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MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated January 31,
2007, is between Banc of America Funding Corporation, a Delaware corporation
(the "Purchaser") and Bank of America, National Association, a national banking
association (the "Seller").
WHEREAS, pursuant to (i) that certain 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 Banc of America Mortgage Capital Corporation
("BAMCC"), as purchaser (as amended by (a) 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 (b) 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); (ii) the Servicing
Agreement (Amended and Restated), dated as of July 1, 2003 (the "WaMu Servicing
Agreement"), by and between the Seller and WaMu, as servicer (as amended by (a)
the MAAR and (b) that certain Regulation AB Amendment to the Servicing
Agreement, dated as of January 1, 2006, by and between WaMu and the Seller); and
(iii) those certain Term Sheets, dated November 21, 2006 and December 20, 2006,
respectively, each by and between the Seller and WaMu (collectively, the "WaMu
Agreements"), the Seller purchased the Mortgage Loans listed on Exhibit I (the
"WaMu Mortgage Loans") from WaMu and WaMu currently services the WaMu Mortgage
Loans;
WHEREAS, pursuant to (i) that certain Second Amended and Restated Master
Seller's Warranties and Servicing Agreement, dated as of May 1, 2006, by and
between the Seller and Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo Bank"); (ii) that
certain Second Amended and Restated Master Mortgage Loan Purchase Agreement,
dated as of May 1, 2006, by and between the Seller and Xxxxx Fargo Bank; (iii)
that certain Assignment and Conveyance Agreement (2006-W47), dated June 28,
2006, by and between the Seller and Xxxxx Fargo Bank; (iv) that certain
Assignment and Conveyance Agreement (2006-W102), dated November 20, 2006, by and
between the Seller and Xxxxx Fargo Bank; (v) those certain Assignment and
Conveyance Agreements (2006-W104 and 2006-W105), each dated December 18, 2006,
by and between the Seller and Xxxxx Fargo Bank; and (vi) those certain
Assignment and Conveyance Agreements (2006-W106 and 2006-W107), each dated
December 19, 2006, by and between the Seller and Xxxxx Fargo Bank (collectively,
the "Xxxxx Fargo Agreements"), the Seller purchased the mortgage loans listed on
Exhibit II (the "Xxxxx Fargo Mortgage Loans") from Xxxxx Fargo Bank and Xxxxx
Fargo Bank currently services the Xxxxx Fargo Mortgage Loans;
WHEREAS, pursuant to (i) that certain Master Mortgage Loan Purchase and
Servicing Agreement, dated as of April 1, 2003, by and between the Seller (as
successor in interest to BAMCC), as purchaser, and Countrywide Home Loans, Inc.,
as seller ("Countrywide"); (ii) that certain Amendment No. 1, dated as of July
1, 2003, by and among BAMCC, Countrywide and the Seller; (iii) that certain
Amendment No. 2, dated as of September 1, 2004, by and among BAMCC, Countrywide
and the Seller; (iv) that certain Amendment Reg AB to the Master Mortgage Loan
Purchase and Servicing Agreement, dated as of January 1, 2006, by and between
Countrywide and the Seller; (v) certain Purchase Confirmations (BA2006-0137, and
BA2006-0139), each dated March 30, 2006, by and between Countrywide and the
Seller; and (vi) that certain Purchase Confirmation, dated December 29, 2006, by
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and between Countrywide and the Seller (collectively, the "Countrywide
Agreements"), the Seller purchased the mortgage loans listed on Exhibit III (the
"Countrywide Mortgage Loans") from Countrywide and Countrywide Home Loans
Servicing LP currently services the Countrywide Mortgage Loans;
WHEREAS, pursuant to (i) 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 BAMCC), as purchaser, and National City Mortgage
Company, as seller ("National City Mortgage" and together with WaMu, Xxxxx Fargo
Bank and Countrywide, the "Underlying Transferors"); (ii) that certain Amendment
No. 1, dated as of July 1, 2004, by and among BAMCC, National City Mortgage and
the Seller; (iii) that certain Master Assignment, Assumption and Recognition
Agreement, dated as of July 1, 2004, by and among BAMCC, National City Mortgage,
the Seller and Wachovia Bank, National Association; (iv) that certain Amendment
No. 2, dated as of October 1, 2004, by and between National City Mortgage and
the Seller; (v) that certain Amendment No. 3, dated as of August 11, 2005, by
and between National City Mortgage and the Seller; (vi) that certain Regulation
AB Compliance Addendum to the Master Seller's Warranties and Servicing
Agreement, dated as of January 1, 2006, by and between National City Mortgage
and the Seller; and (vii) that certain Assignment and Conveyance Agreement,
dated December 31, 2006, by and between National City Mortgage and the Seller
(collectively, the "National City Mortgage Agreements" and together with the
WaMu Agreements, the Xxxxx Fargo Bank Agreements and the Countrywide Agreements,
the "Transfer Agreements"), the Seller purchased the mortgage loans listed on
Exhibit IV (the "National City Mortgage Loans" and together with the WaMu
