Exhibit
4.2
MORTGAGE
LOAN PURCHASE AGREEMENT
This
Mortgage Loan Purchase Agreement (this “ Agreement
”), dated May 30, 2008, is between Banc of America
Funding Corporation, a Delaware corporation (the “
Purchaser
”) and Bank of America, National Association, a national
banking association (the “ Seller
”).
WHEREAS,
pursuant to (i) that certain Master Mortgage Loan Purchase and
Servicing Agreement, dated as of April 1, 2003, by and between
Seller (as successor in interest to Banc of America Mortgage
Capital Corporation (“ BAMCC
”)), as purchaser, and Countrywide Home Loans, Inc.
(“Countrywide”), as seller, (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 and (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 (collectively, the “
Countrywide
Agreements ”), the Seller purchased the Mortgage
Loans listed on Exhibit I
hereto (the “ Countrywide
Mortgage Loans ”) from Countrywide and
Countrywide currently services such Mortgage
Loans;
WHEREAS,
pursuant to (i) that certain Flow Sale and Servicing
Agreement, dated as of January 1, 2005, by and between the
Seller, as purchaser, and GreenPoint Mortgage Funding, Inc.
(“ GreenPoint
”), as seller, (ii) that certain Amendment No. 1, dated
as of May 1, 2005, by and between the Seller and GreenPoint,
(iii) that certain Regulation AB Compliance Addendum to the
Flow Sale and Servicing Agreements, dated as of January 1,
2006, by and between the Seller and GreenPoint and (iv) that
certain Memorandum of Sale, dated June 8, 2007, by and between
the Seller and GreenPoint (collectively, the “
GreenPoint
Agreements ”), the Seller purchased the Mortgage
Loans listed on Exhibit
II hereto (the “ GreenPoint
Mortgage Loans ”) from GreenPoint and GreenPoint
currently services the 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 Wells
Fargo Bank, National Association (“ Wells Fargo
Bank ”) (the “May MSWSA”), (ii) that
certain Second Amended and Restated Master Mortgage Loan
Purchase Agreement, dated as of May 1, 2006, by and between
the Seller and Wells Fargo Bank (the “May MMLPA”),
(iii) that certain Assignment and Conveyance Agreement (WFHM
2006-W39), dated as of June 27, 2006 by and between the Seller
and Wells Fargo Bank; (iv) that certain Assignment and
Conveyance Agreement (WFHM 2006-W46), dated as of June 28,
2006 by and between the Seller and Wells Fargo Bank; (v) that
certain Assignment and Conveyance Agreement (WFHM 2006-W105),
dated as of December 18, 2006 by and between the Seller and
Wells Fargo Bank; (vi) that certain Assignment and Conveyance
Agreement (WFHM 2006-W113), dated as of December 20, 2006 by
and between the Seller and Wells Fargo Bank; (vii) that
certain Assignment and Conveyance Agreement (WFHM 2007-W05),
dated as of February 20, 2007 by and between the Seller and
Wells Fargo Bank; (viii) that certain Assignment and
Conveyance Agreement (WFHM
2007-W07),
dated as of March 22, 2007 by and between the Seller and Wells
Fargo Bank; and (ix) that certain Assignment and Conveyance
Agreement (WFHM 2007-W13), dated as of April 25, 2007 by and
between the Seller and Wells Fargo Bank, and together with the
May MSWSA and the May MMLPA, the “ Wells Fargo Bank
Agreements ”), the Seller purchased the Mortgage
Loans attached on Exhibit
III (the “ Wells Fargo Bank
Mortgage Loans ”) from Wells Fargo Bank and Wells
Fargo Bank currently services the Mortgage Loans;
WHEREAS,
pursuant to (i) that certain Master Seller’s Warranties
and Servicing Agreement, dated as of September 1, 2003, by and
between Seller (as successor in interest to BAMCC, as
purchaser, and National City Mortgage, as seller (as amended
by (a) that certain Amendment No. 1, dated as of July 1, 2004,
by and among BAMCC, National City Mortgage and the Seller, (b)
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, (c) that certain Amendment No. 2, dated as of
