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BANC OF AMERICA MORTGAGE SECURITIES, INC.,
as Depositor,
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Servicer,
and
WELLS FARGO BANK, N.A.,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated March 29, 2007
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Interest Calculations........................................
Section 1.03 Fiscal Year..................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by the Trustee of the Mortgage Loans..............
Section 2.03 Representations and Warranties of the Servicer...............
Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans..............................................
Section 2.05 Designation of Interests in the REMICs.......................
Section 2.06 Designation of Start-up Day..................................
Section 2.07 REMIC Certificate Maturity Date..............................
Section 2.08 Execution and Delivery of Certificates.......................
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans...........................
Section 3.02 Subservicing; Enforcement of the Obligations of Servicer.....
Section 3.03 Fidelity Bond; Errors and Omissions Insurance................
Section 3.04 Access to Certain Documentation..............................
Section 3.05 Maintenance of Primary Insurance Policy; Claims;
Collections of BPP Mortgage Loan Payments...................
Section 3.06 Rights of the Depositor and the Trustee in Respect of the
Servicer....................................................
Section 3.07 Trustee to Act as Servicer...................................
Section 3.08 Collection of Mortgage Loan Payments; Servicer Custodial
Account; Certificate Account; Reserve Funds; and Yield
Maintenance Agreements......................................
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.............................................
Section 3.10 Access to Certain Documentation and Information Regarding
the Mortgage Loans..........................................
Section 3.11 Permitted Withdrawals from the Servicer Custodial Account
and Certificate Account.....................................
Section 3.12 Maintenance of Hazard Insurance..............................
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption Agreements....
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO Property......
Section 3.15 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.16 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee.........................
Section 3.17 Servicing Compensation.......................................
Section 3.18 Annual Statement as to Compliance............................
Section 3.19 Assessments of Servicing Compliance; Registered Public
Accounting Firm Attestation Reports.........................
Section 3.20 Advances.....................................................
Section 3.21 Modifications, Waivers, Amendments and Consents..............
Section 3.22 Reports to the Securities and Exchange Commission............
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate.......................................
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions................................................
Section 5.02 Priorities of Distributions..................................
Section 5.03 Allocation of Losses.........................................
Section 5.04 Statements to Certificateholders.............................
Section 5.05 Tax Returns and Reports to Certificateholders................
Section 5.06 Tax Matters Person...........................................
Section 5.07 Rights of the Tax Matters Person in Respect of the
Trustee.....................................................
Section 5.08 REMIC Related Covenants......................................
Section 5.09 Determination of LIBOR.......................................
Section 5.10 Grantor Trust Administration.................................
Section 5.11 Distributions................................................
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates.............................................
Section 6.02 Registration of Transfer and Exchange of Certificates........
Section 6.03 Transfer of Exchangeable REMIC Certificates and
Exchangeable Certificates...................................
Section 6.04 Exchanges of Exchangeable REMIC Certificates and
Exchangeable Certificates...................................
Section 6.06 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 6.07 Persons Deemed Owners........................................
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the Depositor and the Servicer......
Section 7.02 Merger or Consolidation of the Depositor or the Servicer......
Section 7.03 Limitation on Liability of the Depositor, the Servicer
and Others..................................................
Section 7.04 Depositor and Servicer Not to Resign.........................
Section 7.05 Assignment or Delegation of Duties by the Servicer...........
ARTICLE VIII
DEFAULT
Section 8.01 Events of Default............................................
Section 8.02 Remedies of Trustee..........................................
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default.....................................
Section 8.04 Action upon Certain Failures of the Servicer and upon
Event of Default............................................
Section 8.05 Trustee to Act; Appointment of Successor.....................
Section 8.06 Notification to Certificateholders...........................
ARTICLE IX
THE TRUSTEE
Section 9.01 Duties of Trustee............................................
Section 9.02 Certain Matters Affecting the Trustee........................
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans........
Section 9.04 Trustee May Own Certificates.................................
Section 9.05 Eligibility Requirements for Trustee.........................
Section 9.06 Resignation and Removal of Trustee...........................
Section 9.07 Successor Trustee............................................
Section 9.08 Merger or Consolidation of Trustee...........................
Section 9.09 Appointment of Co-Trustee or Separate Trustee................
Section 9.10 Authenticating Agents........................................
Section 9.11 Trustee's Fees and Expenses..................................
Section 9.12 Appointment of Custodian.....................................
Section 9.13 Paying Agents................................................
Section 9.14 Limitation of Liability......................................
Section 9.15 Trustee May Enforce Claims Without Possession of
Certificates................................................
Section 9.16 Suits for Enforcement........................................
Section 9.17 Waiver of Bond Requirement...................................
Section 9.18 Waiver of Inventory, Accounting and Appraisal Requirement....
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by the Depositor or Liquidation
of All Mortgage Loans.......................................
Section 10.02 Additional Termination Requirements..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement.....................................
Section 11.03 Limitation on Rights of Certificateholders...................
Section 11.04 Governing Law................................................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Certificates Nonassessable and Fully Paid....................
Section 11.08 Access to List of Certificateholders.........................
Section 11.09 Recharacterization...........................................
Section 11.10 Insolvency...................................................
Section 11.11 Regulation AB Compliance; Intent of Parties;
Reasonableness..............................................
EXHIBITS
Exhibit A-1 - Form of Face of Senior Certificates.................
Exhibit A-2 - Form of Face of Residual Certificate................
Exhibit B - Form of Face of Subordinate Certificate.............
Exhibit C - Form of Reverse of all Certificates.................
Exhibit D - Addresses for Requesting Mortgage Loan
Schedule ..........................................
Exhibit E - Request for Release of Documents....................
Exhibit F - Form of Certification of Establishment of
Account............................................
Exhibit G-1 - Form of Transferor's Certificate....................
Exhibit G-2A - Form 1 of Transferee's Certificate..................
Exhibit G-2B - Form 2 of Transferee's Certificate..................
Exhibit H - Form of Transferee Representation Letter for
ERISA Restricted Certificates......................
Exhibit I - Form of Affidavit Regarding Transfer of
Residual Certificate...............................
Exhibit J - Contents of Servicing File..........................
Exhibit K - Form of Special Servicing Agreement.................
Exhibit L - List of Recordation States..........................
Exhibit M - Form of Initial Certification of the Trustee........
Exhibit N - Form of Final Certification of the Trustee..........
Exhibit O - Form of Sarbanes-Oxley Certification................
Exhibit P - Form of Trustee's Certification.....................
Exhibit Q - Servicing Criteria..................................
Exhibit R-1 - Additional Form 10-D Information ...................
Exhibit R-2 - Additional Form 10-K Information ...................
Exhibit R-3 - Form 8-K Information ...............................
Exhibit S-1 - Class 3-A-11 Yield Maintenance Agreement............
Exhibit S-2 - Class 3-A-16 Yield Maintenance Agreement............
Exhibit T - Planned Balance Schedules and Targeted
Balance Schedules..................................
Exhibit U Combination Groups..................................
Exhibit V Form of Request for Exchange of Exchangeable
REMIC Certificates or Exchangeable
Certificates.......................................
POOLING AND SERVICING AGREEMENT
THIS POOLING AND SERVICING AGREEMENT, dated March 29, 2007, is
hereby executed by and among BANC OF AMERICA MORTGAGE SECURITIES, INC., as
depositor (together with its permitted successors and assigns, the "Depositor"),
BANK OF AMERICA, NATIONAL ASSOCIATION, as servicer (together with its permitted
successors and assigns, the "Servicer"), and WELLS FARGO BANK, N.A., 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 Servicer and the Trustee agree as follows:
PRELIMINARY STATEMENT
In exchange for the Certificates, the Depositor hereby conveys the
Trust Estate to the Trustee to create the Trust. The Trust Estate for federal
income tax purposes will be treated as three separate real estate mortgage
investment conduits (the "Upper-Tier REMIC," the "Middle-Tier REMIC" and the
"Lower-Tier REMIC," respectively, and each, a "REMIC"). The Certificates (other
than Exchangeable Certificates, the Class 3-A-R Certificate and the right of the
Class 3-A-11 and Class 3-A-16 Certificates to receive amounts from the
applicable Reserve Fund) are referred to collectively as the "Regular
Certificates" and shall constitute "regular interests" in the Upper-Tier REMIC.
The Uncertificated Middle-Tier Interests shall constitute the "regular
interests" in the Middle-Tier REMIC. The Uncertificated Lower-Tier Interests
shall constitute the "regular interests" in the Lower-Tier REMIC. The Class R-U
Interest shall be the sole "residual interest" in the Upper-Tier REMIC. The
Class R-M Interest shall be the sole "residual interest" in the Middle-Tier
REMIC. The Class R-L Interest shall be the sole "residual interest" in the
Lower-Tier REMIC. The Class 3-A-R Certificate shall represent ownership of the
Class R-U Interest, the Class R-M Interest and the Class R-L Interest. The
portion of the Trust Estate consisting of the Exchangeable Certificates, the
Reserve Funds and the Yield Maintenance Agreements and the right of the Class
3-A-11 and Class 3-A-16 Certificates to receive amounts from the applicable
Reserve Fund shall not be assets of any REMIC created hereunder, but rather
shall be assets of the Grantor Trust. The assets of the Grantor Trust, the
Certificates and the Uncertificated Lower-Tier Interests will represent the
entire beneficial ownership interest in the Trust. The "latest possible maturity
date" for federal income tax purposes of all interests created hereby will be
the REMIC Certificate Maturity Date.
The following tables set forth characteristics of the Certificates,
together with the minimum Denominations and integral multiples in excess thereof
in which the Classes of Certificates shall be issuable:
Initial Class Integral
Certificate Multiples in
Balance or Pass-Through Minimum Excess of
Classes Notional Amount Rate Denomination Minimum
- ------------ --------------- ------------ ------------ ------------
Class 1-A-1 $38,568,000.00 (2) $1,000 $1
Class 2-A-1 $63,977,000.00 (3) $1,000 $1
Class 2-A-2 $7,109,000.00 (3) $1,000 $1
Class 3-A-1 $13,980,000.00(1) 5.750% $1,000 $1
Class 3-A-2 $1,554,000.00(1) 5.750% $1,000 $1
Class 3-A-3 $647,250.00(1) 6.000% $100,000 $1
Class 3-A-4 $69,911,000.00(1) 5.500% $1,000 $1
Class 3-A-5 $5,825,916.00(1) 6.000% $100,000 $1
Class 3-A-6 $9,883,000.00(1) 5.500% $1,000 $1
Class 3-A-7 $823,583.00(1) 6.000% $100,000 $1
Class 3-A-8 $12,047,000.00(1) 5.500% $1,000 $1
Class 3-A-9 $1,003,916.00(1) 6.000% $100,000 $1
Class 3-A-10 $10,205,000.00 6.000% $1,000 $1
Class 3-A-11 $31,318,000.00 (4) $1,000 $1
Class 3-A-12 $31,318,000.00(1) (5) $1,000,000 $1
Class 3-A-13 $4,090,000.00(1) 6.000% $1,000 $1
Class 3-A-14 $10,000.00 6.000% $1,000 $1
Class 3-A-15 $10,000.00 6.000% $1,000 $1
Class 3-A-16 $30,000,000.00 (6) $1,000 $1
Class 3-A-17 $30,000,000.00(1) (7) $1,000,000 $1
Class 3-A-18 $15,534,000.00(1) 5.750% $1,000 $1
Class 3-A-19 $13,980,000.00(1) 6.000% $1,000 $1
Class 3-A-20 $1,554,000.00(1) 6.000% $1,000 $1
Class 3-A-21 $15,534,000.00(1) 6.000% $1,000 $1
Class 3-A-22 $5,644,000.00(1) 6.000% $1,000 $1
Class 3-A-23 $69,911,000.00(1) 5.750% $1,000 $1
Class 3-A-24 $69,911,000.00(1) 6.000% $1,000 $1
Class 3-A-25 $9,883,000.00(1) 5.750% $1,000 $1
Class 3-A-26 $9,883,000.00(1) 6.000% $1,000 $1
Class 3-A-27 $12,047,000.00(1) 5.750% $1,000 $1
Class 3-A-28 $12,047,000.00(1) 6.000% $1,000 $1
Class 3-A-29 $79,794,000.00(1) 5.500% $1,000 $1
Class 3-A-30 $79,794,000.00(1) 5.750% $1,000 $1
Class 3-A-31 $79,794,000.00(1) 6.000% $1,000 $1
Class 3-A-32 $91,841,000.00(1) 5.500% $1,000 $1
Class 3-A-33 $91,841,000.00(1) 5.750% $1,000 $1
Class 3-A-34 $91,841,000.00(1) 6.000% $1,000 $1
Class 3-A-35 $61,318,000.00(1) (8) $1,000,000 $1
Class 3-A-R $100.00 6.000% $100 N/A
Class 3-PO $575,818.00 (9) $25,000 $1
Class 3-IO $20,392,665.00 6.000% $1,000,000 $1
Class 4-A-1 $40,000,000.00 (10) $1,000 $1
Class M $7,302,000.00 (11) $25,000 $1
Class B-1 $3,562,000.00 (11) $25,000 $1
Class B-2 $4,097,000.00 (11) $25,000 $1
Class B-3 $3,028,000.00 (11) $25,000 $1
Class B-4 $1,959,000.00 (11) $25,000 $1
Class B-5 $1,603,000.00 (11) $25,000 $1
Class B-6 $1,424,996.00 (11) $25,000 $1
- ---------------
(1) Maximum Initial Class Certificate Balance or Maximum Initial Class
Notional Amount.
(2) Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 1 Mortgage Loans.
(3) Interest will accrue on these Certificates at a per annum rate equal to
the Net WAC of the Group 2 Mortgage Loans.
(4) During the initial Interest Accrual Period, interest will accrue on the
Class 3-A-11 Certificates at the rate of 5.920% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
3-A-11 Certificates at a per annum rate equal to (i) 0.600% plus (ii)
LIBOR, subject to a minimum rate of 0.600% and a maximum rate of 6.000%.
(5) During the initial Interest Accrual Period, interest will accrue on the
Class 3-A-12 Certificates at the rate of 0.0800% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
3-A-12 Certificates at a per annum rate equal to (i) 5.400% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of 5.400%.
(6) During the initial Interest Accrual Period, interest will accrue on the
Class 3-A-16 Certificates at the rate of 5.920% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
3-A-16 Certificates at a per annum rate equal to (i) 0.600% plus (ii)
LIBOR, subject to a minimum rate of 0.600% and a maximum rate of 6.000%.
(7) During the initial Interest Accrual Period, interest will accrue on the
Class 3-A-17 Certificates at the rate of 0.0800% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
3-A-17 Certificates at a per annum rate equal to (i) 5.400% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of 5.400%.
(8) During the initial Interest Accrual Period, interest will accrue on the
Class 3-A-35 Certificates at the rate of 0.0800% per annum. During each
Interest Accrual Period thereafter, interest will accrue on the Class
3-A-35 Certificates at a per annum rate equal to (i) 5.400% minus (ii)
LIBOR, subject to a minimum rate of 0.000% and a maximum rate of 5.400%.
(9) The Class 3-PO Certificates are Principal Only Certificates and will not
be entitled to distributions of interest.
(10) Interest will accrue on these Certificates at a per annum rate equal to
the weighted average (based on the Stated Principal Balances of the
Mortgage Loans on the Due Date in the month preceding the month of the
applicable Distribution Date) of the Net Mortgage Interest Rates of the
Mortgage Loans in Loan Group 1 and Loan Group 2.
(11) Interest will accrue on these Certificates at a per annum rate equal to
the weighted average (based on the Group Subordinate Amount for the
related Loan Group or Assumed Loan Group, as applicable) of (i) with
respect to Loan Group 1, the Net WAC of the Group 1 Mortgage Loans, (ii)
with respect to Loan Group 2, the Net WAC of the Group 2 Mortgage Loans,
(iii) with respect to Assumed Loan Group 3, 6.000% and (iv) with respect
to Assumed Loan Group 4, the Net WAC of the Group 3 Mortgage Loans.
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.
Accrued Certificate Interest: For any Distribution Date and each
interest-bearing Class (other than a Class of Exchangeable Certificates), one
month's interest accrued during the related Interest Accrual Period at the
applicable Pass-Through Rate on the applicable Class Certificate Balance or
Notional Amount.
Accretion Termination Date: (a) For the Class 3-A-14 Certificates
will be the earlier to occur of (i) the Distribution Date following the
Distribution Date on which the Class Certificate Balance of the Class 3-A-11
Certificates has been reduced to zero or (ii) the Senior Credit Support
Depletion Date and (b) for the Class 3-A-15 Certificates will be the earlier to
occur of (i) the Distribution Date following the Distribution Date on which the
Class Certificate Balances of the Class 3-A-11 and Class 3-A-14 Certificates
have been reduced to zero or (ii) the Senior Credit Support Depletion Date.
Additional Form 10-D Information: As defined in Section 3.22(b).
Additional Form 10-K Information: As defined in Section 3.22(c).
Additional Servicer: As defined in Section 3.02(e)
Adjusted Pool Amount: With respect to any Distribution Date and Loan
Group 1 and Loan Group 2, the Cut-off Date Pool Principal Balance of the
Mortgage Loans in such Loan Group minus the sum of (i) all amounts in respect of
principal received in respect of the Mortgage Loans in such Loan Group
(including, without limitation, amounts received as Monthly Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the Certificates on such
Distribution Date and all prior Distribution Dates and (ii) the principal
portion of all Realized Losses (other than Debt Service Reductions) incurred on
the Mortgage Loans in such Loan Group from the Cut-off Date through the end of
the month preceding such Distribution Date. With respect to any Distribution
Date and Assumed Loan Group 3 or Assumed Loan Group 4, the product of the (a)
the applicable Allocation Percentage and (b) the Cut-off Date Pool Principal
Balance of the Group 3 Mortgage Loans minus the sum of (i) all amounts in
respect of principal received in respect of the Group 3 Mortgage Loans
(including, without limitation, amounts received as Monthly Payments, Periodic
Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the Certificates on such
Distribution Date and all prior Distribution Dates and (ii) the principal
portion of all Realized Losses (other than Debt Service Reductions) incurred on
the Group 3 Mortgage Loans from the Cut-off Date through the end of the month
preceding such Distribution Date.
Adjusted Pool Amount (Non-PO Portion): With respect to any
Distribution Date and Loan Group or Assumed Loan Group, the difference between
the Adjusted Pool Amount for such Loan Group or Assumed Loan Group and the
Adjusted Pool Amount (PO Portion) for such Loan Group or Assumed Loan Group.
Adjusted Pool Amount (PO Portion): With respect to any Distribution
Date and Loan Group 1, Loan Group 2 and Assumed Loan Group 4 is equal to zero.
With respect to any Distribution Date and Assumed Loan Group 3, the sum of the
amounts, calculated as follows, with respect to all Outstanding Mortgage Loans
of Loan Group 3: the product of (i) the PO Percentage for each such Mortgage
Loan, (ii) 86.4254982888% and (iii) the remainder of (A) the Cut-off Date
Principal Balance of such Group 3 Mortgage Loan minus (B) the sum of (x) all
amounts in respect of principal received in respect of such Group 3 Mortgage
Loan (including, without limitation, amounts received as Monthly Payments,
Periodic Advances, Principal Prepayments, Liquidation Proceeds and Substitution
Adjustment Amounts) and distributed to Holders of the Certificates on such
Distribution Date and all prior Distribution Dates and (y) the principal portion
of any Realized Loss (other than a Debt Service Reduction) incurred on such
Group 3 Mortgage Loan from the Cut-off Date through the end of the month
preceding such Distribution Date.
Advance: A Periodic Advance or a Servicing Advance.
Aggregate Subordinate Percentage: As to any Distribution Date, the
aggregate Class Certificate Balance of the Subordinate Certificates divided by
the aggregate Pool Stated Principal Balance (Non-PO Portion) for Loan Group 1,
Loan Group 2, Assumed Loan Group 3 and Assumed Loan Group 4.
Agreement: This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
Allocation Percentage: With respect to any Distribution Date and
Loan Group 1 and Loan Group 2 is 100%, for Assumed Loan Group 3 is
86.4254982888% and for Assumed Loan Group 4 is 13.5745017112%.
Amount Held for Future Distribution: As to any Distribution Date and
Loan Group, the total of the amounts held in the Servicer Custodial Account at
the close of business on the preceding Determination Date on account of (i)
Principal Prepayments and Liquidation Proceeds received or made on the Mortgage
Loans in such Loan Group in the month of such Distribution Date and (ii)
payments which represent receipt of Monthly Payments on the Mortgage Loans in
such Loan Group in respect of a Due Date or Due Dates subsequent to the related
Due Date.
Ancillary Income: All prepayment premiums (if any), assumption fees,
late payment charges and all other ancillary income and fees with respect to the
Mortgage Loans.
Appraised Value: With respect to any Mortgaged Property, either (i)
the lesser of (a) the appraised value determined in an appraisal obtained by the
originator at origination of such Mortgage Loan or an automated valuation model
or tax assessed value (if permitted by the applicable mortgage loan program) 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 either in an appraisal obtained at the time of refinancing or
an automated valuation model or tax assessed value (if permitted by the
applicable mortgage loan program), 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 Insurance Policy in
force.
Assignment of Mortgage: An individual assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to give record notice of the sale of the Mortgage.
Assumed Loan Group: Either of Assumed Loan Group 3 or Assumed Loan
Group 4.
Assumed Loan Group 3: A loan group which represents for each
Distribution Date 86.4254982888% of each Group 3 Mortgage Loan.
Assumed Loan Group 4: A loan group which represents for each
Distribution Date 13.5745017112% of each Group 3 Mortgage Loan
Authenticating Agents: As defined in Section 9.10.
Bank of America: Bank of America, National Association, a national
banking association, or its successor in interest.
BBA: As defined in Section 5.09.
Book-Entry Certificate: Any Class 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 Bank of America
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 Bank of
America pursuant to Section 5 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 State of Minnesota, each state in which the servicing offices of
the Servicer are located or each state in which the Corporate Trust Office is
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 the Servicer pursuant to Section 3.23.
Buy-Down Agreement: An agreement governing the application of
Buy-Down Funds with respect to a Buy-Down Mortgage Loan.
Buy-Down Funds: Money advanced by a builder, seller or other
interested party to reduce a Mortgagor's monthly payment during the initial
years of a Buy-Down Mortgage Loan.
Buy-Down Mortgage Loan: Any Mortgage Loan in respect of which,
pursuant to a Buy-Down Agreement, the monthly interest payments made by the
related Mortgagor will be less than the scheduled monthly interest payments on
such Mortgage Loan, with the resulting difference in interest payments being
provided from Buy-Down Funds.
Calculated Principal Distribution: As defined in Section 5.03(d).
Certificate: Any of the Banc of America Alternative Loan Trust
2007-1 Mortgage Pass-Through Certificates, Series 2007-1 that are issued
pursuant to this Agreement.
Certificate Account: The Eligible Account created and maintained by
the Trustee pursuant to Section 3.08(c) in the name of the Trustee for the
benefit of the Certificateholders and designated "Wells Fargo Bank, N.A., in
trust for registered holders of Banc of America Alternative Loan Trust 2007-1,
Mortgage Pass-Through Certificates, Series 2007-1." The Certificate Account
shall be deemed to consist of four sub-accounts; one for each Group and a fourth
sub-account referred to herein as the Upper-Tier Certificate Sub-Account and the
Exchangeable Certificate Grantor Trust Account shall be deemed to be
sub-accounts of the Certificate Account. Funds in the Certificate Account shall
be held in trust for the Holders of the Certificates of such Group for the uses
and purposes set forth in this Agreement.
Certificate Balance: With respect to any Certificate (other than an
Exchangeable Certificate) at any date, the maximum dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the product of the Percentage Interest of such Certificate and the Class
Certificate Balance of the Class of Certificates of which such Certificate is a
part.
Certificate Custodian: Initially, Wells Fargo Bank, N.A.; thereafter
any other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
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 Servicer or any affiliate thereof shall be deemed not
to be outstanding and the Percentage Interest and Voting Rights evidenced
thereby shall not be taken into account in determining whether the requisite
amount of Percentage Interests or Voting Rights, as the case may be, necessary
to effect any such consent has been obtained, unless such entity is the
registered owner of the entire Class of Certificates, provided that the Trustee
shall not be responsible for knowing that any Certificate is registered in the
name of such an affiliate unless one of its Responsible Officers has actual
knowledge.
Certification: As defined in Section 3.22(c).
Class: As to the Certificates, the Class 1-A-1, Class 2-A-1, Class
2-A-2, Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 3-A-5, Class
3-A-6, Class 3-A-7, Class 3-A-8, Class 3-A-9, Class 3-A-10, Class 3-A-11, Class
3-A-12, Class 3-A-13, Class 3-A-14, Class 3-A-15, Class 3-A-16, Class 3-A-17,
Class 3-A-18, Class 3-A-19, Class 3-A-20, Class 3-A-21, Class 3-A-22, Class
3-A-23, Class 3-A-24, Class 3-A-25, Class 3-A-26, Class 3-A-27, Class 3-A-28,
Class 3-A-29, Class 3-A-30, Class 3-A-31, Class 3-A-32, Class 3-A-33, Class
3-A-34, Class 3-A-35, Class 3-A-R, Class 3-IO, Class 3-PO, Class 4-A-1, Class M,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6, as the case
may be.
Class 2-A-1 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 2-A-1 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 2-A-2 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 2-A-2 Certificates with respect to such
Distribution Date prior to any reduction for the Class 2-A-2 Loss Allocation
Amount and (b) the Class 2-A-1 Loss Amount with respect to such Distribution
Date.
Class 3-A-1 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 3-A-1 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 3-A-2 Loss Allocation Amount: With respect to any Distribution
Date after the Senior Credit Support Depletion Date, the lesser of (a) the Class
Certificate Balance of the Class 3-A-2 Certificates with respect to such
Distribution Date prior to any reduction for the Class 3-A-2 Loss Allocation
Amount and (b) the Class 3-A-1 Loss Amount with respect to such Distribution
Date.
Class 3-A-3 Notional Amount: As to any Distribution Date and the
Class 3-A-3 Certificates, 4.1666666667% of the sum of the Class Certificate
Balances of the Class 3-A-1 and Class 3-A-2 Certificates.
Class 3-A-4 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 3-A-4 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 3-A-5 Notional Amount: As to any Distribution Date and the
Class 3-A-5 Certificates, 8.3333323797% of the Class Certificate Balance of the
Class 3-A-4 Certificates.
Class 3-A-6 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 3-A-6 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 3-A-7 Notional Amount: As to any Distribution Date and the
Class 3-A-7 Certificates, 8.3333299605% of the Class Certificate Balance of the
Class 3-A-6 Certificates.
Class 3-A-8 Loss Amount: With respect to any Distribution Date after
the Senior Credit Support Depletion Date, the amount, if any, by which the Class
Certificate Balance of the Class 3-A-8 Certificates would be reduced as a result
of the allocation of any reduction pursuant to Section 5.03(b) to such Class,
without regard to the operation of Section 5.03(e).
Class 3-A-9 Notional Amount: As to any Distribution Date and the
Class 3-A-9 Certificates, 8.3333277995% of the Class Certificate Balance of the
Class 3-A-8 Certificates.
Class 3-A-10 Loss Allocation Amount: With respect to any
Distribution Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class Certificate Balance of the Class 3-A-10 Certificates with respect
to such Distribution Date prior to any reduction for the Class 3-A-10 Loss
Allocation Amount and (b) the sum of the Class 3-A-4 Loss Amount, Class 3-A-6
Loss Amount, Class 3-A-8 Loss Amount and Class 3-A-16 Loss Amount with respect
to such Distribution Date.
Class 3-A-11 Loss Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date, the amount, if any, by which the
Class Certificate Balance of the Class 3-A-11 Certificates would be reduced as a
result of the allocation of any reduction pursuant to Section 5.03(b) to such
Class, without regard to the operation of Section 5.03(e).
Class 3-A-11 Reserve Fund: The trust account created and maintained
by the Trustee pursuant to Section 3.08(g) which shall be entitled the "Class
3-A-11 Reserve Fund, Wells Fargo Bank, N.A., as Trustee, in trust for registered
Holders of the Class 3-A-11 Certificates of the Banc of America Alternative Loan
Trust 2007-1, Mortgage Pass-Through Certificates, Series 2007-1" and which must
be an Eligible Account. Amounts on deposit in the Class 3-A-11 Reserve Fund
shall not be invested. The Class 3-A-11 Reserve Fund shall not be an asset of
any REMIC formed under this Agreement.
Class 3-A-11 Yield Maintenance Agreement: The yield maintenance
agreement between the Trustee, on behalf of the Trust, and the Counterparty,
which will be for the benefit of the Class 3-A-11 Certificates, substantially in
the form attached hereto as Exhibit S-1. The Class 3-A-11 Yield Maintenance
Agreement shall not be an asset of any REMIC formed under this Agreement.
Class 3-A-11 Yield Maintenance Agreement Payment: For any
Distribution Date prior to and including the Distribution Date in July 2010, the
amount, if any, required to be paid by the Counterparty to the Trustee under the
Class 3-A-11 Yield Maintenance Agreement.
Class 3-A-12 Notional Amount: As to any Distribution Date and the
Class 3-A-12 Certificates, the Class Certificate Balance of the Class 3-A-11
Certificates.
Class 3-A-13 Loss Allocation Amount: With respect to any
Distribution Date after the Senior Credit Support Depletion Date, the lesser of
(a) the Class Certificate Balance of the Class 3-A-13 Certificates with respect
to such Distribution Date prior to any reduction for the Class 3-A-13 Loss
Allocation Amount and (b) the Class 3-A-11 Loss Amount with respect to such
Distribution Date.
Class 3-A-14 Accrual Distribution Amount: For any Distribution Date
and the Class 3-A-14 Certificates prior to the applicable Accretion Termination
Date, an amount with respect to such Class equal to the sum of (i) the amount
allocated but not currently distributable as interest to such Class pursuant to
Section 5.02(a)(i) that is attributable to clause (i) of the definition of
"Interest Distribution Amount," and (ii) the amount allocated but not currently
distributable as interest to such Class pursuant to Section 5.02(a)(i) that is
attributable to clause (ii) of the definition of "Interest Distribution Amount."
Class 3-A-15 Accrual Distribution Amount: For any Distribution Date
and the Class 3-A-15 Certificates prior to the applicable Accretion Termination
Date, an amount with respect to such Class equal to the sum of (i) the amount
allocated but not currently distributable as interest to such Class pursuant to
Section 5.02(a)(i) that is attributable to clause (i) of the definition of
"Interest Distribution Amount," and (ii) the amount allocated but not currently
distributable as interest to such Class pursuant to Section 5.02(a)(i) that is
attributable to clause (ii) of the definition of "Interest Distribution Amount."
Class 3-A-16 Loss Amount: With respect to any Distribution Date
after the Senior Credit Support Depletion Date, the amount, if any, by which the
Class Certificate Balance of the Class 3-A-16 Certificates would be reduced as a
result of the allocation of any reduction pursuant to Section 5.03(b) to such
Class, without regard to the operation of Section 5.03(e).
Class 3-A-16 Reserve Fund: The trust account created and maintained
by the Trustee pursuant to Section 3.08(g) which shall be entitled the "Class
3-A-16 Reserve Fund, Wells Fargo Bank, N.A., as Trustee, in trust for registered
Holders of the Class 3-A-16 Certificates of the Banc of America Alternative Loan
Trust 2007-1, Mortgage Pass-Through Certificates, Series 2007-1" and which must
be an Eligible Account. Amounts on deposit in the Class 3-A-16 Reserve Fund
shall not be invested. The Class 3-A-16 Reserve Fund shall not be an asset of
any REMIC formed under this Agreement.
Class 3-A-16 Yield Maintenance Agreement: The yield maintenance
agreement between the Trustee, on behalf of the Trust, and the Counterparty,
which will be for the benefit of the Class 3-A-16 Certificates, substantially in
the form attached hereto as Exhibit S-1. The Class 3-A-16 Yield Maintenance
Agreement shall not be an asset of any REMIC formed under this Agreement.
Class 3-A-16 Yield Maintenance Agreement Payment: For any
Distribution Date prior to and including the Distribution Date in July 2010, the
amount, if any, required to be paid by the Counterparty to the Trustee under the
Class 3-A-16 Yield Maintenance Agreement.
Class 3-A-17 Notional Amount: As to any Distribution Date and the
Class 3-A-17 Certificates, the Class Certificate Balance of the Class 3-A-16
Certificates.
Class 3-IO Notional Amount: As to any Distribution Date and the
Class 3-IO Certificates, the product of (i) 86.4254982888% of the aggregate
Stated Principal Balance of the Group 3 Premium Mortgage Loans on the Due Date
in the month preceding the month of such Distribution Date and (ii) a fraction,
(a) the numerator of which is equal to the weighted average of the Net Mortgage
Interest Rates of the Group 3 Premium Mortgage Loans (based on the Stated
Principal Balances of the Group 3 Premium Mortgage Loans as of the Due Date in
the month preceding the month of such Distribution Date) minus 6.000% and (b)
the denominator of which is equal to 6.000%.
Class Certificate Balance: With respect to any Class (other than the
Exchangeable Certificates and the Interest Only Certificates) and any date of
determination, and subject to Section 5.03(f), the Initial Class Certificate
Balance of such Class (plus, in the case of the Class 3-A-14 and Class 3-A-15
Certificates, any Class 3-A-14 Accrual Distribution Amounts or Class 3-A-15
Accrual Distribution Amounts, as applicable, previously added thereto) or, in
the case of a Class of Exchangeable REMIC Certificates, the Maximum Initial
Class Certificate Balance, minus (A) the sum of (i) all distributions of
principal allocated thereto (including in the case of any Class of Subordinate
Certificates any principal otherwise payable to such Class of Subordinate
Certificates used to pay any PO Deferred Amounts), (ii) all reductions in Class
Certificate Balance previously allocated thereto pursuant to Section 5.03(b) and
(iii) any reduction allocated to a Class pursuant to Section 5.03(e) plus (B)
the sum of (i) all increases in Class Certificate Balance previously allocated
thereto pursuant to Section 5.03(b) and (ii) any increases allocated to a Class
pursuant to Section 5.03(e). The Class 3-A-3, Class 3-A-5, Class 3-A-7, Class
3-A-9, Class 3-A-12, Class 3-A-17, Class 3-A-35 and Class 3-IO Certificates are
Interest Only Certificates and have no Class Certificate Balance. A Class of
Exchangeable Certificates has no Class Certificate Balance.
Class Interest Shortfall: For any Distribution Date and each
interest-bearing Class (other than the Exchangeable Certificates), the amount by
which Accrued Certificate Interest for such Class (as reduced pursuant to
Section 5.02(c)) exceeds the amount of interest actually distributable on such
Class (or, in the case of the Class 3-A-14 and Class 3-A-15 Certificates prior
to the applicable Accretion Termination Date, the amount included in the Class
3-A-14 Accrual Distribution Amount or Class 3-A-15 Accrual Distribution Amount,
as applicable, pursuant to clause (i) of the definition thereof, but not
distributed as interest on the Class 3-A-14 and Class 3-A-15 Certificates) on
such Distribution Date pursuant to clause (i) of the definition of "Interest
Distribution Amount."
Class Unpaid Interest Shortfall: As to any Distribution Date and
each interest-bearing Class (other than the Exchangeable Certificates), the
amount by which the aggregate Class Interest Shortfalls for such Class (or, in
the case of the Class 3-A-14 and Class 3-A-15 Certificates prior to the
applicable Accretion Termination Date, the amount included in the Class 3-A-14
Accrual Distribution Amount or Class 3-A-15 Accrual Distribution Amount, as
applicable, pursuant to clause (ii) of the definition thereof, but not
distributed as interest on the Class 3-A-14 and Class 3-A-15 Certificates) on
prior Distribution Dates exceeds the amount of interest actually distributable
on such Class on such prior Distribution Dates pursuant to clause (ii) of the
definition of "Interest Distribution Amount."
Closing Date: March 29, 2007.
Code: The Internal Revenue Code of 1986, as amended.
Collection Amount: As to any Distribution Date and Loan Group, the
excess of (a) the sum of (i) the aggregate of (A) the interest portion of any
Monthly Payment on a Mortgage Loan in such Loan Group (net of the Servicing Fee)
and the principal portion of any Monthly Payment on a Mortgage Loan in such Loan
Group due on the Due Date in the month in which such Distribution Date occurs
and which is received prior to the related Determination Date (or in the case of
any Monthly Covered Amount, the related Remittance Date) and (B) all Periodic
Advances and payments of Compensating Interest made by the Servicer in respect
of such Loan Group and Distribution Date deposited to the Servicer Custodial
Account pursuant to Section 3.08(b)(vii); (ii) all Liquidation Proceeds received
on the Mortgage Loans in such Loan Group during the preceding calendar month and
deposited to the Servicer Custodial Account pursuant to Section 3.08(b)(iii);
(iii) all Principal Prepayments (other than Total Covered Amounts) received on
the Mortgage Loans in such Loan Group during the month preceding the month of
such Distribution Date and deposited to the Servicer Custodial Account pursuant
to Section 3.08(b)(i) during such period and all Total Covered Amounts received
and deposited in the Servicer Custodial Account by the related Remittance Date;
(iv) in connection with Defective Mortgage Loans in such Loan Group, as
applicable, the aggregate of the Repurchase Prices and Substitution Adjustment
Amounts deposited on the related Remittance Date pursuant to Section
3.08(b)(vi); (v) any other amounts in the Servicer Custodial Account deposited
therein pursuant to Sections 3.08(b)(iv) and (v) in respect of such Distribution
Date and such Loan Group; (vi) any Reimbursement Amount required to be included
pursuant to Section 5.02(a); and (vii) any Non-PO Recovery with respect to such
Distribution Date over (b) any (i) amounts permitted to be withdrawn from the
Servicer Custodial Account pursuant to clauses (i) through (vii), inclusive, of
Section 3.11(a) in respect of such Loan Group and (ii) amounts permitted to be
withdrawn from the Certificate Account pursuant to clause (ii) of Section
3.11(b) in respect of such Loan Group.
Combination Group: Each Exchangeable Combination and Exchangeable
REMIC Combination having the .same numerical designation as set forth on Exhibit
U.
Compensating Interest: With respect to any Distribution Date, the
least of (a) the aggregate Servicing Fee for such Distribution Date (before
giving effect to any reduction pursuant to Section 3.17), (b) the Prepayment
Interest Shortfall for such Distribution Date and (c) one-twelfth of 0.25% of
the Pool Stated Principal Balances of Loan Group 1, Loan Group 2, Assumed Loan
Group 3 and Assumed Loan Group 4. To the extent that the aggregate Prepayment
Interest Shortfall for a Distribution Date exceeds Compensating Interest, the
Compensating Interest for such Distribution Date shall be allocated between the
Loan Groups in proportion to the respective Prepayment Interest Shortfalls
relating to such Loan Groups.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Corporate Trust Office: The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement is conducted, which office at the date of the
execution of this instrument is located at 9062 Old Annapolis Road, Columbia,
Maryland 21045-1951, Attention: Corporate Trust Services - BOALT 2007-1, and for
certificate transfer purposes is located at Sixth Street and Marquette Avenue,
Minneapolis, Minnesota 55479, Attention: Corporate Trust Services - BOALT
2007-1, or at such other address as the Trustee may designate from time to time
by notice to the Certificateholders, the Depositor and the Servicer.
Corresponding Upper-Tier Class or Classes: As to the following
Uncertificated Middle-Tier Interests, the Corresponding Upper-Tier Class or
Classes, as follows:
Uncertificated Corresponding Upper-Tier
Middle-Tier Interest Class or Classes
- --------------------------------- ----------------------------------------------
Class 1-A-M1 Interest Class 1-A-1 Certificates
Class 2-A-M1 Interest Class 2-A-1 and Class 2-A-2 Certificates
Class 3-A-M1 Interest Class 3-A-1, Class 3-A-2 and Class 3-A-3
Certificates
Class 3-A-M4 Interest Class 3-A-4 and Class 3-A-5 Certificates
Class 3-A-M6 Interest Class 3-A-6 and Class 3-A-7 Certificates
Class 3-A-M8 Interest Class 3-A-8 and Class 3-A-9 Certificates
Class 3-A-M10 Interest Class 3-A-10, Class 3-A-13, Class 3-A-14 and
Class 3-A-15 Certificates
Class 3-A-M11 Interest Class 3-A-11 and Class 3-A-12 Certificates
Class 3-A-M16 Interest Class 3-A-16 and Class 3-A-17 Certificates
Class 3-A-MUR Interest Class 3-A-R Certificate
Class 3-MIO Interest Class 3-IO Certificates
Class 3-MPO Interest Class 3-PO Certificates
Class 4-A-M1 Interest Class 4-A-1 Certificates
Class M-M1 Interest Class M, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 and Class B-6
Certificates
Custodian: Initially, the Trustee, and thereafter the Custodian, if
any, hereafter appointed by the Trustee pursuant to Section 9.12. The Custodian
may (but need not) be the Trustee or any Person directly or indirectly
controlling or controlled by or under common control of either of them. Neither
the Servicer nor the Depositor, nor 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 the Servicer,
procedures (including collection procedures) that the Servicer customarily
employs and exercises in servicing and administering mortgage loans for its own
account and which are in accordance with accepted mortgage servicing practices
of prudent lending institutions servicing mortgage loans of the same type as the
Mortgage Loans in the jurisdictions in which the related Mortgaged Properties
are located.
Cut-off Date: March 1, 2007.
Cut-off Date Pool Principal Balance: For each Loan Group, the
aggregate of the Cut-off Date Principal Balances of the Mortgage Loans in such
Loan Group, which is $41,227,152.83 for Loan Group 1, $87,922,385.32 for Loan
Group 2 and $227,064,377.32 for Loan Group 3.
Cut-off Date Principal Balance: As to any Mortgage Loan, the unpaid
principal balance thereof as of the close of business on the Cut-off Date,
reduced by all installments of principal due on or prior thereto whether or not
paid.
Debt Service Reduction: As to any Mortgage Loan and any
Determination Date, the excess of (i) the Monthly Payment due on the related Due
Date under the terms of such Mortgage Loan over (ii) the amount of the monthly
payment of principal and/or interest required to be paid with respect to such
Due Date by the Mortgagor as established by a court of competent jurisdiction
(pursuant to an order which has become final and nonappealable) as a result of a
proceeding initiated by or against the related Mortgagor under the Bankruptcy
Code, as amended from time to time (11 U.S.C.); provided that no such excess
shall be considered a Debt Service Reduction so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payment due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the Servicer in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that became
the subject of a Debt Service Reduction.
Defective Mortgage Loan: Any Mortgage Loan which is required to be
cured, repurchased or substituted for pursuant to Section 2.02 or 2.04.
Deficient Valuation: As to any Mortgage Loan and any Determination
Date, the excess of (i) the then outstanding indebtedness under such Mortgage
Loan over (ii) the secured valuation thereof established by a court of competent
jurisdiction (pursuant to an order which has become final and nonappealable) as
a result of a proceeding initiated by or against the related Mortgagor under the
Bankruptcy Code, as amended from time to time (11 U.S.C.), pursuant to which
such Mortgagor retained such Mortgaged Property; provided that no such excess
shall be considered a Deficient Valuation so long as (a) the Servicer is
pursuing an appeal of the court order giving rise to any such modification and
(b)(1) such Mortgage Loan is not in default with respect to payments due
thereunder in accordance with the terms of such Mortgage Loan as in effect on
the Cut-off Date or (2) Monthly Payments are being advanced by the Servicer in
accordance with the terms of such Mortgage Loan as in effect on the Cut-off
Date.
Deficient Valuation Mortgage Loan: Any Mortgage Loan that became the
subject of a Deficient Valuation.
Definitive Certificates: As defined in Section 6.02(c)(iii).
Denomination: The amount, if any, specified on the face of each
Certificate (other than an Interest Only Certificate) representing the principal
portion of the Initial Class Certificate Balance (or Maximum Initial Class
Certificate Balance) evidenced by such Certificate. As to any Interest Only
Certificate of a Class, the amount specified on the face of such Certificate
representing the portion of the Initial Notional Amount (or Maximum Initial
Notional Amount) of such Class evidenced by such Certificate.
Depositor: Banc of America Mortgage Securities, Inc., a Delaware
corporation, or its successor in interest, as depositor of the Trust Estate.
Depository: The Depository Trust Company, the nominee of which is
Cede & Co., as the registered Holder of the Book-Entry Certificates or any
successor thereto appointed in accordance with this Agreement. The Depository
shall at all times be a "clearing corporation" as defined in Section 8-102(3) of
the Uniform Commercial Code of the State of New York.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 16th day of the
month of the related Distribution Date or, if such 16th day is not a Business
Day, the Business Day immediately preceding such 16th day.
Discount Mortgage Loan: Any Group 3 Discount Mortgage Loan.
Distribution Date: The 25th day of each month beginning in April
2007 (or, if such day is not a Business Day, the next Business Day).
Due Date: As to any Distribution Date and each Mortgage Loan, the
first day in the calendar month of such Distribution Date.
Eligible Account: Any of (i) an account or accounts maintained with
(a) Bank of America, or (b) 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 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, acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency. Eligible Accounts may
bear interest and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee or Bank of America.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA Restricted Certificates: Any Class 3-A-2, Class 3-A-10, Class
3-A-13, Class 3-A-20, Class 3-A-22, Class M, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 or Class B-6 Certificate.
Escrow Account: As defined in Section 3.09(a).
Escrow Payments: The amounts constituting taxes, assessments,
Primary Insurance Policy premiums, fire and hazard insurance premiums and other
payments as may be required to be escrowed by the Mortgagor with the mortgagee
pursuant to the terms of any Mortgage Note or Mortgage.
Events of Default: As defined in Section 8.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage Loan
pursuant to Section 3.11(a)(iii), exceeds (i) the unpaid principal balance of
such Liquidated Mortgage Loan as of the Due Date in the month in which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest at
the Mortgage Interest Rate from the Due Date as to which interest was last paid
or for which a Periodic Advance was made (and not reimbursed) up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchangeable Certificate Grantor Trust Account: The sub-account of
the Certificate Account designated by the Trustee pursuant to Section
5.10(b)(i).
Exchangeable Certificates: The Class 3-A-18, Class 3-A-19, Class
3-A-20, Class 3-A-21, Class 3-A-22, Class 3-A-23, Class 3-A-24, Class 3-A-25,
Class 3-A-26, Class 3-A-27, Class 3-A-28, Class 3-A-29, Class 3-A-30, Class
3-A-31, Class 3-A-32, Class 3-A-33, Class 3-A-34 and Class 3-A-35.
Exchangeable Classes: The Classes of Exchangeable Certificates.
Exchangeable Combination: Any of the Exchangeable Combination 1,
Exchangeable Combination 2, Exchangeable Combination 3, Exchangeable Combination
4, Exchangeable Combination 5, Exchangeable Combination 6, Exchangeable
Combination 7, Exchangeable Combination 8, Exchangeable Combination 9,
Exchangeable Combination 10, Exchangeable Combination 11, Exchangeable
Combination 12, Exchangeable Combination 13, Exchangeable Combination 14,
Exchangeable Combination 15, Exchangeable Combination 16, Exchangeable
Combination 17 and Exchangeable Combination 18, as applicable.
Exchangeable Combination 1: The Class 3-A-18 Certificates.
Exchangeable Combination 2: The Class 3-A-19 Certificates.
Exchangeable Combination 3: The Class 3-A-20 Certificates.
Exchangeable Combination 4: The Class 3-A-21 Certificates.
Exchangeable Combination 5: The Class 3-A-22 Certificates.
Exchangeable Combination 6: The Class 3-A-23 Certificates.
Exchangeable Combination 7: The Class 3-A-24 Certificates.
Exchangeable Combination 8: The Class 3-A-25 Certificates.
Exchangeable Combination 9: The Class 3-A-26 Certificates.
Exchangeable Combination 10: The Class 3-A-27 Certificates.
Exchangeable Combination 11: The Class 3-A-28 Certificates.
Exchangeable Combination 12: The Class 3-A-29 Certificates.
Exchangeable Combination 13: The Class 3-A-30 Certificates.
Exchangeable Combination 14: The Class 3-A-31 Certificates.
Exchangeable Combination 15: The Class 3-A-32 Certificates.
Exchangeable Combination 16: The Class 3-A-33 Certificates.
Exchangeable Combination 17: The Class 3-A-34 Certificates.
Exchangeable Combination 18: The Class 3-A-35 Certificates.
Exchangeable REMIC Certificates: The Class 3-A-1, Class 3-A-2, Class
3-A-3, Class 3-A-4, Class 3-A-5, Class 3-A-6, Class 3-A-7, Class 3-A-8, Class
3-A-9, Class 3-A-12, Class 3-A-13 and Class 3-A-17 Certificates.
Exchangeable REMIC Classes: The Classes of Exchangeable REMIC
Certificates.
Exchangeable REMIC Combination: Any of the Exchangeable REMIC
Combination 1, Exchangeable REMIC Combination 2, Exchangeable REMIC Combination
3, Exchangeable REMIC Combination 4, Exchangeable REMIC Combination 5,
Exchangeable REMIC Combination 6, Exchangeable REMIC Combination 7, Exchangeable
REMIC Combination 8, Exchangeable REMIC Combination 9, Exchangeable REMIC
Combination 10, Exchangeable REMIC Combination 11, Exchangeable REMIC
Combination 12, Exchangeable REMIC Combination 13, Exchangeable REMIC
Combination 14, Exchangeable REMIC Combination 15, Exchangeable REMIC
Combination 16, Exchangeable REMIC Combination 17 and Exchangeable REMIC
Combination 18, as applicable.
Exchangeable REMIC Combination 1: The Class 3-A-1 and Class 3-A-2
Certificates.
Exchangeable REMIC Combination 2: The Class 3-A-1 and Class 3-A-3
Certificates.
Exchangeable REMIC Combination 3: The Class 3-A-2 and Class 3-A-3
Certificates.
Exchangeable REMIC Combination 4: The Class 3-A-1, Class 3-A-2 and
Class 3-A-3 Certificates.
Exchangeable REMIC Combination 5: The Class 3-A-2, Class 3-A-3 and
Class 3-A-13 Certificates.
Exchangeable REMIC Combination 6: The Class 3-A-4 and Class 3-A-5
Certificates.
Exchangeable REMIC Combination 7: The Class 3-A-4 and Class 3-A-5
Certificates.
