EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (the "Agreement"), dated June 29,
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 Second Amended and Restated Master
Seller's Warranties and Servicing Agreement, dated as of May 1, 2006, by and
between Seller, as purchaser, and Xxxxx Fargo Bank, N.A., a national banking
association ("Xxxxx Fargo Bank"), as seller and servicer, (b) that certain
Second Amended and Restated Master Mortgage Loan Purchase Agreement, dated as of
May 1, 2006, by and between Seller, as purchaser, and Xxxxx Fargo Bank, as
seller, (c) that certain Assignment and Conveyance Agreement, dated as of June
16, 2006, by and between Seller and Xxxxx Fargo Bank and (d) that certain
Assignment and Conveyance Agreement, dated as of June 22, 2006, by and between
Seller and Xxxxx Fargo Bank (collectively, the "Transfer Agreement"), the Seller
purchased the mortgage loans listed on Exhibit I (the "Mortgage Loans") from
Xxxxx Fargo Bank and Xxxxx Fargo Bank currently services the Mortgage Loans;
WHEREAS, the Seller is the owner of the Mortgage Loans listed on Exhibit I
and the related notes or other evidence of indebtedness (the "Mortgage Notes")
or other evidence of ownership, and the other documents or instruments
constituting the related mortgage file (the "Mortgage File");
WHEREAS, the Seller, as of the date hereof, owns the mortgages (the
"Mortgages") on the properties (the "Mortgaged Properties") securing the
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
June 29, 2006 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, U.S. Bank National Association, as trustee (the "Trustee"), and Xxxxx
Fargo Bank, N.A., as servicer (the "Servicer") and as securities administrator
(the "Securities Administrator"), the Purchaser will convey the Mortgage Loans
to Banc of America Funding 2006-F 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-F
(the "Certificates") or, if not defined therein, in the underwriting agreement
dated June 28, 2006 (the "Underwriting Agreement"), between the Purchaser and
Banc of America Securities LLC, or in the purchase agreement dated June 29, 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 $555,595,726.33
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 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 Mortgage Loans. The representations
and warranties with respect to the Mortgage Loans were made as of the date
specified in the 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 the Assignment, Assumption and
Recognition Agreement, dated June 29, 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 Xxxxx Fargo Bank under the 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 Xxxxx Fargo Bank 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 Xxxxx Fargo Bank in the
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Transfer 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 Xxxxx Fargo Bank in
the Transfer 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(o) below), without regard to whether Xxxxx Fargo Bank fulfills its
contractual obligations in respect of such representation or warranty. Subject
to the foregoing, the Seller represents and warrants with respect to the
Mortgage Loans, or each Mortgage Loan, as the case may be, as of the date hereof
or such other date set forth herein, that as of the Closing Date:
(a) The information set forth with respect to the Mortgage Loans on
the mortgage loan schedule attached hereto as Exhibit I (the "Mortgage Loan
Schedule") provides an accurate listing of the Mortgage Loans, and the
information with respect to each Mortgage Loan on the Mortgage Loan Schedule is
true and correct in all material respects at the date or dates respecting which
such information is given;
(b) No Mortgage Loan is 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 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 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 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 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 Mortgage Loan or the use for which the
premises were intended;
(g) With respect to each 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 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
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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 Mortgage Loan;
(i) No Mortgage Loan is in foreclosure;
(j) Each Mortgage Loan is a "qualified mortgage" within the meaning of
Section 860G of the Code and Treas. Reg Section 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 Mortgage Loan have been complied with;
(l) Except with respect to each 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 Mortgage Loan. With respect to each 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 Mortgage Loan to the Purchaser. The Seller is transferring the
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 Mortgage Loan, charges or security interests of any
nature encumbering such Mortgage Loan;
(m) With respect to each 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 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 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 Mortgage Loans;
(o) No 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 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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(p) The hazard insurance policy on each 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 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;
(r) With respect to any 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 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 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 Mortgage Loan.
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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. 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.
5. Repurchase or Substitution. Upon discovery by the Seller, the Purchaser, the
Securities Administrator, 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 (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 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) above would not have been incorrect (except for
representations and warranties as to the correctness of the 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 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.
6. 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.
7. 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
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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.
8. 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 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.
9. 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.
10. 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.
11. 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 and the Securities Administrator. The Trustee and Securities
Administrator 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 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-F Mortgage Loan Purchase Agreement]
EXHIBIT I
MORTGAGE LOAN SCHEDULE
[Please refer to Exhibit D to the Pooling and Servicing Agreement.]
I-1
