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 June 29,
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, the Seller is the owner of the mortgage loans listed on Exhibit I
(the "Mortgage Loans,") 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 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
June 29, 2007 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, the Seller, as Servicer, Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"), and U.S. Bank National Association, as custodian (the "Custodian"),
the Purchaser will convey the Mortgage Loans to Banc of America Funding 2007-5
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 2007-5 (the "Certificates") or, if not defined therein, in the
underwriting agreement, dated June 29, 2007 (the "Underwriting Agreement"),
between the Purchaser and Banc of America Securities LLC, or in the purchase
agreement, dated June 29, 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 $540,655,663.52 (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 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 fees payable by a
Mortgagor for the right to cancel any portion of principal or interest of a BPP
Mortgage Loan). 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 Seller
hereby represents and warrants to the Purchaser 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 in the mortgage loan schedule attached
hereto as Exhibit I (the "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 "Mortgaged Property");
(c) The terms of the Mortgage Notes and the related Mortgages (each, a
"Mortgage") have not been impaired, waived, altered or modified in any respect,
except by written instruments, recorded in the applicable public recording
office if necessary to maintain the lien priority of the Mortgage, and which
have been delivered to the custodian; the substance of any such waiver,
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alteration or modification has been approved by the insurer under the primary
insurance policy, if any, the title insurer, to the extent required by the
related policy, and is reflected on the Mortgage Loan Schedule. No instrument of
waiver, alteration or modification has been executed, and no mortgagor of a
Mortgage Loan (a "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
Custodian;
(d) The Mortgage Notes and the 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 Mortgage Notes and the
Mortgages, or the exercise of any right thereunder, render either the Mortgage
Notes or the 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 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 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 Mortgage Loan,
its successors and assigns as mortgagee and all premiums thereon have been paid.
If the Mortgaged Property is in an area identified on a flood hazard map or
flood insurance rate map issued by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made available),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration is in effect which policy conforms to the
requirements of FNMA or FHLMC. The Mortgage obligates the mortgagor thereunder
to maintain all such insurance at the mortgagor's cost and expense, and on the
mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at mortgagor's cost and expense and to seek reimbursement
therefor from the mortgagor;
(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 Mortgage
Loans have been complied with;
(g) No 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 Mortgaged
Property has been released from the lien of the related Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, rescission or release;
(h) The Mortgage is a valid, existing and enforceable first lien on
the Mortgaged Property, including all improvements on the Mortgaged Property
subject only to (A) the lien of current real property taxes and assessments not
yet due and payable, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
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being acceptable to mortgage lending institutions generally and specifically
referred to in the lender's title insurance policy delivered to the originator
of the Mortgage Loan and which do not adversely affect the Appraised Value of
the Mortgaged Property, (C) if the Mortgaged Property consists of 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 Mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property. Any security agreement, chattel
mortgage or equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, existing and enforceable first
lien and first priority security interest on the property described therein and
the Seller has the full right to sell and assign the same to the Purchaser;
(i) The Mortgage Note and the related Mortgage are genuine and each is
the legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms except as enforceability may be limited by (A)
bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of creditors and (B)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law;
(j) All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties;
(k) The proceeds of the Mortgage Loan have been fully disbursed to or
for the account of the related Mortgagor and there is no obligation for the
mortgagee to advance additional funds thereunder and any and all requirements as
to completion of any on-site or off-site improvements and as to disbursements of
any escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage have been paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due to the mortgagee pursuant to the Mortgage Note or Mortgage;
(l) To the best of the Seller's knowledge, all parties which have had
any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or
otherwise, are (or, during the period in which they held and disposed of such
interest, were) in compliance with any and all applicable "doing business" and
licensing requirements of the laws of the state wherein the Mortgaged Property
is located;
(m) Either (A) the 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 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 Mortgage in the original principal
amount of the Mortgage Loan, (B) a title search has been done showing no lien
(other than the exceptions contained in (h)(A), (B), (C) and (D) above) on the
Mortgaged Property senior to the lien of the Mortgage or (C) in the case of any
Mortgage Loan secured by a Mortgaged Property located in a jurisdiction where
such policies are generally not available, an opinion of counsel of the type