Exchangeable REMIC Combination 8: The Class 3-A-6 and Class 3-A-7
Certificates.
Exchangeable REMIC Combination 9: The Class 3-A-6 and Class 3-A-7
Certificates.
Exchangeable REMIC Combination 10: The Class 3-A-8 and Class 3-A-9
Certificates.
Exchangeable REMIC Combination 11: The Class 3-A-8 and Class 3-A-9
Certificates..
Exchangeable REMIC Combination 12: The Class 3-A-4 and Class 3-A-6
Certificates.
Exchangeable REMIC Combination 13: The Class 3-A-4, Class 3-A-5,
Class 3-A-6 and Class 3-A-7 Certificates.
Exchangeable REMIC Combination 14: The Class 3-A-4, Class 3-A-5,
Class 3-A-6 and Class 3-A-7 Certificates.
Exchangeable REMIC Combination 15: The Class 3-A-4, Class 3-A-6 and
Class 3-A-8 Certificates.
Exchangeable REMIC Combination 16: The Class 3-A-4, Class 3-A-5,
Class 3-A-6, Class 3-A-7, Class 3-A-8 and Class 3-A-9 Certificates.
Exchangeable REMIC Combination 17: The Class 3-A-4, Class 3-A-5,
Class 3-A-6, Class 3-A-7, Class 3-A-8 and Class 3-A-9 Certificates.
Exchangeable REMIC Combination 18: The Class 3-A-12 and Class 3-A-17
Certificates.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
Final Distribution Date: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to Section
10.01.
Financial Market Service: Bloomberg Financial Service and any other
financial information provider designated by the Depositor by written notice to
the Trustee.
FIRREA: The Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended.
Fitch: Fitch Ratings, or any successor thereto.
Form 8-K: As defined in Section 3.22(a).
Form 8-K Information: As defined in Section 3.22(d).
Form 10-D: As defined in Section 3.22(a).
Form 10-K: As defined in Section 3.22(a).
Fractional Interest: As defined in Section 5.02(d).
Grantor Trust: That portion of the Trust exclusive of the REMICs
consisting of (i) the right of (a) the Class 3-A-11 Certificates to receive
amounts from the Class 3-A-11 Reserve Fund and (b) the Class 3-A-16 Certificates
to receive amounts from the Class 3-A-16 Reserve Fund, (ii) the Yield
Maintenance Agreements and the Reserve Funds and (iii) any interests in the
Exchangeable REMIC Certificates beneficially owned in the form of Exchangeable
Certificates and rights with respect thereto.
Group: Any of Group 1, Group 2, Group 3 or Group 4
Group 1: The Group 1 Senior Certificates.
Group 1 Mortgage Loan: Each Mortgage Loan listed on the Mortgage
Loan Schedule as a Group 1 Mortgage Loan.
Group 1 Senior Certificates: Class 1-A-1 Certificates.
Group 1 Senior Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the Total Senior Principal Distribution
Amount for Loan Group 1 for such Distribution Date.
Group 2: The Group 2 Senior Certificates.
Group 2 Mortgage Loan: Each Mortgage Loan listed on the Mortgage
Loan Schedule as a Group 2 Mortgage Loan.
Group 2 Senior Certificates: Class 2-A-1 and Class 2-A-2
Certificates.
Group 2 Senior Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to 86.4254982888% of the Total Senior
Principal Distribution Amount for Loan Group 2 for such Distribution Date.
Group 3: The Group 3 Senior Certificates.
Group 3 Discount Mortgage Loan: A Group 3 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date less than 6.000% per annum.
Group 3 Mortgage Loan: Each Mortgage Loan listed on the Mortgage
Loan Schedule as a Group 3 Mortgage Loan.
Group 3 Premium Mortgage Loan: A Group 3 Mortgage Loan with a Net
Mortgage Interest Rate as of the Cut-off Date equal to or greater than 6.000%
per annum.
Group 3 Priority Amount: As to any Distribution Date, the lesser of
(i) the aggregate Class Certificate Balance of the Class 3-A-1, Class 3-A-2 and
Class 3-A-13 Certificates and (ii) the product of (a) the Non-PO Principal
Amount for Assumed Loan Group 3, (b) the Shift Percentage and (c) the Group 3
Priority Percentage.
Group 3 Priority Percentage: As to any Distribution Date, (i) the
aggregate Class Certificate Balance of the Class 3-A-1, Class 3-A-2 and Class
3-A-13 Certificates divided by (ii) the Pool Stated Principal Balance (Non-PO
Portion) for Assumed Loan Group 3.
Group 3 Senior Certificates: The Class 3-A-1, Class 3-A-2, Class
3-A-3, Class 3-A-4, Class 3-A-5, Class 3-A-6, Class 3-A-7, Class 3-A-8, Class
3-A-9, Class 3-A-10, Class 3-A-11, Class 3-A-12, Class 3-A-13, Class 3-A-14,
Class 3-A-15, Class 3-A-16, Class 3-A-17, Class 3-A-R, Class 3-IO and Class 3-PO
Certificates.
Group 3 Senior Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the Total Senior Principal Distribution
Amount for Assumed Loan Group 3 for such Distribution Date.
Group 4: The Group 4 Senior Certificates.
Group 4 Senior Certificates: The Class 4-A-1 Certificates.
Group 4 Senior Principal Distribution Amount: With respect to any
Distribution Date, an amount equal to the sum of (i) 13.5745017112% of the Total
Senior Principal Distribution Amount for Loan Group 2 for such Distribution Date
and (ii) the Total Senior Principal Distribution Amount for Assumed Loan Group 4
for such Distribution Date.
Group Subordinate Amount: With respect to any Distribution Date and
(a) Loan Group 1 is the excess of the Pool Stated Principal Balance for Loan
Group 1 over the aggregate Class Certificate Balance of the Senior Non-PO
Certificates of such Group immediately prior to such date, (b) Loan Group 2 is
the excess of the Pool Stated Principal Balance for Loan Group 2 over the sum of
(1) the aggregate Class Certificate Balance of the Senior Non-PO Certificates of
Group 2 immediately prior to such date and (2) the Loan Group 2 Class 4-A-1
Portion immediately prior to such date, (c) Assumed Loan Group 3 is the excess
of the Pool Stated Principal Balance (Non-PO Portion) for Assumed Loan Group 3
over the aggregate Class Certificate Balance of the Senior Non-PO Certificates
of Group 3 immediately prior to such date and (d) Assumed Loan Group 4 is the
excess of the Pool Stated Principal Balance (Non-PO Portion) for Assumed Loan
Group 4 over the Loan Group 3 Class 4-A-1 Portion immediately prior to such
date.
Holder: A Certificateholder.
Independent: When used with respect to any specified Person means
such a Person who (i) is in fact independent of the Depositor and the Servicer,
(ii) does not have any direct financial interest or any material indirect
financial interest in the Depositor or the Servicer or in an affiliate of either
of them, and (iii) is not connected with the Depositor or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Initial Class Certificate Balance: As to each Class of Certificates
(other than the Exchangeable REMIC Certificates, the Exchangeable Certificates
and the Interest Only Certificates), the Class Certificate Balance set forth in
the Preliminary Statement. The Interest Only Certificates have no Initial Class
Certificate Balance.
Initial Notional Amount: As to each Class of Interest Only
Certificates (other than the Exchangeable REMIC Certificates and Exchangeable
Certificates), the respective Notional Amounts set forth in the Preliminary
Statement.
Insurance Policy: With respect to any Mortgage Loan included in the
Trust Estate, any related insurance policy, including all riders and
endorsements thereto in effect, including any replacement policy or policies for
any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: As to any Distribution Date and each
interest-bearing Class of Certificates (other than the Class 3-A-11, Class
3-A-12, Class 3-A-16, Class 3-A-17 and Class 3-A-35 Certificates) of such
Distribution Date to but not including the first day of the calendar month of
such Distribution Date. As to any Distribution Date and the Class 3-A-11, Class
3-A-12, Class 3-A-16, Class 3-A-17 and Class 3-A-35 Certificates, the period
from and including the 25th day of the calendar month preceding the calendar
month in which such Distribution Date occurs and ending on the 24th day of the
calendar month in which such Distribution Date occurs.
Interest Distribution Amount: For any Distribution Date and each
interest-bearing Class (other than the Exchangeable Certificates), the sum of
(i) the Accrued Certificate Interest, subject to reduction pursuant to Section
5.02(c) and (ii) any Class Unpaid Interest Shortfall for such Class.
Interest Only Certificates: Any Class of Certificates entitled to
distributions of interest, but no distributions of principal. The Class 3-A-3,
Class 3-A-5, Class 3-A-7, Class 3-A-9, Class 3-A-12, Class 3-A-17, Class 3-A-35
and Class 3-IO Certificates are the only Classes of Interest Only Certificates.
LIBOR: As to any Distribution Date, the arithmetic mean of the
London Interbank offered rate quotations for one-month U.S. Dollar deposits, as
determined by the Trustee in accordance with Section 5.09.
LIBOR Business Day: Any Business Day on which banks are open for
dealing in foreign currency and exchange in London, England and the City of New
York.
LIBOR Certificates: Any of the Class 3-A-11, Class 3-A-12, Class
3-A-16, Class 3-A-17 and Class 3-A-35 Certificates.
Liquidated Mortgage Loan: With respect to any Distribution Date, a
defaulted Mortgage Loan (including any REO Property) that was liquidated in the
calendar month preceding the month of such Distribution Date and as to which the
Servicer has certified (in accordance with this Agreement) that it has received
all proceeds it expects to receive in connection with the liquidation of such
Mortgage Loan including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or otherwise or
amounts received in connection with any condemnation or partial release of a
Mortgaged Property and any other proceeds received in connection with an REO
Property, less the sum of related unreimbursed Servicing Fees and Advances.
Loan Group: Any of Loan Group 1, Loan Group 2 or Loan Group 3.
Loan Group 1: The Group 1 Mortgage Loans.
Loan Group 2 Class 4-A-1 Portion: For any Distribution Date equals
27.9130413454% of the initial Class Certificate Balance of the Class 4-A-1
Certificates, less (i) all distributions of principal made to the Class 4-A-1
Certificates from collections relating to Loan Group 2 and payments of principal
to the Class 4-A-1 Certificates under Section 5.02(b)(vi) from amounts relating
to a Group other than Group 2 and (ii) losses allocated to the Class 4-A-1
Certificates resulting from Realized Losses on the Mortgage Loans in Loan Group
2.
Loan Group 2: The Group 2 Mortgage Loans.
Loan Group 3: The Group 3 Mortgage Loans.
Loan Group 3 Class 4-A-1 Portion: For any Distribution Date equals
72.0869586186% of the initial Class Certificate Balance of the Class 4-A-1
Certificates, less (i) all distributions of principal made to the Class 4-A-1
Certificates from collections relating to Loan Group 3 and payments of principal
to the Class 4-A-1 Certificates under Section 5.02(b)(vi) from amounts relating
to a Group other than Group 3 and (ii) losses allocated to the Class 4-A-1
Certificates resulting from Realized Losses on the Mortgage Loans in Loan Group
3.
Loan-to-Value Ratio: With respect to any Mortgage Loan and any date
of determination, the fraction, expressed as a percentage, the numerator of
which is the outstanding principal balance of the related Mortgage Loan at the
date of determination and the denominator of which is the Appraised Value of the
related Mortgaged Property.
Lower-Tier Distribution Amount: As defined in Section 5.02(a).
Lower-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Mortgage Loans, such amounts as shall from time
to time be held in the Certificate Account (other than amounts held in respect
of the Upper-Tier Certificate Sub-Account or the Exchangeable Certificates
Grantor Trust 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.
Maximum Initial Class Certificate Balance: As to each Class of
Exchangeable REMIC Certificates and Exchangeable Certificates (other than a
Class of Interest Only Certificates), the amount for such Class set forth in the
table in the Preliminary Statement under the heading "Initial Class Certificate
Balance or Notional Amount."
Maximum Initial Class Notional Amount: As to each Class of
Exchangeable REMIC Certificates which is a Class of Interest Only Certificates,
the amount for such Class set forth in the table in the Preliminary Statement
under the heading "Initial Class Certificate Balance or Notional Amount."
Maximum Class Certificate Balance: As of any Determination Date and
Class of Exchangeable Certificates (other than a Class of Interest Only
Certificates), the portion of the Initial Maximum Class Certificate Balance that
would be outstanding assuming all Related Exchangeable REMIC Certificates have
been exchanged.
Maximum Notional Amount: As of any Determination Date and Class of
Exchangeable Certificates that are Interest Only Certificates, the portion of
the Initial Maximum Notional Amount that would be outstanding assuming all
Related Exchangeable REMIC Certificates have been exchanged.
MERS: As defined in Section 2.01(b)(iii).
Monthly Covered Amount: As defined in the Mortgage Loan Purchase
Agreement.
Monthly Payment: The scheduled monthly payment on a Mortgage Loan
due on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related Debt
Service Reduction and any Deficient Valuation that affects the amount of the
monthly payment due on such Mortgage Loan or the Monthly Covered Amount
representing such scheduled monthly payment.
Moody's: Moody's 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.
Mortgage Interest Rate: As to any Mortgage Loan, the per annum rate
of interest at which interest accrues on the principal balance of such Mortgage
Loan in accordance with the terms of the related Mortgage Note.
Mortgage Loan Purchase Agreement: The Mortgage Loan Purchase
Agreement, dated March 29, 2007, between Bank of America, as seller, and the
Depositor, as purchaser.
Mortgage Loan Schedule: The list of Mortgage Loans (as from time to
time amended by the 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, setting forth the following information
with respect to each Mortgage Loan: (i) the Mortgage Loan identifying number;
(ii) a code indicating whether the Mortgaged Property is owner-occupied; (iii)
the property type for each Mortgaged Property; (iv) the original months to
maturity or the remaining months to maturity from the Cut-off Date; (v) the
Loan-to-Value Ratio at origination; (vi) the Mortgage Interest Rate as of the
Cut-off Date; (vii) the date on which the first Monthly Payment was due on the
Mortgage Loan, and, if such date is not the Due Date currently in effect, such
Due Date; (viii) the stated maturity date; (ix) the amount of the Monthly
Payment as of the Cut-off Date; (x) the paid-through date; (xi) the original
principal amount of the Mortgage Loan; (xii) the principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date, after application
of payments of principal due on or before the Cut-off Date, whether or not
collected, and after deduction of any payments collected of scheduled principal
due after the Cut-off Date; (xiii) a code indicating the purpose of the Mortgage
Loan; (xiv) a code indicating the documentation style; (xv) the Appraised Value;
(xvi) the closing date of such Mortgage Loan and (xvii) the Loan Group of such
Mortgage Loan. With respect to the Mortgage Loans in the aggregate, the Mortgage
Loan Schedule shall set forth the following information, as of the Cut-off Date:
(i) the number of Mortgage Loans; (ii) the current aggregate outstanding
principal balance of the Mortgage Loans; (iii) the weighted average Mortgage
Interest Rate of the Mortgage Loans; and (iv) the weighted average months to
maturity of the Mortgage Loans.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 as from time to time are held as a part
of the Trust Estate (including any Substitute Mortgage Loans and REO Property),
the Mortgage Loans originally so held being identified in the Mortgage Loan
Schedule. With respect to Assumed Loan Group 3, a Mortgage Loan refers to
86.4254982888% of each Group 3 Mortgage Loan. With respect to Assumed Loan Group
4, a Mortgage Loan refers to 13.5745017112% of each Group 3 Mortgage Loan.
Mortgage Note: The originally executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with all riders thereto and amendments thereof.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which may include Co-op Shares or residential long-term leases.
Mortgagor: The obligor on a Mortgage Note.
Net Mortgage Interest Rate: As to any Mortgage Loan and Distribution
Date, such Mortgage Loan's Mortgage Interest Rate thereon on the first day of
the month preceding the month of the related Distribution Date reduced by (i)
the Servicing Fee Rate and (ii) the Trustee Fee Rate.
Net WAC: As to any Loan Group and any Distribution Date, the
weighted average of the Net Mortgage Interest Rates of the Mortgage Loans in
such Loan Group (based on the Stated Principal Balances of the Mortgage Loans in
such Loan Group on the Due Date in the month preceding the month of such
Distribution Date).
Non-PO Percentage: As to any Group 1 Mortgage Loan, any Group 2
Mortgage Loan and any Mortgage Loan in Assumed Loan Group 4, 100%. As to any
Mortgage Loan in Assumed Loan Group 3, an amount equal to the lesser of (a) the
Net Mortgage Interest Rate as of the Cut-off Date divided by 6.000% or (b) 100%.
Non-PO Principal Amount: As to any Distribution Date and Loan Group
or Assumed Loan Group, in the case of Loan Group 3, will equal for each Mortgage
Loan in such Loan Group or, in the case of each Assumed Loan Group, each
Mortgage Loan in Loan Group 3, the sum of:
(i) the sum of the applicable Non-PO Percentage of:
(a) the applicable Allocation Percentage of the principal portion of
each Monthly Payment due on such Mortgage Loan on the related Due Date;
(b) the applicable Allocation Percentage of the Stated Principal
Balance, as of the date of repurchase, of such Mortgage Loan that was
repurchased by the Depositor pursuant to this Agreement during the calendar
month preceding the month of such Distribution Date;
(c) the applicable Allocation Percentage of any Substitution
Adjustment Amount in connection with a Defective Mortgage Loan received during
the calendar month preceding the month of such Distribution Date;
(d) the applicable Allocation Percentage of any Liquidation Proceeds
allocable to recoveries of principal of such Mortgage Loan that is not yet a
Liquidated Mortgage Loan received during the calendar month preceding the month
of such Distribution Date;
(e) the applicable Allocation Percentage for such Mortgage Loan that
became a Liquidated Mortgage Loan during the calendar month preceding the month
of such Distribution Date, the amount of Liquidation Proceeds (excluding Excess
Proceeds) allocable to principal received with respect to such Mortgage Loan
during the calendar month preceding the month of such Distribution Date; and
(f) the applicable Allocation Percentage of all Principal
Prepayments on such Mortgage Loan received during the calendar month preceding
the month of such Distribution Date; and
(ii) the Non-PO Recovery for such Distribution Date.
Non-PO Recovery: As to any Distribution Date and Loan Group, the
amount of all Recoveries received with respect to such Loan Group or Assumed
Loan Group during the calendar month preceding the month of such Distribution
Date less the PO Recovery with respect to such Loan Group or Assumed Loan Group
for such Distribution Date.
Non-Supported Interest Shortfalls: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
Compensating Interest for such Distribution Date.
Non-U.S. Person: A Person other than a U.S. Person.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made in respect of a Mortgage Loan which has not been previously
reimbursed and which, in the good faith judgment of the Servicer, will not or,
in the case of a proposed Advance, would not be ultimately recoverable from the
related Mortgagor, related Liquidation Proceeds, or other recoveries in respect
of the related Mortgage Loan.
Notional Amount: With respect to: (i) the Class 3-IO Certificates
and any date of determination, the Class 3-IO Notional Amount, (ii) the Class
3-A-3 Certificates and any date of determination, the Class 3-A-3 Notional
Amount, (iii) the Class 3-A-5 Certificates and any date of determination, the
Class 3-A-5 Notional Amount, (iv) the Class 3-A-7 Certificates and any date of
determination, the Class 3-A-7 Notional Amount, (v) the Class 3-A-9 Certificates
and any date of determination, the Class 3-A-9 Notional Amount, (vi) the Class
3-A-12 Certificates and any date of determination, the Class 3-A-12 Notional
Amount and (vii) the Class 3-A-17 Certificates and any date of determination,
the Class 3-A-17 Notional Amount.
OCC: The Office of the Comptroller of the Currency.
Offered Certificates: The Senior, Class M, Class B-1, Class B-2 and
Class B-3 Certificates.
Officer's Certificate: A certificate signed by the Chairman of the
Board, Vice Chairman of the Board, President or a Vice President and by the
Treasurer, the Secretary or one of the Assistant Treasurers or Assistant
Secretaries, or any other duly authorized officer of the Depositor or the
Servicer, as the case may be, and delivered to the Trustee.
Opinion of Counsel: A written opinion of counsel acceptable to the
Trustee, who may be counsel for the Depositor or the Servicer, except that any
opinion of counsel relating to the qualification of the Trust Estate as three
separate REMICs or compliance with the REMIC Provisions must be an opinion of
Independent counsel.
Original Fractional Interest: With respect to each of the following
Classes of Subordinate Certificates, the corresponding percentage described
below, as of the Closing Date:
Class M 4.41%
Class B-1 3.41%
Class B-2 2.25%
Class B-3 1.40%
Class B-4 0.85%
Class B-5 0.40%
Class B-6 0.00%
Original Subordinate Class Certificate Balance: $17,989,000.00.
OTS: The Office of Thrift Supervision.
Outstanding Certificate: Any Outstanding Exchangeable Certificate or
Outstanding Exchangeable REMIC Certificate.
Outstanding Exchangeable Certificate: Any Exchangeable Certificate
issued hereunder; provided, however, that upon the exchange of any Exchangeable
Certificate pursuant to Section 6.04 hereof, the Exchangeable Certificate so
exchanged shall be deemed no longer to be an Outstanding Exchangeable
Certificate, and each Exchangeable REMIC Certificate issued in exchange therefor
shall be deemed to be an Outstanding Exchangeable REMIC Certificate.
Outstanding Exchangeable REMIC Certificate: Any Exchangeable REMIC
Certificate issued hereunder; provided, however, that upon the exchange of any
Exchangeable REMIC Certificate pursuant to Section 6.04 hereof, the Exchangeable
REMIC Certificate so exchanged shall be deemed no longer to be an Outstanding
Exchangeable REMIC Certificate, and the Exchangeable Certificate issued in
exchange therefor shall be deemed to be an Outstanding Exchangeable Certificate.
Outstanding Mortgage Loan: As to any Due Date, a Mortgage Loan which
was not the subject of a Principal Prepayment in Full prior to such Due Date,
which did not become a Liquidated Mortgage Loan prior to such Due Date and which
was not purchased from the Trust prior to such Due Date pursuant to Section 2.02
or 2.04.
Ownership Interest: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or indirect, legal
or beneficial, as owner or as pledgee.
PAC Certificates: The PAC Group and the Class 3-A-23, Class 3-A-24,
Class 3-A-25, Class 3-A-26, Class 3-A-27, Class 3-A-28, Class 3-A-29, Class
3-A-30, Class 3-A-31, Class 3-A-32, Class 3-A-33 and Class 3-A-34 Certificates.
PAC Group: The Class 3-A-4, Class 3-A-6, Class 3-A-8 and Class
3-A-10 Certificates.
PAC Principal Amount: As to any Distribution Date and the PAC Group,
the amount, if any, that would reduce the aggregate Class Certificate Balance of
the PAC Group to the applicable balance shown in the table set forth in Exhibit
T with respect to such Distribution Date.
Pass-Through Rate: As to each Class of interest-bearing
Certificates, the per annum rate set forth or described in the Preliminary
Statement.
Paying Agent: As defined in Section 9.13.
Percentage Interest: As to any Certificate, the percentage obtained
by dividing the initial Certificate Balance of such Certificate or the initial
notional amount for a Class of Interest Only Certificates (or the portion of the
Maximum Initial Class Certificate Balance or Maximum Initial Notional Amount
represented by such Certificate in the case of an Exchangeable REMIC Certificate
or Exchangeable Certificate) by the Initial Class Certificate Balance or Initial
Notional Amount (or the Maximum Initial Class Certificate Balance or Maximum
Initial Notional Amount in the case of a Class of Exchangeable REMIC
Certificates or Exchangeable Certificates), as applicable, of the Class of which
such Certificate is a part. Notwithstanding the foregoing, for purposes of
making actual distributions of principal or interest, allocating losses or
allocating Voting Rights among the Outstanding Exchangeable REMIC Certificates
or Outstanding Exchangeable Certificates of a Class, the Percentage Interest
refers to each Outstanding Certificate's proportionate share of such actual
distributions, Realized Losses or Voting Interests based on the proportion that
such Certificate's Percentage Interest, as defined in the first sentence of this
definition bears to the aggregate Percentage Interest as defined in the first
sentence of this definition of all the Outstanding Exchangeable REMIC
Certificates or Outstanding Exchangeable Certificates of such Class.
Periodic Advance: The payment required to be made by the Servicer
with respect to any Distribution Date pursuant to Section 3.20, the amount of
any such payment being equal to the aggregate of Monthly Payments (net of the
Servicing Fee) on the Mortgage Loans (including any REO Property) that were due
on the related Due Date and not received as of the close of business on the
related Determination Date, less the aggregate amount of any such delinquent
payments that the Servicer has determined would constitute a Nonrecoverable
Advance if advanced.
Permitted Investments: One or more of the following:
(i) obligations of or guaranteed as to principal and interest
by the United States, Freddie Mac, Fannie Mae 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 Freddie Mac or Fannie Mae 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,
"A-1" by S&P and "F-1" by Fitch;
(iii) federal funds, certificates of deposit, demand deposits,
time deposits and bankers' acceptances (which shall each have an
original maturity of not more than 90 days and, in the case of
bankers' acceptances, shall in no event have an original maturity of
more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository
institution or trust company incorporated under the laws of the
United States or any state thereof, rated not lower than "P-1" by
Moody's, "A-1" by S&P and "F-1" by Fitch;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of the
United States or any state thereof which is rated not lower than
"P-1" by Moody's, "A-1" by S&P and "F-1" by Fitch;
(v) investments in money market funds (including funds of the
Trustee or its affiliates, or funds for which an affiliate of the
Trustee acts as advisor, as well as funds for which the Trustee and
its affiliates may receive compensation) rated "Aaa" by Moody's,
either "AAAm" or "AAAm G" by S&P and "AAA" by Fitch (if rated by
Fitch) or otherwise approved in writing by each Rating Agency; and
(vi) other obligations or securities that are acceptable to
each Rating Agency and, as evidenced by an Opinion of Counsel
obtained by the Servicer, will not affect the qualification of the
Trust Estate as three separate REMICs;
provided, however, that no instrument shall be a Permitted Investment if it
represents either (a) the right to receive only interest payments with respect
to the underlying debt instrument or (b) the right to receive both principal and
interest payments derived from obligations underlying such instrument and the
principal and interest with respect to such instrument provide a yield to
maturity greater than 120% of the yield to maturity at par of such underlying
obligations.
Permitted Transferee: Any Person other than (i) the United States,
or any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing, (ii) a foreign government,
international organization or any agency or instrumentality of either of the
foregoing, (iii) an organization which is exempt from tax imposed by Chapter 1
of the Code (including the tax imposed by Section 511 of the Code on unrelated
business taxable income) (except certain farmers' cooperatives described in Code
Section 521), (iv) rural electric and telephone cooperatives described in Code
Section 1381(a)(2)(C), (v) a Person with respect to whom the income on the
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 Person, and (vi) any other Person so designated by the Servicer based
on an Opinion of Counsel to the effect that any transfer to such Person may
cause the Trust or any other Holder of the 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 3-A-R, Class B-4, Class B-5 and
Class B-6 Certificates.
Plan: As defined in Section 6.02(e).
PO Deferred Amount: As to any Distribution Date and the Class 3-PO
Certificates, the sum of the amounts by which the Class Certificate Balance of
the Class 3-PO Certificates will be reduced on such Distribution Date or has
been reduced on prior Distribution Dates as a result of Section 5.03(b) less the
sum of (a) the PO Recoveries with respect to Assumed Loan Group 3 for prior
Distribution Dates and (b) the amounts distributed to the Class 3-PO
Certificates pursuant to Section 5.02(a)(iii) on prior Distribution Dates.
PO Percentage: As to any Group 1 Mortgage Loan, any Group 2 Mortgage
Loan and any Mortgage Loan in Assumed Loan Group 4, 0%. As to Assumed Loan Group
3 and any Discount Mortgage Loan, 100% minus the Non-PO Percentage for such
Mortgage Loan.
PO Principal Amount: As to any Distribution Date and Assumed Loan
Group 3, the sum of the applicable PO Percentage of
(a) the applicable Allocation Percentage of the principal portion of
each Monthly Payment due on each Mortgage Loan in Assumed Loan Group 3 on the
related Due Date;
(b) the applicable Allocation Percentage of the Stated Principal
Balance, as of the date of repurchase, of each Mortgage Loan in Assumed Loan
Group 3 that was repurchased by the Depositor pursuant to this Agreement during
the calendar month preceding the month of such Distribution Date;
(c) the applicable Allocation Percentage of any Substitution
Adjustment Amount in connection with any Defective Mortgage Loan in Assumed Loan
Group 3 received during the calendar month preceding the month of such
Distribution Date;
(d) the applicable Allocation Percentage of any Liquidation Proceeds
allocable to recoveries of principal of Mortgage Loans in Assumed Loan Group 3
that are not yet Liquidated Mortgage Loans received during the calendar month
preceding the month of such Distribution Date;
(e) with respect to each Mortgage Loan in Assumed Loan Group 3 that
became a Liquidated Mortgage Loan during the calendar month preceding the month
of such Distribution Date, the applicable Allocation Percentage of the amount of
Liquidation Proceeds (excluding Excess Proceeds) allocable to principal received
with respect to such Mortgage Loan during the calendar month preceding the month
of such Distribution Date with respect to such Mortgage Loan; and
(f) the applicable Allocation Percentage of all Principal
Prepayments received on the Mortgage Loans in Assumed Loan Group 3 during the
calendar month preceding the month of such Distribution Date.
PO Recovery: As to any Distribution Date and Assumed Loan Group 3,
the lesser of (a) the PO Deferred Amount for the Class 3-PO Certificates for
such Distribution Date and (b) an amount equal to the sum as to each Mortgage
Loan in Assumed Loan Group 3 as to which there has been a Recovery received
during the calendar month preceding the month of such Distribution Date, of the
product of (x) the PO Percentage with respect to such Mortgage Loan and (y) the
amount of the Recovery with respect to such Mortgage Loan. As to any
Distribution Date and Loan Group 1, Loan Group 2 and Assumed Loan Group 4, the
PO Recovery is zero.
Pool Distribution Amount: With respect to each Distribution Date and
(a) Group 1 is 100% of the Collection Amount for Loan Group 1, (b) Group 2 is
86.4254982888% of the Collection Amount for Loan Group 2, (c) Group 3 is
86.4254982888% of the Collection Amount for Loan Group 3 and (d) Group 4 is the
sum of 13.5745017112% of the Collection Amount for Loan Group 2 and
13.5745017112% of the Collection Amount for Loan Group 3.
Pool Stated Principal Balance: As to any Distribution Date and Loan
Group 1 or Loan Group 2, the aggregate Stated Principal Balance of all Mortgage
Loans in such Loan Group as of the Due Date in the month preceding the month in
which such Distribution Date occurs. As to any Distribution Date and Assumed
Loan Group 3 or Assumed Loan Group 4, the applicable Allocation Percentage of
the sum of aggregate Stated Principal Balance of all Mortgage Loans in Loan
Group 3 as of the Due Date in the month preceding the month in which such
Distribution Date occurs.
Pool Stated Principal Balance (Non-PO Portion): As to any
Distribution Date and Loan Group 1 or Loan Group 2, the sum for each Mortgage
Loan in such Loan Group of the product of (a) the Non-PO Percentage of such
Mortgage Loan and (b) the Stated Principal Balance of such Mortgage Loan as of
the Due Date in the month preceding the month in which such Distribution Date
occurs. As to any Distribution Date and Assumed Loan Group 3 or Assumed Loan
Group 4, the sum of the product of for each Mortgage Loan in Loan Group 3, the
applicable Non-PO Percentage of the product of the Allocation Percentage and the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the month
preceding the month in which such Distribution Date occurs.
Posted Collateral Account: The separate account created and
maintained by the Trustee pursuant to Section 3.08(j) in the name of the Trustee
for the benefit of the related Certificateholders and designated "Posted
Collateral Account, Wells Fargo Bank, N.A., as Trustee, in trust for registered
Holders of the Class 3-A-11 and Class 3-A-16 Certificates of the Banc of America
Alternative Loan Trust 2007-1, Mortgage Pass-Through Certificates, Series
2007-1." Funds in the Posted Collateral Account shall be held in trust for the
applicable Certificateholders for the uses and purposes set forth in this
Agreement and under the Yield Maintenance Agreements.
Premium Mortgage Loan: Any Group 3 Premium Mortgage Loan.
Prepayment Interest Shortfall: As to any Distribution Date and each
Mortgage Loan subject to a Principal Prepayment received during the calendar
month preceding such Distribution Date, the amount, if any, by which one month's
interest at the related Mortgage Interest Rate (net of the Servicing Fee) on
such Principal Prepayment exceeds the amount of interest paid in connection with
such Principal Prepayment.
Primary 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 Fannie Mae or Freddie Mac.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in The Wall Street Journal.
Principal Only Certificates: Any Class of Certificates entitled to
distributions of principal, but to no distributions of interest. The Class 3-PO
Certificates are the only Class of Principal Only Certificates.
Principal Prepayment: Any payment or other recovery of principal on
a Mortgage Loan (other than Liquidation Proceeds) which is received in advance
of its scheduled Due Date and is not accompanied by an amount of interest
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment, including the principal portion of any
Total Covered Amount.
Principal Prepayment in Full: Any Principal Prepayment of the entire
principal balance of a Mortgage Loan.
Private Certificates: The Class B-4, Class B-5 and Class B-6
Certificates.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinate Certificates that is not a Restricted Class, the portion of the
Subordinate Principal Distribution Amounts allocable to such Class, equal to the
product of the Subordinate Principal Distribution Amounts for the Subordinate
Certificates, for such Distribution Date and a fraction, the numerator of which
is the related Class Certificate Balance thereof and the denominator of which is
the aggregate Class Certificate Balance of the Subordinate Certificates that are
not Restricted Classes. The Pro Rata Share of a Restricted Class shall be 0%.
Qualified Appraiser: An appraiser of a Mortgaged Property duly
appointed by the originator of the related Mortgage Loan, who had no interest,
direct or indirect, in such Mortgaged Property or in any loan made on the
security thereof, whose compensation is not affected by the approval or
disapproval of the related Mortgage Loan and who met the minimum qualifications
of Fannie Mae or Freddie Mac.
Rate Determination Date: As to any of the LIBOR Certificates and
each Distribution Date (other than the initial Distribution Date), the second
LIBOR Business Day prior to the beginning of the applicable Interest Accrual
Period for such Certificate and such Distribution Date.
Rating Agency: Each of Fitch, S&P and Moody's. If either such
organization or a successor is no longer in existence, "Rating Agency" shall be
such nationally recognized statistical rating organization, or other comparable
Person, as is designated by the Depositor, notice of which designation shall be
given to the Trustee. References herein to a given rating or rating category of
a Rating Agency shall mean such rating category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount as of the date of such liquidation, equal to (i) the unpaid principal
balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Net Mortgage Interest Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Net Mortgage Interest Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan that has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Monthly Payment has been reduced.
Record Date: The last day of the month (or, if such day is not a
Business Day, the preceding Business Day) preceding the month in which the
related Distribution Date occurs.
Recovery: As to any Distribution Date and Loan Group or Assumed Loan
Group, the sum of all amounts received during the calendar month preceding the
month of such Distribution Date on each Mortgage Loan in such Loan Group or
Assumed Loan Group subsequent to such Mortgage Loan being determined to be a
Liquidated Mortgage Loan.
Refinance Mortgage Loan: Any Mortgage Loan the proceeds of which
were not used to purchase the related Mortgaged Property.
Regular Certificates: As defined in the Preliminary Statement
hereto.
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 Securities and Exchange Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506
(Jan. 7, 2005)) or by the staff of the Securities and Exchange Commission, or as
may be provided by the Securities and Exchange Commission or its staff from time
to time.
Reimbursement Amount: As defined in Section 2.04.
Related Exchangeable Class: As to any Exchangeable REMIC Class, each
Exchangeable Class included in the same Combination Group.
Related Exchangeable REMIC Class: As to any Exchangeable Class, each
Exchangeable REMIC Class included in the same Combination Group.
Relevant Servicing Criteria: The Servicing Criteria applicable to
the various parties, as set forth on Exhibit Q attached hereto. For
clarification purposes, multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Trustee or the Servicer, the term "Relevant Servicing Criteria"
may refer to a portion of the Relevant Servicing Criteria applicable to the
Servicer or the Trustee.
Relief Act: The Servicemembers Civil Relief Act, as it may be
amended from time to time.
Relief Act Reduction: With respect to any Distribution Date, for any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act or comparable state legislation, the amount,
if any, by which (i) interest collectible on such Mortgage Loan for the most
recently ended calendar month is less than (ii) interest accrued pursuant to the
terms of the Mortgage Note on the same principal amount and for the same period
as the interest collectible on such Mortgage Loan for the most recently ended
calendar month.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Certificate Maturity Date: The "latest possible maturity date"
of the Regular Certificates as that term is defined in Section 2.07.
REMIC Provisions: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
Remittance Date: As to any Distribution Date, by 2:00 p.m. Eastern
time on the Business Day immediately preceding such Distribution Date.
REO Disposition Period: As defined in Section 3.14.
REO Proceeds: Proceeds, net of any related expenses of the 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 the Servicer on
behalf of the Trust through foreclosure or deed-in-lieu of foreclosure in
connection with a defaulted Mortgage Loan.
Reportable Event: As defined in Section 3.22(d).
Repurchase Price: As to any Defective Mortgage Loan repurchased on
any date pursuant to Section 2.02 or 2.04, an amount equal to the sum of (i) the
unpaid principal balance thereof and (ii) the unpaid accrued interest thereon at
the applicable Mortgage Interest Rate from the Due Date to which interest was
last paid by the Mortgagor to the first day of the month following the month in
which such Mortgage Loan became eligible to be repurchased.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee or the Custodian on behalf of the Trustee, substantially
in the form of Exhibit E.
Required Insurance Policy: With respect to any Mortgage Loan, any
insurance policy which is required to be maintained from time to time under this
Agreement in respect of such Mortgage Loan.
Reserve Fund: Either of the Class 3-A-11 Reserve Fund or the Class
3-A-16 Reserve Fund.
Residual Certificate: The Class 3-A-R Certificate.
Responsible Officer: When used with respect to the Trustee, any
officer of the Corporate Trust Department of the Trustee, 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 customarily performing functions similar to those performed by any
of the above designated officers and having responsibility for the
administration of this Agreement.
Restricted Classes: As defined in Section 5.02(d).
S&P: Standard & Poor's, a division of The McGraw-Hill Companies,
Inc., or any successor thereto.
Seller: Bank of America, a national banking association, or its
successor in interest, as seller of the Mortgage Loans under the Mortgage Loan
Purchase Agreement.
Senior Certificates: The Class 1-A-1, Class 2-A-1, Class 2-A-2,
Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 3-A-5, Class 3-A-6,
Class 3-A-7, Class 3-A-8, Class 3-A-9, Class 3-A-10, Class 3-A-11, Class 3-A-12,
Class 3-A-13, Class 3-A-14, Class 3-A-15, Class 3-A-16, Class 3-A-17, Class
3-A-18, Class 3-A-19, Class 3-A-20, Class 3-A-21, Class 3-A-22, Class 3-A-23,
Class 3-A-24, Class 3-A-25, Class 3-A-26, Class 3-A-27, Class 3-A-28, Class
3-A-29, Class 3-A-30, Class 3-A-31, Class 3-A-32, Class 3-A-33, Class 3-A-34,
Class 3-A-35, Class 3-A-R, Class 3-IO, Class 3-PO and Class 4-A-1 Certificates.
Senior Credit Support Depletion Date: The date on which the
aggregate Class Certificate Balance of the Subordinate Certificates is reduced
to zero.
Senior Non-PO Certificates: The Class 1-A-1, Class 2-A-1, Class
2-A-2, Class 3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 3-A-5, Class
3-A-6, Class 3-A-7, Class 3-A-8, Class 3-A-9, Class 3-A-10, Class 3-A-11, Class
3-A-12, Class 3-A-13, Class 3-A-14, Class 3-A-15, Class 3-A-16, Class 3-A-17,
Class 3-A-R, Class 3-IO and Class 4-A-1 Certificates.
Senior Percentage: With respect to any Distribution Date and Loan
Group 1 or Loan Group 2, the percentage, carried six places rounded up, obtained
by dividing (i) the sum of the Class Certificate Balances of the Senior Non-PO
Certificates of the related Group (plus, in the case of Loan Group 2, the Loan
Group 2 Class 4-A-1 Portion) immediately prior to such Distribution Date by (ii)
the Pool Stated Principal Balance (Non-PO Portion) of such Loan Group. With
respect to any Distribution Date and Assumed Loan Group 3 or Assumed Loan Group
4, the percentage, carried six places rounded up, obtained by dividing (i) the
sum of the Class Certificate Balances of the Senior Non-PO Certificates of Group
3 or, with respect to Assumed Loan Group 4, the Loan Group 3 Class 4-A-1 Portion
immediately prior to such Distribution Date by (ii) the Pool Stated Principal
Balance (Non-PO Portion) of such Assumed Loan Group.
Senior Prepayment Percentage: For any Distribution Date and Loan
Group (other than Loan Group 3) or Assumed Loan Group during the five years
beginning on the first Distribution Date, 100%. The Senior Prepayment Percentage
for each Loan Group (other than Loan Group 3) or Assumed Loan Group for any
Distribution Date occurring on or after the fifth anniversary of the first
Distribution Date will, except as provided herein, be as follows: for any
Distribution Date in the first year thereafter, the Senior Percentage for such
Loan Group or Assumed Loan Group plus 70% of the Subordinate Percentage for such
Loan Group or Assumed Loan Group for such Distribution Date; for any
Distribution Date in the second year thereafter, the Senior Percentage for such
Loan Group or Assumed Loan Group plus 60% of the Subordinate Percentage for such
Loan Group or Assumed Loan Group for such Distribution Date; for any
Distribution Date in the third year thereafter, the Senior Percentage for such
Loan Group or Assumed Loan Group plus 40% of the Subordinate Percentage for such
Loan Group or Assumed Loan Group for such Distribution Date; for any
Distribution Date in the fourth year thereafter, the Senior Percentage for such
Loan Group or Assumed Loan Group plus 20% of the Subordinate Percentage for such
Loan Group or Assumed Loan Group for such Distribution Date; and for any
Distribution Date in the fifth or later years thereafter, the Senior Percentage
for such Loan Group or Assumed Loan Group for such Distribution Date, unless on
any of the foregoing Distribution Dates the Total Senior Percentage exceeds the
initial Total Senior Percentage, in which case the Senior Prepayment Percentage
for each Loan Group or Assumed Loan Group for such Distribution Date will once
again equal 100%. Notwithstanding the foregoing, no decrease in the Senior
Prepayment Percentage for such Loan Group or Assumed Loan Group will occur
unless both of the Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: Any of the Group 1 Senior
Principal Distribution Amount, the Group 2 Senior Principal Distribution Amount,
the Group 3 Senior Principal Distribution Amount and the Group 4 Senior
Principal Distribution Amount.
Senior Step Down Conditions: As of any Distribution Date as to which
any decrease in the Senior Prepayment Percentage for a Loan Group (other than
Loan Group 3) or Assumed Loan Group applies, (i) the outstanding principal
balance of all Mortgage Loans (including, for this purpose, any Mortgage Loans
in foreclosure, any REO Property and any Mortgage Loan for which the Mortgagor
has filed for bankruptcy after the Closing Date) delinquent 60 days or more
(averaged over the preceding six-month period), as a percentage of the aggregate
Class Certificate Balance of the Subordinate Certificates, is not equal to or
greater than 50% or (ii) cumulative Realized Losses with respect to the Mortgage
Loans as of the applicable Distribution Date do not exceed the percentages of
the Original Subordinate Class Certificate Balance set forth below:
Percentage of Original
Distribution Date Subordinate Class
Occurring Certificate Balance
---------------------------- -----------------------
April 2012 through 30%
March 2013............
April 2013 through 35%
March 2014............
April 2014 through 40%
March 2015............
April 2015 through 45%
March 2016............
April 2016 and 50%
thereafter............
Servicer: Bank of America, a national banking association, or its
successor in interest, in its capacity as servicer of the Mortgage Loans, or any
successor servicer appointed as herein provided.
Servicer Advance Date: As to any Distribution Date, 11:30 a.m.,
Eastern time, on the Business Day immediately preceding such Distribution Date.
Servicer Custodial Account: The separate Eligible Account or
Accounts created and maintained by the Servicer pursuant to Section 3.08(b).
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 Servicer
Custodial Account.
Servicer's Certificate: The monthly report required by Section 4.01.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses incurred in the performance by the Servicer of its
servicing obligations, including, but not limited to (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) expenses reimbursable
to the Servicer pursuant to Section 3.14 and any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of any
REO Property and (iv) compliance with the obligations under Section 3.12.
Servicing Compensation: With respect to each Distribution Date, the
sum of (i) the aggregate Servicing Fee for such Distribution Date subject to
reduction as provided in Section 3.17, (ii) any Ancillary Income, (iii) Excess
Proceeds for the preceding month and (iv) the Servicer Custodial Account
Reinvestment Income for such Distribution Date.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time, which as of
the Closing Date are listed on Exhibit Q hereto.
Servicing Fee: With respect to each Mortgage Loan and Distribution
Date, the amount of the fee payable to the Servicer, which shall, for such
Distribution Date, be equal to one-twelfth of the product of the Servicing Fee
Rate with respect to such Mortgage Loan and the Stated Principal Balance of such
Mortgage Loan. Such fee shall be payable monthly, computed on the basis of the
same Stated Principal Balance and period respecting which any related interest
payment on a Mortgage Loan is computed. The Servicer's right to receive the
Servicing Fee is limited to, and payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds and
other proceeds, to the extent permitted by Section 3.11) of related Monthly
Payments collected by the Servicer, or as otherwise provided under Section 3.11.
Servicing Fee Rate: With respect to each Mortgage Loan, 0.250% per
annum.
Servicing File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit J hereto, and any additional documents required to be
added to the Servicing File pursuant to the Agreement.
Servicing Function Participant: Any affiliate, third party vendor or
Subservicer engaged by the Servicer or the Trustee that is participating in the
servicing function with respect to the Mortgage Loans, within the meaning of
Item 1122 of Regulation AB.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
Servicing Transfer Costs: All reasonable costs and expenses incurred
by the Trustee in connection with the transfer of servicing from a predecessor
servicer, including, without limitation, any costs or expenses associated with
the complete transfer of all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the Trustee to correct
any errors or insufficiencies in the servicing data or otherwise to enable the
Trustee to service the Mortgage Loans properly and effectively.
Shift Percentage: As to any Distribution Date, the percentage
indicated below:
Shift
Distribution Date Occurring In Percentage
----------------------------------- ----------
April 2007 through March 2012...... 0%
April 2012 through March 2013...... 30%
April 2013 through March 2014...... 40%
April 2014 through March 2015...... 60%
April 2015 through March 2016...... 80%
April 2016 and thereafter..... 100%
Similar Law: As defined in Section 6.02(e).
Sponsor: Bank of America, National Association.
Stated Principal Balance: As to any Mortgage Loan and date, the
unpaid principal balance of such Mortgage Loan as of the specified Due Date or,
if not specified, as of the Due Date immediately preceding such date as
specified in the amortization schedule at the time relating thereto (before any
adjustment to such amortization schedule by reason of any moratorium or similar
waiver or grace period) after giving effect to any previous partial Principal
Prepayments and Liquidation Proceeds allocable to principal (other than with
respect to any Liquidated Mortgage Loan) and to the payment of principal due on
such Due Date and irrespective of any delinquency in payment by the related
Mortgagor, and after giving effect to any Deficient Valuation.
Subordinate Balance Ratio: As of any date of determination, the
ratio among the principal balances of the Class 1-LS Interest, the Class 2-LS
Interest, the Class 3-LS Interest and the Class 4-LS Interest, equal to the
ratio among the Group Subordinate Amount of Loan Group 1, the Group Subordinate
Amount of Loan Group 2, the Group Subordinate Amount of Assumed Loan Group 3 and
the Group Subordinate Amount of Assumed Loan Group 4.
Subordinate Certificates: The Class M, Class B-1, Class B-2, Class
B-3, Class B-4a, Class B-5 and Class B-6 Certificates.
Subordinate Percentage: As of any Distribution Date and Loan Group
(other than Loan Group 3) or Assumed Loan Group, 100% minus the Senior
Percentage for such Loan Group or Assumed Loan Group for such Distribution Date.
Subordinate Prepayment Percentage: As to any Distribution Date and
Loan Group (other than Loan Group 3) or Assumed Loan Group, 100% minus the
Senior Prepayment Percentage for such Loan Group or Assumed Loan Group for such
Distribution Date.
Subordinate Principal Distribution Amount: With respect to any
Distribution Date and Loan Group 1, Loan Group 2, Assumed Loan Group 3 or
Assumed Loan Group 4, an amount equal to the sum of (i) the Subordinate
Percentage for such Loan Group or Assumed Loan Group of the applicable Non-PO
Percentage of the amounts described in clauses (i)(a) through (d) of the
definition of "Non-PO Principal Amount" for such Distribution Date and Loan
Group or Assumed Loan Group and (ii) the Subordinate Prepayment Percentage of
(1) the applicable Non-PO Percentage of the amounts described in clauses (i)(e)
and (f) and (2) the amount described in clause (ii) of the definition of "Non-PO
Principal Amount" for such Distribution Date and Loan Group or Assumed Loan
Group.
Subservicer: Any Person with which the Servicer has entered into a
Subservicing Agreement and which satisfies the requirements set forth therein.
Subservicing Agreement: Any subservicing agreement (which, in the
event the Subservicer is an affiliate of the Servicer, need not be in writing)
between the Servicer and any Subservicer relating to servicing and/or
administration of certain Mortgage Loans as provided in Section 3.02.
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, and not more
than 10% less than, the Stated Principal Balance of the Defective Mortgage Loan;
(ii) have a Net Mortgage Interest Rate equal to that of the Defective Mortgage
Loan; (iii) have a Loan-to-Value Ratio not higher than that of the Defective
Mortgage Loan; (iv) have a remaining term to maturity not greater than (and not
more than one year less than) that of the Defective Mortgage Loan; and (v)
comply with each Mortgage Loan representation and warranty set forth in this
Agreement relating to the Defective Mortgage Loan. More than one Substitute
Mortgage Loan may be substituted for a Defective Mortgage Loan if such
Substitute Mortgage Loans meet the foregoing attributes in the aggregate.