Mortgage Loans, the Xxxxx Fargo Bank Mortgage Loans and the Countrywide Mortgage
Loans, the "Assigned Mortgage Loans") from National City Mortgage and National
City Mortgage currently services the National City 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");
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
January 31, 2007 (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")
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and as master servicer (the "Master Servicer"), the Purchaser will convey the
Mortgage Loans to Banc of America Funding 2007-A 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-A (the "Certificates") or, if not defined therein, in the
underwriting agreement, dated January 30, 2007 (the "Underwriting Agreement"),
between the Purchaser and Banc of America Securities LLC, or in the purchase
agreement dated January 31, 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 (a) to pay to the Seller on the Closing Date, in immediately
available funds, an amount equal to $716,215,000, and (b) to deliver to or at
the direction of the Seller on the Closing Date, a 100% interest in each of the
Class CE Certificates and the Class R Certificate (clauses (a) and (b) together,
the "Purchase Price").
Upon payment of the Purchase Price, the Seller shall be deemed to have
transferred, assigned, set over and otherwise conveyed to the Purchaser all the
right, title and interest of the Seller in and to the Mortgage Loans and all
Mortgage Files, including all interest and principal received or receivable by
the Seller on or with respect to the Mortgage Loans after the Cut-off Date (and
including scheduled payments of principal and interest due after the Cut-off
Date but received by the Seller on or before the Cut-off Date and Principal
Prepayments received or applied on the Cut-off Date, but not including payments
of principal and interest due on the Mortgage Loans on or before the Cut-off
Date), together with the remedy provisions of Sections 3.04 and 3.05 of the
Master Bulk Sale and Interim Servicing Agreement, dated as of May 1, 2006,
between the Seller and American Home Mortgage Corp., with respect to the BANA
Mortgage Loans purchased by the Seller from America Home Mortgage Corp., the
remedy provisions of Part I: General Information, Sections 3.04.03 and 3.04.06
of the Buyer's Correspondent Direct Seller Guide and the Correspondent Loan
Purchase and Sale Agreement, dated March 23, 2006, by and between the Seller and
Pinnacle Financial Corporation, with respect to the BANA Mortgage Loans
purchased by the Seller from Pinnacle Financial Corporation, and all of the
Seller's rights, title and interest in and to all Mortgaged Property and any
related title, hazard, primary mortgage, mortgage pool policy or other insurance
policies including all income, payments, products and proceeds of any of the
foregoing (but excluding any 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.
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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 January 31, 2007, by and among the Seller, the
Purchaser, the Trustee and WaMu, (ii) the Assignment, Assumption and Recognition
Agreement, dated January 31, 2007, by and among the Seller, the Purchaser, the
Trustee and Xxxxx Fargo Bank, (iii) the Assignment, Assumption and Recognition
Agreement, dated January 31, 2007, by and among the Seller, the Purchaser, the
Trustee, Countrywide, and Countrywide Home Loans Servicing LP, and (iv) the
Assignment, Assumption and Recognition Agreement, dated January 31, 2007, by and
among the Seller, the Purchaser, the Trustee and National City Mortgage. To the
extent that any fact, condition or event with respect to a Mortgage Loan
constitutes a breach of both (i) a representation or warranty of an Underlying
Transferor 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 an
Underlying Transferor in the related 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 an Underlying Transferor in the related 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 each Underlying Transferor 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 and Exhibit IV (the "Assigned Mortgage Loan Schedules")
provides an accurate listing of the Assigned Mortgage Loans, and the
information with respect to each Assigned Mortgage Loan on the related
Assigned Mortgage Loan Schedule is true and correct in all material
respects at the date or dates respecting which such information is given;
(b) No Assigned Mortgage Loan is more than 30 days delinquent as of
the Cut-off Date. The Seller has not waived any default, breach, violation
or event of acceleration, and the Seller has not taken any action to waive
any default, breach, violation or even of acceleration, with respect to any
Assigned Mortgage Loan;
(c) There are no delinquent taxes, assessments that could become a
lien prior to the related Mortgage or insurance premiums affecting the
related Mortgaged Property;
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(d) With respect to each Assigned Mortgage Loan, the related Mortgage
has not been satisfied, canceled, subordinated or rescinded, in whole or in