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customarily rendered in such jurisdiction in lieu of title insurance is instead
received. For each Mortgage Loan covered by a title insurance policy (x) the
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 Mortgage or the Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration, and the
Seller has not waived any default, breach, violation or event of acceleration;
(o) As of the date of origination of the 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 Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(p) All improvements which were considered in determining the
Appraised Value of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property, and no
improvements on adjoining properties encroach upon the Mortgaged Property;
(q) The Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance company, or
similar institution which is supervised and examined by a federal or state
authority, or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing Act;
(r) Payments on the Mortgage Loan commenced no more than sixty days
after the proceeds of the Mortgaged Loan were disbursed. The Mortgage Loans are
fixed-rate mortgage loans having an original term to maturity of not more than
40 years, with interest payable in arrears on the first day of the month. Each
Mortgage Note requires a monthly payment which is sufficient to fully amortize
the original principal balance over the original term thereof and to pay
interest at the related Mortgage Interest Rate. No 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 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 Mortgaged Property as security for the Mortgage Loan
or the use for which the premises were intended;
(t) The Mortgage and related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including (A) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (B) otherwise by
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judicial foreclosure. To the best of the Seller's knowledge, following the date
of origination of the Mortgage Loan, the related Mortgaged Property has not been
subject to any bankruptcy proceeding or foreclosure proceeding and the related
Mortgagor has not filed for protection under applicable bankruptcy laws. There
is no homestead or other exemption or right available to the Mortgagor or any
other person which would interfere with the right to sell the Mortgaged Property
at a trustee's sale or the right to foreclose the Mortgage;
(u) Other than any Borrowers Protection Plan(R) addendum to the
Mortgage Note of a BPP Mortgage Loan, with respect to the Mortgage Loans, each
Mortgage Note and Mortgage are on forms acceptable to FNMA or FHLMC;
(v) With respect to the Mortgage Loans, the Mortgage Note is not and
has not been secured by any collateral except the lien of the corresponding
Mortgage on the Mortgaged Property and the security interest of any applicable
security agreement or chattel mortgage referred to in (h) above;
(w) Each appraisal of the related 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 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 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 Mortgage Loan is a graduated payment mortgage loan and no
Mortgage Loan has a shared appreciation or other contingent interest feature;
(z) The Mortgagor has received all disclosure materials required by
applicable law with respect to the making of mortgage loans of the same type as
the Mortgage Loan and rescission materials required by applicable law if the
Mortgage Loan is a refinanced mortgage loan, i.e., the proceeds of such Mortgage
Loan were not used to purchase the related Mortgaged Property;
(aa) Each Primary Mortgage Insurance Policy to which any Mortgage Loan
is subject will be issued by an insurer acceptable to FNMA or FHLMC, which
insures that portion of the Mortgage Loan in excess of the portion of the
Appraised Value of the 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 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 Mortgage Loan is reduced to less than 80%. The
Mortgage Interest Rate for the Mortgage Loan does not include any such insurance
premium;
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(bb) To the best of the Seller's knowledge as of the date of
origination of the Mortgage Loan, (A) the Mortgaged Property is lawfully
occupied under applicable law, (B) all inspections, licenses and certificates
required to be made or issued with respect to all occupied portions of the
Mortgaged Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy, have been made or
obtained from the appropriate authorities and (C) no improvement located on or
part of the Mortgaged Property is in violation of any zoning law or regulation;
(cc) With respect to each Mortgage Loan, the related Assignment of
Mortgage (except with respect to any Mortgage that has been recorded in the name
of MERS or its designee) is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the related Mortgaged Property is
located;
(dd) All payments required to be made prior to the Cut-off Date for
such Mortgage Loan under the terms of the Mortgage Note have been made and no
more than 0.04% of the Mortgage Loans (as a percentage of the aggregate Stated
Principal Balance of the 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;
(ee) With respect to each Mortgage Loan, the Seller is in possession
of a complete Mortgage File except for the documents which have been delivered
to the Custodian or which have been submitted for recording and not yet
returned;
(ff) Except with respect to each 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 Mortgage Loan. With respect to the Mortgage Loans, the 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
Mortgage Loans to the Trustee free and clear of any encumbrance, participation
interest, lien, equity, pledge, claim or security interest and had full right
and authority subject to no interest or participation in, or agreement with any
other party to sell or otherwise transfer the Mortgage Loans;
(gg) With respect to the Mortgage Loans, any future advances made
prior to the Cut-off Date have been consolidated with the outstanding principal
amount secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment term. With
respect to each Mortgage Loan, the lien of the related 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 Mortgage Loan;
(hh) The Mortgage Loan was underwritten in accordance with the
applicable underwriting guidelines in effect at the time of origination with
exceptions thereto exercised in a reasonable manner;