Substitution Adjustment Amount: As defined in Section 2.02.
TAC Certificates: The Class 3-A-11 and Class 3-A-14 Certificates.
TAC Group: The TAC Certificates.
TAC Principal Amount: As to any Distribution Date and the TAC Group,
the amount, if any, that would reduce the aggregate Class Certificate Balance of
the TAC Group to the applicable balance shown in the table set forth in Exhibit
T with respect to such Distribution Date.
Tax Matters Person: Any person designated as "tax matters person" in
accordance with Section 5.06 and the manner provided under Treasury Regulation
ss. 1.860F-4(d) and Treasury Regulation ss. 301.6231(a)(7)-1.
Telerate Page 3750: As defined in Section 5.09.
Total Covered Amount: As defined in the Mortgage Loan Purchase
Agreement.
Total Senior Principal Distribution Amount: As to any Distribution
Date and Loan Group (other than Loan Group 3) or Assumed Loan Group, the sum of
(i) the Senior Percentage for such Loan Group or Assumed Loan Group of the
applicable Non-PO Percentage of the amounts described in clauses (i)(a) through
(d) of the definition of "Non-PO Principal Amount" for such Distribution Date
and Loan Group or Assumed Loan Group and (ii) the Senior Prepayment Percentage
for such Loan Group or Assumed Loan Group of (1) the applicable Non-PO
Percentage of the amounts described in clauses (i)(e) and (f) and (2) the amount
described in clause (ii) of the definition of "Non-PO Principal Amount" for such
Distribution Date and Loan Group or Assumed Loan Group.
Total Senior Percentage: With respect to any Distribution Date, the
percentage, carried six places rounded up, obtained by dividing the aggregate
Class Certificate Balance of the Senior Non-PO Certificates immediately prior to
such Distribution Date by the aggregate Pool Stated Principal Balance (Non-PO
Portion) of Loan Group 1, Loan Group 2, Assumed Loan Group 3 and Assumed Loan
Group 4 for such Distribution Date.
Treasury Regulations: The final and temporary regulations
promulgated under the Code by the U.S. Department of the Treasury.
Trust: The trust created by this Agreement.
Trust Estate: The corpus of the Trust created to the extent
described herein, consisting of the Mortgage Loans, such assets as shall from
time to time be identified as deposited in the Servicer Custodial Account or the
Certificate Account, the Reserve Fund or the Posted Collateral Account, in
accordance with this Agreement, REO Property, the Primary Insurance Policies,
any other Required Insurance Policy, the right to receive any BPP Mortgage Loan
Payment, the Trustee's rights under the Yield Maintenance Agreements and the
right to receive amounts, if any, payable on behalf of any Mortgagor from the
Buy-Down Account relating to any Buy-Down Mortgage Loan. The Buy-Down Account
shall not be part of the Trust Estate.
Trustee: Wells Fargo Bank, N.A., and any successors-in-interest and,
if a successor trustee is appointed hereunder, such successor, as trustee.
Trustee Fee: As to any Distribution Date and Loan Group, an amount
equal to one-twelfth of the Trustee Fee Rate multiplied by the aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group as of the Due
Date in the month preceding the month in which such Distribution Date occurs.
Trustee Fee Rate: With respect to each Mortgage Loan, 0.0075% per
annum.
Uncertificated Lower-Tier Interest: A regular interest in the
Lower-Tier REMIC which is held as an asset of the Middle-Tier REMIC and is
entitled to monthly distributions as provided in Section 5.02(a) hereof. Any of
the Class 1-L Interest, Class 1-LS Interest, Class 2-L Interest, Class 2-LS
Interest, Class 3-L Interest, Class 3-LS Interest, Class 3-LPO Interest, Class
3-LWIO Interest, Class 4-L Interest and Class 4-LS Interest are Uncertificated
Lower-Tier Interests.
Uncertificated Middle-Tier Interest: A regular interest in the
Middle-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(a) hereof. Any of
the Class 1-A-M1 Interest, Class 2-A-M1 Interest, Class 3-A-M1 Interest, Class
3-A-M4 Interest, Class 3-A-M6 Interest, Class 3-A-M8 Interest, Class 3-A-M10
Interest, Class 3-A-M11 Interest, Class 3-A-M16 Interest, Class 3-A-MUR
Interest, Class 3-MIO Interest, Class 3-MPO Interest, Class 4-A-M1 Interest and
Class M-M1 Interest are Uncertificated Middle-Tier Interests.
Underwriting Guidelines: The underwriting guidelines of Bank of
America.
Upper-Tier Certificate Sub-Account: The sub-account of the
Certificate Account designated by the Trustee pursuant to Section 3.08(f).
Upper-Tier REMIC: As defined in the Preliminary Statement, the
assets of which consist of the Uncertificated Lower-Tier Interests and such
amounts as shall from time to time be deemed to be held in the Upper-Tier
Certificate Sub-Account.
U.S. Person: A citizen or resident of the United States, a
corporation or partnership (unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
Voting Rights: The portion of the voting rights of all of the
Certificates (other than the Exchangeable Certificates) which is allocated to
any Certificate. As of any date of determination, (a) 1% of all Voting Rights
shall be allocated to the Holders of the Class 3-A-3 Certificates, (b) 1% of all
Voting Rights shall be allocated to the Holders of the Class 3-A-5 Certificates,
(c) 1% of all Voting Rights shall be allocated to the Holders of the Class 3-A-7
Certificates, (d) 1% of all Voting Rights shall be allocated to the Holders of
the Class 3-A-9 Certificates, (e) 1% of all Voting Rights shall be allocated to
the Holders of the Class 3-A-12 Certificates, (f) 1% of all Voting Rights shall
be allocated to the Holders of the Class 3-A-17 Certificates, (g) 1% of all
Voting Rights shall be allocated to the Holders of the Class 3-IO Certificates,
(h) 1% of all Voting Rights shall be allocated to the Holder of the Residual
Certificate and (i) the remaining Voting Rights shall be allocated among Holders
of the remaining Classes of Certificates in proportion to the Certificate
Balances of their respective Certificates on such date. As to any Exchangeable
Certificates, in the event that all or a portion of a combination of Classes of
Exchangeable REMIC Certificates in any Exchangeable REMIC Combination is
exchanged for a proportionate portion of the Class of Exchangeable Certificates
in the related Exchangeable Combination, the Class of such Exchangeable
Certificates will be entitled to a proportionate share of the Voting Rights
allocated to the Classes of Exchangeable REMIC Certificates in the related
Exchangeable REMIC Combination.
Yield Maintenance Agreement: Either of the Class 3-A-11 Yield
Maintenance Agreement or the Class 3-A-16 Yield Maintenance Agreement.
Yield Maintenance Agreement Payment: Any Class 3-A-11 Yield
Maintenance Agreement Payment or Class 3-A-16 Yield Maintenance Agreement
Payment.
Section 1.02 Interest Calculations.All calculations of interest will
be made on a 360-day year consisting of twelve 30-day months. All dollar amounts
calculated hereunder shall be rounded to the nearest penny with one-half of one
penny being rounded down.
Section 1.03 Fiscal Year. The fiscal year of the Trust will be the
calendar year.
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, including all
interest and principal received on or with respect to the Mortgage Loans (other
than payments of principal and interest due and payable on the Mortgage Loans on
or before the Cut-off Date). The 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
shall deliver or cause to be delivered to 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 Wells Fargo Bank,
N.A., as trustee for the holders of the Banc of America Alternative Loan
Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1, 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);
(ii) except as provided below, the original recorded Mortgage with
evidence of a recording thereon, or if any such Mortgage has not been
returned from the applicable recording office or has been lost, or if such
public recording office retains the original recorded Mortgage, a copy of
such Mortgage certified by the Depositor 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 "Wells Fargo Bank, N.A., as trustee for
the holders of the Banc of America Alternative Loan Trust 2007-1 Mortgage
Pass-Through Certificates, Series 2007-1" (which may be included in a
blanket assignment or assignments), together with, except as provided
below, originals of all interim recorded assignments of such mortgage or a
copy of such interim assignment certified by the Depositor 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 Servicer shall take
all actions as are necessary to cause the Trust to be shown as the owner
of the related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS;
(iv) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon, if any;
(v) 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 of the type described in Section 2.04
(viii)) 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 Co-op Shares, the originals
of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for
recordation).
provided, however, that on the Closing Date, with respect to item (iii), the
Depositor has delivered to the Trustee a copy of such Assignment of Mortgage in
blank and has caused the Servicer to retain the completed Assignment of Mortgage
for recording as described below, unless such Mortgage has been recorded in the
name of MERS or its designee. In addition, if the Depositor is unable to deliver
or cause the delivery of any original Mortgage Note due to the loss of such
original Mortgage Note, the Depositor may deliver a copy of such Mortgage Note,
together with a lost note affidavit, and shall thereby be deemed to have
satisfied the document delivery requirements of this Section 2.01(b).
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) 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
any, has not been delivered to either the Servicer or the Depositor by the
applicable title insurer in the case of clause (v) above, the Depositor shall
promptly deliver or cause to be delivered to the Trustee or the Custodian on
behalf of the Trustee, 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 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 the
Officer's Certificate to such effect to the Trustee. The Depositor shall forward
or cause to be forwarded to the Trustee (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
Servicer to the Trustee or the Custodian on the Trustee's behalf. 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 Servicer 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.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within 30 days thereafter, the Servicer shall
(except for any Mortgage which has been recorded in the name of MERS or its
designee) (I) cause each Assignment of Mortgage to be in proper form for
recording in the appropriate public office for real property records within 30
days of the Closing Date and (II) at the Depositor's expense, cause to be
delivered for recording in the appropriate public office for real property
records the Assignments of the Mortgages to the Trustee, except that, with
respect to any Assignment of a Mortgage as to which the Servicer has not
received the information required to prepare such assignment in recordable form,
the Servicer's obligation to do so and to deliver the same for such recording
shall be as soon as practicable after receipt of such information and in any
event within 30 days after the receipt thereof and, no recording of an
Assignment of Mortgage will be required in a state if either (i) the Depositor
furnishes to the Trustee an unqualified Opinion of Counsel reasonably acceptable
to the Trustee 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. Set forth on
Exhibit L attached hereto is a list of all states where recordation is required
by either Rating Agency to obtain the initial ratings of the Certificates. The
Trustee may rely and shall be protected in relying upon the information
contained in such Exhibit L.
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 the Custodian on the Trustee's behalf, will cause the Servicer
to deposit in the Servicer Custodial Account the portion of such payment that is
required to be deposited in the Servicer Custodial Account pursuant to Section
3.08.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
Subject to the provisions of the following paragraph, the Trustee declares that
it, or the Custodian as its agent, will hold the documents referred to in
Section 2.01 and the other documents delivered to it constituting the Mortgage
Files, and that it will hold such other assets as are included in the Trust
Estate, 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 the Custodian to deliver to the Depositor, the Trustee
and the Servicer a certification in the form of Exhibit M hereto (the "Initial
Certification") to the effect that, except as may be specified in a list of
exceptions attached thereto, it 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 the Custodian to review, the Mortgage Files
in its possession, and shall deliver to the Depositor, the Trustee and the
Servicer a certification in the form of Exhibit N hereto (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).
If, in the course of such review, the Trustee or the 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, the Trustee
shall promptly so notify the Servicer and the Depositor, or shall cause the
Custodian to promptly so notify the Servicer and the Depositor. In performing
any such review, the Trustee or the Custodian may conclusively rely on the
purported genuineness of any such document and any signature thereon. It is
understood that the scope of the Trustee's or the Custodian's review of the
Mortgage Files is limited solely to confirming that the documents listed in
Section 2.01 have been received and further confirming that any and all
documents delivered pursuant to Section 2.01 appear on their face to have been
executed and relate to the Mortgage Loans identified in the Mortgage Loan
Schedule based solely upon the review of items (i) and (xi) in the definition of
Mortgage Loan Schedule. Neither the Trustee nor the 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. The Depositor hereby covenants and agrees that it
will promptly correct or cure such defect within 90 days from the date it was so
notified of such defect and, if the Depositor does not correct or cure such
defect within such period, the Depositor will either (a) 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 Trustee at the Repurchase Price for such
Mortgage Loan; provided, however, that in no event shall such a substitution
occur more than two years from the Closing Date; provided, further, that such
substitution or repurchase shall 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.
With respect to each Substitute Mortgage Loan the Depositor shall
deliver to the Trustee, for the benefit of the Certificateholders, the Mortgage
Note, the Mortgage, the related Assignment of Mortgage (except for any Mortgage
which has been recorded in the name of MERS or its designee), and such other
documents and agreements as are otherwise required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Monthly Payments due with respect to any such
Substitute Mortgage Loan in the month of substitution shall not be part of the
Trust Estate and will be retained by the Depositor. 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 has substituted a Substitute Mortgage Loan.
The 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 Servicer shall deliver the amended Mortgage Loan Schedule
to the Trustee and the Custodian. Upon such substitution, each Substitute
Mortgage Loan shall be subject to the terms of this Agreement in all respects,
and the Depositor 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 Section 2.04. Upon any such
substitution and the deposit to the Servicer Custodial Account of any required
Substitution Adjustment Amount (as described in the next paragraph) and receipt
of a Request for Release, the Trustee shall release, or shall direct the
Custodian to release, the Mortgage File relating to such Defective Mortgage Loan
to the Depositor and shall execute and deliver at the Depositor's direction such
instruments of transfer or assignment prepared by the Depositor, in each case
without recourse, as shall be necessary to vest title in the Depositor, 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 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 in a Loan Group as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Defective Mortgage Loans in such
Loan Group (after application of the principal portion of the Monthly Payments
due in the month of substitution) (the "Substitution Adjustment Amount" for such
Loan Group) plus an amount equal to the aggregate of any unreimbursed Advances
with respect to such Defective Mortgage Loans shall be deposited into the
Servicer Custodial Account by the Depositor on or before the Remittance Date for
the Distribution Date in the month succeeding the calendar month during which
the related Mortgage Loan is required to be purchased or replaced hereunder.
The Trustee shall retain or shall cause the Custodian to retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions set forth herein. The Servicer shall promptly deliver
to the Trustee, 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 Servicer's possession from time
to time.
It is understood and agreed that the obligation of the Depositor to
substitute for or to purchase any Mortgage Loan which does not meet the
requirements of Section 2.01 shall constitute the sole remedy respecting such
defect available to the Trustee and any Certificateholder against the Depositor.
The Trustee or the Custodian, on behalf of the Trustee, shall be
under no duty or obligation (i) to inspect, review or examine any such
documents, instruments, certificates or other papers to determine that they are
genuine, enforceable, or appropriate for the represented purpose or that they
are other than what they purport to be on their face or (ii) to determine
whether any Mortgage File should include any of the documents specified in
Section 2.01(b)(iv), (vi), (vii), (viii) and (ix). In connection with making the
certifications required hereunder, to the extent a title search or opinion of
counsel has been provided in lieu of a title policy for any Mortgage Loan, the
Trustee shall only be responsible for confirming that a title search or opinion
of counsel has been provided for such Mortgage Loan and shall not be deemed to
have certified that the content of such title search or opinion of counsel is
sufficient to meet the requirements of Section 2.01(b)(v).
Section 2.03 Representations and Warranties of the Servicer. The
Servicer hereby makes the following representations and warranties to the
Depositor and the Trustee, as of the Closing Date:
(i) The Servicer is a national banking association duly organized,
validly existing, and in good standing under the federal 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 is located if
the laws of such state require licensing or qualification in order to
conduct business of the type conducted by the Servicer. The 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 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 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 creditors' rights generally or creditors of national
banks 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 Servicer to make this Agreement valid and binding upon
the 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 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 Servicer and will
not result in the breach of any term or provision of the charter or
by-laws of the 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 Servicer or its property
is subject, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Servicer or its property is
subject.
(iv) There is no action, suit, proceeding or investigation pending
or, to the best knowledge of the Servicer, threatened against the 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 Servicer, or in any material impairment of the
right or ability of the 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 Servicer contemplated herein, or
which would materially impair the ability of the Servicer to perform under
the terms of this Agreement.
(v) The Servicer has fully furnished, and shall continue to fully
furnish for so long as it is servicing the Mortgage Loans hereunder, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information on the related Mortgagor
credit files to Equifax, Experian and Trans Union Credit Information
Company on a monthly basis.
The representations and warranties made pursuant to this Section
2.03 shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Certificateholders. Upon discovery by any of the Depositor,
the Servicer or the Trustee of a breach of any of the representations or
warranties set forth in this Section 2.03, the party discovering such breach
shall give prompt written notice to the other parties.
Section 2.04 Representations and Warranties of the Depositor as to
the Mortgage Loans. The Depositor hereby represents and warrants to the Trustee
with respect to the Mortgage Loans or each Mortgage Loan, as the case may be, as
of the date hereof or such other date set forth herein that as of the Closing
Date:
(i) The information set forth in the Mortgage Loan Schedule is true
and correct in all material respects.
(ii) There are no delinquent taxes, ground rents, governmental
assessments, insurance premiums, leasehold payments, including assessments
payable in future installments or other outstanding charges affecting the
lien priority of the related Mortgaged Property.
(iii) The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office if
necessary to maintain the lien priority of the Mortgage, and which have
been delivered to the Trustee; the substance of any such waiver,
alteration or modification has been approved by the insurer under the
Primary Insurance Policy, if any, the title insurer, to the extent
required by the related policy, and is reflected on the Mortgage Loan
Schedule. No instrument of waiver, alteration or modification has been
executed, and no Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement approved by the insurer under
the Primary Insurance Policy, if any, the title insurer, to the extent
required by the policy, and which assumption agreement has been delivered
to the Trustee.
(iv) The Mortgage Note and the Mortgage are not subject to any right
of rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note and
the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto.
(v) All buildings upon the Mortgaged Property are insured by an
insurer generally acceptable to prudent mortgage lending institutions
against loss by fire, hazards of extended coverage and such other hazards
as are customary in the area the Mortgaged Property is located, pursuant
to insurance policies conforming to the requirements of Customary
Servicing Procedures and this Agreement. All such insurance policies
contain a standard mortgagee clause naming the originator of the Mortgage
Loan, its successors and assigns as mortgagee and all premiums thereon
have been paid. If the Mortgaged Property is in an area identified on a
flood hazard map or flood insurance rate map issued by the Federal
Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available), a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect which policy conforms to the requirements of
Fannie Mae or Freddie Mac. The Mortgage obligates the Mortgagor thereunder
to maintain all such insurance at the Mortgagor's cost and expense, and on
the Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor.
(vi) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate
settlement procedures, consumer credit protections, all applicable
predatory and abusive lending laws, equal credit opportunity or disclosure
laws applicable to the origination and servicing of Mortgage Loan have
been complied with.
(vii) The Mortgage has not been satisfied, canceled, subordinated or
rescinded, in whole or in part (other than as to Principal Prepayments in
full which may have been received prior to the Closing Date), and the
Mortgaged Property has not been released from the lien of the Mortgage, in
whole or in part, nor has any instrument been executed that would effect
any such satisfaction, cancellation, subordination, rescission or release.
(viii) The Mortgage is a valid, existing and enforceable first lien
on the Mortgaged Property, including all improvements on the Mortgaged
Property subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of the public
record as of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's title
insurance policy delivered to the originator of the Mortgage Loan and
which do not adversely affect the Appraised Value of the Mortgaged
Property, (C) if the Mortgaged Property consists of Co-op Shares, any lien
for amounts due to the cooperative housing corporation for unpaid
assessments or charges or any lien of any assignment of rents or
maintenance expenses secured by the real property owned by the cooperative
housing corporation, and (D) other matters to which like properties are
commonly subject which do not materially interfere with the benefits of
the security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a
valid, existing and enforceable first lien and first priority security
interest on the property described therein and the Depositor has the full
right to sell and assign the same to the Trustee.
(ix) The Mortgage Note and the related Mortgage are genuine and each
is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms 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.
(x) All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage
have been duly and properly executed by such parties.
(xi) The proceeds of the Mortgage Loan have been fully disbursed to
or for the account of the Mortgagor and there is no obligation for the
Mortgagee to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site improvements and
as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and the recording of the Mortgage have been paid, and the Mortgagor
is not entitled to any refund of any amounts paid or due to the Mortgagee
pursuant to the Mortgage Note or Mortgage.
(xii) To the best of the Depositor's knowledge, all parties which
have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held and disposed of such interest, were) in compliance with any and all
applicable "doing business" and licensing requirements of the laws of the
state wherein the Mortgaged Property is located.
(xiii) (A) The Mortgage Loan is covered by an ALTA lender's title
insurance policy, acceptable to Fannie Mae or Freddie Mac, issued by a
title insurer acceptable to Fannie Mae or Freddie Mac and qualified to do
business in the jurisdiction where the Mortgaged Property is located,
insuring (subject to the exceptions contained in (viii)(A) and (B) above)
the Seller, its successors and assigns as to the first priority lien of
the Mortgage in the original principal amount of the Mortgage Loan, (B) a
title search has been done showing no lien (other than the exceptions
contained in (viii)(A) and (B) above) on the related Mortgaged Property
senior to the lien of the Mortgage or (C) in the case of any Mortgage Loan
secured by a Mortgaged Property located in a jurisdiction where such
policies are generally not available, an opinion of counsel of the type
customarily rendered in such jurisdiction in lieu of title insurance is
instead received. For each Mortgage Loan covered by a title insurance
policy (x) the Depositor is the sole insured of such lender's title
insurance policy, and such lender's title insurance policy is in full
force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement and (y) no
claims have been made under such lender's title insurance policy, and the
Depositor has not done, by act or omission, anything which would impair
the coverage of such lender's title insurance policy.
(xiv) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or
event of acceleration, and the Seller has not waived any default, breach,
violation or event of acceleration.
(xv) As of the date of origination of the Mortgage Loan, there had
been no mechanics' or similar liens or claims filed for work, labor or
material (and no rights are outstanding that under law could give rise to
such lien) affecting the related Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage.
(xvi) All improvements which were considered in determining the
Appraised Value of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property, and
no improvements on adjoining properties encroach upon the Mortgaged
Property.
(xvii) The Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a
federal or state authority, or by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to sections 203 and 211 of the
National Housing Act.
(xviii) Principal payments on the Mortgage Loan commenced no more
than sixty days after the proceeds of the Mortgaged Loan were disbursed.
The Mortgage Loans are 20 to 30-year fixed rate mortgage loans having an
original term to maturity of not more than 30 years, with interest payable
in arrears on the first day of the month. Each Mortgage Note requires a
monthly payment which is sufficient to fully amortize the original
principal balance over the original term thereof and to pay interest at
the related Mortgage Interest Rate. The Mortgage Note does not permit
negative amortization.
(xix) There is no proceeding pending or, to the Depositor's
knowledge, threatened for the total or partial condemnation of the
Mortgaged Property. The Mortgaged Property is in good repair and is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty, so as to affect adversely the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended.
(xx) The Mortgage and related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property
of the benefits of the security provided thereby, including (A) in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and
(B) otherwise by judicial foreclosure. To the best of the Depositor's
knowledge, following the date of origination of the Mortgage Loan, the
Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the Mortgagor has not filed for protection
under applicable bankruptcy laws. There is no homestead or other exemption
or right available to the Mortgagor or any other person which would
interfere with the right to sell the Mortgaged Property at a trustee's
sale or the right to foreclose the Mortgage.
(xxi) Other than any Borrowers Protection Plan(R) addendum to the
Mortgage Note of a BPP Mortgage Loan, the Mortgage Note and Mortgage are
on forms acceptable to Fannie Mae or Freddie Mac.
(xxii) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (viii) above.
(xxiii) Each appraisal of the related Mortgaged Property, is in a
form acceptable to Fannie Mae or Freddie Mac and such appraisal complies
with the requirements of FIRREA, and was made and signed, prior to the
approval of the Mortgage Loan application, by a Qualified Appraiser.
(xxiv) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves, and no fees or expenses are
or will become payable by the Trustee to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(xxv) No Mortgage Loan is a graduated payment mortgage loan, no
Mortgage Loan has a shared appreciation or other contingent interest
feature, and no more than 0.00%, 0.00% and 0.19% (by Cut-off Date
Principal Balance) of the Group 1 Mortgage Loans, Group 2 Mortgage Loans
and Group 3 Mortgage Loans, respectively, are Buy-Down Mortgage Loans.
(xxvi) The Mortgagor has received all disclosure materials required
by applicable law with respect to the making of mortgage loans of the same
type as the Mortgage Loan and rescission materials required by applicable
law if the Mortgage Loan is a Refinance Mortgage Loan.
(xxvii) Each Primary Insurance Policy to which any Mortgage Loan is
subject will be issued by an insurer acceptable to Fannie Mae or Freddie
Mac, which insures that portion of the Mortgage Loan in excess of the
portion of the Appraised Value of the Mortgaged Property required by
Fannie Mae. All provisions of such Primary Insurance Policy have been and
are being complied with, such policy is in full force and effect, and all
premiums due thereunder have been paid. Any Mortgage subject to any such
Primary Insurance Policy obligates the Mortgagor thereunder to maintain
such insurance and to pay all premiums and charges in connection therewith
at least until Loan-to-Value Ratio of such Mortgage Loan is reduced to
less than 80%. The Mortgage Interest Rate for the Mortgage Loan does not
include any such insurance premium.
(xxviii) To the best of the Depositor's knowledge as of the date of
origination of the Mortgage Loan, (A) the Mortgaged Property is lawfully
occupied under applicable law, (B) all inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of
occupancy, have been made or obtained from the appropriate authorities and
(C) no improvement located on or part of the Mortgaged Property is in
violation of any zoning law or regulation.
(xxix) The Assignment of Mortgage (except with respect to any
Mortgage that has been recorded in the name of MERS or its designee) is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located.
(xxx) All payments required to be made prior to the Cut-off Date for
such Mortgage Loan under the terms of the Mortgage Note have been made and
no Mortgage Loan has been more than 30 days delinquent more than once in
the twelve month period immediately prior to the Cut-off Date.
(xxxi) With respect to each Mortgage Loan, the Depositor or Servicer
is in possession of a complete Mortgage File except for the documents
which have been delivered to the Trustee or which have been submitted for
recording and not yet returned.
(xxxii) 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.
(xxxiii) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a
single interest rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having
first lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title
evidence acceptable to Fannie Mae and Freddie Mac. The consolidated
principal amount does not exceed the original principal amount of the
Mortgage Loan.
(xxxiv) The Mortgage Loan was underwritten in accordance with the
applicable Underwriting Guidelines in effect at the time of origination
with exceptions thereto exercised in a reasonable manner.
(xxxv) If the Mortgage Loan is secured by a long-term residential
lease, (1) the lessor under the lease holds a fee simple interest in the
land; (2) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent
and the acquisition by the holder of the Mortgage of the rights of the
lessee upon foreclosure or assignment in lieu of foreclosure or provide
the holder of the Mortgage with substantially similar protections; (3) the
terms of such lease do not (a) allow the termination thereof upon the
lessee's default without the holder of the Mortgage being entitled to
receive written notice of, and opportunity to cure, such default, (b)
allow the termination of the lease in the event of damage or destruction
as long as the Mortgage is in existence, (c) prohibit the holder of the
Mortgage from being insured (or receiving proceeds of insurance) under the
hazard insurance policy or policies relating to the Mortgaged Property or
(d) permit any increase in the rent other than pre-established increases
set forth in the lease; (4) the original term of such lease is not less
than 15 years; (5) the term of such lease does not terminate earlier than
five years after the maturity date of the Mortgage Note; and (6) the
Mortgaged Property is located in a jurisdiction in which the use of
leasehold estates in transferring ownership in residential properties is a
widely accepted practice.
(xxxvi) No more than 1.50%, 1.70% and 0.15% (by Cut-off Date
Principal Balance) of the Group 1 Mortgage Loans, Group 2 Mortgage Loans
and Group 3 Mortgage Loans, respectively, are secured by long-term
residential leases.
(xxxvii) The Mortgaged Property is located in the state identified
in the Mortgage Loan Schedule and consists of a parcel of real property
with a detached single family residence erected thereon, or a two- to
four-family dwelling, or an individual condominium unit, or an individual
unit in a planned unit development, or, in the case of Mortgage Loans
secured by Co-op Shares, leases or occupancy agreements; provided,
however, that any condominium project or planned unit development
generally conforms with the applicable Underwriting Guidelines regarding
such dwellings, and no residence or dwelling is a mobile home or a
manufactured dwelling.
(xxxviii) The Depositor used no adverse selection procedures in
selecting the Mortgage Loan for inclusion in the Trust Estate.
(xxxix) Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
(xl) With respect to each Mortgage where a lost note affidavit has
been delivered to the Trustee in place of the related Mortgage Note, the
related Mortgage Note is no longer in existence.
(xli) No Mortgage Loan is a "high cost" loan as defined under any
federal, state or local law applicable to such Mortgage Loan at the time
of its origination.
(xlii) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current S&P's LEVELS(R)
Glossary which is now Version 5.7, Appendix E) and no Mortgage Loan
originated on or after October 1, 2002 through March 6, 2003 is governed
by the Georgia Fair Lending Act.
(xliii) No Mortgage Loan is subject to the provisions of the Home
Ownership and Equity Protection Act of 1994, as amended.
(xliv) No Group 2 Mortgage Loan is a "high cost home," "covered,"
"high risk home" or "predatory" loan under any applicable state, federal
or local law (or a similarly classified loan using different terminology
under a law imposing heightened regulatory scrutiny or additional legal
liability for residential mortgage loans having high interest rates,
points and/or fees).
(xlv) With respect to each Group 2 Mortgage Loan, no borrower
obtained a prepaid single-premium credit life, credit disability, credit
unemployment or credit property insurance policy in connection with the
origination of the Mortgage Loan.
(xlvi) No Group 2 Mortgage Loan provides for the payment of a
prepayment premium.
(xlvii) No Group 2 Mortgage Loan originated on or after August 1,
2004 requires the borrower to submit to arbitration to resolve any dispute
arising out of or relating in any way to the mortgage loan transaction.
(xlviii) As of the date of origination, no Group 2 Mortgage Loan had
a principal balance in excess of Freddie Mac's dollar amount limits for
conforming one- to four-family mortgage loans.
(xlix) With respect to each Group 2 Mortgage Loan, the borrower was
offered mortgage loan products for which the borrower qualified.
(l) The methodology used in underwriting the extension of credit for
each Group 2 Mortgage Loan employs objective mathematical principles which
relate the borrower's income, assets and liabilities to the proposed
payment and such underwriting methodology does not rely on the extent of
the borrower's equity in the collateral as the principal determining
factor in approving such credit extension. Such underwriting methodology
confirmed that at the time of origination (application/approval) the
borrower had the reasonable ability to make timely payments on the
Mortgage Loan.
(li) No borrower under a Group 2 Mortgage Loan was charged "points
and fees" in an amount greater than (a) $1,000 or (b) 5% of the Cut-off
Date Principal Balance of such Mortgage Loan, whichever is greater. For
purposes of this representation, "points and fees" (x) include
origination, underwriting, broker and finder's fees and charges that the
lender imposed as a condition of making the Mortgage Loan, whether they
are paid to the lender or a third party; and (y) exclude bona fide
discount points, fees paid for actual services rendered in connection with
the origination of the mortgage (such as attorneys' fees, notaries fees
and fees paid for property appraisals, credit reports, surveys, title
examinations and extracts, flood and tax certifications, and home
inspections); the cost of mortgage insurance or credit-risk price
adjustments; the costs of title, hazard, and flood insurance policies;
state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges that, in total, do not exceed 0.25 percent of the loan amount.
(lii) All points, fees and charges (including finance charges),
whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Group 2 Mortgage
Loan, have been disclosed in writing to the borrower in accordance with
applicable state and federal law and regulation.
Notwithstanding the foregoing, no representations or warranties are
made by the Depositor as to the environmental condition of any Mortgaged
Property; the absence, presence or effect of hazardous wastes or hazardous
substances on any Mortgaged Property; any casualty resulting from the presence
or effect of hazardous wastes or hazardous substances on, near or emanating from
any Mortgaged Property; the impact on Certificateholders of any environmental
condition or presence of any hazardous substance on or near any Mortgaged
Property; or the compliance of any Mortgaged Property with any environmental
laws, nor is any agent, Person or entity otherwise affiliated with the Depositor
authorized or able to make any such representation, warranty or assumption of
liability relative to any Mortgaged Property. In addition, no representations or
warranties are made by the Depositor with respect to the absence or effect of
fraud in the origination of any Mortgage Loan.
It is understood and agreed that the representations and warranties
set forth in this Section 2.04 shall survive delivery of the respective Mortgage
Files to the Trustee or the Custodian and shall inure to the benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement or assignment.
Upon discovery by any of the Depositor, the Servicer, the Trustee or
the Custodian 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 (in the case of the representations and warranties set forth in clauses
(i) through (xlii) of this Section 2.04) 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
(any Custodian being so obligated under a custodial agreement); provided that
any such breach that causes the Mortgage Loan not to be a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code shall be deemed to
materially and adversely affect the interests of the Certificateholders. Within
90 days of its discovery or its receipt of notice of any such breach, the
Depositor shall cure such breach in all material respects or shall either (i)
repurchase the Mortgage Loan or any property acquired in respect thereof from
the Trustee at a price equal to the Repurchase Price or (ii) if within two years
of the Closing Date, substitute for such Mortgage Loan in the manner described
in Section 2.02; provided that if the breach would cause the Mortgage Loan to be
other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code,
any such repurchase or substitution must occur within 90 days from the date the
breach was discovered. In addition to the foregoing, if a breach of the
representation set forth in clause (vi) or (xlii) of this Section 2.04 occurs as
a result of a violation of an applicable predatory or abusive lending law, the
Depositor shall reimburse the Trust for all costs or damages incurred by the
Trust as a result of the violation of such law (such amount, the "Reimbursement
Amount"). The Repurchase Price of any repurchase described in this paragraph,
the Substitution Adjustment Amount, if any, and any Reimbursement Amount shall
be deposited in the Servicer Custodial Account. It is understood and agreed
that, except with respect to the second preceding sentence, the obligation of
the Depositor to repurchase or substitute for any Mortgage Loan or Mortgaged
Property as to which such a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to
Certificateholders, or to the Trustee on behalf of Certificateholders, and such
obligation shall survive until termination of the Trust hereunder.
Section 2.05 Designation of Interests in the REMICs. The Depositor
hereby designates the Classes of Senior Certificates (other than the
Exchangeable Certificates and the Class 3-A-R Certificate and other than the
right of the Class 3-A-11 and Class 3-A-16 Certificates to receive the Yield
Maintenance Agreement Payments), the Classes of Subordinate Certificates as
"regular interests" and the Class R-U Interest as the single class of "residual
interest" in the Upper-Tier REMIC for the purposes of Code Sections 860G(a)(1)
and 860G(a)(2), respectively. The Depositor hereby further designates (i) the
Uncertificated Middle-Tier Interests as classes of "regular interests" and the
Class R-M Interest as the single class of "residual interest" in the Middle-Tier
REMIC and (ii) the Uncertificated Lower-Tier Interests as classes of "regular
interests" and the Class R-L Interest as the single class of "residual interest"
in the Lower-Tier REMIC for the purposes of Code Sections 860G(a)(1) and
860G(a)(2), respectively.
Section 2.06 Designation of Start-up Day. The Closing Date is hereby
designated as the "start-up day" of each of the Upper-Tier REMIC, Middle-Tier
REMIC and Lower-Tier REMIC within the meaning of Section 860G(a)(9) of the Code.
Section 2.07 REMIC Certificate Maturity Date. Solely for purposes of
satisfying Section 1.860G-1(a)(4)(iii) of the Treasury Regulations, the "latest
possible maturity date" of the regular interests in the Upper-Tier REMIC,
Middle-Tier REMIC and Lower-Tier REMIC is April 25, 2037.
Section 2.08 Execution and Delivery of Certificates. (a) The Trustee
(i) in exchange for the Mortgage Loans and all other assets included in the
definition of "Trust Estate," receipt of which is hereby acknowledged,
acknowledges the issuance of and hereby declares that it holds the
Uncertificated Lower-Tier Interests on behalf of the Middle-Tier REMIC and the
Certificateholders, (ii) in exchange for the Uncertificated Lower-Tier
Interests, acknowledges the issuance of and hereby declares that it holds the
Uncertificated Middle-Tier Interests on behalf of the Upper-Tier REMIC and the
Certificateholders and (iii) in exchange for the Uncertificated Middle-Tier
Interests, has executed and delivered to or upon the order of the Depositor,
Certificates (other than the Exchangeable Certificates) in authorized
Denominations which, together with the Uncertificated Middle-Tier Interests and
the Uncertificated Lower-Tier Interests, evidence ownership of the entire Trust
Estate.
(b) In addition, the Trustee shall, from time to time as requested
by beneficial owners of Exchangeable REMIC Certificates or Exchangeable
Certificates pursuant to Section 5.10(b), exchange Exchangeable REMIC
Certificates for Exchangeable Certificates and vice versa.
ARTICLE III
ADMINISTRATION AND SERVICING
OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans. For and on behalf
of the Certificateholders, the Servicer shall service and administer the
Mortgage Loans, all in accordance with the terms of this Agreement, Customary
Servicing Procedures, applicable law and the terms of the Mortgage Notes and
Mortgages. In connection with such servicing and administration, the Servicer
shall have full power and authority, acting alone and/or through Subservicers as
provided in Section 3.02, to do or cause to be done any and all things that it
may deem necessary or desirable in connection with such servicing and
administration including, but not limited to, the power and authority, subject
to the terms hereof, (a) to execute and deliver, on behalf of the
Certificateholders and the Trustee, customary consents or waivers and other
instruments and documents, (b) to consent, with respect to the Mortgage Loans it
services, to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages (but only in the manner provided in this Agreement),
(c) to collect any Insurance Proceeds and other Liquidation Proceeds relating to
the Mortgage Loans it services, and (d) to effectuate foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage Loan
it services. The Servicer shall represent and protect the interests of the Trust
in the same manner as it protects its own interests in mortgage loans in its own
portfolio in any claim, proceeding or litigation regarding a Mortgage Loan and
shall not make or permit any modification, waiver or amendment of any term of
any Mortgage Loan, except as provided pursuant to Section 3.21. Without limiting
the generality of the foregoing, the Servicer, in its own name or in the name of
any Subservicer or the Depositor and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when the Servicer or any
Subservicer, as the case may be, believes it appropriate in its reasonable
judgment, to execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments or agreements of
satisfaction, cancellation, default, assumption, modification, discharge,
partial or full release, and all other comparable instruments and agreements,
with respect to the Mortgage Loans it services, and with respect to the related
Mortgaged Properties held for the benefit of the Certificateholders. To the
extent that the Servicer is not permitted to execute and deliver such documents
pursuant to the preceding sentence, the Servicer shall prepare and deliver to
the Depositor and/or the Trustee such documents requiring execution and delivery
by either or both of them as are necessary or appropriate to enable the Servicer
to service and administer the Mortgage Loans it services. Upon receipt of such
documents, the Depositor and/or the Trustee, upon the direction of the Servicer,
shall promptly execute such documents and deliver them to the Servicer.
Alternatively, upon the request of the Servicer, the Trustee shall execute and
deliver to the Servicer any additional powers of attorney and other documents
prepared by the Servicer that are reasonably necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties under this
Agreement.
In accordance with the standards of the preceding paragraph, the
Servicer shall advance or cause to be advanced funds as necessary for the
purpose of effecting the payment of taxes and assessments on the Mortgaged
Properties relating to the Mortgage Loans it services, which Servicing Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 3.09, and further as provided in Section 3.11.
The costs incurred by the Servicer, if any, in effecting the timely payments of
taxes and assessments on the Mortgaged Properties and related insurance premiums
shall not, for the purpose of calculating monthly distributions to the
Certificateholders, be added to the Stated Principal Balances of the related
Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so permit.
The relationship of the Servicer (and of any successor to the
Servicer as servicer under this Agreement) to the Trustee 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 Subservicing; Enforcement of the Obligations of
Servicer. (a) The Servicer may arrange for the subservicing of any Mortgage Loan
it services by a Subservicer pursuant to a Subservicing Agreement; provided,
however, that such subservicing arrangement and the terms of the related
Subservicing Agreement must provide for the servicing of such Mortgage Loan in a
manner consistent with the servicing arrangements contemplated hereunder.
Notwithstanding the provisions of any Subservicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Servicer and a Subservicer or reference to actions taken through a Subservicer
or otherwise, the Servicer shall remain obligated and liable to the Depositor,
the Trustee and the Certificateholders for the servicing and administration of
the Mortgage Loans it services in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Subservicing Agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering those Mortgage Loans. All
actions of each Subservicer performed pursuant to the related Subservicing
Agreement shall be performed as agent of the Servicer with the same force and
effect as if performed directly by the Servicer.
(b) For purposes of this Agreement, the Servicer shall be deemed to
have received any collections, recoveries or payments with respect to the
Mortgage Loans it services that are received by a Subservicer regardless of
whether such payments are remitted by the Subservicer to the Servicer.
(c) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee and the Certificateholders, shall use its best
reasonable efforts to enforce the obligations of each Subservicer engaged by the
Servicer under the related Subservicing Agreement, to the extent that the
non-performance of any such obligation would have a material and adverse effect
on a Mortgage Loan. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Subservicing 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 Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The 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 Loan or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party against whom such enforcement is
directed.
(d) Any Subservicing Agreement entered into by the Servicer shall
provide that it may be assumed or terminated by the Trustee, if the Trustee has
assumed the duties of the Servicer, or any successor Servicer, at the Trustee's
or successor Servicer's option, as applicable, without cost or obligation to the
assuming or terminating party or the Trust Estate, upon the assumption by such
party of the obligations of the Servicer pursuant to Section 8.05.
(e) Notwithstanding the foregoing, to the extent the Servicer
engages any affiliate or third party vendor, including any Subservicer, in
connection with the performance of any of its duties under this Agreement, the
Servicer shall immediately notify the Depositor in writing of such engagement.
To the extent the Depositor notifies the Servicer and the Trustee that it has
determined that any such affiliate, third party vendor or Subservicer is a
Servicing Function Participant, the Servicer shall cause such Servicing Function
Participant to prepare a separate assessment and attestation report, as
contemplated by Section 3.19 of this Agreement and deliver such report to the
Trustee as set forth in Section 3.22 of this Agreement. In addition, to the
extent the Depositor notifies the Servicer and the Trustee that it has
determined that any such Servicing Function Participant would be a "servicer"
within the meaning of Item 1101 of Regulation AB and meets the criteria in Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB (an "Additional Servicer"), the
Servicer shall cause such Additional Servicer to prepare a separate compliance
statement as contemplated by Section 3.18 of this Agreement and deliver such
statement to the Trustee as set forth in Section 3.22 of this Agreement. In
addition, if the Depositor determines any such Servicing Function Participant
would be a "servicer" within the meaning of Item 1101 of Regulation AB, the
Servicer shall cause such Servicing Function Participant to provide the
Depositor and the Trustee the information required by Section 1108(b) and
1108(c) of Regulation AB within two Business Days following such engagement. To
the extent the Servicer terminates any such Servicing Function Participant that
the Depositor has determined is a "servicer" within the meaning of Item 1101 of
Regulation AB, the Servicer shall provide the Depositor and the Trustee the
information required to enable the Trustee to accurately and timely report such
event under Item 6.02 of Form 8-K (if the Trust's Exchange Act reporting
requirements have not been suspended pursuant to Section 15(d) of the Exchange
Act as set forth in 3.22(g)).
Section 3.03 Fidelity Bond; Errors and Omissions Insurance. The
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 acting in any capacity requiring such persons to
handle funds, money, documents or papers relating to the Mortgage Loans it
services. These policies must insure the Servicer against losses resulting from
dishonest or fraudulent acts committed by the Servicer's personnel, any
employees of outside firms that provide data processing services for the
Servicer, and temporary contract employees or student interns. Such fidelity
bond shall also protect and insure the Servicer against losses in connection
with the release or satisfaction of a Mortgage Loan without having obtained
payment in full of the indebtedness secured thereby. No provision of this
Section 3.03 requiring such fidelity bond and errors and omissions insurance
shall diminish or relieve the 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 Fannie
Mae in the Fannie Mae Servicing Guide or by Freddie Mac in the Freddie Mac
Sellers' & Servicers' Guide, as amended or restated from time to time, or in an
amount as may be permitted to the Servicer by express waiver of Fannie Mae or
Freddie Mac.
Section 3.04 Access to Certain Documentation. The Servicer shall
provide 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 upon reasonable and prior written request and during normal business
hours at the offices designated by the Servicer; provided that the Servicer
shall be entitled to be reimbursed by each such Certificateholder for actual
expenses incurred by the Servicer in providing such reports and access. Nothing
in this Section 3.04 shall limit the obligation of the Servicer to observe any
applicable law and the failure of the Servicer to provide access as provided in
this Section 3.04 as a result of such obligation shall not constitute a breach
of this Section 3.04.
Section 3.05 Maintenance of Primary Insurance Policy; Claims;
Collections of BPP Mortgage Loan Payments. (a) With respect to each Mortgage
Loan with a Loan-to-Value Ratio in excess of 80% or such other Loan-to-Value
Ratio as may be required by law that was originated with a Primary Insurance
Policy, the Servicer shall, without any cost to the Trust Estate, maintain or
cause the Mortgagor to maintain in full force and effect a Primary Insurance
Policy insuring that portion of the Mortgage Loan in excess of a percentage in
conformity with Fannie Mae requirements. The Servicer shall pay or shall cause
the Mortgagor to pay the premium thereon on a timely basis, at least until the
Loan-to-Value Ratio of such Mortgage Loan is reduced to 80% or such other
Loan-to-Value Ratio as may be required by law. If such Primary Insurance Policy
is terminated, the Servicer shall obtain from another insurer a comparable
replacement policy, with a total coverage equal to the remaining coverage of
such terminated Primary Insurance Policy. If the insurer shall cease to be an
insurer acceptable to Fannie Mae or Freddie Mac, the Servicer shall notify the
Trustee in writing, it being understood that the Servicer shall not have any
responsibility or liability for any failure to recover under the Primary
Insurance Policy for such reason. If the Servicer determines that recoveries
under the Primary Insurance Policy are jeopardized by the financial condition of
the insurer, the Servicer shall obtain from another insurer which meets the
requirements of this Section 3.05 a replacement insurance policy. The Servicer
shall not take any action that would result in noncoverage under any applicable
Primary Insurance Policy of any loss that, but for the actions of the Servicer,
would have been covered thereunder. In connection with any assumption or
substitution agreement entered into or to be entered into pursuant to Section
3.13, the Servicer shall promptly notify the insurer under the related Primary
Insurance Policy, if any, of such assumption or substitution of liability in
accordance with the terms of such Primary Insurance Policy and shall take all
actions which may be required by such insurer as a condition to the continuation
of coverage under such Primary Insurance Policy. If such Primary Insurance
Policy is terminated as a result of such assumption or substitution of
liability, the Servicer shall obtain a replacement Primary Insurance Policy as
provided above.
In connection with its activities as servicer, the Servicer agrees
to prepare and present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Insurance Policy in
a timely fashion in accordance with the terms of such Primary Insurance Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any Primary Insurance Policy respecting a defaulted Mortgage
Loan. Pursuant to Section 3.09(a), any amounts collected by the Servicer under
any Primary Insurance Policy shall be deposited in the related Escrow Account,
subject to withdrawal pursuant to Section 3.09(b).
The Servicer will comply with all provisions of applicable state and
federal law relating to the cancellation of, or collection of premiums with
respect to, Primary Mortgage Insurance, including, but not limited to, the
provisions of the Homeowners Protection Act of 1998, and all regulations
promulgated thereunder, as amended from time to time.
(b) The Servicer shall take all actions necessary to collect, on
behalf of the Trust, any BPP Mortgage Loan Payments required to be made to the
Trust pursuant to the Mortgage Loan Purchase Agreement.
Section 3.06 Rights of the Depositor and the Trustee in Respect of
the Servicer. The Depositor may, but is not obligated to, enforce the
obligations of the Servicer hereunder and may, but is not obligated to, perform,
or cause a designee to perform, any defaulted obligation of the Servicer
hereunder and in connection with any such defaulted obligation to exercise the
related rights of the Servicer hereunder; provided that the Servicer shall not
be relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee. Neither the Trustee nor the Depositor shall have
any responsibility or liability for any action or failure to act by the Servicer
nor shall the Trustee or the Depositor be obligated to supervise the performance
of the Servicer hereunder or otherwise.
Any Subservicing Agreement that may be entered into and any
transactions or services relating to the Mortgage Loans involving a Subservicer
in its capacity as such shall be deemed to be between the Subservicer and the
Servicer alone, and the Trustee and Certificateholders shall not be deemed
parties thereto and shall have no claims, rights, obligations, duties or
liabilities with respect to the Subservicer except as set forth in Section 3.07.
The Servicer shall be solely liable for all fees owed by it to any Subservicer,
irrespective of whether the Servicer's compensation pursuant to this Agreement
is sufficient to pay such fees.
Section 3.07 Trustee to Act as Servicer. If the Servicer shall for
any reason no longer be the Servicer hereunder (including by reason of an Event
of Default), the Trustee shall within 90 days of such time, assume, if it so
elects, or shall appoint a successor Servicer to assume, all of the rights and
obligations of the Servicer hereunder arising thereafter (except that the
Trustee shall not be (a) liable for losses of the Servicer pursuant to Section
3.12 or any acts or omissions of the predecessor Servicer hereunder, (b)
obligated to make Advances if it is prohibited from doing so by applicable law
or (c) deemed to have made any representations and warranties of the Servicer
hereunder). Any such assumption shall be subject to Sections 7.02 and 8.05. If
the Servicer shall for any reason no longer be the Servicer (including by reason
of any Event of Default), the Trustee or the successor Servicer may elect to
succeed to any rights and obligations of the Servicer under each Subservicing
Agreement or may terminate each Subservicing Agreement. If it has elected to
assume the Subservicing Agreement, the Trustee or the successor Servicer shall
be deemed to have assumed all of the Servicer's interest therein and to have
replaced the Servicer as a party to any Subservicing Agreement entered into by
the Servicer as contemplated by Section 3.02 to the same extent as if the
Subservicing Agreement had been assigned to the assuming party except that the
Servicer shall not be relieved of any liability or obligations under any such
Subservicing Agreement.
