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EXECUTION COPY
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MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (the "Agreement"), dated March 30,
2006, 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 (a) that certain Master Seller's Warranties and
Servicing Agreement, dated as of September 1, 2003, by and between the Seller
(as successor in interest to Banc of America Mortgage Capital Corporation
("BAMCC")), as purchaser, and National City Mortgage Co. ("National City"), as
seller, as amended by (b) that certain Amendment No. 1, dated as of July 1,
2004, by and among BAMCC, National City and the Seller, (c) that certain Master
Assignment, Assumption and Recognition Agreement, dated as of July 1, 2004, by
and among BAMCC, National City, the Seller and Wachovia Bank, National
Association ("Wachovia"), (d) that certain Amendment No. 2, dated as of October
1, 2004, by and between National City and the Seller, (e) that certain Amendment
No. 3, dated as of August 11, 2005, by and between National City and the Seller,
(f) 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 and the Seller, (g) that certain Assignment and Conveyance
Agreement, dated as of December 20, 2005, by and between National City and the
Seller, (h) that certain Assignment and Conveyance Agreement, dated as of
January 19, 2006, by and between National City and the Seller and (i) that
certain Assignment and Conveyance Agreement, dated as of February 7, 2006, by
and between National City and the Seller (collectively, the "National City
Agreements") the Seller purchased the mortgage loans listed on Exhibit I (the
"National City Mortgage Loans") from National City and National City currently
services the National City Mortgage Loans;
WHEREAS, pursuant to (a) that certain Flow Sale and Servicing Agreement,
dated as of February 1, 2004, by and between the Seller (as successor in
interest to BAMCC), as purchaser, and SunTrust Mortgage, Inc. ("SunTrust"), as
seller, (b) that certain Amendment No. 1, dated as of June 1, 2004, by and
between the Seller and SunTrust, (c) that certain Master Assignment, Assumption
and Recognition Agreement, dated September 1, 2004, by and among BAMCC,
SunTrust, the Seller and Wachovia, (d) that certain Amendment No. 2, dated as of
November 1, 2004, by and between the Seller and SunTrust, (e) 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, (f) that
certain Memorandum of Sale, dated as of November 22, 2005, by and between the
Seller and SunTrust, (g) that certain Memorandum of Sale, dated as of January
20, 2006, by and between the Seller and SunTrust and (h) that certain Memorandum
of Sale, dated as of February 3, 2006, by and between the Seller and SunTrust
(collectively, the "SunTrust Agreements"), the Seller purchased the mortgage
loans listed on Exhibit II (the "SunTrust Mortgage Loans") from SunTrust and
SunTrust currently services the SunTrust Mortgage Loans;
WHEREAS, pursuant to (a) that certain Mortgage Loan Purchase and Sale
Agreement (Amended and Restated), dated as of July 1, 2003, by and among
Washington Mutual Bank fsb ("WAMU fsb"), Washington Mutual Bank ("WAMU") and the
Seller (as successor in interest to BAMCC), as purchaser, as amended by (i) that
certain Master Assignment, Assumption and Recognition Agreement (the "MAAR"),
dated as of July 1, 2004, by and among BAMCC, the Seller and WAMU and (ii) that
certain Regulation AB Amendment to the Mortgage Loan Purchase and Sale
Agreement, dated as of January 1, 2006, by and among WAMU fsb, WAMU and the
Seller), (b) the Servicing Agreement (Amended and Restated), dated as of July 1,
2003, by and between the Seller and WAMU, as servicer, as amended by (i) the
MAAR and (ii) that certain Regulation AB Amendment to the Servicing Agreement,
dated as of January 1, 2006, by and between WAMU and the Seller and (c) that
certain Term Sheet, dated as of January 24, 2006, by and between the Seller and
WAMU (collectively, the "WAMU Agreements"), the Seller purchased the mortgage
loans listed on Exhibit III (the "WAMU Mortgage Loans") from WAMU on a servicing
retained basis and WAMU currently services the WAMU Mortgage Loans;
WHEREAS, pursuant to (a) that certain Master Seller's Warranties and
Servicing Agreement, dated as of March 1, 2005 (as amended and restated on
December 1, 2005, the "March MSWSA"), by and between Seller, as purchaser, and
Xxxxx Fargo Bank, as seller and servicer, (b) that certain Master Mortgage Loan
Purchase Agreement, dated as of March 1, 2005 (as amended and restated on
December 1, 2005, the "March MMLPA"), by and between Seller, as purchaser, and
Xxxxx Fargo Bank, as seller, (c) that certain Amended and Restated Master
Seller's Warranties and Servicing Agreement, dated as of December 1, 2005 (the
"December MSWSA"), by and between Seller, as purchaser, and Xxxxx Fargo Bank, as
seller and servicer, (d) that certain Amended and Restated Master Mortgage Loan
Purchase Agreement, dated as of December 1, 2005 (the "December MMLPA"), by and
between Seller, as purchaser, and Xxxxx Fargo Bank, as seller, (e) that certain
Assignment and Conveyance Agreement, dated as of August 26, 2005, by and between
Seller and Xxxxx Fargo Bank, (f) that certain Assignment and Conveyance
Agreement, dated as of September 27, 2005, by and between Seller and Xxxxx Fargo
Bank, (g) that certain Assignment and Conveyance Agreement, dated as of October
26, 2005, by and between Seller and Xxxxx Fargo Bank, (h) that certain
Assignment and Conveyance Agreement, dated as of December 15, 2005, by and
between Seller and Xxxxx Fargo Bank and (i) that certain Assignment and
Conveyance Agreement, dated as of January 27, 2006, by and between Seller and
Xxxxx Fargo Bank (collectively, the "Xxxxx Fargo Bank Agreements" and together
with the National City Agreements, the SunTrust Agreements and the WAMU
Agreements, the "Transfer Agreements") the Seller purchased the mortgage loans
listed on Exhibit IV (the "Xxxxx Fargo Bank Mortgage Loans" and together with
the National City Mortgage Loans, the SunTrust Mortgage Loans and the WAMU
Mortgage Loans, the "Assigned Mortgage Loans") from Xxxxx Fargo Bank and Xxxxx
Fargo Bank currently services the Xxxxx Fargo Bank Mortgage Loans;
WHEREAS, the Seller is the owner of the mortgage loans listed on Exhibit V
(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");
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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; and
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
March 30, 2006 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, U.S. Bank National Association, as trustee (the "Trustee"), and Xxxxx
Fargo Bank, as securities administrator (the "Securities Administrator") and as
master servicer (the "Master Servicer"), the Purchaser will convey the Mortgage
Loans to Banc of America Funding 2006-3 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 2006-3 (the "Certificates") or, if not defined therein, in the
underwriting agreement dated March 28, 2006 (the "Underwriting Agreement"),
between the Purchaser and Banc of America Securities LLC, or in the purchase
agreement dated March 30, 2006 (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. The purchase price (the
"Purchase Price") for the Mortgage Loans shall consist of $929,415,143.92
payable by the Purchaser to the Seller on the Closing Date in immediately
available funds.