(ii) If the Mortgage Loan is secured by a long-term residential lease,
(1) the lessor under the lease holds a fee simple interest in the land; (2) the
terms of such lease expressly permit the mortgaging of the leasehold estate, the
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assignment of the lease without the lessor's consent and the acquisition by the
holder of the Mortgage of the rights of the lessee upon foreclosure or
assignment in lieu of foreclosure or provide the holder of the Mortgage with
substantially similar protections; (3) the terms of such lease do not (a) allow
the termination thereof upon the lessee's default without the holder of the
Mortgage being entitled to receive written notice of, and opportunity to cure,
such default, (b) allow the termination of the lease in the event of damage or
destruction as long as the Mortgage is in existence, (c) prohibit the holder of
the Mortgage from being insured (or receiving proceeds of insurance) under the
hazard insurance policy or policies relating to the Mortgaged Property or (d)
permit any increase in the rent other than pre-established increases set forth
in the lease; (4) the original term of such lease 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 Mortgage Note; and (6) the Mortgaged Property is located in
a jurisdiction in which the use of leasehold estates in transferring ownership
in residential properties is a widely accepted practice;
(jj) With respect to each Mortgage Loan, the related Mortgaged
Property is located in the state identified in the Mortgage Loan Schedule and
consists of a parcel of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual condominium
unit, or an individual unit in a planned unit development, or, in the case of
Mortgage Loans secured by 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
Mortgage Loan for inclusion in the Trust Estate;
(ll) Each Mortgage Loan is a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code and Treas. Reg ss. 1.860G-2;
(mm) With respect to each Mortgage where a lost note affidavit has
been delivered to the Custodian in place of the related Mortgage Note, the
related Mortgage Note is no longer in existence;
(nn) No Mortgage Loan is a "high cost" loan as defined under any
federal, state or local law applicable to such Mortgage Loan at the time of its
origination;
(oo) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then current S&P's LEVELS(R)
Glossary, which is now Version 5.7 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;
(pp) All information on the 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
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(qq) Other than any Borrowers Protection Plan(R) addendum to the
Mortgage Note of a BPP Mortgage Loan, with respect to the Mortgage Loans, each
Mortgage Note and 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 Mortgaged Property; the
absence, presence or effect of hazardous wastes or hazardous substances on any
Mortgaged Property; any casualty resulting from the presence or effect of
hazardous wastes or hazardous substances on, near or emanating from any
Mortgaged Property; the impact on Certificateholders of any environmental
condition or presence of any hazardous substance on or near any Mortgaged
Property; or the compliance of any Mortgaged Property with any environmental
laws, nor is any agent, Person or entity otherwise affiliated with the Seller
authorized or able to make any such representation, warranty or assumption of
liability relative to any Mortgaged Property. In addition, no representations or
warranties are made by the Seller with respect to the absence or effect of fraud
in the origination of any Mortgage Loan.
It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the respective Mortgage Files to
the Custodian and shall inure to the benefit of the Trustee, notwithstanding any
restrictive or qualified endorsement or assignment.
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 Trustee, the Custodian or any assignee, transferee or designee of the
Trustee or Custodian 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 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
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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(f) and (oo) 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; BPP Mortgage Loans.
(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) With respect to any BPP Mortgage Loan, the Seller hereby agrees to
remit to the Servicer (a) the amount of any principal and interest due by a
Mortgagor and cancelled for any month pursuant to the terms of the related
Mortgage Note (the "Monthly Covered Amount") upon the disability or involuntary
unemployment of the related Mortgagor or (b) the outstanding principal balance
of the Mortgage Loan canceled pursuant to the terms of the related Mortgage Note
together with accrued interest at the Mortgage Interest Rate minus the Servicing
Fee Rate to the date of cancellation (the "Total Covered Amount") upon the
accidental death of the related Mortgagor. Any Monthly Covered Amount payable by
the Seller pursuant to this Section 6(b) shall be deposited by the Seller in the
Servicer Custodial Account on or prior to, in the case of the Monthly Covered
Amount, the Remittance Date relating to the Distribution Date immediately
following the Due Date as to which such Monthly Covered Amount relates and, in
the case of a Total Covered Amount, the Remittance Date relating to the
Distribution Date in the month following the month in which the cancellation to
which such Total Covered Amount relates occurs.
(c) For so long as the Trustee 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 Trustee, on each Distribution Date, the
"significance estimate" of each Interest Rate Cap Agreement, each calculated in
accordance with Item 1115 of Regulation AB as of such Distribution 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 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, 214 North
00
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxxx, with a
copy to: Bank of America Legal Department, 000 Xxxxx Xxxxx Xxxxxx, 30th Floor,
NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Associate General
Counsel, 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.
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. 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.
11
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: Principal
[BAFC 2007-5 Mortgage Loan Purchase Agreement]