The Servicer that is no longer the Servicer hereunder shall, upon
request of the Trustee, but at the expense of such predecessor Servicer, deliver
to the assuming party all documents and records relating to each Subservicing
Agreement or substitute servicing agreement and the Mortgage Loans then being
serviced thereunder and an accounting of amounts collected or held by it and
otherwise use its best efforts to effect the orderly and efficient transfer of
such substitute Subservicing Agreement to the assuming party. The Trustee shall
be entitled to be reimbursed from the predecessor Servicer (or the Trust if the
predecessor Servicer is unable to fulfill its obligations hereunder) for all
Servicing Transfer Costs.
Section 3.08 Collection of Mortgage Loan Payments; Servicer
Custodial Account; Certificate Account; Reserve Funds; Posted Collateral Account
and Yield Maintenance Agreements. (a) Continuously from the date hereof until
the principal and interest on all Mortgage Loans are paid in full, the Servicer
will proceed diligently, in accordance with this Agreement, to collect all
payments due under each of the Mortgage Loans it services when the same shall
become due and payable. Further, the Servicer will in accordance with all
applicable law and Customary Servicing Procedures ascertain and estimate taxes,
assessments, fire and hazard insurance premiums, mortgage insurance premiums and
all other charges with respect to the Mortgage Loans it services that, as
provided in any Mortgage, will become due and payable to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges as
and when they become due and payable. Consistent with the foregoing, the
Servicer may in its discretion (i) waive any late payment charge or any
prepayment charge or penalty interest in connection with the prepayment of a
Mortgage Loan it services and (ii) extend the due dates for payments due on a
Mortgage Note for a period not greater than 120 days; provided, however, that
the Servicer cannot extend the maturity of any such Mortgage Loan past the date
on which the final payment is due on the latest maturing Mortgage Loan as of the
Cut-off Date. In the event of any such arrangement, the Servicer shall make
Periodic Advances on the related Mortgage Loan in accordance with the provisions
of Section 3.20 during the scheduled period in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements. The Servicer shall not be required to institute or join in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any public or governmental authority with
respect to a taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which such payment
is required is prohibited by applicable law.
(b) The Servicer shall establish and maintain the Servicer Custodial
Account. The Servicer shall deposit or cause to be deposited into the Servicer
Custodial Account, all on a daily basis within one Business Day of receipt,
except as otherwise specifically provided herein, the following payments and
collections remitted by Subservicers or received by the Servicer in respect of
the Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest due on the Mortgage Loans on or before the Cut-off Date)
and the following amounts required to be deposited hereunder with respect to the
Mortgage Loans it services:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the Servicing Fee;
(iii) (A) all Insurance Proceeds and Liquidation Proceeds, other
than Insurance Proceeds to be (1) applied to the restoration or repair of
the Mortgaged Property, (2) released to the Mortgagor in accordance with
Customary Servicing Procedures or (3) required to be deposited to an
Escrow Account pursuant to Section 3.09(a), and other than any Excess
Proceeds and (B) any Insurance Proceeds released from an Escrow Account
pursuant to Section 3.09(b)(iv);
(iv) any amount required to be deposited by the Servicer pursuant to
Section 3.08(d) in connection with any losses on Permitted Investments
with respect to the Servicer Custodial Account;
(v) any amounts required to be deposited by the Servicer pursuant to
Section 3.14;
(vi) all Repurchase Prices, all Substitution Adjustment Amounts and
all Reimbursement Amounts, to the extent received by the Servicer;
(vii) Periodic Advances made by the Servicer pursuant to Section
3.20 and any Compensating Interest;
(viii) any Recoveries;
(ix) any Buy-Down Funds required to be deposited pursuant to Section
3.23; and
(x) any other amounts required to be deposited hereunder.
The foregoing requirements for deposits to the Servicer Custodial
Account by the Servicer shall be exclusive it being understood and agreed that,
without limiting the generality of the foregoing, Ancillary Income need not be
deposited by the Servicer. If the Servicer shall deposit in the Servicer
Custodial Account any amount not required to be deposited, it may at any time
withdraw or direct the institution maintaining the Servicer Custodial Account to
withdraw such amount from the Servicer Custodial Account, any provision herein
to the contrary notwithstanding. The Servicer Custodial Account may contain
funds that belong to one or more trust funds created for mortgage pass-through
certificates of other series and may contain other funds respecting payments on
mortgage loans belonging to the Servicer or serviced by the Servicer on behalf
of others; provided that such commingling of funds shall not be permitted at any
time during which Fitch's senior long-term unsecured debt rating of Bank of
America is below "A." Notwithstanding such commingling of funds, the Servicer
shall keep records that accurately reflect the funds on deposit in the Servicer
Custodial Account that have been identified by it as being attributable to the
Mortgage Loans it services. The Servicer shall maintain adequate records with
respect to all withdrawals made pursuant to this Section 3.08. All funds
required to be deposited in the Servicer Custodial Account shall be held in
trust for the Certificateholders until withdrawn in accordance with Section
3.11.
(c) The Trustee shall establish and maintain, on behalf of the
Certificateholders, the Certificate Account, which shall be deemed to consist of
three sub-accounts. The Trustee shall, promptly upon receipt, deposit in the
Certificate Account and retain therein the following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.11(a)(viii);
(ii) any amount paid by the Trustee pursuant to Section 3.08(d) in
connection with any losses on Permitted Investments with respect to the
Certificate Account; and
(iii) any other amounts deposited hereunder which are required to be
deposited in the Certificate Account.
If the Servicer shall remit any amount not required to be remitted,
it may at any time direct the Trustee to withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding. Such
direction may be accomplished by delivering an Officer's Certificate to the
Trustee which describes the amounts deposited in error in the Certificate
Account. All funds required to be deposited in the Certificate Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.11. In
no event shall the Trustee incur liability for withdrawals from the Certificate
Account at the direction of the Servicer.
(d) Each institution at which the Servicer Custodial Account or the
Certificate Account is maintained shall invest the funds therein as directed in
writing by the Servicer, in the case of the Servicer Custodial Account, or the
Trustee, in the case of the Certificate Account, in Permitted Investments, which
shall mature not later than (i) in the case of the Servicer Custodial Account,
the Business Day next preceding the related Remittance Date (except that if such
Permitted Investment is an obligation of the institution that maintains such
account, then such Permitted Investment shall mature not later than such
Remittance Date) and (ii) in the case of the Certificate Account, the Business
Day next preceding the Distribution Date (except that if such Permitted
Investment is an obligation of the institution that maintains such account, then
such Permitted Investment shall mature not later than such Distribution Date)
and, in each case, shall not be sold or disposed of prior to its maturity. All
such Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All Servicer Custodial Account Reinvestment
Income shall be for the benefit of the Servicer as part of its Servicing
Compensation and shall be retained by it monthly as provided herein. All income
or gain (net of any losses) realized from any such investment of funds on
deposit in the Certificate Account shall be for the benefit of the Trustee as
additional compensation and shall be retained by it monthly as provided herein.
The amount of any losses realized in the Servicer Custodial Account or the
Certificate Account incurred in any such account in respect of any such
investments shall promptly be deposited by the Servicer in the Servicer
Custodial Account or by the Trustee in the Certificate Account, as applicable.
(e) The Servicer shall give notice to the Trustee of any proposed
change of the location of the Servicer Custodial Account maintained by the
Servicer not later than 30 days and not more than 45 days prior to any change
thereof. The Trustee shall give notice to the Servicer, each Rating Agency and
the Depositor of any proposed change of the location of the Certificate Account
not later than 30 days after and not more than 45 days prior to any change
thereof. The creation of the Servicer Custodial Account shall be evidenced by a
certification substantially in the form of Exhibit F hereto. A copy of such
certification shall be furnished to the Trustee.
(f) The Trustee shall designate the Upper-Tier Certificate
Sub-Account as a sub-account of the Certificate Account. On each Distribution
Date (other than the Final Distribution Date, if such Final Distribution Date is
in connection with a purchase of the assets of the Trust Estate by the
Depositor), the Trustee shall, from funds available on deposit in the
Certificate Account, be deemed to deposit into the Upper-Tier Certificate
Sub-Account, the Lower-Tier Distribution Amount.
(g) (i) The Trustee shall establish and maintain the Class 3-A-11
Reserve Fund and the Class 3-A-16 Reserve Fund, held in trust for the benefit of
the Holders of the Class 3-A-11 and Class 3-A-16 Certificates, respectively. The
Trustee shall deposit in the applicable Reserve Fund on the date received by it
the related Yield Maintenance Agreement Payment, if any, received from the
Counterparty for the related Distribution Date. Funds on deposit in the Reserve
Funds shall remain uninvested. On each Distribution Date, the Trustee shall
withdraw from the applicable Reserve Fund the related Yield Maintenance
Agreement Payment, if any, received in respect of such Distribution Date and
shall distribute such amount to the Class 3-A-11 or Class 3-A-16 Certificates,
as the case may be.
(ii) The Trustee shall account for the Reserve Funds and the Yield
Maintenance Agreements and the rights with respect thereto as assets of
the Grantor Trust and not as assets of any REMIC created pursuant to this
Agreement. The beneficial owners of the Class 3-A-11 Yield Maintenance
Agreement and the Class 3-A-11 Reserve Fund are the Holders of the Class
3-A-11 Certificates and the beneficial owners of the Class 3-A-16 Yield
Maintenance Agreement and the Class 3-A-16 Reserve Fund are the Holders of
the Class 3-A-16 Certificates.
(iii) Any amounts in the applicable Reserve Fund paid by the Trustee
pursuant to this Section 3.08(g) to the Class 3-A-11 and Class 3-A-16
Certificates shall be accounted for by the Trustee as amounts paid to the
Class 3-A-11 and Class 3-A-16 Certificates, respectively, from the Grantor
Trust. In addition, the Trustee shall account for the right of the Class
3-A-11 and Class 3-A-16 Certificates to receive amounts from the
applicable Reserve Fund as rights in limited recourse interest rate cap
contracts written by the Counterparty in favor of the Class 3-A-11 and
Class 3-A-16 Certificates.
(h) For federal tax return and information reporting purposes, the
right of the Holders of the Class 3-A-11 and Class 3-A-16 Certificates to
receive payments under the applicable Yield Maintenance Agreement shall be
assigned a value of zero as of the Closing Date.
(i) For so long as the Trustee is required to file any report with
the Securities and Exchange Commission pursuant to Section 3.22, the Sponsor
shall furnish to the Trustee, on each Distribution Date, the "significance
estimate" of each Yield Maintenance Agreement calculated in accordance with Item
1115 of Regulation AB as of such Distribution Date.
(j) Upon the occurrence of the events specified in the Yield
Maintenance Agreements, the Trustee shall open and maintain in its name, a
separate non-interest bearing trust account for the benefit of the holders of
the Class 3-A-11 and Class 3-A-16 Certificates as a part of the Trust Estate.
The Posted Collateral 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 Trustee
held pursuant to this Agreement.
(k) With respect to any remittance received by the Trustee after the
day on which such payment was due, the Servicer shall pay to the Trustee
interest on any such late payment at an annual rate equal to the Prime Rate,
adjusted as of the date of each change, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall be deposited in the
Certificate Account by the Servicer on the date such late payment is made and
shall cover the period commencing with the day such payment was due and ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Servicer of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event of
Default. Any payment pursuant to this paragraph made by the Servicer to the
Trustee shall be from the Servicer's own funds, without reimbursement therefor.
Section 3.09 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) To the extent required by the related Mortgage Note and not
violative of current law, the Servicer shall segregate and hold all funds
collected and received pursuant to each Mortgage Loan which constitute Escrow
Payments in trust separate and apart from any of its own funds and general
assets and for such purpose shall establish and maintain one or more escrow
accounts (collectively, the "Escrow Account"), titled "Bank of America, National
Association, in trust for registered holders of Banc of America Alternative Loan
Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1 and various
Mortgagors." The Escrow Account shall be established with a commercial bank, a
savings bank or a savings and loan association that meets the guidelines set
forth by Fannie Mae or Freddie Mac as an eligible institution for escrow
accounts and which is a member of the Automated Clearing House. In any case, the
Escrow Account shall be insured by the FDIC to the fullest extent permitted by
law. The Servicer shall deposit in the appropriate Escrow Account on a daily
basis, and retain therein: (i) all Escrow Payments collected on account of the
Mortgage Loans, (ii) all amounts representing proceeds of any hazard insurance
policy which are to be applied to the restoration or repair of any related
Mortgaged Property and (iii) all amounts representing proceeds of any Primary
Insurance Policy. Nothing herein shall require the Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may
be made by the Servicer only (i) to effect timely payment of taxes, assessments,
mortgage insurance premiums, fire and hazard insurance premiums, condominium or
PUD association dues, or comparable items constituting Escrow Payments for the
related Mortgage, (ii) to reimburse the Servicer out of related Escrow Payments
made with respect to a Mortgage Loan for any Servicing Advance made by the
Servicer pursuant to Section 3.09(c) with respect to such Mortgage Loan, (iii)
to refund to any Mortgagor any sums determined to be overages, (iv) for transfer
to the Servicer Custodial Account upon default of a Mortgagor or in accordance
with the terms of the related Mortgage Loan and if permitted by applicable law,
(v) for application to restore or repair the Mortgaged Property, (vi) to pay to
the Mortgagor, to the extent required by law, any interest paid on the funds
deposited in the Escrow Account, (vii) to pay to itself any interest earned on
funds deposited in the Escrow Account (and not required to be paid to the
Mortgagor), (viii) to the extent permitted under the terms of the related
Mortgage Note and applicable law, to pay late fees with respect to any Monthly
Payment which is received after the applicable grace period, (ix) to withdraw
suspense payments that are deposited into the Escrow Account, (x) to withdraw
any amounts inadvertently deposited in the Escrow Account or (xi) to clear and
terminate the Escrow Account upon the termination of this Agreement in
accordance with Section 10.01. Any Escrow Account shall not be a part of the
Trust Estate.
(c) With respect to each Mortgage Loan, the Servicer shall maintain
accurate records reflecting the status of taxes, assessments and other charges
which are or may become a lien upon the Mortgaged Property and the status of
Primary Insurance Policy premiums and fire and hazard insurance coverage. The
Servicer shall obtain, from time to time, all bills for the payment of such
charges (including renewal premiums) and shall effect payment thereof prior to
the applicable penalty or termination date and at a time appropriate for
securing maximum discounts allowable, employing for such purpose deposits of the
Mortgagor in the Escrow Account, if any, which shall have been estimated and
accumulated by the Servicer in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. To the extent that a Mortgage does not provide
for Escrow Payments, the Servicer shall determine that any such payments are
made by the Mortgagor. The Servicer assumes full responsibility for the timely
payment of all such bills and shall effect timely payments of all such bills
irrespective of each Mortgagor's faithful performance in the payment of same or
the making of the Escrow Payments. The Servicer shall advance any such payments
that are not timely paid, but the Servicer shall be required so to advance only
to the extent that such Servicing Advances, in the good faith judgment of the
Servicer, will be recoverable by the Servicer out of Insurance Proceeds,
Liquidation Proceeds or otherwise.
Section 3.10 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Servicer shall afford 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 Servicer.
Section 3.11 Permitted Withdrawals from the Servicer Custodial
Account and Certificate Account. (a) The Servicer may from time to time make
withdrawals from the Servicer Custodial Account, for the following purposes:
(i) to pay to the Servicer (to the extent not previously retained),
the Servicing Compensation to which it is entitled pursuant to Section
3.17;
(ii) to reimburse the Servicer for unreimbursed Advances made by it,
such right of reimbursement pursuant to this clause (ii) being limited to
amounts received on the Mortgage Loan(s) (including amounts received in
respect of BPP Mortgage Loan Payments for such Mortgage Loan) in respect
of which any such Advance was made;
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously made, such right of reimbursement pursuant to this clause (iii)
being limited to amounts received on the Mortgage Loans in the same Loan
Group as the Mortgage Loan(s) in respect of which such Nonrecoverable
Advance was made;
(iv) to reimburse the Servicer for Insured Expenses from the related
Insurance Proceeds;
(v) 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;
(vi) to reimburse the Servicer or the Depositor for expenses
incurred by any of them and reimbursable pursuant to Section 7.03;
(vii) to withdraw any amount deposited in the Servicer Custodial
Account and not required to be deposited therein;
(viii) on or prior to the Remittance Date, to withdraw an amount
equal to the related Pool Distribution Amount for such Distribution Date,
to the extent on deposit, and remit such amount in immediately available
funds to the Trustee for deposit in the Certificate Account; and
(ix) to clear and terminate the Servicer Custodial Account upon
termination of this Agreement pursuant to Section 10.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Servicer Custodial Account pursuant to clauses (i), (ii),
(iv) and (v). The Servicer shall keep and maintain such separate accounting for
each Loan Group. Prior to making any withdrawal from the Servicer Custodial
Account pursuant to clause (iii), the Servicer shall deliver to the Trustee an
Officer's Certificate of a Servicing Officer indicating the amount of any
previous Advance determined by the Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loan(s) and their respective portions of such
Nonrecoverable Advance. The Servicer shall notify the Depositor and the Trustee
of the amount, purpose and party paid pursuant to clause (vi) above.
(b) The Trustee shall be deemed to withdraw funds from the
applicable Certificate Account sub-accounts for distributions to
Certificateholders in the manner specified in this Agreement. In addition, the
Trustee may from time to time make withdrawals from the Certificate Account for
the following purposes:
(i) to pay to itself the Trustee Fee;
(ii) to pay to itself as additional compensation earnings on or
investment income with respect to funds in the Certificate Account and any
other amounts (other than the Trustee Fee) due to it under this Agreement
for the related Distribution Date;
(iii) to withdraw and return to the Servicer any amount deposited in
the Certificate Account and not required to be deposited therein; and
(iv) to clear and terminate the Certificate Account upon termination
of this Agreement pursuant to Section 10.01.
The Trustee shall notify the Depositor and the Servicer of the
amount and purpose of any payments made pursuant to clause (ii) above (other
than any earnings or investment income with respect to funds in the Certificate
Account).
(c) On each Distribution Date, funds on deposit in the Certificate
Account and deemed to be on deposit in the Upper-Tier Certificate Sub-Account
shall be used to make payments on the Regular Certificates and the Class 3-A-R
Certificate (in respect of the Class R-U Interest) 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. The Servicer shall
cause to be maintained for each Mortgage Loan, fire and hazard insurance with
extended coverage customary in the area where the Mortgaged Property is located
in an amount which is at least equal to the lesser of (a) the full insurable
value of the Mortgaged Property or (b) the greater of (i) the outstanding
principal balance owing on the Mortgage Loan and (ii) an amount such that the
proceeds of such insurance shall be sufficient to avoid the application to the
Mortgagor or loss payee of any coinsurance clause under the policy. If the
Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards (and such
flood insurance has been made available) the Servicer will cause to be
maintained a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration and the requirements of
Fannie Mae or Freddie Mac. The Servicer shall also maintain on REO Property,
fire and hazard insurance with extended coverage in an amount which is at least
equal to the maximum insurable value of the improvements which are a part of
such property, liability insurance and, to the extent required, flood insurance
in an amount required above. Any amounts collected by the Servicer under any
such policies (other than amounts to be deposited in an Escrow Account and
applied to the restoration or repair of the property subject to the related
Mortgage or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor in accordance with Customary Servicing Procedures)
shall be deposited in the Servicer Custodial Account, subject to withdrawal
pursuant to Section 3.11(a). It is understood and agreed that no earthquake or
other additional insurance need be required by the Servicer of any Mortgagor or
maintained on REO Property, other than pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance. All policies required hereunder shall be endorsed with
standard mortgagee clauses with loss payable to the Servicer, and shall provide
for at least 30 days' prior written notice of any cancellation, reduction in
amount or material change in coverage to the Servicer.
The hazard insurance policies for each Mortgage Loan secured by a
unit in a condominium development or planned unit development shall be
maintained with respect to such Mortgage Loan and the related development in a
manner which is consistent with Fannie Mae requirements.
Notwithstanding the foregoing, the Servicer may maintain a blanket
policy insuring against hazard losses on all of the Mortgaged Properties
relating to the Mortgage Loans in lieu of maintaining the required hazard
insurance policies for each Mortgage Loan and may maintain a blanket policy
insuring against special flood hazards in lieu of maintaining any required flood
insurance. Any such blanket policies shall (A) be consistent with prudent
industry standards, (B) name the Servicer as loss payee, (C) provide coverage in
an amount equal to the aggregate unpaid principal balance on the related
Mortgage Loans without co-insurance, and (D) otherwise comply with the
requirements of this Section 3.12. Any such blanket policy may contain a
deductible clause; provided that if any Mortgaged Property is not covered by a
separate policy otherwise complying with this Section 3.12 and a loss occurs
with respect to such Mortgaged Property which loss would have been covered by
such a policy, the Servicer shall deposit in the Servicer Custodial Account the
difference, if any, between the amount that would have been payable under a
separate policy complying with this Section 3.12 and the amount paid under such
blanket policy.
Section 3.13 Enforcement of Due-On-Sale Clauses; Assumption
Agreements. (a) Except as otherwise provided in this Section 3.13, when any
Mortgaged Property subject to a Mortgage has been conveyed by the Mortgagor, the
Servicer shall use reasonable efforts, to the extent that it has actual
knowledge of such conveyance, to enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that such enforcement will not
adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Servicer is not required to exercise such
rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies the
terms and conditions contained in the Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such Mortgage Note or Mortgage is not
otherwise required under such Mortgage Note or Mortgage as a condition to such
transfer. If (i) the Servicer is prohibited by law from enforcing any such
due-on-sale clause, (ii) coverage under any Required Insurance Policy would be
adversely affected, (iii) the Mortgage Note does not include a due-on-sale
clause or (iv) nonenforcement is otherwise permitted hereunder, the Servicer is
authorized, subject to Section 3.13(b), to take or enter into an assumption and
modification agreement from or with the Person to whom such Mortgaged Property
has been or is about to be conveyed, pursuant to which such Person becomes
liable under the Mortgage Note and, unless prohibited by applicable state law,
the Mortgagor remains liable thereon; provided that the Mortgage Loan shall
continue to be covered (if so covered before the Servicer enters such agreement)
by the applicable Required Insurance Policies. The Servicer, subject to Section
3.13(b), is also authorized with the prior approval of the insurers under any
Required Insurance Policies to enter into a substitution of liability agreement
with such Person, pursuant to which the original Mortgagor is released from
liability and such Person is substituted as Mortgagor and becomes liable under
the Mortgage Note. Notwithstanding the foregoing, the Servicer shall not be
deemed to be in default under this Section 3.13 by reason of any transfer or
assumption which the Servicer reasonably believes it is restricted by law from
preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause
to the extent set forth in Section 3.13(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and such Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage or if an instrument of release is required
releasing the Mortgagor from liability on the Mortgage Loan, the Servicer shall
prepare and execute the assumption agreement with the Person to whom the
Mortgaged Property is to be conveyed and such modification agreement or
supplement to the Mortgage Note or Mortgage or other instruments as are
reasonable or necessary to carry out the terms of the Mortgage Note or Mortgage
or otherwise to comply with any applicable laws regarding assumptions or the
transfer of the Mortgaged Property to such Person. In connection with any such
assumption, no material term of the Mortgage Note may be changed. In addition,
the substitute Mortgagor and the Mortgaged Property must be acceptable to the
Servicer in accordance with its underwriting standards as then in effect.
Together with each such substitution, assumption or other agreement or
instrument, the Servicer shall execute an Officer's Certificate signed by a
Servicing Officer stating that the requirements of this subsection have been
met. The Servicer shall notify the Trustee that any such substitution or
assumption agreement has been completed by forwarding to the Trustee (or at the
direction of the Trustee, the Custodian) the Officer's Certificate described in
the previous sentence and the original of such substitution or assumption
agreement, which in the case of the original shall be added to the related
Mortgage File and shall, for all purposes, be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting a
part thereof. Any fee collected by the Servicer for entering into an assumption
or substitution of liability agreement may be retained by the Servicer as
additional Servicing Compensation.
Section 3.14 Realization Upon Defaulted Mortgage Loans; REO
Property. Subject to Section 3.21, the Servicer shall use reasonable efforts 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. In connection with such foreclosure or other conversion,
the Servicer shall follow Customary Servicing Procedures and shall meet the
requirements of the insurer under any Required Insurance Policy; provided,
however, that the Servicer may enter into a special servicing agreement with an
unaffiliated Holder of 100% Percentage Interest of a Class of Subordinate
Certificates or a holder of a class of securities representing interests in the
Subordinate Certificates alone or together with other subordinated mortgage
pass-through certificates. Such agreement shall be substantially in the form
attached hereto as Exhibit K or subject to each Rating Agency's acknowledgment
that the ratings of the Certificates in effect immediately prior to the entering
into such agreement would not be qualified, downgraded or withdrawn and the
Certificates would not be placed on credit review status (except for possible
upgrading) as a result of such agreement. Any such agreement may contain
provisions whereby such holder may instruct the Servicer to commence or delay
foreclosure proceedings with respect to delinquent Mortgage Loans and will
contain provisions for the deposit of cash by the holder that would be available
for distribution to Certificateholders if Liquidation Proceeds are less than
they otherwise may have been had the Servicer acted in accordance with its
normal procedures. Notwithstanding the foregoing, the Servicer shall not be
required to expend its own funds in connection with any foreclosure or towards
the restoration of any Mortgaged Property unless it shall determine (i) that
such restoration and/or foreclosure will increase the proceeds of liquidation of
the Mortgage Loan after reimbursement to itself of such expenses and (ii) that
such expenses will be recoverable to it through proceeds of the liquidation of
the Mortgage Loan (respecting which it shall have priority for purposes of
withdrawals from the Servicer Custodial Account). Any such expenditures shall
constitute Servicing Advances for purposes of this Agreement.
With respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Trustee for the benefit of the
Certificateholders, or its nominee, on behalf of the Certificateholders. The
Trustee's name shall be placed on the title to such REO Property solely as the
Trustee hereunder and not in its individual capacity. The Servicer shall ensure
that the title to such REO Property references this Agreement and the Trustee's
capacity hereunder. Pursuant to its efforts to sell such REO Property, the
Servicer shall either itself or through an agent selected by the Servicer
manage, conserve, protect and operate such REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for its
own account and in the same manner that similar property in the same locality as
the REO Property is managed. Incident to its conservation and protection of the
interests of the Certificateholders, the Servicer may rent the same, or any part
thereof, as the Servicer deems to be in the best interest of the
Certificateholders for the period prior to the sale of such REO Property. The
Servicer shall prepare for and deliver to the Trustee a statement with respect
to each REO Property that has been rented, if any, showing the aggregate rental
income received and all expenses incurred in connection with the management and
maintenance of such REO Property at such times as is necessary to enable the
Trustee to comply with the reporting requirements of the REMIC Provisions;
provided, however, that the Servicer shall have no duty to rent any REO Property
on behalf of the Trust. The net monthly rental income, if any, from such REO
Property shall be deposited in the Servicer Custodial Account no later than the
close of business on each Determination Date. The Servicer shall perform, with
respect to the Mortgage Loans, the tax reporting and withholding required by
Sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by Section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required by
Section 6050P of the Code with respect to the cancellation of indebtedness by
certain financial entities, by preparing such tax and information returns as may
be required, in the form required.
If the Trust acquires any Mortgaged Property as described above or
otherwise in connection with a default or a default which is reasonably
foreseeable on a Mortgage Loan, the Servicer shall dispose of such Mortgaged
Property prior to the end of the third calendar year following the year of its
acquisition by the Trust (such period, the "REO Disposition Period") unless (A)
the Trustee shall have been supplied by the Servicer with an Opinion of Counsel
to the effect that the holding by the Trust of such Mortgaged Property
subsequent to the REO Disposition Period will not result in the imposition of
taxes on "prohibited transactions" (as defined in Section 860F of the Code) on
any of the Upper-Tier REMIC, Middle-Tier REMIC or the Lower-Tier REMIC or cause
any REMIC created hereunder to fail to qualify as a REMIC at any time that any
Certificates are outstanding, or (B) the Trustee (at the Servicer's expense) or
the Servicer shall have applied for, prior to the expiration of the REO
Disposition Period, an extension of the REO Disposition Period in the manner
contemplated by Section 856(e)(3) of the Code. If such an Opinion of Counsel is
provided or such an exemption is obtained, the Trust may continue to hold such
Mortgaged Property (subject to any conditions contained in such Opinion of
Counsel) for the applicable period. Notwithstanding any other provision of this
Agreement, no Mortgaged Property acquired by the Trust shall be rented (or
allowed to continue to be rented) or otherwise used for the production of income
by or on behalf of the Trust in such a manner or pursuant to any terms that
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or (ii) subject
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 Servicer has agreed to indemnify
and hold harmless the Trust with respect to the imposition of any such taxes.
The Servicer shall identify to the Trustee any Mortgaged Property relating to a
Mortgage Loan held by the Trust for 30 months for which no plans to dispose of
such Mortgaged Property by the Servicer have been made. After delivery of such
identification, the Servicer shall proceed to dispose of any such Mortgaged
Property by holding a commercially reasonable auction for such property.
The income earned from the management of any REO Properties, net of
reimbursement to the Servicer for expenses incurred (including any property or
other taxes) in connection with such management and net of unreimbursed
Servicing Fees, Periodic Advances and Servicing Advances, shall be applied to
the payment of principal of and interest on the related defaulted Mortgage Loans
(solely for the purposes of allocating principal and interest, interest shall be
treated as accruing as though such Mortgage Loans were still current) and all
such income shall be deemed, for all purposes in this Agreement, to be payments
on account of principal and interest on the related Mortgage Notes and shall be
deposited into the Servicer Custodial Account. To the extent the net income
received during any calendar month is in excess of the amount attributable to
amortizing principal and accrued interest at the related Mortgage Interest Rate
on the related Mortgage Loan for such calendar month, such excess shall be
considered to be a partial prepayment of principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of priority:
first, to reimburse the Servicer for any related unreimbursed Servicing Advances
and Servicing Fees; second, to reimburse the Servicer for any unreimbursed
Periodic Advances and to reimburse the Servicer Custodial Account for any
Nonrecoverable Advances (or portions thereof) that were previously withdrawn by
the Servicer pursuant to Section 3.11(a)(iii) that related to such Mortgage
Loan; third, to accrued and unpaid interest (to the extent no Periodic Advance
has been made for such amount or any such Periodic Advance has been reimbursed)
on the Mortgage Loan or related REO Property, at the Mortgage Interest Rate to
the Due Date occurring in the month in which such amounts are required to be
distributed; and fourth, as a recovery of principal of the Mortgage Loan. Excess
Proceeds, if any, from the liquidation of a Liquidated Mortgage Loan will be
retained by the Servicer as additional Servicing Compensation pursuant to
Section 3.17.
Section 3.15 Trustee to Cooperate; Release of Mortgage Files. Upon
the payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Trustee (or, at the
direction of the Trustee, the Custodian) by delivering, or causing to be
delivered, two copies (one of which will be returned to the Servicer with the
Mortgage File) of a Request for Release (which may be delivered in an electronic
format acceptable to the Trustee and the Servicer). Upon receipt of such
request, the Trustee or the Custodian, as applicable, shall within seven
Business Days release the related Mortgage File to the Servicer. The Trustee
shall deliver to the Servicer the Mortgage Note with written evidence of
cancellation thereon. If the Mortgage has been recorded in the name of MERS or
its designee, the Servicer shall take all necessary action to reflect the
release of the Mortgage on the records of MERS. Expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the related Mortgagor. From time to time and as shall be appropriate for the
servicing or foreclosure of any Mortgage Loan, including for such purpose
collection under any policy of flood insurance, any fidelity bond or errors or
omissions policy, or for the purposes of effecting a partial release of any
Mortgaged Property from the lien of the Mortgage or the making of any
corrections to the Mortgage Note or the Mortgage or any of the other documents
included in the Mortgage File, the Trustee or the Custodian, as applicable,
shall, upon delivery to the Trustee (or, at the direction of the Trustee, the
Custodian) of a Request for Release signed by a Servicing Officer, release the
Mortgage File within seven Business Days to the Servicer. Subject to the further
limitations set forth below, the Servicer shall cause the Mortgage File so
released to be returned to the Trustee or the Custodian, as applicable, when the
need therefor by the Servicer no longer exists, unless the Mortgage Loan is
liquidated and the proceeds thereof are deposited in the Servicer Custodial
Account, in which case the Servicer shall deliver to the Trustee or the
Custodian, as applicable, a Request for Release, signed by a Servicing Officer.
Upon prepayment in full of any Mortgage Loan or the receipt of
notice that funds for such purpose have been placed in escrow, the Servicer
shall give an instrument of satisfaction (or Assignment of Mortgage without
recourse) regarding the Mortgaged Property relating to such Mortgage Loan, which
instrument of satisfaction or Assignment of Mortgage, as the case may be, shall
be delivered to the Person entitled thereto against receipt of the prepayment in
full. If the Mortgage is registered in the name of MERS or its designee, the
Servicer shall take all necessary action to reflect the release on the records
of MERS. In lieu of executing such satisfaction or Assignment of Mortgage, or if
another document is required to be executed by the Trustee, the Servicer may
deliver or cause to be delivered to the Trustee, for signature, as appropriate,
any court pleadings, requests for trustee's sale or other documents necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
Section 3.16 Documents, Records and Funds in Possession of the
Servicer to Be Held for the Trustee. The Servicer shall transmit to the Trustee
or, at the direction of the Trustee, the Custodian as required by this Agreement
all documents and instruments in respect of a Mortgage Loan coming into the
possession of the Servicer from time to time and shall account fully to the
Trustee for any funds received by the Servicer or which otherwise are collected
by the Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan. The documents constituting the Servicing File shall be held by
the Servicer as custodian and bailee for the Trustee. All Mortgage Files and
funds collected or held by, or under the control of, the Servicer in respect of
any Mortgage Loans, whether from the collection of principal and interest
payments or from Liquidation Proceeds, including but not limited to, any funds
on deposit in the Servicer Custodial Account, shall be held by the Servicer for
and on behalf of the Trustee and shall be and remain the sole and exclusive
property of the Trustee, subject to the applicable provisions of this Agreement.
The Servicer also agrees that it shall not knowingly create, incur or subject
any Mortgage File or any funds that are deposited in the Servicer Custodial
Account, 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 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 Servicer shall be entitled to set off against and deduct from any such
funds any amounts that are properly due and payable to the Servicer under this
Agreement.
Section 3.17 Servicing Compensation. The Servicer shall be entitled
out of each payment of interest on a Mortgage Loan (or portion thereof) and
included in the Trust Estate to retain or withdraw from the Servicer Custodial
Account an amount equal to the Servicing Fee for such Distribution Date;
provided, however, that the aggregate Servicing Fee for the Servicer relating to
the Mortgage Loans shall be reduced (but not below zero) by an amount equal to
the Compensating Interest.
Any additional Servicing Compensation shall be retained by the
Servicer to the extent not required to be deposited in the Servicer Custodial
Account pursuant to Section 3.08(b). The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided in this Agreement.
Section 3.18 Annual Statement as to Compliance. The Trustee and the
Servicer shall deliver, and the Servicer shall cause each Additional Servicer
engaged by it to deliver, in electronic form to the Depositor, the Trustee and
each Rating Agency on or before March 5 of each year or if such day is not a
Business Day, the next Business Day (with a 10 calendar day cure period, but in
no event later than March 15), followed by a hard copy within 10 calendar days,
commencing in March 2008, a certificate in the form required by Item 1123 of
Regulation AB, to the effect that (i) an authorized officer of the Trustee, the
Servicer or the Additional Servicer, as the case may be, has reviewed (or a
review has been made under his or her supervision of) such party's activities
under this Agreement or such other applicable agreement in the case of an
Additional Servicer, during the prior calendar year or portion thereof and (ii)
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 other applicable
agreement in the case of an Additional Servicer, in all material respects
throughout the prior calendar year or portion thereof 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. Promptly
after receipt of each such certificate, the Depositor shall review such
certificate and, if applicable, consult with the Servicer and the Trustee as to
the nature of any failure to fulfill any obligation under the Agreement, or such
other applicable agreement in the case of an Additional Servicer, in any
material respect.
Section 3.19 Assessments of Servicing Compliance; Registered Public
Accounting Firm Attestation Reports. (a) Each of the Servicer and the Trustee,
at its own expense, shall furnish, and shall cause any Servicing Function
Participant engaged by it to furnish, at such party's expense, to the Trustee
and the Depositor in electronic form, not later than March 5 of each year or if
such day is not a Business Day, the next Business Day (with a 10 calendar day
cure period, but in no event later than March 15), followed by a hard copy
within 10 calendar days, commencing in March 2008, a report on an assessment of
compliance with the Servicing Criteria applicable to it that contains (A) a
statement by such party of its responsibility for assessing compliance with the
Servicing Criteria applicable to it, (B) a statement that such party used the
Servicing Criteria to assess compliance with the Servicing Criteria applicable
to it, (C) such party's assessment of compliance with the Servicing Criteria
applicable to it as of and for the fiscal year covered by the Form 10-K required
to be filed pursuant to Section 3.22, including, if there has been any material
instance of noncompliance with the Servicing Criteria applicable to it, an
identification of each such failure and the nature and status thereof, and (D) a
statement that a registered public accounting firm has issued an attestation
report on such party's assessment of compliance with the Servicing Criteria
applicable to such party as of and for such period.
Each such assessment of compliance report shall be addressed to the
Depositor and the Servicer and signed by an authorized officer of the applicable
party, and shall address each of the Relevant Servicing Criteria set forth on
Exhibit Q hereto, or as set forth in the notification furnished to the Depositor
and the Trustee pursuant to Section 3.19(c). The Servicer and the Trustee hereby
acknowledge and agree that their respective assessments of compliance will cover
the items identified on Exhibit Q hereto as being covered by such party. The
parties to this Agreement acknowledge that where a particular Servicing
Criterion has multiple components, each party's assessment of compliance (and
related attestation of compliance) will relate only to those components that are
applicable to such party. Promptly after receipt of each such report on
assessment of compliance, the Depositor shall review each such report and, if
applicable, consult with the Servicer or the Trustee as to the nature of any
material instance of noncompliance with the Servicing Criteria applicable to it
(or any Servicing Function Participant engaged or utilized by the Servicer or
the Trustee, as applicable).
(b) Each of the Servicer and the Trustee, at its own expense, shall
cause, and shall cause any Servicing Function Participant engaged by it, at such
party's expense, to cause, not later than March 5 of each year or if such day is
not a Business Day, the next Business Day (with a 10 calendar day cure period),
commencing in March 2008, a registered public accounting firm (which may also
render other services to the Servicer, the Trustee, 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 electronically a report to
the Depositor (with a hard copy to follow within 10 calendar days), 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 Servicing Criteria applicable to it, 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
assessment of compliance with the 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 Servicing Criteria. In the event that
an overall opinion cannot be expressed, such registered public accounting firm
shall state in such report why it was unable to express such an opinion. Such
report 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 each such accountants' attestation report,
the Depositor shall review the report and, if applicable, consult with the
Servicer or the Trustee if such report (i) states that a party's assessment of
compliance was not fairly stated in any material respect or (ii) is unable to
state an overall opinion.
(c) No later than 30 days following the end of each fiscal year for
the Trust for which a Form 10-K is required to be filed, (i) the Servicer shall
forward to the Depositor the name of each Servicing Function Participant engaged
by it and what Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function Participant and (ii) the
Trustee shall forward to the Depositor the name of each Servicing Function
Participant engaged by it and what Servicing Criteria will be addressed in the
report on assessment of compliance prepared by such Servicing Function
Participant, in each case to the extent of any change from the prior year's
notice, if any.
(d) Beginning with fiscal year 2008 and thereafter, none of the
Servicer, the Trustee or any Servicing Function Participant engaged by such
parties shall be required to deliver or cause the delivery of any such
assessments or attestation reports until April 15 of the following year unless
such party has received written notice from the Depositor that a Form 10-K is
required to be filed in respect of the Trust for the preceding fiscal year.
Section 3.20 Advances. The Servicer shall determine on or before
each Servicer Advance Date whether it is required to make a Periodic Advance
pursuant to the definition thereof. If the Servicer determines it is required to
make a Periodic Advance, it shall, on or before the Servicer Advance Date,
either (a) deposit into the Servicer Custodial Account an amount equal to the
Advance and/or (b) make an appropriate entry in its records relating to the
Servicer Custodial Account that any portion of the Amount Held for Future
Distribution with respect to a Loan Group in the Servicer Custodial Account has
been used by the Servicer in discharge of its obligation to make any such
Periodic Advance on a Mortgage Loan in such Loan Group. Any funds so applied
shall be replaced by the Servicer by deposit in the Servicer Custodial Account
no later than the close of business on the Business Day preceding the next
Servicer Advance Date. The Servicer shall be entitled to be reimbursed from the
Servicer Custodial Account for all Advances of its own funds made pursuant to
this Section 3.20 as provided in Section 3.11(a). The obligation to make
Periodic Advances with respect to any Mortgage Loan shall continue until the
ultimate disposition of the REO Property or Mortgaged Property relating to such
Mortgage Loan. The Servicer shall inform the Trustee of the amount of the
Periodic Advance to be made by the Servicer with respect to each Loan Group on
each Servicer Advance Date no later than the related Remittance Date.
The Servicer shall deliver to the Trustee on the related Servicer
Advance Date an Officer's Certificate of a Servicing Officer indicating the
amount of any proposed Periodic Advance determined by the Servicer to be a
Nonrecoverable Advance. Notwithstanding anything to the contrary, the Servicer
shall not be required to make any Periodic Advance or Servicing Advance that
would be a Nonrecoverable Advance.
Section 3.21 Modifications, Waivers, Amendments and Consents.
(a)Subject to this Section 3.21, the Servicer may agree to any modification,
waiver, forbearance, or amendment of any term of any Mortgage Loan without the
consent of the Trustee or any Certificateholder. All modifications, waivers,
forbearances or amendments of any Mortgage Loan shall be in writing and shall be
consistent with Customary Servicing Procedures.
(b) The Servicer shall not agree to enter into, and shall not enter
into, any modification, waiver (other than a waiver referred to in Section 3.13,
which waiver, if any, shall be governed by Section 3.13), forbearance or
amendment of any term of any Mortgage Loan if such modification, waiver,
forbearance, or amendment would:
(i) forgive principal owing under such Mortgage Loan or permanently
reduce the interest rate on such Mortgage Loan;
(ii) affect the amount or timing of any related payment of
principal, interest or other amount payable thereunder;
(iii) in the Servicer's judgment, materially impair the security for
such Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon; or
(iv) otherwise constitute a "significant modification" within the
meaning of Treasury Regulations Section 1.860G-2(b);
unless, in the case of clauses (ii) through (iv) above, (A) such Mortgage Loan
is 90 days or more past due or (B) the Servicer delivers to the Trustee an
Opinion of Counsel to the effect that such modification, waiver, forbearance or
amendment would not affect the REMIC status of any REMIC created hereunder.
Notwithstanding the foregoing, no Opinion of Counsel need be delivered if the
purpose of the modification is to reduce the Monthly Payment on a Mortgage Loan
as a result of a partial Principal Prepayment; provided that the Mortgage Loan
is fully amortized by its original maturity date. Subject to Customary Servicing
Procedures, the Servicer may permit a forbearance for a Mortgage Loan which in
the Servicer's judgment is subject to imminent default.
(c) The Servicer may, as a condition to granting any request by a
Mortgagor for consent, modification, waiver, forbearance or amendment, the
granting of which is within the Servicer's discretion pursuant to the Mortgage
Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to the Servicer, as additional Servicing Compensation, a
reasonable or customary fee for the additional services performed in connection
with such request, together with any related costs and expenses incurred by the
Servicer, which amount shall be retained by the Servicer as additional Servicing
Compensation.
(d) The Servicer shall notify the Depositor and the Trustee, in
writing, of any modification, waiver, forbearance or amendment of any term of
any Mortgage Loan and the date thereof, and shall deliver to the Trustee (or, at
the direction of the Trustee, the Custodian) for deposit in the related Mortgage
File, an original counterpart of the agreement relating to such modification,
waiver, forbearance or amendment, promptly (and in any event within ten Business
Days) following the execution thereof; provided, however, that if any such
modification, waiver, forbearance or amendment is required by applicable law to
be recorded, the Servicer (i) shall deliver to the Trustee a copy thereof and
(ii) shall deliver to the Trustee such document, with evidence of notification
upon receipt thereof from the public recording office.
Section 3.22 Reports to the Securities and Exchange Commission. (a)
The Trustee and the Servicer shall reasonably cooperate with the Depositor to
enable the Depositor to satisfy its reporting requirements under the Exchange
Act and the parties hereto shall reasonably cooperate to enable the Securities
and Exchange Commission requirements with respect to the Depositor to be met in
the event that the Securities and Exchange Commission issues additional
interpretive guidelines or promulgates rules or regulations, or in the event of
any other change of law that would require reporting arrangements or the
allocation of responsibilities with respect thereto, as described in this
Section 3.22, to be conducted or allocated in a different manner. Without
limiting the generality of the foregoing, the Trustee shall prepare on behalf of
the Depositor any Current Reports on Form 8-K (each, a "Form 8-K"), Distribution
Reports on Form 10-D (each, a "Form 10-D") and Annual Reports on Form 10-K
(each, a "Form 10-K") as required by the Exchange Act and the rules and
regulations of the Securities and Exchange Commission thereunder, the Servicer
shall sign such forms (other than Form 8-Ks) or the Depositor shall sign such
Form 8-Ks, the Trustee shall file (via the Securities and Exchange Commission's
Electronic Data Gathering and Retrieval System) such forms on behalf of the
Depositor. Notwithstanding the foregoing, the Depositor shall file the Form 8-Ks
in connection with the issuance of the Certificates.
(b) Each Form 10-D shall be filed by the Trustee within 15 days
after each Distribution Date and will include a copy of the monthly statement to
Certificateholders delivered pursuant to Section 5.04(b) (each, a "Distribution
Date Statement") for such Distribution Date as an exhibit thereto. In addition,
the Trustee shall include under Item 1 of each Form 10-D any information
required by Item 1121 of Regulation AB to the extent relevant that is not
included on the Distribution Date Statement. Any information in addition to the
Distribution Date Statement and any other information required by Item 1121 of
Regulation AB ("Additional Form 10-D Information") shall be determined by the
party preparing such information as set forth on Exhibit R-1 hereto and the
Trustee shall compile such information pursuant to the following paragraph. The
Trustee will have no duty or liability for any failure hereunder to determine or
prepare any Additional Form 10-D Information, except to the extent of its
obligations as set forth in the next paragraph.
As set forth on Exhibit R-1 hereto, within 5 calendar days after the
related Distribution Date, certain parties hereto shall be required to provide
to the Depositor and the Trustee, to the extent known by such parties, in
EDGAR-compatible format, or in such other form as otherwise agreed upon by the
Trustee and such party, (i) any Additional Form 10-D Information, if applicable
and (ii) the Depositor will approve, as to form and substance, or disapprove, as
the case may be, the inclusion of the Additional Form 10-D Information (other
than with respect to Additional Form 10-D Information provided by the Trustee).
The Depositor will be responsible for all reasonable fees and expenses assessed
or incurred by the Trustee in connection with including any Additional Form 10-D
Information on Form 10-D pursuant to this paragraph, including converting any
such information to an EDGAR-compatible format.
After preparing the Form 10-D, the Trustee shall forward
electronically a draft copy of the Form 10-D to the Depositor and the Servicer
for review. No later than 2 Business Days prior to the 15th calendar day after
the related Distribution Date, the Servicer shall sign the Form 10-D and return
an electronic or fax copy of such signed Form 10-D (with an original executed
hard copy to immediately follow) to the Trustee. If a Form 10-D cannot be filed
on time or if a previously filed Form 10-D needs to be amended, the Trustee will
follow the procedures set forth in Section 3.22(e). 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 instructs the Trustee,
with respect to each Form 10-D, to check "yes" for each item unless the Trustee
has received timely prior written notice from the Depositor that the answer
should be "no" for an item. Promptly (but no later than one Business Day) after
filing with the Securities and Exchange Commission, the Trustee will make
available on its internet website a final executed copy of each Form 10-D. The
Trustee shall have no liability for any loss, expense, damage or claim arising
out of or with respect to any failure to properly prepare and/or timely file
such Form 10-D, where such failure results from the Trustee's inability or
failure to obtain or receive, on a timely basis, any information from any party
hereto (other than the Trustee or any Servicing Function Participant utilized by
the Trustee) 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 before 90 days after the end of each fiscal year of the
Trust (or such earlier date as may be required by the Exchange Act and the rules
and regulations of the Securities and Exchange Commission) (the "10-K Filing
Deadline") commencing in 2008, the Trustee shall file a Form 10-K, in form and
substance as required by applicable law or applicable Securities and Exchange
Commission staff interpretations. Each such Form 10-K shall include the
following items, in each case to the extent they have been delivered to the
Trustee within the applicable time frames set forth in this Agreement: (i) an
annual compliance statement for the Trustee, the Servicer and each Additional
Servicer, as described under Section 3.18, (ii)(A) the annual reports on
assessment of compliance with Servicing Criteria for the Servicer, the Trustee
and each Servicing Function Participant, as described under Section 3.19, and
(B) if the Servicer's, the Trustee's or each Servicing Function Participant's
report on assessment of compliance with Servicing Criteria described under
Section 3.19 identifies any material instance of noncompliance or is not
included, disclosure identifying such instance of noncompliance or disclosure
that such report is not included and an explanation thereof, as the case may be,
(iii)(A) the registered public accounting firm attestation report for the
Servicer, the Trustee and each Servicing Function Participant, as described
under Section 3.19, and (B) if any registered public accounting firm attestation
report described under Section 3.19 identifies any material instance of
noncompliance or is not included, disclosure identifying such instance of
noncompliance or disclosure that such report is not included and an explanation
thereof, as the case may be, and (iv) a Certification as described in this
Section 3.22(c). Any information in addition to (i) through (iv) above that is
required to be included on Form 10-K ("Additional Form 10-K Information") shall
be prepared by the party responsible for preparing such information as set forth
on Exhibit R-2 hereto and the Trustee shall compile such information pursuant to
the following paragraph. The Trustee will have no duty or liability for any
failure hereunder to determine or prepare any Additional Form 10-K Information,
except to the extent of its obligations as set forth in the next paragraph.