part, and the related Mortgaged Property has not been released from the
lien of the Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such satisfaction, cancellation,
subordination, rescission or release;
(e) With respect to each Assigned Mortgage Loan, there is no material
default, breach, violation or event of acceleration existing under any
Mortgage or the related Mortgage Note and no event which, with the passage
of time or with notice and the expiration of any grace or cure period,
would constitute a material default, breach, violation or event of
acceleration, and neither the Seller nor its predecessors have waived any
material default, breach, violation or event of acceleration;
(f) With respect to each Assigned Mortgage Loan, the related Mortgaged
Property is free of material damage that would affect adversely the value
of the Mortgaged Property as security for the Assigned Mortgage Loan or the
use for which the premises were intended;
(g) With respect to each Assigned Mortgage Loan, to the best of the
Seller's knowledge, there is no proceeding pending for the total or partial
condemnation of the Mortgaged Property;
(h) With respect to each Assigned Mortgage Loan, the related Mortgaged
Property is lawfully occupied under applicable law; all inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of each Mortgaged Property and, with respect to the use
and occupancy of the same, including but not limited to certificates of
occupancy, have been made or obtained from the appropriate authorities,
except where the failure would not have a material adverse effect upon the
Assigned Mortgage Loan;
(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
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
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sell or otherwise transfer the Assigned Mortgage Loan, charges or security
interests of any nature encumbering such Assigned Mortgage Loan;
(m) With respect to each Assigned Mortgage Loan, the terms of the
Mortgage Note and Mortgage have not been impaired, waived, altered or
modified in any respect, except by a written instrument which has been
recorded, if necessary, to protect the interests of the Purchaser and
maintain the lien priority of the Mortgage and which has been delivered to
the Purchaser or its designee. The substance of any such waiver, alteration
or modification has been approved by the title insurer, to the extent
required by the policy, and its terms are reflected on the related Assigned
Mortgage Loan Schedule. No instrument of waiver, alteration or modification
has been executed, and no Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement approved by the title
insurer, to the extent required by the policy, and which assumption
agreement is part of the Mortgage File delivered to the Purchaser or its
designee and the terms of which are reflected on the related Assigned
Mortgage Loan Schedule;
(n) The Seller has not dealt with any broker, investment banker, agent
or other Person (other than the Purchaser and Banc of America Securities
LLC) who may be entitled to any commission or compensation in connection
with the sale of the Assigned Mortgage Loans;
(o) No Assigned Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in S&P's LEVELS(R) Glossary, which is
now Version 5.7 Revised, Appendix E) and no Assigned Mortgage Loan
originated on or after October 1, 2002 through March 6, 2003 is governed by
the Georgia Fair Lending Act;
(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;
(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;
(t) If the Assigned Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee simple
interest in the land; (2) the terms of such lease expressly permit the
mortgaging of the leasehold estate, the assignment of the lease without the
lessor's consent and the acquisition by the holder of the Assigned Mortgage
of the rights of the lessee upon foreclosure or assignment in lieu of
foreclosure or provide the holder of the Assigned Mortgage with
substantially similar protections; (3) the terms of such lease do not (a)
allow the termination thereof upon the lessee's default without the holder
of the Assigned Mortgage being entitled to receive written notice of, and
opportunity to cure, such default, (b) allow the termination of the lease
in the event of damage or destruction as long as the Assigned Mortgage is
in existence, (c) prohibit the holder of the Assigned Mortgage from being
insured (or receiving proceeds of insurance) under the hazard insurance
policy or policies relating to the Assigned Mortgaged Property or (d)
permit any increase in the rent other than pre-established increases set
forth in the lease; (4) the original term of such lease in not less than 15
years; (5) the term of such lease does not terminate earlier than five
years after the maturity date of the Assigned Mortgage Note; and (6) the
Assigned Mortgaged Property is located in a jurisdiction in which the use
of leasehold estates in transferring ownership in residential properties is
a widely accepted practice; and
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.
