Exhibit 4.2
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EXECUTION COPY
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MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated April 30,
2007, is between Banc of America Funding Corporation, a Delaware corporation
(the "Purchaser") and Bank of America, National Association, a national banking
association (the "Seller").
WHEREAS, pursuant to (i) that certain Master Mortgage Loan Purchase and
Servicing Agreement, dated as of April 1, 2003, by and between Seller (as
successor in interest to Banc of America Mortgage Capital Corporation ("BAMCC"))
and Countrywide Home Loans, Inc. ("Countrywide"), (ii) that certain Amendment
No. 1, dated as of July 1, 2003, by and among BAMCC, Countrywide and the Seller,
(iii) that certain Amendment No. 2, dated as of September 1, 2004, by and among
BAMCC, Countrywide and the Seller, (iv) that certain Amendment Reg AB to the
Master Mortgage Loan Purchase and Servicing Agreement, dated as of January 1,
2006, by and between Countrywide and the Seller, (v) that certain Purchase
Confirmation, dated June 30, 2004, by and between Countrywide and the Seller,
(vi) that certain Purchase Confirmation, dated July 30, 2004, by and between
Countrywide and the Seller and (vii) that certain Purchase Confirmation, dated
August 30, 2004, by and between Countrywide and the Seller (collectively, the
"Countrywide Agreements"), the Seller purchased the mortgage loans listed on
Exhibit I hereto (the "Countrywide Mortgage Loans") from Countrywide;
WHEREAS, pursuant to that certain Assignment, Assumption and Recognition
Agreement, dated August 4, 2004, by and among UBS Real Estate Securities Inc.
("UBS"), the Seller, GMAC Mortgage, LLC ("GMACM") and ABN AMRO Mortgage Group,
Inc. ("ABN AMRO") (the "UBS Agreement"), the Seller purchased the mortgage loans
listed on Exhibit II hereto (the "UBS Mortgage Loans") from UBS;
WHEREAS, pursuant to (i) that certain Flow Sale and Servicing Agreement,
dated as of January 1, 2005, by and between the Seller and GreenPoint Mortgage
Funding, Inc. ("GreenPoint"), (ii) that certain Amendment No. 1, dated as of May
1, 2005, by and between the Seller and GreenPoint, (iii) that certain Regulation
AB Compliance Addendum to the Flow Sale and Servicing Agreements, dated as of
January 1, 2006, by and between the Seller and GreenPoint and (iv) that certain
Memorandum of Sale, dated March 6, 2007, by and between Seller and GreenPoint
(collectively, the "GreenPoint Agreements"), the Seller purchased the mortgage
loans listed on Exhibit III hereto (the "GreenPoint Mortgage Loans") from
GreenPoint;
WHEREAS, pursuant to (i) that certain Master Seller's Warranties and
Servicing Agreement, dated as of September 1, 2003, by and between Seller (as
successor in interest to BAMCC) and National City Mortgage Co. ("National City
Mortgage"), (ii) that certain Amendment No. 1, dated as of July 1, 2004, by and
among BAMCC, National City Mortgage and the Seller, (iii) that certain Master
Assignment, Assumption and Recognition Agreement, dated as of July 1, 2004, by
and among BAMCC, National City Mortgage, the Seller and Wachovia Bank, National
Association ("Wachovia Bank"), (iv) that certain Amendment No. 2, dated as of
October 1, 2004, by and between National City Mortgage and the Seller, (v) that
certain Amendment No. 3, dated as of August 11, 2005, by and between National
City Mortgage and the Seller, (vi) that certain Regulation AB Compliance
Addendum to the Master Seller's Warranties and Servicing Agreement, dated as of
January 1, 2006, by and between National City Mortgage and the Seller, (vii)
that certain Assignment and Conveyance Agreement, dated July 21, 2004 by and
between National City Mortgage and the Seller and (viii) that certain Assignment
and Conveyance Agreement, dated July 22, 2004, by and between National City
Mortgage and the Seller (collectively, the "National City Agreements"), the
Seller purchased the mortgage loans from National City Mortgage listed on
Exhibit IV hereto (the "National City Mortgage Loans") from National City;
WHEREAS, pursuant to (i) that certain Flow Sale and Servicing Agreement,
dated as of February 1, 2004, by and between Seller (as successor in interest to
BAMCC) and SunTrust Mortgage Inc. ("SunTrust"), (ii) that certain Amendment No.
1, dated as of June 1, 2004, by and between the Seller and SunTrust, (iii) that
certain Master Assignment, Assumption and Recognition Agreement, dated September
1, 2004, by and among BAMCC, SunTrust, the Seller and Wachovia Bank, (iv) that
certain Amendment No. 2, dated as of November 1, 2004, by and between the Seller
and SunTrust, (v) that certain Regulation AB Compliance Addendum to the Flow
Sale and Servicing Agreement, dated as of January 1, 2006, by and between the
Seller and SunTrust and (vi) that certain Memorandum of Sale, dated February 15,
2007, by and between the Seller and SunTrust (collectively, the "SunTrust
Agreements"), the Seller purchased the mortgage loans listed on Exhibit V hereto
(the "SunTrust Mortgage Loans") from SunTrust;
WHEREAS, pursuant to (i) that certain Assignment, Assumption and
Recognition Agreement, dated June 30, 2004, among DLJ Mortgage Capital, Inc.
("DLJMC"), Washington Mutual Mortgage Securities Corp. ("WMMSC"), the Seller and
Washington Mutual Bank ("WAMU") and (ii) that certain Assignment, Assumption and
Recognition Agreement, dated July 30, 2004, among DLJMC, WMMSC and the Seller
(collectively, the "DLJMC Agreements"), the Seller purchased the mortgage loans
listed on Exhibit VI hereto (the "DLJMC Mortgage Loans") from DLJMC;
WHEREAS, pursuant to (i) that certain Master Mortgage Loan Purchase
Agreement, dated as of January 1, 2003, by and between the Seller and Xxxxx
Fargo Bank, N.A. ("Xxxxx Fargo"), (ii) that certain Amendment No. 1 to the
Master Mortgage Loan Purchase Agreement, dated as of October 1, 2003, by and
between the Seller and Xxxxx Fargo (iii) that certain Amendment No. 2 to the
Master Mortgage Loan Purchase Agreement, dated as of May 10, 2004, by and
between the Seller and Xxxxx Fargo, (iv) that certain Master Seller's Warranties
and Servicing Agreement, dated as of January 1, 2003, by and between the Seller
and Xxxxx Fargo, (v) that certain Amendment No. 1 to the Master Seller's
Warranties and Servicing Agreement, dated as of April 1, 2003, by and between
the Seller and Xxxxx Fargo, (vi) that certain Amendment No. 2 to the Master
Seller's Warranties and Servicing Agreement, dated as of May 1, 2003, by and
between the Seller and Xxxxx Fargo, (vii) that certain Amendment No. 3 to the
Master Seller's Warranties and Servicing Agreement, dated as of July 1, 2003, by
and between the Seller and Xxxxx Fargo, (viii) that certain Amendment No. 4 to
the Master Seller's Warranties and Servicing Agreement, dated as of October 1,
2003, by and between the Seller and Xxxxx Fargo, (ix) that certain Amendment No.
5 to the Master Seller's Warranties and Servicing Agreement, dated as of May 10,
2004, by and between the Seller and Xxxxx Fargo, and (x) that certain Assignment
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and Conveyance Agreement, dated February 26, 2004, by and between the Seller and
Xxxxx Fargo (collectively, the "Xxxxx Fargo Agreements"), the Seller purchased
the mortgage loans listed on Exhibit VII hereto (the "Xxxxx Fargo Mortgage
Loans") from Xxxxx Fargo;
WHEREAS, pursuant that certain Mortgage Loan Purchase and Warranties
Agreement, dated as of May 1, 2004, by and between the Seller (as successor in
interest to BAMCC) and Xxxxxx Capital, a division of Xxxxxx Brothers Holdings
Inc. ("Xxxxxx") (the "Xxxxxx Agreement"), the Seller purchased the mortgage
loans listed on Exhibit VIII attached hereto (the "Xxxxxx Mortgage Loans") from
Xxxxxx;
WHEREAS, pursuant to (i) that certain Assignment, Assumption and
Recognition Agreement, dated March 20, 2007, among North Fork Bank (as successor
in interest to GreenPoint) (together with Countrywide, UBS, GreenPoint, National
City Mortgage, SunTrust, DLJMC, Xxxxx Fargo and Xxxxxx, the "Underlying
Transferors"), the Seller and ABN AMRO and (ii) that certain Assignment,
Assumption and Recognition Agreement, dated March 20, 2007 (collectively, the
"North Fork Agreements" and, together with the Countrywide Agreements, the UBS
Agreement, the GreenPoint Agreements, the National City Agreements, the SunTrust
Agreements, the DLJMC Agreements, the Xxxxx Fargo Agreements and the Xxxxxx
Agreements, the "Transfer Agreements"), among North Fork Bank (as successor in
interest to GreenPoint), the Seller and Countrywide, the Seller purchased the
mortgage loans listed on Exhibit IX (the "North Fork Mortgage Loans" and,
together with the Countrywide Mortgage Loans, the UBS Mortgage Loans, the
GreenPoint Mortgage Loans, the National City Mortgage Loans, the SunTrust
Mortgage Loans, the DLJMC Mortgage Loans, the Xxxxx Fargo Mortgage Loans and the
Xxxxxx Mortgage Loans, the "Assigned Mortgage Loans") from North Fork Bank;
WHEREAS, the Seller is the owner of the mortgage loans listed on Exhibit X
(the "BANA Mortgage Loans," and together with the Assigned Mortgage Loans, the
"Mortgage Loans") and the related notes or other evidence of indebtedness (the
"BANA Mortgage Notes" and, together with the notes of the Assigned Mortgage
Loans, the "Mortgage Notes") or other evidence of ownership, and the other
documents or instruments constituting the related mortgage file (the "BANA
Mortgage File");
WHEREAS, the Seller, as of the date hereof, owns the mortgages (the
"Mortgages") on the properties (the "Mortgaged Properties") securing such
Mortgage Loans, including rights (a) to any property acquired by foreclosure or
deed in lieu of foreclosure or otherwise, and (b) to the proceeds of any
insurance policies covering the Mortgage Loans or the Mortgaged Properties or
the obligors on the Mortgage Loans;
WHEREAS, the parties hereto desire that the Seller sell the Mortgage Loans
to the Purchaser and the Purchaser purchase the Mortgage Loans from the Seller
pursuant to the terms of this Agreement; and
WHEREAS, pursuant to the terms of a Pooling and Servicing Agreement, dated
April 30, 2007 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, U.S. Bank National Association, as trustee (the "Trustee"),
Washington Mutual Mortgage Securities Corp. as a master servicer and Xxxxx Fargo
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Bank, as securities administrator (the "Securities Administrator") and as a
master servicer (the "Master Servicer"), the Purchaser will convey the Mortgage
Loans to Banc of America Funding 2007-3 Trust (the "Trust").
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
The Purchaser and the Seller hereby recite and agree as follows:
1. Defined Terms. Terms used without definition herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement
relating to the issuance of the Purchaser's Mortgage Pass-Through Certificates,
Series 2007-3 (the "Certificates") or, if not defined therein, in the
underwriting agreement, dated April 30, 2007 (the "Underwriting Agreement"),
between the Purchaser and Banc of America Securities LLC, or in the purchase
agreement, dated April 30, 2007 (the "Purchase Agreement"), between the
Purchaser and Banc of America Securities LLC.
2. Purchase Price; Purchase and Sale. The Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans. In consideration of the sale
of the Mortgage Loans from the Seller to the Purchaser on the Closing Date, the
Purchaser agrees to pay to the Seller on the Closing Date, in immediately
available funds, an amount equal to $895,971,713.66 (the "Purchase Price").
Upon payment of the Purchase Price, the Seller shall be deemed to have
transferred, assigned, set over and otherwise conveyed to the Purchaser all the
right, title and interest of the Seller in and to the Mortgage Loans and all
Mortgage Files, including all interest and principal received or receivable by
the Seller on or with respect to the Mortgage Loans after the Cut-off Date (and
including scheduled payments of principal and interest due after the Cut-off
Date but received by the Seller on or before the Cut-off Date and Principal
Prepayments received or applied on the Cut-off Date, but not including payments
of principal and interest due on the Mortgage Loans on or before the Cut-off
Date), together with the remedy provisions of Section 3.04 of the Master Bulk
Sale and Interim Servicing Agreement, dated as of May 1, 2006, between the
Seller and American Home Mortgage Corp., with respect to the BANA Mortgage Loans
purchased by the Seller from American Home Mortgage Corp., the remedy provisions
of Part I: General Information, Section 3.04.03 of the Buyer's Correspondent
Direct Seller Guide and the Correspondent Loan Purchase and Sale Agreement,
dated March 23, 2006, by and between the Seller and Pinnacle Financial
Corporation, with respect to the BANA Mortgage Loans purchased by the Seller
from Pinnacle Financial Corporation, the remedy provisions of Part I: General
Information, Section 3.04.03 of the Buyer's Correspondent Direct Seller Guide
and the Correspondent Loan Purchase and Sale Agreement, dated February 8, 2006,
by and between the Seller and Coastal Capital Corp., with respect to the BANA
Mortgage Loans purchased by the Seller from Coastal Capital Corp., the remedy
provisions of Part I: General Information, Section 3.04.03 of the Buyer's
Correspondent Direct Seller Guide and the Correspondent Loan Purchase and Sale
Agreement, dated February 2, 2007, by and between the Seller and SBMC Mortgage,
with respect to the BANA Mortgage Loans purchased by the Seller from SBMC
Mortgage, the remedy provisions of Sections 3.04 of the SunTrust Agreements,
with respect to the SunTrust Mortgage Loans purchased by the Seller from
SunTrust, the remedy provisions of Sections 3.04 of the GreenPoint Agreements,
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with respect to the GreenPoint Mortgage Loans purchased by the Seller from
GreenPoint, and all of the Seller's rights, title and interest in and to all
Mortgaged Property and any related title, hazard, primary mortgage, mortgage
pool policy or other insurance policies including all income, payments, products
and proceeds of any of the foregoing (but excluding any of the rights the Seller
may have with respect to premium recapture or purchase price protection). The
Purchaser hereby directs the Seller, and the Seller hereby agrees, to deliver to
the Trustee all documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under the Pooling and Servicing Agreement and
such other documents, instruments and agreements as the Purchaser or the Trustee
shall reasonably request.
3. Representations and Warranties as to the Assigned Mortgage Loans. The
representations and warranties with respect to the Assigned Mortgage Loans in
the related Transfer Agreement were made as of the date specified in such
Transfer Agreement. The Seller's right, title and interest in such
representations and warranties and the remedies in connection therewith have
been assigned to the Purchaser pursuant to (a) the Assignment, Assumption and
Recognition Agreement, dated April 30, 2007, by and among the Seller, the
Purchaser, the Trustee and National City Mortgage, (b) the Assignment,
Assumption and Recognition Agreement, dated April 30, 2007, by and among the
Seller, the Purchaser, the Trustee and SunTrust, (c) the Assignment, Assumption
and Recognition Agreement, dated April 30, 2007, by and among the Seller, the
Purchaser, the Trustee and WAMU, (d) the Assignment, Assumption and Recognition
Agreement, dated April 30, 2007, by and among the Seller, the Purchaser, the
Trustee and Xxxxx Fargo Bank, (e) the Assignment, Assumption and Recognition
Agreement, dated April 30, 2007, by and among the Seller, the Purchaser, the
Trustee and Countrywide, (f) the Assignment, Assumption and Recognition
Agreement, dated April 30, 2007, by and among the Seller, the Purchaser, the
Trustee and GreenPoint, (g) the Assignment, Assumption and Recognition
Agreement, dated April 30, 2007, by and among the Seller, the Purchaser, the
Trustee and CitiMortgage, Inc. and (h) the Assignment, Assumption and
Recognition Agreement, dated April 30, 2007, by and among the Seller, the
Purchaser, the Trustee and GMACM. To the extent that any fact, condition or
event with respect to a Mortgage Loan constitutes a breach of both (i) a
representation or warranty of an Underlying Transferor or the applicable
originator under the related Transfer Agreement or related underlying sale
agreement and (ii) a representation or warranty of the Seller under this
Agreement, the only right or remedy of the Purchaser shall be the right to
enforce the obligations of the related Underlying Transferor or applicable
originator under any applicable representation or warranty made by the related
Underlying Transferor or applicable originator. The Purchaser acknowledges and
agrees that the representations and warranties of the Seller in this Section 3
are applicable only to facts, conditions or events that do not constitute a
breach of any representation or warranty made by an Underlying Transferor in the
related Transfer Agreement or applicable originator in the related underlying
sale agreement. The Seller shall have no obligation or liability with respect to
any breach of a representation or warranty made by it with respect to the
Mortgage Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by an Underlying
Transferor in the related Transfer Agreement or applicable originator in the
related underlying sale agreement (other than with respect to the
representations or warranties in Section 3(k), to the extent such
representations and warranties relate to predatory or abusive lending and the
representations and warranties in Section 3(p) below), without regard to whether