As set forth on Exhibit R-2 hereto, no later than March 1st of each
year that the Trust is subject to the Exchange Act reporting requirements,
commencing in 2008, certain parties to this Agreement shall be required to
provide to the Trustee and the Depositor, to the extent known by such applicable
parties, in EDGAR-compatible format, or in such other form as otherwise agreed
upon by the Trustee and such party, (i) any Additional Form 10-K Information, if
applicable and (ii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Information (other than with respect to Additional Form 10-K Information
provided by the Trustee). The Depositor will be responsible for all reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-K Information on Form 10-K pursuant to this
paragraph, including converting any such information to an EDGAR-compatible
format.
After preparing the Form 10-K, the Trustee shall forward
electronically a draft copy of the Form 10-K to the Depositor and the Servicer
for review. No later than the close of business on the fourth Business Day prior
to the 10-K Filing Deadline, a senior officer of the Servicer in charge of the
servicing function shall sign the Form 10-K and return an electronic or fax copy
of such signed Form 10-K, together with a signed copy of the certification (the
"Certification") attached hereto as Exhibit O and required to be included with
each Form 10-K pursuant to the Sarbanes-Oxley Act of 2002, as amended (with an
original executed hard copy of each to follow by overnight mail) to the Trustee.
If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be amended, the Trustee will follow the procedures set forth in Section
3.22(e). 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 Trustee that the Depositor has filed all such required reports
during the preceding 12 months and that it has been subject to such filing
requirement for the past 90 days. The Depositor shall notify the Trustee 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 Trustee shall be
entitled to rely on such representations in preparing, executing and/or filing
any such report. Promptly (but no later than one Business Day) after filing with
the Securities and Exchange Commission, the Trustee will make available on its
internet website a final executed copy of each Form 10-K. The parties to this
Agreement acknowledge that the performance by the Trustee of its duties under
this Section 3.22(c) relating to the timely preparation and filing of Form 10-K
is contingent upon such parties (and any Additional Servicer or Servicing
Function Participant) strictly observing all applicable deadlines in the
performance of their duties under this Section 3.22, Section 3.18 and Section
3.19. The Trustee shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or timely
file such Form 10-K, where such failure results from the Trustee's inability or
failure to obtain or receive, on a timely basis, any information from any party
hereto (other than the Trustee or any Servicing Function Participant utilized by
the Trustee) needed to prepare, arrange for execution or file such Form 10-K,
not resulting from its own negligence, bad faith or willful misconduct.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act, the Trustee shall provide to the Servicer, on or before March
5 of each year or if such day is not a Business Day, the next Business Day (with
a 10 calendar day cure period), followed by a hard copy within 10 days,
commencing in March 2008, and otherwise within a reasonable period of time upon
request, a certification in the form attached hereto as Exhibit P. In the event
the Trustee is terminated or resigns pursuant to the terms of this Agreement,
such Trustee shall provide a certification in the form attached hereto as
Exhibit P with respect to the period of time it was subject to this Agreement.
In addition, the Trustee shall indemnify and hold harmless the Depositor, the
Servicer and the Sponsor and their officers, directors and affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon any inaccuracy in (i) the assessment of compliance
with the Servicing Criteria pursuant to Section 3.19 provided by Trustee or any
Servicing Function Participant appointed by the Trustee and (ii) the
certification provided by the Trustee pursuant to this Section 3.22(c), any
breach of the obligations under Sections 3.19 and 3.22(c) of the Trustee or any
Servicing Function Participant appointed by the Trustee or the Trustee's or such
Servicing Function Participant's negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the Depositor, the Servicer and the Sponsor and
their officers, directors and affiliates, then the Trustee agrees that it shall
contribute to the amount paid or payable by the Depositor, the Servicer and the
Sponsor, any of their officers, directors or affiliates as a result of the
losses, claims, damages or liabilities of the Depositor, the Servicer or the
Sponsor, any of their officers, directors or affiliates in such proportion as is
appropriate to reflect the relative fault of the Depositor, the Servicer and the
Sponsor and each of their officers, directors and affiliates on the one hand and
the Trustee on the other in connection with a breach of the Trustee's
obligations under this Section 3.22(c) or the Trustee's negligence, bad faith or
willful misconduct in connection therewith.
(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
also if requested by the Depositor, the Trustee 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 information related to a Reportable Event or that is
otherwise required to be included on Form 8-K (such information, "Form 8-K
Information") shall be reported to the Depositor and the Trustee by the parties
set forth on Exhibit R-3 hereto and compiled by the Trustee pursuant to the
following paragraph. The Trustee will have no duty or liability for any failure
hereunder to determine or prepare any Form 8-K Information or any Form 8-K,
except to the extent of its obligations as set forth in the next paragraph.
As set forth on Exhibit R-3 hereto, for so long as the Trust is
subject to the Exchange Act reporting requirements, no later than 12:00 noon on
the second Business Day after the occurrence of a Reportable Event certain
parties to this Agreement shall be required to provide to the Depositor and the
Trustee, to the extent known by such applicable parties, in EDGAR-compatible
format, or in such other form as otherwise agreed upon by the Trustee and such
party, (i) any Form 8-K Information, if applicable and (ii) the Depositor will
approve, as to form and substance, or disapprove, as the case may be, the
inclusion of the Additional Form 8-K Information (other than with respect to
Additional Form 8-K Information provided by the Trustee). The Depositor will be
responsible for all reasonable fees and expenses assessed or incurred by the
Trustee in connection with including any Form 8-K Information on Form 8-K
pursuant to this paragraph, including converting any such information to an
EDGAR-compatible format.
After preparing the Form 8-K, the Trustee shall forward
electronically a draft copy of the Form 8-K to the Depositor for review,
verification and execution by the Depositor. No later than 12:00 noon on the
fourth Business Day after the Reportable Event, an officer of the Depositor
shall sign the Form 8-K and return an electronic or fax copy of such signed Form
8-K (with an original executed hard copy to follow by overnight mail) to the
Trustee. Promptly (but no later than one Business Day) after filing with the
Securities and Exchange Commission, the Trustee will, make available on its
internet website a final executed copy of each Form 8-K prepared and filed by
it. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K
needs to be amended, the Trustee will follow the procedures set forth in Section
3.22(e). The Depositor acknowledges that the performance by the Trustee of its
duties under this Section 3.22(d) related to the timely preparation and filing
of Form 8-K is contingent upon the parties to this Agreement and any other
Person obligated to provide Form 8-K Information as set forth on Exhibit R-3
hereto, observing all applicable deadlines in the performance of their duties
under this Section 3.22(d). The Trustee shall have no liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 8-K, where such failure results
from the Trustee's inability or failure to obtain or receive, on a timely basis,
any information from any party hereto (other than the Trustee or any Servicing
Function Participant utilized by the Trustee) needed to prepare, arrange for
execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
(e) In the event that the Trustee is unable to timely file with the
Securities and Exchange 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
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 Trustee will
immediately notify the Depositor and the Servicer. In the case of Form 10-D and
Form 10-K, the Depositor, Servicer and Trustee will cooperate to prepare and
file a Form 12b-25 pursuant to Rule 12b-25 of the Exchange Act. In the case of
Form 8-K, the Trustee will, upon receipt of all information required to be
included on Form 8-K, and upon approval and direction of the Depositor, include
such disclosure in the filing of such Form 8-K or include such disclosure on the
next Form 10-D. Within 5 calendar days following the original due date of the
Form 10-D, the Trustee shall prepare and file the related Form 10-D. Within 15
calendar days following the original due date of the Form 10-K, the Trustee
shall prepare and file the related Form 10-K. In the event that any previously
filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the party to this
Agreement deciding that an amendment to such Form 8-K, Form 10-D or Form 10-K is
required will notify the Depositor, the Trustee and the Servicer and such
parties will cooperate to prepare any necessary Form 8-K/A, Form 10-D/A or Form
10-K/A. Any Form 12b-25 or any amendment to Form 10-D or Form 10-K shall be
signed by a senior officer of the Servicer in charge of the servicing function.
Any amendment to Form 8-K or any Form 15 (as described in Section 3.22(g)) shall
be signed by an officer of the Depositor. The Depositor and Servicer acknowledge
that the performance by the Trustee of its duties under this Section 3.22(e)
related to the timely preparation and filing of a Form 12b-25 or any amendment
to Form 8-K, Form 10-D or Form 10-K is contingent upon the Servicer and the
Depositor performing their duties under this Section. The Trustee shall have no
liability for any loss, expense, damage, claim arising out of or with respect to
any failure to properly prepare and/or timely file any such Form 12b-25 or any
amendments to Form 8-K, Form 10-D or Form 10-K, where such failure results from
the Trustee's inability or failure to obtain or receive, on a timely basis, any
information from any other party hereto (other than the Trustee or any Servicing
Function Participant utilized by the Trustee) needed to prepare, arrange for
execution or file such Form 12b-25 or any amendments to Form 8-K, Form 10-D or
Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
(f) Upon any filing with the Securities and Exchange Commission, the
Trustee shall promptly deliver or otherwise make available to the Depositor a
copy of any such executed report, statement or information.
(g) The obligations set forth in paragraphs (a) through (f) of this
Section shall only apply with respect to periods for which the Trustee is
obligated to file reports on Form 8-K, 10-D or 10-K. Unless otherwise instructed
by the Depositor, on or prior to January 30th of the first year in which the
Trustee is permitted to do so under Section 15(d) of the Exchange Act and other
applicable law and regulations, the Trustee shall prepare and file with the
Securities and Exchange Commission a Form 15 Suspension Notification with
respect to the Trust, with a copy to the Depositor. At any time after the filing
of a Form 15 Suspension Notification, if the number of Certificateholders of
record exceeds the number set forth in Section 15(d) of the Exchange Act or the
regulations promulgated pursuant thereto which would cause the Trust to again
become subject to the reporting requirements of the Exchange Act, the Trustee
shall recommence preparing and filing reports on Form 10-D and 10-K as required
pursuant to this Section and the parties hereto will again have the obligations
set forth in paragraphs (a) through (f) of this Section.
(h) The Depositor, the Trustee and the Servicer shall notify the
Depositor and the Trustee of any proceedings of the type described in Item 1117
of Regulation AB, together with a description thereof, within five Business Days
of any such party's knowledge thereof. In addition, the Depositor, the Trustee
and the Servicer shall notify the Depositor and the Trustee of any affiliations
or relationships that develop following the Closing Date between the Depositor,
the Trustee or the Servicer and any of parties listed in Item 1119 of Regulation
AB, together with a description thereof, within five Business Days of any such
party's knowledge thereof.
ARTICLE IV
SERVICER'S CERTIFICATE
Section 4.01 Servicer's Certificate. Each month, not later than
12:00 noon Eastern time on the Business Day following each Determination Date,
the Servicer shall deliver to the Trustee, a Servicer's Certificate (in
substance and format mutually acceptable to the Servicer and the Trustee)
certified by a Servicing Officer setting forth the information necessary in
order for the Trustee to perform its obligations under this Agreement. The
Trustee may conclusively rely upon the information contained in a Servicer's
Certificate for all purposes hereunder and shall have no duty to verify or
re-compute any of the information contained therein.
ARTICLE V
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS;
REMIC ADMINISTRATION
Section 5.01 Distributions. On each Distribution Date, based solely
on the information in the Servicer's Certificate, the Trustee shall distribute
or be deemed to distribute, as applicable, out of the Certificate 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 the
Residual Certificate), by wire transfer or by such other means of payment as
such Certificateholder and the Trustee 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
Servicer or the Trustee shall in any way be responsible or liable to Holders of
any Class of Certificates in respect of amounts properly previously distributed
on any such Class.
Amounts distributed with respect to any Class of Certificates shall
be applied first to the distribution of interest thereon and then to principal
thereon.
Section 5.02 Priorities of Distributions. (a) On each Distribution
Date, based solely on the information contained in the Servicer's Certificate,
the Trustee shall withdraw from the Certificate Account (to the extent funds are
available therein) (1) the amount payable to the Trustee pursuant to Section
3.11(b)(i) and (b)(ii) and shall pay such funds to itself, and (2) the Pool
Distribution Amount for each Group, in an amount as specified in written notice
received by the Trustee from the Servicer no later than the Business Day
following the related Determination Date, and shall apply such funds (or be
deemed to apply such funds, as applicable), to amounts distributable on the
Certificates (other than the Exchangeable Certificates), paying Group 1 solely
from the Pool Distribution Amount for Group 1, paying Group 2 solely from the
Pool Distribution Amount for Group 2, paying Group 3 solely from the Pool
Distribution Amount for Group 3, paying Group 4 solely from the Pool
Distribution Amount for Group 4 and paying the Subordinate Certificates from the
remaining combined Pool Distribution Amounts from all Groups, in the order of
priority set forth below and to the extent of such funds.
(i) concurrently, to each Class of Senior Non-PO Certificates of
such Group, pro rata, an amount allocable to interest equal to the
Interest Distribution Amount for such Class and any shortfall being
allocated among such Classes in proportion to the amount of the Interest
Distribution Amount that would have been distributed in the absence of
such shortfall provided, however, that until the applicable Accretion
Termination Date, amounts that would have been distributed pursuant to
this clause to the Class 3-A-14 and Class 3-A-15 Certificates will instead
be distributed in reduction of the Class Certificate Balances of the
Classes of Certificates specified in Section 5.02(b);
(ii) (a) with respect to Group 3 concurrently, (1) to the Senior
Non-PO Certificates of Group 3 based on the Group 3 Senior Principal
Amount, such distribution to be allocated among such Classes in accordance
with Section 5.02(b) and (2) to the Class 3-PO Certificates based on the
PO Principal Amount and (b) with respect to Group 1, Group 2 and Group 4,
to the Senior Non-PO Certificates of such Group based on the applicable
Senior Principal Distribution Amount for such Group to be allocated among
such Classes in accordance with Section 5.02(b);
(iii) in the case of Group 3, to the Class 3-PO Certificates, any PO
Deferred Amount (after giving effect to the distribution to the Class 3-PO
Certificates of the PO Recovery for Assumed Loan Group 3), up to the
Subordinate Principal Distribution Amounts for such Distribution Date from
amounts otherwise distributable to the Subordinate Certificates, first to
the Class B-6 Certificates pursuant to clause (iv)(N) below, second to the
Class B-5 Certificates pursuant to clause (iv)(L) below, third to the
Class B-4 Certificates pursuant to clause (iv)(J) below, fourth to the
Class B-3 Certificates pursuant to clause (iv)(H) below, fifth to the
Class B-2 Certificates pursuant to clause (iv)(F) below, sixth, to the
Class B-1 Certificates pursuant to clause (iv)(D) below and, finally, to
the Class M Certificates pursuant to clause (iv)(B) below;
(iv) to each Class of Subordinate Certificates, subject to paragraph
(d) below, in the following order of priority:
(A) to the Class M Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(B) to the Class M Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(C) to the Class B-1 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(D) to the Class B-1 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(E) to the Class B-2 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(F) to the Class B-2 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(G) to the Class B-3 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(H) to the Class B-3 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(I) to the Class B-4 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(J) to the Class B-4 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(K) to the Class B-5 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date;
(L) to the Class B-5 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero;
(M) to the Class B-6 Certificates, an amount allocable to
interest equal to the Interest Distribution Amount for such Class
for such Distribution Date; and
(N) to the Class B-6 Certificates, an amount allocable to
principal equal to its Pro Rata Share for such Distribution Date
less any amount used to pay the PO Deferred Amounts pursuant to
clause (iii) above until the Class Certificate Balance thereof has
been reduced to zero; and
(v) to the Holder of the Class 3-A-R Certificate, any amounts
remaining in the Upper-Tier Certificate Sub-Account and any remaining Pool
Distribution Amounts.
No Class of Certificates will be entitled to any distributions with
respect to the amount payable pursuant to clause (ii) of the definition of
"Interest Distribution Amount" after its Class Certificate Balance or Notional
Amount has been reduced to zero.
On any Distribution Date, amounts distributed in respect of the PO
Deferred Amounts (including the distribution of the PO Recoveries) will not
reduce the Class Certificate Balance of the Class 3-PO Certificates.
All distributions in respect of the Interest Distribution Amount for
a Class will be applied first with respect to the amount payable pursuant to
clause (i) of the definition of "Interest Distribution Amount," as applicable,
and second with respect to the amount payable pursuant to clause (ii) of such
definition.
On each Distribution Date, the Trustee shall distribute any
Reimbursement Amount sequentially to the Classes of Certificates (other than
Exchangeable Certificates) then outstanding which bore the loss to which such
Reimbursement Amount relates beginning with the most senior of such Classes of
Certificates, up to, with respect to each Class, the amount of loss borne by
such Class. Any Reimbursement Amount remaining after the application described
in the preceding sentence shall be included in the Pool Distribution Amount for
the Group.
On each Distribution Date, the Trustee shall distribute any PO
Recovery to the Holders of the Class 3-PO Certificates.
(vi) Distributions on the Uncertificated Middle-Tier Interests. On
each Distribution Date, each Uncertificated Middle-Tier Interest (other
than the Class 3-MIO Interest) shall receive distributions in respect of
principal in an amount equal to the amount of principal distributed to its
respective Corresponding Upper-Tier Class or Classes, as provided herein.
On each Distribution Date, each Uncertificated Middle-Tier Interest (other
than the Class 3-MPO Interest) shall receive distributions in respect of
interest in an amount equal to the Interest Accrual Amounts and Unpaid
Interest Shortfalls, as the case may be, in respect of its Corresponding
Upper-Tier Class or Classes, in each case to the extent actually
distributed thereon. Such amounts distributed to the Uncertificated
Middle-Tier Interests in respect of principal and interest with respect to
any Distribution Date are referred to herein collectively as the
"Middle-Tier Distribution Amount."
As of any date, the principal balance of each Uncertificated
Middle-Tier Interest other than the Class 3-MIO Interest equals the aggregate of
the Class Balances or Notional Amounts of the respective Corresponding
Upper-Tier Class or Classes. As of any date, the notional amount of the Class
3-MIO Interest equals the Class 3-A-IO Notional Amount. The initial principal
balance or notional amount of each Uncertificated Lower-Tier Interest other than
the Class 3-MIO Interest equals the aggregate of the Initial Class Balances or
Initial Notional Amounts of the respective Corresponding Upper-Tier Class or
Classes. The initial notional amount of the Class 3-MIO Interest equals the
Initial Notional Amount of the Class 3-A-IO Certificates.
The pass-through rate with respect to the Class 1-A-M1 Interest
shall be the Net WAC of the Group 1 Mortgage Loans. The pass-through rate with
respect to the Class 2-A-M1 Interest shall be the Net WAC of the Group 2
Mortgage Loans. The pass-through rate with respect to the Class 3-A-M1 Interest,
Class 3-A-M4 Interest, Class 3-A-M6 Interest, Class 3-A-M8 Interest, Class
3-A-M10 Interest, Class 3-A-M11 Interest, Class 3-A-M16 Interest, Class 3-A-MUR
Interest and Class 3-MIO Interest shall be 6.000% per annum. The pass-through
rate with respect to the Class 4-A-M1 Interest shall be the weighted average of
the Net WAC of the Group 2 Mortgage Loans and the Group 3 Mortgage Loans. The
pass-through rate with respect to the Class M-M1 Interest shall be the weighted
average of the Class 1-LS Interest, the Class 2-LS Interest, the Class 3-LS
Interest and the Class 4-LS Interest. The Class 3-MPO Interest is a
principal-only interest and is not entitled to distributions of interest.
Any Non-Supported Interest Shortfalls and Relief Act Reductions will
be allocated to each Uncertificated Middle-Tier Interest in the same relative
proportions as interest is allocated to such Uncertificated Middle-Tier
Interest.
(vii) Distributions on the Uncertificated Lower-Tier Interests. On
each Distribution Date, interest shall be distributed in respect of the
Uncertificated Lower-Tier Interests (other than the Class 3-LPO Interest)
at the pass-through rate thereon, as described in the next to last
paragraph of this Section 5.02(a)(vii). All distributions of principal
shall be made first to the Class 3-LPO Interest, so as to keep the
principal balance thereof at all times equal to the Class Certificate
Balance of the Class 3-PO Certificates; second, to the Class 1-LS
Interest, the Class 2-LS Interest, the Class 3-LS Interest and the Class
4-LS Interest, so as to keep the principal balances thereof (computed to
eight decimal places) equal to 0.100% of the Group Subordinate Amount for
Loan Group 1, Loan Group 2, Assumed Loan Group 3 and Assumed Loan Group 4,
respectively (except that if any such amount is greater than on the
preceding Distribution Date, the least amount of principal shall be
distributed to the Class 1-LS Interest, Class 2-LS Interest, Class 3-LS
Interest and Class 4-LS Interest, such that the Subordinate Balance Ratio
is maintained), and third, any remaining principal to the Class 1-L
Interest, Class 2-L Interest, Class 3-L Interest and Class 4-L Interest .
Any distributions of principal made to the Uncertificated Lower-Tier
Interests pursuant to this paragraph shall be made (a) from the Group 1
Mortgage Loans to the Uncertificated Lower-Tier Interests beginning with
the numeral "1," (b) from the Group 2 Mortgage Loans to the Uncertificated
Lower-Tier Interests beginning with the numeral "2" and (c) from the Group
3 Mortgage Loans to the Uncertificated Lower-Tier Interests beginning with
the numerals "3" and "4" based on the Allocation Percentage for Assumed
Loan Group 3 and Assumed Loan Group 4, respectively.
Realized Losses shall be applied after all distributions have been
made on each Distribution Date first, to the Class 3-LPO Interest, so as to keep
its principal balance equal to the Certificate Balance of the Class 3-PO
Certificates; second, to the Class 1-LS Interest, Class 2-LS Interest, Class
3-LS Interest and Class 4-LS Interest, so as to keep the principal balances
thereof (computed to eight decimal places) equal to 0.100% of the Group
Subordinate Amount for Loan Group 1, Loan Group 2, Assumed Loan Group 3 and
Assumed Loan Group 4, respectively (except that if any such amount is greater
than on the preceding Distribution Date, the least amount of principal shall be
distributed to the Class 1-LS Interest, Class 2-LS Interest, Class 3-LS Interest
and Class 4-LS Interest such that the Subordinate Balance Ratio is maintained);
and third, the remaining Realized Losses shall be allocated to the Class 1-L
Interest, Class 2-L Interest, Class 3-L Interest and Class 4-L Interest. Any
Realized Losses allocated to the Uncertificated Lower-Tier Interests pursuant to
this paragraph shall be (a) from Realized Losses allocated to Loan Group 1 in
the case of Uncertificated Lower-Tier Interests beginning with the numeral "1,"
(b) from Realized Losses allocated to Loan Group 2 in the case of Uncertificated
Lower-Tier Interests beginning with the numeral "2" and (c) from Realized Losses
allocated to Loan Group 3 in the case of Uncertificated Lower-Tier Interests
beginning with the numerals "3" and "4" based on the Allocation Percentage for
Assumed Loan Group 3 and Assumed Loan Group 4, respectively.
As of any date, the aggregate principal balance of the Class 1-L
Interest and the Class 1-LS Interest shall equal the aggregate Pool Stated
Principal Balance of Loan Group 1. As of any date, the aggregate principal
balance of the Class 2-L Interest and the Class 2-LS Interest shall equal the
aggregate Pool Stated Principal Balance of Loan Group 2. As of any date, the
aggregate principal balance of the Class 3-L Interest and the Class 3-LS
Interest shall equal the aggregate Pool Stated Principal Balance (Non-PO
Portion) of Assumed Loan Group 3. As of any date, the aggregate principal
balance of the Class 4-L Interest and the Class 4-LS Interest shall equal the
aggregate Pool Stated Principal Balance of Assumed Loan Group 4. As of any date,
the principal balance of the Class 3-LPO Interest will be equal to the Class
Certificate Balance of the Class 3-PO Certificates. As of any date, the notional
amount of the Class 3-LIO Interest will be equal to the Class 3-IO Notional
Amount.
The pass-through rate with respect to the Class 1-L Interest and the
Class 1-LS Interest shall be the Net WAC of the Group 1 Mortgage Loans. The
pass-through rate with respect to the Class 2-L Interest and the Class 2-LS
Interest shall be Net WAC of the Group 2 Mortgage Loans. The pass-through rate
with respect to the Class 3-L Interest and the Class 3-LS Interest shall be
6.00% per annum. The pass-through rate with respect to the Class 4-L Interest
and the Class 4-LS Interest shall be the Net WAC of the Group 3 Mortgage Loans.
The pass-through rate with respect to the Class 3-LIO Interest shall be 6.00%
per annum. The Class 3-LPO Interest is a principal-only interest and is not
entitled to distributions of interest.
Any Non-Supported Interest Shortfalls and Relief Act Reductions will
be allocated to each Uncertificated Lower-Tier Interest in the same relative
proportions as interest is allocated to such Uncertificated Lower-Tier Interest.
Amounts distributed to the Uncertificated Lower-Tier Interests in respect of
principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Distribution Amount."
(b) (i) With respect to the Group 1 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 1 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed,
to the Class 1-A-1 Certificates until their Class Certificate Balance has been
reduced to zero.
(ii) With respect to the Group 2 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 2 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
concurrently to the Class 2-A-1 and Class 2-A-2 Certificates, pro rata, until
their Class Certificate Balances have been reduced to zero.
(iii) With respect to the Group 3 Senior Certificates:
I. On each Distribution Date occurring prior to the Accretion
Termination Date for the 3-A-14 Certificates, the Class 3-A-14 Accrual
Distribution Amount will be allocated sequentially, to the Class 3-A-11 and
Class 3-A-14 Certificates, in that order, until their Class Certificate Balances
have been reduced to zero.
II. On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 3 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed,
sequentially, as follows:
first, to the Class 3-A-R Certificate, until its Class Certificate
Balance has been reduced to zero;
second, concurrently, to the Class 3-A-1, Class 3-A-2 and Class
3-A-13 Certificates, pro rata, up to the Group 3 Priority Amount for that
Distribution Date;
third, concurrently, up to the PAC Principal Amount for such
Distribution Date, as follows:
(A) 89.9996080199%, sequentially, to the Class 3-A-4, Class
3-A-6 and Class 3-A-8 Certificates, in that order, until their Class
Certificate Balances have been reduced to zero; and
(B) 10.0003919801% to the Class 3-A-10 Certificates, until
their Class Certificate Balance has been reduced to zero;
fourth, concurrently, as follows:
(A) 51.0906778832%, sequentially, as follows:
(i) sequentially, up to the TAC Principal Amount
for such Distribution Date, to the Class 3-A-11 and
Class 3-A-14 Certificates, in that order, until their
Class Certificate Balances have been reduced to zero;
(ii) to the Class 3-A-15 Certificates, until their
Class Certificate Balance has been reduced to zero; and
(iii) sequentially, to the Class 3-A-11 and Class
3-A-14 Certificates, in that order, until their Class
Certificate Balances have been reduced to zero;
(B) 48.9093221168% to the Class 3-A-16 Certificates, until
their Class Certificate Balance has been reduced to zero;
fifth, concurrently, as follows:
(A) 89.9996080199%, sequentially, to the Class 3-A-4, Class
3-A-6 and Class 3-A-8 Certificates, in that order, until their Class
Certificate Balances have been reduced to zero; and
(B) 10.0003919801% to the Class 3-A-10 Certificates, until
their Class Certificate Balance has been reduced to zero; and
sixth, concurrently, to the Class 3-A-1, Class 3-A-2 and Class
3-A-13 Certificates, pro rata, until their Class Certificate Balances have been
reduced to zero.
III. On each Distribution Date occurring prior to the Accretion
Termination Date for the 3-A-15 Certificates, the Class 3-A-15 Accrual
Distribution Amount will be allocated sequentially, as follows:
first, sequentially, up to the TAC Principal Amount for such
Distribution Date, to the Class 3-A-11 and Class 3-A-14 Certificates, in that
order, until their Class Certificate Balances have been reduced to zero; and
second, to the Class 3-A-15 Certificates, until their Class
Certificate Balance has been reduced to zero.
(iv) With respect to the Group 4 Senior Certificates:
On each Distribution Date prior to the Senior Credit Support
Depletion Date, the amount distributable to the Group 4 Senior Certificates
pursuant to Section 5.02(a)(ii) for such Distribution Date, will be distributed
to the Class 4-A-1 Certificates until their Class Certificate Balance has been
reduced to zero.
(v) On each Distribution Date on or after the Senior Credit Support
Depletion Date, notwithstanding the allocation and priority set forth
above, the portion of the Pool Distribution Amount with respect to a Group
available to be distributed as principal of the Senior Non-PO Certificates
of each Group shall be distributed concurrently, as principal, on such
Classes, pro rata, on the basis of their respective Class Certificate
Balances, until the Class Certificate Balances thereof are reduced to
zero.
The Class 3-A-3, Class 3-A-5, Class 3-A-7, Class 3-A-9, Class
3-A-12, Class 3-A-17, Class 3-A-35 and Class 3-IO Certificates are Interest Only
Certificates and are not entitled to distributions in respect of principal.
(vi) Notwithstanding the foregoing, on each Distribution Date prior
to the Senior Credit Support Depletion Date, but on or after the date on
which the Class Certificate Balances of the Senior Non-PO Certificates of
a Group have been reduced to zero, amounts otherwise distributable as
principal payments from the related Loan Group or related Assumed Loan
Group on the Subordinate Certificates will be paid as principal to the
remaining Classes of Senior Non-PO Certificates together with the
applicable Senior Principal Distribution Amount in accordance with the
priorities set forth for the applicable Group in (i), (ii), (iii) or (iv)
above, provided that on such Distribution Date (a) the Aggregate
Subordinate Percentage for such Distribution Date is less than twice the
initial Aggregate Subordinate Percentage or (b) the outstanding principal
balance of the Mortgage Loans (including, for this purpose, any Mortgage
Loans in foreclosure, any REO Property and any Mortgage Loan for which the
Mortgagor has filed for bankruptcy after the Closing Date) delinquent 60
days or more (averaged over the preceding six month period), as a
percentage of the aggregate Class Certificate Balance of the Subordinate
Certificates, is equal to or greater than 50%. If the Senior Non-PO
Certificates of two or more Groups remain outstanding, the distributions
described above will be made to the Senior Non-PO Certificates of those
Groups, pro rata, in proportion to the aggregate Class Certificate Balance
of the Senior Non-PO Certificates of each of those Groups. In addition, if
on any Distribution Date, after giving effect to the second preceding
sentence, the Class Certificate Balances of the Senior Non-PO Certificates
of a Group is greater than (A) in the case of Group 1, the Adjusted Pool
Amount (Non-PO Portion) for Loan Group 1, (B) in the case of Group 2,
86.4254982888% of the Adjusted Pool Amount (Non-PO Portion) for Loan Group
2, (C) in the case of Group 3, the Adjusted Pool Amount (Non-PO Portion)
for Assumed Loan Group 3 and (D) in the case of Group 4, the sum of
13.5745017112% of the Adjusted Pool Amount (Non-PO Portion) for Loan Group
2 and the Adjusted Pool Amount (Non-PO Portion) for Assumed Loan Group 4
(any such Group, the "Undercollateralized Group" and any such excess, the
"Undercollateralized Amount"), all amounts otherwise distributable as
principal on the Subordinate Certificates pursuant to Section
5.02(a)(iv)(N), (L), (J), (H), (F), (D) and (B), in that order, will be
paid as principal to the Senior Non-PO Certificates of the
Undercollateralized Group together with the applicable Senior Principal
Distribution Amount in accordance with the priorities set forth for the
applicable Group above under (i), (ii), (iii) or (iv) until the sum of the
Class Certificate Balances of the Senior Non-PO Certificates of the
Undercollateralized Group equals the amounts specified for such group in
clauses (A) through (D) above of this sentence. If two or more Groups are
Undercollateralized Groups, the distributions described above will be
made, pro rata, in proportion to the amount by which the aggregate Class
Certificate Balance of the Senior Non-PO Certificates of each such Group
exceeds the Pool Stated Principal Balance (Non-PO Portion) of the related
Loan Group or Assumed Loan Group. Also, the amount of any Class Unpaid
Interest Shortfalls with respect to the Undercollateralized Group
(including any Class Unpaid Interest Shortfalls for such Distribution
Date) will be paid to the Undercollateralized Group pursuant to Section
5.02(a)(i) prior to the payment of any Undercollateralized Amount from
amounts otherwise distributable as principal on the Subordinate
Certificates pursuant to Section 5.02(a)(iv)(N), (L), (J), (H), (F), (D)
and (B), in that order. Such amount will be paid to the Senior Non-PO
Certificates of such Undercollateralized Group up to their Interest
Distribution Amounts for such Distribution Date.
The PO Deferred Amounts will be paid from amounts otherwise
distributable as principal on the Subordinate Certificates before any payments
are made pursuant to the preceding paragraph.
(c) On each Distribution Date, Accrued Certificate Interest for each
Class of Senior Non-PO Certificates and each Class of Subordinate Certificates
for such Distribution Date shall be reduced by such Class' pro rata share, based
on such Class' Interest Distribution Amount for such Distribution Date, without
taking into account the allocation made by this Section 5.02(c), of (A)
Non-Supported Interest Shortfalls, (B) on and after the Senior Credit Support
Depletion Date, any other Realized Loss on the Mortgage Loans in the related
Loan Group or Assumed Loan Group allocable to interest and (C) Relief Act
Reductions incurred on the Mortgage Loans during the calendar month preceding
the month of such Distribution Date.
(d) Notwithstanding the priority and allocation contained in Section
5.02(a)(iv), if with respect to any Class of Subordinate Certificates on any
Distribution Date, (i) the aggregate of the Class Certificate Balances
immediately prior to such Distribution Date of all Classes of Subordinate
Certificates, as the case may be, lower in order of payment priority than such
Class, divided by (ii) the aggregate Pool Stated Principal Balance (Non-PO
Portion) for Loan Group 1, Loan Group 2, Assumed Loan Group 3 and Assumed Loan
Group 4 (for each Class, the "Fractional Interest") is less than the Original
Fractional Interest for such Class, no distribution of principal will be made to
any Classes of Subordinate Certificates junior to such Class (the "Restricted
Classes") and the Class Certificate Balances of the Restricted Classes of
Subordinate Certificates will not be used in determining the Pro Rata Share for
the Subordinate Certificates that are not Restricted Classes. If the aggregate
Class Certificate Balance of the Subordinate Certificates that are not
Restricted Classes is reduced to zero, notwithstanding the previous sentence,
any funds remaining will be distributed sequentially to the Subordinate
Certificates that are Restricted Classes in order of their payment priority
(beginning with the Class of Subordinate Certificates that is a Restricted Class
then outstanding highest in order of payment priority).
(e) Any amounts distributed to the Class 3-A-11 and 3-A-16
Certificates from the applicable Reserve Fund shall be deemed to be a
distribution to such Certificates from the Grantor Trust as payments on a
notional principal contract in the nature of a cap contract written by the
Counterparty in favor of the Holders of the Class 3-A-11 or Class 3-A-16
Certificates, as applicable.
(f) Outstanding Exchangeable Certificates shall be entitled to
receive their proportionate share of distributions in respect of interest and/or
principal allocated to their Related Exchangeable REMIC Certificates pursuant to
Section 5.01(a) and (b)(iii), (v) and (vi) and 5.03(d) as well as their
proportionate share of any Reimbursement Amount allocated to their Related
Exchangeable REMIC Certificates.
Section 5.03 Allocation of Losses. (a) On or prior to each
Determination Date, the Servicer shall inform the Trustee 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) the
total amount of Realized Losses on the Mortgage Loans in each Loan Group. Based
on such information, the Trustee shall determine the total amount of Realized
Losses on the Mortgage Loans in each Loan Group with respect to the related
Distribution Date. Realized Losses shall be allocated to the Certificates (other
than Exchangeable Certificates) by a reduction in the Class Certificate Balances
of the designated Classes pursuant to Section 5.03(b) below and to the
Exchangeable Certificates as described in Section 5.03(b) below.
(b) On each Distribution Date, the applicable PO Percentage of
86.4254982888% of any Realized Loss on a Discount Mortgage Loan in Loan Group 3
will be allocated to the Class 3-PO Certificates until its Class Certificate
Balance is reduced to zero. The Class Certificate Balance of the Class 3-PO
Certificates shall be reduced on each Distribution Date by the amount, if any,
by which the Class Certificate Balance of the Class 3-PO Certificates (after
giving effect to the amount to be distributed as a distribution of principal on
such Distribution Date) exceeds the Adjusted Pool Amount (PO Portion) for
Assumed Loan Group 3 for such Distribution Date.
The Class Certificate Balance of the Class of Subordinate
Certificates then outstanding lowest in order of payment priority shall be
reduced or increased on each Distribution Date by the amount, if any, necessary
such that the aggregate of the Class Certificate Balances of all outstanding
Classes of Senior Non-PO Certificates and Subordinate Certificates (after giving
effect to the amount to be distributed as a distribution of principal and the
allocation of the PO Deferred Amounts on such Distribution Date) equals the sum
of all Adjusted Pool Amounts (Non-PO Portion) for such Distribution Date.
After the Senior Credit Support Depletion Date, the Class
Certificate Balances of the Senior Non-PO Certificates of each Group in the
aggregate shall be reduced or increased on each Distribution Date by the amount,
if any, necessary such that the aggregate of the Class Certificate Balances of
all Classes of Senior Non-PO Certificates of such Group (after giving effect to
the amount to be distributed as a distribution of principal on such Distribution
Date) equals (i) in the case of Group 1, the Adjusted Pool Amount (Non-PO
Portion) for Loan Group 1, (ii) in the case of Group 2, 86.4254982888% of the
Adjusted Pool Amount (Non-PO Portion) for Loan Group 2, (iii) in the case of
Group 3, the Adjusted Pool Amount (Non-PO Portion) for Assumed Loan Group 3 and
(iv) in the case of Group 4, the sum of 13.5745017112% of the Adjusted Pool
Amount (Non-PO Portion) for Loan Group 2 and the Adjusted Pool Amount (Non-PO
Portion) for Assumed Loan Group 4.
Any such reduction or increase shall be allocated among the Senior
Non-PO Certificates of such Group, based on the Class Certificate Balances
immediately prior to such Distribution Date or, in the case of the Class 3-A-14
or Class 3-A-15 Certificates, the respective Initial Class Certificate Balance,
if lower.
Outstanding Exchangeable Certificates will be allocated their
proportionate share of any increase or decrease in the Class Certificate Balance
of a Related Exchangeable REMIC Certificate pursuant to this Section 5.03(b).
(c) Any reduction or increase in the Class Certificate Balance of a
Class of Certificates pursuant to Section 5.03(b) above shall be allocated among
the Certificates of such Class based on their Percentage Interests.
(d) The calculation of the amount to be distributed as principal to
any Class of Subordinate Certificates with respect to a Distribution Date (the
"Calculated Principal Distribution") shall be made prior to the allocation of
any Realized Losses for such Distribution Date; provided, however, the actual
payment of principal to the Classes of Subordinate Certificates shall be made
subsequent to the allocation of Realized Losses for such Distribution Date. In
the event that after the allocation of Realized Losses for a Distribution Date,
the Calculated Principal Distribution for a Class of Subordinate Certificates is
greater than the Class Certificate Balance of such Class, the excess shall be
distributed first, sequentially, to the Classes of Subordinate Certificates then
outstanding (beginning with the Class of Subordinate Certificates then
outstanding highest in order of payment priority) until the respective Class
Certificate Balance of each such Class is reduced to zero and then to the Senior
Non-PO Certificates of such Group, pro rata, on the basis of their respective
Class Certificate Balances.
(e) After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 2-A-2 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 2-A-2 Certificates will be
reduced by the Class 2-A-2 Loss Allocation Amount and, notwithstanding Section
5.03(b), the Class Certificate Balance of the Class 2-A-1 Certificates will not
be reduced by the Class 2-A-2 Loss Allocation Amount. After the Senior Credit
Support Depletion Date, on any Distribution Date on which the Class 3-A-2 Loss
Allocation Amount is greater than zero, the Class Certificate Balance of the
Class 3-A-2 Certificates will be reduced by the Class 3-A-2 Loss Allocation
Amount and, notwithstanding Section 5.03(b), the Class Certificate Balance of
the Class 3-A-1 Certificates will not be reduced by the Class 3-A-2 Loss
Allocation Amount. After the Senior Credit Support Depletion Date, on any
Distribution Date on which the Class 3-A-10 Loss Allocation Amount is greater
than zero, the Class Certificate Balance of the Class 3-A-10 Certificates will
be reduced by the Class 3-A-10 Loss Allocation Amount and, notwithstanding
Section 5.03(b), the Class Certificate Balances of the Class 3-A-4, Class 3-A-6,
Class 3-A-8 and Class 3-A-16 Certificates will not be reduced by the Class
3-A-10 Loss Allocation Amount. Notwithstanding the foregoing, on any
Distribution Date in which the sum of the Class 3-A-4 Loss Amount, Class 3-A-6
Loss Amount, Class 3-A-8 Loss Amount and Class 3-A-16 Loss Amount exceeds the
Class Certificate Balance of the Class 3-A-10 Certificates prior to any
reduction for the Class 3-A-10 Loss Allocation Amount, such excess will be
distributed pro rata, in reduction of the Class Certificate Balance of the Class
3-A-4, Class 3-A-6, Class 3-A-8 and Class 3-A-16 Certificates. After the Senior
Credit Support Depletion Date, on any Distribution Date on which the Class
3-A-13 Loss Allocation Amount is greater than zero, the Class Certificate
Balance of the Class 3-A-13 Certificates will be reduced by the Class 3-A-13
Loss Allocation Amount and, notwithstanding Section 5.03(b), the Class
Certificate Balance of the Class 3-A-11 Certificates will not be reduced by the
Class 3-A-13 Loss Allocation Amount.
On any Distribution Date, the reduction to the Class Certificate
Balances which would otherwise be allocated to the Class 3-A-4, Class 3-A-6,
Class 3-A-8 and Class 3-A-16 Certificates pursuant to the third sentence of the
preceding paragraph, will be allocated to the Class 3-A-10 Certificates
proportionately up to an amount equal to equal to $10,005,000 for the Class
3-A-4, Class 3-A-6 and Class 3-A-8 Certificates in the aggregate and $200,000
for the Class 3-A-16 Certificates, respectively, until the Class Certificate
Balance of the Class 3-A-10 Certificates is reduced to zero.
Any increase in Class Certificate Balance allocated to the Class
2-A-1 Certificates pursuant to Section 5.03(b) will instead increase the Class
Certificate Balance of the Class 2-A-2 Certificates; any increase in Class
Certificate Balance allocated to the Class 3-A-1 or Class 3-A-19 Certificates
pursuant to Section 5.03(b) will instead increase the Class Certificate Balance
of the Class 3-A-2 Certificates; any increase in Class Certificate Balance
allocated to the Class 3-A-4, Class 3-A-6, Class 3-A-8 or Class 3-A-16
Certificates pursuant to Section 5.03(b) will instead increase the Class
Certificate Balance of the Class 3-A-10 Certificates; and any increase in Class
Certificate Balance allocated to the Class 3-A-11 Certificates pursuant to
Section 5.03(b) will instead increase the Class Certificate Balance of the Class
3-A-13 Certificates.
Outstanding Exchangeable Certificates will be allocated their
proportionate share of any increase or decrease in the Class Certificate Balance
of a Related Exchangeable REMIC Certificate pursuant to this Section 5.03(e).
(f) Notwithstanding any other provision of this Section 5.03, no
Class Certificate Balance of a Class will be increased on any Distribution Date
such that the Class Certificate Balance of such Class exceeds its Initial Class
Certificate Balance or Maximum Initial Class Certificate Balance (plus, in the
case of the Class 3-A-14 and Class 3-A-15 Certificates, any Class 3-A-14 Accrual
Distribution Amounts or Class 3-A-15 Accrual Distribution Amounts, as
applicable, previously added thereto), less all distributions of principal
previously distributed in respect of such Class on prior Distribution Dates
(excluding in the case of any Class of Subordinate Certificates any principal
otherwise payable to such Class of Subordinate Certificates but used to pay any
PO Deferred Amount).
(g) With respect to any Distribution Date, Realized Losses allocated
pursuant to this Section 5.03 will be allocated to each Uncertificated
Lower-Tier Interest in an amount equal to the Realized Losses allocated to such
Uncertificated Lower-Tier Interest's Corresponding Upper Tier Class or Classes.
Section 5.04 Statements to Certificateholders. (a) Prior to the
Distribution Date in each month, based upon the information provided to the
Trustee on the Servicer's Certificates delivered to the Trustee pursuant to
Section 4.01 and with respect to subsections (xx) and (xxi) below, after
consultation with the Depositor, the Trustee shall determine the following
information with respect to such Distribution Date:
(i) the date of such Distribution Date and the Determination Date
for such Distribution Date;
(ii) for each Class, the applicable Record Date and Interest Accrual
Period;
(iii) for each Class, the amount allocable to principal, separately
identifying the aggregate amount of any Principal Prepayments and
Liquidation Proceeds included therein, assuming in the case of a Class of
Exchangeable REMIC Certificates no exchanges have occurred and in the case
of a Class of Exchangeable Certificates that all exchanges have occurred;
(iv) for each Class, the amount allocable to interest, any Class
Unpaid Interest Shortfall included in such distribution and any remaining
Class Unpaid Interest Shortfall after giving effect to such distribution,
assuming in the case of a Class of Exchangeable REMIC Certificates no
exchanges have occurred and in the case of a Class of Exchangeable
Certificates that all exchanges have occurred;
(v) 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;
(vi) the Class Certificate Balance of each Class of Certificates
(other than the Exchangeable Certificates) prior to and after giving
effect to the distribution of principal on such Distribution Date and the
Maximum Class Certificate Balance of each Class of Exchangeable
Certificates;
(vii) for each Loan Group (other than Loan Group 3) and Assumed Loan
Group, the Pool Stated Principal Balance for such Distribution Date;
(viii) for each Loan Group (other than Loan Group 3) and Assumed
Loan Group, the Senior Percentage and the Subordinate Percentage for such
Distribution Date and the Total Senior Percentage and Aggregate
Subordinate Percentage for such Distribution Date;
(ix) the amount of the Servicing Fee paid to or retained by the
Servicer with respect to each Loan Group and such Distribution Date;
(x) the Pass-Through Rate for each such Class of Certificates with
respect to such Distribution Date;
(xi) the amount of Periodic Advances included in the distribution on
such Distribution Date, the aggregate amount of Periodic Advances
outstanding as of the close of business on such Distribution Date and the
amount of Periodic Advances reimbursed since the previous Distribution
Date;
(xii) for each Loan Group, the number and aggregate Stated Principal
Balance of the Mortgage Loans, the ranges of Mortgage Interest Rates for
the Mortgage Loans, separated by 0.25%, the weighted average remaining
term to maturity of the Mortgage Loans and the cumulative amount of
Principal Prepayments, each as of the close of business on the last day of
the calendar month preceding such Distribution Date;
(xiii) for each Loan Group, the number and aggregate principal
amounts of Mortgage Loans (A) delinquent (exclusive of Mortgage Loans in
foreclosure or in bankruptcy) in 30-day increments until foreclosure or
other disposition, (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;
(xiv) for each Loan Group, with respect to any Mortgage Loan that
became an REO Property during the preceding calendar month, the loan
number and Stated Principal Balance of such Mortgage Loan as of the close
of business on the Determination Date preceding such Distribution Date and
the date of acquisition thereof;
(xv) for each Loan Group, the total number and principal balance of
any REO Properties (and market value, if available) as of the close of
business on the Determination Date preceding such Distribution Date;
(xvi) for each Loan Group (other than Loan Group 3) and Assumed Loan
Group, the Senior Prepayment Percentage and the Subordinate Prepayment
Percentage for such Distribution Date;
(xvii) for each Loan Group, the aggregate amount of Realized Losses
incurred during the preceding calendar month and for each Group, any PO
Deferred Amounts for such Distribution Date;
(xviii) in the case of each Class of Interest Only Certificates
(other than a Class of Exchangeable Certificates), the applicable Notional
Amount, if any, and for each Class of Interest Only Certificates which are
Exchangeable Certificates, the Maximum Notional Amount, if any;
(xix) any expenses or indemnification amounts paid by the Trust, the
specific purpose of each payment and the parties to whom such payments
were made;
(xx) for each Loan Group (other than Loan Group 3) and Assumed Loan
Group, the amount of total Recoveries, the PO Recovery and the Non-PO
Recovery;
(xxi) any material modifications, extensions or waivers to Mortgage
Loan terms, fees, penalties or payments since the previous Distribution
Date;
(xxii) unless such information is set forth in the Form 10-D
relating to such Distribution Date and provided the Trustee is reasonably
able to include such information on the statement, any material breaches
of representations and warranties relating to the Mortgage Loans and any
material breach of covenants hereunder;
(xxiii) the number and aggregate principal balance of any Mortgage
Loans repurchased by the Depositor from the Trust since the previous
Distribution Date;
(xxiv) the Class 3-A-11 Yield Maintenance Agreement Payment and
Class 3-A-16 Yield Maintenance Agreement Payment received from the
Counterparty and paid to the Class 3-A-11 and Class 3-A-16 Certificates,
as the case may be; and
(xxv) a statement as to whether any exchanges of Exchangeable REMIC
Certificates or Exchangeable Certificates have taken place since the
preceding Distribution Date, and, if applicable, the names, Class
Certificate Balances, Pass Through Rates, and any interest and principal
paid, including any shortfalls allocated, of any Classes of Exchangeable
REMIC Certificates or Exchangeable Certificates that were received by the
Certificateholder as a result of such exchange.
(b) No later than each Distribution Date, the Trustee, based upon
information supplied to it on the Servicer's Certificate, shall make available
to each Holder of a Certificate, each Rating Agency and the Servicer a statement
setting forth the information set forth in Section 5.04(a).
In the case of information furnished pursuant to clauses (iii) and
(iv) of Section 5.04(a), the amounts shall be expressed as a dollar amount per
Certificate with a $1,000 Denomination.
On each Distribution Date, the Trustee shall prepare and furnish to
each Financial Market Service, in electronic or such other format and media
mutually agreed upon by the Trustee, the Financial Market Service and the
Depositor, the information contained in the statement described in Section
5.04(a) for such Distribution Date.