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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 V (the "BANA Mortgage Loan Schedule" and together with
the Assigned Mortgage Loan Schedules, the "Mortgage Loan Schedules") is
true and correct in all material respects;
(b) There are no delinquent taxes, ground rents, governmental
assessments, insurance premiums, leasehold payments, including assessments
payable in future installments or other outstanding charges, affecting the
lien priority of the related Mortgaged Property (a "BANA Mortgaged
Property");
(c) The terms of the BANA Mortgage Notes and the related Mortgages
(each, a "BANA Mortgage") have not been impaired, waived, altered or
modified in any respect, except by written instruments, recorded in the
applicable public recording office if necessary to maintain the lien
priority of the BANA Mortgage, and which have been delivered to the
custodian; the substance of any 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
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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;
(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
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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;
(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;
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(p) All improvements which were considered in determining the
Appraised Value of the related BANA Mortgaged Property lay wholly within
the boundaries and building restriction lines of the BANA Mortgaged
Property, and no improvements on adjoining properties encroach upon the
BANA Mortgaged Property;
(q) The BANA Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a
federal or state authority, or by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to sections 203 and 211 of the
National Housing Act;
(r) Payments on the BANA Mortgage Loan commenced no more than sixty
days after the proceeds of the BANA Mortgaged Loan were disbursed. The BANA
Mortgage Loans are adjustable-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 BANA Mortgage Note requires a monthly
payment which is sufficient to fully amortize the original principal
balance over the original term thereof and to pay interest at the related
Mortgage Interest Rate. No BANA Mortgage Note permits negative
amortization;
(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) Other than any Borrowers Protection Plan(R) addendum to the
Mortgage Note of a BPP Mortgage Loan, 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;
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(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 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;
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(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;
(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;
13
(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 and Treas. Reg. ss. 1.860G-2;
(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;
(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 5.7 Revised, Appendix E) and no BANA
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is governed by the Georgia Fair Lending Act; and
(pp) As of the Cut-off Date, no BANA Mortgage Loan had a loan-to-value
ratio of greater than 100%, where loan-to-value ratio means outstanding
principal amount of the related BANA Mortgage Loan as of the Cut-off Date
divided by the Appraised Value of the related Mortgage Property.
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
14
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 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 an
Underlying Transferor.
The Purchaser acknowledges and agrees that it shall have no rights against
the Seller under this Section 6, except with respect to the preceding paragraph,
if the breach of any representation or warranty also constitutes a breach of a
representation or warranty made by an Underlying Transferor under the applicable
Transfer Agreement, but shall instead enforce its rights against such Underlying
Transferor.
7. Underwriting; BPP Mortgage Loans.
15
(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 Master 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
7(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 Securities Administrator is required to file
any report with the Commission pursuant to Section 3.22 of the Pooling and
Servicing Agreement, the Seller shall furnish to the Securities
Administrator, on each Distribution Date, the "significance estimate" of
the Interest Rate Cap Agreements and the Interest Rate Swap Agreement, each
calculated in accordance with Item 1115 of Regulation AB as of such
Distribution 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 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 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 Trustee, on behalf of the Trust, against the Seller.
16
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.
17
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
[Signature Page to the BAFC 2007-A Mortgage Loan Purchase Agreement]
EXHIBIT I
WAMU MORTGAGE LOAN SCHEDULE
[Please see the Free Writing Prospectus filed and accepted by the Securities and
Exchange Commission on January 31, 2007, with a filing date of January 31, 2007
and accession number 001379402-07-000012.]
I-1
EXHIBIT II
XXXXX FARGO BANK MORTGAGE LOAN SCHEDULE
[Please see the Free Writing Prospectus filed and accepted by the Securities and
Exchange Commission on January 31, 2007, with a filing date of January 31, 2007
and accession number 001379402-07-000012.]
II-1
EXHIBIT III
COUNTRYWIDE LOAN SCHEDULE
[Please see the Free Writing Prospectus filed and accepted by the Securities and
Exchange Commission on January 31, 2007, with a filing date of January 31, 2007
and accession number 001379402-07-000012.]
III-1
EXHIBIT IV
NATIONAL CITY MORTGAGE LOAN SCHEDULE
[Please see the Free Writing Prospectus filed and accepted by the Securities and
Exchange Commission on January 31, 2007, with a filing date of January 31, 2007
and accession number 001379402-07-000012.]
IV-1
EXHIBIT V
BANA MORTGAGE LOAN SCHEDULE
[Please see the Free Writing Prospectus filed and accepted by the Securities and
Exchange Commission on January 31, 2007, with a filing date of January 31, 2007
and accession number 001379402-07-000012.]
V-1