such Underlying Transferor or applicable originator fulfills its contractual
obligations in respect of such representation or warranty. Subject to the
foregoing, the Seller represents and warrants with respect to the Assigned
Mortgage Loans, or each Assigned 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:
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(a) The information set forth with respect to the Assigned Mortgage
Loans on the mortgage loan schedules attached hereto as Exhibit I, Exhibit II,
Exhibit III, Exhibit IV, Exhibit V, Exhibit VI, Exhibit VII, Exhibit VIII and
Exhibit IX (the "Assigned Mortgage Loan Schedules") provides an accurate listing
of the Assigned Mortgage Loans, and the information with respect to each
Assigned Mortgage Loan on the related Assigned Mortgage Loan Schedule is true
and correct in all material respects at the date or dates respecting which such
information is given;
(b) No Assigned Mortgage Loan is more than 30 days delinquent as of
the Cut-off Date. The Seller has not waived any default, breach, violation or
event of acceleration, and the Seller has not taken any action to waive any
default, breach, violation or even of acceleration, with respect to any Assigned
Mortgage Loan;
(c) There are no delinquent taxes, assessments that could become a
lien prior to the related Mortgage or insurance premiums affecting the related
Mortgaged Property;
(d) With respect to each Assigned Mortgage Loan, the related Mortgage
has not been satisfied, canceled, subordinated or rescinded, in whole or in
part, and the related 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;
(e) With respect to each Assigned Mortgage Loan, there is no material
default, breach, violation or event of acceleration existing under any Mortgage
or the related 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
material default, breach, violation or event of acceleration, and neither the
Seller nor its predecessors have waived any material default, breach, violation
or event of acceleration;
(f) With respect to each Assigned Mortgage Loan, the related Mortgaged
Property is free of material damage that would affect adversely the value of the
Mortgaged Property as security for the Assigned Mortgage Loan or the use for
which the premises were intended;
(g) With respect to each Assigned Mortgage Loan, to the best of the
Seller's knowledge, there is no proceeding pending for the total or partial
condemnation of the Mortgaged Property;
(h) With respect to each Assigned Mortgage Loan, the related Mortgaged
Property is lawfully occupied under applicable law; all inspections, licenses
and certificates required to be made or issued with respect to all occupied
portions of each 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, except where the failure
would not have a material adverse effect upon the Assigned Mortgage Loan;
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(i) No Assigned Mortgage Loan is in foreclosure;
(j) Each Assigned Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G of the Code and Treas. Reg ss. 1.860G-2;
(k) 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 (inclusive of
prepayment charges) applicable to the origination and servicing of each Assigned
Mortgage Loan have been complied with;
(l) Except with respect to each Assigned Mortgage Loan for which the
related Mortgage is recorded in the name of MERS, the Seller is the sole owner
of record and holder of the Assigned Mortgage Loan. With respect to each
Assigned Mortgage Loan, the related Mortgage Note and the Mortgage are not
assigned or pledged, and the Seller has good and marketable title thereto and
has full right and authority to transfer and sell the Assigned Mortgage Loan to
the Purchaser. The Seller is transferring the Assigned Mortgage Loan free and
clear of any and all encumbrances, liens, pledges, equities, participation
interests, claims, agreements with other parties to sell or otherwise transfer
the Assigned Mortgage Loan, charges or security interests of any nature
encumbering such Assigned Mortgage Loan;
(m) With respect to each Assigned Mortgage Loan, the terms of the
Mortgage Note and Mortgage have not been impaired, waived, altered or modified
in any respect, except by a written instrument which has been recorded, if
necessary, to protect the interests of the Purchaser and maintain the lien
priority of the Mortgage and which has been delivered to the Purchaser or its
designee. The substance of any such waiver, alteration or modification has been
approved by the title insurer, to the extent required by the policy, and its
terms are reflected on the related Assigned 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 title insurer, to the extent required by
the policy, and which assumption agreement is part of the Mortgage File
delivered to the Purchaser or its designee and the terms of which are reflected
on the related Assigned Mortgage Loan Schedule;
(n) The Seller has not dealt with any broker, investment banker, agent
or other Person (other than the Purchaser and Banc of America Securities LLC)
who may be entitled to any commission or compensation in connection with the
sale of the Assigned Mortgage Loans;
(o) No Assigned Mortgage Loan is a "high cost" loan as defined under
any federal, state or local law applicable to such Assigned Mortgage Loan at the
time of its origination;
(p) No Assigned Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in S&P's LEVELS(R) Glossary, which is now
Version 5.7 Revised, Appendix E) and no Assigned Mortgage Loan originated on or
after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act;
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(q) The hazard insurance policy on each Assigned Mortgage Loan has
been validly issued and is in full force and effect, and will be in full force
and effect and inure to the benefit of the Purchaser upon the consummation of
the transactions contemplated by this Agreement;
(r) With respect to each Assigned Mortgage Loan, each Mortgage
evidences a valid, subsisting, enforceable and perfected first lien on the
related Mortgaged Property (including all improvements on the Mortgaged
Property). The lien of the Mortgage is subject only to: (1) liens of current
real property taxes and assessments not yet due and payable and, if the related
Mortgaged Property is a condominium unit, any lien for common charges permitted
by statute, (2) covenants, conditions and restrictions, rights of way, easements
and other matters of public record as of the date of recording of such Mortgage
acceptable to mortgage lending institutions in the area in which the related
Mortgaged Property is located and specifically referred to in the lender's title
insurance policy or attorney's opinion of title and abstract of title delivered
to the originator of such Mortgage Loan, and (3) such other matters to which
like properties are commonly subject which do not, individually or in the
aggregate, materially interfere with the benefits of the security intended to be
provided by the Mortgage. Any security agreement, chattel mortgage or equivalent
document related to, and delivered to the Trustee in connection with, a Mortgage
Loan establishes a valid, subsisting and enforceable first lien on the property
described therein and the Seller has, and the Purchaser will have, the full
right to sell and assign the same to the Trustee;
(s) With respect to any Assigned Mortgage Loan covered by a title
insurance policy, the originator is the sole insured of such mortgagee title
insurance policy, such mortgagee title insurance policy is in full force and
effect and will inure to the benefit of the Purchaser upon the consummation of
the transactions contemplated by this Agreement, no claims have been made under
such mortgagee title insurance policy and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything that
would impair the coverage of such mortgagee title insurance policy;
(t) With respect to each Assigned Mortgage Loan, there are no
mechanics' or similar liens or claims which have been filed for work, labor or
material (and no rights are outstanding that under the law could give rise to
such liens) affecting the related Mortgaged Property which are or may be liens
prior to, or equal or coordinate with, the lien of the related Mortgage;
(u) If the Assigned 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 Assigned Mortgage of the rights of the
lessee upon foreclosure or assignment in lieu of foreclosure or provide the
holder of the Assigned 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 Assigned 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
Assigned Mortgage is in existence, (c) prohibit the holder of the Assigned
Mortgage from being insured (or receiving proceeds of insurance) under the
hazard insurance policy or policies relating to the Assigned Mortgaged Property
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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 in not less than 15
years; (5) the term of such lease does not terminate earlier than five years
after the maturity date of the Assigned Mortgage Note; and (6) the Assigned
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; and
(v) All information on the Assigned Mortgage Loan Schedules regarding
any prepayment charges is complete and accurate in all material respects and
each prepayment charge has customary terms and is permissible and enforceable in
accordance with its terms under applicable law.
Notwithstanding the foregoing, with respect to the Assigned Mortgage Loans,
no representations or warranties are made by the Seller as to the environmental
condition of any related Mortgaged Property; the absence, presence or effect of
hazardous wastes or hazardous substances on any related Mortgaged Property; any
casualty resulting from the presence or effect of hazardous wastes or hazardous
substances on, near or emanating from any related Mortgaged Property; the impact
on Certificateholders of any environmental condition or presence of any
hazardous substance on or near any related Mortgaged Property; or the compliance
of any related Mortgaged Property with any environmental laws, nor is any agent,
Person or entity otherwise affiliated with the Seller authorized or able to make
any such representation, warranty or assumption of liability relative to any
related Mortgaged Property. In addition, no representations or warranties are
made by the Seller with respect to the absence or effect of fraud in the
origination of any Assigned Mortgage Loan.
The Seller hereby agrees that any cure of a breach of such representations
and warranties shall be in accordance with the terms of the Pooling and
Servicing Agreement.
4. Representations and Warranties as to the BANA Mortgage Loans. The Seller
hereby represents and warrants to the Purchaser with respect to the BANA
Mortgage Loans or each BANA 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:
(a) The information set forth in the mortgage loan schedule attached
hereto as Exhibit X (the "BANA Mortgage Loan Schedule" and together with the
Assigned Mortgage Loan Schedules, the "Mortgage Loan Schedules") is true and
correct in all material respects;
(b) 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 (a "BANA Mortgaged Property");
(c) The terms of the BANA Mortgage Notes and the related Mortgages
(each, a "BANA 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 BANA
Mortgage, and which have been delivered to the custodian; the substance of any
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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 BANA Mortgage Loan Schedule. No
instrument of waiver, alteration or modification has been executed, and no
mortgagor of a BANA Mortgage Loan (a "BANA Mortgagor") has been released, in
whole or in part, except in connection with an assumption agreement approved by
the insurer under the Primary Mortgage Insurance Policy, if any, the title
insurer, to the extent required by the policy, and which assumption agreement
has been delivered to the Trustee;
(d) The BANA Mortgage Notes and the BANA Mortgages 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 BANA Mortgage Notes
and the BANA Mortgages, or the exercise of any right thereunder, render either
the BANA Mortgage Notes or the BANA Mortgages 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;
(e) All buildings upon each BANA 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 related BANA Mortgaged Property is located, pursuant
to insurance policies conforming to the requirements of Customary Servicing
Procedures and the Pooling and Servicing Agreement. All such insurance policies
contain a standard mortgagee clause naming the originator of the BANA Mortgage
Loan, its successors and assigns as mortgagee and all premiums thereon have been
paid. If the BANA 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 FNMA or FHLMC. The BANA 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
BANA Mortgage to maintain such insurance at mortgagor's cost and expense and to
seek reimbursement therefor from the mortgagor;
(f) 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 (inclusive of
prepayment charges) applicable to the origination and servicing of BANA Mortgage
Loans have been complied with;
(g) No BANA Mortgage has 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 no BANA Mortgaged
Property has been released from the lien of the related BANA Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, rescission or release;
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(h) The BANA Mortgage is a valid, existing and enforceable first lien
on the BANA Mortgaged Property, including all improvements on the BANA 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 BANA Mortgage Loan and which do not adversely affect the
Appraised Value of the BANA Mortgaged Property, (C) if the BANA Mortgaged
Property consists of Cooperative Stock, 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 BANA Mortgage or the
use, enjoyment, value or marketability of the related BANA Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the BANA Mortgage Loan establishes and creates a
valid, existing and enforceable first lien and first priority security interest
on the property described therein and the Seller has the full right to sell and
assign the same to the Purchaser;
(i) The BANA Mortgage Note and the related BANA 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;
(j) All parties to the BANA Mortgage Note and the BANA Mortgage had
legal capacity to enter into the BANA Mortgage Loan and to execute and deliver
the BANA Mortgage Note and the BANA Mortgage, and the BANA Mortgage Note and the
BANA Mortgage have been duly and properly executed by such parties;
(k) The proceeds of the BANA Mortgage Loan have been fully disbursed
to or for the account of the related BANA 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 BANA Mortgage Loan and the
recording of the BANA 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 BANA
Mortgage Note or BANA Mortgage;
(l) To the best of the Seller's knowledge, all parties which have had
any interest in the BANA 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 BANA Mortgaged
Property is located;
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(m) Either (A) the BANA Mortgage Loan is covered by an ALTA lender's
title insurance policy, acceptable to FNMA or FHLMC, issued by a title insurer
acceptable to FNMA or FHLMC and qualified to do business in the jurisdiction
where the BANA Mortgaged Property is located, insuring (subject to the
exceptions contained in (h)(A), (B), (C) and (D) above) the Seller, its
successors and assigns as to the first priority lien of the BANA Mortgage in the
original principal amount of the BANA Mortgage Loan, (B) a title search has been
done showing no lien (other than the exceptions contained in (h)(A), (B), (C)
and (D) above) on the BANA Mortgaged Property senior to the lien of the BANA
Mortgage or (C) in the case of any BANA Mortgage Loan secured by a BANA
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 BANA
Mortgage Loan covered by a title insurance policy (x) the Seller 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 Seller has not done, by act or omission, anything which would impair the
coverage of such lender's title insurance policy;
(n) There is no default, breach, violation or event of acceleration
existing under the BANA Mortgage or the BANA 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;
(o) As of the date of origination of the BANA Mortgage Loan, there
were 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 relating BANA Mortgaged Property which are or may be liens prior
to, or equal or coordinate with, the lien of the related BANA Mortgage;
(p) All improvements which were considered in determining the
Appraised Value of the related BANA Mortgaged Property lay wholly within the
boundaries and building restriction lines of the BANA Mortgaged Property, and no
improvements on adjoining properties encroach upon the BANA Mortgaged Property;
(q) The BANA 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;
(r) Payments on the BANA Mortgage Loan commenced no more than sixty
days after the proceeds of the BANA Mortgaged Loan were disbursed. The BANA
Mortgage Loans are 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 BANA 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. No BANA
Mortgage Note permits negative amortization;
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(s) There is no proceeding pending or, to the Seller's knowledge,
threatened for the total or partial condemnation of the BANA Mortgaged Property
and such 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 BANA Mortgaged Property as security for the BANA
Mortgage Loan or the use for which the premises were intended;
(t) The BANA Mortgage and related BANA 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 BANA Mortgaged Property
of the benefits of the security provided thereby, including (A) in the case of a
BANA Mortgage designated as a deed of trust, by trustee's sale, and (B)
otherwise by judicial foreclosure. To the best of the Seller's knowledge,
following the date of origination of the BANA Mortgage Loan, the related BANA
Mortgaged Property has not been subject to any bankruptcy proceeding or
foreclosure proceeding and the related BANA Mortgagor has not filed for
protection under applicable bankruptcy laws. There is no homestead or other
exemption or right available to the BANA Mortgagor or any other person which
would interfere with the right to sell the BANA Mortgaged Property at a
trustee's sale or the right to foreclose the BANA Mortgage;
(u) With respect to the BANA Mortgage Loans, the BANA Mortgage Note is
not and has not been secured by any collateral except the lien of the
corresponding BANA Mortgage on the BANA Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred to in
(h) above;
(v) Each appraisal of the related BANA Mortgaged Property is in a form
acceptable to FNMA or FHLMC and such appraisal complies with the requirements of
FIRREA, and was made and signed, prior to the approval of the BANA Mortgage Loan
application, by an appraiser who met the qualifications of Xxxxxx Xxx or Xxxxxxx
Mac and satisfied this requirements of Title XI of FIRREA;
(w) In the event the BANA 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;
(x) No BANA Mortgage Loan is a graduated payment mortgage loan, no
BANA Mortgage Loan has a shared appreciation or other contingent interest
feature, and no BANA Mortgage Loan contains any "buydown" provision;
(y) The BANA Mortgagor has received all disclosure materials required
by applicable law with respect to the making of mortgage loans of the same type
as the BANA Mortgage Loan and rescission materials required by applicable law if
the BANA Mortgage Loan is a refinanced mortgage loan, i.e., the proceeds of such
BANA Mortgage Loan were not used to purchase the related Mortgaged Property;
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(z) Each Primary Mortgage Insurance Policy to which any BANA Mortgage
Loan is subject will be issued by an insurer acceptable to FNMA or FHLMC, which
insures that portion of the BANA Mortgage Loan in excess of the portion of the
Appraised Value of the BANA Mortgaged Property required by FNMA or FHLMC. All
provisions of such Primary Mortgage 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 BANA Mortgage subject to any such Primary
Mortgage 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 BANA Mortgage Loan is reduced to less than
80%. The Mortgage Interest Rate for the BANA Mortgage Loan does not include any
such insurance premium;
(aa) To the best of the Seller's knowledge as of the date of
origination of the BANA Mortgage Loan, (A) the BANA 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 BANA 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 BANA Mortgaged Property is in violation of any zoning law or
regulation;
(bb) With respect to each BANA Mortgage Loan, the related Assignment
of Mortgage (except with respect to any BANA 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 related BANA Mortgaged
Property is located;
(cc) All payments required to be made prior to the Cut-off Date for
such BANA Mortgage Loan under the terms of the BANA Mortgage Note have been made
and no more than 0.02% of the BANA Mortgage Loans (as a percentage of the
aggregate Stated Principal Balance of the BANA Mortgage Loans as of the Cut-off
Date) has been more than 30 days delinquent more than once in the twelve month
period immediately prior to the Cut-off Date;
(dd) With respect to each BANA Mortgage Loan, the Seller is in
possession of a complete BANA Mortgage File except for the documents which have
been delivered to the Trustee or which have been submitted for recording and not
yet returned;
(ee) Except with respect to each BANA Mortgage Loan for which the
related Mortgage is recorded in the name of MERS, immediately prior to the
transfer and assignment contemplated herein, the Seller was the sole owner of
record and holder of the BANA Mortgage Loan. With respect to the BANA Mortgage
Loans, the BANA Mortgage Loans were not assigned or pledged by the Seller and
the Seller had good and marketable title thereto, and the Seller had full right
to transfer and sell the BANA 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 BANA Mortgage Loans;
(ff) With respect to the BANA Mortgage Loans, any future advances made
prior to the Cut-off Date have been consolidated with the outstanding principal
amount secured by the BANA Mortgage, and the secured principal amount, as
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consolidated, bears a single interest rate and single repayment term. With
respect to each BANA Mortgage Loan, the lien of the related BANA 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
FNMA and FHLMC. The consolidated principal amount does not exceed the original
principal amount of the BANA Mortgage Loan;
(gg) The BANA 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;
(hh) If the BANA 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 BANA Mortgage of the rights of the lessee upon
foreclosure or assignment in lieu of foreclosure or provide the holder of the
BANA 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 BANA 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 BANA Mortgage is in existence, (c)
prohibit the holder of the BANA Mortgage from being insured (or receiving
proceeds of insurance) under the hazard insurance policy or policies relating to
the BANA 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 in not less than 15 years; (5) the term of such lease does not terminate
earlier than five years after the maturity date of the BANA Mortgage Note; and
(6) the BANA 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;
(ii) With respect to each BANA Mortgage Loan, the related BANA
Mortgaged Property is located in the state identified in the BANA 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 BANA Mortgage Loans secured by Cooperative Stock, 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;
(jj) The Seller used no adverse selection procedures in selecting the
BANA Mortgage Loan for inclusion in the Trust Estate;
(kk) Each BANA Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code and Treas. Reg ss. 1.860G-2;
15
(ll) With respect to each BANA Mortgage where a lost note affidavit
has been delivered to the Trustee in place of the related BANA Mortgage Note,
the related BANA Mortgage Note is no longer in existence;
(mm) No BANA Mortgage Loan is a "high cost" loan as defined under any
federal, state or local law applicable to such BANA Mortgage Loan at the time of
its origination;
(nn) No BANA 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 Revised, Appendix E) and no BANA Mortgage
Loan originated on or after October 1, 2002 through March 6, 2003 is governed by
the Georgia Fair Lending Act;
(oo) All information on the BANA Mortgage Loan Schedule regarding any
prepayment charges is complete and accurate in all material respects and each
prepayment charge has customary terms and is permissible and enforceable in
accordance with its terms under applicable law; and
(pp) Each BANA Mortgage Note and BANA Mortgage are on forms acceptable
to FNMA or FHLMC.
Notwithstanding the foregoing, no representations or warranties are made by
the Seller as to the environmental condition of any BANA Mortgaged Property; the
absence, presence or effect of hazardous wastes or hazardous substances on any
BANA Mortgaged Property; any casualty resulting from the presence or effect of
hazardous wastes or hazardous substances on, near or emanating from any BANA
Mortgaged Property; the impact on Certificateholders of any environmental
condition or presence of any hazardous substance on or near any BANA Mortgaged
Property; or the compliance of any BANA Mortgaged Property with any
environmental laws, nor is any agent, Person or entity otherwise affiliated with
the Seller authorized or able to make any such representation, warranty or
assumption of liability relative to any BANA Mortgaged Property. In addition, no
representations or warranties are made by the Seller with respect to the absence
or effect of fraud in the origination of any BANA Mortgage Loan.
It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the respective BANA 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.
5. No Broker's Fees. The Seller hereby represents and warrants to the
Purchaser that the Seller has not dealt with any broker, investment banker,
agent or other Person (other than the Purchaser and Banc of America Securities
LLC) who may be entitled to any commission or compensation in connection with
the sale of the Mortgage Loans.
6. Repurchase or Substitution. Upon discovery by the Seller, the Purchaser,
the Trustee or any assignee, transferee or designee of the Trustee of a missing
or defective document in the Mortgage File, as provided in Section 2 of this
Agreement or the Pooling and Servicing Agreement or a breach of any of the
representations and warranties set forth in Section 3 and Section 4 (to the
extent provided therein) that materially and adversely affects the value of any
16
Mortgage Loan or the interest therein of the Purchaser or the Purchaser's
assignee, the party discovering such breach shall give prompt written notice to
the others. Within 90 days after the earlier of the Seller's discovery or
receipt of notification of such missing or defective document or breach of a
representation and warranty (notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty), the Seller shall
promptly cure such breach in all material respects, or in the event such missing
or defective document or breach cannot be cured, the Seller shall repurchase the
affected Mortgage Loan. Alternatively, the Seller hereby agrees (notwithstanding
the Seller's lack of knowledge with respect to the substance of such
representation and warranty), if so requested by the Purchaser, to substitute
for any such Mortgage Loan, a new mortgage loan having characteristics such that
the representations and warranties referred to in Section 3 (to the extent
provided therein) or Section 4, as applicable, above would not have been
incorrect (except for representations and warranties as to the correctness of
the related Mortgage Loan Schedule) had such substitute mortgage loan originally
been a Mortgage Loan. The Seller further agrees that a substituted mortgage loan
will have on the date of substitution the criteria set forth in the definition
of "Substitute Mortgage Loan" in the Pooling and Servicing Agreement and will
comply with the substitution provisions of Section 2.02 of the Pooling and
Servicing Agreement. The Seller shall remit to the Purchaser, in cash, the
difference between the unpaid principal balance of the Mortgage Loan to be
substituted and the unpaid principal balance of the substitute mortgage loan.
If the breach of the representation set forth in clauses (k) and (p)
of Section 3 herein or in clauses (f) and (nn) of Section 4 herein occurs as a
result of a violation of an applicable predatory or abusive lending law, the
Seller agrees to reimburse the Purchaser for all costs and damages incurred by
the Purchaser as a result of the violation of such law; provided that, with
respect to any Assigned Mortgage Loan, the Seller has no obligation to reimburse
the Purchaser for any such costs and damages that are reimbursed by an
Underlying Transferor.
The Purchaser acknowledges and agrees that it shall have no rights
against the Seller under this Section 6, except with respect to the preceding
paragraph, if the breach of any representation or warranty also constitutes a
breach of a representation or warranty made by an Underlying Transferor under
the related Transfer Agreement or applicable originator under the related
underlying sale agreement, but shall instead enforce its rights against such
Underlying Transferor or originator, as applicable.
7. Underwriting.
(a) The Seller hereby agrees to furnish any and all information,
documents, certificates, letters or opinions with respect to the mortgage loans,
reasonably requested by the Purchaser in order to perform any of its obligations
or satisfy any of the conditions on its part to be performed or satisfied
pursuant to the Underwriting Agreement or the Purchase Agreement at or prior to
the Closing Date.
(b) For so long as the Securities Administrator is required to file
any report with the Commission pursuant to Section 3.22 of the Pooling and
Servicing Agreement, the Seller shall furnish to the Securities Administrator,
on each Distribution Date, the "significance estimate" of each Interest Rate
Swap Agreement and each Interest Rate Cap Agreement, each calculated in
accordance with Item 1115 of Regulation AB as of such Distribution Date.
17
8. Costs. The Purchaser shall pay all expenses incidental to the
performance of its obligations under the Underwriting Agreement and the Purchase
Agreement, including without limitation (i) any recording fees or fees for title
policy endorsements and continuations, (ii) the expenses of preparing, printing
and reproducing the Prospectus, the Prospectus Supplement, the Underwriting
Agreement, the Private Placement Memoranda, the Purchase Agreement, the Pooling
and Servicing Agreement and the Certificates and (iii) the cost of delivering
the Certificates to the offices of or at the direction of Banc of America
Securities LLC insured to the satisfaction of Banc of America Securities LLC.
9. Notices. All demands, notices and communications hereunder shall be in
writing, shall be effective only upon receipt and shall, if sent to the
Purchaser, be addressed to it at Banc of America Funding Corporation, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxxx, with a
copy to: Bank of America Legal Department, 000 Xxxxx Xxxxx Xxxxxx, 101 X. Xxxxx
St., 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Associate General Counsel, or if sent to the Seller, be addressed to it at Bank
of America, National Association, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000, Attention: Xxxxx Xxxxx, with a copy to Bank of
America Legal Department, 000 Xxxxx Xxxxx Xxxxxx, 101 X. Xxxxx St., 30th Floor,
NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Associate General
Counsel.
10. Trustee Assignee. The Seller acknowledges the assignment of the
Purchaser's rights hereunder to the Trustee on behalf of the Trust and that the
representations, warranties and agreements made by the Seller in this Agreement
may be enforced by the Trustee, on behalf of the Trust, against the Seller.
11. Recharacterization. The parties to this Agreement intend the conveyance
by the Seller to the Purchaser of all of its right, title and interest in and to
the Mortgage Loans and all Mortgage Files, including all interest and principal
received or receivable by the Seller on or with respect to the Mortgage Loans
after the Cut-off Date (and including scheduled payments of principal and
interest due after the Cut-off Date but received by the Seller on or before the
Cut-off Date and Principal Prepayments received or applied on the Cut-off Date,
but not including payments of principal and interest due on the Mortgage Loans
on or before the Cut-off Date), together with all of the Seller's rights, title
and interest in and to all Mortgaged Property and any related title, hazard,
primary mortgage, mortgage pool policy or other insurance policies including all
income, payments, products and proceeds of any of the foregoing, 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 Seller shall be deemed to
have granted to the Purchaser a first priority security interest in all of the
Seller's right, title and interest in and to the Mortgage Loans.
12. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the conflict
of law provisions. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a writing signed by the party against
18
whom enforcement of such change, waiver, discharge or termination is sought.
This Agreement may not be changed in any manner which would have a material
adverse effect on Holders of Certificates without the prior written consent of
the Trustee. The Trustee shall be protected in consenting to any such change to
the same extent provided in Article IX of the Pooling and Servicing Agreement.
This Agreement may be signed in any number of counterparts, each of which shall
be deemed an original, which taken together shall constitute one and the same
instrument. This Agreement shall bind and inure to the benefit of and be
enforceable by the Purchaser and the Seller and their respective successors and
assigns.
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IN WITNESS WHEREOF, the Purchaser and the Seller have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
BANC OF AMERICA FUNDING CORPORATION
By: /s/ Xxxxx X. Good
------------------------------
Name: Xxxxx X. Good
Title: Principal
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Good
------------------------------
Name: Xxxxx X. Good
Title: Principal
[Signature Page to the BAFC 2007-3 Mortgage Loan Purchase Agreement]