October 1, 2004, by and between National City Mortgage and the
Seller, (d) that certain Amendment No. 3, dated as of August
11, 2005, by and between National City Mortgage and the
Seller, and (e) 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 (ii) that certain
Assignment, Assumption and Recognition Agreement, dated August
21, 2007, among Branch Banking and Trust Company, the Seller
and National City Mortgage (collectively, the “
National City
Agreements ”), the Seller purchased the Mortgage
Loans attached on Exhibit
IV (the “ National City
Mortgage Loans ”) from National City Mortgage and
National City Mortgage currently services the Mortgage
Loans;
WHEREAS,
pursuant to (i) that certain Flow Sale and Servicing
Agreement, dated as of February 1, 2004, by and between the
Seller (as successor in interest to BAMCC) and SunTrust
Mortgage Inc. (“ SunTrust
” and, together with Countrywide, GreenPoint, WMB, and
Wells Fargo Bank, the “ Underlying
Transferors ”) (as amended by (a) that certain
Amendment No. 1, dated as of June 1, 2004, by and between the
Seller and SunTrust, (b) that certain Master Assignment,
Assumption and Recognition Agreement, dated September 1, 2004,
by and among BAMCC, SunTrust, the Seller and Wachovia Bank,
(c) that certain Amendment No. 2, dated as of November 1,
2004, by and between the Seller and SunTrust, and (d) that
certain Regulation AB Compliance Addendum to the Flow Sale and
Servicing Agreement, dated as of January 1, 2006, by and
between the Seller and SunTrust), (ii) that certain
Memorandum of Sale, dated June 8, 2007, by and between the
Seller and SunTrust and (iii) that certain Memorandum of Sale,
dated July 9, 2007, by and between the Seller and SunTrust
(collectively, the “ SunTrust
Agreements ” and, together with the Countrywide
Agreements, the GreenPoint Agreements and the Wells Fargo Bank
Agreements, the “ Transfer
Agreements ”), the Seller purchased the mortgage
loans listed on Exhibit V
hereto (the “ SunTrust
Mortgage Loans ” and, together with the
Countrywide Mortgage Loans, the GreenPoint Mortgage Loans, and
the Wells Fargo Bank Mortgage Loans, the “ Assigned
Mortgage Loans ”) from SunTrust;
WHEREAS,
the Seller is the owner of the mortgage loans listed on
Exhibit
VI (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 May 30, 2008 (the “ Pooling and
Servicing Agreement ”), among the Purchaser, as
depositor, U.S. Bank National Association, as trustee (the
“ Trustee
”), and LaSalle Bank National Association, as securities
administrator (the “ Securities
Administrator ”) and as master servicer (the
“ Master
Servicer ”), the Purchaser will convey the
Mortgage Loans to Banc of America Funding 2008-1 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 2008-1
(the “ Certificates
”) or, if not defined therein, in the underwriting agreement,
dated May 30, 2008 (the “ Underwriting
Agreement ”), between the Purchaser and Banc of
America Securities LLC, or in the purchase agreement, dated May 30,
2008 (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 $232,519,583.96
(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), 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 (i) any fees payable by a
Mortgagor for the right to cancel any portion of principal or
interest of a BPP Mortgage Loan and (ii) any of the rights the
Seller may have with respect to premium recapture or purchase
price protection). The Purchaser hereby directs the
Seller, and the Seller hereby agrees, to deliver to the
Trustee all documents, instruments and agreements required to
be delivered by the Purchaser to the Trustee under the Pooling
and Servicing Agreement and such other documents, instruments
and agreements as the Purchaser or the Trustee shall
reasonably request.
3.