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 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. The Purchaser hereby directs the Seller,
and the Seller hereby agrees, to deliver to the Trustee all documents,
instruments and agreements
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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 Agreements were made as of the date specified in each
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 (i) the Assignment, Assumption and
Recognition Agreement, dated March 30, 2006, by and among the Seller, the
Purchaser, the Trustee, the Master Servicer and National City, (ii) the
Assignment, Assumption and Recognition Agreement, dated March 30, 2006, by and
among the Seller, the Purchaser, the Trustee, the Master Servicer and SunTrust,
(iii) the Assignment, Assumption and Recognition Agreement, dated March 30,
2006, by and among the Seller, the Purchaser, the Trustee, the Master Servicer,
WAMU fsb and WAMU and (iv) the Assignment, Assumption and Recognition Agreement,
dated March 30, 2006, by and among the Seller, the Purchaser, the Trustee and
Xxxxx Fargo Bank. To the extent that any fact, condition or event with respect
to a Mortgage Loan constitutes a breach of both (i) a representation or warranty
of the Underlying Transferor under the related Transfer 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 such
Underlying Transferor under any applicable representation or warranty made by
it. 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 a Servicer in the related Transfer Agreements. 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 a Servicer in the related Transfer Agreements (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(o) below), without regard to
whether each Servicer 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:
(a) The information set forth with respect to the Mortgage Loans
on the mortgage loan schedules attached hereto as Exhibit I, Exhibit II, Exhibit
III, Exhibit IV, Exhibit V, Exhibit VI and Exhibit VII (the "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 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;
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(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, recission
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;
(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 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
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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 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 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 or Covered Loan,
as applicable (as such terms are defined in S&P's LEVELS(R) Glossary, which is
now Version 5.6 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;
(p) 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;
(q) 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;
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(r) 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; and
(s) 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.
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 VII (the "BANA Mortgage Loan Schedule") 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
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custodian; 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
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 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) Principal 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
10
principal balance over the original term thereof and to pay interest at the
related Mortgage Interest Rate. No BANA Mortgage Note permits negative
amortization;
(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, each BANA Mortgage
Note and BANA Mortgage are on forms acceptable to FNMA or FHLMC;
(v) 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;
(w) 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;
(x) 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;
(y) 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;
(z) 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
11
is a refinanced mortgage loan, i.e., the proceeds of such BANA Mortgage Loan
were not used to purchase the related Mortgaged Property;
(aa) 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;
(bb) 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;
(cc) 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;
(dd) 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 BANA Mortgage Loan has been more than 30 days delinquent more than once
in the twelve month period immediately prior to the Cut-off Date;
(ee) 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;
(ff) 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;
12
(gg) 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 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;
(hh) 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;
(ii) 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;
(jj) 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;
(kk) The Seller used no adverse selection procedures in selecting
the BANA Mortgage Loan for inclusion in the Trust Estate;
(ll) Each BANA Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code;
13
(mm) 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;
(nn) 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; and
(oo) 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 5.6(c) 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.
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
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
14
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 (o)
of Section 3 herein or in clauses (f) and (oo) 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 a Servicer.
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 a Servicer under the related
Transfer Agreement, but shall instead enforce its rights against such Servicer.
7. Underwriting. 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.
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 Memorandum, 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: General Counsel with
a copy to the Chief Financial Officer, or if sent to the Seller, be
15
addressed to it at Bank of America, National Association, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000, Attention: General Counsel with a copy
to the Treasurer.
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 Securities Administrator, 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
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.
16
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 Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Good
-----------------------------------
Name: Xxxxx X. Good
Title: Vice President
[Signature Page to the BAFC 2006-3 Mortgage Loan Purchase Agreement]
EXHIBIT I
NATIONAL CITY MORTGAGE LOAN SCHEDULE
[See separate Excel file on Closing Binder CD]
I-1
EXHIBIT II
SUNTRUST MORTGAGE LOAN SCHEDULE
[See separate Excel file on Closing Binder CD]
II-1
EXHIBIT III
WAMU MORTGAGE LOAN SCHEDULE
[See separate Excel file on Closing Binder CD]
III-1
EXHIBIT IV
XXXXX FARGO BANK MORTGAGE LOAN SCHEDULE
[See separate Excel file on Closing Binder CD]
IV-1
EXHIBIT V
BANA MORTGAGE LOAN SCHEDULE
[See separate Excel file on Closing Binder CD]
V-1