The Trustee will make the monthly statement to Certificateholders
(and, at its option, any additional files containing the same information in an
alternative format) available each month to Certificateholders, and other
parties to this Agreement via the Trustee's Internet website, initially located
at "www.ctslink.com". The Trustee will also make available copies of the
periodic reports the Trustee prepares and files with the Securities and Exchange
Commission, including distribution reports on Form 10-D, annual reports on Form
10-K, current reports on Form 8-K and amendments to these reports available
through this website promptly (but no later than one Business Day) after they
are filed with the Securities and Exchange Commission. Assistance in using this
website can be obtained by calling the Trustee's customer service desk at (301)
815-6600. 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 Trustee 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
Trustee shall provide timely and adequate notification to all above parties
regarding any such changes.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was the Holder of a Certificate, if requested in writing by such
Person, a statement containing the information set forth in clauses (iii), (iv)
and (ix) 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 Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code as from time to time in force.
The Trustee shall deliver to the Holders of Certificates any reports
or information the Trustee is required by this Agreement or the Code, Treasury
Regulations or REMIC Provisions to deliver to the Holders of Certificates, and
the Trustee 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 Trustee 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 Trustee), (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 Trustee
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, nothing contained in this Agreement, including without limitation Section
7.03 hereof, shall be interpreted to require the Trustee 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.
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.
Section 5.05 Tax Returns and Reports to Certificateholders. (a) For
federal income tax purposes, each REMIC shall have a calendar year taxable year
and shall maintain its books on the accrual method of accounting.
(b) The Trustee shall prepare or cause to be prepared, shall execute
and shall file or cause to be filed with the Internal Revenue Service and
applicable state or local tax authorities income tax information returns for
each taxable year with respect to each REMIC containing such information at the
times and in the manner as may be required by the Code, the Treasury Regulations
or state or local tax laws, regulations, or rules, and shall furnish or cause to
be furnished to each REMIC and the Certificateholders the schedules, statements
or information at such times and in such manner as may be required thereby.
Within 30 days of the Closing Date, the Trustee shall furnish or cause to be
furnished to the Internal Revenue Service, on Form 8811 or as otherwise required
by the Code or the Treasury Regulations, the name, title, address and telephone
number of the person that Holders of the Certificates may contact for tax
information relating thereto, together with such additional information at the
time or times and in the manner required by the Code or the Treasury
Regulations. Such federal, state, or local income tax or information returns
shall be signed by the Trustee, or such other Person as may be required to sign
such returns by the Code, the Treasury Regulations or state or local tax laws,
regulations, or rules.
(c) In the first federal income tax return of each REMIC 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 Trustee will maintain or cause to be maintained such records
relating to each REMIC, including but not limited to records relating to the
income, expenses, assets and liabilities of the Trust Estate, and the initial
fair market value and adjusted basis of the Trust Estate property and assets
determined at such intervals as may be required by the Code or the Treasury
Regulations, as may be necessary to prepare the foregoing returns, schedules,
statements or information.
Section 5.06 Tax Matters Person. The Tax Matters Person shall have
the same duties with respect to each 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 3-A-R Certificate is hereby designated as the Tax Matters Person for each
of the REMICs. By its acceptance of the Class 3-A-R Certificate, each such
Holder irrevocably appoints the Trustee as its agent to perform all of the
duties of the Tax Matters Person for the REMICs.
Section 5.07 Rights of the Tax Matters Person in Respect of the
Trustee. The Trustee shall afford the Tax Matters Person, upon reasonable notice
during normal business hours, access to all records maintained by the Trustee in
respect of its duties hereunder and access to officers of the Trustee
responsible for performing such duties. Upon request, the Trustee 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 Trustee shall make available to the Tax Matters Person
such books, documents or records relating to the Trustee'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
Trustee and is not obligated to supervise the performance of the Trustee under
this Agreement or otherwise.
Section 5.08 REMIC Related Covenants. For as long as the Trust shall
exist, the Trustee, the Depositor and the Servicer shall act in accordance
herewith to assure continuing treatment of the Upper-Tier REMIC, Middle-Tier
REMIC and the Lower-Tier REMIC as REMICs and avoid the imposition of tax on any
REMIC created hereunder. In particular:
(a) The Trustee shall not create, or permit the creation of, any
"interests" in any REMIC created hereunder within the meaning of Code Section
860D(a)(2) other than the interests represented by the Regular Certificates, the
Residual Certificate and the Uncertificated Lower-Tier Interests.
(b) Except as otherwise provided in the Code, (i) the Depositor and
the 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 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 after the start-up day of a REMIC imposed by Code Section 860G(d).
(c) The Trustee shall not accept on behalf of any REMIC created
hereunder any fee or other compensation for services and neither the Trustee nor
the 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) The Trustee shall not sell or permit the sale of all or any
portion of the Mortgage Loans (other than in accordance with Section 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 Trustee shall maintain books with respect to the Trust and
each REMIC on a calendar year taxable year and on an accrual basis.
Neither the Servicer nor 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 Servicer and the Depositor, the Trustee may engage
in the activities otherwise prohibited by the foregoing paragraphs (b), (c) and
(d); provided that the Servicer shall have delivered to the Trustee an Opinion
of Counsel to the effect that such transaction will not result in the imposition
of a tax on either of the Upper-Tier REMIC, Middle-Tier REMIC or the Lower-Tier
REMIC and will not disqualify any REMIC created hereunder from treatment as a
REMIC; and, provided, further, that the Servicer shall have demonstrated to the
satisfaction of the Trustee that such action will not adversely affect the
rights of the Holders of the Certificates and the Trustee and that such action
will not adversely impact the rating of the Certificates.
Section 5.09 Determination of LIBOR. On each Rate Determination Date
for a LIBOR Certificate, the Trustee shall determine LIBOR for the applicable
Distribution Date on the basis of the British Bankers' Association ("BBA")
"Interest Settlement Rate" for one-month deposits in U.S. Dollars as found on
Telerate page 3750 as of 11:00 A.M. London time on such Rate Determination Date.
As used herein, "Telerate page 3750" means the display designated as page 3750
on the Reuters Telerate Service.
If on any Rate Determination Date for a LIBOR Certificate, the
Trustee is unable to determine LIBOR on the basis of the method set forth in the
preceding paragraph, LIBOR for the applicable Distribution Date will be
whichever is higher of (x) LIBOR as determined on the previous Rate
Determination Date for such LIBOR Certificate or (y) the Reserve Interest Rate.
The "Reserve Interest Rate" will be the rate per annum which the Trustee
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 Trustee are
quoting, on the relevant Rate Determination Date, to the principal London
offices of at least two leading banks in the London interbank market or (B) in
the event that the Trustee can determine no such arithmetic mean, the lowest
one-month U.S. Dollar lending rate that the New York City banks selected by the
Trustee are quoting on such Rate Determination Date to leading European banks.
If on any Rate Determination Date for a LIBOR Certificate, the
Trustee is required but is unable to determine the Reserve Interest Rate in the
manner provided in the preceding paragraph, LIBOR for the applicable
Distribution Date will be LIBOR as determined on the previous Rate Determination
Date for such LIBOR Certificate, or, in the case of the first Rate Determination
Date, 5.32%.
The establishment of LIBOR by the Trustee and the Trustee's
subsequent calculation of the rates of interest applicable to each of the LIBOR
Certificates in the absence of manifest error, will be final and binding. After
a Rate Determination Date, the Trustee shall provide the Pass-Through Rates of
the LIBOR Certificates for the related Distribution Date to Beneficial Owners or
Holders of LIBOR Certificates who place a telephone call to the Trustee at (301)
815-6600 and make a request therefor.
Section 5.10 Grantor Trust Administration. (a) The Trustee shall
treat the portions of the Trust Estate consisting of (i) the Reserve Funds and
the Yield Maintenance Agreements and rights with respect thereto and (ii) any
interests in the Exchangeable REMIC Certificates beneficially owned in the form
of Exchangeable Certificates and rights with respect thereto as a "grantor
trust" under the Code, and the provisions hereof shall be interpreted
consistently with this treatment. The Trustee shall furnish or cause to be
furnished to the Holders of the Class 3-A-11 and Class 3-A-16 Certificates and
the Exchangeable Certificates and shall file or cause to be filed with the
Internal Revenue Service together with Form 1041 or such other form as may be
applicable, their allocable shares of income and expenses with respect to the
property held by the Grantor Trust, at the time or times and in the manner
required by the Code. Under no circumstances shall the Trustee have the power to
vary the investments of the Certificateholders in their related assets of the
Grantor Trust in order to take advantage of variations in this market to improve
their rate of return.
(b) (i) Each beneficial owner of Exchangeable REMIC Certificates
that elects to hold its interest in the Exchangeable REMIC Certificates in the
form of Exchangeable Certificates pursuant to Sections 6.03 and 6.04 of this
Agreement shall be deemed to have instructed the Trustee to deposit the
applicable Exchangeable REMIC Certificates into the Grantor Trust and all
distributions in respect of such Exchangeable REMIC Certificates shall be
deposited into the Exchangeable Certificate Grantor Trust Account. The Trustee
hereby designates the Exchangeable Certificate Grantor Trust Account as a
sub-account of the Certificate Account.
(ii) On each Distribution Date, the Trustee shall deposit all
distributions in respect of the Exchangeable REMIC Certificates deemed
received by it from the Upper-Tier Certificate Sub-Account pursuant to
paragraph (b)(i) of this Section 5.10 in the Exchangeable Certificate
Grantor Trust Account, and shall immediately distribute such amounts in
respect of the related Exchangeable Certificates.
(iii) Any beneficial owner of Exchangeable Certificates that
exchanges such Exchangeable Certificates for the related Exchangeable
REMIC Certificates shall be deemed to have instructed the Trustee to
remove such Exchangeable REMIC Certificates from the Grantor Trust, so
that distributions on such Exchangeable REMIC Certificates are made
directly from the Upper-Tier Certificate Sub-Account to such beneficial
owner.
Section 5.11 Distributions. On each Distribution Date, the Trustee
shall withdraw from the Exchangeable Certificate Grantor Trust Account the
Exchangeable Class Distribution Amount for each related Class and shall make the
appropriate distributions to the Certificateholders of each such Class. All
distributions that are made with respect to a particular Class of Exchangeable
Certificates shall be made pro rata among all Certificates of such Class in
proportion to their respective Percentage Interests, with no preference or
priority of any kind.
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. The Classes of Senior Certificates
and the Subordinate Certificates shall be substantially in the forms set forth
in Exhibits A-1, A-2, B and C (reverse of all Certificates) and shall, on
original issue, be executed by the Trustee and shall be authenticated and
delivered by the Trustee to or upon the order of the Depositor upon receipt by
the Trustee of the documents specified in Section 2.01. The Classes of
Certificates shall be available to investors in the minimum Denominations of
initial Certificate Balance or initial notional amount and the integral
multiples in excess thereof as set forth in the Preliminary Statement. The
Senior Certificates (other than the Class 3-A-R Certificate) and the Class M,
Class B-1, Class B-2, and Class B-3 Certificates shall initially be issued in
book-entry form through the Depository and delivered to the Depository or,
pursuant to the Depository's instructions on behalf of the Depository to, and
deposited with, the Certificate Custodian, and all other Classes of Certificates
shall initially be issued in definitive, fully-registered form.
The Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee 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 Trustee
shall bind the Trustee, 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 Trustee 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 Trustee shall cause to be kept at an office or agency in the city in
which the Corporate Trust Office of the Trustee is located a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee 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 Trustee shall execute and the Trustee shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
transfer or exchange shall (if so required by the Trustee or the Certificate
Registrar) be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Trustee 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 Certificates
may not be transferred by the Trustee except to another Depository; (B) the
Depository shall maintain book-entry records with respect to the Certificate
Owners and with respect to ownership and transfers of such Book-Entry
Certificates; (C) ownership and transfers of registration of the Book-Entry
Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (D) the Depository may collect its usual
and customary fees, charges and expenses from its Depository Participants; (E)
the Trustee 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 Trustee 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 Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository and the Trustee or the Depositor is unable
to locate a qualified successor, the Trustee 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 Trustee 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 Trustee shall issue the Definitive
Certificates. None of the Servicer, the Depositor 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 Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive
Certificates. Upon the issuance of Definitive Certificates, the Trustee
shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
(d) No transfer of a Private Certificate shall be made unless such
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
such laws. In the event of any such transfer, (i) unless such transfer is made
in reliance on Rule 144A under the 1933 Act, the Trustee 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 Trustee 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 Trustee or the Depositor and (ii) the
Trustee shall require a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached hereto as Exhibit G-1
and a certificate from such Certificateholder's prospective transferee
substantially in the form attached hereto either as Exhibit G-2A or as Exhibit
G-2B, which certificates shall not be an expense of the Trustee or the
Depositor; provided that the foregoing requirements under clauses (i) and (ii)
shall not apply to a transfer of a Private Certificate between or among the
Depositor, the Seller, their affiliates or both. The Depositor shall provide to
any Holder of a Private Certificate and any prospective transferees designated
by any such Holder, information regarding the related Certificates and the
Mortgage Loans and such other information as shall be necessary to satisfy the
condition to eligibility set forth in Rule 144A(d)(4) for transfer of any such
certificate without registration thereof under the 1933 Act pursuant to the
registration exemption provided by Rule 144A. The Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
(e) No transfer of an ERISA Restricted Certificate shall be made
unless the transferee delivers to the Trustee either (i) a representation letter
in the form of Exhibit H from the transferee of such Certificate, which
representation letter shall not be an expense of the Depositor, the Trustee or
the Servicer, or (ii) in the case of any ERISA Restricted Certificate presented
for registration in the name of an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code, or any
federal, state or local law ("Similar Law") which is similar to ERISA or the
Code (collectively, a "Plan"), or a trustee or custodian of any of the
foregoing, an Opinion of Counsel in form and substance satisfactory to the
Trustee and the Servicer to the effect that the purchase or holding of such
ERISA Restricted Certificate by or on behalf of such Plan will not constitute or
result in a non-exempt prohibited transaction within the meaning of ERISA,
Section 4975 of the Code or Similar Law and will not subject the Trustee, the
Depositor or the Servicer to any obligation in addition to those undertaken in
this Agreement, which Opinion of Counsel shall not be an expense of the Trustee
or the Servicer. Any transferee of an ERISA Restricted Certificate that does not
comply with either clause (i) or (ii) of the preceding sentence will be deemed
to have made one of the representations set forth in Exhibit H. For purposes of
clause (i) of the second preceding sentence, such representation shall be deemed
to have been made to the Certificate Registrar by the acceptance by a
Certificate Owner of a Book-Entry Certificate of the beneficial interest in any
such Class of ERISA Restricted Certificates, unless the Certificate Registrar
shall have received from the transferee an alternative representation acceptable
in form and substance to the Depositor. Notwithstanding anything else to the
contrary herein, any purported transfer of an ERISA Restricted Certificate to or
on behalf of a Plan without the delivery to the Trustee and the Servicer of an
Opinion of Counsel satisfactory to the Trustee and the Servicer as described
above shall be void and of no effect.
Neither the Trustee 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 Trustee
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 Trustee 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 Trustee in accordance with the foregoing requirements.
(f) Each Person who has or who acquires any Ownership Interest in
the 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 the Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in the
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Person shall acquire an Ownership Interest in the Residual
Certificate unless such Ownership Interest is a pro rata undivided
interest.
(iii) In connection with any proposed transfer of any Ownership
Interest in the Residual Certificate, the Trustee shall require delivery
to it, in form and substance satisfactory to it, of an affidavit in the
form of Exhibit I hereto from the proposed transferee.
(iv) Notwithstanding the delivery of an affidavit by a proposed
transferee under clause (iii) above, if a Responsible Officer of the
Trustee has actual knowledge that the proposed transferee is not a
Permitted Transferee, no transfer of any Ownership Interest in the
Residual Certificate to such proposed transferee shall be effected.
(v) No Ownership Interest in the Residual Certificate may be
purchased by or transferred to any Person that is not a U.S. Person,
unless (A) such Person holds the Residual Certificate in connection with
the conduct of a trade or business within the United States and furnishes
the transferor and the Trustee with an effective Internal Revenue Service
Form W-8ECI (or successor thereto) or (B) the transferee delivers to both
the transferor and the Trustee 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.
(vi) Any attempted or purported transfer of any Ownership Interest
in the 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 the Residual
Certificate, then the prior Holder of the Residual Certificate that is a
Permitted Transferee shall, upon discovery that the registration of
transfer of the 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 the Residual Certificate. The
Trustee shall be under no liability to any Person for any registration of
transfer of the Residual Certificate that is in fact not permitted by this
Section 6.02 or for making any distributions due on the 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 Trustee
shall be entitled to recover from any Holder of the Residual Certificate
that was in fact not a Permitted Transferee at the time such distributions
were made all distributions made on the Residual Certificate. Any such
distributions so recovered by the Trustee shall be distributed and
delivered by the Trustee to the prior Holder of the Residual Certificate
that is a Permitted Transferee.
(vii) If any Person other than a Permitted Transferee acquires any
Ownership Interest in the Residual Certificate in violation of the
restrictions in this Section 6.02, then the Trustee, based on information
provided to the Trustee by the Servicer, will provide to the Internal
Revenue Service, and to the Persons specified in Section 860E(e)(3) and
(6) of the Code, information needed to compute the tax imposed under
Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations. The expenses of the Trustee under this clause
(vii) shall be reimbursable by the Trust.
(viii) No Ownership Interest in the Residual Certificate shall be
acquired by a Plan or any Person acting on behalf of a Plan.
(g) No service charge shall be imposed for any transfer or exchange
of Certificates of any Class, but the Trustee 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 Transfer of Exchangeable REMIC Certificates and
Exchangeable Certificates. (a) Upon the presentation and surrender by any
Certificateholder of its Exchangeable REMIC Certificates or Exchangeable
Certificates in the appropriate combination as set forth in Exhibit U hereto,
such Certificateholder shall hereunder transfer, assign, set over and otherwise
convey to the Trustee, all of such Certificateholder's right, title and interest
in and to such Exchangeable REMIC Certificates or Exchangeable Certificates,
including all payments of interest thereon received after the date of such
presentation and surrender and until such Certificateholder informs the Trustee
that it wishes to again hold its interest in the form of Exchangeable REMIC
Certificates or Exchangeable Certificates, as applicable.
(b) The Trustee acknowledges any transfer and assignment of
Exchangeable REMIC Certificates or Exchangeable Certificates pursuant to the
foregoing paragraph, and hereby declares that it will hold the same in trust for
the Certificateholders on the terms in this Agreement, and shall treat such
Exchangeable REMIC Certificates and Exchangeable Certificates in accordance with
Section 5.11 of this Agreement.
Section 6.04 Exchanges of Exchangeable REMIC Certificates and
Exchangeable Certificates. (a) Exchangeable REMIC Certificates shall be
exchangeable on the books of DTC for Exchangeable Certificates, and Exchangeable
Certificates shall be exchangeable on the books of DTC for Exchangeable REMIC
Certificates, after the Closing Date, by notice to the Trustee substantially in
the form of Exhibit V hereto or, under the terms and conditions hereinafter set
forth and otherwise in accordance with the procedures specified in this
Agreement.
(b) In the case of each Combination Group, Certificates of the Class
of Exchangeable REMIC Certificates in such Combination Group shall be
exchangeable for Certificates of the Class of Exchangeable Certificates in such
Combination Group in respective Denominations, determined based on the
proportion that the Maximum Initial Class Certificate Balances or Maximum
Initial Class Notional Amount of such Exchangeable REMIC Certificates (or, in
the case of Exchangeable REMIC Combination 2, Exchangeable REMIC Combination 3,
Exchangeable REMIC Combination 5, Exchangeable REMIC Combination 6, Exchangeable
REMIC Combination 8, Exchangeable REMIC Combination 10, Exchangeable REMIC
Combination 13 and Exchangeable REMIC Combination 16, as applicable, the
percentage specified in Exhibit U hereto of the Maximum Initial Class Notional
Amount thereof), bear to the Maximum Initial Class Certificate Balances of the
related Exchangeable Certificates, as set forth in Exhibit U hereto. Except as
provided in Section 5.11 of this Agreement, upon any such exchange, the portions
of the Exchangeable REMIC Certificates designated for exchange shall be deemed
cancelled and replaced by the Exchangeable Certificates issued in exchange
therefor. Correspondingly, Exchangeable Certificates in a Combination Group may
be further designated for exchange for Certificates of the Exchangeable REMIC
Classes in such Combination Group in respective Denominations determined based
on the proportion that the Maximum Initial Class Certificate Balances or Maximum
Initial Class Notional Amount of such Exchangeable REMIC Certificates (or, in
the case of Exchangeable REMIC Combination 2, Exchangeable REMIC Combination 3,
Exchangeable REMIC Combination 5, Exchangeable REMIC Combination 6, Exchangeable
REMIC Combination 8, Exchangeable REMIC Combination 10, Exchangeable REMIC
Combination 13 and Exchangeable REMIC Combination 16, as applicable, the
percentage specified in Exhibit U hereto of the Maximum Initial Class Notional
Amount thereof) bear to the Maximum Initial Class Certificate Balances of the
related Exchangeable Certificates, as set forth in Exhibit U hereto. There shall
be no limitation on the number of exchanges authorized pursuant to this Section
6.04, and, except as provided below, no fee or other charge shall be payable to
the Trustee or DTC in connection therewith.
(c) In order to effect an exchange of Exchangeable REMIC
Certificates or Exchangeable Certificates, the Certificateholder shall notify
the Trustee by e-mail at ctsspgexchanges@wellsfargo.com no later than two
Business Days before the proposed exchange date. The exchange date can be any
Business Day other than the first or last Business Day of the month, subject to
the Trustee's approval. In addition, the Certificateholder must provide notice
on the Certificateholder's letterhead, which notice must carry a medallion stamp
guarantee and set forth the following information: the CUSIP number of each
Exchangeable REMIC or Exchangeable Certificate to be exchanged and Exchangeable
REMIC or Exchangeable Certificate to be received; the outstanding principal
balance or notional amount and the portion of the Maximum Initial Class
Certificate Balance or Maximum Initial Class Notional Amount of the Exchangeable
REMIC Certificates or Exchangeable Certificates to be exchanged; the
Certificateholder's DTC participant number; and the proposed exchange date.
After receiving the notice, the Trustee shall e-mail the Certificateholder with
wire payment instructions relating to the exchange fee. The Certificateholder
will utilize the "deposit and withdrawal system" at DTC to exchange the
Certificates. If there is an error, the exchange will not occur until such error
is corrected. A notice becomes irrevocable on the second Business Day before the
proposed exchange date.
Notwithstanding any other provision herein set forth, a fee of
$5,000 shall be payable to the Trustee in connection with each exchange.
The Trustee shall make the first distribution on an Exchangeable
REMIC Certificate or Exchangeable Certificate received in an exchange
transaction on the Distribution Date in the month following the month of the
exchange to the Certificateholder of record as of the applicable Record Date for
such Certificate.
Section 6.06 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 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 Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Trustee 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 Trustee 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 Trustee 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 6.07 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Servicer, the
Trustee, the Certificate Registrar and any agent of the Depositor, the Servicer,
the Trustee 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 Servicer, the Trustee, the
Certificate Registrar or any agent of the Servicer, the Trustee or the
Certificate Registrar shall be affected by notice to the contrary.
ARTICLE VII
THE DEPOSITOR AND THE SERVICER
Section 7.01 Respective Liabilities of the Depositor and the
Servicer. The Depositor and the 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 Servicer herein. By way of
illustration and not limitation, the Depositor is not liable for the servicing
and administration of the Mortgage Loans, nor is it obligated by Section 8.01 to
assume any obligations of the 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
Servicer. The Depositor and the 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 Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation to
which the Depositor or the Servicer shall be a party, or any Person succeeding
to the business of the Depositor or the Servicer, shall be the successor of the
Depositor or the 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
(a) the successor or surviving Person to the Servicer shall be qualified to
service mortgage loans on behalf of Fannie Mae or Freddie Mac and (b) the
Servicer and such successor or surviving Person shall notify the Depositor and
the Trustee of any such merger, conversion or consolidation at least two
Business Days prior to the effective date thereof and shall provide the
Depositor and the Trustee with all information required by the Depositor to
comply with its reporting obligation under Item 6.02 of Form 8-K not later than
the effective date of such merger, conversion or consolidation.
Section 7.03 Limitation on Liability of the Depositor, the Servicer
and Others. None of the Depositor, the Servicer or any of the directors,
officers, employees or agents of the Depositor or of the Servicer shall be under
any liability to the Trust Estate or the Certificateholders for any action taken
or for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the 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 Servicer and any director,
officer, employee or agent of the Depositor or the 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 Servicer
and any director, officer, employee or agent of the Depositor or the 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 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 Servicer may in its discretion undertake any such action which
it may deem necessary or desirable in respect to this Agreement and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Estate, and the Depositor and the Servicer shall be entitled to be
reimbursed therefor out of amounts attributable to the Mortgage Loans on deposit
in the Servicer Custodial Account as provided by Section 3.11.
Section 7.04 Depositor and Servicer Not to Resign. Subject to the
provisions of Section 7.02, neither the Depositor nor the 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 or, in the case of the Servicer, pursuant to Section 7.05. Any
such determination permitting the resignation of the Depositor or the Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Trustee. No such resignation by the Servicer shall become effective until the
Trustee or a successor Servicer shall have assumed the Servicer's
responsibilities and obligations in accordance with Section 8.05 hereof.
Section 7.05 Assignment or Delegation of Duties by the Servicer. The
Servicer shall have the right to assign its rights and delegate its duties and
obligations hereunder; provided, however, that (i) the purchaser or transferee
accepting such assignment or delegation is qualified to service mortgage loans
for Fannie Mae or Freddie Mac, is satisfactory to the Trustee, in the exercise
of its reasonable judgment, and executes and delivers to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, which
contains an assumption by such purchaser or transferee of the due and punctual
performance and observance of each covenant and condition to be performed or
observed by the Servicer hereunder from and after the date of such agreement;
and (ii) each applicable Rating Agency's rating of any Certificates in effect
immediately prior to such assignment, sale or transfer is not reasonably likely
to be qualified, downgraded or withdrawn as a result of such assignment, sale or
transfer and the Certificates are not reasonably likely to be placed on credit
review status by any such Rating Agency. In no case, however, shall any
permitted assignment and delegation relieve the Servicer of any liability to the
Trustee or the Depositor under this Agreement, incurred by it prior to the time
that the conditions contained in clauses (i) and (ii) above are met.
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 Servicer to deposit amounts in the Servicer
Custodial Account in the amount and manner provided herein so as to enable the
Trustee to distribute to Holders of Certificates any payment required to be made
under the terms of such Certificates and this Agreement (other than the payments
required to be made under Section 3.20) which continues unremedied for a period
of five days; or
(b) failure on the part of the Servicer duly to observe or perform
in any material respect any other covenants or agreements of the 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 Servicer by the Trustee or the Depositor, or to the Servicer, the
Depositor 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
Servicer, or for the winding up or liquidation of the 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 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 Servicer
or of or relating to substantially all of its property; or the 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) the failure of the Servicer to remit any Periodic Advance
required to be remitted by the Servicer pursuant to Section 3.20 which failure
continues unremedied at 3:00 p.m. on the related Distribution Date;
then, and in each and every such case (other than the Event of Default described
in clause (e) hereof), so long as an Event of Default shall not have been
remedied by the Servicer, the Trustee 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
Servicer (and to the Depositor), terminate all of the rights and obligations of
the Servicer under this Agreement. If an Event of Default described in clause
(e) hereof shall occur, the Trustee shall, by notice to the Servicer, terminate
all of the rights and obligations of the Servicer under this Agreement and in
and to the Mortgage Loans and proceeds thereof (other than the Servicer's right
to recovery of the aggregate Servicing Fees due prior to the date of termination
and other expenses and amounts advanced pursuant to the terms of this Agreement,
which rights the Servicer will retain under all circumstances) and the Trustee
or a successor Servicer appointed pursuant to Section 8.05 shall make the
Advance which the Servicer failed to make. On or after the receipt by the
Servicer of such written notice, all authority and power of the 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, unless and until such time as the Trustee shall appoint a
successor Servicer pursuant to Section 8.05, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
the Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of the Mortgage Loans and related
documents, or otherwise, including, without limitation, the recordation of the
assignments of the Mortgage Loans to it. The Servicer agrees to cooperate with
the Trustee in effecting the termination of the responsibilities and rights of
the 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 Servicer in the Servicer Custodial Account or thereafter
received by the 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 Mortgage Files to the
successor Servicer and amending this Agreement to reflect such succession as
Servicer pursuant to this Section 8.01 shall be paid by the predecessor
Servicer. Notwithstanding the termination of the Servicer pursuant hereto, the
Servicer shall remain liable for any causes of action arising out of any Event
of Default occurring prior to such termination.
Section 8.02 Remedies of Trustee. During the continuance of any
Event of Default, so long as such Event of Default shall not have been remedied,
the Trustee, in addition to the rights specified in Section 8.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default.
Section 8.03 Directions by Certificateholders and Duties of Trustee
During Event of Default. During the continuance of any Event of Default, Holders
of Certificates evidencing Voting Rights aggregating not less than 25% of each
Class of Certificates affected thereby may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Agreement; provided,
however, that the Trustee shall be under no obligation to pursue any such
remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (a) the conducting or defending of any
administrative action or litigation hereunder or in relation hereto, and (b) the
terminating of the Servicer or any successor Servicer from its rights and duties
as servicer hereunder) at the request, order or direction of any of the
Certificateholders, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity 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 involve it in personal liability or be unjustly
prejudicial to the non-assenting Certificateholders.
Section 8.04 Action upon Certain Failures of the Servicer and upon
Event of Default. In the event that the Trustee shall have actual knowledge of
any failure of the Servicer specified in Section 8.01(a) or (b) which would
become an Event of Default upon the Servicer's failure to remedy the same after
notice, the Trustee shall give notice thereof to the Servicer. If the Trustee
shall have knowledge of an Event of Default, the Trustee shall give prompt
written notice thereof to the Certificateholders.
Section 8.05 Trustee to Act; Appointment of Successor. (a) Within 90
days after the time the Servicer receives a notice of termination pursuant to
Section 8.01, the Trustee shall be the successor in all respects to the Servicer
in its capacity as servicer under this Agreement and the transactions set forth
or provided for herein and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof 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 Servicer, immediately will assume all of the
obligations of the Servicer to make Advances, (ii) the Trustee in its capacity
as successor Servicer, shall not be responsible for the lack of information
and/or documents that it cannot obtain through reasonable efforts and (iii)
under no circumstances shall any provision of this Agreement be construed to
require the Trustee, acting in its capacity as successor to the Servicer in its
obligation to make Advances, to advance, expend or risk its own funds or
otherwise incur any financial liability in the performance of its duties
hereunder if it shall have reasonable grounds for believing that such funds are
non-recoverable. Subject to Section 8.05(b), as compensation therefor, the
Trustee shall be entitled to such compensation as the terminated Servicer would
have been entitled to hereunder if no such notice of termination had been given.
Notwithstanding the above, the Trustee may, if it shall be unwilling so to act,
or shall, if it is legally unable so to act, appoint, or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution having a net worth of not less than $10,000,000 as the successor to
the terminated Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder; provided,
however, that any such institution appointed as successor 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 Servicer. The appointment of a successor Servicer shall not affect
any liability of the predecessor Servicer which may have arisen under this
Agreement prior to its termination as Servicer, nor shall any successor Servicer
be liable for any acts or omissions of the predecessor Servicer or for any
breach by the Servicer of any of its representations or warranties contained
herein or in any related document or agreement. Pending appointment of a
successor to the terminated 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
Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer defaults in its obligation to pay such costs, such costs shall be paid
by the successor Servicer or the Trustee (in which case the successor 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 Servicer or
the assumption of the duties of the Servicer, as specified in Section 8.05(a),
the Trustee may make such arrangements for the compensation of such successor
out of the payments on the Mortgage Loans serviced by the predecessor Servicer
as it and such successor shall agree, not to exceed the Servicing Fee Rate.
(c) Any successor, including the Trustee, to the Servicer as
servicer shall during the term of its service as servicer maintain in force (i)
a policy or policies of insurance covering errors and omissions in the
performance of its obligations as servicer hereunder and (ii) a fidelity bond in
respect of its officers, employees and agents to the same extent as the Servicer
is so required pursuant to Section 3.03.
(d) The predecessor Servicer and successor Servicer shall notify the
Depositor and Trustee of any such appointment at least two Business Days prior
to the effective date thereof and shall provide the Depositor and the Trustee
with all information required by the Depositor to comply with its reporting
obligation under Item 6.02 of Form 8-K not later than the effective date of such
appointment.
Section 8.06 Notification to Certificateholders. Upon any
termination or appointment of a successor to the Servicer pursuant to this
Article VIII, the Trustee 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
Section 9.01 Duties of Trustee. (a) The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiver of all Events
of Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement. 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 its exercise as a reasonably prudent
investor would exercise or use under the circumstances in the conduct of such
investor's own affairs.
The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
The Trustee is hereby directed to execute and deliver, on behalf of
the Trust, each Yield Maintenance Agreement on the Closing Date, to make the
representations of Party B (as defined in the applicable Yield Maintenance
Agreement) contained therein and to enforce the obligations of the Counterparty
under each Yield Maintenance Agreement thereafter, including by exercising any
right that the Trustee may have to designate an "early termination date" under
the Yield Maintenance Agreements upon the occurrence of an "event of default" or
a "termination event" thereunder. Upon the occurrence of an "early termination
date" under a Yield Maintenance Agreement, and at the direction of the
Depositor, the Trustee shall use reasonable efforts to replace such Yield
Maintenance Agreement with one that is furnished by a replacement for the
Counterparty acceptable to each Rating Agency, and the Trustee shall hold in
trust any amount that is paid to it by the Counterparty in respect of any such
"early termination date" and apply such amount to the purchase of the related
replacement. If any portion of such amount cannot be so used (either because a
replacement for such Yield Maintenance Agreement is not available or such amount
exceeds the amount necessary to purchase such replacement), the Trustee shall
deposit such portion in the applicable Reserve Fund. If such amount is
insufficient to purchase a replacement for such Yield Maintenance Agreement, the
Trustee shall apply such amount to replace so much of such Yield Maintenance
Agreement as it is possible to replace with such amount. If the Counterparty
transfers its rights and obligations under a Yield Maintenance Agreement to
another party in accordance therewith or the Trustee replaces such Yield
Maintenance Agreement the with one that is furnished by a replacement for the
Counterparty acceptable to each Rating Agency in accordance with this Agreement,
then the Trustee shall execute and deliver the related replacement for, or
novation of, such Yield Maintenance Agreement.
Upon its receipt from the Sponsor of each "significance estimate" of
each Yield Maintenance Agreement pursuant to Section 3.08(i), the Trustee shall,
on the basis of such "significance estimate," calculate such Yield Maintenance
Agreement's "significance percentage" of the Class Certificate Balance of the
Class 3-A-11 or Class 3-A-16 Certificates, as applicable, as of the date of such
"significance estimate." 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 the Class
Certificate Balance of the Class 3-A-11 or Class 3-A-16 Certificates, as
applicable, after distributions on the related Distribution Date. Further, the
Trustee shall determine as of such date whether such "significance percentage"
would require disclosure of financial information with respect to the
Counterparty in any report required to be filed with the Securities and Exchange
Commission pursuant to Section 3.22, and if it does, the Trustee shall make a
written request of the Counterparty for such information in accordance with the
applicable Yield Maintenance Agreement not later than the second Business Day
after it receives the related "significance estimate." Upon its receipt of such
information, the Trustee shall include such information in the related report as
provided in Section 3.22.
(b) No provision of this Agreement shall be construed to relieve the
Trustee 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 shall be determined solely by
the express provisions of this Agreement, the Trustee 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, in
the absence of bad faith on the part of the Trustee, the Trustee 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 by the Depositor or the Servicer and which on
their face, do not contradict the requirements of this Agreement;
(ii) The Trustee (in its individual capacity) shall not be
personally liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) The Trustee (in its individual capacity) 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
(other than a default in payment to the Trustee) specified in clauses (a)
and (b) of Section 8.01 or an Event of Default under clauses (c), (d) and
(e) of Section 8.01 unless a Responsible Officer of the Trustee assigned
to and working in the Corporate Trust Office obtains actual knowledge of
such failure or event or any officer of the Trustee receives written
notice of such failure or event at its Corporate Trust Office from the
Servicer, the Depositor or any Certificateholder; and
(v) Except to the extent provided in Section 8.05, no provision in
this Agreement shall require the Trustee to expend or risk its own funds
(including, without limitation, the making of any Advance as successor
Servicer) or otherwise incur any personal financial liability in the
performance of any of its duties as Trustee hereunder, or in the exercise
of any of its rights or powers, if the Trustee shall have reasonable
grounds for believing that repayment of funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Section 9.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 9.01:
(i) The Trustee 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;
(ii) The Trustee 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) The Trustee shall be under no 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 reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee 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) The Trustee shall not 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, the Trustee shall not 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 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, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability or payment of such estimated expenses as a condition to so
proceeding; and
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys.
Section 9.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the execution
of, and the authentication of the Certificates) shall be taken as the statements
of the Depositor or Servicer, as applicable, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement or of the Certificates or any
Mortgage Loans save that the Trustee represents that, assuming due execution and
delivery by the other parties hereto, this Agreement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject, as to
enforcement of remedies, to applicable insolvency, receivership, moratorium and
other laws affecting the rights of creditors generally, and to general
principles of equity and the discretion of the court (regardless of whether
enforcement of such remedies is considered in a proceeding in equity or at law).
The Trustee shall not be accountable for the use or application by the Depositor
of funds paid to the Depositor in consideration of the assignment of the
Mortgage Loans hereunder by the Depositor, or for the use or application of any
funds paid to Subservicers or the Servicer in respect of the Mortgage Loans or
deposited into the Servicer Custodial Account, or any other account hereunder
(other than the Certificate Account) by the Servicer.
The Trustee shall at no 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 Servicer pursuant to Section 8.05 and
thereupon only for the acts or omissions of the successor 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 Servicer pursuant to Section 8.05 and thereupon only for the acts
or omissions of the Trustee as successor Servicer); the compliance by the
Depositor or the 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 Servicer
or any loss resulting therefrom, it being understood that the Trustee 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 Servicer (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
8.05 and thereupon only for the acts or omissions of the Trustee as successor
Servicer), any Subservicer or any Mortgagor; any action of the Servicer (other
than if the Trustee shall assume the duties of the Servicer pursuant to Section
8.05 and thereupon only for the acts or omissions of the Trustee as successor
Servicer) or any Subservicer taken in the name of the Trustee; the failure of
the Servicer or any Subservicer to act or perform any duties required of it as
agent of the Trustee hereunder; or any action by the Trustee taken at the
instruction of the Servicer (other than if the Trustee shall assume the duties
of the Servicer pursuant to Section 8.05 and thereupon only for the acts or
omissions of the Trustee as successor Servicer); provided, however, that the
foregoing shall not relieve the Trustee 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 financing or
continuation statement in any public office at any time required to maintain the
perfection of any security interest or lien granted to it hereunder.
Section 9.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee and may otherwise deal
with the Servicer, any Subservicer or any of their respective affiliates with
the same rights it would have if it were not the Trustee.
Section 9.05 Eligibility Requirements for Trustee. The Trustee
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 and subject to
supervision or examination by Federal or State authority and (c) with respect to
every successor trustee hereunder either an institution (i) the long-term
unsecured debt obligations of which are rated at least "A" by Fitch and at least
"A2" by Moody's or (ii) whose serving as Trustee hereunder would not result in
the lowering of the ratings originally assigned to any Class of Certificates.
The Trustee shall not be an affiliate of the Depositor or the 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. In case at any time the Trustee shall cease to be
eligible in accordance with the provision of this Section 9.05, the Trustee
shall resign immediately in the manner and with the effect specified in Section
9.06.
Section 9.06 Resignation and Removal of Trustee. The Trustee may at
any time resign and be discharged from the trust hereby created by giving
written notice thereof to the Servicer and mailing a copy of such notice to all
Holders of record. The Trustee shall also mail a copy of such notice of
resignation to each Rating Agency. Upon receiving such notice of resignation,
the Servicer shall use its best efforts to promptly appoint a mutually
acceptable successor Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
shall have accepted appointment within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If at any time the Trustee 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 Servicer, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then the Servicer
may remove the Trustee and appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee 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 by written instrument or
instruments delivered to the Servicer and the Trustee; the Servicer shall
thereupon use its best efforts to appoint a mutually acceptable successor
Trustee in accordance with this Section 9.06.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 9.06 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 9.07.
Section 9.07 Successor Trustee. Any successor Trustee appointed as
provided in Section 9.06 shall execute, acknowledge and deliver to the Servicer
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, 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 herein. The predecessor Trustee shall duly assign, transfer,
deliver and pay over to the successor Trustee 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 in the administration
hereof as may be reasonably requested by the successor Trustee and shall
thereupon be discharged from all duties and responsibilities under this
Agreement (other than pursuant to Section 3.19 hereunder). All costs associated
with the appointment of a successor Trustee shall be paid to the Person that
incurred them by the predecessor Trustee. Without limiting the predecessor
Trustee's obligation, if the predecessor Trustee fails to pay such costs, such
costs shall be reimbursed by the Trust; provided, however, that if the
predecessor Trustee has been terminated pursuant to the third paragraph of
Section 9.06, all reasonable expenses incurred in complying with this Section
9.07 shall be reimbursed by the Trust to the Person that incurred them.
No successor Trustee shall accept appointment as provided in this
Section 9.07 unless at the time of such appointment such successor Trustee shall
be eligible under the provisions of Section 9.05.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 9.07, the Servicer shall cooperate to mail notice of the succession
of such Trustee hereunder to all Holders of Certificates at their addresses as
shown in the Certificate Register and to each Rating Agency. If the Servicer
fails to mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Servicer.
The predecessor Trustee and successor Trustee shall notify the
Depositor of any such appointment at least two Business Days prior to the
effective date thereof and shall provide the Depositor with all information
required by the Depositor to comply with its reporting obligation under Item
6.02 of Form 8-K not later than the effective date of such appointment.
Section 9.08 Merger or Consolidation of Trustee. Any corporation or
banking association into which the Trustee 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
shall be a party, or any corporation or banking association succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee 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; provided, however, that the
Trustee and such surviving Person shall notify the Depositor of any such merger,
conversion or consolidation and shall provide the Depositor with all information
required by the Depositor to comply with its reporting obligation under Item
6.02 of Form 8-K not later than the effective date of such merger, conversion or
consolidation.
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 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 Servicer and
the Trustee may consider necessary or desirable. If the 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.
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 Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust Estate or
any portion thereof in any such jurisdiction) shall be exercised and performed
by such separate trustee or co-trustee at the direction of the Trustee. No
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; provided, however, that no appointment
of a co-trustee or separate trustee hereunder shall relieve the Trustee of its
obligations hereunder.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article IX. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall become incapable of acting, resign or be removed, or shall be adjudged
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 Trustee may appoint one or
more authenticating agents ("Authenticating Agents") which shall be authorized
to act on behalf of the Trustee in authenticating Certificates. Initially, the
Authenticating Agent shall be Wells Fargo Bank, N.A. Wherever reference is made
in this Agreement to the authentication of Certificates by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent must be acceptable to the
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 Trustee or the Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Servicer. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the 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 Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
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 Trustee's Fees and Expenses. The Trustee, as
compensation for its activities hereunder, shall be entitled to receive on each
Distribution Date an amount equal to the Trustee Fee for such Distribution Date
pursuant to Section 5.02(a). The Trustee and any director, officer, employee or
agent of the Trustee shall be indemnified by the Trust and held harmless against
any loss, liability or expense (including reasonable attorney's fees) (a)
incurred in connection with any claim or legal action relating to (i) this
Agreement, (ii) the Certificates, or (iii) the performance of any of the
Trustee's duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or gross negligence in the
performance of any of the Trustee's duties hereunder, (b) resulting from any tax
or information return which was prepared by, or should have been prepared by,
the Servicer and (c) arising out of the transfer of any ERISA Restricted
Certificate or Residual Certificate not in compliance with ERISA. Such indemnity
shall survive the termination of this Agreement or the resignation or removal of
the Trustee hereunder. Without limiting the foregoing, except as otherwise
agreed upon in writing by the Depositor and the Trustee, and except for any such
expense, disbursement or advance as may arise from the Trustee's gross
negligence, bad faith or willful misconduct, the Trust shall reimburse the
Trustee for all reasonable expenses, disbursements and advances incurred or made
by the Trustee 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);
provided, however, that the Depositor and the Trustee intend to enter into a
separate agreement for custody-related services. Except as otherwise provided
herein, the Trustee shall not be entitled to payment or reimbursement for any
routine ongoing expenses incurred by the Trustee in the ordinary course of its
duties as Trustee, Certificate Registrar or Paying Agent hereunder or for any
other expenses.
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
Servicer, appoint one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee, by entering into a custodial agreement
in a form acceptable to the Depositor and the Servicer. Subject to this Article
IX, the Trustee agrees to comply with the terms of each custodial agreement and
to enforce the terms and provisions thereof against the Custodian for the
benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000 and shall be qualified to
do business in the jurisdiction in which it holds any Mortgage File.
Notwithstanding the foregoing, to the extent the Trustee appoints
one or more Custodians with respect to more than 5% of the aggregate Pool Stated
Principal Balance of Loan Group 1, Loan Group 2, Assumed Loan Group 3 and
Assumed Loan Group 4, the Trustee shall cause such Custodian to prepare a
separate assessment and attestation report, as contemplated by Section 3.19 of
this Agreement and deliver such report to the Trustee as set forth in Section
3.22 of this Agreement.
Section 9.13 Paying Agents. The Trustee may appoint one or more
Paying Agents (each, a "Paying Agent") which shall be authorized to act on
behalf of the Trustee in making withdrawals from the Certificate Account and
distributions to Certificateholders as provided in Section 3.08 and Section
5.02. Wherever reference is made in this Agreement to the withdrawal from the
Certificate Account by the Trustee, such reference shall be deemed to include
such a withdrawal on behalf of the Trustee by a Paying Agent. Initially, the
Paying Agent shall be Wells Fargo Bank, N.A. Whenever reference is made in this
Agreement to a distribution by the Trustee or the furnishing of a statement to
Certificateholders by the Trustee, such reference shall be deemed to include
such a distribution or furnishing on behalf of the Trustee by a Paying Agent.
Each Paying Agent shall provide to the Trustee such information concerning the
Certificate Account as the Trustee shall request from time to time. Each Paying
Agent must be reasonably acceptable to the 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) a
principal office and place of business in New York, New York, having a combined
capital and surplus of at least $15,000,000, authorized under such laws to do a
trust business and subject to supervision or examination by federal or state
authorities.
Any corporation into which any Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Paying Agent shall be
a party, or any corporation succeeding to the corporate agency business of any
Paying Agent, shall continue to be the Paying Agent, provided that such
corporation after the consummation of such merger, conversion, consolidation or
succession meets the eligibility requirements of this Section 9.13.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Servicer; provided that the Paying Agent
has returned to the Certificate Account or otherwise accounted, to the
reasonable satisfaction of the Trustee, for all amounts it has withdrawn from
the Certificate Account. The Trustee may, upon prior written approval of the
Servicer, at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent and to the 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 Trustee may appoint, upon prior
written approval of the Servicer, a successor Paying Agent, shall give written
notice of such appointment to the Servicer and shall mail notice of such
appointment to all Certificateholders. Any successor Paying Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Paying Agent. The Trustee 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 Trustee, not in its individual capacity but solely as Trustee 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
Trustee in the Certificates is made and intended not as a personal undertaking
or agreement by the Trustee but is made and intended for the purpose of binding
only the Trust.
Section 9.15 Trustee 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 without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and such proceeding instituted by the Trustee shall
be brought in its own name or in its capacity as Trustee. 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 Servicer or the Depositor hereunder shall occur and be
continuing, the Trustee, in its discretion, may proceed to protect and enforce
its rights and the rights of the Holders of Certificates under this Agreement by
a suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee and the Certificateholders.
Section 9.17 Waiver of Bond Requirement. The Trustee shall be
relieved of, and each Certificateholder hereby waives, any requirement of any
jurisdiction in which the Trust, or any part thereof, may be located that the
Trustee post a bond or other surety with any court, agency or body whatsoever.
Section 9.18 Waiver of Inventory, Accounting and Appraisal
Requirement. The Trustee shall be relieved of, and each Certificateholder hereby
waives, any requirement of any jurisdiction in which the Trust, or any part
thereof, may be located that the Trustee file any inventory, accounting or
appraisal of the Trust with any court, agency or body at any time or in any
manner whatsoever.
ARTICLE X
TERMINATION
Section 10.01 Termination upon Purchase by the Depositor or
Liquidation of All Mortgage Loans. Subject to Section 10.02, the respective
obligations and responsibilities of the Depositor, the Servicer and the Trustee
created hereby (other than the obligation of the Trustee 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 Trustee
pursuant to Sections 5.04(b) and 5.05(b)) shall terminate upon the last action
required to be taken by the Trustee on the Final Distribution Date pursuant to
this Article X following the earlier of (a) the purchase by the Depositor of all
Mortgage Loans and all REO Property remaining in the Trust Estate at a price
equal to the sum of (i) 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 (ii) below), (ii) the
fair market value of such REO Property, plus any Class Unpaid Interest Shortfall
for any Class of Certificates as well as 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) and
(iii) any Reimbursement Amount owed to the Trust pursuant to Section 2.04 or (b)
the final payment or other liquidation (or any advance with respect thereto) of
the last Mortgage Loan remaining in the Trust Estate or the disposition of all
REO Property.
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 Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James, living on the date hereof.
The right of the Depositor to repurchase all of the Mortgage Loans
is conditioned upon (A) the aggregate Stated Principal Balance of the Mortgage
Loans as of such Final Distribution Date being less than 10% of the aggregate
Cut-off Date Pool Principal Balance and (B) the sum of clauses (a)(i) and (ii)
of the second preceding paragraph 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 Depositor if, at the time of
the purchase, the Depositor is no longer subject to regulation by the OCC, the
FDIC, the Federal Reserve or the OTS. Fair market value for purposes of this
paragraph and the second preceding paragraph will be determined by the Depositor
as of the close of business on the third Business Day next preceding the date
upon which notice of any such termination is furnished to Certificateholders
pursuant to the fourth paragraph of this Article X. If such right is exercised,
the Trustee shall, promptly following payment of the purchase price, release to
the Depositor or its designee the Mortgage Files pertaining to the Mortgage
Loans being purchased.