Representations and Warranties as to the Assigned Mortgage
Loans . The representations and warranties with
respect to the Assigned Mortgage Loans in the related Transfer
Agreement were made as of the date specified in such Transfer
Agreement. The Seller’s right, title and interest
in such representations and warranties and the remedies in
connection therewith have been assigned to the Purchaser pursuant
to (a) that certain Assignment, Assumption and Recognition
Agreement, dated May 30, 2008, by and among the Seller, the
Purchaser, the Trustee and Countrywide Home Loans, Inc., and
Countrywide Home Loans Servicing LP; (b) that certain
Assignment, Assumption and Recognition Agreement, dated May 30,
2008, by and among the Seller, the Purchaser, the Trustee and
GreenPoint Mortgage Funding, Inc.; (c) that certain
Assignment, Assumption and Recognition Agreement, dated May 30,
2008, by and among the Seller, the Purchaser, the Trustee and
National City Mortgage Co.; (d) that certain Assignment, Assumption
and Recognition Agreement, dated May 30, 2008, by and among the
Seller, the Purchaser, the Trustee and SunTrust Mortgage, Inc.; and
(e) those certain Assignment, Assumption and Recognition
Agreements, each dated May 30, 2008, by and among the Seller, the
Purchaser, the Trustee and Wells Fargo Bank. To the
extent that any fact, condition or event with respect to a Mortgage
Loan constitutes a breach of both (i) a representation or warranty
of an Underlying Transferor or the applicable originator under the
related Transfer Agreement or related underlying sale agreement and
(ii) a representation or warranty of the Seller under this
Agreement, the only right or remedy of the Purchaser shall be the
right to enforce the obligations of the related Underlying
Transferor or applicable originator under any applicable
representation or warranty made by the related Underlying
Transferor or applicable originator. The Purchaser
acknowledges and agrees that the representations and warranties of
the Seller in this Section 3 are applicable only to facts,
conditions or events that do not constitute a breach of any
representation or warranty made by an Underlying Transferor in the
related Transfer Agreement or applicable originator in the related
underlying sale agreement. The Seller shall have no
obligation or liability with respect to any breach of a
representation or warranty made by it with respect to the Mortgage
Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by an
Underlying Transferor in the related Transfer Agreement or
applicable originator in the related underlying sale agreement
(other than with respect to the representations or warranties in
Section 3(k), to the extent such representations and warranties
relate to predatory or abusive lending and the representations and
warranties in Section 3(p) below), without regard to whether such
Underlying Transferor or applicable originator fulfills its
contractual obligations in respect of such representation or
warranty. Subject to the foregoing, the Seller
represents and warrants with respect to the Assigned Mortgage
Loans, or each Assigned Mortgage Loan, as the case may be, as of
the date hereof or such other date set forth herein, that as of the
Closing Date:
(a)
The
information set forth with respect to the Assigned Mortgage Loans
on the mortgage loan schedules attached hereto as Exhibit I ,
Exhibit
II , Exhibit III ,
Exhibit
IV and Exhibit V (the
“ Assigned Mortgage
Loan Schedules ”) provides an accurate listing of the
Assigned Mortgage Loans, and the information with respect to each
Assigned Mortgage Loan on the related Assigned Mortgage Loan
Schedule is true and correct in all material respects at the date
or dates respecting which such information is given;
(b)
No
Assigned Mortgage Loan is more than 30 days delinquent as of the
Cut-off Date. The Seller has not waived any default,
breach, violation or event of acceleration, and the Seller has not
taken any action to waive any default, breach, violation or even of
acceleration, with respect to any Assigned Mortgage
Loan;
(c)
There
are no delinquent taxes, assessments that could become a lien prior
to the related Mortgage or insurance premiums affecting the related
Mortgaged Property;
(d)
With
respect to each Assigned Mortgage Loan, the related Mortgage has
not been satisfied, canceled, subordinated or rescinded, in whole
or in part, and the related Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part, nor
has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, rescission or
release;
(e)
With
respect to each Assigned Mortgage Loan, there is no material
default, breach, violation or event of acceleration existing under
any Mortgage or the related Mortgage Note and no event which, with
the passage of time or with notice and the expiration of any grace
or cure period, would constitute a material default, breach,
violation or event of acceleration, and neither the Seller nor its
predecessors have waived any material default, breach, violation or
event of acceleration;
(f)
With
respect to each Assigned Mortgage Loan, the related Mortgaged
Property is free of material damage that would affect adversely the
value of the Mortgaged Property as security for the Assigned
Mortgage Loan or the use for which the premises were
intended;
(g)
With
respect to each Assigned Mortgage Loan, to the best of the
Seller’s knowledge, there is no proceeding pending for the
total or partial condemnation of the Mortgaged
Property;
(h)
With
respect to each Assigned Mortgage Loan, the related Mortgaged
Property is lawfully occupied under applicable law; all
inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of each Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy, have been
made or obtained from the appropriate authorities, except where the
failure would not have a material adverse effect upon the Assigned
Mortgage Loan;
(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 §
1.860G-2;
(k)
Any
and all requirements of any federal, state or local law including,
without limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protections, all applicable predatory
and abusive lending laws, equal credit opportunity or disclosure
laws (inclusive of prepayment charges) applicable to the
origination and servicing of each Assigned Mortgage Loan have been
complied with;
(l)
Except
with respect to each Assigned Mortgage Loan for which the related
Mortgage is recorded in the name of MERS, the Seller is the sole
owner of record and holder of the Assigned Mortgage
Loan. With respect to each Assigned Mortgage Loan, the
related Mortgage Note and the Mortgage are not assigned or pledged,
and the Seller has good and marketable title thereto and has full
right and authority to transfer and sell the Assigned Mortgage Loan
to the Purchaser. The Seller is transferring the
Assigned Mortgage Loan free and clear of any and all encumbrances,
liens, pledges, equities, participation interests, claims,
agreements with other parties to sell or otherwise transfer the
Assigned Mortgage Loan, charges or security interests of any nature
encumbering such Assigned Mortgage Loan;
(m)
With
respect to each Assigned Mortgage Loan, the terms of the Mortgage
Note and Mortgage have not been impaired, waived, altered or
modified in any respect, except by a written instrument which has
been recorded, if necessary, to protect the interests of the
Purchaser and maintain the lien priority of the Mortgage and which
has been delivered to the Purchaser or its designee. The
substance of any such waiver, alteration or modification has been
approved by the title insurer, to the extent required by the
policy, and its terms are reflected on the related Assigned
Mortgage Loan Schedule. No instrument of waiver,
alteration or modification has been executed, and no Mortgagor has
been released, in whole or in part, except in connection with an
assumption agreement approved by the title insurer, to the extent
required by the policy, and which assumption agreement is part of
the Mortgage File delivered to the Purchaser or its designee and
the terms of which are reflected on the related Assigned Mortgage
Loan Schedule;
(n)
The
Seller has not dealt with any broker, investment banker, agent or
other Person (other than the Purchaser and Banc of America
Securities LLC) who may be entitled to any commission or
compensation in connection with the sale of the Assigned Mortgage
Loans;
(o)
No
Assigned Mortgage Loan is a “high cost” loan as defined
under any federal, state or local law applicable to such Assigned
Mortgage Loan at the time of its origination;
(p)
No
Assigned Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in S&P’s
LEVELS® Glossary, which is now Version 6.3 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;
(q)
The
hazard insurance policy on each Assigned Mortgage Loan has been
validly issued and is in full force and effect, and will be in full
force and effect and inure to the benefit of the Purchaser upon the
consummation of the transactions contemplated by this
Agreement;
(r)
With
respect to each Assigned Mortgage Loan, each Mortgage evidences a
valid, subsisting, enforceable and perfected first lien on the
related Mortgaged Property (including all improvements on the
Mortgaged Property). The lien of the Mortgage is subject
only to: (1) liens of current real property taxes and assessments
not yet due and payable and, if the related Mortgaged Property is a
condominium unit, any lien for common charges permitted by statute,
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording of such Mortgage acceptable to mortgage lending
institutions in the area in which the related Mortgaged Property is
located and specifically referred to in the lender’s title
insurance policy or attorney’s opinion of title and abstract
of title delivered to the originator of such Mortgage Loan, and (3)
such other matters to which like properties are commonly subject
which do not, individually or in the aggregate, materially
interfere with the benefits of the security intended to be provided
by the Mortgage. Any security agreement, chattel
mortgage or equivalent document related to, and delivered to the
Trustee in connection with, a Mortgage Loan establishes a valid,
subsisting and enforceable first lien on the property described
therein and the Seller has, and the Purchaser will have, the full
right to sell and assign the same to the Trustee;
(s)
With
respect to any Assigned Mortgage Loan covered by a title insurance
policy, the originator is the sole insured of such mortgagee title
insurance policy, such mortgagee title insurance policy is in full
force and effect and will inure to the benefit of the Purchaser
upon the consummation of the transactions contemplated by this
Agreement, no claims have been made under such mortgagee title
insurance policy and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything that
would impair the coverage of such mortgagee title insurance policy;
and
(t)
With
respect to each Assigned Mortgage Loan, there are no
mechanics’ or similar liens or claims which have been filed
for work, labor or material (and no rights are outstanding that
under the law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage.
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
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