M-6, Class M-5, Class M-4, Class M-3, Class M-2, Class M-1, Class A-2
and Class A-1 Certificates, in that order, and until the respective Class
Certificate Balances thereof are reduced to zero.
Notwithstanding any other provision of this Section 5.03(b), 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.
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Section 5.04 Statements to Certificateholders.
(a) Prior to the Distribution Date in each month, based upon the
information provided to the Securities Administrator on the Master Servicer's
Certificate delivered to the Securities Administrator pursuant to Section 4.01
and with respect to subsections (P) and (Q) below, after consultation with the
Depositor, the Securities Administrator shall determine the following
information with respect to the Certificates and such Distribution Date:
(A) the actual Distribution Date, the related Record Date, the
LIBOR Determination Date and the Interest Accrual Period for each
Class of Certificates for such Distribution Date;
(B) 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;
(C) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on
such Distribution Date;
(D) the amount of the Administrative Fees paid to or retained by
the Servicers and the Master Servicer with respect to the Mortgage
Loans and such Distribution Date;
(E) the Pass-Through Rate and Certificate Interest Rate for each
such Class of Certificates with respect to such Distribution Date;
(F) the amount of Periodic Advances included in the distribution
on such Distribution Date and the aggregate amount of Periodic
Advances outstanding as of the close of business on the Determination
Date immediately preceding such Distribution Date;
(G) the number and aggregate principal amounts of Mortgage Loans
(A) delinquent (exclusive of Mortgage Loans in foreclosure or
bankruptcy) 31 to 60 days, 61 to 90 days and 91 or more days, (B) in
foreclosure, as of the close of business on the last day of the
calendar month preceding such Distribution Date and (C) in bankruptcy,
as of the close of business on the last day of the calendar month
preceding such Distribution Date;
(H) with respect to any Mortgage Loans that became REO Properties
during the preceding calendar month, the aggregate number of such
Mortgage Loans and the aggregated Stated Principal Balance of such
Mortgage Loans as of the close of business on the Determination Date
preceding such Distribution Date and the date of acquisition of the
REO Properties;
(I) the total number and principal balance (and market value, if
available) of any REO Properties with respect to Mortgage Loans as of
the close of business on the Determination Date preceding such
Distribution Date;
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(J) the aggregate amount of Realized Losses with respect to the
Mortgage Loans and Applied Realized Loss Amounts incurred during the
related Collection Period separately identifying any reduction thereof
due to the allocations of Applied Realized Loss Amounts;
(K) the Reimbursement Amount;
(L) the amount of Recoveries;
(M) any expenses or indemnification amounts paid by the Trust,
the specific purpose of each payment and the parties to whom such
payments were made;
(N) any material modifications, extensions or waivers to Mortgage
Loan terms, fees, penalties or payments since the previous
Distribution Date;
(O) the number of Mortgage Loans at the beginning and end of the
related Collection Period, the weighted average Mortgage Interest Rate
of the Mortgage Loans as of the last day of the related Collection
Period and the weighted average remaining term of the Mortgage Loans;
(P) unless such information is otherwise set forth in the Form
10-D relating to such Distribution Date and provided that the
Securities Administrator is reasonably able to include such
information in the statement, material breaches of Mortgage Loan
representations and warranties of which the Securities Administrator
has knowledge or has received written notice;
(Q) unless such information is otherwise set forth in the Form
10-D relating to such Distribution Date and provided that the
Securities Administrator is reasonably able to include such
information in the statement, material breaches of any covenants under
this Agreement of which the Securities Administrator has knowledge or
has received written notice;
(R) the Accrued Certificate Interest in respect of each Class of
Certificates for such Distribution Date and any related Interest
Carryforward Amounts, and the respective portions thereof, if any,
remaining unpaid following the distributions made in respect of such
Certificates on such Distribution Date;
(S) the Rate Cap Carryover Amounts distributed on such
Distribution Date, the amounts remaining after giving effect to
distributions thereof on such Distribution Date, the amount of all
Rate Cap Carryover Amounts covered by withdrawals from the Rate Cap
Carryover Reserve Account and the Swap Account on such Distribution
Date;
(T) whether a Trigger Event has occurred and is continuing, and
the cumulative Realized Losses as a percentage of the Cut-off Date
Principal Balance;
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(U) the Overcollateralization Amount, the Overcollateralization
Release Amount, the Overcollateralization Deficiency and the Targeted
Overcollateralization Amount as of such Distribution Date and the
Monthly Excess Interest Amount and Monthly Excess Cashflow Amount for
such Distribution Date;
(V) the Principal Remittance Amount, the Interest Remittance
Amount and Available Funds;
(W) the Net Swap Payment; and
(X) the amounts received under Interest Rate Cap Agreement.
For all purposes of this Agreement, with respect to any Mortgage Loan,
delinquencies shall be determined and reported based on the so-called "MBA"
methodology for determining delinquencies on mortgage loans similar to the
Mortgage Loans. By way of example, a Mortgage Loan would be delinquent with
respect to a Monthly Payment due on a Due Date if such Monthly Payment is not
made by the close of business on the Mortgage Loan's next succeeding Due Date,
and a Mortgage Loan would be more than 30-days delinquent with respect to such
Monthly Payment if such Monthly Payment were not made by the close of business
on the Mortgage Loan's second succeeding Due Date.
(b) No later than each Distribution Date, the Securities Administrator,
based upon information supplied to it on the Master Servicer's Certificate,
shall make available to each Holder of a Certificate, each Rating Agency and the
Master Servicer, a single statement setting forth the information set forth in
Sections 5.04(a) (a "Monthly Statement").
On each Distribution Date, the Securities Administrator shall prepare and
furnish to each Financial Market Service, in electronic or such other format and
media mutually agreed upon by the Securities Administrator, the Financial Market
Service and the Depositor, the information contained in the Master Servicer's
Certificate described in Section 4.01 for such Distribution Date.
The Securities Administrator will make the Monthly Statement to
Certificateholders (and, at its option, any additional files containing the same
or additional information in an alternative format) available each month to
Certificateholders, the NIMS Insurer and other parties to this Agreement via the
Securities Administrator's Internet website. The Securities Administrator's
Internet website shall initially be located at "xxx.xxxxxxx.xxx." Assistance in
using the website can be obtained by calling the Securities Administrator's
customer service desk at (000) 000-0000. Parties that are unable to use the
website are entitled to have a paper copy mailed to them via first class mail by
calling the customer service desk and indicating such. The Securities
Administrator shall have the right to change the way the Monthly Statements to
Certificateholders are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Securities
Administrator shall provide timely and adequate notification to all above
parties regarding any such changes.
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Within a reasonable period of time after the end of each calendar year, the
Securities Administrator shall furnish to the NIMS Insurer and each Person who
at any time during the calendar year was the Holder of a Certificate, if
requested in writing by such Person, a statement containing the information set
forth in clauses (C) and (R) of Section 5.04(a), in each case aggregated for
such calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time in force.
The Securities Administrator shall deliver to the Holders of Certificates
any reports or information the Securities Administrator is required by this
Agreement or the Code, Treasury Regulations or REMIC Provisions to deliver to
the Holders of Certificates, and the Securities Administrator shall prepare and
provide to the Certificateholders (by mail, telephone, or publication as may be
permitted by applicable Treasury Regulations) such other reasonable information
as the Securities Administrator deems necessary or appropriate or is required by
the Code, Treasury Regulations, and the REMIC Provisions including, but not
limited to, (i) information to be reported to the Holder of the Residual
Certificate for quarterly notices on Schedule Q (Form 1066) (which information
shall be forwarded to the Holder of the Residual Certificate by the Securities
Administrator), (ii) information to be provided to the Holders of Certificates
with respect to amounts which should be included as interest and original issue
discount in such Holders' gross income and (iii) information to be provided to
all Holders of Certificates setting forth the percentage of each REMIC's assets,
determined in accordance with Treasury Regulations using a convention, not
inconsistent with Treasury Regulations, selected by the Securities Administrator
in its absolute discretion, that constitute real estate assets under Section 856
of the Code, and assets described in Section 7701(a)(19)(C) of the Code;
provided, however, that in setting forth the percentage of such assets of each
REMIC created hereunder, nothing contained in this Agreement, including without
limitation Section 7.03 hereof, shall be interpreted to require the Securities
Administrator periodically to appraise the fair market values of the assets of
the Trust Estate or to indemnify the Trust Estate or any Certificateholders from
any adverse federal, state or local tax consequences associated with a change
subsequently required to be made in the Depositor's initial good faith
determinations of such fair market values (if subsequent determinations are
required pursuant to the REMIC Provisions) made from time to time.
Section 5.05 REMIC Tax Returns and Reports to Certificateholders.
(a) For federal income tax purposes, each REMIC created hereunder shall
have a taxable year ending on December 31st and shall maintain its books on the
accrual method of accounting.
(b) The Securities Administrator shall prepare or cause to be prepared,
shall execute or cause to be executed by such Person as is required by the Code,
Treasury Regulations or state or local tax laws, regulations or rules and shall
file or cause to be filed with the Internal Revenue Service and applicable state
or local tax authorities income tax and information returns for each taxable
year with respect to each REMIC created hereunder containing such information at
the times and in the manner as may be required by the Code, the Treasury
Regulations or state or local tax laws, regulations, or rules, and shall furnish
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or cause to be furnished to each REMIC created hereunder and the
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby. The Master Servicer shall provide on a
timely basis to the Securities Administrator or its designee such information
with respect to the assets of the Trust Estate as is in its possession and
reasonably required by the Securities Administrator to enable it to perform its
obligations under this Article V. Within 30 days of the Closing Date, the
Securities Administrator shall obtain for each REMIC created hereunder a
taxpayer identification number on Form SS-4 and any similarly required state or
local forms or as otherwise permitted by the Internal Revenue Service, and shall
furnish or cause to be furnished to the Internal Revenue Service, on Form 8811
and any similarly required state or local forms or as otherwise required by the
Code or the Treasury Regulations, the name, title, address and telephone number
of the person that Holders of the Certificates may contact for tax information
relating thereto, together with such additional information at the time or times
and in the manner required by the Code or the Treasury Regulations. Such
federal, state, or local income tax and information returns shall be signed by
the Trustee, or such other Person as may be required to sign such returns by the
Code, the Treasury Regulations or state or local tax laws, regulations, or
rules.
(c) In the first federal income tax return (and any similar required state
or local income tax returns) of each REMIC created hereunder for its short
taxable year ending December 31, 2007, REMIC status shall be elected for such
taxable year and all succeeding taxable years.
(d) The Securities Administrator will maintain or cause to be maintained
such records relating to each REMIC created hereunder, including but not limited
to records relating to the income, expenses, assets and liabilities of the Trust
Estate, and the initial fair market value and adjusted basis of the Trust Estate
property and assets determined at such intervals as may be required by the Code
or the Treasury Regulations, as may be necessary to prepare the foregoing
returns, schedules, statements or information.
Section 5.06 Tax Matters Person.
The Tax Matters Person shall have the same duties with respect to the
applicable REMIC as those of a "tax matters partner" under Subchapter C of
Chapter 63 of Subtitle F of the Code. The Holder of the Class R Certificate is
hereby designated as the Tax Matters Person for the Upper-Tier REMIC and the
Lower-Tier REMIC. By its acceptance of the Class R Certificate, such Holder
irrevocably appoints the Securities Administrator as its agent to perform all of
the duties of the Tax Matters Person for the Upper-Tier REMIC and the Lower-Tier
REMIC.
Section 5.07 Rights of the Tax Matters Person in Respect of the Securities
Administrator.
The Securities Administrator shall afford the Tax Matters Person, upon
reasonable notice during normal business hours, access to all records maintained
by the Securities Administrator in respect of its duties hereunder and access to
officers of the Securities Administrator responsible for performing such duties.
Upon request, the Securities Administrator shall furnish the Tax Matters Person
with its most recent report of condition published pursuant to law or to the
requirements of its supervisory or examining authority publicly available. The
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Securities Administrator shall make available to the Tax Matters Person such
books, documents or records relating to the Securities Administrator's services
hereunder as the Tax Matters Person shall reasonably request. The Tax Matters
Person shall not have any responsibility or liability for any action or failure
to act by the Securities Administrator and is not obligated to supervise the
performance of the Securities Administrator under this Agreement or otherwise.
Section 5.08 REMIC Related Covenants.
For as long as any REMIC created hereunder shall exist, the Trustee, the
Securities Administrator, the Depositor and the Master Servicer shall act in
accordance herewith to assure continuing treatment of each REMIC created
hereunder as a REMIC and each grantor trust created hereunder as a grantor trust
and avoid the imposition of tax on any REMIC or grantor trust created hereunder.
In particular:
(a) Neither the Securities Administrator nor the Trustee shall create, or
permit the creation of, any "interests" in any REMIC created hereunder within
the meaning of Code Section 860D(a)(2) other than the interests represented by
the Residual Certificate, the Upper-Tier Regular Interests and the
Uncertificated Lower-Tier Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and the
Master Servicer shall not contribute to the Trust Estate and the Trustee shall
not accept property unless substantially all of the property held in each REMIC
constitutes either "qualified mortgages" or "permitted investments" as defined
in Code Sections 860G(a)(3) and (5), respectively, and (ii) no property shall be
contributed, or deemed contributed, to any REMIC created hereunder after the
start-up day unless such contribution would not subject the Trust Estate to the
100% tax on contributions to a REMIC created hereunder after the start-up day of
such REMIC imposed by Code Section 860G(d).
(c) Neither the Securities Administrator, on behalf of the Trust Estate or
the Trustee, nor the Trustee shall accept on behalf of any REMIC created
hereunder any fee or other compensation for services and none of the Securities
Administrator, the Trustee or the Master Servicer shall knowingly accept, on
behalf of the Trust Estate any income from assets other than those permitted to
be held by a REMIC.
(d) Neither the Securities Administrator, on behalf of the Trust Estate or
the Trustee, nor the Trustee shall sell or permit the sale of all or any portion
of the Mortgage Loans (other than in accordance with Sections 2.02 or 2.04),
unless such sale is pursuant to a "qualified liquidation" of the applicable
REMIC as defined in Code Section 860F(a)(4)(A) and in accordance with Article X.
(e) The Securities Administrator shall maintain books with respect to the
Trust and each REMIC created hereunder on a calendar year taxable year basis and
on an accrual basis.
None of the Master Servicer, the Securities Administrator or the Trustee shall
engage in a "prohibited transaction" (as defined in Code Section 860F(a)(2)),
except that, with the prior written consent of the Master Servicer and the
Depositor, the Securities Administrator may engage in the activities otherwise
prohibited by the foregoing paragraphs (b), (c) and (d); provided that the
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Master Servicer shall have delivered to the Securities Administrator an Opinion
of Counsel to the effect that such transaction will not result in the imposition
of a tax on any REMIC created hereunder and will not disqualify any such REMIC
from treatment as a REMIC; and, provided further, that the Master Servicer shall
have demonstrated to the satisfaction of the Securities Administrator that such
action will not adversely affect the rights of the Holders of the Certificates
and the Securities Administrator and that such action will not adversely impact
the rating of the Certificates. None of the Master Servicer, the Securities
Administrator, the Trustee or any Servicer shall, unless the Mortgagor is in
default with respect to the Mortgage Loan or such default is, in the judgment of
the Servicer, reasonably foreseeable, permit any modification with respect to
any Mortgage Loan that would (i) change the Mortgage Rate, defer or forgive the
payment thereof of any principal or interest payments, reduce the Stated
Principal Balance (except for actual payments of principal) or extend the final
maturity date with respect to such Mortgage Loan, (ii) affect adversely the
status of any REMIC as a REMIC or (iii) cause any REMIC to be subject to a tax
on "prohibited transactions" or "contributions" pursuant to the REMIC
Provisions. Further, none of the Master Servicer, the Securities Administrator,
the Trustee or any Servicer shall permit any modification with respect to any
Mortgage Loan that would both (x) effect an exchange or reissuance of such
Mortgage Loan under Section 1.860G-2(b) of the Treasury regulations and (y)
cause any REMIC constituting part of the Trust Estate to fail to qualify as a
REMIC under the Code or the imposition of any tax on "prohibited transactions"
or "contributions" after the Start-up Day under the REMIC Provisions.
Section 5.09 Determination of One-Month LIBOR.
On each LIBOR Determination Date for a Class of Offered Certificates, the
Securities Administrator shall determine One-Month LIBOR for the applicable
Distribution Date on the basis of the British Bankers' Association ("BBA")
"Interest Settlement Rate" for one-month deposits in U.S. Dollars as found on
Telerate page 3750 as of 11:00 A.M. London time on such LIBOR Determination
Date. As used herein, "Telerate page 3750" means the display designated as page
3750 on the Reuters Telerate Service.
If on any LIBOR Determination Date for a Class of Offered Certificates, the
Securities Administrator is unable to determine One-Month LIBOR on the basis of
the method set forth in the preceding paragraph, One-Month LIBOR for the
applicable Distribution Date will be whichever is higher of (x) One-Month LIBOR
as determined on the previous LIBOR Determination Date for such Class of Offered
Certificates or (y) the Reserve Interest Rate. The "Reserve Interest Rate" will
be the rate per annum which the Securities Administrator determines to be either
(A) the arithmetic mean (rounding such arithmetic mean upwards if necessary to
the nearest whole multiple of 1/16%) of the one-month U.S. Dollar lending rates
that New York City banks selected by the Securities Administrator are quoting,
on the relevant LIBOR Determination Date, to the principal London offices of at
least two leading banks in the London interbank market or (B) in the event that
the Securities Administrator can determine no such arithmetic mean, the lowest
one-month U.S. Dollar lending rate that the New York City banks selected by the
Securities Administrator are quoting on such LIBOR Determination Date to leading
European banks.
If on any LIBOR Determination Date for a Class of Offered Certificates, the
Securities Administrator is required but is unable to determine the Reserve
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Interest Rate in the manner provided in the preceding paragraph, One-Month LIBOR
for the applicable Distribution Date will be One-Month LIBOR as determined on
the previous LIBOR Determination Date for such Class of Offered Certificates,
or, in the case of the first LIBOR Determination Date for which the Securities
Administrator is required to determine One-Month LIBOR, 5.3200%.
The establishment of One-Month LIBOR by the Securities Administrator and
the Securities Administrator's subsequent calculation of the rates of interest
applicable to each of the Offered Certificates in the absence of manifest error,
will be final and binding. After a LIBOR Determination Date, the Securities
Administrator shall provide the Certificate Interest Rates of the Offered
Certificates for the related Distribution Date to Beneficial Owners or Holders
of Offered Certificates who place a telephone call to the Securities
Administrator at (000) 000-0000 and make a request therefor.
Section 5.10 Master Servicer, Securities Administrator and Trustee
Indemnification.
(a) In the event that any REMIC created hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due solely to (i) the negligent performance by the Trustee of its
duties and obligations set forth herein or (ii) any state, local or franchise
taxes imposed upon the Trust Estate as a result of the location of the Trustee
or any co-trustee, the Trustee shall indemnify the Trust Estate against any and
all losses, claims, damages, liabilities or expenses ("Losses") resulting from
such negligence, including, without limitation, any reasonable attorneys' fees
imposed on or incurred as a result of a breach of the Trustee's or any
co-trustee's covenants.
(b) In the event that any REMIC created hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due solely to (i) the negligent performance by the Master Servicer of
its duties and obligations set forth herein or (ii) any state, local or
franchise taxes imposed upon the Trust Estate as a result of the location of the
Master Servicer, the Master Servicer shall indemnify the Trust Estate against
any and all Losses resulting from such negligence, including, without
limitation, any reasonable attorneys' fees imposed on or incurred as a result of
a breach of the Master Servicer's covenants.
(c) In the event that any REMIC created hereunder fails to qualify as a
REMIC, loses its status as a REMIC, or incurs federal, state or local taxes as a
result of a prohibited transaction or prohibited contribution under the REMIC
Provisions due solely to (i) the negligent performance by the Securities
Administrator of its duties and obligations set forth herein or (ii) any state,
local or franchise taxes imposed upon the Trust Estate as a result of the
location of the Securities Administrator, the Securities Administrator shall
indemnify the Trust Estate against any and all Losses resulting from such
negligence, including, without limitation, any reasonable attorneys' fees
imposed on or incurred as a result of a breach of the Securities Administrator's
covenants.
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Section 5.11 Supplemental Interest Trust.
(a) A separate trust is hereby established (the "Supplemental Interest
Trust"), into which the Depositor shall deposit the Interest Rate Swap Agreement
and the Interest Rate Cap Agreement. The Supplemental Interest Trust shall be
maintained by the Supplemental Interest Trust Trustee.
No later than the Closing Date, the Supplemental Interest Trust Trustee
shall establish and maintain a separate, segregated trust account to be held in
the Supplemental Interest Trust, titled, "Xxxxx Fargo Bank, N.A., as
Supplemental Interest Trust Trustee for U.S. Bank National Association, as
Trustee, in trust for registered holders of Banc of America Funding Corporation
Mortgage Pass-Through Certificates, Series 2007-B--Swap Account." Such account
shall be an Eligible Account and funds on deposit therein shall be held separate
and apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Securities Administrator held pursuant
to this Agreement. Amounts therein shall be held uninvested.
(b) On each Distribution Date, prior to any distribution to any
Certificate, the Supplemental Interest Trust Trustee shall deposit into the Swap
Account the amount of any Net Swap Payment or Swap Termination Payment (other
than any Swap Termination Payment resulting from a Swap Provider Trigger Event
(as defined in the Interest Rate Swap Agreement)) owed to the Swap Provider
(after taking into account any upfront payment received from the counterparty to
a replacement interest rate swap agreement) from funds transferred from the
Trust that were collected and received with respect to the Mortgage Loans. For
federal income tax purposes, any amounts paid to the Swap Provider on each
Distribution Date shall be deemed paid to the Supplemental Interest Trust in
respect of the Class CE Upper-Tier Regular Interest; provided, however, that any
Class IO Distribution Amount (as defined below) will be deemed paid to the
Supplemental Interest Trust by the Offered Certificates pursuant to Section
5.11(e). Any Swap Termination Payment triggered by a Swap Provider Trigger Event
(as defined in the Interest Rate Swap Agreement) owed to the Swap Provider
pursuant to the Interest Rate Swap Agreement will be subordinated to
distributions to the Holders of the Certificates and shall be paid as set forth
under Section 5.02(a) priority ninth. The Supplemental Interest Trust Trustee
shall deposit in the Swap Account on the date received by it any Net Swap
Payment received from the Swap Provider and any payment received from the Cap
Provider under the Interest Rate Cap Agreement.
(c) For federal income tax purposes, the Supplemental Interest Trust shall
be owned by the Class CE Grantor Trust as provided in Section 5.13. The
Supplemental Interest Trust constitutes an "outside reserve fund" within the
meaning of Treasury Regulation ss. 1.860G-2(h) and is not an asset of any REMIC
created hereunder.
(d) To the extent that the Supplemental Interest Trust is determined to be
a separate legal entity from the Supplemental Interest Trust Trustee, any
obligation of the Supplemental Interest Trust Trustee under the Interest Rate
Swap Agreement shall be deemed to be an obligation of the Supplemental Interest
Trust.
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(e) The Securities Administrator and the Supplemental Interest Trust
Trustee shall treat the Holders of the Offered Certificates as having entered
into a notional principal contract with respect to the Holders of the Class CE
Certificates. Pursuant to each such notional principal contract, all Holders of
Offered Certificates shall be treated as having agreed to pay, on each
Distribution Date, to the Holder of the Class CE Certificates an aggregate
amount equal to the excess, if any, of (i) the amount payable on such
Distribution Date on the Upper-Tier Regular Interest corresponding to such Class
of Certificates over (ii) the amount payable on such Class of Certificates on
such Distribution Date (such excess, a "Class IO Distribution Amount"). A Class
IO Distribution Amount payable from interest collections shall be allocated pro
rata among such Certificates based on the excess of (i) the amount of interest
otherwise payable to such Certificates over (ii) the amount of interest payable
to such Certificates at a per annum rate equal to the Upper-Tier REMIC Net Rate
Cap, and a Class IO Distribution Amount payable from principal collections shall
be allocated to the most subordinate Class of Certificates with an outstanding
Class Certificate Balance to the extent of such balance. In addition, pursuant
to such notional principal contract, the Holder of the Class CE Certificates
shall be treated as having agreed to pay Rate Cap Carryover Amounts to the
Holders of the Offered Certificates in accordance with the terms of this
Agreement. Any payments to the Certificates from amounts deemed received in
respect of this notional principal contract shall not be payments with respect
to a regular interest in a REMIC within the meaning of Code Section 860G(a)(1).
However, any payment from the Offered Certificates of a Class IO Distribution
Amount shall be treated for tax purposes as having been received by the Holders
of such Certificates in respect of the corresponding Upper-Tier Regular Interest
and as having been paid by such Holders to the Supplemental Interest Trust
Trustee pursuant to the notional principal contract. Thus, each Offered
Certificate shall be treated as representing not only ownership of an Upper-Tier
Regular Interest, but also ownership of an interest in, and obligations with
respect to, a notional principal contract.
Section 5.12 Tax Treatment of Swap Payments and Swap Termination Payments.
(a) For federal income tax purposes, each Holder of a Certificate is deemed
to own an undivided beneficial ownership interest in an Upper-Tier Regular
Interest and the right to receive payments from either the Rate Cap Carryover
Reserve Account or the Swap Account in respect of the Rate Cap Carryover Amount
or the obligation to make payments to Supplemental Interest Trust for deposit to
the Swap Account. For federal income tax purposes, the Supplemental Interest
Trust Trustee will account for payments to each Certificate as follows: each
Offered Certificate will be treated as receiving its entire payment from the
corresponding Upper-Tier Regular Interest (regardless of any Swap Termination
Payment or obligation under the Interest Rate Swap Agreement) and subsequently
paying their portion of any Swap Termination Payment in respect of each such
Class' obligation under the Interest Rate Swap Agreement. In the event that any
such Class is resecuritized in a REMIC, the obligation under the Interest Rate
Swap Agreement to pay any such Swap Termination Payment (or any shortfall in the
Net Swap Payment), will be made by one or more of the REMIC regular interests
issued by the resecuritization REMIC subsequent to such REMIC regular interest
receiving its full payment from any such Offered Certificate. Resecuritization
of any Certificate in a REMIC will be permissible only if the Securities
Administrator hereunder is the trustee in such resecuritization.
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(b) The Upper-Tier Regular Interest corresponding to a Certificate will be
entitled to receive interest and principal payments at the times and in the
amounts equal to those made on the Certificate to which it corresponds, except
that the maximum interest rate payable on that Upper-Tier Regular Interest will
equal the Upper-Tier REMIC Net Rate Cap. As a result of the foregoing, the
amount of distributions and taxable income on the Upper-Tier Regular Interest
corresponding to an Certificate may exceed the actual amount of distributions on
the Offered Certificates.
Section 5.13 Grantor Trust Administration
(a) The Trustee and the Securities Administrator shall treat the portions
of the Trust consisting of the Rate Cap Carryover Reserve Account and the
Supplemental Interest Trust and rights and obligations with respect thereto as
the Class CE Grantor Trust and provisions of this Agreement shall be interpreted
consistently with this treatment.
(b) On each Distribution Date, the Securities Administrator shall be deemed
to deposit all distributions in respect of the Rate Cap Carryover Reserve
Account and the Supplemental Interest Trust in the Class CE Grantor Trust, and
shall immediately distribute such amounts as provided in Section 5.02(d),
5.02(e) and 5.02(c)(i)(G).
(c) The Securities Administrator and the Trustee shall account for the
Class CE Grantor Trust and the assets and rights and obligations with respect
thereto as, for federal income tax purposes, a grantor trust as described in
Subpart E of Part I of Subchapter J of the Code and Treasury Regulation
ss.301.7701-4(c)(2) and not as assets of any REMIC created pursuant to this
Agreement. The Securities Administrator shall apply for a taxpayer
identification number for the grantor trust on IRS Form SS-4 and any similarly
required state or local forms. The Securities Administrator shall furnish or
caused to be furnished to the Holders of the Class CE Certificates and shall
file or cause to be filed IRS Form 1041 and such other forms as may be required
by the Code and regulations promulgated thereunder and any similar state or
local laws with respect to the allocable shares of income and expenses with
respect to the assets of the grantor trust at the time and in the manner
required by the Code and regulations promulgated thereunder and any similar
state or local laws. The Securities Administrator shall sign any forms required
above.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.
The Classes of Certificates shall be substantially in the forms attached
hereto as Exhibits A-A1, A-A2, B-M1, B-M2, B-M3, B-M4, B-M5, B-M6, B-M7, B-M8,
B-CE, B-R 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 (other than the Class CE and Class R Certificates) shall
be available to investors in minimum denominations of initial Certificate
Balance and integral multiples in excess thereof set forth in the Preliminary
Statement. The minimum denomination for the Class CE Certificates shall be a 10%
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Percentage Interest in such Class. The Class R Certificate shall be issued only
as a single Certificate. The Offered Certificates shall initially be issued in
book-entry form through the Depository and delivered to the Depository or,
pursuant to the Depository's instructions on behalf of the Depository to, and
deposited with, the Certificate Custodian, and all other Classes of Certificates
shall initially be issued in definitive, fully-registered form.
The Certificates shall be executed by manual or facsimile signature on
behalf of the Securities Administrator by an authorized officer or signatory.
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Securities Administrator shall bind the Securities Administrator,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the execution and delivery of such Certificates or did not
hold such offices or positions at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless such Certificate shall have been manually authenticated by the
Securities Administrator substantially in the form provided for herein, and such
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 6.02 Registration of Transfer and Exchange of Certificates.
(a) The Securities Administrator shall cause to be kept at an office or
agency in the city in which the Corporate Trust Office of the Securities
Administrator is located a Certificate Register in which, subject to such
reasonable regulations as it may prescribe, the Securities Administrator shall
provide for the registration of Certificates and of transfers and exchanges of
Certificates as herein provided. The Securities Administrator shall initially
serve as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided.
(b) At the option of the Certificateholders, Certificates may be exchanged
for other Certificates of authorized denominations of a like Class, tenor and
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at any such office or agency. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute and the
Securities Administrator shall authenticate and deliver the Certificates that
the Certificateholder making the exchange is entitled to receive. Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Securities Administrator or the Certificate Registrar) be duly
endorsed by, or be accompanied by a written instrument of transfer in form
satisfactory to the Securities Administrator and the Certificate Registrar duly
executed by, the Holder thereof or its attorney duly authorized in writing.
(c) (i) Except as provided in paragraph (c)(iii) below, the Book-Entry
Certificates shall at all times remain registered in the name of the Depository
or its nominee and at all times: (A) registration of the Book-Entry Certificates
may not be transferred by the Securities Administrator except to another
Depository; (B) the Depository shall maintain book-entry records with respect to
the Certificate Owners and with respect to ownership and transfers of such
Book-Entry Certificates; (C) ownership and transfers of registration of the
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Book-Entry Certificates on the books of the Depository shall be governed by
applicable rules established by the Depository; (D) the Depository may collect
its usual and customary fees, charges and expenses from its Depository
Participants; (E) the Securities Administrator shall deal with the Depository as
the representative of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of Holders under this Agreement, and requests
and directions for and votes of the Depository shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(F) the Securities Administrator may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
(ii) All transfers by Certificate Owners of Book-Entry Certificates
shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate
Owner. Each Depository Participant shall only transfer Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which it acts as agent in accordance with the Depository's normal
procedures.
(iii) If the Depository advises the Securities Administrator in
writing that the Depository is no longer willing or able to properly
discharge its responsibilities as Depository and the Securities
Administrator or the Depositor is unable to locate a qualified successor,
the Securities Administrator shall notify all Certificate Owners through
the Depository of the occurrence of such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates")
to such Certificate Owners requesting the same. Upon surrender to the
Securities Administrator of the related Class of Certificates by the
Depository (or by the Certificate Custodian, if it holds such Class on
behalf of the Depository), accompanied by the instructions from the
Depository for registration, the Securities Administrator shall issue the
Definitive Certificates. None of the Master Servicer, the Depositor, the
Securities Administrator or the Trustee shall be liable for any delay in
delivery of such instruction and may conclusively rely on, and shall be
protected in relying on, such instructions. The Depositor shall provide the
Securities Administrator with an adequate inventory of certificates to
facilitate the issuance and transfer of Definitive Certificates. Upon the
issuance of Definitive Certificates, the Securities Administrator shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No transfer of a Private Certificate shall be made unless such transfer
is exempt from the registration requirements of the 1933 Act and any applicable
state securities laws or is made in accordance with the 1933 Act and such laws.
In the event of any such transfer (other than in connection with (i) the initial
transfer of any such Certificate by the Depositor to an Affiliate of the
Depositor or, in the case of the Class R Certificate, the first transfer by an
Affiliate of the Depositor, (ii) the transfer of any such Class CE Certificate
to the issuer under an Indenture or the indenture trustee under an Indenture or
(iii) a transfer of any such Class CE Certificate from the issuer under an
Indenture or the indenture trustee under an Indenture to the Depositor or an
Affiliate of the Depositor), (a) 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
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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 (b) 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-2, which certificates shall not be an
expense of the Securities Administrator or the Depositor; provided that the
foregoing requirements under clauses (a) and (b) shall not apply to a transfer
of a Private Certificate between or among the Depositor, the Sponsor, their
affiliates or both. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferees designated by any such Holder,
information regarding the related Certificates and the Mortgage Loans and such
other information as shall be necessary to satisfy the condition to eligibility
set forth in Rule 144A(d)(4) for transfer of any such certificate without
registration thereof under the 1933 Act pursuant to the registration exemption
provided by Rule 144A. The Holder of a Private Certificate desiring to effect
such transfer shall, and does hereby agree to, indemnify the Securities
Administrator and the Depositor against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
(e) No transfer of an ERISA Restricted Certificate (other than (i) a
transfer to the indenture trustee under an Indenture with respect to a related
NIM trust or (ii) a transfer from the indenture trustee under an Indenture with
respect to a related NIM trust to the Depositor or an Affiliate of the
Depositor) shall be made unless the transferee delivers to the Securities
Administrator either (i) a representation letter substantially in the form
attached hereto as Exhibit H from the transferee of such Certificate, which
representation letter shall not be an expense of the Depositor, the Trustee, the
Securities Administrator, the Servicers or the Master Servicer, or (ii) in the
case of any ERISA Restricted Certificate (other than the Class R Certificate)
presented for registration in the name of an employee benefit plan or
arrangement, subject to Title I of ERISA or Section 4975 of the Code, or a
Person acting on behalf of or using assets of any such employee benefit plan or
arrangement (collectively, a "Plan"), an Opinion of Counsel in form and
substance satisfactory to the Securities Administrator to the effect that the
purchase or holding of such ERISA Restricted Certificate will not constitute or
result in a non-exempt prohibited transaction within the meaning of Section 406
of ERISA or Section 4975 of the Code and will not subject the Trustee, the
Depositor, the Securities Administrator, any Servicer 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 Depositor, the Securities
Administrator, the Trustee, the Servicers 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 or the Securities Administrator
shall have received from the transferee an alternative representation or Opinion
of Counsel acceptable in form and substance to the Securities Administrator.
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Notwithstanding anything else to the contrary herein, any purported transfer of
an ERISA Restricted Certificate to a Plan without the delivery to the Securities
Administrator of an Opinion of Counsel satisfactory to the Securities
Administrator as described above shall be void and of no effect.
Neither the Securities Administrator nor the Certificate Registrar shall
have any liability for transfers of Book-Entry Certificates made through the
book-entry facilities of the Depository or between or among any Depository
Participants or Certificate Owners, made in violation of applicable
restrictions. The Securities Administrator may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to indirect participating firms and Persons shown on the books of such
indirect participating firms as direct or indirect Certificate Owners.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Securities Administrator shall be under no liability to any
Person for any registration of transfer of any ERISA Restricted Certificate that
is in fact not permitted by this Section 6.02 or for making any payments due on
such Certificate to the Holder thereof or taking any other action with respect
to such Holder under the provisions of this Agreement so long as the transfer
was registered by the Securities Administrator in accordance with the foregoing
requirements.
For so long as the Supplemental Interest Trust is in existence, each
beneficial owner of an Offered Certificate or any interest therein, shall be
deemed to have represented, by virtue of its acquisition or holding of such
Certificate, or interest therein, that either (i) it is not a Plan nor a person
acting on behalf of any such Plan or using the assets of any such Plan or (ii)
(A) it is an accredited investor within the meaning of the Underwriter's
Exemption and (B) the acquisition and holding of such Certificate or any
interest therein and the separate right to receive payments from the
Supplemental Interest Trust are eligible for the exemptive relief available
under Department of Labor Prohibited Transaction Class Exemption ("PTCE") 84-14
(for transactions by independent "qualified professional asset managers"), PTCE
91-38 (for transactions by bank collective investment funds), XXXX 00-0 (for
transactions by insurance company pooled separate accounts), PTCE 95-60 (for
transactions by insurance company general accounts) or PTCE 96-23 (for
transactions effected by "in-house asset managers") or the prohibited
transaction statutory exemption set forth under section 408(b)(17) of ERISA (for
transactions with certain service providers).
(f) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Securities Administrator of any change or impending change in
its status as a Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in a Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
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(iii) In connection with any proposed transfer of any Ownership
Interest in a Residual Certificate, the Securities Administrator shall
require delivery to it, in form and substance satisfactory to it, of an
affidavit substantially in the form attached hereto as Exhibit I from the
proposed transferee and a certificate substantially in the form attached
hereto as Exhibit U from the proposed transferor.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Securities Administrator has actual knowledge that the proposed transferee
is not a Permitted Transferee, no transfer of any Ownership Interest in a
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in a Residual Certificate may be purchased
by or transferred to any Person that is not a U.S. Person, unless (A) such
Person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the transferor and
the Securities Administrator with an effective Internal Revenue Service
Form W-8ECI (or successor thereto) or (B) the transferee delivers to both
the transferor and the Securities Administrator an Opinion of Counsel from
a nationally-recognized tax counsel to the effect that such transfer is in
accordance with the requirements of the Code and the regulations
promulgated thereunder and that such transfer of a Residual Certificate
will not be disregarded for federal income tax purposes.
(vi) Any attempted or purported transfer of any Ownership Interest in
a Residual Certificate in violation of the provisions of this Section 6.02
shall be absolutely null and void and shall vest no rights in the purported
transferee. If any purported transferee shall, in violation of the
provisions of this Section 6.02, become a Holder of a Residual Certificate,
then the prior Holder of such Residual Certificate that is a Permitted
Transferee shall, upon discovery that the registration of transfer of such
Residual Certificate was not in fact permitted by this Section 6.02, be
restored to all rights as Holder thereof retroactive to the date of
registration of transfer of such Residual Certificate. The Securities
Administrator shall be under no liability to any Person for any
registration of transfer of a Residual Certificate that is in fact not
permitted by this Section 6.02 or for making any distributions due on such
Residual Certificate to the Holder thereof or taking any other action with
respect to such Holder under the provisions of the Agreement so long as the
transfer was registered in accordance with this Section 6.02. The
Securities Administrator shall be entitled to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the
time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Securities
Administrator shall be distributed and delivered by the Securities
Administrator to the prior Holder of such Residual Certificate that is a
Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in a Residual Certificate in violation of the
restrictions in this Section 6.02, then the Securities Administrator, based
on information provided to the Securities Administrator by the Master
Servicer, will provide to the Internal Revenue Service, and to the Persons
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specified in Section 860E(e)(3) and (6) of the Code, information needed to
compute the tax imposed under Section 860E(e) of the Code on transfers of
residual interests to disqualified organizations. The expenses of the
Securities Administrator under this clause (vii) shall be reimbursable by
the Trust.
(viii) No Ownership Interest in a Residual Certificate shall be
acquired by a Plan.
(g) No service charge shall be imposed for any transfer or exchange of
Certificates of any Class, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(h) All Certificates surrendered for transfer and exchange shall be
destroyed by the Certificate Registrar.
Section 6.03 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Securities Administrator, the Trustee, the Depositor and the Certificate
Registrar such security or indemnity reasonably satisfactory to each, to save
each of them harmless, then, in the absence of actual notice to the Securities
Administrator or the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Securities Administrator shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor, Class
and Percentage Interest but bearing a number not contemporaneously outstanding.
Upon the issuance of any new Certificate under this Section, the Securities
Administrator may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Securities Administrator and
the Certificate Registrar) connected therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 6.04 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of transfer,
the Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the Certificate Registrar and any agent of the Depositor, the Master Servicer,
the Trustee, the Securities Administrator or the Certificate Registrar may treat
the Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 5.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicer, the Trustee, the Securities Administrator, the Certificate Registrar,
the NIMS Insurer or any agent of the Depositor, the Master Servicer, the
Trustee, the Securities Administrator, the NIMS Insurer or the Certificate
Registrar shall be affected by notice to the contrary.
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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
Xxxxxx Xxx or Xxxxxxx Mac.
In connection with the succession to the Master Servicer under this
Agreement by any Person (i) into which the Master Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Master
Servicer, the Master Servicer shall notify the Depositor of such succession or
appointment and shall furnish to the Depositor and the Securities Administrator
in writing and in form and substance reasonably satisfactory to the Depositor
and the Securities Administrator, all information reasonably necessary for the
Securities Administrator to accurately and timely report, pursuant to Section
3.22(d), the event under Item 6.02 of Form 8-K pursuant to the Exchange Act (if
such reports under the Exchange Act are required to be filed under the Exchange
Act).
Section 7.03 Limitation on Liability of the Depositor, the Master Servicer
and Others.
None of the Depositor, the Master Servicer or any of the directors,
officers, employees or agents of the Depositor or of the Master Servicer shall
be under any liability to the Trust Estate or the Certificateholders for any
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action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer or any such
Person against any breach of warranties or representations made herein or any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Depositor, the Master
Servicer and any director, officer, employee or agent of the Depositor or the
Master Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer and any director, officer,
employee or agent of the Depositor or the Master Servicer shall be indemnified
by the Trust Estate and held harmless against any loss, liability or expense
incurred in connection with any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. Neither of the Depositor nor the
Master Servicer shall be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its respective duties under this
Agreement and which in its opinion may involve it in any expense or liability;
provided, however, that the Depositor or the Master Servicer may in its
discretion undertake any such action which it may deem necessary or desirable in
respect to this Agreement and the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Estate (except any expenses, costs
or liabilities incurred as a result of any breach of representations or
warranties of the related party or by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties of such party hereunder or by
reason of reckless disregard of obligations and duties of such party hereunder),
and the Depositor and the Master Servicer shall each be entitled to be
reimbursed therefor out of amounts attributable to the applicable Mortgage Loans
on deposit in the Master Servicer Custodial Account, as provided by Section
3.11.
Section 7.04 Depositor and Master Servicer Not to Resign.
Subject to the provisions of Section 7.02, neither the Depositor nor the
Master Servicer shall resign from its respective obligations and duties hereby
imposed on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination permitting the
resignation of the Depositor or the Master Servicer shall be evidenced by an
Opinion of Counsel to such effect delivered to the Securities Administrator. No
such resignation by the Master Servicer shall become effective until the
Securities Administrator or a successor Master Servicer shall have assumed such
Master Servicer's responsibilities and obligations in accordance with Section
8.05 hereof.
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ARTICLE VIII
DEFAULT
Section 8.01 Events of Default.
If any one of the following events ("Events of Default") shall occur and be
continuing:
(a) any failure by the Master Servicer to remit amounts to the Securities
Administrator for deposit into the Certificate Account in the amount and manner
provided herein so as to enable the Securities Administrator to distribute to
Holders of Certificates any payment required to be made under the terms of such
Certificates and this Agreement which continues unremedied by 12:00 P.M. New
York time on the related Distribution Date; or
(b) failure on the part of the Master Servicer duly to observe or perform
in any material respect any other covenants or agreements of the Master Servicer
set forth in the Certificates or in this Agreement, which covenants and
agreements continue unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Master Servicer by the Securities Administrator, the Trustee,
the NIMS Insurer or the Depositor, or to the Master Servicer, the Depositor, the
Securities Administrator, the NIMS Insurer and the Trustee by the Holders of
Certificates evidencing Voting Rights aggregating not less than 25% of all
Certificates affected thereby; or
(c) the entry of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings against the Master
Servicer, or for the winding up or liquidation of the Master Servicer's affairs,
and the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(d) the consent by the Master Servicer to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Master
Servicer or of or relating to substantially all of its property; or the Master
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations; or
(e) failure by the Master Servicer to duly perform, within the required
time period, its obligations under Section 3.20, Section 3.21 or Section 3.22;
or
(f) failure by the Master Servicer to make a Periodic Advance required to
be made by it pursuant to Section 3.19 by 5:00 P.M. New York time on the
Business Day preceding the related Distribution Date.
then, (i) in the case of Event of Default described in clauses (a) through (e)
hereof, so long as such Event of Default is actually known by a Responsible
Officer of the Trustee or the Depositor and shall not have been remedied by the
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Master Servicer, either the Trustee or the Depositor may, and at the direction
of the Holders of Certificates evidencing Voting Rights aggregating not less
than 51% of all Certificates affected thereby shall, by notice then given in
writing to the Master Servicer (and to the Trustee, if given by the Depositor,
and to the Depositor, if given by the Trustee), terminate all of the rights and
obligations of the Master Servicer under this Agreement and (ii) in the case of
an Event of Default described in clause (f) hereof, so long as such event is
known by a Responsible Officer of the Trustee, the Trustee shall be obligated to
make such Periodic Advance and then, so long as such Event of Default shall not
have been remedied by 5:00 P.M. New York time on the related Distribution Date
(including the reimbursement to the Trustee by the Master Servicer, with
interest thereon at the Prime Rate (as set forth in The Wall Street Journal),
for any Periodic Advance made), the Trustee may, by notice given in writing to
the Master Servicer and the Depositor, terminate all of the rights and
obligations of the Master Servicer under this Agreement. On or after the receipt
by the Master Servicer of such written notice and subject to Section 8.05, all
authority and power of the Master Servicer under this Agreement, whether with
respect to the Certificates or the Mortgage Loans or otherwise, shall pass to
and be vested in the Trustee pursuant to and under this Section 8.01 and Section
8.05, unless and until such time as the Trustee shall appoint a successor Master
Servicer pursuant to Section 8.05, and, without limitation, the Trustee is
hereby authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the applicable Mortgage Loans and
related documents, or otherwise, including, without limitation, the recordation
of the assignments of the applicable Mortgage Loans to it. The Master Servicer
agrees to cooperate with the Trustee in effecting the termination of the
responsibilities and rights of the Master Servicer hereunder, including, without
limitation, the transfer to the Trustee for the administration by it of all cash
amounts that have been deposited by the Master Servicer in the Master Servicer
Custodial Account or thereafter received by the Master Servicer with respect to
the Mortgage Loans. Upon obtaining notice or knowledge of the occurrence of any
Event of Default, the Person obtaining such notice or knowledge shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register and to each Rating Agency. All
costs and expenses (including attorneys' fees) incurred in connection with
transferring the master servicing data and information to the successor Master
Servicer and amending this Agreement to reflect such succession as Master
Servicer pursuant to this Section 8.01 shall be paid by the predecessor Master
Servicer (unless the predecessor Master Servicer is the Trustee, in which event
the previous Master Servicer shall be responsible for payment of such costs and
expenses so long as the transfer of servicing is not the result of an Event of
Default on the part of the Trustee in its capacity as the predecessor Master
Servicer). Notwithstanding the termination of the Master Servicer pursuant
hereto, the Master Servicer shall remain liable for any causes of action arising
out of any Event of Default occurring prior to such termination, subject to the
terms and conditions of this Agreement.
Section 8.02 Remedies of Trustee.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 8.01, shall have the right, in its own name as trustee of
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an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filing of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
Section 8.03 Directions by Certificateholders and Duties of Trustee During
Event of Default.
During the continuance of any Event of Default, Holders of Certificates
evidencing Voting Rights aggregating not less than 25% (or such other percentage
as may be required herein) of each Class of Certificates affected thereby may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Agreement; provided, however, that the Trustee shall be under
no obligation to pursue any such remedy, or to exercise any of the trusts or
powers vested in it by this Agreement (including, without limitation, (a) the
conducting or defending of any administrative action or litigation hereunder or
in relation hereto, and (b) the terminating of the Master Servicer or any
successor Master Servicer from its rights and duties as master servicer
hereunder) at the request, order or direction of any of the Certificateholders,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby and, provided further,
that, subject to the provisions of Section 9.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee, based upon an
Opinion of Counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith determines that the action or
proceeding so directed would subject the Trustee to a risk of personal liability
or be unjustly prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of the Master Servicer and upon
Event of Default.
In the event that a Responsible Officer of the Trustee shall have actual
knowledge of any failure of the Master Servicer specified in Section 8.01(a) or
(b) which would become an Event of Default upon such Master Servicer's failure
to remedy the same after notice, the Trustee shall give notice thereof to the
Master Servicer. If a Responsible Officer of the Trustee shall have knowledge of
an Event of Default, the Trustee shall give prompt written notice thereof to the
Securities Administrator and the Securities Administrator shall give prompt
written notice thereof to the Certificateholders in accordance with Section
8.01.
Section 8.05 Trustee to Act; Appointment of Successor.
(a) (i) Within 90 days of the time the Master Servicer (and the Trustee if
such notice of termination is delivered by the Depositor) receives a notice of
termination pursuant to Section 8.01, the Trustee (or other named successor)
shall, subject to Section 3.07, be the successor in all respects to the Master
Servicer in its capacity as master servicer under this Agreement and the
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transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof and thereof, as applicable, or shall
appoint a successor pursuant to Section 3.07. Notwithstanding the foregoing, (i)
the parties hereto agree that the Trustee, in its capacity as successor Master
Servicer, immediately will assume all of the obligations of the Master Servicer
to make advances (including, without limitation, Advances pursuant to Section
3.19) under this Agreement, (ii) the Trustee, in its capacity as successor
Master Servicer, shall not be responsible for the lack of information and/or
documents that it cannot obtain through reasonable efforts and (iii) under no
circumstances shall any provision of this Agreement be construed to require the
Trustee (a) acting in its capacity as successor to the Master Servicer in its
obligation to make advances (including Advances pursuant to Section 3.19) to
advance, expend or risk its own funds or otherwise incur any financial liability
in the performance of its duties hereunder if it shall have reasonable grounds
for believing that such funds are non-recoverable, (b) to be liable for any
losses of the Master Servicer or any acts or omissions of the predecessor Master
Servicer hereunder, (c) to be obligated to make Advances if it is prohibited
from doing so by applicable law, (d) to be obligated to effectuate repurchases
or substitutions of the Mortgage Loans hereunder or (e) to be obligated to
perform any obligation of the Master Servicer under Section 3.20, Section 3.21
or Section 3.22 with respect to any period of time during which the Trustee was
not the Master Servicer. Subject to Section 8.05(b), as compensation therefor,
the Trustee shall be entitled to such compensation as the terminated Master
Servicer would have been entitled to hereunder if no such notice of termination
had been given, except for those amounts due to the Master Servicer as
reimbursement for Advances previously made or amounts previously expended and
are otherwise reimbursable hereunder. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, any
established housing and home finance institution having a net worth of not less
than $10,000,000 as the successor to the terminated Master Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Master Servicer hereunder; provided, however, that any such institution
appointed as a successor Master Servicer shall not, as evidenced in writing by
each Rating Agency, adversely affect the then current rating of any Class of
Certificates immediately prior to the termination of the terminated Master
Servicer. The appointment of a successor Master Servicer shall not affect any
liability of the predecessor Master Servicer which may have arisen under this
Agreement prior to its termination as Master Servicer, nor shall any successor
Master Servicer be liable for any acts or omissions of the predecessor Master
Servicer or for any breach by the Master Servicer of any of its representations
or warranties contained herein or in any related document or agreement. Pending
appointment of a successor to a terminated Master Servicer hereunder, unless the
Trustee is prohibited by law from so acting, the Trustee shall act in such
capacity as provided above. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. All Master Servicing Transfer Costs shall be paid by the
predecessor Master Servicer (unless the predecessor Master Servicer is the
Trustee, in which event the previous Master Servicer shall be responsible for
payment of such costs and expenses so long as the transfer of servicing is not
the result of an Event of Default on the part of the Trustee in its capacity as
the predecessor Master Servicer) upon presentation of reasonable documentation
of such costs, and if such predecessor Master Servicer defaults in its
obligation to pay such costs, such costs shall be paid by the successor Master
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Servicer or the Trustee (in which case the successor Master Servicer or the
Trustee shall be entitled to reimbursement therefor from the assets of the
Trust).
(b) In connection with the appointment of a successor Master Servicer or
the assumption of the duties of the Master Servicer, as specified in Section
8.05(a), the Trustee may make such arrangements for the compensation of such
successor as it and such successor shall agree; provided, however, that such
compensation shall not exceed the compensation of the Master Servicer being
replaced.
(c) Any successor, including the Trustee, to the Master Servicer as master
servicer shall during the term of its service as master servicer maintain in
force (i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as master servicer hereunder and (ii) a fidelity
bond in respect of its officers, employees and agents to the same extent as the
Master Servicer is so required pursuant to Section 3.03.
Section 8.06 Notification to Certificateholders.
Upon any termination or appointment of a successor to the Master Servicer
pursuant to this Article VIII, the Securities Administrator shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
ARTICLE IX
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
Section 9.01 Duties of Trustee and Securities Administrator.
(a) (i) The Trustee and the Securities Administrator, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default which may have occurred, each undertake to perform such duties and
only such duties as are specifically set forth in this Agreement as duties of
the Trustee and the Securities Administrator, respectively. In case an Event of
Default has occurred of which a Responsible Officer of the Trustee shall have
actual knowledge (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in their exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs. In case an Event of Default has occurred of which a
Responsible Officer of the Securities Administrator shall have actual knowledge
(which has not been cured or waived), the Securities Administrator shall
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
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requirements of this Agreement; provided, however, that neither the Trustee nor
the Securities Administrator shall be responsible for the accuracy of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Master Servicer or the Depositor hereunder.
(b) No provision of this Agreement shall be construed to relieve the
Trustee or the Securities Administrator from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misfeasance; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee and the Securities Administrator
shall be determined solely by the express provisions of this Agreement, the
Trustee and the Securities Administrator shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee and the Securities Administrator and, in the
absence of bad faith on the part of the Trustee and the Securities
Administrator, the Trustee and the Securities Administrator may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and the Securities Administrator by the Depositor or the
Master Servicer and which on their face, do not contradict the requirements
of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
grossly negligent in ascertaining the pertinent facts;
(iii) The Trustee and the Securities Administrator shall not be
personally liable with respect to any action taken, suffered or omitted to
be taken by it in good faith in accordance with the direction of
Certificateholders as provided in Section 8.03;
(iv) The Trustee shall not be charged with knowledge of any default or
an Event of Default under Section 8.01 unless a Responsible Officer of the
Trustee obtains actual knowledge of such default or Event of Default or any
Responsible Officer of the Trustee receives written notice of such default
or Event of Default at its Corporate Trust Office from the Master Servicer,
the Securities Administrator, the Depositor or any Certificateholder. The
Securities Administrator shall not be charged with knowledge of any default
or an Event of Default under Section 8.01 unless a Responsible Officer of
the Securities Administrator obtains actual knowledge of such failure or
event or any Responsible Officer of the Securities Administrator receives
written notice of such default or Event of Default at its Corporate Trust
Office from the Master Servicer, the Trustee, the Depositor or any
Certificateholder; and
(v) No provision in this Agreement shall require the Trustee or the
Securities Administrator to expend or risk its own funds or otherwise incur
any personal financial liability in the performance of any of its duties as
Trustee or Securities Administrator hereunder, or in the exercise of any of
its rights or powers, if the Trustee or the Securities Administrator shall
have reasonable grounds for believing that repayment of funds or adequate
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indemnity or security satisfactory to it against such risk or liability is
not reasonably assured to it and none of the provisions contained in this
Agreement shall in any event require the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the Master Servicer under this Agreement.
(c) Subject to the conditions set forth in this Section 9.01(c), the
Securities Administrator is permitted to utilize one or more Subcontractors to
perform certain of its obligations hereunder. The Securities Administrator shall
promptly upon request provide to the Depositor a written description (in form
and substance satisfactory to the Depositor) of the role and function of each
Subcontractor utilized by the Securities Administrator, specifying (i) the
identity of each such Subcontractor that is a Servicing Function Participant and
(ii) which elements of the Servicing Criteria will be addressed in Assessments
of Compliance provided by each Servicing Function Participant. As a condition to
the utilization by the Securities Administrator of any Servicing Function
Participant, the Securities Administrator shall cause any such Servicing
Function Participant for the benefit of the Depositor to comply with the
provisions of Section 3.20 of this Agreement to the same extent as if such
Servicing Function Participant were the Securities Administrator. The Securities
Administrator shall be responsible for obtaining from each such Servicing
Function Participant and delivering to the applicable Persons any Assessment of
Compliance and related Attestation Report required to be delivered by such
Servicing Function Participant under Section 3.20, in each case as and when
required to be delivered.
Notwithstanding the foregoing, if the Securities Administrator engages a
Subcontractor in connection with the performance of any of its duties under this
Agreement, the Securities Administrator shall be responsible for determining
whether such Subcontractor is an Additional Servicer.
The Securities Administrator shall indemnify the Depositor, the Sponsor,
the Trustee, the Custodian, the Master Servicer and any of their respective
directors, officers, employees or agents and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain in any way related to a breach of the
Securities Administrator's obligation set forth in the preceding paragraph or
the failure of the Securities Administrator to perform any of its obligations
under Section 3.20, Section 3.21, Section 3.22 or this Section 9.01(c).
(d) Xxxxx Fargo, in its capacity as Supplemental Interest Trust Trustee, is
hereby directed to execute, deliver and perform the obligations on behalf of the
Supplemental Interest Trust (including making any representations) under the
Interest Rate Cap Agreement and the Interest Rate Swap Agreement on the Closing
Date and to enforce the obligations of the Swap Provider under the Interest Rate
Swap Agreement and the Cap Provider under the Interest Rate Cap Agreement
thereafter, including by exercising any right that the Supplemental Interest
Trust Trustee may have to designate an "Early Termination Date" under the
Interest Rate Cap Agreement or the Interest Rate Swap Agreement upon the
occurrence of an "Event of Default" or a "Termination Event" thereunder. Upon
the occurrence of an "Early Termination Date" under the Interest Rate Cap
Agreement or the Interest Rate Swap Agreement, the Depositor shall use
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reasonable efforts to replace the Interest Rate Cap Agreement or Interest Rate
Swap Agreement, as the case may be, with one that is furnished by a replacement
for the Swap Provider or Cap Provider, as applicable, acceptable to each Rating
Agency, and the Supplemental Interest Trust Trustee shall hold in trust any
amount that is paid to it by the Swap Provider or Cap Provider, as applicable,
in respect of any such "Early Termination Date" and apply such amount to the
purchase of the related replacement. If any portion of such amount cannot be so
used (either because a replacement for the Interest Rate Cap Agreement or the
Interest Rate Swap Agreement is not available or such amount exceeds the amount
necessary to purchase such replacement), the Supplemental Interest Trust Trustee
shall deposit such portion in the Swap Account. If such amount is insufficient
to purchase a replacement for the Interest Rate Cap Agreement or the Interest
Rate Swap Agreement, the Supplemental Interest Trust Trustee shall apply such
amount to replace so much of the Interest Rate Cap Agreement or the Interest
Rate Swap Agreement, as the case may be, as it is possible to replace with such
amount. If the Cap Provider or the Swap Provider transfers its rights and
obligations under the Interest Rate Cap Agreement or the Interest Rate Swap
Agreement, as the case may be, to another party in accordance therewith or the
Depositor replaces the Interest Rate Cap Agreement or the Interest Rate Swap
Agreement with one that is furnished by a replacement for the Cap Provider or
Swap Provider, as the case may be, acceptable to each Rating Agency in
accordance with this Agreement, then the Supplemental Interest Trust Trustee
shall execute and deliver the related replacement for or novation of the
Interest Rate Cap Agreement or Interest Rate Swap Agreement, as applicable.
The Depositor hereby represents to the Supplemental Interest Trust Trustee
that any representations made by the Supplemental Interest Trust Trustee under
the Interest Rate Cap Agreement or the Interest Rate Swap Agreement on behalf of
the Supplemental Interest Trust are true and accurate.
In addition, upon its receipt from BANA of each "significance estimate" of
the Interest Rate Cap Agreement and the Interest Rate Swap Agreement pursuant to
the Mortgage Loan Purchase Agreement, the Securities Administrator shall, on the
basis of such "significance estimate," calculate the aggregate "significance
percentage" for the Interest Rate Cap Agreement and the Interest Rate Swap
Agreement of the aggregate Class Certificate Balance of the Offered Certificates
as of the date of such "significance estimate" in accordance with Item 1115 of
Regulation AB. For the avoidance of doubt, such "significance percentage" shall
be a fraction, expressed as a percentage, the numerator of which is such
"significance estimate" and the denominator of which is such aggregate Class
Certificate Balance. The Securities Administrator also shall determine as of
such date whether such "significance percentage" would require disclosure of
financial information with respect to the Cap Provider and/or Swap Provider, in
any report required to be filed with the Commission pursuant to Section 3.22,
and if it does, the Securities Administrator shall make a written request of the
Cap Provider or Swap Provider, as the case may be, for such information in
accordance with the schedule to the Interest Rate Swap Agreement (or the
Interest Rate Cap Agreement, if the Swap Provider and Cap Provider are no longer
the same entity) not later than the third Business Day after it receives the
related "significance estimate." Upon its receipt of such information, the
Securities Administrator shall furnish such information to the Depositor and, if
such information is approved by the Depositor, shall include such information in
the related report as provided in Section 3.22.
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If the Cap Provider and the Swap Provider are no longer the same entity,
the Securities Administrator shall calculate the "significance percentage"
separately for the Interest Rate Cap Agreement and the Interest Rate Swap
Agreement.
(e) The Trustee is hereby directed, on or prior to the Closing Date, not in
its individual capacity but solely on behalf of the Trust, to execute and
deliver the BANA Servicing Agreement and each assignment and recognition
agreement constituting a portion of a Servicing Agreement in the forms presented
to it by the Depositor, for the benefit of the Holders of the Certificates. The
Trustee shall not be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trustee on behalf
of the Trust under any Servicing Agreement or any other related documents, as to
all of which recourse shall be had solely to the assets of the Trust in
accordance with the terms of this Agreement. Every provision of this Agreement
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall apply to the Trustee's execution of any Servicing Agreement
and the performance of any obligations thereunder.
(f) Notwithstanding any other provision of this Agreement, any Servicing
Agreement or any other agreement, the Trustee shall not be required to review,
approve or consent to any modification proposed to be made by a Servicer or any
other Person to any Mortgage Loan.
Section 9.02 Certain Matters Affecting the Trustee and the Securities
Administrator.
Except as otherwise provided in Section 9.01:
(i) The Trustee and the Securities Administrator may request and rely
upon and shall be protected in acting or refraining from acting upon any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties and the manner of obtaining consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be
subject to the reasonable regulations as the Trustee and the Securities
Administrator, as applicable, may prescribe;
(ii) The Trustee and the Securities Administrator may consult with
counsel and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(iii) Neither the Trustee nor the Securities Administrator shall be
under any obligation to exercise any of the trusts or powers vested in it
by this Agreement or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee or the
Securities Administrator, as the case may be, reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby; however, subject to Section
9.01(b)(v), nothing contained herein shall relieve the Trustee or the
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Securities Administrator of the obligation, upon the occurrence of an Event
of Default (which has not been cured or waived), to exercise such of the
rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent investor would
exercise or use under the circumstances in the conduct of such investor's
own affairs;
(iv) Neither the Trustee nor the Securities Administrator shall be
personally liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default which may have occurred,
neither the Trustee nor the Securities Administrator shall be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless requested
in writing so to do by Holders of Certificates of any Class evidencing, as
to such Class, Percentage Interests, aggregating not less than 50%;
provided, however, that if the payment within a reasonable time to the
Trustee or the Securities Administrator of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee or the Securities Administrator, as the
case may be, not reasonably assured to the Trustee or the Securities
Administrator, as applicable, by the security afforded to it by the terms
of this Agreement, the Trustee or the Securities Administrator, as the case
may be, may require reasonable indemnity or security satisfactory to it
against such expense or liability or payment of such estimated expenses as
a condition to so proceeding;
(vi) The Trustee and the Securities Administrator may each execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, attorneys, accountants, custodian or
independent contractor; and
(vii) The right of the Trustee or the Securities Administrator to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and neither the Trustee nor the Securities
Administrator shall be answerable for other than its gross negligence or
willful misconduct in the performance of any such act.
Section 9.03 Neither Trustee nor Securities Administrator Liable for
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
execution of, and the authentication on the Certificates) shall be taken as the
statements of the Depositor or the Master Servicer, as applicable, and neither
the Trustee nor the Securities Administrator assumes responsibility for their
correctness. Neither the Trustee nor the Securities Administrator makes any
representations as to the validity or sufficiency of this Agreement or of the
Certificates or any Mortgage Loans save that the Trustee and the Securities
Administrator represent that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
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against it in accordance with its terms, subject, as to enforcement of remedies,
to applicable insolvency, receivership, moratorium and other laws affecting the
rights of creditors generally, and to general principles of equity and the
discretion of the court (regardless of whether enforcement of such remedies is
considered in a proceeding in equity or at law).
Neither the Trustee nor the Securities Administrator shall at any time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of any Mortgage or any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority
or for or with respect to the sufficiency of the Trust or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement, including, without limitation: the existence, condition and ownership
of any Mortgaged Property; the existence and enforceability of any hazard
insurance thereon (other than if the Trustee shall assume the duties of the
Master Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the Trustee as the successor to the Master Servicer); the validity
of the assignment of any Mortgage Loan to the Trustee or of any intervening
assignment; the completeness of any Mortgage Loan; the performance or
enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Master Servicer pursuant to Section 8.05 and thereupon only for
the acts or omissions of the Trustee as successor to the Master Servicer); the
compliance by the Depositor or the Master Servicer with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation; any investment of monies by or
at the direction of the Master Servicer or any loss resulting therefrom, it
being understood that the Trustee and the Securities Administrator shall remain
responsible for any Trust property that it may hold in its individual capacity;
the acts or omissions of any of the Depositor, the Master Servicer (other than
if the Trustee shall assume the duties of the Master Servicer pursuant to
Section 8.05 and thereupon only for the acts or omissions of the Trustee as
successor to the Master Servicer), or any Mortgagor; any action of the Master
Servicer (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 8.05 and thereupon only for the acts or omissions
of the Trustee as successor to the Master Servicer) taken in the name of the
Trust or the Securities Administrator; the failure of the Master Servicer to act
or perform any duties required of it as agent of the Trust or the Securities
Administrator hereunder; or any action by the Trustee or the Securities
Administrator taken at the instruction of the Master Servicer (other than if the
Trustee shall assume the duties of the Master Servicer pursuant to Section 8.05
and thereupon only for the acts or omissions of the Trustee as successor to the
Master Servicer); provided, however, that the foregoing shall not relieve the
Trustee or the Securities Administrator of its obligation to perform its duties
under this Agreement, including, without limitation, the Trustee's review of the
Mortgage Files pursuant to Section 2.02. The Trustee shall file any continuation
statement with respect to any financing statement for which the Trustee is the
secured party in any public office at any time required to maintain the
perfection of any security interest or lien granted to it hereunder.
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Section 9.04 Trustee and Securities Administrator May Own Certificates.
Each of the Trustee and the Securities Administrator in their individual or
any other capacities may become the owner or pledgee of Certificates with the
same rights it would have if it were not Trustee or the Securities Administrator
and may otherwise deal with the Master Servicer or any of its affiliates with
the same right it would have if it were not the Trustee or the Securities
Administrator.
Section 9.05 Eligibility Requirements for Trustee and the Securities
Administrator.
The Trustee and the Securities Administrator hereunder shall at all times
be (a) an institution the deposits of which are fully insured by the FDIC and
(b) a corporation or banking association organized and doing business under the
laws of the United States of America or of any State, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of not
less than $50,000,000.00 and subject to supervision or examination by Federal or
State authority and (c) with respect to every successor trustee or securities
administrator hereunder either an institution (i) the long-term unsecured debt
obligations of which are rated at xxxxx "X0" by Moody's and "A" by Fitch and S&P
or (ii) whose serving as Trustee or Securities Administrator hereunder would not
result in the lowering of the ratings originally assigned to any Class of
Certificates. The Trustee shall not be an affiliate of the Depositor, the Master
Servicer or any Servicer. If such corporation or banking association publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 9.05, the combined capital and surplus of such corporation or
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. The principal
office of the Trustee and the Securities Administrator (other than the initial
Trustee or Securities Administrator) shall be in a state with respect to which
an Opinion of Counsel has been delivered to such Trustee at the time such
Trustee or Securities Administrator is appointed Trustee or Securities
Administrator to the effect that the Trust will not be a taxable entity under
the laws of such state. In case at any time the Trustee or the Securities
Administrator shall cease to be eligible in accordance with the provision of
this Section 9.05, the Trustee or the Securities Administrator, as the case may
be, shall resign immediately in the manner and with the effect specified in
Section 9.06.
The Securities Administrator (i) may not be an originator, the Master
Servicer, Servicer, the Depositor or an affiliate of the Depositor unless the
Securities Administrator is in an institutional trust department, (ii) must be
authorized to exercise corporate trust powers under the laws of its jurisdiction
of organization, and (iii) must be either an institution (a) the long-term
unsecured debt obligations of which are rated at xxxxx "X0" by Moody's and at
least "A" by Fitch and S&P and or (b) whose serving as Securities Administrator
hereunder would not result in the lowering of the ratings originally assigned to
any Class of Certificates. If no successor Securities Administrator shall have
been appointed and shall have accepted appointment within 60 days after the
Securities Administrator ceases to be the Securities Administrator pursuant to
this Section 9.05, then the Trustee shall perform the duties of the Securities
Administrator pursuant to this Agreement. Notwithstanding the above, the Trustee
may, if it shall be unwilling so to act, or shall, if it is legally unable so to
act, appoint, or petition a court of competent jurisdiction to appoint, an
institution qualified under Section 9.05 hereof as the successor to the
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Securities Administrator hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of a Securities Administrator hereunder;
provided, however, that any such institution appointed as successor Securities
Administrator shall not, as evidenced in writing by each Rating Agency,
adversely affect the then current rating of any Class of Certificates
immediately prior to the termination of the Securities Administrator. The
Trustee shall notify the Rating Agencies of any change of the Securities
Administrator.
Section 9.06 Resignation and Removal of Trustee and the Securities
Administrator.
The Trustee or the Securities Administrator may at any time resign and be
discharged from the trust hereby created by giving written notice thereof to the
Master Servicer, the NIMS Insurer and the Depositor and mailing a copy of such
notice to all Holders of record. The Trustee or the Securities Administrator, as
applicable, shall also mail a copy of such notice of resignation to each Rating
Agency. Upon receiving such notice of resignation, the Depositor shall use its
best efforts to promptly appoint a mutually acceptable successor Trustee or
Securities Administrator, as applicable, by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee or
Securities Administrator, as applicable, and one copy to the successor Trustee
or Securities Administrator, as applicable. If no successor Trustee or
Securities Administrator, as the case may be, shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee or Securities Administrator may petition
any court of competent jurisdiction for the appointment of a successor Trustee
or Securities Administrator.
If at any time the Trustee or Securities Administrator shall cease to be
eligible in accordance with the provisions of Section 9.05 and shall fail to
resign after written request therefor by the Master Servicer, or if at any time
the Trustee or the Securities Administrator shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities Administrator or of their respective property shall be appointed, or
any public officer shall take charge or control of the Trustee or the Securities
Administrator or of their respective property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if at any time the Securities
Administrator has failed to duly perform, within the required time period, its
obligations under Section 3.20, Section 3.21 or Section 3.22, then the Master
Servicer may remove the Trustee or the Securities Administrator, as the case may
be, and appoint a successor trustee or securities administrator by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee or the Securities Administrator, as applicable, so removed and one copy
to the successor.
The Holders of Certificates evidencing not less than 50% of the Voting
Rights may at any time remove the Trustee or the Securities Administrator by
written instrument or instruments delivered to the Master Servicer and the
Trustee or the Securities Administrator, as applicable; the Master Servicer
shall thereupon use their best efforts to appoint a mutually acceptable
successor Trustee or Securities Administrator, as the case may be, in accordance
with this Section 9.06.
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
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successor Trustee or Securities Administrator, as the case may be, as provided
in Section 9.07.
Notwithstanding anything to the contrary contained herein, the Master
Servicer and the Securities Administrator shall at all times be the same Person.
Section 9.07 Successor Trustee or Securities Administrator.
Any successor Trustee or successor Securities Administrator appointed as
provided in Section 9.06 shall execute, acknowledge and deliver to the Master
Servicer and to its predecessor Trustee or Securities Administrator, as
applicable, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee or Securities
Administrator shall become effective and such successor Trustee or Securities
Administrator, as the case may be, without any further act, deed or conveyance,
shall become fully vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with like effect as if originally named as Trustee or
Securities Administrator, as applicable, herein. The predecessor Trustee or
Securities Administrator shall duly assign, transfer, deliver and pay over to
the successor Trustee or Securities Administrator, as the case may be, the whole
of the Mortgage Files and related documents and statements held by it hereunder,
together with all instruments of transfer and assignment or other documents
properly executed as may be reasonably required to effect such transfer and such
of the records or copies thereof maintained by the predecessor Trustee or
Securities Administrator in the administration hereof as may be reasonably
requested by the successor Trustee or Securities Administrator, as the case may
be, and shall thereupon be discharged from all duties and responsibilities under
this Agreement; provided, however, that if the predecessor Trustee or Securities
Administrator has been removed pursuant to the third paragraph of Section 9.06,
all reasonable expenses of the predecessor Trustee or Securities Administrator
incurred in complying with this Section 9.07 shall be reimbursed by the Trust.
No successor Trustee or Securities Administrator shall accept appointment
as provided in this Section 9.07 unless at the time of such appointment such
successor Trustee or Securities Administrator, as the case may be, shall be
eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee or Securities
Administrator, as applicable, as provided in this Section 9.07, the Master
Servicer shall cooperate to mail notice of the succession of such Trustee or
Securities Administrator, as the case may be, hereunder to the NIMS Insurer, all
Holders of Certificates at their addresses as shown in the Certificate Register
and to each Rating Agency. If the Master Servicer fails to mail such notice
within ten days after acceptance of appointment by the successor Trustee or
Securities Administrator, the successor Trustee or Securities Administrator, as
the case may be, shall cause such notice to be mailed at the expense of the
Master Servicer.
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
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succeeding to all or substantially all of the corporate trust business of the
Trustee or the Securities Administrator, shall be the successor of the Trustee
or the Securities Administrator, as applicable, hereunder, if such corporation
or banking association is eligible under the provisions of Section 9.05, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding. In
connection with the succession to the Trustee or the Securities Administrator
under this Agreement by any Person (i) into which the Trustee or the Securities
Administrator may be merged or consolidated, or (ii) which may be appointed as a
successor to the Trustee or the Securities Administrator, the Trustee or the
Securities Administrator, as the case may be, shall notify the Depositor of such
succession or appointment and shall furnish to the Depositor in writing and in
form and substance reasonably satisfactory to the Depositor, all information
reasonably necessary for the Securities Administrator to accurately and timely
report, pursuant to Section 3.22(d), the event under Item 6.02 of Form 8-K
pursuant to the Exchange Act (if such reports under the Exchange Act are
required to be filed under the Exchange Act).
Section 9.09 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any of the provisions hereof, at any time, for the purpose
of meeting any legal requirements of any jurisdiction in which any Mortgaged
Property may at the time be located or for any other reason, the Master Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
as co-trustee or separate trustee of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity, such title to the Trust
Estate, or any part thereof, and, subject to the other provision of this Section
9.09, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If one or both of the
Master Servicer shall not have joined in such appointment within ten days after
the receipt by it of a request to do so, the Trustee alone shall have the power
to make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor Trustee under Section
9.05 and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.07. The
Securities Administrator shall be responsible for the fees of any co-trustee or
separate trustee appointed hereunder.
In the case of any appointment of a co-trustee or separate trustee pursuant
to this Section 9.09, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Estate or any portion
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.
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Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, or shall be adjudged a
bankrupt or insolvent, or a receiver of its property shall be appointed, or any
public officer shall take charge or control of such trustee or co-trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 9.10 Authenticating Agents.
The Securities Administrator may appoint one or more authenticating agents
("Authenticating Agents") that shall be authorized to act on behalf of the
Securities Administrator in authenticating or countersigning Certificates.
Initially, the Authenticating Agent shall be Xxxxx Fargo Bank, N.A. Wherever
reference is made in this Agreement to the authentication or countersigning of
Certificates by the Securities Administrator or the Securities Administrator's
certificate of authentication or countersigning, such reference shall be deemed
to include authentication or countersigning on behalf of the Securities
Administrator by an Authenticating Agent and a certificate of authentication or
countersignature executed on behalf of the Securities Administrator by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the Master
Servicer and must be a corporation or banking association organized and doing
business under the laws of the United States of America or of any State, having
a place of business in New York, New York, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by Federal or State authorities.
Any corporation or banking association into which any Authenticating Agent
may be merged or converted or with which it may be consolidated, or any
corporation or banking association resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation or banking association succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent
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
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Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Master Servicer. Upon receiving a notice of
resignation or upon such a termination, or in case, at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 9.10, the Securities Administrator may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent.
Section 9.11 Securities Administrator's Fees and Expenses and Trustee's
Fees and Expenses.
The Trustee, as compensation for its services hereunder, shall be entitled
to a fee in an amount agreed upon between the Trustee and the Securities
Administrator, payable by the Securities Administrator out of its own funds and
not out of any funds of the Trust Estate. The Securities Administrator shall be
entitled to investment income from amounts on deposit in the Certificate Account
as compensation for its services hereunder. The Trustee and the Securities
Administrator, as the case may be, and any director, officer, employee or agent
of the Trustee or the Securities Administrator, as the case may be, shall be
indemnified and held harmless by the Trust against any claims, damage, loss,
liability or expense (including reasonable attorney's fees) (a) incurred in
connection with or arising from or relating to (i) this Agreement, (ii) the
Certificates, or (iii) the performance of any of the Trustee's or Securities
Administrator's, as the case may be, duties hereunder, other than any claims,
damage, loss, liability or expense incurred by reason of willful misfeasance,
bad faith or gross negligence in the performance of any of the Trustee's or
Securities Administrator's, as the case may be, duties hereunder, (b) resulting
from any tax or information return which was prepared by, or should have been
prepared by, the Master Servicer and (c) arising out of the transfer of any
ERISA-Restricted Certificate or the Residual Certificate not in compliance with
ERISA or the Code. Without limiting the foregoing, except as otherwise agreed
upon in writing by the Depositor and the Trustee or the Securities
Administrator, and except for any such expense, disbursement or advance as may
arise from the Trustee's or the Securities Administrator's gross negligence, bad
faith or willful misconduct, the Trust shall reimburse the Trustee and the
Securities Administrator for all reasonable expenses, disbursements and advances
incurred or made by the Trustee or the Securities Administrator in accordance
with any of the provisions of this Agreement to the extent permitted by Treasury
Regulations Section 1.860G-1(b)(3)(ii) and (iii). Except as otherwise provided
herein, neither the Trustee nor the Securities Administrator shall be entitled
to payment or reimbursement for any routine ongoing expenses incurred by the
Trustee or the Securities Administrator, as applicable, in the ordinary course
of its duties as Trustee or Securities Administrator, Certificate Registrar or
Paying Agent hereunder or for any other expenses. The provisions of this Section
9.11 shall survive the termination of this Agreement or the resignation or
removal of the Trustee or the Securities Administrator, as applicable,
hereunder.
Section 9.12 Appointment of Custodian.
The Trustee may at any time on or after the Closing Date, with the consent
of the Depositor and the Master Servicer, appoint one or more Custodians to hold
all or a portion of the Mortgage Files as agent for the Trustee, by entering
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into a custodial agreement in a form acceptable to the Depositor and the Master
Servicer. Subject to this Article IX, the Trustee agrees to enforce the terms
and provisions thereof against the Custodian for the benefit of the
Certificateholders. Each Custodian shall be a depository institution subject to
supervision by federal or state authority, shall have a combined capital and
surplus of at least $10,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File.
Each Custodian shall indemnify the Depositor, the Sponsor, the Trustee, the
Master Servicer, the Securities Administrator and any of their respective
directors, officers, employees or agents and hold them harmless against any and
all claims, losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other reasonable
costs, fees and expenses that any of them may sustain in any way related to the
failure of a Custodian to perform any of its obligations under Section 3.21.
Notwithstanding the foregoing, in no event shall a Custodian be liable for any
consequential, indirect or punitive damages pursuant to this Section 9.12.
Section 9.13 Paying Agents.
The Securities Administrator may appoint one or more Paying Agents (each, a
"Paying Agent") which shall be authorized to act on behalf of the Securities
Administrator in making withdrawals from the Certificate Account and
distributions to Certificateholders as provided in Section 3.09 and Section
5.02. Wherever reference is made in this Agreement to the withdrawal from the
Certificate Account by the Securities Administrator, such reference shall be
deemed to include such a withdrawal on behalf of the Securities Administrator by
a Paying Agent. Initially, the Paying Agent shall be Xxxxx Fargo Bank, N.A.
Whenever reference is made in this Agreement to a distribution by the Securities
Administrator or the furnishing of a statement by the Securities Administrator,
such reference shall be deemed to include such a distribution or furnishing on
behalf of the Securities Administrator by a Paying Agent. Each Paying Agent
shall provide to the Securities Administrator such information concerning the
Certificate Account as the Securities Administrator shall request from time to
time. Each Paying Agent must be reasonably acceptable to the Master Servicer and
must be a corporation or banking association organized and doing business under
the laws of the United States of America or of any state, having (except in the
case of the Trustee or the Securities Administrator) a principal office and
place of business in New York, New York, having a combined capital and surplus
of at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by federal or state authorities. Any fees
and expenses (but not including any indemnity payments) of a Paying Agent
appointed pursuant to this Agreement shall be payable by the Securities
Administrator out of its own funds and not out of any funds in the Trust Estate.
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.
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Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee, the Securities Administrator and to the Master
Servicer; provided that the Paying Agent has returned to the Certificate Account
or otherwise accounted, to the reasonable satisfaction of the Securities
Administrator, for all amounts it has withdrawn from the Certificate Account.
The Securities Administrator may, upon prior written approval of the Master
Servicer, at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent and to the Master Servicer. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any Paying Agent shall cease to be eligible in accordance with the
provisions of the first paragraph of this Section 9.13, the Securities
Administrator may appoint, upon prior written approval of the Master Servicer, a
successor Paying Agent, shall give written notice of such appointment to the
Master Servicer and shall mail notice of such appointment to all
Certificateholders. Any successor Paying Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Paying Agent. The Securities Administrator shall remain liable for any
duties and obligations assumed by its appointed Paying Agent.
Section 9.14 Limitation of Liability.
The Certificates are executed by the Securities Administrator, not in its
individual capacity but solely as Securities Administrator of the Trust, in the
exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Securities Administrator in the Certificates is made and intended not as a
personal undertaking or agreement by the Securities Administrator but is made
and intended for the purpose of binding only the Trust.
Section 9.15 Trustee or Securities Administrator May Enforce Claims Without
Possession of Certificates.
All rights of action and claims under this Agreement or the Certificates
may be prosecuted and enforced by the Trustee or the Securities Administrator
without the possession of any of the Certificates or the production thereof in
any proceeding relating thereto, and such preceding instituted by the Trustee or
the Securities Administrator shall be brought in its own name or in its capacity
as Trustee or Securities Administrator. Any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursement
and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Certificateholders in respect of which such judgment has been recovered.
Section 9.16 Suits for Enforcement.
In case an Event of Default or other default by the Master Servicer or the
Depositor hereunder shall occur and be continuing, the Trustee, in its
discretion, may proceed to protect and enforce its rights and the rights of the
Holders of Certificates under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution of
any power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy, as the Trustee, being advised by counsel, shall deem
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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)) shall
terminate upon the last action required to be taken by the Securities
Administrator on the Final Distribution Date pursuant to this Article X
following the earlier of (a) the later of the purchase by the NIMS Insurer, if
there is a NIMS Insurer, or if there is no NIMS Insurer, the majority Holder of
the Class CE Certificates (or if (i) such Holder fails to purchase on the
Optional Termination Date or (ii) such Holder is the Sponsor, or an affiliate of
the Sponsor, the Master Servicer) of all of the Mortgage Loans and all related
REO Property remaining in the Trust Estate at a price equal to the sum of (w)
100% of the unpaid principal balance of each 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 (x) below), (x) the fair market value of
such REO Property plus one month's interest at the related Mortgage Interest
Rate on the unpaid principal balance of each Mortgage Loan (including any
Mortgage Loan as to which REO Property has been acquired), (y) any Reimbursement
Amount owed to the Trust pursuant to Section 2.02 related to a Mortgage Loan and
(z) and any Swap Termination Payment owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement or (b) the final payment or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust Estate and the disposition of all REO Property.
No party may exercise its purchase option for the Mortgage Loans until all
Reimbursement Amounts for such Mortgage Loans have been paid. The Securities
Administrator shall notify the Sponsor, upon notice of a party's intent to
exercise its purchase option of any related Reimbursement Amount outstanding.
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Regardless of the foregoing, in no event shall the Trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. Xxxxx, living on the date hereof.
The right of a party to exercise its purchase option with respect to the
Mortgage Loans is conditioned upon (A) the aggregate Stated Principal Balance of
the Mortgage Loans being less than 10% of the aggregate unpaid principal balance
of the Mortgage Loans as of the Cut-off Date and (B) in the case of the Master
Servicer, the purchase price calculated pursuant to clause (a)(II) of the first
paragraph of this Section 10.01 being less than or equal to the aggregate fair
market value of the Mortgage Loans (other than any Mortgage Loan as to which REO
Property has been acquired) and the REO Properties; provided, however, that this
clause (B) shall not apply to any purchase by the Master Servicer if, at the
time of the purchase, the Master Servicer is no longer subject to regulation by
the Office of the Comptroller of the Currency, the FDIC, the Federal Reserve or
the OTS. Fair market value for purposes of this paragraph and the first
paragraph of this Section 10.01 will be determined by the Master Servicer as of
the close of business on the third Business Day next preceding the date upon
which notice of any such termination is furnished to Certificateholders pursuant
to this Article X. If such right is exercised, the Trustee (or Custodian on the
Trustee's behalf) shall, promptly following payment of the purchase price,
release to the party exercising its purchase option or its designee the Mortgage
Files pertaining to the Mortgage Loans being purchased. The right, title and
interest of the party exercising its purchase option with respect to the
Mortgage Loans in and to such purchased Mortgage Loans and the related Mortgage
Files shall be subject to the servicing rights of the Servicers pursuant to the
related Servicing Agreements.
Notice of the exercise of any purchase option pursuant to this Section
10.01 and notice of any termination of the Trust, specifying the Final
Distribution Date upon which the applicable Certificateholders may surrender
their Certificates to the Securities Administrator for payment of the final
distribution and for cancellation, shall be given promptly by the Securities
Administrator by letter to the Certificateholders mailed not earlier than the
10th day and not later than the 15th day of the month next preceding the month
of such final distribution specifying (1) the Final Distribution Date 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.
Upon the exercise of its purchase option, the applicable party shall remit
to the Securities Administrator for deposit to the Certificate Account on or
before the Final Distribution Date or the applicable Distribution Date, in
immediately available funds an amount equal to the amount necessary to make the
amount, if any, on deposit in the Certificate Account on such Final Distribution
Date equal to the purchase price for the 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.
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Upon presentation and surrender of the Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each Class,
in the order set forth in Section 5.02 hereof on the Final Distribution Date and
in proportion to their respective Percentage Interests, with respect to
Certificateholders of the same Class, all cash on hand with respect to the
related REMICs (other than the amounts retained to meet claims). An amount shall
be distributed in respect of interest and principal to the Uncertificated
Lower-Tier Interests in the same manner as principal and interest are
distributed to such Uncertificated Lower-Tier Interests as provided in Section
5.02.
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 related funds in the
Certificate 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 (1) year after the
second notice all the applicable Certificates shall not have been surrendered
for cancellation, the Securities Administrator may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds on deposit in such Eligible Account.
Section 10.02 Additional Termination Requirements.
(a) (i) If a party exercises its purchase option as provided in Section
10.01, the REMICs shall be terminated in accordance with the following
additional requirements, unless the Securities Administrator and the Trustee
have received an Opinion of Counsel to the effect that the failure of the Trust
to comply with the requirements of this Section 10.02 will not (i) result in the
imposition of taxes on "prohibited transactions" or "prohibited contributions"
in respect of any REMIC created hereunder as defined in the REMIC Provisions, or
(ii) cause any REMIC created hereunder to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(ii) within 90 days prior to the Final Distribution Date set forth in
the notice given by the Securities Administrator under Section 10.01, the
Securities Administrator shall sell the related Mortgage Loans and the REO
Properties to the Master Servicer, the majority Holder of the Class CE
Certificates or the NIMS Insurer, as the case may be, for cash;
(iii) the notice given by the Securities Administrator pursuant to
Section 10.01 shall provide that such notice constitutes adoption of a plan
of complete liquidation of the REMICs as of the date of such notice (or, if
earlier, the date on which such notice was mailed to Certificateholders).
The Securities Administrator shall also ensure that such date is specified
in the final tax return of the REMICs; and
(iv) the Upper-Tier REMIC will be terminated on the same date that the
Lower-Tier REMIC is terminated.
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(b) By its acceptance of the Residual Certificate, the Holder thereof
hereby agree to take such other action in connection with such plan of complete
liquidation as may be reasonably requested by the Depositor, the Trustee, the
NIMS Insurer or the Securities Administrator and if such action is not
requested, is deemed to adopt such a plan of complete liquidation when the
Mortgage Loans are purchased pursuant to Section 10.01.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
This Agreement may be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee with the consent
of the NIMS Insurer (only to the extent such amendment relates to the
Certificates), without the consent of any of the Certificateholders, (i) to cure
any ambiguity or mistake, (ii) to correct or supplement any provisions herein or
therein which may be inconsistent with any other provisions of this Agreement,
any amendment to this Agreement or the related prospectus supplement, (iii) to
modify, eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of any REMIC created hereunder as a
REMIC at all times that any related Certificates are outstanding or to avoid or
minimize the risk of the imposition of any tax on any REMIC created hereunder
pursuant to the Code that would be a claim against the Trust Estate, provided
that (a) the Trustee and the Securities Administrator have received an Opinion
of Counsel to the effect that such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the imposition of any
such tax and (b) such action shall not, as evidenced by such Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder,
(iv) to change the timing and/or nature of deposits into the Certificate Account
provided that (a) such change shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder
and (b) such change shall not adversely affect the then-current rating of the
Certificates as evidenced by a letter from each Rating Agency rating such
Certificates to such effect, (v) to provide for the rights of the NIMS Insurer
and (vi) to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be materially inconsistent with the
provisions of this Agreement, provided that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Certificateholder, provided that the amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificateholders
and no Opinion of Counsel to that effect shall be required if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates. Notwithstanding any
contrary provision of this Agreement, the Trustee shall not consent to any
amendment to this Agreement pursuant to clause (i) through (vi) above unless it
shall have first received an Opinion of Counsel to the effect that such
amendment shall not cause the imposition of any United States federal income tax
on any REMIC created hereunder or the Certificateholders or cause any REMIC
created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
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This Agreement may also be amended from time to time by the Depositor, the
Master Servicer, the Securities Administrator and the Trustee, with the consent
of the NIMS Insurer (if the NIMS Insurer is affected by such amendment) and the
Holders of Certificates of each Class of Certificates which is affected by such
amendment, evidencing, as to each such Class of Certificates, Percentage
Interests aggregating not less than 66-2/3%, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders of such
Certificates; provided, however, that no such amendment shall (A) reduce in any
manner the amount of, or delay the timing of, collections of payments on
Mortgage Loans or distributions which are required to be made on any Certificate
without the consent of the Holder of such Certificate or (B) reduce the
aforesaid percentage required to consent to any such amendment, without the
consent of the Holders of all Certificates then Outstanding.
Prior to the solicitation of consent of Certificateholders in connection
with any such amendment, the party seeking such amendment shall furnish the
Trustee, the NIMS Insurer and the Securities Administrator with an Opinion of
Counsel stating that such amendment would not adversely affect the qualification
of any REMIC created hereunder as a REMIC or result in the imposition of any
United States federal income tax on any REMIC created hereunder and notice of
the conclusion expressed in such Opinion of Counsel shall be included with any
such solicitation.
Promptly after the execution of any such amendment or consent the
Securities Administrator shall furnish written notification of the substance of
or a copy of such amendment to each Certificateholder, the NIMS Insurer and to
each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Securities Administrator may prescribe.
Prior to the execution of any amendment to this Agreement, each of the
Trustee and the Securities Administrator shall receive and be entitled to
conclusively rely on an Opinion of Counsel (at the expense of the Person seeking
such amendment) stating that such amendment is authorized and permitted by this
Agreement. The Trustee and the Securities Administrator may, but shall not be
obligated to, enter into any such amendment which affects the Trustee's or the
Securities Administrator's own rights, duties or immunities under this
Agreement.
Notwithstanding the foregoing, any amendment to this Agreement shall
require the prior written consent of the Swap Provider if such amendment
materially and adversely affects the rights or interests of the Swap Provider.
Section 11.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such recordation
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to be effected by the Securities Administrator at its expense at the direction
of Holders of Certificates evidencing not less than 50% of all Voting Rights,
but only upon delivery to the Securities Administrator at the expense of the
requesting Certificateholders of an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of
Certificateholders.
For the purpose of facilitating the recordation of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and the same
instrument.
Section 11.03 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as provided
herein) or in any manner otherwise control the operation and management of the
Trust, or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Securities Administrator a written
notice of default and of the continuance thereof, as provided herein, and unless
also the Holders of Certificates evidencing Percentage Interests aggregating not
less than 25% of each Class of Certificates affected thereby shall have made
written request upon the Securities Administrator to institute such action, suit
or proceeding in its own name as Securities Administrator hereunder and shall
have offered to the Securities Administrator such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Securities Administrator, for 60 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Securities Administrator, that no one or more Holders
of Certificates shall have any right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates,
or to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, each and every Certificateholder and the Securities Administrator
shall be entitled to such relief as can be given either at law or in equity.
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Section 11.04 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW).
With respect to any claim arising out of this Agreement, each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan in The City of New York, and each party irrevocably waives any
objection which it may have at any time to the laying of venue of any suit,
action or proceeding arising out of or relating hereto brought in any such
courts, irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process has been made by
any lawful means.
Section 11.05 Notices.
All demands, notices, instructions, directions, requests and communications
required or permitted to be delivered hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by certified
mail, return receipt requested, (provided, however, that notices to the
Securities Administrator may be delivered by facsimile and shall be deemed
effective upon receipt) to (a) in the case of the Depositor, Banc of America
Funding Corporation, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxx Xxxxx, with a copy to: Bank of America Legal Department, 000
Xxxxx Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Associate General Counsel, (b) in the case of the Master Servicer,
Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: BAFC 2007-B, (c) in the case of the Securities Administrator, Xxxxx
Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client
Manager - BAFC 2007-B, facsimile: 000-000-0000, and for overnight delivery
purposes, Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: Client Manager - BAFC 2007-B, with a copy to Xxxxx Fargo
Bank, N.A., Sixth and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, 00000,
Attention: Corporate Trust Services - BAFC 2007-B, (d) in the case of the
Trustee, U.S. Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services, BAFC 2007-B,
Attention: Structured Finance Services, BAFC 2007-B, (e) in the case of S&P,
Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Surveillance Group;
(f) in the case of Moody's, Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Residential Mortgage Surveillance Group and (g)
in the case of Fitch, Fitch Ratings, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Residential Mortgage Surveillance Group, or, as to each party,
at such other address as shall be designated by such party in a written notice
to each other party. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice to a
-131-
Certificateholder so mailed within the time prescribed in this Agreement shall
be conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Certificates Nonassessable and Fully Paid.
It is the intention of the Securities Administrator that Certificateholders
shall not be personally liable for obligations of the Trust Estate, that the
beneficial ownership interests represented by the Certificates shall be
nonassessable for any losses or expenses of the Trust Estate or for any reason
whatsoever, and that Certificates upon execution, authentication and delivery
thereof by the Securities Administrator pursuant to Section 6.01 are and shall
be deemed fully paid.
Section 11.08 Access to List of Certificateholders.
The Certificate Registrar will furnish or cause to be furnished to the
Trustee and the Securities Administrator, within fifteen (15) days after the
receipt of a request by the Trustee and/or the Securities Administrator in
writing, a list, in such form as the Trustee and/or the Securities Administrator
may reasonably require, of the names and addresses of the Certificateholders as
of the most recent Record Date for payment of distributions to
Certificateholders.
If three or more Certificateholders apply in writing to the Securities
Administrator, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then the Securities
Administrator shall, within five (5) Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
most recent list of Certificateholders held by the Securities Administrator. If
such a list is as of a date more than 90 days prior to the date of receipt of
such applicants' request, the Securities Administrator shall promptly request
from the Certificate Registrar a current list as provided above, and shall
afford such applicants access to such list promptly upon receipt.
Every Certificateholder, by receiving and holding such list, agrees with
the Certificate Registrar and the Securities Administrator that neither the
Certificate Registrar nor the Securities Administrator shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
-132-
Section 11.09 Recharacterization.
The parties to this Agreement intend the conveyance by the Depositor to the
Trustee of all of its right, title and interest in and to the Mortgage Loans and
the related Mortgage Files, including all interest and principal received on or
with respect to the Mortgage Loans (other than payments of principal and
interest due and payable on the Mortgage Loans on or before the Cut-off Date)
and the Depositor's rights under the Mortgage Loan Purchase Agreement, including
the rights of the Depositor as assignee of the Sponsor with respect to the
Sponsor's rights under the Servicing Agreements pursuant to this Agreement to
constitute a purchase and sale and not a loan. Notwithstanding the foregoing, to
the extent that such conveyance is held not to constitute a sale under
applicable law, it is intended that this Agreement shall constitute a security
agreement under applicable law and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
Section 11.10 Regulation AB Compliance; Intent of the Parties;
Reasonableness.
The parties hereto acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise, and agree to
use its commercially reasonable efforts to comply with requests made by the
Depositor in good faith for delivery of information under these provisions on
the basis of evolving interpretations of Regulation AB. In connection with the
Trust, the Master Servicer, the Securities Administrator, the Trustee and the
Custodian shall cooperate fully with the Depositor to deliver to the Depositor
(including its assignees or designees), any and all statements, reports,
certifications, records and any other information available to such party and
reasonably necessary in the good faith determination of the Depositor to permit
the Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Master Servicer, the Securities Administrator, the
Trustee and the Custodian, as applicable, reasonably believed by the Depositor
to be necessary in order to effect such compliance.
Section 11.11 Third Party Beneficiary.
Nothing in this Agreement or in the Certificates, expressed or implied,
shall give to any Person, other than the Certificateholders, the parties hereto
and their successors hereunder, the NIMS Insurer and the Swap Provider, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
The NIMS Insurer and the Swap Provider shall each be deemed a third-party
beneficiary of this Agreement to the same extent as if each were a party hereto,
and shall have the right to enforce the provisions of this Agreement directly
against the parties to this Agreement.
-133-
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee have caused this Agreement to be duly executed by
their respective officers thereunto duly authorized to be hereunto affixed, all
as of the day and year first above written.
BANC OF AMERICA FUNDING CORPORATION,
as Depositor
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A., as Master Servicer
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
XXXXX FARGO BANK, N.A., as Securities
Administrator
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[Signature Page to the Pooling and Servicing Agreement]
-134-
STATE OF NORTH CAROLINA....)
) ss.:
COUNTY OF MECKLENBURG......)
)
On the 30th day of March, 2007, before me, a notary public in and for the
State of North Carolina, personally appeared Xxxxx Xxxxx, known to me who, being
by me duly sworn, did depose and say that he is a Senior Vice President of Banc
of America Funding Corporation, a Delaware corporation, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such corporation.
/s/ E. Xxxxx Xxxxxx
----------------------------------------
Notary Public
[Notarial Seal]
My commission expires October 4, 2010.
[Notary Page to the Pooling and Servicing Agreement]
-135-
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
)
On the 30th day of March, 2007, before me, a notary public in and for the
State of Maryland, personally appeared Xxxxxx Xxxxxx, known to me who, being by
me duly sworn, did depose and say that he is an Assistant Vice President of
Xxxxx Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Notary Public
[Notarial Seal]
My commission expires January 7, 2009.
[Notary Page to the Pooling and Servicing Agreement]
-136-
STATE OF MARYLAND )
) ss.:
COUNTY OF XXXXXX )
)
On the 30th day of March, 2007, before me, a notary public in and for the
State of Maryland, personally appeared Xxxxxx Xxxxxx, known to me who, being by
me duly sworn, did depose and say that he is an Assistant Vice President of
Xxxxx Fargo Bank, N.A., a national banking association, one of the parties that
executed the foregoing instrument; and that he signed his name thereto by order
of the Board of Directors of such association.
/s/ Xxxxxx X. Xxxxxxx
----------------------------------
Notary Public
[Notarial Seal]
My commission expires January 7, 2009.
[Notary Page to the Pooling and Servicing Agreement]
-137-
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
)
On the 30th day of March, 2007, before me, a notary public in and for the
State of Illinois, personally appeared Xxxxxx X. Xxxxx, known to me who, being
by me duly sworn, did depose and say that she is a Vice President of U.S. Bank
National Association, a national banking association, one of the parties that
executed the foregoing instrument; and that she signed her name thereto by order
of the Board of Directors of such association.
/s/ Xxxxx Xxxxxx
-----------------------------
Notary Public
[Notarial Seal]
My commission expires January 17, 2011.
[Notary Page to the Pooling and Servicing Agreement]
-138-
EXHIBIT A-A1
[FORM OF FACE OF CLASS A-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
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") AND CERTAIN OTHER PROPERTY.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
A-A1-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class A-1
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $398,997,000.00
CUSIP No.: 05952E AA 4
ISIN No.: US05952EAA47
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
A-A1-2
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-A1-3
EXHIBIT A-A2
[FORM OF FACE OF CLASS A-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
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") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
AFTER THE AGGREGATE CLASS CERTIFICATE BALANCE OF THE MEZZANINE CERTIFICATES HAS
BEEN REDUCED TO ZERO, AND THE OVERCOLLATERALIZATION AMOUNT IS ZERO, THE
PRINCIPAL PORTION OF REALIZED LOSSES ALLOCATED TO THE CLASS A-1 CERTIFICATES
WILL BE BORNE BY THE CLASS A-2 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
A-A2-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class A-2
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $44,332,000.00
CUSIP No.: 05952E AB 2
ISIN No.: US05952EAB20
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
A-A2-2
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
A-A2-3
EXHIBIT B-M1
[FORM OF FACE OF CLASS M-1 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-1
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M1-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M1-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-1
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $7,526,000.00
CUSIP No.: 05952E AC 0
ISIN No.: US05952EAC03
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
B-M1-3
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M1-4
EXHIBIT B-M2
[FORM OF FACE OF CLASS M-2 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-2
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE CLASS M-1 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M2-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M2-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-2
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $3,293,000.00
CUSIP No.: 05952E AD8
ISIN No.: US05952EAD85
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
B-M2-3
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M2-4
EXHIBIT B-M3
[FORM OF FACE OF CLASS M-3 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-3
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS M-1 CERTIFICATES AND THE CLASS M-2 CERTIFICATES AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M3-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M3-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-3
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,352,000.00
CUSIP No.: 05952E AE 6
ISIN No.: US05952EAE68
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
B-M3-3
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M3-4
EXHIBIT B-M4
[FORM OF FACE OF CLASS M-4 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-4
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3
CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M4-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M4-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-4
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,352,000.00
CUSIP No.: 05952E AF 3
ISIN No.: US05952EAF34
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
B-M4-3
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M4-4
EXHIBIT B-M5
[FORM OF FACE OF CLASS M-5 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-5
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3
CERTIFICATES AND THE CLASS M-4 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M5-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M5-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-5
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,352,000.00
CUSIP No.: 05952E AG 1
ISIN No.: US05952EAG17
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
B-M5-3
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M5-4
EXHIBIT B-M6
[FORM OF FACE OF CLASS M-6 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-6
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3
CERTIFICATES, THE CLASS M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M6-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M6-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-6
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,587,000.00
CUSIP No.: 05952E AH 9
ISIN No.: US05952EAH99
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
B-M6-3
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M6-4
EXHIBIT B-M7
[FORM OF FACE OF CLASS M-7 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-7
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3
CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE
CLASS M-6 CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
B-M7-1
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M7-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-7
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,587,000.00
CUSIP No.: 05952E AJ 5
ISIN No.: US05952EAJ55
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
B-M7-3
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M7-4
EXHIBIT B-M8
[FORM OF FACE OF CLASS M-8 CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-8
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE CLASS M-1 CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3
CERTIFICATES, THE CLASS M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS
M-6 CERTIFICATES AND THE CLASS M-7 CERTIFICATES AS DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FOR SO LONG AS THE SUPPLEMENTAL INTEREST TRUST IS IN EXISTENCE, NO TRANSFER OF
THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT),
SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE POOLING AND
SERVICING AGREEMENT REFERENCED HEREIN.
B-M8-1
IN THE EVENT THAT THIS CERTIFICATE IS NO LONGER RATED AT LEAST BBB- OR ITS
EQUIVALENT, NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING
AND SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF
THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-M8-2
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class M-8
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable interest rate mortgage
loans (the "Mortgage Loans") secured by first liens on one- to four-family
residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $
Initial Class Certificate
Balance of this Class: $2,352,000.00
CUSIP No.: 05952E AK 2
ISIN No.: US05952EAK29
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 March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
B-M8-3
Securities Administrator or the Trustee or any of their respective affiliates.
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Interest will accrue on these Certificates at a per annum rate as provided
in the Pooling and Servicing Agreement.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-M8-4
EXHIBIT B-CE
[FORM OF FACE OF CLASS CE CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class CE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER PROPERTY.
THE CLASS CE CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
AND THE MEZZANINE CERTIFICATES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO A PLAN (AS DEFINED IN THE POOLING AND
SERVICING AGREEMENT) SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION 6.02 OF THE
POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
B-CE-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class CE
evidencing an interest in a Trust consisting primarily of a pool of
fully-amortizing and negatively-amortizing adjustable-rate mortgage loans (the
"Mortgage Loans") secured by first liens on one to four family residential
properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.: 1
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Percentage Interest:
CUSIP No.: 05952E AL 0
ISIN No.: US05952EAL02
THIS CERTIFIES THAT __________ is the registered owner of the Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting primarily of the Mortgage Loans deposited by Banc
of America Funding Corporation (the "Depositor"). The Trust was created pursuant
to a Pooling and Servicing Agreement, dated March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
The Class CE Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Pooling and Servicing Agreement.
Further, no transfer of a Class CE Certificate shall be made to a Plan (as
defined in the Pooling and Servicing Agreement) except as provided in Section
6.02 of the Pooling and Servicing Agreement.
This Certificate does not evidence an obligation of, or an interest in, and
is not guaranteed by the Depositor, the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
B-CE-2
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-2, which
certificates shall not be an expense of the Securities Administrator or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Sponsor, their affiliates or both. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Securities Administrator and the Depositor against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement or be valid for any purpose unless manually authenticated by
an authorized signatory of the Securities Administrator.
* * *
B-CE-3
EXHIBIT B-R
[FORM OF FACE OF CLASS R CERTIFICATE]
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
THE CLASS R CERTIFICATE WILL NOT BE ENTITLED TO PAYMENTS UNTIL SUCH TIME AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES,
THE MEZZANINE CERTIFICATES AND THE CLASS CE CERTIFICATE AS DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE
WITH THE PROVISIONS OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.
THIS CLASS R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PLAN (AS
DEFINED IN THE POOLING AND SERVICING AGREEMENT).
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS CLASS R CERTIFICATE IN VIOLATION OF SUCH
RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN THE
PURPORTED TRANSFEREE.
B-R-1
BANC OF AMERICA FUNDING CORPORATION
Mortgage Pass-Through Certificates, Series 2007-B
Class 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 fully-amortizing and negatively-amortizing adjustable
interest rate mortgage loans (the "Mortgage Loans") secured by first liens on
one to four family residential properties deposited by
Banc of America Funding Corporation, as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 20, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $100.00
Initial Class Certificate
Balance of this Class: $100.00
CUSIP No.: 05952E AM 8
ISIN No.: US05952EAM84
THIS CERTIFIES THAT __________ is the registered owner of 100% Percentage
Interest evidenced by this Certificate in certain monthly distributions with
respect to a Trust consisting of the Mortgage Loans deposited by Banc of America
Funding Corporation (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 30, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), and U.S. Bank National Association, as trustee (the "Trustee").
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Principal in respect of this Certificate is distributable monthly as set
forth in the Pooling and Servicing Agreement. Accordingly, the Certificate
Balance of this Certificate at any time may be less than the Certificate Balance
as set forth herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Master Servicer, the
Securities Administrator or the Trustee or any of their respective affiliates.
B-R-2
Neither this Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the applicable
subaccounts of the Certificate Account will be made only upon presentment and
surrender of this Class R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 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 R
Certificate are expressly subject to the following provisions: (i) each Person
holding or acquiring this Class 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 R Certificate unless such ownership
interest is a pro rata undivided interest; (iii) in connection with any proposed
transfer of this Class R Certificate, the Securities Administrator shall require
delivery to it, in form and substance satisfactory to it, of an affidavit in the
form of Exhibit I to the Pooling and Servicing Agreement and an affidavit in the
form of Exhibit T to the Pooling and Servicing Agreement; (iv) notwithstanding
the delivery of an affidavit by a proposed transferee under clause (iii) above,
if a Responsible Officer of the Securities Administrator has actual knowledge
that the proposed transferee is not a Permitted Transferee, no transfer of any
Ownership Interest in this Class R Certificate to such proposed transferee shall
be effected; (v) this Class 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
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
R Certificate will not be disregarded for federal income tax purposes; (vi) any
attempted or purported transfer of this Class 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 R Certificate in violation of such
restrictions, then the Securities Administrator, based on information provided
to the Securities Administrator by the Master Servicer, will provide to the
Internal Revenue Service, and to the Persons specified in Section 860E(e)(3) and
(6) of the Code, information needed to compute the tax imposed under Section
860E(e) of the Code on transfers of residual interests to disqualified
organizations.
This Class R Certificate may not be purchased by or transferred to any Plan
(as defined in the Pooling and Servicing Agreement).
No transfer of a Certificate of this Class shall be made unless such
transfer is exempt from the registration requirements of the Securities Act of
1933, as amended (the "1933 Act"), and any applicable state securities laws or
is made in accordance with the 1933 Act and such laws. In the event of any such
transfer, (i) unless the transfer is made in reliance on Rule 144A under the
1933 Act, the Securities Administrator or the Depositor may require a written
Opinion of Counsel (which may be in-house counsel) acceptable to and in form and
substance reasonably satisfactory to the Securities Administrator and the
B-R-3
Depositor that such transfer may be made pursuant to an exemption, describing
the applicable exemption and the basis therefor, from the 1933 Act and such laws
or is being made pursuant to the 1933 Act and such laws, which Opinion of
Counsel shall not be an expense of the Securities Administrator or the Depositor
and (ii) the Securities Administrator shall require a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-1 and a certificate
from such Certificateholder's prospective transferee substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit G-2, 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 Residual Certificate between or among the
Depositor, the Sponsor, their affiliates or both. The Holder of a Residual
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-R-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 Certificate Account for
payment hereunder and that the Securities Administrator is not liable to the
Certificateholders for any amount payable under this Certificate or the Pooling
and Servicing Agreement or, except as expressly provided in the Pooling and
Servicing Agreement, subject to any liability under the Pooling and Servicing
Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to the Pooling and Servicing Agreement for the
interests, rights and limitations of rights, benefits, obligations and duties
evidenced thereby, and the rights, duties and immunities of the Securities
Administrator.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 20th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement.
On each Distribution Date, the Securities Administrator shall distribute
out of the Certificate Account to each Certificateholder of record on the
related Record Date (other than respecting the final distribution) (a) by check
mailed to such Certificateholder entitled to receive a distribution on such
Distribution Date at the address appearing in the Certificate Register, or (b)
upon written request by the Holder of a Certificate (other than a Residual
Certificate), by wire transfer or by such other means of payment as such
Certificateholder and the Securities Administrator shall agree upon, such
Certificateholder's Percentage Interest in the amount to which the related Class
of Certificates is entitled in accordance with the priorities set forth in
Article V of the Pooling and Servicing Agreement. The final distribution on each
Certificate will be made in like manner, but only upon presentation and
surrender of such Certificate to the Securities Administrator as contemplated by
Section 10.01 of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Securities Administrator and the rights of the
Certificateholders under the Pooling and Servicing Agreement at any time by the
C-1
Depositor, the Master Servicer, the Securities Administrator and the Trustee
with the consent of the Holders of Certificates affected by such amendment
evidencing the requisite Percentage Interest, as provided in the Pooling and
Servicing Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange therefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Pooling and Servicing Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register of the Securities Administrator upon surrender of
this Certificate for registration of transfer at the Corporate Trust Office of
the Securities Administrator accompanied by a written instrument of transfer in
form satisfactory to the Securities Administrator and the Certificate Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Depositor, the Master Servicer, the Certificate Registrar, the
Securities Administrator and the Trustee and any agent of the Depositor, the
Master Servicer, the Certificate Registrar, the Securities Administrator or the
Trustee may treat the Person in whose name this Certificate is registered as the
owner hereof for all purposes, and none of the Depositor, the Master Servicer,
the Certificate Registrar, the Trustee, the Securities Administrator or any such
agent shall be affected by any notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than 10% of the aggregate unpaid principal balance of
the Mortgage Loans as of the Cut-off Date, certain parties specified in the
Pooling and Servicing Agreement have the option to purchase such Mortgage Loans
and related REO Properties under the conditions set forth in Section 10.01 of
the Pooling and Servicing Agreement. In the event that no such terminations
occur, the obligations and responsibilities created by the Pooling and Servicing
Agreement will terminate upon the later of the maturity or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan remaining in the
Trust or the disposition of all property in respect thereof and the distribution
to Certificateholders of all amounts required to be distributed pursuant to the
C-2
Pooling and Servicing Agreement. In no event shall the Trust created by the
Pooling and Servicing Agreement continue beyond the expiration of 21 years from
the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
thereof.
Any term used herein that is defined in the Pooling and Servicing Agreement
shall have the meaning assigned in the Pooling and Servicing Agreement, and
nothing herein shall be deemed inconsistent with that meaning.
C-3
IN WITNESS WHEREOF, the Securities Administrator has caused this
Certificate to be duly executed.
Dated:
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By______________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and Servicing
Agreement referenced herein.
XXXXX FARGO BANK, N.A.,
as Securities Administrator
By_______________________________
Authorized Signatory
C-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Securities Administrator to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated:
_______________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________ for the
account of ___________________, account number _________________________, or, if
mailed by check, to Applicable statements should be mailed to
This information is provided by , the assignee named above, or, as its
agent.
C-5
EXHIBIT D
MORTGAGE LOAN SCHEDULE
[Please see the Free Writing Prospectus filed and
accepted by the Securities and Exchange
Commission on March 29, 2007, with a filing
date of March 29, 2007 and accession number
0001379434-07-000055.]
D-1
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[Date]
To: U.S. Bank National Association
0000 Xxxxxxxxxxxx Xx., Xxxxx X
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Re: The Pooling and Servicing Agreement dated March 30, 2007, among Banc of
America Funding Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as
Securities Administrator and Master Servicer, and U.S. Bank National
Association, as Trustee.
In connection with the administration of the Mortgage Loans held by you, as
Custodian, pursuant to the above-captioned Pooling and Servicing Agreement, we
request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one)
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By:_________________________________
(authorized signer of Servicer)
Issuer:_____________________________
Address:____________________________
____________________________________
Date:_______________________________
E-1
Custodian
U.S. Bank National Association
Please acknowledge the execution of the above request by your signature and date
below:
---------------------------------- ---------------
Signature Date
Documents returned to Custodian:
----------------------------------- ----------------
Custodian Date
E-2
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
March 30, 2007
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated March 30, 2007, among Banc of America Funding Corporation, as Depositor,
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master Servicer, and
U.S. Bank National Association, as Trustee.
[---------------],
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
F-1
EXHIBIT G-1
FORM OF TRANSFEROR'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-B
Re: Banc of America Funding Corporation, Mortgage Pass-Through Certificates,
Series 2007-B, Class _____
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 March 30, 2007, among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and U.S. Bank National Association, as Trustee. All capitalized terms
used herein and not otherwise defined shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferor hereby certifies,
represents and warrants to you, as Securities Administrator, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of the Transferred
Certificates under the Securities Act of 1933, as amended (the "1933 Act"),
would render the disposition of the Transferred Certificates a violation of
Section 5 of the 1933 Act or any state securities laws, or would require
G-1-1
registration or qualification of the Transferred Certificates pursuant to
the 1933 Act or any state securities laws.
Very truly yours,
________________________________________
(Transferor)
By:______________________________________
Name::___________________________________
Title::__________________________________
G-1-2
EXHIBIT G-2
FORM OF TRANSFEREE'S CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-B
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2007-B, Class ____
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 March 30, 2007, among Banc of America Funding
Corporation, as Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator
and Master Servicer, and U.S. Bank National Association, as Trustee. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Securities
Administrator, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "1933 Act"), and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificate, and (f) all related matters, that it has
requested.
G-2-1
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-2-2
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-2-3
ANNEX 1 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator with respect
to the mortgage pass-through certificates (the "Transferred Certificates")
described in the Transferee certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the state
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Transferred Certificates in the case of a U.S. bank, and
not more than 18 months preceding such date of sale in the case
of a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision
over any such institutions, or is a foreign savings and loan
________________________
(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-2-4
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.
G-2-5
Further,in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for theTransferee'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-2-6
ANNEX 2 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") Xxxxx Fargo Bank, N.A., as Securities Administrator, with respect
to the mortgage pass-through certificates (the "Transferred Certificates")
described in the Transferee certificate to which this certification relates and
to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$__________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other
than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
G-2-7
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for theTransferee'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-2-8
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services - BAFC 2007-B
Re: Banc of America Funding Corporation, Mortgage Pass-Through
Certificates, Series 2007-B, Class ___
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
March 30, 2007, among Banc of America Funding Corporation, as Depositor, Xxxxx
Fargo Bank, N.A., as Securities Administrator and Master Servicer, and U.S. Bank
National Association, as Trustee. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Pooling
and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as
Securities Administrator, either that:
(a) it is not an employee benefit plan or arrangement, subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or a
Person acting on behalf of, or using the assets of, any such employee benefit
plan or arrangement (collectively, a "Plan") to effect the purchase of the
Transferred Certificates; or
(b) with respect to any ERISA Restricted Certificate other than a Class CE
or Class R Certificate, it is an insurance company using funds from an
"insurance company general account" (as defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60"), 60 Fed. Reg. 35925 (July 12,
1995)), to purchase the Transferred Certificates and the purchase and holding of
the Transferred Certificates are covered by Section I and Section III of PTCE
95-60.
H-1
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
------------------------------------------------
(Transferee)
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Date:
-------------------------------------------
H-2
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2007-B
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 R Certificate (the "Residual
Certificate") issued pursuant to the Pooling and Servicing Agreement, dated
March 30, 2007 (the "Agreement"), among Banc of America Funding Corporation, as
Depositor, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer, and U.S. Bank National Association, as Trustee. Capitalized terms used
but not defined herein shall have the meanings ascribed to such terms in the
Agreement. The Transferee has authorized the undersigned to make this affidavit
on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date of
the transfer, a Permitted Transferee. The Transferee is acquiring the Residual
Certificate either (i) for its own account or (ii) as nominee, trustee or agent
for another Person who is a Permitted Transferee and has attached hereto an
affidavit from such Person in substantially the same form as this affidavit. The
Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
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
I-1
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Securities Administrator a certificate
substantially in the form set forth in Exhibit W to the Agreement (a "Transferor
Certificate") to the effect that such Transferee has no actual knowledge that
the Person to which the Transfer is to be made is not a Permitted Transferee and
no reason to believe that the statements in such Person's transfer affidavit are
false.
7. The Transferee historically has paid its debts as they have become due,
and it intends to do so in the future.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's (or the
Transferee's nominee, if applicable) is ___________.
10. The Transferee is a (i) U.S. Person as defined in Code Section
7701(a)(30) or (ii) (A) the Transferee holds the Residual Certificate in
connection with the conduct of a trade or business within the United States and
has furnished the transferor and the Securities Administrator with an effective
Internal Revenue Service Form W-8ECI (or successor thereto) or (B) the
Transferee has delivered to both the transferor and the Securities Administrator
an Opinion of Counsel from a nationally-recognized tax counsel to the effect
that such transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Residual
Certificate will not be disregarded for federal income tax purposes..
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
I-2
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 Title I of ERISA or
Section 4975 of the Code, and the Transferee is not acting on behalf of, or
using assets of, such an employee benefit plan or arrangement.
15. The Transferee understands that it may incur tax liabilities with
respect to the Residual Certificate in excess of cash flows generated thereby.
16. The Transferee intends to pay taxes associated with holding the
Residual Certificate as such taxes become due.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
----------------------------------------------------
Print Name of Transferee
By:
-------------------------------------------------
Name:
Title:
Personally appeared before me the above-named
______________________________, known or proved to me to be the same person who
executed the foregoing instrument and to be the _______________________ of the
Transferee, and acknowledged that he executed the same as his free act and deed
and the free act and deed of the Transferee.
Subscribed and sworn before me this _____ day of _______________________,
____
---------------------------------------
NOTARY PUBLIC
My Commission expires the ____ day of
_______________________________, ____
I-4
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
/ / The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the anticipated
savings associated with holding such Residual Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Transferee.
OR
/ / The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's two
fiscal years preceding the year of the transfer, the Transferee had
gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning of
U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of
$100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to another
"eligible corporation," as defined in U.S. Treasury Regulations
Section 1.860E-1(c)(6)(i), in a transaction that satisfies the
requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section
1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to acquire
the Residual Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and reinvestment assumptions,
tax rates and other factors specific to the Transferee) that it has
determined in good faith; and
I-5
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of such
transferee's purchase of the Residual Certificate.
I-6
EXHIBIT J
LIST OF RECORDATION STATES
Florida
Maryland
J-1
EXHIBIT K
FORM OF INITIAL CERTIFICATION OF THE [TRUSTEE] [CUSTODIAN]
March 30, 0000
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - BAFC 2007-B
Re: The Pooling and Servicing Agreement, dated March 30, 2007 (the
"Pooling and Servicing Agreement"), among the Depositor, Xxxxx Fargo
Bank, N.A., as securities administrator and master servicer, and U.S.
Bank National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as [Trustee] [Custodian], hereby certifies that, except as
specified in any list of exceptions attached hereto, it has received the
original Mortgage Note relating to each of the Mortgage Loans listed on the
Mortgage Loan Schedule.
The [Trustee] [Custodian] has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this Initial
Certification. The [Trustee] [Custodian] makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
K-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
[U.S. BANK NATIONAL
ASSOCIATION, as Trustee]
[----------------------,
as Custodian]
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
K-2
EXHIBIT L
FORM OF FINAL CERTIFICATION OF THE [TRUSTEE] [CUSTODIAN]
[---------- --, ----]
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - BAFC 2007-B
Re: The Pooling and Servicing Agreement, dated March 30, 2007 (the
"Pooling and Servicing Agreement"), among the Depositor, Xxxxx Fargo
Bank, N.A., as securities administrator and master servicer, and U.S.
Bank National Association, as trustee.
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as [Trustee] [Custodian], hereby certifies that, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in any list of exceptions attached hereto, such Mortgage File contains all of
the items required to be delivered pursuant to Section 2.01(b) of the Pooling
and Servicing Agreement.
The [Trustee] [Custodian] has made no independent examination of any
documents contained in each Mortgage File beyond the review specifically
required in the Pooling and Servicing Agreement in connection with this Final
Certification. The [Trustee] [Custodian] makes no representations as to: (i) the
validity, legality, sufficiency, enforceability, recordability or genuineness of
any of the documents contained in each Mortgage File or any of the Mortgage
Loans identified in the Mortgage Loan Schedule or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
L-1
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
[U.S. BANK NATIONAL ASSOCIATION,
as Trustee]
[--------------------------,
as Custodian]
By:
-----------------------------
Name:
---------------------------
Title:
-------------------------
L-2
EXHIBIT M
FORM OF XXXXXXXX-XXXXX CERTIFICATION
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2007-B
I, [________], a [_____________] of Xxxxx Fargo Bank, N.A. (the "Master
Servicer"), certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on
Form 10-K of the Banc of America Funding 2007-B Trust (the "Exchange Act
periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with
respect to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered
by this report is included in the Exchange Act periodic reports;
4. I am responsible for reviewing the activities performed by the master
servicer and based on my knowledge and the compliance review conducted in
preparing the master servicer compliance statement required in this report
under Item 1123 of Regulation AB, and except as disclosed in the Exchange
Act periodic reports, the master servicer has fulfilled its obligations
under the pooling and servicing agreement in all material respects; and
5. All of the reports on assessment of compliance with the servicing criteria
for asset-backed securities and their related attestation reports on
assessment of compliance with servicing criteria for asset-backed
securities required to be included in this report in accordance with Item
1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d- 18 have been
included as an exhibit to this report, except as otherwise disclosed in
this report. Any material instances of noncompliance described in such
reports have been disclosed in this report on Form 10-K.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Bank of America, National
Association and Countrywide Home Loans Servicing LP.
[_________], 20[__]
M-1
EXHIBIT N
RELEVANT SERVICING CRITERIA
----------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
----------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any Master Servicer and Securities
performance or other triggers and events of default in Administrator
accordance with the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to Master Servicer and Securities
third parties, policies and procedures are instituted Administrator
to monitor the third party's performance and compliance
with such servicing activities.
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to Not applicable
maintain a back-up servicer for the
mortgage loans are maintained.
----------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in Master Servicer
effect on the party participating in the servicing
function throughout the reporting period in the
amount of coverage required by and otherwise in
accordance with the terms of the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the Master Servicer and Securities
appropriate custodial bank accounts and related bank Administrator
clearing accounts no more than two business days following
receipt, or such other number of days specified in the
transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an Master Servicer and Securities
obligor or to an investor are made only by Administrator
authorized personnel.
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, Master Servicer and
cash flows or distributions, and any interest or other Securities Administrator
fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash Master Servicer and Securities
reserve accounts or accounts established as a form of Administrator
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
transaction agreements.
----------------------------------------------------------------------------------------------------------------------
N-1
----------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
----------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured Master Servicer and Securities
depository institution as set forth in the transaction Administrator
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent Master Servicer and Securities
unauthorized access. Administrator
----------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all Master Servicer and Securities
asset-backed securities related bank accounts, including Administrator
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank
statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90
calendar days of their original identification, or such other
number of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Master Servicer and Securities
Commission, are maintained in accordance with the Administrator
transaction agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance
with timeframes and other terms set forth in the
transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total
unpaid principal balance and number of mortgage loans
serviced by the Servicer.
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in Master Servicer and Securities
accordance with timeframes, distribution priority Administrator
and other terms set forth in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two Master Servicer and Securities
business days to the Servicer's investor records, Administrator
or such other number of days specified in the transaction
agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports Master Servicer and Securities
agree with cancelled checks, or other form Administrator
of payment, or custodial bank statements.
----------------------------------------------------------------------------------------------------------------------
N-2
----------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
----------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------
Pool Asset Administration
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as Custodian
required by the transaction agreements or related mortgage
loan documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as Custodian
required by the transaction agreements
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
any conditions or requirements in the transaction
agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
unpaid principal balance.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements
and related pool asset documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during
the period a mortgage loan is delinquent in accordance with
the transaction agreements. Such records are maintained on
at least a monthly basis, or such other period specified in
the transaction agreements, and describe the entity's
activities in monitoring delinquent mortgage loans including,
for example, phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed temporary (e.g.,
illness or unemployment).
----------------------------------------------------------------------------------------------------------------------
N-3
----------------------------------------------------------------------------------------------------------------------
Servicing Criteria Parties Responsible
----------------------------------------------------------------------------------------------------------------------
Reference Criteria
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
the related mortgage loan documents.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number
of days specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related penalty
or expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior
to these dates, or such other number of days specified in the
transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless
the late payment was due to the obligor's error or
omission.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are Master Servicer and Securities
recognized and recorded in accordance with the transaction Administrator
agreements.
----------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Master Servicer and Securities
Item 1114(a)(1) through (3) or Item 1115 of Administrator
Regulation AB, is maintained as set forth in the
transaction agreements.
----------------------------------------------------------------------------------------------------------------------
N-4
EXHIBIT O
ADDITIONAL FORM 10-D DISCLOSURE
-------------------------------------------------------------------------------------------------------------------
ADDITIONAL FORM 10-D DISCLOSURE
---------------------------------------------------------- --------------------------------------------------------
Item on Form 10-D Party Responsible
---------------------------------------------------------- --------------------------------------------------------
Item 1: Distribution and Pool Performance Information Master Servicer
Securities Administrator
Any information required by 1121 which is NOT included Depositor
on the Monthly Statement
---------------------------------------------------------- --------------------------------------------------------
Item 2: Legal Proceedings
Any legal proceeding pending against the following entities or their respective
property, that is material to Certificateholders, including any proceeding known
to be contemplated by governmental authorities:
---------------------------------------------------------- --------------------------------------------------------
o Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator and
Depositor
---------------------------------------------------------- --------------------------------------------------------
o Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
---------------------------------------------------------- --------------------------------------------------------
o Depositor Depositor
---------------------------------------------------------- --------------------------------------------------------
o Trustee Trustee
---------------------------------------------------------- --------------------------------------------------------
o Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Custodian Custodian
---------------------------------------------------------- --------------------------------------------------------
o 1110(b) Originator Depositor
---------------------------------------------------------- --------------------------------------------------------
o Any 1108(a)(2) Servicer (other than the Master Master Servicer
Servicer or Securities Administrator)
---------------------------------------------------------- --------------------------------------------------------
o Any other party contemplated by 1100(d)(1) Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 3: Sale of Securities and Use of Proceeds Depositor
Information from Item 2(a) of Part II of Form 10-Q:
With respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued by the
issuing entity, whether or not registered, provide the sales and use of proceeds
information in Item 701 of Regulation S-K. Pricing information can be omitted if
securities were not registered.
---------------------------------------------------------- --------------------------------------------------------
Item 4: Defaults Upon Senior Securities Securities Administrator
Information from Item 3 of Part II of Form 10-Q:
O-1
Report the occurrence of any Event of Default (after
expiration of any grace period and provision of any
required notice)
---------------------------------------------------------- --------------------------------------------------------
Item 5: Submission of Matters to a Vote of Security Securities Administrator
Holders
Information from Item 4 of Part II of Form 10-Q
---------------------------------------------------------- --------------------------------------------------------
Item 6: Significant Obligors of Pool Assets Depositor
Item 1112(b) - Significant Obligor Financial Information*
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the Item.
---------------------------------------------------------- --------------------------------------------------------
Item 7: Significant Enhancement Provider Information
Item 1114(b)(2) - Credit Enhancement Provider Financial
Information*
---------------------------------------------------------- --------------------------------------------------------
o Determining applicable disclosure threshold Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Requesting required financial information or effecting Securities Administrator
incorporation by reference
---------------------------------------------------------- --------------------------------------------------------
Item 1115(b) - Derivative Counterparty Financial
Information*
---------------------------------------------------------- --------------------------------------------------------
o Determining current maximum probable exposure Depositor
---------------------------------------------------------- --------------------------------------------------------
o Determining current significance percentage Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Requesting required financial information or effecting Securities Administrator
incorporation by reference
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D for the distribution
period in which updated information
is required pursuant to the Items.
---------------------------------------------------------- --------------------------------------------------------
Item 8: Other Information Any party responsible for the applicable Form 8-K
Disclosure item
Disclose any information required to be reported on Form
8-K during the period covered by the Form 10-D but not
reported
---------------------------------------------------------- --------------------------------------------------------
Item 9: Exhibits
---------------------------------------------------------- --------------------------------------------------------
Monthly Statement to Certificateholders Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
Exhibits required by Item 601 of Regulation S-K, such as Depositor
material agreements
---------------------------------------------------------- --------------------------------------------------------
O-2
EXHIBIT P
ADDITIONAL FORM 10-K DISCLOSURE
-------------------------------------------------------------------------
ADDITIONAL FORM 10-K DISCLOSURE
---------------------------------------------------------- --------------------------------------------------------
Item on Form 10-K Party Responsible
---------------------------------------------------------- --------------------------------------------------------
Item 9B: Other Information Any party responsible for disclosure
items on Form 8-K Disclose any information required to be reported on Form 8-K
during the fourth quarter covered by the Form 10-K but not reported
---------------------------------------------------------- --------------------------------------------------------
Item 15: Exhibits, Financial Statement Schedules Securities Administrator
Depositor
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1112(b): Significant Obligors of Pool Assets
---------------------------------------------------------- --------------------------------------------------------
Significant Obligor Financial Information* Depositor
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the Item.
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1114(b)(2): Credit Enhancement Provider
Financial Information
---------------------------------------------------------- --------------------------------------------------------
o Determining applicable disclosure threshold Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Requesting required financial information or effecting Securities Administrator
incorporation by reference
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the Items.
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1115(b): Derivative Counterparty Financial
Information
---------------------------------------------------------- --------------------------------------------------------
o Determining current maximum probable exposure Depositor
---------------------------------------------------------- --------------------------------------------------------
o Determining current significance percentage Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Requesting required financial information or effecting Securities Administrator
incorporation by reference
---------------------------------------------------------- --------------------------------------------------------
*This information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the Items.
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1117: Legal Proceedings
Any legal proceeding pending against the following entities or their respective
property, that is material to Certificateholders, including any proceeding known
to be contemplated by governmental authorities:
---------------------------------------------------------- --------------------------------------------------------
o Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities Administrator and
Depositor
P-1
---------------------------------------------------------- --------------------------------------------------------
o Sponsor (Seller) Seller (if a party to the Pooling and Servicing
Agreement) or Depositor
---------------------------------------------------------- --------------------------------------------------------
o Depositor Depositor
---------------------------------------------------------- --------------------------------------------------------
o Trustee Trustee
---------------------------------------------------------- --------------------------------------------------------
o Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Custodian Custodian
---------------------------------------------------------- --------------------------------------------------------
o 1110(b) Originator Depositor
---------------------------------------------------------- --------------------------------------------------------
o Any 1108(a)(2) Servicer (other than the Master Master Servicer
Servicer or Securities Administrator)
---------------------------------------------------------- --------------------------------------------------------
o Any other party contemplated by 1100(d)(1) Depositor
---------------------------------------------------------- --------------------------------------------------------
Reg AB Item 1119: Affiliations and Relationships
---------------------------------------------------------- --------------------------------------------------------
Whether (a) the Sponsor (Seller), Depositor or Issuing Depositor as to (a)
Entity is an affiliate of the following parties, and (b) Sponsor/Seller as to
(a) to the extent known and material, any of the following parties are
affiliated with one another:
---------------------------------------------------------- --------------------------------------------------------
o Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Trustee Trustee
---------------------------------------------------------- --------------------------------------------------------
o Any other 1108(a)(3) servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Any 1110 Originator Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any 1112(b) Significant Obligor Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any other 1101(d)(1) material party Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
Whether there are any "outside the ordinary course Depositor as to (a)
business arrangements" other than would be obtained in Sponsor/Seller as to (a)
an arm's length transaction between (a) the Sponsor
(Seller), Depositor or Issuing Entity on the one hand,
and (b) any of the following parties (or their
affiliates) on the other hand, that exist currently or
within the past two years and that are material to a
Certificateholder's understanding of the Certificates:
---------------------------------------------------------- --------------------------------------------------------
o Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Trustee Trustee
---------------------------------------------------------- --------------------------------------------------------
o Any other 1108(a)(3) servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Any 1110 Originator Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any 1112(b) Significant Obligor Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
P-2
---------------------------------------------------------- --------------------------------------------------------
o Any other 1101(d)(1) material party Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
Whether there are any specific relationships involving Depositor as to (a) the
transaction or the pool assets between (a) the Sponsor/Seller as to (a) Sponsor
(Seller), Depositor or Issuing Entity on the one hand, and (b) any of the
following parties (or their affiliates) on the other hand, that exist currently
or within the past two years and that are material:
---------------------------------------------------------- --------------------------------------------------------
o Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Trustee Trustee
---------------------------------------------------------- --------------------------------------------------------
o Any other 1108(a)(3) servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Any 1110 Originator Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any 1112(b) Significant Obligor Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any 1114 Credit Enhancement Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any 1115 Derivate Counterparty Provider Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
o Any other 1101(d)(1) material party Depositor/Sponsor
---------------------------------------------------------- --------------------------------------------------------
P-3
EXHIBIT Q
FORM 8-K DISCLOSURE
-----------------------------------------------------------------------------
FORM 8-K DISCLOSURE INFORMATION
---------------------------------------------------------- --------------------------------------------------------
Item on Form 8-K Party Responsible
---------------------------------------------------------- --------------------------------------------------------
Item 1.01- Entry into a Material Definitive Agreement All parties, but only to the extent they are a party
Disclosure is required regarding entry into or amendment of any definitive
agreement that is material to the securitization, even if depositor is not a
party.
Examples: servicing agreement, custodial agreement.
Note: disclosure not required as to definitive
agreements that are fully disclosed in the prospectus
---------------------------------------------------------- --------------------------------------------------------
Item 1.02- Termination of a Material Definitive Agreement All parties, but only
to the extent they are a party
Disclosure is required regarding termination of any definitive agreement that is
material to the securitization (other than expiration in accordance with its
terms), even if depositor is not a party.
Examples: servicing agreement, custodial agreement.
---------------------------------------------------------- --------------------------------------------------------
Item 1.03- Bankruptcy or Receivership Depositor
Disclosure is required regarding the bankruptcy or receivership, with respect to
any of the following:
---------------------------------------------------------- --------------------------------------------------------
o Sponsor (Seller) Depositor/Sponsor (Seller)
---------------------------------------------------------- --------------------------------------------------------
o Depositor Depositor
---------------------------------------------------------- --------------------------------------------------------
o Master Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Affiliated Servicer Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Other Servicer servicing 20% or more of the pool Master Servicer
assets at the time of the report
---------------------------------------------------------- --------------------------------------------------------
o Other material servicers Master Servicer
---------------------------------------------------------- --------------------------------------------------------
o Trustee Trustee
---------------------------------------------------------- --------------------------------------------------------
o Securities Administrator Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
o Significant Obligor Depositor
---------------------------------------------------------- --------------------------------------------------------
o Credit Enhancer (10% or more) Depositor
---------------------------------------------------------- --------------------------------------------------------
o Derivative Counterparty Depositor
---------------------------------------------------------- --------------------------------------------------------
Q-1
o Custodian Custodian
---------------------------------------------------------- --------------------------------------------------------
Item 2.04- Triggering Events that Accelerate or Increase Depositor
a Direct Financial Obligation or an Obligation under an Master Servicer
Off-Balance Sheet Arrangement Securities Administrator
Includes an early amortization, performance trigger or other event, including
event of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure will be made of events other than waterfall triggers which are
disclosed in the monthly statements to the certificateholders.
---------------------------------------------------------- --------------------------------------------------------
Item 3.03- Material Modification to Rights of Security Securities Administrator
Holders Trustee
Depositor
Disclosure is required of any material modification to (with respect to each,
only to the extent they are a documents defining the rights of
Certificateholders, party) including the Pooling and Servicing Agreement.
---------------------------------------------------------- --------------------------------------------------------
Item 5.03- Amendments of Articles of Incorporation or Depositor
Bylaws; Change of Fiscal Year
Disclosure is required of any amendment "to the governing documents of the
issuing entity".
---------------------------------------------------------- --------------------------------------------------------
Item 6.01- ABS Informational and Computational Material Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 6.02- Change of Servicer or Securities Administrator Master Servicer/Securities Administrator/Depositor
Requires disclosure of any removal, replacement, substitution or addition of any
master servicer, affiliated servicer, other servicer servicing 10% or more of
pool assets at time of report, other material servicers or trustee.
---------------------------------------------------------- --------------------------------------------------------
Reg AB disclosure about any new master servicer is also Master Servicer
required.
---------------------------------------------------------- --------------------------------------------------------
Reg AB disclosure about any new Trustee is also required. Trustee
---------------------------------------------------------- --------------------------------------------------------
Item 6.03- Change in Credit Enhancement or External Depositor/Securities Administrator
Support
Covers termination of any enhancement in manner other than by its terms, the
addition of an enhancement, or a material change in the enhancement provided.
Q-2
Applies to external credit enhancements as well as derivatives.
---------------------------------------------------------- --------------------------------------------------------
Reg AB disclosure about any new enhancement provider is Depositor also required.
---------------------------------------------------------- --------------------------------------------------------
Item 6.04- Failure to Make a Required Distribution Securities Administrator
---------------------------------------------------------- --------------------------------------------------------
Item 6.05- Securities Act Updating Disclosure Depositor
If any material pool characteristic differs by 5% or more at the time of
issuance of the securities from the description in the final prospectus, provide
updated Reg AB disclosure about the actual asset pool.
---------------------------------------------------------- --------------------------------------------------------
If there are any new servicers or originators required Depositor to be disclosed
under Regulation AB as a result of the foregoing, provide the information called
for in Items 1108 and 1110 respectively.
---------------------------------------------------------- --------------------------------------------------------
Item 7.01- Reg FD Disclosure Depositor
---------------------------------------------------------- --------------------------------------------------------
Item 8.01- Other Events Depositor
Any event, with respect to which information is not otherwise called for in
Form 8-K, that the registrant
deems of importance to certificateholders.
---------------------------------------------------------- --------------------------------------------------------
Item 9.01- Financial Statements and Exhibits Responsible party for reporting/disclosing the
financial statement or exhibit
---------------------------------------------------------- --------------------------------------------------------
Q-3
EXHIBIT R
FORM OF BACK-UP CERTIFICATION
Banc of America Funding Corporation
Mortgage Pass-Through Certificates,
Series 2007-B
The Securities Administrator hereby certifies to the Master Servicer, and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[____] (the "Annual Report"), and all reports on Form 10-D required to be filed
in respect of period covered by the Annual Report (collectively with the Annual
Report, the "Reports"), of the Trust;
2. To my knowledge, (a) the Reports, taken as a whole, do not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by the
Annual Report, and (b) the Securities Administrator's assessment of compliance
and related attestation report referred to below, taken as a whole, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
such assessment of compliance and attestation report;
3. To my knowledge, the distribution information required to be provided by
the Securities Administrator under the Pooling and Servicing Agreement for
inclusion in the Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the
Securities Administrator under the Pooling and Servicing Agreement, and based on
my knowledge and the compliance review conducted in preparing the compliance
statement of the Securities Administrator required by the Pooling and Servicing
Agreement, and except as disclosed in the Reports, the Securities Administrator
has fulfilled its obligations under the Pooling and Servicing Agreement in all
material respects; and
5. The report on assessment of compliance with servicing criteria
applicable to the Securities Administrator for asset-backed securities of the
Securities Administrator and each Subcontractor utilized by the Securities
Administrator and related attestation report on assessment of compliance with
servicing criteria applicable to it required to be included in the Annual Report
in accordance with Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and
15d-18 has been included as an exhibit to the Annual Report. Any material
instances of non-compliance are described in such report and have been disclosed
in the Annual Report.
In giving the certifications above, the Securities Administrator has
reasonably relied on information provided to it by the following unaffiliated
parties: [names of servicer(s), master servicer, subservicer, depositor,
trustee, custodian(s)]
R-1
Date: ______________________________
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:
-----------------------------------------
Name:
Title:
R-2
EXHIBIT S
FORM OF ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO 000-000-0000 AND VIA EMAIL TO
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx AND VIA OVERNIGHT MAIL TO THE ADDRESSES
IMMEDIATELY BELOW**
Xxxxx Fargo Bank, N.A., as Securities Administrator
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services- BAFC 2007-B--SEC REPORT PROCESSING
with copies to:
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Senior Vice President
Bank of America Legal Department
000 Xxxxx Xxxxx Xxxxxx
101 X. Xxxxx St., 30th Floor
NC1-002-29-01
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Associate General Counsel
RE: **Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section [ ] of the Pooling and Servicing Agreement, , dated
as of [ ][ ], 2007, among [ ], as [ ], [ ], as [ ], [ ], as [ ] and [ ], as [ ].
the undersigned, as [ ], hereby notifies you that certain events have come to
our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
S-1
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [ ], phone
number: [ ]; email address: [ ].
[NAME OF PARTY],
as [role]
By: ________________________________________
Name:
Title:
S-1
EXHIBIT T
FORM OF TRANSFEROR CERTIFICATE FOR RESIDUAL CERTIFICATE
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services - BAFC 0000-X
Xxxx xx Xxxxxxx Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Banc of America Funding Corporation Mortgage Pass-Through
Certificates, Series 2007-B
Ladies and Gentlemen:
In connection with our disposition of the BAFC Mortgage Pass-Through
Certificates, Series 2007-B, Class R Certificate, we certify that we have no
knowledge that the transferee is not a Permitted Transferee and we have no
reason to believe that the statements made in the transferee's Affidavit
Regarding Transfer of Residual Certificate are false.
Very truly yours,
---------------------]
T-1
EXHIBIT U
INTEREST RATE SWAP AGREEMENT
[Included as Exhibit 10.2 to the Current Report on Form 8-K
pursuant to which this Pooling and Servicing Agreement is filed.]
U-1
EXHIBIT V
INTEREST RATE CAP AGREEMENT
[Included as Exhibit 10.3 to the Current Report on Form 8-K
pursuant to which thisPooling and Servicing Agreement is filed.]
V-1