Notice of any termination, specifying the Final Distribution Date
(which shall be a date that would otherwise be a Distribution Date) upon which
the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and for cancellation, shall be given promptly
by the Depositor (if exercising its right to purchase the assets of the Trust)
or by the Trustee (in any other case) by letter to Certificateholders mailed not
earlier than the 15th day and not later than the 25th 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 Certificates at the office or agency of the
Trustee 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 Trustee therein specified. If the
Depositor is obligated to give notice to Certificateholders as aforesaid, it
shall give such notice to the Trustee and the Certificate Registrar at the time
such notice is given to Certificateholders. In the event such notice is given by
the Depositor, the Depositor shall deposit in the Certificate Account on or
before the Final 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 the Final Distribution Date equal to the purchase price
for the related assets of the Trust 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. Not less than five (5) Business Days
prior to the Final Distribution Date, the Trustee shall notify the Depositor of
the amount of any unpaid Reimbursement Amount owed to the Trust and the
Depositor shall deposit such amount in the Certificate Account not later than
the Business Day preceding the Final Distribution Date.
Upon presentation and surrender of the Certificates, the Trustee
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, an amount equal to (I) as to each Class of
Certificates (other than Exchangeable Certificates), the Class Certificate
Balance thereof plus (a) accrued interest thereon in the case of an interest
bearing Certificate and (b) the applicable PO Deferred Amount, and (II) as to
the Class 3-A-R Certificate, the amounts, if any, which remain on deposit (or
are deemed to remain on deposit) in the Upper-Tier Certificate Sub-Account, the
Middle-Tier Certificate Sub-Account and the Certificate Account, respectively
(other than the amounts retained to meet claims) after application pursuant to
clause (I) above. Outstanding Exchangeable Certificates shall be entitled to
receive their proportionate share of distributions allocated to their Related
Exchangeable REMIC Certificates. An amount shall be distributed in respect of
interest and principal to the Uncertificated Lower-Tier Interests and the
Uncertificated Middle-Tier Interests in the same manner as principal and
interest are distributed to the Uncertificated Lower-Tier Interests and the
Middle-Tier Interests, respectively, as provided in Section 5.02.
If all of the Certificateholders do not surrender their Certificates
for final payment and cancellation on or before the Final Distribution Date, the
Trustee shall on such date cause all funds in the Certificate Account not
distributed in final distribution to Certificateholders of such Group to
continue to be held by the Trustee in an Eligible Account for the benefit of
such Certificateholders and the Depositor (if it exercised its right to purchase
the assets of the Trust Estate) or the Trustee (in any other case) shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds on deposit in
such Eligible Account.
Section 10.02 Additional Termination Requirements. (a) If the
Depositor exercises its purchase option as provided in Section 10.01, the Trust
shall be terminated in accordance with the following additional requirements,
unless the Trustee has received an Opinion of Counsel to the effect that the
failure of the Trust to comply with the requirements of this Section 10.02 will
not (i) result in the imposition of taxes on "prohibited transactions" of the
Trust as defined in Section 860F of the Code, or (ii) cause the Trust Estate to
fail to qualify as two separate REMICs at any time that any Certificates are
outstanding:
(i) within 90 days prior to the Final Distribution Date set forth in
the notice given by the Depositor under Section 10.01, the Trustee shall
sell all of the assets of the Trust Estate to the Depositor for cash; and
(ii) the notice given by the Depositor or the Trustee pursuant to
Section 10.01 shall provide that such notice constitutes the adopting of a
plan of complete liquidation of the Upper-Tier REMIC, Middle-Tier REMIC
and the Lower-Tier REMIC as of the date of such notice (or, if earlier,
the date on which such notice was mailed to Certificateholders). The
Trustee shall also specify such date in the final tax returns of the
Upper-Tier REMIC, the Middle-Tier REMIC and the Lower-Tier REMIC.
(b) By its acceptance of the Residual Certificate, the Holder
thereof hereby agrees to take such other action in connection with such plan of
complete liquidation as may be reasonably requested by the Depositor.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. This Agreement may be amended from time to
time by the Depositor, the Servicer and the Trustee without the consent of any
of the Certificateholders, (i) to cure any ambiguity or mistake, (ii) to correct
or supplement any provisions herein or therein which may be inconsistent with
any other provisions of this Agreement, any amendment to this Agreement or the
related Prospectus Supplement, (iii) to modify, eliminate or add to any of its
provisions to such extent as shall be necessary to maintain the qualification of
the Upper-Tier REMIC, Middle-Tier REMIC and the Lower-Tier REMIC as REMICs at
all times that any Certificates are outstanding or to avoid or minimize the risk
of the imposition of any tax on each REMIC pursuant to the Code that would be a
claim against the Trust Estate, provided that (a) the Trustee has 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 (and deemed deposits into the Upper-Tier Certificate
Sub-Account), provided, that (a) such change shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Certificateholder and (b) such change shall not adversely affect the
then-current rating of the Senior, Class M, Class B-1, Class B-2, Class B-3,
Class B-4 or Class B-5 Certificates, as evidenced by a letter from each Rating
Agency rating such Certificates to such effect, (v) to reduce the percentage of
the aggregate Cut-off Date Pool Principal Balance at which the Depositor will
have the option to purchase all the remaining Mortgage Loans in accordance with
Section 10.01, provided that such reduction is considered necessary by the
Depositor, as evidenced by an Officer's Certificate delivered to the Trustee, to
preserve the treatment of the transfer of the Mortgage Loans to the Depositor by
the Seller or to the Trust by the Depositor as sale for accounting purposes, 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.
This Agreement may also be amended from time to time by the
Depositor, the Servicer and the Trustee, with the consent of the Holders of
Certificates of each Class of Certificates which is affected by such amendment,
evidencing, as to each such Class of Certificates, Percentage Interests
aggregating not less than 66-2/3%, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Holders of such Certificates;
provided, however, that no such amendment shall (A) reduce in any manner the
amount of, or delay the timing of, collections of payments on Mortgage Loans or
distributions which are required to be made on any Certificate without the
consent of the Holder of such Certificate or (B) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the Holders of
all Certificates then Outstanding.
Prior to the solicitation of consent of Certificateholders in
connection with any such amendment, the party seeking such amendment shall
furnish the Trustee with an Opinion of Counsel to the effect that such amendment
would not subject either of the Upper-Tier REMIC, Middle-Tier REMIC or the
Lower-Tier REMIC to any tax or cause either of the Upper-Tier REMIC, Middle-Tier
REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC. Notwithstanding any
other provision of this Agreement, the Trustee shall not consent to any
amendment to this Agreement unless it shall have first received such Opinion of
Counsel.
Promptly after the execution of any such amendment or consent the
Trustee shall furnish written notification of the substance of or a copy of such
amendment to each Certificateholder and to each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Trustee may prescribe.
Section 11.02 Recordation of Agreement. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Servicer and at its expense on direction by the Trustee, who will act at the
direction of Holders of Certificates evidencing not less than 50% of all Voting
Rights, but only upon direction of the Trustee accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 11.03 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the Trust,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust, or the obligations of the parties hereto, nor shall anything
herein set forth, or contained in the terms of the Certificates, be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third 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 Trustee 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 Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, 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 Trustee, 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 Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section 11.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF THE
CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.05 Notices. All demands, notices, instructions,
directions, requests and communications required 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 Trustee may be delivered by facsimile and shall be
deemed effective upon receipt) to (a) in the case of the Depositor, Banc of
America Mortgage Securities, Inc., 214 North Tryon Street, Charlotte, North
Carolina 28255, Attention: General Counsel and Chief Financial Officer, (b) in
the case of the Servicer, Bank of America, National Association, 475 Crosspoint
Parkway, Getzville, New York 14068-9000, Attention: Servicing Manager, with a
copy to: Bank of America, National Association, 101 South Tryon Street,
Charlotte, North Carolina 28255, Attention: General Counsel and Chief Financial
Officer, (c) in the case of the Trustee, Wells Fargo Bank, N.A., P.O. Box 98,
Columbia, Maryland 21046, Attention: BOALT, Series 2007-1, and for overnight
delivery purposes, Wells Fargo Bank, N.A., 9062 Old Annapolis Road, Columbia,
Maryland 21045-1951, Attention: BOALT, Series 2007-1, with a copy to Wells Fargo
Bank, N.A., Sixth Street and Marquette Avenue, Minneapolis, Minnesota, 55479,
Attention: BOALT, Series 2007-1, (d) in the case of Moody's, Moody's Investors
Service, Inc., 99 Church Street, New York, New York 10007, Attention:
Residential Mortgage Monitoring Group, (e) in the case of S&P, Standard &
Poor's, a division of The McGraw-Hill Companies, Inc., 55 Water Street, New
York, New York 10041, Attn: Mortgage Surveillance Group and (f) in the case of
Fitch, Fitch Ratings, One State Street Plaza, New York, New York 10004,
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 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 Trustee 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 Trustee 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, within 15 days
after the receipt of a request by the Trustee in writing, a list, in such form
as the Trustee 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 Trustee,
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 Trustee shall, within five Business
Days after the receipt of such application, afford such applicants access during
normal business hours to the most recent list of Certificateholders held by the
Trustee. If such a list is as of a date more than 90 days prior to the date of
receipt of such applicants' request, the Trustee 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 Trustee that neither the Certificate
Registrar nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 11.09 Recharacterization. The parties to this Agreement
intend the conveyance by the Depositor to the Trustee of all of its right, title
and interest in and to the Mortgage Loans pursuant to this Agreement to
constitute a purchase and sale and not a loan. Notwithstanding the foregoing, to
the extent that such conveyance is held not to constitute a sale under
applicable law, it is intended that this Agreement shall constitute a security
agreement under applicable law and that the Depositor shall be deemed to have
granted to the Trustee a first priority security interest in all of the
Depositor's right, title and interest in and to the Mortgage Loans.
Section 11.10 Insolvency. The Servicer, Depositor and Trustee shall
each notify the Depositor and the Trustee of any of the events enumerated in
Item 1.03 of Form 8-K with respect to any of the Servicer, Depositor or Trustee
at least two Business Days prior to the effective date thereof and shall provide
the Depositor and the Trustee with all information required by the Depositor to
comply with its reporting obligation under Item 1.03 of Form 8-K not later than
the effective date of any such event.
Section 11.11 Regulation AB Compliance; Intent of 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 Securities and Exchange Commission or its staff,
consensus among participants in the asset-backed securities markets, advice of
counsel, or otherwise, and agree 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
Servicer and the Trustee 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 Servicer and the Trustee, as applicable,
reasonably believed by the Depositor to be necessary in order to effect such
compliance.
IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have
caused this Agreement to be duly executed by their respective officers thereunto
duly authorized to be hereunto affixed, all as of the day and year first above
written.
BANC OF AMERICA MORTGAGE SECURITIES,
INC.,
as Depositor
By: /s/ Judy Lowman
--------------------------------------
Name: Judy Lowman
Title: Senior Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Servicer
By: /s/ Stephen A. Cummings
--------------------------------------
Name: Stephen A. Cummings
Title: Senior Vice President
WELLS FARGO BANK, N.A.,
as Trustee
By: /s/ Darron C. Woodus
--------------------------------------
Name: Darron C. Woodus
Title: Assistant Vice President
STATE OF MARYLAND )
) ss.:
COUNTY OF HOWARD )
On the 29th day of March, 2007, before me, a notary public in and
for the State of Maryland, personally appeared Darron C. Woodus, known to me
who, being by me duly sworn, did depose and say that he is an Assistant Vice
President of Wells 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.
________________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF KANSAS )
) ss.:
COUNTY OF JOHNSON )
On the 29th day of March, 2007, before me, a notary public in and
for the State of North Carolina, personally appeared Judy Lowman, known to me
who, being by me duly sworn, did depose and say that she is a Senior Vice
President of Banc of America Mortgage Securities, Inc. a Delaware corporation,
one of the parties that executed the foregoing instrument; and that she signed
her name thereto by order of the Board of Directors of such corporation.
________________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF )
On the 29th day of March, 2007, before me, a notary public in and
for the State of North Carolina, personally appeared Stephen A. Cummings, known
to me who, being by me duly sworn, did depose and say that he is a Senior Vice
President of Bank of America, National Association, a national banking
association, one of the parties that executed the foregoing instrument; and that
he signed his name thereto by order of the Board of Directors of such
association.
________________________________________
Notary Public
[Notarial Seal]
My commission expires ____________.
EXHIBIT A-1
[FORM OF FACE OF SENIOR CERTIFICATE]
BANC OF AMERICA ALTERNATIVE LOAN TRUST 2007-1
Mortgage Pass-Through Certificates, Series 2007-1
Class [__]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[FOR REGULAR INTEREST CERTIFICATES: 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") [FOR YIELD
MAINTENANCE AGREEMENT CLASSES: AND CERTAIN OTHER PROPERTY]].
[FOR EXCHANGEABLE REMIC CERTIFICATES: THIS CERTIFICATE IS AN EXCHANGEABLE REMIC
CERTIFICATE AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED
HEREIN.]
[FOR EXCHANGEABLE CERTIFICATES: THIS CERTIFICATE IS AN EXCHANGEABLE CERTIFICATE
AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF AN INTEREST IN EACH RELATED EXCHANGEABLE REMIC CERTIFICATE.]
[FOR ERISA RESTRICTED CLASSES: UNDER CURRENT LAW THE PURCHASE AND HOLDING OF
THIS CERTIFICATE BY OR ON BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT,
INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE CODE OR ANY FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE
(COLLECTIVELY, A "PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS" WITHIN THE
MEANING OF ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT
BE MADE UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (I) A
REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE,
STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT IS AN
INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS CERTIFICATE IS
AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS DEFINED IN SECTION V(E)
OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), 60 FED. REG.
35925 (JULY 12, 1995)), THERE IS NO PLAN WITH RESPECT TO WHICH THE AMOUNT OF
SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR
ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE SAME
EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND LIABILITIES
OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER SECTION I(A) OF
PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT HAVE AN INTEREST IN
SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60 APPLIES, OR (II) AN OPINION OF
COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND THE SERVICER, TO
THE EFFECT THAT THE PURCHASE OR HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF
SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL
NOT SUBJECT THE DEPOSITOR, THE SERVICER OR THE TRUSTEE TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. EACH PERSON
WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE DEEMED TO HAVE
MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION LETTER REFERRED TO IN
THE PRECEDING SENTENCE, UNLESS SUCH PERSON SHALL HAVE PROVIDED SUCH
REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO IN THE PRECEDING
SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING AGREEMENT PROVIDES THAT ANY
ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF THESE TRANSFER RESTRICTIONS WILL
BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE.]]
BANC OF AMERICA ALTERNATIVE LOAN TRUST 2007-1
Mortgage Pass-Through Certificates, Series 2007-1
Class [____]
evidencing an interest in a Trust consisting primarily of three loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.: [____]
Cut-Off Date: March 1, 2007
First Distribution Date: April 25, 2007
[Maximum] Initial Certificate
Balance of this
Certificate (or, if indicated,
[Maximum] Initial Notional Amount)
("Denomination"): $[_____________]
[Maximum] Initial Class Certificate
Balance (or, if indicated,
[Maximum] Initial Notional Amount)
of this Class: $[_____________]]
Pass-Through Rate: [RATE]
CUSIP No.: [CUSIP]
ISIN No.: [ISIN]
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated March 29, 2007 (the
"Pooling and Servicing Agreement"), among the Depositor, Bank of America,
National Association, as servicer (the "Servicer"), and Wells Fargo Bank, N.A.,
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 Pooling and
Servicing Agreement states the rights of the holders of the Certificates and
specifies how amounts of interest and principal are calculated and distributed
on each Class of Certificates and the method for allocating losses.
This Certificate does not evidence an obligation of, or an interest in,
and is not guaranteed by the Depositor, the Servicer or the Trustee referred to
below or any of their respective affiliates. Neither this Certificate nor the
Mortgage Loans are guaranteed or insured by any governmental agency or
instrumentality.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT A-2
[FORM OF FACE OF RESIDUAL CERTIFICATE]
BANC OF AMERICA ALTERNATIVE LOAN TRUST 2007-1
Mortgage Pass-Through Certificates, Series 2007-1
Class 3-A-R
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN THREE "REAL ESTATE MORTGAGE INVESTMENT CONDUITS," AS THOSE TERMS
ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE").
THIS CLASS 3-A-R CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW WHICH IS SIMILAR
TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), OR A PERSON ACTING ON BEHALF OF
OR INVESTING ASSETS OF A PLAN.
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN TAX RELATED TRANSFER
RESTRICTIONS DESCRIBED HEREIN AND IN THE POOLING AND SERVICING AGREEMENT. ANY
ATTEMPTED OR PURPORTED TRANSFER OF THIS RESIDUAL CERTIFICATE IN VIOLATION OF
SUCH RESTRICTIONS SHALL BE ABSOLUTELY NULL AND VOID AND SHALL VEST NO RIGHTS IN
THE PURPORTED TRANSFEREE.
BANC OF AMERICA ALTERNATIVE LOAN TRUST 2007-1 Mortgage
Pass-Through Certificates, Series 2007-1
Class 3-A-R
evidencing a 100% Percentage Interest in the distributions allocable to the
Certificate of the above-referenced Class with respect to a Trust consisting
primarily of three loan groups (the "Mortgage Loans") secured by first liens on
one- to four-family residential properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 25, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $[______]
Initial Class Certificate
Balance of this Class: $100.00
Pass-Through Rate: [______]%
CUSIP No.: [CUSIP]
ISIN No.: [ISIN]
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
Mortgage Securities, Inc. (the "Depositor"). The Trust was created pursuant to a
Pooling and Servicing Agreement, dated March 29, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, Bank of America, National
Association, as servicer (the "Servicer"), and Wells Fargo Bank, N.A., 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 Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
Any distribution of the proceeds of any remaining assets of the
Certificate Account will be made only upon presentment and surrender of this
Class 3-A-R Certificate at the Corporate Trust Office.
Each Person who has or who acquires this Class 3-A-R Certificate shall be
deemed by the acceptance or acquisition thereof to have agreed to be bound by
the following provisions and the rights of each Person acquiring this Class
3-A-R Certificate are expressly subject to the following provisions: (i) each
Person holding or acquiring this Class 3-A-R Certificate shall be a Permitted
Transferee and shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee; (ii) no Person shall acquire an
ownership interest in this Class 3-A-R Certificate unless such ownership
interest is a pro rata undivided interest; (iii) in connection with any proposed
transfer of this Class 3-A-R Certificate, the Trustee shall require delivery to
it, in form and substance satisfactory to it, of an affidavit in the form of
Exhibit I to the Pooling and Servicing Agreement; (iv) notwithstanding the
delivery of an affidavit by a proposed transferee under clause (iii) above, if a
Responsible Officer of the Trustee has actual knowledge that the proposed
transferee is not a Permitted Transferee, no transfer of any Ownership Interest
in this Residual Certificate to such proposed transferee shall be effected; (v)
this Residual Certificate may not be purchased by or transferred to any Person
that is not a U.S. Person, unless (A) such Person holds this Residual
Certificate in connection with the conduct of a trade or business within the
United States and furnishes the transferor and the Trustee with an effective
Internal Revenue Service Form W-8ECI (or any successor thereto) or (B) the
transferee delivers to both the transferor and the Trustee 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 Residual Certificate will not be
disregarded for federal income tax purposes; (vi) any attempted or purported
transfer of this Class 3-A-R Certificate in violation of the provisions of such
restrictions shall be absolutely null and void and shall vest no rights in the
purported transferee; and (vii) if any Person other than a Permitted Transferee
acquires the Class 3-A-R Certificate in violation of such restrictions, then the
Trustee, based on information provided to the Trustee by the Servicer, will
provide to the Internal Revenue Service, and to the Persons specified in Section
860E(e)(3) and (6) of the Code, information needed to compute the tax imposed
under Section 860E(e) of the Code on transfers of residual interests to
disqualified organizations.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Pooling
and Servicing Agreement or be valid for any purpose unless manually
authenticated by an authorized signatory of the Trustee.
* * *
EXHIBIT B-1
[FORM OF FACE OF SUBORDINATE CERTIFICATE]
BANC OF AMERICA ALTERNATIVE LOAN TRUST 2007-1
Mortgage Pass-Through Certificates, Series 2007-1
Class [M][B-1][B-2][B-3][B-4][B-5][B-6]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE").
REDUCTIONS OF THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THE
AMOUNT SET FORTH BELOW.
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN CERTIFICATES AS
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT.
[FOR THE CLASS B-4, CLASS B-5 AND CLASS B-6 CERTIFICATES ONLY: THIS CERTIFICATE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION THEREOF
UNDER THE 1933 ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF THE POOLING AND SERVICING AGREEMENT REFERENCED HEREIN.]
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON BEHALF
OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), THE CODE OR ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A "PLAN"), MAY RESULT IN
"PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF ERISA, THE CODE OR SIMILAR LAW.
TRANSFER OF THIS CERTIFICATE WILL NOT BE MADE UNLESS THE TRANSFEREE DELIVERS TO
THE TRUSTEE EITHER (I) A REPRESENTATION LETTER, IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE, STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON
BEHALF OF, ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH
PURCHASE OR (B) IF IT IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO
PURCHASE THIS CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH
TERM IS DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO PLAN WITH
RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES AND LIABILITIES
FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH PLAN AND ALL OTHER PLANS
MAINTAINED BY THE SAME EMPLOYER (OR AFFILIATE THEREOF AS DEFINED IN SECTION
V(A)(1) OF PTE 95-60) OR BY THE SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE
TOTAL OF ALL RESERVES AND LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS
ARE DETERMINED UNDER SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND
ALL PLANS THAT HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE
95-60 APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT CONSTITUTE OR RESULT IN A
NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF ERISA, SECTION 4975 OF
THE CODE OR SIMILAR LAW AND WILL NOT SUBJECT THE DEPOSITOR, THE SERVICER OR THE
TRUSTEE TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND
SERVICING AGREEMENT. EACH PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE
REPRESENTATION LETTER REFERRED TO IN THE PRECEDING SENTENCE, UNLESS SUCH PERSON
SHALL HAVE PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL
REFERRED TO IN THE PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION OF
THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO RIGHTS IN ANY
PURPORTED TRANSFEREE.
BANC OF AMERICA ALTERNATIVE LOAN TRUST 2007-1
Mortgage Pass-Through Certificates, Series 2007-1
Class [____]
evidencing an interest in a Trust consisting primarily of three loan groups (the
"Mortgage Loans") secured by first liens on one- to four-family residential
properties deposited by
Banc of America Mortgage Securities, Inc., as Depositor
Certificate No.:
Cut-off Date: March 1, 2007
First Distribution Date: April 25, 2007
Initial Certificate
Balance of this
Certificate
("Denomination"): $[_____________]
Initial Class Certificate
Balance of this Class: $[_______]
Pass-Through Rate: [RATE]
CUSIP No.: [CUSIP]
ISIN No.: [ISIN]
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 Mortgage Securities, Inc. (the "Depositor"). The Trust was created
pursuant to a Pooling and Servicing Agreement, dated March 29, 2007 (the
"Pooling and Servicing Agreement"), among the Depositor, Bank of America,
National Association, as servicer (the "Servicer"), and Wells Fargo Bank, N.A.,
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 Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
[For the Class B-4, Class B-5 and Class B-6 Certificates only: 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 Trustee 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
Trustee 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 Trustee or the Depositor
and (ii) the Trustee shall require a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit G-1 and a certificate from such
Certificateholder's prospective transferee substantially in the form attached to
the Pooling and Servicing Agreement either as Exhibit G-2A or as Exhibit G-2B,
which certificates shall not be an expense of the Trustee or the Depositor;
provided that the foregoing requirements under clauses (i) and (ii) shall not
apply to a transfer of a Private Certificate between or among the Depositor, the
Seller, their affiliates or both. The Holder of a Private Certificate desiring
to effect such transfer shall, and does hereby agree to, indemnify the Trustee
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 Trustee.
* * *
EXHIBIT C
[FORM OF REVERSE OF ALL CERTIFICATES]
BANC OF AMERICA ALTERNATIVE LOAN TRUST 2007-1
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates
designated as Banc of America Alternative Loan Trust 2007-1 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 Trustee 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 Trustee.
Pursuant to the terms of the Pooling and Servicing Agreement, a
distribution will be made on the 25th day of each calendar month (or, if such
day is not a Business Day, the next Business Day) (each, a "Distribution Date"),
commencing on the first Distribution Date specified on the face hereof, to the
Person in whose name this Certificate is registered at the close of business on
the applicable Record Date in an amount required pursuant to the Pooling and
Servicing Agreement. The Record Date applicable to each Distribution Date is the
last Business Day of the month next preceding the month of such Distribution
Date.
On each Distribution Date, the Trustee 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 Regular Certificate, by wire transfer or by such
other means of payment as such Certificateholder and the Trustee shall agree
upon, such Certificateholder's Percentage Interest in the amount to which the
related Class of Certificates is entitled in accordance with the priorities set
forth in Section 5.02 of the Pooling and Servicing Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentation and surrender of such Certificate to the Trustee 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 Trustee and the rights of the Certificateholders under the
Pooling and Servicing Agreement at any time by the Depositor, the Servicer 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 Trustee upon surrender of this Certificate
for registration of transfer at the Corporate Trust Office accompanied by a
written instrument of transfer in form satisfactory to the Trustee 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 Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Certificate Registrar and the Trustee and
any agent of the Depositor, the Servicer, the Certificate Registrar 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 Servicer, the
Certificate Registrar, the Trustee or any such agent shall be affected by any
notice to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
is less than 10% of the aggregate Cut-off Date Principal Balance, the Depositor
will have the option to repurchase, in whole, from the Trust all remaining
Mortgage Loans and all property acquired in respect of such Mortgage Loans at a
purchase price determined as provided in the Pooling and Servicing Agreement.
The 10% may be reduced by an amendment to the Pooling and Servicing Agreement
without Certificateholder consent under certain conditions set forth in the
Pooling and Servicing Agreement. In the event that no such optional repurchase
occurs, the obligations and responsibilities created by the Pooling and
Servicing Agreement will terminate upon the later of the maturity or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan
remaining in the Trust or the disposition of all property in respect thereof and
the distribution to Certificateholders of all amounts required to be distributed
pursuant to the Pooling and Servicing Agreement. In no event shall the Trust
created by the Pooling and Servicing Agreement continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late ambassador of the United States to the Court of St. James,
living on the date thereof.
Any term used herein that is defined in the Pooling and Servicing
Agreement shall have the meaning assigned in the Pooling and Servicing
Agreement, and nothing herein shall be deemed inconsistent with that meaning.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
WELLS FARGO BANK, N.A.,
as Trustee
By
-----------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the Pooling and Servicing
Agreement referenced herein.
WELLS FARGO BANK, N.A.,
as Trustee
By
------------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Certificate Register of the Trust.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
Dated:
____________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to ____________________________________________________ for the
account of ___________________, account number _________________________, or, if
mailed by check, to Applicable statements should be mailed to __________________
_______________________
This information is provided by ______________, the assignee named above,
or, as its
agent.
EXHIBIT D
ADDRESSES FOR REQUESTING MORTGAGE LOAN SCHEDULE
For the Depositor:
Banc of America Mortgage Securities, Inc.
214 North Tryon Street
Charlotte, North Carolina 28255
NC1-027-14-01
Attn: Secondary Marketing, BoALT 2007-1
For the Trustee:
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attn: BOAALT 2007-1
EXHIBIT E
REQUEST FOR RELEASE OF DOCUMENTS
[date]
To: Wells Fargo Bank, N.A.
1015 10th Avenue, S.E.
Minneapolis, Minnesota 55414-0031
Attn: Inventory Control (BoALT 2007-1)
Re: The Pooling and Servicing Agreement dated March 29, 2007, among Banc
of America Mortgage Securities, Inc., as Depositor, Bank of America,
National Association, as Servicer, and Wells Fargo Bank, N.A., as
Trustee
In connection with the administration of the Mortgage Loans held by you,
as Custodian, pursuant to the above-captioned Pooling and Servicing Agreement,
we request the release, and hereby acknowledge receipt, of the Mortgage File for
the Mortgage Loan described below, for the reason indicated.
Mortgage Loan Number:
Mortgagor Name, Address & Zip Code:
Reason for Requesting Documents (check one)
____ 1. Mortgage Paid in Full
____ 2. Foreclosure
____ 3. Substitution
____ 4. Other Liquidation
____ 5. Nonliquidation Reason: ___________________
By:
-----------------------------------------
(authorized signer of Bank of
America, National Association)
Issuer:
-------------------------------------
Address:
------------------------------------
------------------------------------
Date:
---------------------------------------
Custodian
Wells Fargo Bank, N.A.
Please acknowledge the execution of the above request by your signature and date
below:
- ---------------------------------- ---------------
Signature Date
Documents returned to Custodian:
- ----------------------------------- ----------------
Custodian Date
EXHIBIT F
FORM OF CERTIFICATION OF ESTABLISHMENT OF ACCOUNT
[Date]
[_______________] hereby certifies that it has established a [__________]
Account pursuant to Section [________] of the Pooling and Servicing Agreement,
dated March 29, 2007, among Banc of America Mortgage Securities, Inc., as
Depositor, Bank of America, National Association, as Servicer, and Wells Fargo
Bank, N.A., as Trustee.
[________________],
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Wells Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services - BoALT 2007-1
Re: Banc of America Alternative Loan Trust 2007-1, Mortgage Pass-Through
Certificates, Series 2007-1, Class ___, having an initial aggregate
Certificate Balance as of March 29, 2007 of $___________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[______________] (the "Transferor") to [______________] (the "Transferee") of
the captioned Certificates (the "Transferred Certificates"), pursuant to Section
6.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated March 29, 2007, among Banc of America Mortgage Securities,
Inc., as Depositor, Bank of America, National Association, as Servicer, and
Wells Fargo Bank, N.A., 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 Trustee, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in a Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in a Transferred Certificate
or any other similar security by means of general advertising or in any
other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of the
Transferred Certificates under the Securities Act of 1933, as amended (the
"1933 Act"), would render the disposition of the Transferred Certificates
a violation of Section 5 of the 1933 Act or any state securities laws, or
would require registration or qualification of the Transferred
Certificates pursuant to the 1933 Act or any state securities laws.
Very truly yours,
-----------------------------------------
(Transferor)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT G-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Wells Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services - BoALT 2007-1
Re: Banc of America Alternative Loan Trust 2007-1, Mortgage Pass-Through
Certificates, Series 2007-1, Class ___, having an initial aggregate
Certificate Balance as of March 29, 2007 of $[_________]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________] (the "Transferor") to [_________________________________] (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 6.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated March 29, 2007, among Banc of America Mortgage
Securities, Inc., as Depositor, Bank of America, National Association, as
Servicer, and Wells Fargo Bank, N.A., 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 Trustee, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "1933 Act"), and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is
being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (b) pursuant to another exemption from
registration under the 1933 Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust created pursuant
thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificate, and (f) all related matters, that it has
requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgment below.
Very truly yours,
-----------------------------------------
(Transferor)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
-----------------------------------------
(Nominee)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ANNEX 1 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [__________________] (the
"Transferor") and Wells Fargo Bank, N.A., as Trustee, with respect to the
mortgage pass-through certificates (the "Transferred Certificates") described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended,
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions, or is a foreign savings and loan association
or equivalent institute and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
- ----------------------------
(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.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a state, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any agency or
instrumentality of the state or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
-----------------------------------------
Print Name of Transferee
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
ANNEX 2 TO EXHIBIT G-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [_________________] (the
"Transferor") and Wells Fargo Bank, N.A., as Trustee, with respect to the
mortgage pass-through certificates (the "Transferred Certificates") described in
the Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A ("Rule 144A") under the Securities Act of 1933, as amended, because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$____________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $__________________ in securities (other than
the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the
Yes No Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no," then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
-----------------------------------------
Print Name of Transferee or Adviser
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
IF AN ADVISER:
-----------------------------------------
Print Name of Transferee
By:
-----------------------------------------
Date:
---------------------------------------
EXHIBIT G-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
Wells Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services - BoALT 2007-1
Re: Banc of America Alternative Loan Trust 2007-1, Mortgage Pass-Through
Certificates, Series 2007-1, Class ___, having an initial aggregate
Certificate Principal Balance as of March 29, 2007 of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to [_____________________________]
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated March 29, 2007, among Banc of
America Mortgage Securities, Inc., as Depositor, Bank of America, National
Association, as Servicer, and Wells Fargo Bank, N.A., 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 Trustee, that:
1. Transferee is acquiring the Transferred Certificates for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "1933 Act"), or
any applicable state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the 1933 Act or registered or qualified
under any applicable state securities laws, (b) neither the Depositor nor the
Trustee is obligated so to register or qualify the Transferred Certificates and
(c) neither the Transferred Certificates nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless such resale or
transfer is exempt from the registration requirements of the 1933 Act and any
applicable state securities laws or is made in accordance with the 1933 Act and
laws, in which case (i) unless the transfer is made in reliance on Rule 144A
under the 1933 Act, the Trustee 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 Trustee 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 Trustee or the Depositor and (ii) the Trustee shall require
a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached to the Pooling and Servicing Agreement as
Exhibit G-1 and a certificate from such Certificateholder's prospective
transferee substantially in the form attached to the Pooling and Servicing
Agreement either as Exhibit G-2A or as Exhibit G-2B, which certificates shall
not be an expense of the Trustee or the Depositor; provided that the foregoing
requirements under clauses (i) and (ii) shall not apply to a transfer of a
Private Certificate between or among the Depositor, the Seller, their affiliates
or both.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing except in compliance with the
provisions of Section 6.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE 1933 ACT MAY ONLY BE MADE IN A
TRANSACTION EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT
AND IN ACCORDANCE WITH THE PROVISIONS OF THE POOLING AND SERVICING
AGREEMENT REFERENCED HEREIN.
UNDER CURRENT LAW THE PURCHASE AND HOLDING OF THIS CERTIFICATE BY OR ON
BEHALF OF ANY EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT, SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR ANY FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") WHICH IS SIMILAR TO ERISA OR THE CODE (COLLECTIVELY, A
"PLAN"), MAY RESULT IN "PROHIBITED TRANSACTIONS" WITHIN THE MEANING OF
ERISA, THE CODE OR SIMILAR LAW. TRANSFER OF THIS CERTIFICATE WILL NOT BE
MADE UNLESS THE TRANSFEREE DELIVERS TO THE TRUSTEE EITHER (I) A
REPRESENTATION LETTER, IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE,
STATING THAT (A) IT IS NOT, AND IS NOT ACTING ON BEHALF OF, ANY SUCH PLAN
OR USING THE ASSETS OF ANY SUCH PLAN TO EFFECT SUCH PURCHASE OR (B) IF IT
IS AN INSURANCE COMPANY, THAT THE SOURCE OF FUNDS USED TO PURCHASE THIS
CERTIFICATE IS AN "INSURANCE COMPANY GENERAL ACCOUNT" (AS SUCH TERM IS
DEFINED IN SECTION V(E) OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), 60 FED. REG. 35925 (JULY 12, 1995)), THERE IS NO BENEFIT
PLAN WITH RESPECT TO WHICH THE AMOUNT OF SUCH GENERAL ACCOUNT'S RESERVES
AND LIABILITIES FOR THE CONTRACT(S) HELD BY OR ON BEHALF OF SUCH BENEFIT
PLAN AND ALL OTHER BENEFIT PLANS MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF AS DEFINED IN SECTION V(A)(1) OF PTE 95-60) OR BY THE
SAME EMPLOYEE ORGANIZATION EXCEEDS 10% OF THE TOTAL OF ALL RESERVES AND
LIABILITIES OF SUCH GENERAL ACCOUNT (AS SUCH AMOUNTS ARE DETERMINED UNDER
SECTION I(A) OF PTE 95-60) AT THE DATE OF ACQUISITION AND ALL PLANS THAT
HAVE AN INTEREST IN SUCH GENERAL ACCOUNT ARE PLANS TO WHICH PTE 95-60
APPLIES, OR (II) AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY
TO THE TRUSTEE AND THE SERVICER, TO THE EFFECT THAT THE PURCHASE OR
HOLDING OF THIS CERTIFICATE BY OR ON BEHALF OF SUCH PLAN WILL NOT
CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE
MEANING OF ERISA, SECTION 4975 OF THE CODE OR SIMILAR LAW AND WILL NOT
SUBJECT THE DEPOSITOR, THE SERVICER OR THE TRUSTEE TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE POOLING AND SERVICING AGREEMENT. EACH
PERSON WHO ACQUIRES THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE
DEEMED TO HAVE MADE THE REPRESENTATIONS REQUIRED BY THE REPRESENTATION
LETTER REFERRED TO IN THE PRECEDING SENTENCE UNLESS SUCH PERSON SHALL HAVE
PROVIDED SUCH REPRESENTATION LETTER OR THE OPINION OF COUNSEL REFERRED TO
IN THE PRECEDING SENTENCE TO THE TRUSTEE. THE POOLING AND SERVICING
AGREEMENT PROVIDES THAT ANY ATTEMPTED OR PURPORTED TRANSFER IN VIOLATION
OF THESE TRANSFER RESTRICTIONS WILL BE NULL AND VOID AND WILL VEST NO
RIGHTS IN ANY PURPORTED TRANSFEREE.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the 1933 Act, would render the disposition of the Transferred Certificates a
violation of Section 5 of the 1933 Act or any state securities law or would
require registration or qualification of the Transferred Certificates pursuant
thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans., (d) the Pooling and
Servicing Agreement and the Trust created pursuant thereto, (e) any credit
enhancement mechanism associated with the Transferred Certificates, and (f) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501 (a) under the 1933 Act or an entity
in which all the equity owners come within such paragraphs and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
-----------------------------------------
(Transferee)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
-----------------------------------------
(Nominee)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT H
FORM OF TRANSFEREE REPRESENTATION LETTER
FOR ERISA RESTRICTED CERTIFICATES
Wells Fargo Bank, N.A.
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services - BoALT 2007-1
Re: Banc of America Alternative Loan Trust 2007-1, Mortgage Pass-Through
Certificates, Series 2007-1, Class ___, having an initial aggregate
Certificate Principal Balance as of March 29, 2007 of $_________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
[_______________________] (the "Transferor") to [______________________________]
(the "Transferee") of the captioned Certificates (the "Transferred
Certificates"), pursuant to Section 6.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated March 29, 2007, among Banc of
America Mortgage Securities, Inc., as Depositor, Bank of America, National
Association, as Servicer, and Wells Fargo Bank, N.A., 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
Trustee, either that:
(a) it is not, and is not acting on behalf of, an employee benefit plan or
arrangement, including an individual retirement account, subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the "Code"), or any federal, state or local
law ("Similar Law") which is similar to ERISA or the Code (collectively, a
"Plan"), and it is not using the assets of any such Plan to effect the purchase
of the Transferred Certificates; or
(b) it is an insurance company and the source of funds used to purchase
the Transferred Certificates is an "insurance company general account" (as
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTE
95-60"), 60 Fed. Reg. 35925 (July 12, 1995)), there is no Plan with respect to
which the amount of such general account's reserves and liabilities for the
contract(s) held by or on behalf of such Plan and all other Plans maintained by
the same employer (or affiliate thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization exceeds 10% of the total of all
reserves and liabilities of such general account (as such amounts are determined
under Section I(a) of PTE 95-60) at the date of acquisition and all Plans that
have an interest in such general account are Plans to which PTE 95-60 applies.
Capitalized terms used in and not otherwise defined herein shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
Very truly yours,
-----------------------------------------
(Transferee)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
EXHIBIT I
FORM OF AFFIDAVIT REGARDING TRANSFER OF
RESIDUAL CERTIFICATE PURSUANT TO SECTION 6.02
Banc of America Alternative Loan Trust 2007-1
Mortgage Pass-Through Certificates,
Series 2007-1
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 3-A-R Certificate (the
"Residual Certificate") issued pursuant to the Pooling and Servicing Agreement,
dated March 29, 2007, (the "Agreement"), relating to the above-referenced
Series, by and among Banc of America Mortgage Securities, Inc., as depositor
(the "Depositor"), Bank of America, National Association, as servicer, and Wells
Fargo Bank, N.A., as trustee. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the transfer, a Permitted Transferee. The Transferee is acquiring the
Residual Certificate either (i) for its own account or (ii) as nominee, trustee
or agent for another Person who is a Permitted Transferee and has attached
hereto an affidavit from such Person in substantially the same form as this
affidavit. The Transferee has no knowledge that any such affidavit is false.
3. The Transferee has been advised of, and understands that (i) a tax will
be imposed on Transfers of the Residual Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability for
the tax if the subsequent Transferee furnished to such Person an affidavit that
such subsequent Transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will be
imposed on a "pass-through entity" holding the Certificate if at any time during
the taxable year of the pass-through entity a Person that is not a Permitted
Transferee is the record Holder of an interest in such entity. The Transferee
understands that, other than in the case of an "electing large partnership"
under Section 775 of the Code, such tax will not be imposed for any period with
respect to which the record Holder furnishes to the pass-through entity an
affidavit that such record Holder is a Permitted Transferee and the pass-through
entity does not have actual knowledge that such affidavit is false. (For this
purpose, a "pass-through entity" includes a regulated investment company, a real
estate investment trust or common trust fund, a partnership, trust or estate,
and certain cooperatives and, except as may be provided in Treasury Regulations,
persons holding interests in pass-through entities as a nominee for another
Person.)
5. The Transferee has reviewed the provisions of Section 6.02 of the
Agreement and understands the legal consequences of the acquisition of the
Residual Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide by
the provisions of Section 6.02 of the Agreement and the restrictions noted on
the face of the Certificate. The Transferee understands and agrees that any
breach of any of the representations included herein shall render the transfer
to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a transfer affidavit in the form of
this Affidavit from any Person to whom the Transferee attempts to transfer the
Residual Certificate, and in connection with any transfer by a Person for whom
the Transferee is acting as nominee, trustee or agent, and the Transferee will
not transfer the Residual Certificate or cause the Residual Certificate to be
transferred to any Person that the Transferee knows is not a Permitted
Transferee.
7. The Transferee historically has paid its debts as they have become due.
8. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the Residual
Certificate.
9. The taxpayer identification number of the Transferee's nominee is
____________.
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Residual Certificate may be a
"noneconomic residual interest" within the meaning of Treasury Regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the transfer
was to impede the assessment or collection of tax.
12. The Transferee will not cause income from the Residual Certificate to
be attributable to a foreign permanent establishment or fixed base, within the
meaning of an applicable income tax treaty, of the Transferee or any other
person.
13. If the Transferee is purchasing the Residual Certificate in a transfer
intended to meet the safe harbor provisions of Treasury Regulations Sections
1.860E-1(c), the Transferee has executed and attached Attachment A hereto.
14. The Transferee is not an employee benefit plan or arrangement,
including an individual retirement account, subject to ERISA, the Code or any
federal, state or local law which is similar to ERISA or the Code, and the
Transferee is not acting on behalf of such a plan or arrangement.
* * *
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
duly authorized officer this _____ day of ________________, ____.
--------------------------------------------
Print Name of Transferee
By:
-----------------------------------------
Name:
Title:
Personally appeared before me the above-named ___________________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the _______________________ of the Transferee, and
acknowledged that he executed the same as his free act and deed and the free act
and deed of the Transferee.
Subscribed and sworn before me this _____ day of ______________________,
____
--------------------------------------------
NOTARY PUBLIC
My Commission expires the ____ day of
____________, ____
ATTACHMENT A
to
AFFIDAVIT PURSUANT TO SECTION 860E(e)(4) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND FOR NON-ERISA INVESTORS
Check the appropriate box:
|_| The consideration paid to the Transferee to acquire the Residual
Certificate equals or exceeds the excess of (a) the present value of the
anticipated tax liabilities over (b) the present value of the anticipated
savings associated with holding such Residual Certificate, in each case
calculated in accordance with U.S. Treasury Regulations Sections
1.860E-1(c)(7) and (8), computing present values using a discount rate
equal to the short-term Federal rate prescribed by Section 1274(d) of the
Code and the compounding period used by the Transferee.
OR
|_| The transfer of the Residual Certificate complies with U.S. Treasury
Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income
from Residual Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the Transferee's
two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any
obligation of a person related to the Transferee within the meaning
of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Residual Certificate only to
another "eligible corporation," as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), in a transaction that
satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and
(iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations;
(iv) the Transferee has determined the consideration paid to it to
acquire the Residual Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the Transferee)
that it has determined in good faith; and
(v) in the event of any transfer of the Residual Certificate by the
Transferee, the Transferee will require its transferee to complete a
representation in the form of this Attachment A as a condition of
such transferee's purchase of the Residual Certificate.
EXHIBIT J
CONTENTS OF THE SERVICING FILE
1. Copies of Mortgage Loans Documents.
2. Residential loan application.
3. Mortgage Loan closing statement.
4. Verification of employment and income, if required.
5. Verification of acceptable evidence of source and amount of downpayment.
6. Credit report on Mortgagor, in a form acceptable to either Fannie Mae or
Freddie Mac.
7. Residential appraisal report.
8. Photograph of the Mortgaged Property.
9. Survey of the Mortgaged Property, unless a survey is not required by the
title insurer.
10. Copy of each instrument necessary to complete identification of any
exception set forth in the exception schedule in the title policy, i.e.,
map or plat, restrictions, easements, home owner association declarations,
etc.
11. Copies of all required disclosure statements.
12. If applicable, termite report, structural engineer's report, water
potability and septic certification.
13. Sales Contract, if applicable.
14. The Primary Insurance Policy or certificate of insurance or an electronic
notation of the existence of such policy, where required pursuant to the
Agreement.
15. Evidence of electronic notation of the hazard insurance policy, and if
required by law, evidence of the flood insurance policy.
EXHIBIT K
FORM OF SPECIAL SERVICING AGREEMENT
This Special Servicing Agreement (the "Agreement") is made and entered
into as of ___________________, between Bank of America, National Association
(the "Servicer") and ___________________ (the "Loss Mitigation Advisor").
PRELIMINARY STATEMENT
_________________ (the "Purchaser") is the holder of the entire interest
in Banc of America Alternative Loan Trust 2007-1; Mortgage Pass-Through
Certificates, Series ______, Class ____ (the "Class B Certificates"). The Class
B Certificates were issued pursuant to a Pooling and Servicing Agreement dated
___________________among Banc of America Mortgage Securities, Inc., as depositor
(the "Depositor"), the Servicer, and Wells Fargo Bank, N.A., as Trustee.
The Purchaser has requested the Servicer to engage the Loss Mitigation
Advisor, at the Purchaser's expense, to assist the Servicer with respect to
default management and reporting situations for the benefit of the Purchaser.
In consideration of the mutual agreements herein contained, the receipt
and sufficiency of which are hereby acknowledged, the Servicer hereby engages
the Loss Mitigation Advisor to provide advice in connection with default
management and reporting situations with respect to defaulted loans, including
providing to the Servicer recommendations with respect to foreclosures, the
acceptance of so-called short payoffs, deeds in lieu of or in aid of foreclosure
and deficiency notes, as well as with respect to the sale of REO properties. The
Loss Mitigation Advisor hereby accepts such engagement, and acknowledges that
its fees will be paid by the Purchaser and not the Servicer, and that it will
not look to the Servicer for financial remuneration. It is the intent of the
parties to this Agreement that the services of the Loss Mitigation Advisor are
provided without fee to the Servicer for the benefit of the Purchaser for the
life of the Class B Certificates.
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 following meanings:
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a day
on which banking institutions in the State of New York are required or
authorized by law or executive order to be closed.
Commencement of Foreclosure: The first official action required under
local law in order to commence foreclosure proceedings or to schedule a
trustee's sale under a deed of trust, including (i) in the case of a mortgage,
any filing or service of process necessary to commence an action to foreclose,
or (ii) in the case of a deed of trust, the posting, publishing, filing or
delivery of a notice of sale.
Delay of Foreclosure: The postponement for more than three Business Days
of the scheduled sale of Mortgaged Property to obtain satisfaction of a Mortgage
Loan.
Loss Mitigation Advisor: ______________.
Purchaser: _______________________, or the holder of record of the Class B
Certificates.
Short Payoff: Liquidation of a Mortgage Loan at less than the full amount
of the outstanding balance of the Mortgage Loan plus advances and costs through
a negotiated settlement with the borrower, which may include a deed-in-lieu of
foreclosure or sale of the property or of the promissory note secured by the
collateral property to a third party, in either case with or without a
contribution toward any resulting deficiency by the borrower.
Section 1.02. Definitions Incorporated by Reference.
All capitalized terms not otherwise defined in this Agreement shall have
the meanings assigned in the Pooling and Servicing Agreements.
ARTICLE II
SPECIAL SERVICING PROCEDURES
Section 2.01. Reports and Notices.
(a) In connection with the performance of its duties under the Pooling and
Servicing Agreement relating to the realization upon defaulted Mortgage Loans,
the Servicer shall use reasonable efforts to provide to the Loss Mitigation
Advisor with the following notices and reports. All such notices and reports may
be sent to the Loss Mitigation Advisor by telecopier, electronic mail, express
mail or regular mail.
(i) The Servicer shall within five Business Days after each
Distribution Date either: (A) provide to the Loss Mitigation Advisor a
written or electronic report, using the same methodology and calculations
as in its standard servicing reports, indicating for the trust fund formed
by the Pooling and Servicing Agreement, the number of Mortgage Loans that
are (1) sixty days delinquent, (2) ninety days or more delinquent, (3) in
foreclosure or (4) real estate owned (REO), and indicating for each such
Mortgage Loan the loan number, whether the loan is in bankruptcy or paying
under the terms of a repayment plan, the reason for default, and
outstanding principal balance; or (B) provide the information detailed in
(A) to a data service provider of the Loss Mitigation Advisor's choice in
an electronic format acceptable to that data service provider. Provision
of the information to a service provider other than that specified by the
Loss Mitigation Advisor is acceptable.
(ii) Prior to a Delay of Foreclosure in connection with any Mortgage
Loan, the Servicer shall provide the Loss Mitigation Advisor with a notice
of such proposed and imminent delay, stating the loan number, the
aggregate amount owing under the Mortgage Loan, and the reason and
justification for delaying foreclosure action. All notices and supporting
documentation pursuant to this subsection may be provided via telecopier,
express mail or electronic mail.
(iii) Prior to accepting any Short Payoff in connection with any
Mortgage Loan, the Servicer shall provide the Loss Mitigation Advisor with
a notice of such proposed and imminent Short Payoff, stating the loan
number, the aggregate amount owing under the Mortgage Loan, and the
justification for accepting the proposed Short Payoff. Such notice may be
sent by telecopier, express mail, electronic mail or regular mail.
(iv) Within five (5) business days of each Distribution Date, the
Servicer shall provide the Loss Mitigation Advisor with a report listing
each loan that has resulted in a realized loss that has been reported to
the trustee. Such report shall specify the loan number, the outstanding
principal balance of the loan upon its liquidation, the realized loss, and
the following components of realized loss: foreclosure costs, advances,
mortgage insurance proceeds, marketing and property rehabilitation costs,
and other costs. Such report may be provided by telecopier, express mail,
regular mail or electronic mail. The Loss Mitigation Advisor shall have at
least ten (10) business days in which to respond with reasonable questions
or requests for additional information regarding the amounts reported as
realized losses, and the Servicer shall within five (5) business days of
receipt of the Loss Mitigation Advisor's questions or additional
information requests provide responses to such questions and requests.
(v) Within five (5) business days of receipt by the Servicer of an
offer to acquire an REO property at an amount that is more than 15% below
the most recent market valuation of that property obtained by the Servicer
(or if no such valuation has been obtained, the appraisal used in
connection with the originating of the related Mortgage Loan), the
Servicer shall notify the Loss Mitigation Advisor of such offer and shall
provide a justification for accepting such offer, if that is the
Servicer's recommendation.
(vi) Within five (5) business days of receipt by the Servicer that a
claim filed for mortgage insurance, or any part thereof, has been rejected
by the mortgage insurance provider, the Servicer shall provide a copy of
the rejected claim with explanations for the item or items rejected to the
Loss Mitigation Advisor.
(vii) Within five (5) business days of providing the trustee with
any notice regarding a mortgage loan substitution, loan modification, or
loan repurchase, the Servicer shall provide the Loss Mitigation Advisor
with a copy of the notice.
(b) If requested by the Loss Mitigation Advisor, the Servicer shall
make its servicing personnel available during its normal business hours to
respond to reasonable inquiries, in writing by facsimile transmission,
express mail or electronic mail, by the Loss Mitigation Advisor in
connection with any Mortgage Loan identified in a report under subsection
2.01 (a)(i), (a)(ii), (a)(iii) or (a)(iv) which has been given to the Loss
Mitigation Advisor; provided that the Servicer shall only be required to
provide information that is readily accessible to their servicing
personnel.
(c) In addition to the foregoing, the Servicer shall provide to the
Loss Mitigation Advisor such information as the Loss Mitigation Advisor
may reasonably request concerning each Mortgage Loan that is at least
sixty days delinquent and each Mortgage Loan which has become real estate
owned, provided that the Servicer shall only be required to provide
information that is readily accessible to its servicing personnel.
(d) With respect to all Mortgage Loans which are serviced at any
time by the Servicer through a subservicer, the Servicer shall be entitled
to rely for all purposes hereunder, including for purposes of fulfilling
its reporting obligations under this Section 2.01, on the accuracy and
completeness of any information provided to it by the applicable
subservicer.
Section 2.02. Loss Mitigation Advisor's Recommendations With Respect
to Defaulted Loans.
(a) All parties to this Agreement acknowledge that the Loss Mitigation
Advisor's advice is made in the form of recommendations, and that the Loss
Mitigation Advisor does not have the right to direct the Servicer in performing
its duties under the Pooling and Servicing Agreement. The Servicer may, after
review and analysis of the Loss Mitigation Advisor's recommendation, accept or
reject it, in the Servicer's sole discretion, subject to the standards of the
Servicer to protect the interest of the Certificateholders set forth in the
Pooling and Servicing Agreement.
(b) Within two (2) business days of receipt of a notice of a foreclosure
delay, the Loss Mitigation Advisor shall provide the Servicer with a
recommendation regarding the delay, provided, however, that if additional
information is required on which to base a recommendation, the Loss Mitigation
Advisor shall notify the Servicer of the additional information needed within
the allotted time, and the Servicer shall promptly provide such information and
the Loss Mitigation Advisor shall then submit to the Servicer its
recommendation. The Loss Mitigation Advisor may recommend that additional
procedures be undertaken to further analyze the property, the borrower, or
issues related to the default or foreclosure. Such additional procedures may
include asset searches, property valuations, legal analysis or other procedures
that are warranted by the circumstances of the property, borrower or
foreclosure. The Loss Mitigation Advisor may recommend such other actions as are
warranted by the circumstances of the property, borrower or foreclosure.
(c) Within two (2) business days of receipt of a notice of a proposed
Short Payoff, the Loss Mitigation Advisor shall provide the Servicer with a
recommendation regarding the proposed Short Payoff, provided, however, that if
additional information is required on which to base a recommendation, the Loss
Mitigation Advisor shall notify the Servicer of the additional information
needed within two business days, and the Servicer shall promptly provide such
information and the Loss Mitigation Advisor shall then submit to the Servicer
its recommendation. The Loss Mitigation Advisor's recommendation may take the
form of concurring with the proposed Short Payoff, recommending against such
Short Payoff, with a justification provided, or proposing a counteroffer.
(d) Within two (2) business days of receipt of a notice of an REO sale at
an amount that is more than 15% below the recent market valuation of that
property, the Loss Mitigation Advisor shall provide the Servicer with its
recommendation. The Loss Mitigation Advisor's recommendation may take the form
of concurring with the proposed below-market sale, recommending against such
below-market sale, or proposing a counteroffer.
Section 2.03. Termination.
(a) With respect to all Mortgage Loans included in a trust fund, the
Servicer's obligations under Section 2.01 and Section 2.02 shall terminate at
such time as the Certificate Principal Balances of the related Class B
Certificates have been reduced to zero.
(b) The Loss Mitigation Advisor's responsibilities under this Agreement
shall terminate upon the termination of the fee agreement between the Purchaser
or its successor and the Loss Mitigation Advisor. The Loss Mitigation Advisor
shall promptly notify the Servicer of the date of termination of such fee
agreement, but in no event later than 5:00 P.M., EST, on the effective date
thereof.
(c) Neither the Servicer nor any of its directors, officers, employees or
agents shall be under any liability for any action taken or for refraining from
the taking of any action in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect the
Servicer or any such Person against 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 Servicer and the Loss Mitigation Advisor and any director,
officer, employee or agent thereof 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. Neither the Loss Mitigation Advisor, its directors,
officers, employees or agents shall be under any liability for any actions taken
by the Servicer based upon the recommendation pursuant to this Agreement,
provided they are made in good faith.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01. Amendment.
This Agreement may be amended from time to time by the Servicer and the
Loss Mitigation Advisor by written agreement signed by the Servicer and the Loss
Mitigation Advisor.
Section 3.02. Counterparts.
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 3.03. Governing Law.
This Agreement shall be 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.
Section 3.04. Notices.
All demands, notices and direction hereunder shall be in writing or by
telecopier and shall be deemed effective upon receipt to:
(a) in the case of the Servicer,
Bank of America, National Association
101 South Tryon Street
Charlotte, North Carolina 28255
Attn: Secondary Marketing with a copy to the General Counsel
or such other address as may hereafter be furnished in writing by the
Servicer,
(b) in the case of the Loss Mitigation Advisor,
________________________
(c) in the case of the Purchaser:
________________________
Section 3.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever, including regulatory, 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.
Section 3.06. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders.
(b) The Servicer shall notify the Loss Mitigation Advisor of the
assignment of its duties to any successor servicer within thirty (30) days prior
to such assignment, and shall provide the name, address, telephone number and
telecopier number for the successor to the Loss Mitigation Advisor.
Section 3.07. Article and Section Headings.
The article and section headings herein are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
Section 3.08. Confidentiality.
The Servicer acknowledges the confidentiality of this Agreement and will
not release or republish its contents without the consent of the Loss Mitigation
Advisor except to the extent required by law, regulation or court order.
The Loss Mitigation Advisor agrees that all information supplied by or on
behalf of the Servicer under this Agreement, is the property of the Servicer.
The Loss Mitigation Advisor shall keep in strictest confidence all information
relating to this Agreement, including, without limitation, individual account
information and other information supplied by or on behalf of the Servicer
pursuant to Section 2.01, and that information which may be acquired in
connection with or as a result of this Agreement. During the term of this
Agreement and at any time thereafter, without the prior written consent of the
Servicer, the Loss Mitigation Advisor shall not publish, communicate, divulge,
disclose or use any of such information. Upon termination or expiration of this
Agreement, the Loss Mitigation Advisor shall deliver all records, data,
information, and other documents and all copies thereof supplied by or on behalf
of the Servicer pursuant to Section 2.01 to the Servicer and such shall remain
the property of the Servicer.
Section 3.09. Independent Contractor.
In all matters relating to this Agreement, the Loss Mitigation Advisor
shall be acting as an independent contractor. Neither the Loss Mitigation
Advisor nor any employees of the Loss Mitigation Advisor are employees or agents
of the Servicer under the meaning or application of any Federal or State
Unemployment or Insurance Laws or Workmen's Compensation Laws, or otherwise. The
Loss Mitigation Advisor shall assume all liabilities or obligations imposed by
any one or more of such laws with respect to the employees of the Loss
Mitigation Advisor in the performance of this Agreement. The Loss Mitigation
Advisor shall not have any authority to assume or create any obligation, express
or implied, on behalf of the Servicer, and the Loss Mitigation Advisor shall not
have the authority to represent itself as an agent, employee, or in any other
capacity of the Servicer.
IN WITNESS WHEREOF, the Servicer and the Loss Mitigation Advisor have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
Bank of America, National
Association
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Loss Mitigation Advisor
-------------------
By:
-----------------------------------
Name:
Title:
PURCHASER'S ACKNOWLEDGEMENT AND AGREEMENT
Purchaser executes this agreement for the purpose of acknowledging the limited
obligations of the Servicer in respect of the Loss Mitigation Advisor's
recommendation, as described in Section 2.02(a) hereof and confirming to the
Servicer that (i) it shall be solely responsible for the payment of the fees of
the Loss Mitigation Advisor pursuant to the terms of an agreement between
Purchaser and Loss Mitigation Advisor dated _____________, 20__ and (ii)
Purchaser upon transfer of its interest in any of the Class B Certificates or
any part thereof will require its successor to consent to this Special Servicing
Agreement and to pay any of the fees due to the Loss Mitigation Advisor pursuant
to the agreement referenced in clause (i) above.
Purchaser
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT L
LIST OF RECORDATION STATES
Florida
Maryland
EXHIBIT M
FORM OF INITIAL CERTIFICATION OF THE TRUSTEE
March 29, 2007
Banc of America Mortgage Securities, Inc.
Secondary Marketing
214 North Tryon Street
Charlotte, North Carolina 28255
NC1-027-14-01
Attn: Jerald Jubulis
Bank of America, National Association
Secondary Marketing
214 North Tryon Street
Charlotte, North Carolina 28255
NC1-027-14-01
Attn: Jerald Jubulis
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attn: BOAALT 2007-1
Re: Banc of America Mortgage Securities, Inc. Banc of America
Alternative Loan Trust 2007-1 Mortgage Pass-Through Certificates,
Series 2007-1, issued pursuant to a Pooling and Servicing Agreement,
dated March 29, 2007, among Banc of America Mortgage Securities,
Inc., as Depositor, Bank of America, National Association, as
Servicer, and Wells Fargo Bank, N.A., as Trustee
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, except as specified in any list
of exceptions attached hereto, either (i) it has received the original Mortgage
Note relating to each of the Mortgage Loans listed on the Mortgage Loan Schedule
or (ii) if such original Mortgage Note has been lost, a copy of such original
Mortgage Note, together with a lost note affidavit.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement in connection with this Initial Certification. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File or any of the Mortgage Loans identified in the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
WELLS FARGO BANK, N.A.,
as Trustee
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT N
FORM OF FINAL CERTIFICATION OF THE TRUSTEE
[__________, ____]
Banc of America Mortgage Securities, Inc.
Secondary Marketing
214 North Tryon Street
Charlotte, North Carolina 28255
NC1-027-14-01
Attn: Jerald Jubulis
Bank of America, National Association
Secondary Marketing
214 North Tryon Street
Charlotte, North Carolina 28255
NC1-027-14-01
Attn: Jerald Jubulis
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attn: BOAALT 2007-1
Re: Banc of America Mortgage Securities, Inc. Banc of America
Alternative Loan Trust 2007-1 Mortgage Pass-Through Certificates,
Series 2007-1, issued pursuant to a Pooling and Servicing Agreement,
dated March 29, 2007, among Banc of America Mortgage Securities,
Inc., as Depositor, Bank of America, National Association, as
Servicer, and Wells Fargo Bank, N.A., as Trustee
Ladies and Gentlemen:
In accordance with the provisions of Section 2.02 of the above-referenced
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), the
undersigned, as Trustee, hereby certifies that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule, except as may be specified in any list of
exceptions attached hereto, such Mortgage File contains all of the items
required to be delivered pursuant to Section 2.01(b) of the Pooling and
Servicing Agreement.
The Trustee has made no independent examination of any documents contained
in each Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement in connection with this Final Certification. The Trustee
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability, recordability or genuineness of any of the documents contained
in each Mortgage File or any of the Mortgage Loans identified in the Mortgage
Loan Schedule or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
WELLS FARGO BANK, N.A.,
as Trustee
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT O
Form of Sarbanes-Oxley Certification
Banc of America Alternative Loan Trust 2007-1
Mortgage Pass-Through Certificates,
Series 2007-1
I, [________], a [_____________] of Bank of America, National Association
(the "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 Alternative Loan Trust 2007-1 (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 Servicer
and based upon my knowledge and the compliance review conducted in
preparing the servicer compliance statement required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act
Periodic Reports, the Servicer has fulfilled its obligations under the
pooling and servicing agreement, dated March 29, 2007, among Banc of
America Mortgage Securities, Inc., as depositor, Wells Fargo Bank, N.A.,
as trustee, and the Servicer, 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 party: Wells Fargo
Bank, N.A.
[_________], 20
By:
--------------------------------------
Name:
Title:
EXHIBIT P
Form of Certification to be Provided by the Trustee to the Servicer
Banc of America Alternative Loan Trust 2007-1
Mortgage Pass-Through Certificates,
Series 2007-1
Re: Banc of America Alternative Loan Trust 2007-1 (the "Trust"),
Mortgage Pass-Through Certificates, Series 2007-1, issued pursuant
to a Pooling and Servicing Agreement dated March 29, 2007 (the
"Pooling Agreement"), among Banc of America Mortgage Securities,
Inc., as Depositor, Bank of America, National Association, as
Servicer, and Wells Fargo Bank, N.A., as Trustee
The Trustee hereby certifies to the 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, 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;
3. To my knowledge, the distribution information required to be provided
by the Trustee under the Pooling Agreement for inclusion in the Reports is
included in the Reports;
4. I am responsible for reviewing the activities performed by the Trustee
under the Pooling and Servicing Agreement, and based on my knowledge and the
compliance review conducted in preparing the compliance statement of the Trustee
required in the Annual Report under Item 1123 of Regulation AB, and except as
disclosed in the Reports, the Trustee has fulfilled its obligations under the
Pooling Agreement in all material respects; and
5. The report on assessment of compliance with servicing criteria for
asset-backed securities of the Trustee and its related attestation report on
assessment of compliance with servicing criteria 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.
WELLS FARGO BANK, N.A.
as Trustee
By:
--------------------------------------
Name:
Title:
EXHIBIT Q
Servicing Criteria to be Addressed in Assessment of Compliance
- -------------------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
- -------------------------------------------------------------------------------------------------------------------------
Reference Criteria Servicer Trustee
- -------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance X X
or other triggers and events of default in accordance with the
transaction agreements.
1122(d)(1)(ii) If any material servicing activities are outsourced to third X X
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to 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 X
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 appropriate X X
custodial bank accounts and related bank 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 obligor or to X X
an investor are made only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash
flows or distributions, and any interest or other fees X
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 reserve X X
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
agreements.
1122(d)(2)(v) Each custodial account is maintained at a federally insured X X
depository institution as set forth in the transaction 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 unauthorized X X
access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X X
asset-backed securities related bank accounts, including 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 X X
Commission, are maintained in accordance with the 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 accordance X X
with timeframes, distribution priority and other terms set forth in
the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted within two business X X
days to the Servicer's investor records, or such other number of
days specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with X X
cancelled checks, or other form of payment, or custodial bank
statements.
Pool Asset Administration
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required X X
by the transaction agreements or related mortgage loan documents.
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by X X
the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are X
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 X
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 X
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 X
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 X
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 X
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).
1122(d)(4)(ix) Adjustments to interest rates or rates of return for X
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 X
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 X
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 X
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 X
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 X X
recognized and recorded in accordance with the transaction
agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item X X
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
as set forth in the transaction agreements.
EXHIBIT R-1
ADDITIONAL FORM 10-D INFORMATION
- --------------------------------------------------------------------------------
Item on Form 10-D Party Responsible
- --------------------------------------------------------------------------------
Item 1: Distribution and Pool Depositor
Performance Information Servicer
Trustee
Any information required by Item
1121 of Regulation AB which is
not included on the Distribution
Date Statement
Item 2: Legal Proceedings (i) All parties to the Agreement (as
to themselves), (ii) the Trustee and
per Item 1117 of Regulation AB Servicer as to the Trust and (iii) the
Depositor as to the Sponsor or any
Regulation AB Item 1100(d)(1) party
Item 3: Sale of Securities and Use Depositor
of Proceeds
Item 4: Defaults Upon Senior Trustee
Securities
Item 5: Submission of Matters to a Trustee
Vote of Security Holders
Item 6: Significant Obligors of N/A
Pool Assets
Item 7: Significant Enhancement Depositor
Provider Information Trustee
Item 8: Other Information Any party to the Agreement responsible
for disclosure items on Form 8-K
Item 9: Exhibits Depositor
Trustee
EXHIBIT R-2
ADDITIONAL FORM 10-K INFORMATION
- --------------------------------------------------------------------------------
Item on Form 10-K Party Responsible
- --------------------------------------------------------------------------------
Item 9B: Other Information Any party to the Agreement responsible
for disclosure items on Form 8-K
Item 15: Exhibits, Financial Trustee
Statement Schedules Depositor
Additional Item: (i) All parties to the Agreement (as to
themselves), (ii) the Trustee and
Disclosure per Item 1117 of Servicer as to the Trust, (iii) the
Regulation AB Depositor as to the Sponsor or any
Regulation AB Item 1100(d)(1) party
Additional Item: (i) All parties to the Agreement as to
Disclosure per Item 1119 of themselves and (ii) the Depositor as to
Regulation AB the Sponsor
Additional Item: N/A
Disclosure per Item 1112(b) of
Regulation AB
Additional Item: Depositor
Disclosure per Items 1114(b) and Trustee
1115(b) of Regulation AB
EXHIBIT R-3
FORM 8-K INFORMATION
- --------------------------------------------------------------------------------
Item on Form 8-K Party Responsible
- --------------------------------------------------------------------------------
Item 1.01- Entry into a Material The party to this Agreement entering into
Definitive Agreement such material definitive agreement
Item 1.02- Termination of a The party to this Agreement requesting
Material Definitive Agreement termination of a material definitive
agreement
Item 1.03- Bankruptcy or Depositor
Receivership
Item 2.04- Triggering Events Servicer
that Accelerate or Increase a Trustee
Direct Financial Obligation or
an Obligation under an
Off-Balance Sheet Arrangement
Item 3.03- Material Modification Trustee
to Rights of Security Holders
Item 5.03- Amendments of Depositor
Articles of Incorporation or Servicer
Bylaws; Change of Fiscal Year Trustee
Item 6.01- ABS Informational and Depositor
Computational Material
Item 6.02- Change of Servicer or Servicer
Trustee Trustee
Item 6.03- Change in Credit Depositor
Enhancement or External Support Trustee
Item 6.04- Failure to Make a Trustee
Required Distribution
Item 6.05- Securities Act Depositor
Updating Disclosure
Item 7.01- Regulation FD Depositor
Disclosure
Item 8.01 Depositor
Item 9.01 Depositor
EXHIBIT S-1
Class 3-A-11 Yield Maintenance Agreement
[Included as Exhibit 10.1 to the Current Report on Form 8-K pursuant to which
this Pooling and Servicing Agreement is filed.]
EXHIBIT S-2
Class 3-A-16 Yield Maintenance Agreement
[Included as Exhibit 10.2 to the Current Report on Form 8-K pursuant to which
this Pooling and Servicing Agreement is filed.]
EXHIBIT T
Planned Balance Schedules and
Targeted Balance Schedules
------------------------------
Distribution Date PAC Group ($) TAC Group ($)
- --------------------------- -------------- -------------
Initial Balance ........... 102,046,000.00 31,328,000.00
April 25, 2007 ............ 100,541,080.58 31,046,633.29
May 25, 2007 .............. 99,046,821.78 30,636,087.76
June 25, 2007 ............. 97,563,249.56 30,098,952.30
July 25, 2007 ............. 96,090,290.37 29,438,229.86
August 25, 2007 ........... 94,627,871.19 28,657,402.55
September 25, 2007 ........ 93,175,919.50 27,760,422.65
October 25, 2007 .......... 91,734,363.29 26,751,700.40
November 25, 2007 ......... 90,303,131.05 25,636,088.79
December 25, 2007 ......... 88,882,151.79 24,422,042.64
January 25, 2008 .......... 87,471,354.99 23,147,466.19
February 25, 2008 ......... 86,070,670.63 21,890,307.56
March 25, 2008 ............ 84,680,029.19 20,674,021.33
April 25, 2008 ............ 83,299,361.63 19,497,582.35
May 25, 2008 .............. 81,928,599.40 18,359,989.57
June 25, 2008 ............. 80,567,674.41 17,260,265.50
July 25, 2008 ............. 79,216,519.07 16,197,455.62
August 25, 2008 ........... 77,875,066.24 15,170,627.90
September 25, 2008 ........ 76,543,249.28 14,178,872.24
October 25, 2008 .......... 75,221,001.98 13,221,300.02
November 25, 2008 ......... 73,908,258.63 12,297,043.54
December 25, 2008 ......... 72,604,953.96 11,405,255.58
January 25, 2009 .......... 71,311,023.15 10,545,108.92
February 25, 2009 ......... 70,026,401.85 9,715,795.87
March 25, 2009 ............ 68,751,026.15 8,916,527.83
April 25, 2009 ............ 67,484,832.60 8,146,534.85
May 25, 2009 .............. 66,227,758.19 7,405,065.18
June 25, 2009 ............. 64,979,740.34 6,691,384.87
July 25, 2009 ............. 63,740,716.92 6,004,777.35
August 25, 2009 ........... 62,510,626.24 5,344,543.04
September 25, 2009 ........ 61,289,407.03 4,709,998.95
October 25, 2009 .......... 60,076,998.45 4,100,478.28
November 25, 2009 ......... 58,873,340.10 3,515,330.09
December 25, 2009 ......... 57,678,372.00 2,953,918.88
January 25, 2010 .......... 56,492,034.58 2,415,624.26
February 25, 2010 ......... 55,314,268.69 1,899,840.62
March 25, 2010 ............ 54,145,015.61 1,405,976.75
April 25, 2010 ............ 52,984,217.02 933,455.53
May 25, 2010 .............. 51,831,815.01 481,713.60
June 25, 2010 ............. 50,687,752.08 50,201.03
July 25, 2010 ............. 49,551,971.13 -----
August 25, 2010 ........... 48,424,415.46 -----
September 25, 2010 ........ 47,305,028.77 -----
October 25, 2010 .......... 46,193,755.17 -----
November 25, 2010 ......... 45,090,539.15 -----
December 25, 2010 ......... 43,995,325.57 -----
January 25, 2011 .......... 42,908,059.72 -----
February 25, 2011 ......... 41,828,687.24 -----
March 25, 2011 ............ 40,757,154.17 -----
April 25, 2011 ............ 39,693,406.93 -----
May 25, 2011 .............. 38,637,392.30 -----
June 25, 2011 ............. 37,589,057.45 -----
July 25, 2011 ............. 36,548,349.92 -----
August 25, 2011 ........... 35,515,217.62 -----
September 25, 2011 ........ 34,489,608.82 -----
October 25, 2011 .......... 33,471,472.16 -----
November 25, 2011 ......... 32,460,756.64 -----
December 25, 2011 ......... 31,457,411.62 -----
January 25, 2012 .......... 30,461,386.82 -----
February 25, 2012 ......... 29,472,632.30 -----
March 25, 2012 ............ 28,491,098.50 -----
April 25, 2012 ............ 27,589,428.33 -----
May 25, 2012 .............. 26,694,700.60 -----
June 25, 2012 ............. 25,806,866.90 -----
July 25, 2012 ............. 24,925,879.14 -----
August 25, 2012 ........... 24,051,689.55 -----
September 25, 2012 ........ 23,184,250.72 -----
October 25, 2012 .......... 22,323,515.59 -----
November 25, 2012 ......... 21,478,001.99 -----
December 25, 2012 ......... 20,651,365.09 -----
January 25, 2013 .......... 19,843,232.81 -----
February 25, 2013 ......... 19,053,240.17 -----
March 25, 2013 ............ 18,281,029.11 -----
April 25, 2013 ............ 17,582,521.67 -----
May 25, 2013 .............. 16,900,303.54 -----
June 25, 2013 ............. 16,234,044.48 -----
July 25, 2013 ............. 15,583,420.62 -----
August 25, 2013 ........... 14,948,114.32 -----
September 25, 2013 ........ 14,327,814.10 -----
October 25, 2013 .......... 13,722,214.47 -----
November 25, 2013 ......... 13,131,015.82 -----
December 25, 2013 ......... 12,553,924.37 -----
January 25, 2014 .......... 11,990,651.98 -----
February 25, 2014 ......... 11,440,916.11 -----
March 25, 2014 ............ 10,904,439.65 -----
April 25, 2014 ............ 10,483,271.71 -----
May 25, 2014 .............. 10,072,772.92 -----
June 25, 2014 ............. 9,672,711.41 -----
July 25, 2014 ............. 9,282,860.05 -----
August 25, 2014 ........... 8,902,996.25 -----
September 25, 2014 ........ 8,532,901.98 -----
October 25, 2014 .......... 8,172,363.60 -----
November 25, 2014 ......... 7,821,171.80 -----
December 25, 2014 ......... 7,479,121.54 -----
January 25, 2015 .......... 7,146,011.93 -----
February 25, 2015 ......... 6,821,646.17 -----
March 25, 2015 ............ 6,505,831.46 -----
April 25, 2015 ............ 6,287,091.59 -----
May 25, 2015 .............. 6,074,048.09 -----
June 25, 2015 ............. 5,866,569.96 -----
July 25, 2015 ............. 5,664,529.01 -----
August 25, 2015 ........... 5,467,799.79 -----
September 25, 2015 ........ 5,276,259.56 -----
October 25, 2015 .......... 5,089,788.19 -----
November 25, 2015 ......... 4,908,268.17 -----
December 25, 2015 ......... 4,731,584.49 -----
January 25, 2016 .......... 4,559,624.63 -----
February 25, 2016 ......... 4,392,278.49 -----
March 25, 2016 ............ 4,229,438.36 -----
April 25, 2016 ............ 4,144,297.78 -----
May 25, 2016 .............. 4,060,818.38 -----
June 25, 2016 ............. 3,978,964.56 -----
July 25, 2016 ............. 3,898,709.05 -----
August 25, 2016 ........... 3,820,021.25 -----
September 25, 2016 ........ 3,742,871.12 -----
October 25, 2016 .......... 3,667,229.22 -----
November 25, 2016 ......... 3,593,066.63 -----
December 25, 2016 ......... 3,520,323.95 -----
January 25, 2017 .......... 3,448,973.56 -----
February 25, 2017 ......... 3,378,859.99 -----
March 25, 2017 ............ 3,310,055.12 -----
April 25, 2017 ............ 3,242,601.88 -----
May 25, 2017 .............. 3,176,474.29 -----
June 25, 2017 ............. 3,111,646.85 -----
July 25, 2017 ............. 3,048,094.56 -----
August 25, 2017 ........... 2,985,792.90 -----
September 25, 2017 ........ 2,924,717.80 -----
October 25, 2017 .......... 2,864,845.64 -----
November 25, 2017 ......... 2,806,153.27 -----
December 25, 2017 ......... 2,748,617.97 -----
January 25, 2018 .......... 2,692,217.45 -----
February 25, 2018 ......... 2,636,929.84 -----
March 25, 2018 ............ 2,582,733.68 -----
April 25, 2018 ............ 2,529,607.95 -----
May 25, 2018 .............. 2,477,531.98 -----
June 25, 2018 ............. 2,426,485.53 -----
July 25, 2018 ............. 2,376,448.73 -----
August 25, 2018 ........... 2,327,402.09 -----
September 25, 2018 ........ 2,279,326.50 -----
October 25, 2018 .......... 2,232,203.19 -----
November 25, 2018 ......... 2,186,013.77 -----
December 25, 2018 ......... 2,140,740.19 -----
January 25, 2019 .......... 2,096,364.74 -----
February 25, 2019 ......... 2,052,870.05 -----
March 25, 2019 ............ 2,010,239.09 -----
April 25, 2019 ............ 1,968,455.14 -----
May 25, 2019 .............. 1,927,501.80 -----
June 25, 2019 ............. 1,887,363.00 -----
July 25, 2019 ............. 1,848,022.96 -----
August 25, 2019 ........... 1,809,466.19 -----
September 25, 2019 ........ 1,771,677.52 -----
October 25, 2019 .......... 1,734,642.05 -----
November 25, 2019 ......... 1,698,345.18 -----
December 25, 2019 ......... 1,662,772.57 -----
January 25, 2020 .......... 1,627,910.18 -----
February 25, 2020 ......... 1,593,744.21 -----
March 25, 2020 ............ 1,560,261.13 -----
April 25, 2020 ............ 1,527,447.68 -----
May 25, 2020 .............. 1,495,290.85 -----
June 25, 2020 ............. 1,463,777.86 -----
July 25, 2020 ............. 1,432,896.20 -----
August 25, 2020 ........... 1,402,633.59 -----
September 25, 2020 ........ 1,372,977.98 -----
October 25, 2020 .......... 1,343,917.54 -----
November 25, 2020 ......... 1,315,440.69 -----
December 25, 2020 ......... 1,287,536.06 -----
January 25, 2021 .......... 1,260,192.49 -----
February 25, 2021 ......... 1,233,399.04 -----
March 25, 2021 ............ 1,207,144.99 -----
April 25, 2021 ............ 1,181,419.81 -----
May 25, 2021 .............. 1,156,213.18 -----
June 25, 2021 ............. 1,131,514.97 -----
July 25, 2021 ............. 1,107,315.24 -----
August 25, 2021 ........... 1,083,604.27 -----
September 25, 2021 ........ 1,060,372.48 -----
October 25, 2021 .......... 1,037,610.51 -----
November 25, 2021 ......... 1,015,309.18 -----
December 25, 2021 ......... 993,459.45 -----
January 25, 2022 .......... 972,052.49 -----
February 25, 2022 ......... 951,079.63 -----
March 25, 2022 ............ 930,532.36 -----
April 25, 2022 ............ 910,402.33 -----
May 25, 2022 .............. 890,681.36 -----
June 25, 2022 ............. 871,361.43 -----
July 25, 2022 ............. 852,434.66 -----
August 25, 2022 ........... 833,893.33 -----
September 25, 2022 ........ 815,729.87 -----
October 25, 2022 .......... 797,936.85 -----
November 25, 2022 ......... 780,506.98 -----
December 25, 2022 ......... 763,433.13 -----
January 25, 2023 .......... 746,708.29 -----
February 25, 2023 ......... 730,325.58 -----
March 25, 2023 ............ 714,278.27 -----
April 25, 2023 ............ 698,559.75 -----
May 25, 2023 .............. 683,163.52 -----
June 25, 2023 ............. 668,083.24 -----
July 25, 2023 ............. 653,312.67 -----
August 25, 2023 ........... 638,845.70 -----
September 25, 2023 ........ 624,676.32 -----
October 25, 2023 .......... 610,798.67 -----
November 25, 2023 ......... 597,206.96 -----
December 25, 2023 ......... 583,895.54 -----
January 25, 2024 .......... 570,858.87 -----
February 25, 2024 ......... 558,091.50 -----
March 25, 2024 ............ 545,588.10 -----
April 25, 2024 ............ 533,343.45 -----
May 25, 2024 .............. 521,352.39 -----
June 25, 2024 ............. 509,609.92 -----
July 25, 2024 ............. 498,111.08 -----
August 25, 2024 ........... 486,851.05 -----
September 25, 2024 ........ 475,825.07 -----
October 25, 2024 .......... 465,028.50 -----
November 25, 2024 ......... 454,456.76 -----
December 25, 2024 ......... 444,105.39 -----
January 25, 2025 .......... 433,970.00 -----
February 25, 2025 ......... 424,046.28 -----
March 25, 2025 ............ 414,330.02 -----
April 25, 2025 ............ 404,817.07 -----
May 25, 2025 .............. 395,503.38 -----
June 25, 2025 ............. 386,384.97 -----
July 25, 2025 ............. 377,457.94 -----
August 25, 2025 ........... 368,718.47 -----
September 25, 2025 ........ 360,162.79 -----
October 25, 2025 .......... 351,787.23 -----
November 25, 2025 ......... 343,588.20 -----
December 25, 2025 ......... 335,562.14 -----
January 25, 2026 .......... 327,705.59 -----
February 25, 2026 ......... 320,015.15 -----
March 25, 2026 ............ 312,487.49 -----
April 25, 2026 ............ 305,119.33 -----
May 25, 2026 .............. 297,907.48 -----
June 25, 2026 ............. 290,848.78 -----
July 25, 2026 ............. 283,940.16 -----
August 25, 2026 ........... 277,178.59 -----
September 25, 2026 ........ 270,561.12 -----
October 25, 2026 .......... 264,084.83 -----
November 25, 2026 ......... 257,746.88 -----
December 25, 2026 ......... 251,544.48 -----
January 25, 2027 .......... 245,474.88 -----
February 25, 2027 ......... 239,535.41 -----
March 25, 2027 ............ 233,723.43 -----
April 25, 2027 ............ 228,036.35 -----
May 25, 2027 .............. 222,471.66 -----
June 25, 2027 ............. 217,026.88 -----
July 25, 2027 ............. 211,699.56 -----
August 25, 2027 ........... 206,487.32 -----
September 25, 2027 ........ 201,387.83 -----
October 25, 2027 .......... 196,398.80 -----
November 25, 2027 ......... 191,517.98 -----
December 25, 2027 ......... 186,743.16 -----
January 25, 2028 .......... 182,072.19 -----
February 25, 2028 ......... 177,502.95 -----
March 25, 2028 ............ 173,033.37 -----
April 25, 2028 ............ 168,661.41 -----
May 25, 2028 .............. 164,385.07 -----
June 25, 2028 ............. 160,202.41 -----
July 25, 2028 ............. 156,111.50 -----
August 25, 2028 ........... 152,110.47 -----
September 25, 2028 ........ 148,197.48 -----
October 25, 2028 .......... 144,370.71 -----
November 25, 2028 ......... 140,628.40 -----
December 25, 2028 ......... 136,968.82 -----
January 25, 2029 .......... 133,390.26 -----
February 25, 2029 ......... 129,891.05 -----
March 25, 2029 ............ 126,469.57 -----
April 25, 2029 ............ 123,124.21 -----
May 25, 2029 .............. 119,853.40 -----
June 25, 2029 ............. 116,655.61 -----
July 25, 2029 ............. 113,529.31 -----
August 25, 2029 ........... 110,473.04 -----
September 25, 2029 ........ 107,485.35 -----
October 25, 2029 .......... 104,564.81 -----
November 25, 2029 ......... 101,710.03 -----
December 25, 2029 ......... 98,919.65 -----
January 25, 2030 .......... 96,192.33 -----
February 25, 2030 ......... 93,526.75 -----
March 25, 2030 ............ 90,921.64 -----
April 25, 2030 ............ 88,375.74 -----
May 25, 2030 .............. 85,887.80 -----
June 25, 2030 ............. 83,456.63 -----
July 25, 2030 ............. 81,081.02 -----
August 25, 2030 ........... 78,759.83 -----
September 25, 2030 ........ 76,491.92 -----
October 25, 2030 .......... 74,276.16 -----
November 25, 2030 ......... 72,111.46 -----
December 25, 2030 ......... 69,996.76 -----
January 25, 2031 .......... 67,931.00 -----
February 25, 2031 ......... 65,913.14 -----
March 25, 2031 ............ 63,942.19 -----
April 25, 2031 ............ 62,017.16 -----
May 25, 2031 .............. 60,137.07 -----
June 25, 2031 ............. 58,300.97 -----
July 25, 2031 ............. 56,507.94 -----
August 25, 2031 ........... 54,757.06 -----
September 25, 2031 ........ 53,047.44 -----
October 25, 2031 .......... 51,378.21 -----
November 25, 2031 ......... 49,748.50 -----
December 25, 2031 ......... 48,157.48 -----
January 25, 2032 .......... 46,604.32 -----
February 25, 2032 ......... 45,088.21 -----
March 25, 2032 ............ 43,608.37 -----
April 25, 2032 ............ 42,164.02 -----
May 25, 2032 .............. 40,754.40 -----
June 25, 2032 ............. 39,378.76 -----
July 25, 2032 ............. 38,036.38 -----
August 25, 2032 ........... 36,726.55 -----
September 25, 2032 ........ 35,448.56 -----
October 25, 2032 .......... 34,201.73 -----
November 25, 2032 ......... 32,985.38 -----
December 25, 2032 ......... 31,798.86 -----
January 25, 2033 .......... 30,641.53 -----
February 25, 2033 ......... 29,512.75 -----
March 25, 2033 ............ 28,411.90 -----
April 25, 2033 ............ 27,338.39 -----
May 25, 2033 .............. 26,291.60 -----
June 25, 2033 ............. 25,270.97 -----
July 25, 2033 ............. 24,275.92 -----
August 25, 2033 ........... 23,305.90 -----
September 25, 2033 ........ 22,360.35 -----
October 25, 2033 .......... 21,438.75 -----
November 25, 2033 ......... 20,540.57 -----
December 25, 2033 ......... 19,665.29 -----
January 25, 2034 .......... 18,812.41 -----
February 25, 2034 ......... 17,982.55 -----
March 25, 2034 ............ 17,174.08 -----
April 25, 2034 ............ 16,386.52 -----
May 25, 2034 .............. 15,619.43 -----
June 25, 2034 ............. 14,872.34 -----
July 25, 2034 ............. 14,144.80 -----
August 25, 2034 ........... 13,436.39 -----
September 25, 2034 ........ 12,746.69 -----
October 25, 2034 .......... 12,075.26 -----
November 25, 2034 ......... 11,421.70 -----
December 25, 2034 ......... 10,785.62 -----
January 25, 2035 .......... 10,166.63 -----
February 25, 2035 ......... 9,564.33 -----
March 25, 2035 ............ 8,978.36 -----
April 25, 2035 ............ 8,408.34 -----
May 25, 2035 .............. 7,853.92 -----
June 25, 2035 ............. 7,314.74 -----
July 25, 2035 ............. 6,790.46 -----
August 25, 2035 ........... 6,281.63 -----
September 25, 2035 ........ 5,787.00 -----
October 25, 2035 .......... 5,306.25 -----
November 25, 2035 ......... 4,839.05 -----
December 25, 2035 ......... 4,385.11 -----
January 25, 2036 .......... 3,944.12 -----
February 25, 2036 ......... 3,515.77 -----
March 25, 2036 ............ 3,099.79 -----
April 25, 2036 ............ 2,699.73 -----
May 25, 2036 .............. 2,311.35 -----
June 25, 2036 ............. 1,934.56 -----
July 25, 2036 ............. 1,568.90 -----
August 25, 2036 ........... 1,214.12 -----
September 25, 2036 ........ 869.96 -----
October 25, 2036 .......... 536.17 -----
November 25, 2036 ......... 212.51 -----
December 25, 2036 ......... 0 -----
EXHIBIT U
Combination Groups
Exchangeable REMIC Certificates Exchangeable Certificates
- -------------------------------------------------------- -----------------------------------------------------
Maximum Initial
Class Balance
Exchangeable REMIC or Notional Exchangeable Maximum Initial
Class Amount(1) CUSIP Number Class Class Balance(1) CUSIP Number
- -------------------------------------------------------- -----------------------------------------------------
Exchangeable REMIC Exchangeable
Combination 1 Combination 1
------------- -------------
3-A-1 $13,980,000 059496 AE9 3-A-18 $15,534,000 059496 AX7
3-A-2 $1,554,000 059496 AF6
Exchangeable REMIC Exchangeable
Combination 2 Combination 2
------------- -------------
3-A-1 $13,980,000 059496 AE9 3-A-19 $13,980,000 059496 AY5
3-A-3(2) $647,250 059496 AG4
Exchangeable REMIC Exchangeable
Combination 3 Combination 3
------------- -------------
3-A-2 $1,554,000 059496 AF6 3-A-20 $1,554,000 059496 AZ2
3-A-3(3) $647,250 059496 AG4
Exchangeable REMIC Exchangeable
Combination 4 Combination 4
------------- -------------
3-A-1 $13,980,000 059496 AE9 3-A-21 $15,534,000 059496 BA6
3-A-2 $1,554,000 059496 AF6
3-A-3 $647,250 059496 AG4
Exchangeable REMIC Exchangeable
Combination 5 Combination 5
------------- -------------
3-A-2 $1,554,000 059496 AF6 3-A-22 $5,644,000 059496 BB4
3-A-3(4) $647,250 059496 AG4
3-A-13 $4,090,000 059496 AS8
Exchangeable REMIC Exchangeable
Combination 6 Combination 6
3-A-4 $69,911,000 059496 AH2 3-A-23 $69,911,000 059496 BC2
3-A-5(5) $5,825,916 059496 AJ8
Exchangeable REMIC Exchangeable
Combination 7 Combination 7
------------- -------------
3-A-4 $69,911,000 059496 AH2 3-A-24 $69,911,000 059496 BD0
3-A-5 $5,825,916 059496 AJ8
Exchangeable REMIC Exchangeable
Combination 8 Combination 8
3-A-6 $9,883,000 059496 AK5 3-A-25 $9,883,000 059496 BE8
3-A-7(6) $823,583 059496 AL3
Exchangeable REMIC Exchangeable
Combination 9 Combination 9
------------- -------------
3-A-6 $9,883,000 059496 AK5 3-A-26 $9,883,000 059496 BE8
3-A-7 $823,583 059496 AL3
Exchangeable REMIC Exchangeable
Combination 10 Combination 10
3-A-8 $12,047,000 059496 AM1 3-A-27 $12,047,000 059496 BG3
3-A-9(7) $1,003,916 059496 AN9
Exchangeable REMIC Exchangeable
Combination 11 Combination 11
-------------- --------------
3-A-8 $12,047,000 059496 AM1 3-A-28 $12,047,000 059496 BH1
3-A-9 $1,003,916 059496 AN9
Exchangeable REMIC Exchangeable
Combination 12 Combination 12
-------------- --------------
3-A-4 $69,911,000 059496 AH2 3-A-29 $79,794,000 059496 BJ7
3-A-6 $9,883,000 059496 AK5
Exchangeable REMIC Exchangeable
Combination 13 Combination 13
-------------- --------------
3-A-4 $69,911,000 059496 AH2 3-A-30 $79,794,000 059496 BK4
3-A-5(8) $5,825,916 059496 AJ8
3-A-6 $9,883,000 059496 AK5
3-A-7(8) $823,583 059496 AL3
Exchangeable REMIC Exchangeable
Combination 14 Combination 14
3-A-4 $69,911,000 059496 AH2 3-A-31 $79,794,000 059496 BL2
3-A-5 $5,825,916 059496 AJ8
3-A-6 $9,883,000 059496 AK5
3-A-7 $823,583 059496 AL3
Exchangeable REMIC Exchangeable
Combination 15 Combination 15
-------------- --------------
3-A-4 $69,911,000 059496 AH2 3-A-32 $91,841,000 059496 BM0
3-A-6 $9,883,000 059496 AK5
3-A-8 $12,047,000 059496 AM1
Exchangeable REMIC Exchangeable
Combination 16 Combination 16
-------------- --------------
3-A-4 $69,911,000 059496 AH2 3-A-33 $91,841,000 059496 BN8
3-A-5(9) $5,825,916 059496 AJ8
3-A-6 $9,883,000 059496 AK5
3-A-7(9) $823,583 059496 AL3
3-A-8 $12,047,000 059496 AM1
3-A-9(9) $1,003,916 059496 AN9
Exchangeable REMIC Exchangeable
Combination 17 Combination 17
-------------- --------------
3-A-4 $69,911,000 059496 AH2 3-A-34 $91,841,000 059496 BP3
3-A-5 $5,825,916 059496 AJ8
3-A-6 $9,883,000 059496 AK5
3-A-7 $823,583 059496 AL3
3-A-8 $12,047,000 059496 AM1
3-A-9 $1,003,916 059496 AN9
Exchangeable REMIC Exchangeable
Combination 18 Combination 18
-------------- --------------
3-A-12 $31,318,000 059496 AR0 3-A-35 $61,318,000 059496 BQ1
3-A-17 $30,000,000 059496 AW9
(1) Except as otherwise indicated, Exchangeable REMIC Certificates and
Exchangeable Certificates in any combinations may be exchanged only in the
proportion that the Maximum Initial Class Balances or Maximum Initial Notional
Amounts of such Certificates bear to one another as shown above.
(2) In connection with this Combination, the Class 3-A-3 Certificates may be
exchanged only in the proportion that approximately 89.9961375048% of the
Maximum Initial Notional Amount of the Class 3-A-3 Certificates bears to the
Maximum Initial Class Balance of the related Exchangeable Certificates.
(3) In connection with this Combination, the Class 3-A-3 Certificates may be
exchanged only in the proportion that approximately 10.0038624952% of the
Maximum Initial Notional Amount of the Class 3-A-3 Certificates bears to the
Maximum Initial Class Balance of the related Exchangeable Certificates.
(4) In connection with this Combination, the Class 3-A-3 Certificates may be
exchanged only in the proportion that approximately 10.0038624952% of the
Maximum Initial Notional Amount of the Class 3-A-3 Certificates bears to the
Maximum Initial Class Balance of the related Exchangeable Certificates.
(5) In connection with this Combination, the Class 3-A-5 Certificates may be
exchanged only in the proportion that approximately 50.0000057216% of the
Maximum Initial Notional Amount of the Class 3-A-5 Certificates bears to the
Maximum Initial Class Balance of the related Exchangeable Certificates.
(6) In connection with this Combination, the Class 3-A-7 Certificates may be
exchanged only in the proportion that approximately 50.0000202368% of the
Maximum Initial Notional Amount of the Class 3-A-7 Certificates bears to the
Maximum Initial Class Balance of the related Exchangeable Certificates.
(7) In connection with this Combination, the Class 3-A-9 Certificates may be
exchanged only in the proportion that approximately 50.0000332033% of the
Maximum Initial Notional Amount of the Class 3-A-9 Certificates bears to the
Maximum Initial Class Balance of the related Exchangeable Certificates.
(8) In connection with this Combination, the Class 3-A-5 Certificates may be
exchanged only in the proportion that approximately 50.0000057216% of the
Maximum Initial Notional Amount of the Class 3-A-5 Certificates bears to the
Maximum Initial Class Balance of the related Exchangeable Certificates and the
Class 3-A-7 Certificates may be exchanged only in the proportion that
approximately 50.0000202368% of the Maximum Initial Notional Amount of the Class
3-A-7 Certificates bears to the Maximum Initial Class Balance of the related
Exchangeable Certificates.
(9) In connection with this Combination, the Class 3-A-5 Certificates may be
exchanged only in the proportion that approximately 50.0000057216% of the
Maximum Initial Notional Amount of the Class 3-A-5 Certificates bears to the
Maximum Initial Class Balance of the related Exchangeable Certificates, the
Class 3-A-7 Certificates may be exchanged only in the proportion that
approximately 50.0000202368% of the Maximum Initial Notional Amount of the Class
3-A-7 Certificates bears to the Maximum Initial Class Balance of the related
Exchangeable Certificates and the Class 3-A-9 Certificates may be exchanged only
in the proportion that approximately 50.0000332033% of the Maximum Initial
Notional Amount of the Class 3-A-9 Certificates bears to the Maximum Initial
Class Balance of the related Exchangeable Certificates.
EXHIBIT V
FORM OF REQUEST FOR EXCHANGE OF EXCHANGEABLE REMIC CERTIFICATES
OR EXCHANGEABLE CERTIFICATES
[____________ __, ____]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attn: BOALT 2007-1
Re: Banc of America Alternative Loan Trust 2007-1 (the "Trust"),
Mortgage Pass-Through Certificates, Series 2007-1
Ladies and Gentlemen:
Pursuant to the terms of that certain Pooling and Servicing Agreement
dated as of March 29, 2007 (the "Pooling and Servicing Agreement"), among Banc
of America Mortgage Securities, Inc., as Depositor, Bank of America, National
Association, as Servicer, and Wells Fargo Bank, N.A., as Trustee, we hereby
present and surrender the [Exchangeable REMIC Certificates specified on Schedule
I attached hereto (the "Exchangeable REMIC Certificates")][Exchangeable
Certificates specified on Schedule I attached hereto (the "Exchangeable
Certificates")] and transfer, assign, set over and otherwise convey to the
Trustee, all of our right, title and interest in and to the [Exchangeable REMIC
Certificates][Exchangeable Certificates], including all payments of interest
thereon received after March 29, 2007, in exchange for the [Exchangeable
Certificates specified on Schedule I attached hereto (the "Exchangeable
Certificates")][Exchangeable REMIC Certificates specified on Schedule I attached
hereto (the "Exchangeable REMIC Certificates")].
We agree that upon such exchange the portions of the [Exchangeable REMIC
Certificates][Exchangeable Certificates] designated for exchange shall be deemed
cancelled and replaced by the [Exchangeable Certificates][Exchangeable REMIC
Certificates] issued in exchange therefor. We confirm that we have paid a fee to
the Trustee in connection with each such exchange equal to $5,000.
Account Details for payments to the Trustee:
Wells Fargo Bank, N.A.
San Francisco, CA
ABA #: 121-000-248
Acct Name: SAS Clearing
For Further Credit: Account # 50999400 - BoALT 2007-1 Exchange Fee
Sincerely,
By:
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Name:
Title:
Acknowledged by:
WELLS FARGO BANK, N.A.,
as Trustee
By:
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Name:
Title: