EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (the "Agreement"), dated
September
28, 2006, is between Banc of America Funding Corporation, a
Delaware corporation
(the "Purchaser") and Bank of America, National Association, a
national banking
association (the "Seller").
WHEREAS, pursuant to (a) that certain Master Flow Sale and
Servicing
Agreement, dated as of August 1, 2003, by and between the Seller
(as successor
in interest to Banc of America Mortgage Capital Corporation
("BAMCC")), as
purchaser, and GMAC Mortgage Corporation ("GMACM"), as seller, (b)
that certain
Global Amendment to Sale and Servicing Agreements, dated as of
September 1,
2005, by and among GMACM, BAMCC and the Seller, (c) that certain
Regulation AB
Compliance Addendum to the Master Flow Sale and Servicing
Agreement, dated as of
January 1, 2006, by and between GMACM and the Seller, and (d) that
certain
Assignment and Conveyance Agreement, dated as of May 15, 2006, by
and between
GMACM and the Seller (collectively, the "GMAC Agreements"), the
Seller purchased
the mortgage loans listed on Exhibit I (the "GMAC Mortgage Loans")
from GMACM
and GMACM currently services the GMAC Mortgage Loans;
WHEREAS, pursuant to (a) the Mortgage Loan Purchase, Warranties and
Servicing Agreement, dated as of January 1, 2005, by and between
Seller, as
purchaser, and Chase Home Finance LLC ("CHF"), as seller and as
servicer, and
(b) the Assignment, Assumption and Recognition Agreement, dated
June 30, 2006,
among J.P. Morgan Mortgage Acquisition Corp., the Seller, JPMorgan
Chase Bank,
National Association ("Chase Bank") and CHF (collectively, the
"Chase
Agreements," which are attached hereto as Exhibit II), the Seller
purchased the
mortgage loans listed on Exhibit III attached hereto (the "Chase
Mortgage
Loans") from Chase Bank and CHF, and Chase Bank currently services
the Chase
Mortgage Loans;
WHEREAS, pursuant to (a) 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 Co.
("National City Mortgage"), as seller, (b) that certain Amendment
No. 1, dated
as of July 1, 2004, by and among BAMCC, National City Mortgage and
the Seller,
(c) 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, (d) that certain Amendment No.
2, dated as
of October 1, 2004, by and between National City Mortgage and the
Seller, (e)
that certain Amendment No. 3, dated as of August 11, 2005, by and
between
National City Mortgage and the Seller, (f) that certain Regulation
AB Compliance
Addendum to the Master Seller's Warranties and Servicing Agreement,
dated as of
January 1, 2006, by and between National City Mortgage and the
Seller, and (g)
that certain Assignment, Assumption and Recognition Agreement,
dated as of May
30, 2006, by and among UBS, the Seller and National City Mortgage
(collectively,
the "National City Agreements"), the Seller purchased the mortgage
loans listed
on Exhibit IV (the "National City Mortgage Loans") from National
City and
National City currently services the National City Mortgage Loans;
WHEREAS, pursuant to (a) that certain Standard Terms and Provisions
of Sale
and Servicing Agreement, dated as of November 1, 2004, by and
between the
Seller, as purchaser, and Residential Funding Corporation ("RFC"),
as seller,
(b) that certain Regulation AB Compliance Addendum, dated as of
January 1, 2006,
by and between RFC and the Seller, and (c) that certain Reference
Agreement,
dated as of June 1, 2006, by and between RFC and the Seller
(collectively, the
"RFC Agreements"), the Seller purchased the mortgage loans listed
on Exhibit V
(the "RFC Mortgage Loans") from RFC and RFC currently services the
RFC Mortgage
Loans;
WHEREAS, pursuant to (a) that certain Flow Sale and Servicing
Agreement,
dated as of February 1, 2004, by and between Seller (as successor
in interest to
BAMCC), as purchaser, and SunTrust Mortgage, Inc. ("SunTrust"), as
seller, (b)
that certain Amendment No. 1, dated as of June 1, 2004, by and
between the
Seller and SunTrust, (c) that certain Master Assignment, Assumption
and
Recognition Agreement, dated September 1, 2004, by and among BAMCC,
SunTrust,
the Seller and Wachovia Bank, National Association, (d) that
certain Amendment
No. 2, dated as of November 1, 2004, by and between the Seller and
SunTrust, (e)
that certain Regulation AB Compliance Addendum to the Flow Sale and
Servicing
Agreement, dated as of January 1, 2006, by and between the Seller
and SunTrust,
(f) that certain Memorandum of Sale, dated as of May 25, 2006, by
and between
the Seller and SunTrust, (g) that certain Memorandum of Sale, dated
as of June
9, 2006, by and between the Seller and SunTrust, and (h) that
certain Memorandum
of Sale, dated as of July 25, 2006, by and between the Seller and
SunTrust
(collectively, the "SunTrust Agreements"), the Seller purchased the
mortgage
loans listed on Exhibit VI (the "SunTrust Mortgage Loans") from
SunTrust and
SunTrust currently services the SunTrust Mortgage Loans;
WHEREAS, pursuant to (a) that certain Mortgage Loan Purchase and
Sale
Agreement (Amended and Restated), dated as of July 1, 2003, by and
among
Washington Mutual Bank fsb, Washington Mutual Bank ("WAMU") and
Seller (as
successor in interest to BAMCC), as purchaser (as amended by (I)
that certain
Master Assignment, Assumption and Recognition Agreement (the
"MAAR") dated as of
July 1, 2004, by and among BAMCC, the Seller and WAMU and (II) that
certain
Regulation AB Amendment to the Mortgage Loan Purchase and Sale
Agreement, dated
as of January 1, 2006, by and among Washington Mutual Bank fsb,
WAMU and
Seller), (b) the Servicing Agreement (Amended and Restated), dated
as of July 1,
2003, by and between the Seller and WAMU, as servicer (as amended
by (I) the
MAAR and (II) that certain Regulation AB Amendment to the Servicing
Agreement,
dated as of January 1, 2006, by and between WAMU and Seller), (c)
that certain
Term Sheet, dated as of May 24, 2006, by and between the Seller and
WAMU, (d)
that certain Term Sheet, dated as of June 21, 2006, by and between
the Seller
and WAMU, and (e) that certain Term Sheet, dated as of August 24,
2006, by and
between the Seller and WAMU (collectively, the "WAMU Agreements"),
the Seller
purchased the mortgage loans listed on Exhibit VII (the "WAMU
Mortgage Loans")
from WAMU on a servicing retained basis and WAMU currently services
the WAMU
Mortgage Loans;
WHEREAS, pursuant to (a) that certain Second Amended and Restated
Master
Seller's Warranties and Servicing Agreement, dated as of May 1,
2006, by and
between Seller, as purchaser, and Wells Fargo Bank, N.A. ("Wells
Fargo Bank"),
as seller and servicer, (b) that certain Second Amended and
Restated Master
Mortgage Loan Purchase Agreement, dated as of May 1, 2006, by and
between
Seller, as purchaser, and Wells Fargo Bank, as seller, and (c) that
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certain Assignment and Conveyance Agreement, dated as of May 24,
2006
(collectively, the "Wells Fargo Bank Agreements" and together with
the Chase
Agreements, the GMAC Agreements, the National City Agreements, the
RFC
Agreements, the SunTrust Agreements and the WAMU Agreements, the
"Transfer
Agreements") the Seller purchased the mortgage loans listed on
Exhibit VIII (the
"Wells Fargo Bank Mortgage Loans" and together with the National
City Mortgage
Loans, the SunTrust Mortgage Loans, the GMAC Mortgage Loans, the
RFC Mortgage
Loans, the Chase Mortgage Loans and the WAMU Mortgage Loans, the
"Assigned
Mortgage Loans") from Wells Fargo Bank and Wells Fargo Bank
currently services
the Wells Fargo Bank Mortgage Loans;
WHEREAS, the Seller is the owner of the mortgage loans listed on
Exhibit IX
(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; and
WHEREAS, the parties hereto desire that the Seller sell the
Mortgage Loans
to the Purchaser and the Purchaser purchase the Mortgage Loans from
the Seller
pursuant to the terms of this Agreement; and
WHEREAS, pursuant to the terms of a Pooling and Servicing
Agreement, dated
September 28, 2006 (the "Pooling and Servicing Agreement"), among
the Purchaser,
as depositor, U.S. Bank National Association, as trustee (the
"Trustee"),
CitiMortgage, Inc., as master servicer (the "Master Servicer") and
Wells Fargo
Bank, as securities administrator (the "Securities Administrator"),
the
Purchaser will convey the Mortgage Loans to Banc of America Funding
2006-5 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:
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1. Defined Terms. Terms used without definition herein shall have
the
respective meanings assigned to them in the Pooling and Servicing
Agreement
relating to the issuance of the Purchaser's Mortgage Pass-Through
Certificates,
Series 2006-5 (the "Certificates") or, if not defined therein, in
the
underwriting agreement dated September 27, 2006 (the "Underwriting
Agreement"),
between the Purchaser and Banc of America Securities LLC, or in the
purchase
agreement dated September 28, 2006 (the "Purchase Agreement"),
between the
Purchaser and Banc of America Securities LLC.
2. Purchase Price; Purchase and Sale. The Seller agrees to sell,
and the
Purchaser agrees to purchase, the Mortgage Loans. The purchase
price (the
"Purchase Price") for the Mortgage Loans shall consist of
$700,908,352.12
payable by the Purchaser to the Seller on the Closing Date in
immediately
available funds.
Upon payment of the Purchase Price, the Seller shall be deemed to
have
transferred, assigned, set over and otherwise conveyed to the
Purchaser all the
right, title and interest of the Seller in and to the Mortgage
Loans and all
Mortgage Files, including all interest and principal received or
receivable by
the Seller on or with respect to the Mortgage Loans after the
Cut-off Date (and
including scheduled payments of principal and interest due after
the Cut-off
Date but received by the Seller on or before the Cut-off Date and
Principal
Prepayments received or applied on the Cut-off Date, but not
including payments
of principal and interest due on the Mortgage Loans on or before
the Cut-off
Date), together with all of the Seller's rights, title and interest
in and to
all Mortgaged Property and any related title, hazard, primary
mortgage, mortgage
pool policy or other insurance policies including all income,
payments, products
and proceeds of any of the foregoing. The Purchaser hereby directs
the Seller,
and the Seller hereby agrees, to deliver to the Trustee all
documents,
instruments and agreements required to be delivered by the
Purchaser to the
Trustee under the Pooling and Servicing Agreement and such other
documents,
instruments and agreements as the Purchaser or the Trustee shall
reasonably
request.
3. Representations and Warranties as to the 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 September 28, 2006, by and among the
Seller, the
Purchaser, the Trustee, the Master Servicer, CHF and Chase Bank,
(ii) the
Assignment, Assumption and Recognition Agreement, dated September
28, 2006, by
and among the Seller, the Purchaser, the Trustee, the Master
Servicer and GMAC,
(iii) the Assignment, Assumption and Recognition Agreement, dated
September 28,
2006, by and among the Seller, the Purchaser, the Trustee, the
Master Servicer,
UBS Real Estate Securities Inc. and National City, (iv) the
Assignment,
Assumption and Recognition Agreement, dated September 28, 2006, by
and among the
Seller, the Purchaser, the Trustee, the Master Servicer and RFC,
(v) the
Assignment, Assumption and Recognition Agreement, dated September
28, 2006, by
and among the Seller, the Purchaser, the Trustee, the Master
Servicer and
SunTrust, (vi) the Assignment, Assumption and Recognition
Agreement, dated
September 28, 2006, by and among the Seller, the Purchaser, the
Trustee, the
Master Servicer and WAMU and (vii) the Assignment, Assumption and
Recognition
Agreement, dated September 28, 2006, by and among the Seller, the
Purchaser, the
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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 the Underlying Transferor under the
related
Transfer Agreement and (ii) a representation or warranty of the
Seller under
this Agreement, the only right or remedy of the Purchaser shall be
the right to
enforce the obligations of such Underlying Transferor under any
applicable
representation or warranty made by it. The Purchaser acknowledges
and agrees
that the representations and warranties of the Seller in this
Section 3 are
applicable only to facts, conditions or events that do not
constitute a breach
of any representation or warranty made by a Servicer in the related
Transfer
Agreements. The Seller shall have no obligation or liability with
respect to any
breach of a representation or warranty made by it with respect to
the Mortgage
Loans if the fact, condition or event constituting such breach also
constitutes
a breach of a representation or warranty made by a Servicer in the
related
Transfer Agreements (other than with respect to the representations
or
warranties in Section 3(k), to the extent such representations and
warranties
relate to predatory or abusive lending and the representations and
warranties in
Section 3(o) below), without regard to whether each Servicer
fulfills its
contractual obligations in respect of such representation or
warranty. Subject
to the foregoing, the Seller represents and warrants with respect
to the
Assigned Mortgage Loans, or each Assigned Mortgage Loan, as the
case may be, as
of the date hereof or such other date set forth herein, that as of
the Closing
Date:
(a) The information set forth with respect to the Mortgage Loans on
the mortgage loan schedules attached hereto as Exhibit I, Exhibit
III, Exhibit
IV, Exhibit V, Exhibit VI, Exhibit VII and Exhibit VIII (the
"Mortgage Loan
Schedules") provides an accurate listing of the Assigned Mortgage
Loans, and the
information with respect to each Assigned Mortgage Loan on the
related Mortgage
Loan Schedule is true and correct in all material respects at the
date or dates
respecting which such information is given;
(b) No Assigned Mortgage Loan is more than 30 days delinquent as of
the Cut-off Date. The Seller has not waived any default, breach,
violation or
event of acceleration, and the Seller has not taken any action to
waive any
default, breach, violation or even of acceleration, with respect to
any Assigned
Mortgage Loan;
(c) There are no delinquent taxes, assessments that could become a
lien prior to the related Mortgage or insurance premiums affecting
the related
Mortgaged Property;
(d) With respect to each Assigned Mortgage Loan, the related
Mortgage
has not been satisfied, canceled, subordinated or rescinded, in
whole or in
part, and the related Mortgaged Property has not been released from
the lien of
the Mortgage, in whole or in part, nor has any instrument been
executed that
would effect any such satisfaction, cancellation, subordination,
recission or
release;
(e) With respect to each Assigned Mortgage Loan, there is no
material
default, breach, violation or event of acceleration existing under
any Mortgage
or the related Mortgage Note and no event which, with the passage
of time or
with notice and the expiration of any grace or cure period, would
constitute a
material default, breach, violation or event of acceleration, and
neither the
Seller nor its predecessors have waived any material default,
breach, violation
or event of acceleration;
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(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 Section
1.860G-2;
(k) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate
settlement
procedures, consumer credit protections, all applicable predatory
and abusive
lending laws, equal credit opportunity or disclosure laws
applicable to the
origination and servicing of each 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 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,
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and which assumption agreement is part of the Mortgage File
delivered to the
Purchaser or its designee and the terms of which are reflected on
the related
Mortgage Loan Schedule;
(n) The Seller has not dealt with any broker, investment banker,
agent
or other Person (other than the Purchaser and Banc of America
Securities LLC)
who may be entitled to any commission or compensation in connection
with the
sale of the Assigned Mortgage Loans;
(o) No Assigned Mortgage Loan is a High Cost Loan or Covered Loan,
as
applicable (as such terms are defined in S&P's LEVELS(R)
Glossary, which is now
Version 5.7 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;
(r) With respect to any Assigned Mortgage Loan covered by a title
insurance policy, the originator is the sole insured of such
mortgagee title
insurance policy, such mortgagee title insurance policy is in full
force and
effect and will inure to the benefit of the Purchaser upon the
consummation of
the transactions contemplated by this Agreement, no claims have
been made under
such mortgagee title insurance policy and no prior holder of the
related
Mortgage, including the Seller, has done, by act or omission,
anything that
would impair the coverage of such mortgagee title insurance policy;
and
(s) With respect to each Assigned Mortgage Loan, there are no
mechanics' or similar liens or claims which have been filed for
work, labor or
material (and no rights are outstanding that under the law could
give rise to
such liens) affecting the related Mortgaged Property which are or
may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage.
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Notwithstanding the foregoing, with respect to the Assigned
Mortgage Loans,
no representations or warranties are made by the Seller as to the
environmental
condition of any related Mortgaged Property; the absence, presence
or effect of
hazardous wastes or hazardous substances on any related Mortgaged
Property; any
casualty resulting from the presence or effect of hazardous wastes
or hazardous
substances on, near or emanating from any related Mortgaged
Property; the impact
on Certificateholders of any environmental condition or presence of
any
hazardous substance on or near any related Mortgaged Property; or
the compliance
of any related Mortgaged Property with any environmental laws, nor
is any agent,
Person or entity otherwise affiliated with the Seller authorized or
able to make
any such representation, warranty or assumption of liability
relative to any
related Mortgaged Property. In addition, no representations or
warranties are
made by the Seller with respect to the absence or effect of fraud
in the
origination of any Assigned Mortgage Loan.
The Seller hereby agrees that any cure of a breach of such
representations
and warranties shall be in accordance with the terms of the Pooling
and
Servicing Agreement.
4. Representations and Warranties as to the BANA Mortgage Loans.
The Seller
hereby represents and warrants to the Purchaser with respect to the
BANA
Mortgage Loans or each BANA Mortgage Loan, as the case may be, as
of the date
hereof or such other date set forth herein that as of the Closing
Date:
(a) The information set forth in the mortgage loan schedule
attached
hereto as Exhibit IX (the "BANA Mortgage Loan Schedule") is true
and correct in
all material respects;
(b) There are no delinquent taxes, ground rents, governmental
assessments, insurance premiums, leasehold payments, including
assessments
payable in future installments or other outstanding charges,
affecting the lien
priority of the related Mortgaged Property (a "BANA Mortgaged
Property");
(c) The terms of the BANA Mortgage Notes and the related Mortgages
(each, a "BANA Mortgage") have not been impaired, waived, altered
or modified in
any respect, except by written instruments, recorded in the
applicable public
recording office if necessary to maintain the lien priority of the
BANA
Mortgage, and which have been delivered to the 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,
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counterclaim or defense, including the defense of usury and no such
right of
rescission, set-off, counterclaim or defense has been asserted with
respect
thereto;
(e) All buildings upon each BANA Mortgaged Property are insured by
an
insurer generally acceptable to prudent mortgage lending
institutions against
loss by fire, hazards of extended coverage and such other hazards
as are
customary in the area the related BANA Mortgaged Property is
located, pursuant
to insurance policies conforming to the requirements of Customary
Servicing
Procedures and the Pooling and Servicing Agreement. All such
insurance policies
contain a standard mortgagee clause naming the originator of the
BANA Mortgage
Loan, its successors and assigns as mortgagee and all premiums
thereon have been
paid. If the BANA Mortgaged Property is in an area identified on a
flood hazard
map or flood insurance rate map issued by the Federal Emergency
Management
Agency as having special flood hazards (and such flood insurance
has been made
available), a flood insurance policy meeting the requirements of
the current
guidelines of the Federal Insurance Administration is in effect
which policy
conforms to the requirements of FNMA or FHLMC. The BANA Mortgage
obligates the
mortgagor thereunder to maintain all such insurance at the
mortgagor's cost and
expense, and on the mortgagor's failure to do so, authorizes the
holder of the
BANA Mortgage to maintain such insurance at mortgagor's cost and
expense and to
seek reimbursement therefor from the mortgagor;
(f) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate
settlement
procedures, consumer credit protections, all applicable predatory
and abusive
lending laws, equal credit opportunity or disclosure laws
applicable to the
origination and servicing of BANA Mortgage Loans have been complied
with;
(g) No BANA Mortgage has been satisfied, canceled, subordinated or
rescinded, in whole or in part (other than as to Principal
Prepayments in full
which may have been received prior to the Closing Date), and no
BANA Mortgaged
Property has been released from the lien of the related BANA
Mortgage, in whole
or in part, nor has any instrument been executed that would effect
any such
satisfaction, cancellation, subordination, rescission or release;
(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
9
mortgage or equivalent document related to and delivered in
connection with the
BANA Mortgage Loan establishes and creates a valid, existing and
enforceable
first lien and first priority security interest on the property
described
therein and the Seller has the full right to sell and assign the
same to the
Purchaser;
(i) The BANA Mortgage Note and the related BANA Mortgage are
genuine
and each is the legal, valid and binding obligation of the maker
thereof,
enforceable in accordance with its terms except as enforceability
may be limited
by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium,
reorganization or other similar laws affecting the enforcement of
the rights of
creditors and (B) general principles of equity, whether enforcement
is sought in
a proceeding in equity or at law;
(j) All parties to the BANA Mortgage Note and the BANA Mortgage had
legal capacity to enter into the BANA Mortgage Loan and to execute
and deliver
the BANA Mortgage Note and the BANA Mortgage, and the BANA Mortgage
Note and the
BANA Mortgage have been duly and properly executed by such parties;
(k) The proceeds of the BANA Mortgage Loan have been fully
disbursed
to or for the account of the related BANA Mortgagor and there is no
obligation
for the mortgagee to advance additional funds thereunder and any
and all
requirements as to completion of any on-site or off-site
improvements and as to
disbursements of any escrow funds therefor have been complied with.
All costs,
fees and expenses incurred in making or closing the BANA Mortgage
Loan and the
recording of the BANA Mortgage have been paid, and the Mortgagor is
not entitled
to any refund of any amounts paid or due to the mortgagee pursuant
to the BANA
Mortgage Note or BANA Mortgage;
(l) To the best of the Seller's knowledge, all parties which have
had
any interest in the BANA Mortgage Loan, whether as mortgagee,
assignee, pledgee
or otherwise, are (or, during the period in which they held and
disposed of such
interest, were) in compliance with any and all applicable "doing
business" and
licensing requirements of the laws of the state wherein the BANA
Mortgaged
Property is located;
(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
10
not done, by act or omission, anything which would impair the
coverage of such
lender's title insurance policy;
(n) There is no default, breach, violation or event of acceleration
existing under the BANA Mortgage or the BANA Mortgage Note and no
event which,
with the passage of time or with notice and the expiration of any
grace or cure
period, would constitute a default, breach, violation or event of
acceleration,
and the Seller has not waived any default, breach, violation or
event of
acceleration;
(o) As of the date of origination of the BANA Mortgage Loan, there
were no mechanics' or similar liens or claims filed for work, labor
or material
(and no rights are outstanding that under law could give rise to
such lien)
affecting the relating BANA Mortgaged Property which are or may be
liens prior
to, or equal or coordinate with, the lien of the related BANA
Mortgage;
(p) All improvements which were considered in determining the
Appraised Value of the related BANA Mortgaged Property lay wholly
within the
boundaries and building restriction lines of the BANA Mortgaged
Property, and no
improvements on adjoining properties encroach upon the BANA
Mortgaged Property;
(q) The BANA Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or
similar institution which is supervised and examined by a federal
or state
authority, or by a mortgagee approved by the Secretary of Housing
and Urban
Development pursuant to sections 203 and 211 of the National
Housing Act;
(r) Principal payments on the BANA Mortgage Loan commenced no more
than sixty days after the proceeds of the BANA Mortgaged Loan were
disbursed.
The BANA Mortgage Loans are fixed-rate mortgage loans having an
original term to
maturity of not more than 30 years, with interest payable in
arrears on the
first day of the month. Each BANA Mortgage Note requires a monthly
payment which
is sufficient to fully amortize the original 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
11
proceeding and the related BANA Mortgagor has not filed for
protection under
applicable bankruptcy laws. There is no homestead or other
exemption or right
available to the BANA Mortgagor or any other person which would
interfere with
the right to sell the BANA Mortgaged Property at a trustee's sale
or the right
to foreclose the BANA Mortgage;
(u) With respect to the BANA Mortgage Loans, each BANA Mortgage
Note
and BANA Mortgage are on forms acceptable to FNMA or FHLMC;
(v) With respect to the BANA Mortgage Loans, the BANA Mortgage Note
is
not and has not been secured by any collateral except the lien of
the
corresponding BANA Mortgage on the BANA Mortgaged Property and the
security
interest of any applicable security agreement or chattel mortgage
referred to in
(h) above;
(w) Each appraisal of the related BANA Mortgaged Property is in a
form
acceptable to FNMA or FHLMC and such appraisal complies with the
requirements of
FIRREA, and was made and signed, prior to the approval of the BANA
Mortgage Loan
application, by an appraiser who met the qualifications of Fannie
Mae or Freddie
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
12
respect to all occupied portions of the BANA Mortgaged Property
and, with
respect to the use and occupancy of the same, including but not
limited to
certificates of occupancy, have been made or obtained from the
appropriate
authorities and (C) no improvement located on or part of the BANA
Mortgaged
Property is in violation of any zoning law or regulation;
(cc) With respect to each BANA Mortgage Loan, the related
Assignment
of Mortgage (except with respect to any BANA Mortgage that has been
recorded in
the name of MERS or its designee) is in recordable form and is
acceptable for
recording under the laws of the jurisdiction in which the related
BANA Mortgaged
Property is located;
(dd) All payments required to be made prior to the Cut-off Date for
such BANA Mortgage Loan under the terms of the BANA Mortgage Note
have been made
and no BANA Mortgage Loan has been more than 30 days delinquent
more than once
in the twelve month period immediately prior to the Cut-off Date;
(ee) With respect to each BANA Mortgage Loan, the Seller is in
possession of a complete BANA Mortgage File except for the
documents which have
been delivered to the Trustee or which have been submitted for
recording and not
yet returned;
(ff) Except with respect to each BANA Mortgage Loan for which the
related Mortgage is recorded in the name of MERS, immediately prior
to the
transfer and assignment contemplated herein, the Seller was the
sole owner of
record and holder of the BANA Mortgage Loan. With respect to the
BANA Mortgage
Loans, the BANA Mortgage Loans were not assigned or pledged by the
Seller and
the Seller had good and marketable title thereto, and the Seller
had full right
to transfer and sell the BANA Mortgage Loans to the Trustee free
and clear of
any encumbrance, participation interest, lien, equity, pledge,
claim or security
interest and had full right and authority subject to no interest or
participation in, or agreement with any other party to sell or
otherwise
transfer the BANA Mortgage Loans;
(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
13
lessee upon foreclosure or assignment in lieu of foreclosure or
provide the
holder of the BANA Mortgage with substantially similar protections;
(3) the
terms of such lease do not (a) allow the termination thereof upon
the lessee's
default without the holder of the BANA Mortgage being entitled to
receive
written notice of, and opportunity to cure, such default, (b) allow
the
termination of the lease in the event of damage or destruction as
long as the
BANA Mortgage is in existence, (c) prohibit the holder of the BANA
Mortgage from
being insured (or receiving proceeds of insurance) under the hazard
insurance
policy or policies relating to the BANA Mortgaged Property or (d)
permit any
increase in the rent other than pre-established increases set forth
in the
lease; (4) the original term of such lease in not less than 15
years; (5) the
term of such lease does not terminate earlier than five years after
the maturity
date of the BANA Mortgage Note; and (6) the BANA Mortgaged Property
is located
in a jurisdiction in which the use of leasehold estates in
transferring
ownership in residential properties is a widely accepted practice;
(jj) With respect to each BANA Mortgage Loan, the related BANA
Mortgaged Property is located in the state identified in the BANA
Mortgage Loan
Schedule and consists of a parcel of real property with a detached
single family
residence erected thereon, or a two- to four-family dwelling, or an
individual
condominium unit, or an individual unit in a planned unit
development, or, in
the case of BANA Mortgage Loans secured by Cooperative Stock,
leases or
occupancy agreements; provided, however, that any condominium
project or planned
unit development generally conforms with the applicable
underwriting guidelines
regarding such dwellings, and no residence or dwelling is a mobile
home or a
manufactured dwelling;
(kk) The Seller used no adverse selection procedures in selecting
the
BANA Mortgage Loan for inclusion in the Trust Estate;
(ll) Each BANA Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code;
(mm) With respect to each BANA Mortgage where a lost note affidavit
has been delivered to the Trustee in place of the related BANA
Mortgage Note,
the related BANA Mortgage Note is no longer in existence;
(nn) No BANA Mortgage Loan is a "high cost" loan as defined under
any
federal, state or local law applicable to such BANA Mortgage Loan
at the time of
its origination; and
(oo) No BANA Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then current S&P's
LEVELS(R)
Glossary, which is now Version 5.7 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.
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,
14
near or emanating from any BANA Mortgaged Property; the impact on
Certificateholders of any environmental condition or presence of
any hazardous
substance on or near any BANA Mortgaged Property; or the compliance
of any BANA
Mortgaged Property with any environmental laws, nor is any agent,
Person or
entity otherwise affiliated with the Seller authorized or able to
make any such
representation, warranty or assumption of liability relative to any
BANA
Mortgaged Property. In addition, no representations or warranties
are made by
the Seller with respect to the absence or effect of fraud in the
origination of
any BANA Mortgage Loan.
It is understood and agreed that the representations and warranties
set
forth in this Section shall survive delivery of the respective BANA
Mortgage
Files to the Trustee or the Custodian and shall inure to the
benefit of the
Trustee, notwithstanding any restrictive or qualified endorsement
or assignment.
5. No Broker's Fees. The Seller hereby represents and warrants to
the
Purchaser that the Seller has not dealt with any broker, investment
banker,
agent or other Person (other than the Purchaser and Banc of America
Securities
LLC) who may be entitled to any commission or compensation in
connection with
the sale of the Mortgage Loans.
6. Repurchase or Substitution. Upon discovery by the Seller, the
Purchaser,
the Trustee or any assignee, transferee or designee of the Trustee
of a missing
or defective document in the Mortgage File, as provided in Section
2 of this
Agreement or the Pooling and Servicing Agreement or a breach of any
of the
representations and warranties set forth in Section 3 and Section 4
(to the
extent provided therein) that materially and adversely affects the
value of any
Mortgage Loan or the interest therein of the Purchaser or the
Purchaser's
assignee, the party discovering such breach shall give prompt
written notice to
the others. Within 90 days after the earlier of the Seller's
discovery or
receipt of notification of such missing or defective document or
breach of a
representation and warranty (notwithstanding the Seller's lack of
knowledge with
respect to the substance of such representation and warranty), the
Seller shall
promptly cure such breach in all material respects, or in the event
such missing
or defective document or breach 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
15
costs and damages incurred by the Purchaser as a result of the
violation of such
law; provided that, with respect to any Assigned Mortgage Loan, the
Seller has
no obligation to reimburse the Purchaser for any such costs and
damages that are
reimbursed by a Servicer.
The Purchaser acknowledges and agrees that it shall have no rights
against the Seller under this Section 6, except with respect to the
preceding
paragraph, if the breach of any representation or warranty also
constitutes a
breach of a representation or warranty made by a Servicer under the
related
Transfer Agreement, but shall instead enforce its rights against
such Servicer.
7. Underwriting.
(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) 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 the first Business Day of each calendar month, the "significance
estimate" of
each Yield Maintenance Agreement calculated in accordance with Item
1115 of
Regulation AB as of the last Business Day of the immediately
preceding calendar
month.
8. Costs. The Purchaser shall pay all expenses incidental to the
performance of its obligations under the Underwriting Agreement and
the Purchase
Agreement, including without limitation (i) any recording fees or
fees for title
policy endorsements and continuations, (ii) the expenses of
preparing, printing
and reproducing the Prospectus, the Prospectus Supplement, the
Underwriting
Agreement, the Private Placement Memorandum, the Purchase
Agreement, the Pooling
and Servicing Agreement and the Certificates and (iii) the cost of
delivering
the Certificates to the offices of or at the direction of Banc of
America
Securities LLC insured to the satisfaction of Banc of America
Securities LLC.
9. Notices. All demands, notices and communications hereunder shall
be in
writing, shall be effective only upon receipt and shall, if sent to
the
Purchaser, be addressed to it at Banc of America Funding
Corporation, 214 North
Tryon Street, Charlotte, North Carolina, 28255, 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, 100 North Tryon
Street, Charlotte,
North Carolina, 28255, 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.
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
16
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/ Scott Evans
------------------------------------
Name: Scott Evans
Title: Senior Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION
By: /s/ Bruce W. Good
------------------------------------
Name: Bruce W. Good
Title: Principal
[Signature Page to the BAFC 2006-5 Mortgage Loan Purchase
Agreement]
EXHIBIT I
GMAC MORTGAGE LOAN SCHEDULE
[Please see Exhibit D to Exhibit 4.1 of this Form 8-K]
I-1
EXHIBIT II
CHASE AGREEMENTS
II-1
EXECUTION VERSION
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated June 30, 2006, (the
"Agreement") among J.P. Morgan Mortgage Acquisition Corp.,
("Assignor"), Bank of
America, National Association, ("Assignee"), JPMorgan Chase Bank,
National
Association ("JPM" and a "Company") and Chase Home Finance LLC
("CHF" and a
"Company" and together with JPM the "Companies"):
RECITALS
The Assignor and the Companies are parties to that certain Flow
Mortgage Loan Purchase, Warranties and Servicing Agreement, dated
as of May 1,
2004, as amended by Amendment No. 1, dated as of January 1, 2005,
Amendment No.
2, dated as of December 1, 2005, Amendment Reg AB, dated as of
January 1, 2006
and as amended from time to time (the "Purchase, Warranties and
Servicing
Agreement"), which is attached hereto as Exhibit A;
The Assignor desires to grant, transfer and assign to the Assignee
all of the right, title and interest of Assignor, as Purchaser, in,
to and under
(a) those certain Mortgage Loans listed on Exhibit B attached
hereto (the
"Mortgage Loans") and (b) the Purchase, Warranties and Servicing
Agreement with
respect to the Mortgage Loans;
CHF and the Assignee are parties to that certain Mortgage Loan
Purchase, Warranties and Servicing Agreement (the "MLPWA"), dated
as of January
1, 2005, and JPM, CHF and the Assignee are parties to that certain
Amendment Reg
AB (the "Amendment Reg AB") dated as of January 1, 2006, each as
amended from
time to time, which are attached hereto as Exhibit C and the terms
of which are
incorporated by reference for the purposes provided herein and made
a part
hereof;
The Assignor and the Companies have agreed to make certain
representations and warranties with respect to the Mortgage Loans
in accordance
with the MLPWA; and
The Assignee desires that JPM service the Mortgage Loans in
accordance with terms of the MLPWA;
Accordingly, for and in consideration of the sum of TEN DOLLARS
($10.00) and other valuable consideration, the receipt and
sufficiency of which
hereby are acknowledged, and of the mutual covenants herein
contained, the
parties hereto hereby agree as follows:
I.
Assignment.
(a)
The Assignor hereby grants, transfers and assigns to
Assignee all of the right, title and interest of Assignor, as
Purchaser,
in, to and under (i) the Mortgage Loans and (ii) the Purchase,
Warranties
and Servicing Agreement, with respect to the Mortgage Loans. The
Assignee
shall be entitled to all scheduled payments due on the Mortgage
Loans
after June 1, 2006 (the "Assigned Loans Cut-off Date") and all
unscheduled
payments or other proceeds or other recoveries on the Mortgage
Loans
received on and after the Assigned Loans Cut-off Date.
(b)
The Assignor specifically reserves and does not assign to
the Assignee hereunder any and all right, title and interest in, to
and
under and all obligations of the Assignor with respect to any
mortgage
loans subject to the Purchase, Warranties and Servicing Agreement
which
are not the Mortgage Loans set forth on Exhibit B attached hereto
and are
not the subject of this Agreement.
II.
Assignor Representations and Warranties. The Assignor
warrants and represents to, and covenants with, the Assignee that:
(a)
The Assignor is a corporation duly organized, validly
existing and in good standing under the laws of Delaware and has
all
licenses necessary to carry out its business as now being
conducted, and
is licensed and qualified to transact business in each state in
which any
Mortgaged Property is located or is otherwise exempt under
applicable law
from such licensing or qualification or is otherwise not required
under
applicable law to effect such licensing or qualification and no
demand for
such licensing or qualification has been made upon such Assignor by
any
such state, and in any event such Assignor is in compliance with
the laws
of any such state to the extent necessary to ensure the
enforceability of
each Mortgage Loan;
(b)
The Assignor has the full power and authority and legal
right to hold, transfer and convey each Mortgage Loan, to sell each
Mortgage Loan and to execute, deliver and perform, and to enter
into and
consummate all transactions contemplated by this Agreement and to
conduct
its business as presently conducted, has duly authorized the
execution,
delivery and performance of this Agreement and any agreements
contemplated
hereby, has duly executed and delivered this Agreement, and any
agreements
contemplated hereby, and this Agreement constitutes a legal, valid
and
binding obligation of the Assignor, enforceable against it in
accordance
with its terms, and all requisite corporate action has been taken
by the
Assignor to make this Agreement and all agreements contemplated
hereby
valid and binding upon the Assignor in accordance with their terms;
(c)
None of the execution and delivery of this Agreement, the
sale of the Mortgage Loans to the Assignee, the consummation of the
transactions contemplated hereby, or the fulfillment of or
compliance with
the terms and conditions of this Agreement will conflict with any
of the
terms, conditions or provisions of the Assignor's charter or by
laws or
materially conflict with or result in a material breach of any of
the
terms, conditions or provisions of any legal restriction or any
agreement
or instrument to which the Assignor is now a party or by which it
is
bound, or constitute a default or result in an acceleration under
any of
the foregoing, or result in the material violation of any law,
rule,
regulation, order, judgment or decree to which the Assignor or its
property is subject or impair the ability of the Assignee to
realize on
the Mortgage Loans or impair the value of the Mortgage Loans;
2
(d)
There is no litigation, suit, proceeding or investigation
pending or threatened, or any order or decree outstanding, with
respect to
the Assignor which is reasonably likely to have a material adverse
effect
on the sale of the Mortgage Loans, the execution, delivery,
performance or
enforceability of this Agreement, or which is reasonably likely to
have a
material adverse effect on the financial condition of the Assignor;
(e)
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Assignor of or compliance by the Assignor with
this
Agreement, except for consents, approvals, authorizations and
orders which
have been obtained;
(f)
The consummation of the transactions contemplated by this
Agreement is in the ordinary course of business of the Assignor,
and the
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Assignor pursuant to this Agreement are not
subject to
bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction;
(g)
The Assignor used no adverse selection procedures in
selecting from among the outstanding first lien residential
mortgage loans
owned by it which were available for inclusion in the sale to
Assignee;
(h)
The Assignor will treat the sale of the Mortgage Loans to
the Assignee as a sale for reporting and accounting purposes and,
to the
extent appropriate, for federal income tax purposes;
(i)
The Assignor does not believe, nor does it have any cause or
reason to believe, that it cannot perform each and every covenant
contained in this Agreement. The Assignor is solvent and the sale
of the
Mortgage Loans will not cause the Assignor to become insolvent. The
sale
of the Mortgage Loans is not undertaken with the intent to hinder,
delay
or defraud any of the Assignor's creditors;
(j)
The Assignor has not dealt with any broker, investment
banker, agent or other person that may be entitled to any
commission or
compensation in connection with the sale of the Mortgage Loans;
(k)
No statement, tape, diskette, form, report or other document
(the "Delivered Items") prepared by, or on behalf of, Assignor
(other than
Delivered Items prepared by or on behalf of the Companies) pursuant
to
this Agreement or in connection with the transactions contemplated
hereby,
contains or will contain any statement that is or will be
inaccurate or
misleading in any material respect; and
(l)
(i) attached hereto as Exhibit A is a true, accurate and
complete copy of the Purchase, Warranties and Servicing Agreement,
(ii)
such agreement is in full force and effect as of the date hereof,
(iii)
such agreement has not been amended or modified in
3
any respect and (iv) no notice of termination has been given to
such party
under such agreement.
III.
Holding Period Representations and Warranties.
(a)
The Assignor further warrants and represents to the Assignee
that with respect to each of the Mortgage Loans, each
representation and
warranty set forth in Section 3.02 of the MLPWA is deemed to be
made as of
the date hereof and is true and correct in all material respects
with
respect to the period of time (in each case the "Holding Period")
following the date on which each Company sells the Mortgage Loans
to the
Assignor, which shall be such dates as noted on Exhibit B (the
"Company
Closing Date") up to and including the date on which the Assignor
assigns
the Mortgage Loans to the Assignee, which shall be June 30, 2006
(the
"Assignment Closing Date"), but only to the extent that such
representation or warranty was true and correct when made by the
Companies
on the applicable Company Closing Date. In the event that the
Assignee or
the Assignor discovers a breach of a representation or warranty
with
respect to a Mortgage Loan arising during the related Holding
Period,
which materially and adversely affects the value of such Mortgage
Loan or
the interest of the Assignee therein, the party discovering such
breach
shall give prompt written notice to the other parties hereto and
provide
the Assignor with evidence of such breach, and the Assignor shall
have 90
days following the discovery or receipt of notice of such breach in
which
to cure such breach or repurchase the affected Mortgage Loan.
Subject to
subparagraph (b) below, if the Assignor is unable to cure such
breach,
then the Assignor shall promptly repurchase each affected Mortgage
Loan at
the Repurchase Price (as defined below). For purposes of making
certain
representations and warranties contemplated in this section, each
reference in Section 3.02 of the MLPWA (i) to the "Cut-off Date"
shall be
deemed to be a reference to the Assigned Loans Cut-off Date, (ii)
to the
"Mortgage Loan Schedule" shall be deemed to be a reference to
Exhibit B
attached hereto and (iii) to the "Closing Date" shall be deemed to
be a
reference to the date hereof.
(b)
The "Repurchase Price" with respect to any affected Mortgage
Loan shall be an amount equal to (a) the Purchase Price Percentage,
multiplied by the outstanding principal balance of such affected
Mortgage
Loan as of the date of such repurchase, plus (b) accrued and unpaid
interest on such affected Mortgage Loan to but not including the
date of
such repurchase, less (c) the amount of any unreimbursed principal
or
interest advances, if any, owed to the servicer with respect to
such
Mortgage Loan; provided, however, that in the event such breach
constitutes a breach of Section 3.02(uu) of the MLPWA, then the
Repurchase
Price shall also include any costs and damages incurred by the
Assignor or
its assigns as a result of such breach. The Repurchase Price shall
be paid
by the Assignor by wire transfer to the Assignee to an account
designated
by the Assignee. The "Purchase Price Percentage" shall be the
percentage
set forth in that certain Purchase Price and Terms Letter dated as
of May
24, 2006 between the Assignor and the Assignee (the "PPTL").
(c)
Contemporaneously with the Assignor's repurchase of any
affected Mortgage Loan (each, a "Repurchased Mortgage Loan") from
the
Assignee pursuant to
4
subparagraph (b) above, the Assignee shall reconvey such
Repurchased
Mortgage Loan to the Assignor by delivering to the Assignor or the
Assignor's designee, the mortgage note endorsed in blank, the
mortgage,
the assignment of mortgage in blank and such other documents
delivered to
the Assignee in connection with the Assignee's purchase thereof,
and by
executing an assignment and assumption agreement, conveying the
Assignee's
rights to such Repurchased Mortgage Loan and any related rights
under the
Purchase, Warranties and Servicing Agreement to which such Mortgage
Loan
is subject and under this Agreement. In the event of a repurchase,
the
Companies shall service such Repurchased Mortgage Loan in
accordance with
the terms of the Purchase, Warranties and Servicing Agreement from
the
date of the repurchase. In such event, the Assignee hereby agrees
to
reassign the Purchase, Warranties and Servicing Agreement to the
Assignor
with respect to such Repurchased Mortgage Loan and the Assignor
shall
succeed to the rights of the Assignee to enforce the obligations of
the
Companies, as applicable, to cure such breach or repurchase such
Mortgage
Loan under the terms of the Purchase, Warranties and Servicing
Agreement
with respect to such Repurchased Mortgage Loan.
IV.
Assignee Representations and Warranties. The Assignee
warrants and represents to, and covenants with, the Assignor and
each Company
that:
(a)
The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of the Purchase, Warranties and
Servicing
Agreement and the Mortgage Loans, and from and after the date
hereof, the
Assignee assumes for the benefit of each of the Companies and the
Assignor
all of the Assignor's obligations as Purchaser thereunder, with
respect to
the Mortgage Loans;
(b)
The Assignee understands that the Mortgage Loans have not
been registered under the 1933 Act or the securities laws of any
state;
(c)
The purchase price being paid by the Assignee for the
Mortgage Loans is in excess of $250,000 and will be paid by cash
remittance of the full purchase price within sixty (60) days of the
sale;
(d)
The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person;
(e)
The Assignee considers itself a substantial, sophisticated
institutional investor having such knowledge in financial and
business
matters that it is capable of evaluating the merits and the risks
of
investment in the Mortgage Loans;
(f)
The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the
Assignor or
the Companies;
(g)
Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Mortgage
Loans, an interest in the Mortgage Loans or any other similar
security to,
or solicited any offer to buy or accept a
5
transfer, pledge or other disposition of the Mortgage Loans, any
interest
in the Mortgage Loans or any other similar security from, or
otherwise
approached or negotiated with respect to the Mortgage Loans, any
interest
in the Mortgage Loans or any other similar security with, any
person in
any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action which
would
constitute a distribution of the Mortgage Loans under the 1933 Act
or
which would render the disposition of the Mortgage Loans a
violation of
Section 5 of the 1933 Act or require registration pursuant thereto,
nor
will it act, nor has it authorized or will it authorize any person
to act,
in such manner with respect to the Mortgage Loans; and
(h)
Either: (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee
Retirement
Income Security Act of 1974, as amended ("ERISA") or a plan (also
"Plan")
within the meaning of section 4975(e)(1) of the Internal Revenue
Code of
1986 ("Code"), and the Assignee is not directly or indirectly
purchasing
the Mortgage Loans on behalf of, investment manager of, as named
fiduciary
of, as trustee of, or with assets of, a Plan; or (2) the Assignee's
purchase of the Mortgage Loans will not result in a prohibited
transaction
under section 406 of ERISA or section 4975 of the Code.
V.
Company Representations and Warranties.
(a)
Each Company hereby makes the representations and warranties
set forth in Sections 3.01 and 3.02 of the MLPWA as of the
applicable
Company Closing Date. The Assignee shall be entitled to all of the
rights
and remedies of the Purchaser (as defined in the MLPWA) under the
MLPWA
for a breach of any of the representations and warranties made by
each
Company herein.
(b)
Each Company represents and warrants to the Assignee that
(i) attached hereto as Exhibit A is a true, accurate and complete
copy of
the Purchase, Warranties and Servicing Agreement, (ii) such
agreement is
in full force and effect as of the date hereof, (iii) such
agreement has
not been amended or modified in any respect and (iv) no notice of
termination has been given to such party under such agreement.
VI.
Servicing. JPM hereby agrees that from and after the
Assignment Closing Date it shall note the transfer of the
applicable Mortgage
Loans to the Assignee in its books and records and service the
applicable
Mortgage Loans in accordance with the terms of the MLPWA (including
without
limitation Articles IV through XII as they relate to the servicing
and
reconstitution of the Mortgage Loans). The Assignee shall be
entitled to all of
the rights and remedies of the Purchaser (as defined in the MLPWA)
under the
MLPWA for any failure of JPM to service the Mortgage Loans in
accordance with
the terms of the MLPWA. The Assignee, JPM or CHF hereby agree that
from and
after the Assignment Closing Date, such parties will be bound by
the Amendment
Reg AB with respect to the Mortgage Loans and the Amendment Reg AB
shall be
applicable to the Mortgage Loans. The Assignee shall be entitled to
all of its
rights and remedies under the Amendment Reg AB for any failure of
JPM or CHF to
perform under the Amendment Reg AB with respect to the Mortgage
Loans and JPM or
CHF shall be entitled to all of the rights and remedies of such
respective party
under the Amendment Reg AB for any failure
6
of the Assignee to perform under the Amendment Reg AB with respect
to the
Mortgage Loans. An account has been established as a Custodial
Account pursuant
to Section 4.04 of the MLPWA, designated as "Chase Home Finance
LLC, as
subservicer for JPMorgan Chase Bank, National Association, in trust
for Bank of
America, National Association, owner of various whole loan series
P&I." Another
separate account has been established as an Escrow Account pursuant
to Section
4.06 of the MLPWA, designated as "Chase Home Finance LLC, as
subservicer for
JPMorgan Chase Bank, National Association, in trust for Bank of
America,
National Association, owner of various whole loan series and
various mortgagors
T&I."
VII.
Delivery of the Mortgage Files. The parties hereby agree
that the Companies are required to deliver the mortgage files with
respect to
the Mortgage Loans in accordance with the terms of the Purchase,
Warranties and
Servicing Agreement; provided, however, that the Companies agree
that they will
deliver the mortgage files with respect to the Mortgage Loans in
accordance with
the terms of the MLPWA within thirty (30) days following the
applicable Company
Closing Date (the "Document Delivery Period"). To the extent that
the Companies
fail to deliver the mortgage files to the Assignee as required by
the end of the
Document Delivery Period, then the Assignee shall be entitled to
all the rights
and remedies of the Purchaser (as defined in the MLPWA) under the
MLPWA.
VIII.
No Waiver. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing
and signed
by the party against whom such waiver or modification is sought to
be enforced.
IX.
Assignment. This Agreement shall inure to the benefit of the
successors and assigns of the parties hereto. Any entity into which
Assignor,
Assignee or any Company may be merged or consolidated shall,
without the
requirement for any further writing, be deemed Assignor, Assignee
or a Company,
respectively, hereunder.
X.
Survival. Each of this Agreement, the Purchase, Warranties
and Servicing Agreement and the MLPWA shall survive the conveyance
of the
Mortgage Loans and the assignment of the Purchase, Warranties and
Servicing
Agreement (to the extent assigned hereunder) by Assignor to
Assignee.
XI.
Counterparts. This Agreement may be executed simultaneously
in any number of counterparts. Each counterpart shall be deemed to
be an
original and all such counterparts shall constitute one and the
same instrument.
XII.
Conflicts. In the event that any of the provisions of this
Agreement, the Purchase, Warranties and Servicing Agreement or the
MLPWA
conflict, the agreements shall control in the following order of
priority:
first, the terms of this Agreement, second, the terms of the MLPWA
and third,
the terms of the Purchase, Warranties and Servicing Agreement.
XIII.
Defined Terms. Except as expressly provided in the
succeeding sentence, capitalized terms used in this Agreement
(including the
exhibits hereto) but not defined in this Agreement shall have the
meanings given
to such terms in the Purchase, Warranties and Servicing Agreement.
To the extent
that provisions of the MLPWA are referred to or
7
incorporated by reference herein, all capitalized terms used
therein and defined
therein shall be deemed incorporated herein as well.
XIV.
Joint and Several. Each Company shall be jointly and
severally liable for the full, complete and punctual performance
and
satisfaction of all obligations of either Company under this
Agreement.
Accordingly, each Company waives any and all notice of creation,
renewal,
extension or accrual of any of the obligations and notice of or
proof of
reliance by the Assignor or the Assignee upon such Company's joint
and several
liability. Each Company waives diligence, presentment, protest,
demand for
payment and notice of default or nonpayment to or upon such Company
with respect
to the obligations. When pursuing its rights and remedies hereunder
against
either Company, the Assignor or the Assignee may, but shall be
under no
obligation, to pursue such rights and remedies hereunder against
either Company
or any other Person or against any collateral security for the
obligations or
any right of offset with respect thereto, and any failure by the
Assignor or the
Assignee to pursue such other rights or remedies or to collect any
payments from
such Company or any such other Person to realize upon any such
collateral
security or to exercise any such right of offset, or any release of
such Company
or any such other Person or any such collateral security, or right
of offset,
shall not relieve such Company of any liability hereunder, and
shall not impair
or affect the rights and remedies, whether express, implied or
available as a
matter of law, of the Assignor or the Assignee against such
Company.
XV.
CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS
OF LAW PRINCIPLES, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
XVI.
Notices. Addresses for purposes of all notices and
correspondence related to the Mortgage Loans and this Agreement is:
In the case of the Assignor:
J.P. Morgan Mortgage Acquisition Corp.
270 Park Avenue
6th Floor
New York, New York 10017
Attention: Jonathan Davis
Telephone: 212-834-3850
Facsimile: 212-834-6591
With a copy to:
JPMorgan Chase & Co.
270 Park Avenue
New York, New York 10017
Attention: General Counsel's Office
8
In the case of the Assignee:
Bank of America, National Association
Hearst Tower
NCI-027-21-04
214 North Tryon Street, 21st Floor
Charlotte, NC
28255
Attention: Managing Director
In the case of JPM:
JPMorgan Chase Bank, National Association
300 Tice Boulevard
Woodcliff Lake, NJ 07677
Attention: Michael D. Katz
With copy to:
General Counsel
JPMorgan Chase Bank, National Association
194 Wood Ave.
Iselin, NJ 08830
In the case of CHF:
300 Tice Boulevard
Woodcliff Lake, NJ 07677
Attention: Michael D. Katz
With copy to:
General Counsel
Chase Home Finance LLC
194 Wood Avenue
Iselin, NJ 08830
[Signature Page Follows]
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first
above written.
--------------------------------------------------------------------------------
J.P. Morgan Mortgage Acquisition Corp.
Bank of America, National Association
--------------------------------------------------------------------------------
By: /s/ Brian L. Simons
By: /s/ Bruce W. Good
Its: Vice President
Its: Vice President
--------------------------------------------------------------------------------
Taxpayer Identification
Taxpayer Identification
Number: 45-0483381
Number: 94-1687665
--------------------------------------------------------------------------------
JPMorgan Chase Bank, National Association
Chase Home Finance LLC
By: /s/ Bruce J. Friedman
By: /s/ Bruce J. Friedman
Its: Vice President
Its: Senior Vice President
Taxpayer Identification
Taxpayer Identification
Number:______________________________
Number:______________________________
--------------------------------------------------------------------------------
EXHIBIT A
to Assignment and Assumption Agreement
FLOW MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT
EXHIBIT B
to Assignment and Assumption Agreement
FINAL LIST OF MORTGAGE LOANS
EXHIBIT C
to Assignment and Assumption Agreement
MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT
EXHIBIT D
to Assignment and Assumption Agreement
ASSIGNEE'S WIRE TRANSFER INSTRUCTIONS
BANK OF AMERICA, NATIONAL ASSOCIATION
Purchaser,
CHASE HOME FINANCE LLC,
Seller and Servicer
MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT
Dated as of January 1, 2005
Whole Loan Series 2005 WL-B
-2-
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01.
Defined
Terms...........................................................1
ARTICLE II
SERVICING OF MORTGAGE LOANS; RECORD TITLE AND POSSESSION OF
MORTGAGE FILES; BOOKS AND RECORDS; CUSTODIAL AGREEMENT; DELIVERY
OF MORTGAGE LOAN DOCUMENTS
Section 2.01.
Agreement to
Purchase..................................................12
Section 2.02.
Purchase
Price.........................................................12
Section 2.03.
Servicing of Mortgage
Loans............................................13
Section 2.04.
Record Title and Possession of Mortgage Files;
Maintenance of Servicing
Files........................................13
Section 2.05.
Books and
Records......................................................14
Section 2.06.
Transfer of Mortgage
Loans.............................................15
Section 2.07.
Delivery of Mortgage Loan
Documents....................................15
Section 2.08.
Quality Control
Procedures.............................................17
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER; REPURCHASE; REVIEW
OF MORTGAGE LOANS
Section 3.01.
Representations and Warranties of the
Seller...........................17
Section 3.02.
Representations and Warranties as to Individual Mortgage
Loans.........19
Section 3.03.
Repurchase;
Substitution...............................................29
ARTICLE IV
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 4.01.
Seller to Act as
Servicer..............................................31
Section 4.02.
Collection of Mortgage Loan
Payments...................................34
Section 4.03.
Realization Upon Defaulted Mortgage
Loans..............................34
Section 4.04.
Establishment of Custodial Accounts; Deposits in Custodial
Accounts....35
Section 4.05.
Permitted Withdrawals From the Custodial
Account.......................36
Section 4.06.
Establishment of Escrow Accounts; Deposits in Escrow
Accounts..........37
Section 4.07.
Permitted Withdrawals From Escrow
Account..............................38
i
Section 4.08.
Payment of Taxes, Insurance and Other Charges; Maintenance
of Primary Mortgage Insurance Policies; Collections
Thereunder........39
Section 4.09.
Transfer of
Accounts...................................................40
Section 4.10.
Maintenance of Hazard
Insurance........................................40
Section 4.11.
Maintenance of Mortgage Impairment Insurance
Policy....................41
Section 4.12.
Fidelity Bond, Errors and Omissions
Insurance..........................41
Section 4.13.
Title, Management and Disposition of REO
Property......................42
Section 4.14.
Notification of Maturity
Date..........................................44
Section 4.15.
Reports of Foreclosures and Abandonments of Mortgaged
Property.........44
Section 4.16.
Inspections............................................................44
Section 4.17.
Restoration of Mortgaged
Property......................................44
Section 4.18.
Security Measures/Compliance with Safeguarding Customer
Information
Requirements..............................................45
Section 4.19.
Disaster Recovery/Business Continuity
Plan.............................45
Section 4.20.
Privacy/Confidential
Information.......................................45
ARTICLE V
PAYMENTS TO THE PURCHASER
Section 5.01.
Distributions..........................................................46
Section 5.02.
Statements to the
Purchaser............................................47
Section 5.03.
Monthly Advances by the
Seller.........................................47
Section 5.04.
Liquidation
Reports....................................................48
Section 5.05.
Automated Servicing
Systems............................................48
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01.
Assumption
Agreements..................................................48
Section 6.02.
Satisfaction of Mortgages and Release of Mortgage
Files................49
Section 6.03.
Servicing
Compensation.................................................50
Section 6.04.
Annual Statement as to
Compliance......................................50
Section 6.05.
Annual Independent Certified Public
Accountants' Servicing Report.....51
Section 6.06.
Purchaser's Right to Examine Seller
Records............................52
Section 6.07.
Compliance with REMIC
Provisions.......................................52
ARTICLE VII
SELLER TO COOPERATE
Section 7.01.
Seller Shall Provide Information as Reasonably
Required................52
Section 7.02.
Cooperation with Third-party Service
Providers.........................53
ii
ARTICLE VIII
THE SELLER
Section 8.01.
Indemnification; Third Party
Claims....................................54
Section 8.02.
Merger or Consolidation of the
Seller..................................54
Section 8.03.
Limitation on Liability of the Seller and
Others.......................55
Section 8.04.
Seller Not to Assign or
Resign.........................................55
Section 8.05.
No Transfer of
Servicing...............................................55
ARTICLE IX
DEFAULT
Section 9.01.
Events of
Default......................................................56
Section 9.02.
Waiver of
Defaults.....................................................57
ARTICLE X
TERMINATION
Section 10.01.
Termination............................................................58
Section 10.02.
Termination Without
Cause..............................................58
ARTICLE XI
RECONSTITUTION OF MORTGAGE LOANS
Section 11.01.
Reconstitution of Mortgage
Loans.......................................58
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01.
Successor to the
Seller................................................60
Section 12.02.
Amendment..............................................................61
Section 12.03.
Recordation of
Agreement...............................................61
Section 12.04.
Governing
Law..........................................................61
Section 12.05.
Notices................................................................61
Section 12.06.
Severability of
Provisions.............................................62
Section 12.07.
Exhibits...............................................................62
Section 12.08.
General Interpretive
Principles........................................63
Section 12.09.
Reproduction of
Documents..............................................63
Section 12.10.
Confidentiality of
Information.........................................63
Section 12.11.
Recordation of Assignments of
Mortgage.................................64
iii
Section 12.12.
Assignment by
Purchaser................................................64
Section 12.13.
No
Partnership.........................................................64
Section 12.14.
Execution; Successors and
Assigns......................................65
Section 12.15.
Entire
Agreement.......................................................65
Section 12.16.
No
Solicitation........................................................65
Section 12.17.
Further
Agreements.....................................................65
Section 12.18.
Closing................................................................65
Section 12.19.
Costs..................................................................66
iv
EXHIBITS
A
Contents of Mortgage File
B
Custodial Account Letter Agreement
C
Escrow Account Letter Agreement
D
Form of Assignment and Assumption
E
Pool Statistics
F
Mortgage Loan Schedule
G
Request for Release of Documents and Receipt
H
Form of SEC Certification
I
Monthly Remittance Advice
J
Servicer Requirements
SCHEDULES
A
Purchase Price and Terms Letter dated as of December 2, 2004
v
This is a Mortgage Loan Purchase, Warranties and Servicing
Agreement,
dated as of January 1, 2005, and is executed between Bank of
America, National
Association, as Purchaser (the "Purchaser"), and Chase Home Finance
LLC (the
"Seller"), as seller and servicer.
W I T N E S S E T H :
WHEREAS, the Purchaser has heretofore agreed to purchase from the
Seller
and the Seller has heretofore agreed to sell to the Purchaser
certain Mortgage
Loans, exclusive of the servicing rights associated with such
Mortgage Loans,
pursuant to the terms of a letter agreement dated as of December 2,
2004, by and
between the Seller and the Purchaser (the "Purchase Price and Terms
Letter").
WHEREAS, each of the Mortgage Loans is secured by a mortgage, deed
of
trust or other security instrument creating a first lien on a
residential
dwelling located in the jurisdiction indicated on the Mortgage Loan
Schedule,
which is annexed hereto as Exhibit F; and
WHEREAS, the Purchaser and the Seller wish to prescribe the
representations and warranties of the Seller with respect to itself
and the
Mortgage Loans and the management, servicing, transfer and control
of the
Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set
forth, and for other good and valuable consideration, the receipt
and adequacy
of which is hereby acknowledged, the Purchaser and the Seller agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.01.
Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless
the context otherwise requires, shall have the following meanings
specified in
this Article:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those
mortgage servicing practices (including collection procedures) of
prudent
mortgage banking institutions which service mortgage loans of the
same type as
such Mortgage Loan in the jurisdiction where the related Mortgaged
Property is
located, that comply with applicable federal, state and local laws
and which are
in accordance with FNMA servicing practices and procedures, for MBS
pool
mortgages, as defined in the FNMA Guides including future updates.
Agreement: This Mortgage Loan Purchase, Warranties and Servicing
Agreement
including all exhibits hereto, amendments hereof and supplements
hereto.
ALTA: The American Land Title Association or any successor thereto.
Applicable Requirements: Shall mean and include with respect to the
Mortgage Loans: (i) all contractual obligations of Seller, and the
Originator
and any Prior Servicers including,
without limitation, those contractual obligations contained in this
Agreement,
in any agreement with any insurer or in the Mortgage Loan
Documents; (ii) all
applicable federal, state and local legal and regulatory
requirements (including
statutes, rules, regulations and ordinances) binding upon Seller,
the Originator
and any Prior Servicer; (iii) all other applicable requirements and
guidelines
of each governmental agency, board, commission, instrumentality and
other
governmental body or office having jurisdiction, including without
limitation
those of any insurer; (iv) all other applicable judicial and
administrative
judgments, orders, stipulations, awards, writs and injunctions; and
(v) Accepted
Servicing Practices.
Appraised Value: With respect to any Mortgaged Property, the lesser
of (i)
the value thereof as determined by an appraisal made for the
Originator of the
Mortgage Loan at the time of origination of the Mortgage Loan and
(ii) the
purchase price paid for the related Mortgaged Property by the
Mortgagor with the
proceeds of the Mortgage Loan, provided, however, in the case of a
Refinanced
Mortgage Loan, such value of the Mortgaged Property is based solely
upon the
value determined by an appraisal made for the originator of such
Refinanced
Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer
or equivalent instrument, in recordable form, sufficient under the
laws of the
jurisdiction wherein the related Mortgaged Property is located to
reflect of
record the sale or transfer of the Mortgage Loan.
Assignment and Assumption: An assignment and assumption agreement
in the
form of Exhibit D hereto.
BIF: The Bank Insurance Fund, or any successor thereto.
Business Day: Any day other than: (i) a Saturday or Sunday, or (ii)
a
legal holiday in the State of New York, or (iii) a day on which
banks in the
State of New York are authorized or obligated by law or executive
order to be
closed.
Closing Date: January 26, 2005, or such other date as shall be
mutually
agreed upon by the parties hereto.
Code: The Internal Revenue Code of 1986, as amended, or any
successor
statute thereto.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged
Property, whether permanent or temporary, partial or entire, by
exercise of the
power of eminent domain or condemnation, to the extent not required
to be
released to a Mortgagor in accordance with the terms of the related
Mortgage
Loan Documents.
Consumer Information: Information including but not limited to all
personal information about the Mortgagors that is supplied to the
Seller on
behalf of the Mortgagors.
Co-op Lease: With respect to a Co-op Loan, the lease with respect
to a
dwelling unit occupied by the Mortgagor and relating to the stock
allocated to
the related dwelling unit.
2
Co-op Loan: A Mortgage Loan secured by the pledge of stock
allocated to a
dwelling unit in a residential cooperative housing corporation and
a collateral
assignment of the related Co-op Lease.
Custodial Account: Each separate demand account or accounts created
and
maintained pursuant to Section 4.04 which shall be entitled "Chase
Home Finance
LLC In Trust For Bank of America, National Association owner of
various whole
loan series P&I" and shall be established in an Eligible
Account, in the name of
the Person that is the Purchaser with respect to the related
Mortgage Loans.
Cut-off Date: January 1, 2005.
Determination Date: The 15th day (or if such 15th day is not a
Business
Day, the Business Day immediately preceding such 15th day) of the
month of the
related Remittance Date.
Due Date: The day of the month on which the Monthly Payment is due
on a
Mortgage Loan, exclusive of any days of grace.
Due Period: With respect to any Remittance Date, the period
commencing on
the second day of the month preceding the month of such Remittance
Date and
ending on the first day of the month of such Remittance Date.
Eligible Account: An account established and maintained: (a) within
FDIC
insured accounts (or other accounts with comparable insurance
coverage
acceptable to the Rating Agencies) created, maintained and
monitored by the
Seller so that all funds deposited therein are fully insured, (b)
with the
corporate trust department of a financial institution assigned one
of the two
highest long-term debt ratings and the highest short term debt
rating of each
Rating Agency, and, if ownership of the Mortgage Loans is evidenced
by mortgaged
backed securities, the equivalent ratings of the Rating Agencies,
and held such
that the rights of the Purchaser and the owner of the Mortgage
Loans shall be
fully protected against the claims of any creditors of the Seller
and of any
creditors or depositors of the institution in which such account is
maintained
and (c) in a separate non-trust account without FDIC or other
insurance in an
Eligible Institution. In the event that a Custodial Account is
established
pursuant to clause (b) or (c) of the preceding sentence, the Seller
shall
provide the Purchaser with written notice on the Business Day
following the date
on which the applicable institution fails to meet the applicable
ratings
requirements.
Eligible Institution: An institution having (i) the highest
short-term
debt rating, and one of the two highest long-term debt ratings of
each Rating
Agency; (ii) with respect to any Custodial Account, an unsecured
long-term debt
rating of at least one of the two highest unsecured long-term debt
ratings of
the Rating Agencies; or (iii) acceptable as a depository to FNMA or
FHLMC under
their respective Guides.
Equity Take-Out Refinanced Mortgage Loan: A Refinanced Mortgage
Loan the
proceeds of which were in excess of the outstanding principal
balance of the
existing mortgage loan.
3
Escrow Account: Each separate trust account or accounts created and
maintained pursuant to Section 4.06 which shall be entitled "Chase
Home Finance
LLC In Trust For Bank of America, National Association owner of
various whole
loan series and various mortgagors T&I" and shall be
established in an Eligible
Account, in the name of the Person that is the Purchaser with
respect to the
related Mortgage Loans.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer
rents,
municipal charges, mortgage insurance premiums, fire and hazard
insurance
premiums, condominium charges, and any other payments required to
be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any
other document.
Event of Default: Any one of the conditions or circumstances
enumerated in
Section 9.01.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, commonly
referred to as
Freddie Mac, or any successor thereto.
FHLMC Guide: The FHLMC Single Family Seller/Servicer Guide and all
amendments or additions thereto.
Fidelity Bond: A fidelity bond to be maintained by the Seller
pursuant to
Section 4.12.
FIRREA: The Financial Institutions Reform, Recovery, and
Enforcement Act
of 1989.
First Remittance Date: February 18, 2005, or if such day is not a
Business
Day, the first Business Day immediately preceding such date.
FNMA: The Federal National Mortgage Association, commonly referred
to as
Fannie Mae, or any successor thereto.
FNMA Guides: The FNMA Sellers' Guide and the FNMA Servicers' Guide
and all
amendments or additions thereto.
GAAP: Generally accepted accounting principles, consistently
applied.
Guidelines: The FNMA Sellers' Guide, the FNMA Servicers' Guide and
the
FHLMC Single Family Seller/Servicer Guide.
HUD: The United States Department of Housing and Urban Development
or any
successor thereto.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related
Mortgaged Property.
4
Liquidation Proceeds: Cash received in connection with the
liquidation of
a defaulted Mortgage Loan, whether through the sale or assignment
of such
Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or
the sale of the
related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction
of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio
of the original outstanding principal amount of the Mortgage Loan,
to (i) the
Appraised Value of the Mortgaged Property at origination with
respect to a
Refinanced Mortgage Loan, and (ii) the lesser of the Appraised
Value of the
Mortgaged Property at origination or the purchase price of the
Mortgaged
Property with respect to all other Mortgage Loans.
Manufactured Home: A single family residential unit that is
constructed in
a factory in sections in accordance with the Federal Manufactured
Home
Construction and Safety Standards adopted on July 15, 1976, by the
Department of
Housing and Urban Development ("HUD Code"), as amended in 2000,
which preempts
state and local building codes. Each unit is identified by the
presence of a HUD
Plate/Compliance Certificate label. The sections are then
transported to the
site and joined together and affixed to a pre-built permanent
foundation (which
satisfies the manufacturer's requirements and all state, county,
and local
building codes and regulations). The manufactured home is built on
a
non-removable, permanent frame chassis that supports the complete
unit of walls,
floors, and roof. The underneath part of the home may have running
gear (wheels,
axles, and brakes) that enable it to be transported to the
permanent site. The
wheels and hitch are removed prior to anchoring the unit to the
permanent
foundation. The manufactured home must be classified as real estate
and taxed
accordingly.
Monthly Advance: The aggregate of the advances made by the Seller
on any
Remittance Date pursuant to Section 5.03.
Monthly Payment: The scheduled monthly payment of principal and
interest
on a Mortgage Loan which is payable by a Mortgagor under the
related Mortgage
Note.
Monthly Remittance Advice: The report delivered by the Seller to
the
Purchaser pursuant to Section 5.02 of this Agreement in the form
annexed hereto
as Exhibit I.
Mortgage: With respect to a Mortgage Loan that is not a Co-op Loan,
the
mortgage, deed of trust or other instrument securing a Mortgage
Note which
creates a first lien on an unsubordinated estate in fee simple in
real property
securing the Mortgage Note. With respect to a Co-op Loan, the
security agreement
creating a security interest in the stock allocated to a dwelling
unit in the
residential cooperative housing corporation that was pledged to
secure such
Co-op Loan and the related Co-op Lease.
Mortgage File: The mortgage documents pertaining to a particular
Mortgage
Loan which are specified in Exhibit A hereto and any additional
documents
required to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Impairment Insurance Policy: A mortgage impairment or
blanket
hazard insurance policy as required by Section 4.11.
5
Mortgage Interest Rate: The annual rate at which interest accrues
on any
Mortgage Loan in accordance with the provisions of the related
Mortgage Note.
Mortgage Loan: An individual Mortgage Loan which is the subject of
this
Agreement, each Mortgage Loan originally sold and subject to this
Agreement
being identified on the Mortgage Loan Schedule, which Mortgage Loan
includes
without limitation the Mortgage File, the Monthly Payments,
Principal
Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds,
REO Disposition Proceeds, and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan,
excluding
replaced or repurchased Mortgage Loans.
Mortgage Loan Documents: The documents listed in numbers 1 through
9, 16
and 23 on Exhibit A.
Mortgage Loan Remittance Rate: With respect to each Mortgage Loan,
the
annual rate of interest remitted to the Purchaser, which shall be
equal to the
Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: The schedule of Mortgage Loans annexed
hereto as
Exhibit F, such schedule setting forth the following information
with respect to
each Mortgage Loan in the related Mortgage Loan Package:
(1)
the Seller's Mortgage Loan identifying number;
(2)
the Mortgagor's name;
(3)
the street address of the Mortgaged Property including the city,
state and zip code;
(4)
a code indicating whether the Mortgaged Property is owner-occupied,
a second home or an investor property;
(5)
the type of residential property constituting the Mortgaged
Property;
(6)
the original months to maturity or the remaining months to maturity
from the Cut-off Date, in any case based on the original
amortization schedule
and, if different, the maturity expressed in the same manner but
based on the
actual amortization schedule;
(7)
the Loan-to-Value Ratio at origination;
(8)
the Mortgage Interest Rate;
(9)
the stated maturity date;
(10)
the amount of the Monthly Payment as of the Cut-off Date;
(11)
the original principal amount of the Mortgage Loan;
6
(12)
the principal balance of the Mortgage Loan as of the opening of
business on the Cut-off Date, after deduction of payments of
principal due on or
before the Cut-off Date whether or not collected;
(13)
a code indicating the purpose of the Mortgage Loan (i.e., purchase,
rate and term refinance, equity take-out refinance);
(14)
a code indicating the documentation style (i.e. full, alternative
or
reduced);
(15)
the number of times during the twelve (12) month period preceding
the Closing Date that any Monthly Payment has been received more
than thirty
(30) days after its Due Date;
(16)
the date on which the first payment is or was due;
(17)
a code indicating whether or not the Mortgage Loan is the subject
of
Primary Mortgage Insurance and, if so, the name of the policy
issuer; and
(18)
the Appraisal Value.
With respect to the Mortgage Loans in the aggregate, the Mortgage
Loan
Schedule shall set forth the following information, as of the
Cut-off Date:
(1)
the number of Mortgage Loans;
(2)
the current aggregate outstanding principal balance of the Mortgage
Loans;
(3)
the weighted average Mortgage Interest Rate of the Mortgage Loans;
and
(4)
the weighted average maturity of the Mortgage Loans;
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op
Loan, the underlying real property securing repayment of a Mortgage
Note,
consisting of a single parcel of real estate considered to be real
estate under
the laws of the State in which such real property is located, which
may include
condominium units and planned unit developments, improved by a
residential
dwelling; except that with respect to real property located in
jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, a leasehold estate of the Mortgagor, the
term of which
is equal to or longer than the term of the Mortgage. With respect
to a Co-op
Loan, the stock allocated to a dwelling unit in the residential
cooperative
housing corporation that was pledged to secure such Co-op Loan and
the related
Co-op Lease.
Mortgagor: The obligor on a Mortgage Note.
Negative Amortization: A gradual increase in the mortgage debt that
occurs
when the monthly fixed installment is not sufficient for full
application to
both principal and interest. The interest shortage is added to the
unpaid
principal balance to create "negative" amortization.
7
OCC: Office of the Comptroller of the Currency, its successors and
assigns.
Officers' Certificate: A certificate signed by the Chairman of the
Board,
the Vice Chairman of the Board, the President, a Senior Vice
President or a Vice
President and by the Treasurer or the Secretary or one of the
Assistant
Treasurers or Assistant Secretaries of the Seller, and delivered to
the
Purchaser as required by this Agreement.
Opinion of Counsel: A written Opinion of Counsel, who may be an
employee
of the party on behalf of whom the opinion is being given,
reasonably acceptable
to the Purchaser, provided that any Opinion of Counsel relating to
(a)
qualification of the Mortgage Loans in a REMIC or (b) compliance
with the REMIC
Provisions, must be an Opinion of Counsel who (i) is in fact
independent of the
Servicer of the Mortgage Loans, (ii) does not have any material
direct or
indirect financial interest in the Servicer of the Mortgage Loans
or in an
affiliate of either and (iii) is not connected with the Servicer of
the Mortgage
Loans as an officer, employee, director or person performing
similar functions.
The cost of the preparation and delivery of any such independent
opinion
requested by the Trustee shall be an expense of the Trust Fund
unless Purchaser
decides, in its own discretion, to bear such expense for the Trust
Fund, in
which case any such cost will be borne by Purchaser.
Originator: With respect to any Mortgage Loan, the entity(ies) that
(i)
took the Mortgagor's loan application (ii) processed the
Mortgagor's loan
application, or (iii) closed and/or funded the Mortgagor's Mortgage
Loan.
Pass-Through Transfer: Either (i) a Securitization or (ii) a
synthetic
securitization in which some or all of the Mortgage Loans are
included as part
of the reference portfolio relating to such securitization.
Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
Prepayment Interest Shortfall Amount: With respect to any Mortgage
Loan
that is subject to a voluntary (not including discounted payoffs)
Principal
Prepayment in full or in part during the related Principal
Prepayment Period,
which Principal Prepayment was applied to such Mortgage Loan prior
to such
Mortgage Loan's Due Date in such related Principal Prepayment
Period, the amount
of interest (net of the related Servicing Fee for Principal
Prepayments in full
only) that would have accrued on the amount of such Principal
Prepayment during
the period commencing on the date as of which such Principal
Prepayment was
applied to such Mortgage Loan and ending on the last day of the
Principal
Prepayment Period.
Primary Mortgage Insurance Policy: Each primary policy of mortgage
insurance represented to be in effect pursuant to the Mortgage Loan
Schedule, or
any replacement policy therefor obtained by the Seller pursuant to
Section 4.08
in each case, in a form acceptable to FNMA or FHLMC and issued by a
Qualified
Insurer.
8
Prime Rate: The prime rate announced to be in effect from time to
time as
published as the average rate in The Wall Street Journal (Northeast
Edition).
Principal Prepayment: Any payment or other recovery of principal on
a
Mortgage Loan full or partial which is received in advance of its
scheduled Due
Date, including any prepayment penalty or premium thereon and which
is not
accompanied by an amount of interest representing scheduled
interest due on any
date or dates in any month or months subsequent to the month of
prepayment.
Principal Prepayment Period: With respect to any Remittance Date,
the
calendar month immediately preceding the month in which the related
Remittance
Date occurs.
Prior Servicer: Any Person that was a servicer of any Mortgage Loan
before
Seller became the Servicer of the Mortgage Loan, if applicable.
Purchase Price: As defined in Section 2.02.
Purchase Price and Terms Letter: As defined in the Recitals to this
Agreement.
Purchaser: Bank of America, National Association, its successors in
interest and assigns.
Qualified Appraiser: An appraiser, duly appointed by the Seller,
who had
no interest, direct or indirect in the Mortgaged Property or in any
loan made on
the security thereof, and whose compensation is not affected by the
approval or
disapproval of the Mortgage Loan, and such appraiser and the
appraisal made by
such appraiser both satisfy the requirements of Title XI of FIRREA
and the
regulations promulgated thereunder, all as in effect on the date
the Mortgage
Loan was originated.
Qualified Insurer: An insurance company duly qualified as such
under the
laws of the states in which the Mortgaged Properties are located,
duly
authorized and licensed in such states to transact the applicable
insurance
business and to write the insurance provided, approved as an
insurer by FNMA and
FHLMC.
Rating Agencies: Standard & Poor's Ratings Services, a division
of The
McGraw-Hill Companies Inc., Moody's Investors Service, Inc. or, in
the event
that some or all ownership of the Mortgage Loans is evidenced by
mortgage-backed
securities, the nationally recognized rating agencies issuing
ratings with
respect to such securities, if any.
Reconstitution Agreement: Any of the agreement or agreements
entered into
by the Purchaser and/or certain third parties, and if necessary the
Seller, on
the Reconstitution Date or Dates with respect to any or all of the
Mortgage
Loans conveyed hereunder, in connection with a Whole Loan Transfer,
Agency
Transfer, or a Pass-Through Transfer as set forth in Section 11.01.
Reconstitution Date: The date or dates on which any or all of the
Mortgage
Loans purchased pursuant to this Agreement shall be reconstituted
as part of a
Whole Loan Transfer, Agency Transfer, or a Pass-Through Transfer
pursuant to
Section 11.01.
9
Refinanced Mortgage Loan: A Mortgage Loan which was made to a
Mortgagor
who owned the Mortgaged Property prior to the origination of such
Mortgage Loan
and the proceeds of which were used in whole or part to satisfy an
existing
mortgage.
Regulation X: HUD regulations implementing RESPA.
REMIC: A "real estate mortgage investment conduit," as such term is
defined in the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a
REMIC, which appear at Section 860A through 860G of Subchapter M of
Chapter 1,
Subtitle A of the Code, and related provisions, and regulations,
rulings or
pronouncements promulgated thereunder, as the foregoing may be in
affect from
time to time.
Remittance Date: The 18th day of any month, beginning with the
First
Remittance Date, or if such 18th day is not a Business Day, the
first Business
Day immediately preceding such 18th day.
REO Disposition: The final sale by the Seller of any REO Property.
REO Disposition Proceeds: Amounts received by the Seller in
connection
with a related REO Disposition.
REO Property: A Mortgaged Property acquired by the Seller on behalf
of the
Purchaser as described in Section 4.13.
Repurchase Price: During the first 365 days after the Closing Date,
the
Repurchase Price shall be a price equal to the Purchase Price
Percentage, as
defined in the Purchase Price and Terms Letter, times the
outstanding principal
balance of such Mortgage Loan, plus accrued interest at the annual
rate of
interest borne on the Mortgage Note, less the Servicing Fee.
Beginning 365 days
following the Closing Date, the Repurchase Price shall be a price
equal to par
(100%) times the outstanding principal balance of such Mortgage
Loan, plus
accrued interest at the annual rate of interest borne on the
Mortgage Note.
RESPA: The Real Estate Settlement Procedures Act, as amended.
SAIF: The Savings Association Insurance Fund, or any successor
thereto.
Sarbanes Certifying Party: A Person who provides certification
required
under the Sarbanes-Oxley Act of 2002 in connection with a
Securitization or
other securitization transaction.
Securitization: The transfer of the Mortgage Loans to a trust
formed as
part of a publicly issued and/or privately placed, rated
securitization,
including the issuance of the related securities.
10
Seller's Officer's Certificate: A certificate signed by the
Chairman of
the Board, President, any Vice President or Treasurer of Seller
which shall (i)
identify the recorded document, (ii) state that the recorded
document has not
been delivered to the Purchaser, or its designee, due solely to a
delay by the
public recording office, and (iii) specify the date the Seller
expects that the
applicable recorded document will be delivered to the Purchaser or
its designee.
Servicer: Chase Home Finance LLC, its successors and assigns.
Servicing Advances: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable attorneys' fees
and
disbursements) incurred in the performance by the Seller of its
servicing
obligations, including, but not limited to, the cost of (a) the
preservation,
restoration and protection of the Mortgaged Property, (b) any
enforcement,
administrative or judicial proceedings, or any legal work or advice
specifically
related to servicing the Mortgage Loans, including but not limited
to,
foreclosures, bankruptcies, condemnations, drug seizures,
elections,
foreclosures by subordinate or superior lienholders, and other
legal actions
incidental to the servicing of the Mortgage Loans (provided that
such expenses
are reasonable and that the Seller specifies the Mortgage Loan(s)
to which such
expenses relate, and provided further that any such enforcement,
administrative
or judicial proceeding does not arise out of a breach of any
representation,
warranty or covenant of the Seller hereunder), (c) the management
and
liquidation of the Mortgaged Property if the Mortgaged Property is
acquired in
full or partial satisfaction of the Mortgage, (d) taxes,
assessments, water
rates, sewer rates and other charges which are or may become a lien
upon the
Mortgaged Property, and Primary Mortgage Insurance Policy premiums
and fire and
hazard insurance coverage, (e) any expenses reasonably sustained by
the Seller,
as servicer, with respect to the liquidation of the Mortgaged
Property in
accordance with the terms of this Agreement and (f) compliance with
the
obligations under Section 4.08.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the
annual fee the Purchaser shall pay to the Seller, which shall, for
a period of
one full month, be equal to one-twelfth of the product of (a) the
Servicing Fee
Rate and (b) the outstanding principal balance of such Mortgage
Loan. Such fee
shall be payable monthly, computed on the basis of the same
principal amount and
period respecting which any related interest payment on a Mortgage
Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee
is limited
to, and the Servicing Fee is payable solely from, the interest
portion
(including recoveries with respect to interest from Liquidation
Proceeds, to the
extent permitted by Section 4.05) of such Monthly Payment collected
by the
Seller, or as otherwise provided under Section 4.05.
Servicing Fee Rate: The Servicing Fee Rate shall be a rate per
annum equal
to 25 basis points (0.25%).
Servicing File: With respect to each Mortgage Loan, the file
retained by
the Seller consisting of originals of all documents in the Mortgage
File which
are not delivered to the Purchaser or its designee and copies of
the Mortgage
Loan Documents listed in Exhibit A, the originals of which are
delivered to the
Purchaser or its designee pursuant to Section 2.04.
11
Servicing Officer: Any officer of the Seller involved in, or
responsible
for, the administration and servicing of the Mortgage Loans whose
name appears
on a list of servicing officers furnished by the Seller to the
Purchaser upon
request, as such list may from time to time be amended.
Servicing Rights: Means the obligations to collect the payments for
the
reduction of principal and application of interest, pay taxes and
insurance,
remit collected payments, provide foreclosure services, provide
full escrow
administration and otherwise administer the Mortgage Loans in
accordance with
Applicable Requirements, together with the right to receive the
servicing fee
income and any ancillary income arising from or connected to the
Mortgage Loans.
Servicing Rights shall include retention of the related escrow or
impound
accounts created and maintained by Seller with respect to the
Mortgage Loans for
the deposit and retention of interest and principal, taxes,
assessments or
grounds rents, hazard and mortgage insurance and other related
escrow or
custodial items.
Stated Principal Balance: As to each Mortgage Loan as of any date
of
determination, (i) the principal balance of such Mortgage Loan at
the Cut-off
Date after giving effect to payments of principal due on or before
such date,
whether or not received, minus (ii) all amounts previously
distributed to the
Purchaser with respect to the Mortgage Loan representing payments
or recoveries
of principal or advances in lieu thereof.
Subservicer: Any subservicer which is subservicing the Mortgage
Loans
pursuant to a Subservicing Agreement. Any Subservicer shall meet
the
qualifications set forth in Section 4.01.
Subservicing Agreement: An agreement between the Seller and a
Subservicer
for the servicing of the Mortgage Loans.
Trust: Any trust identified by Purchaser into which Mortgage Loans
have
been placed as part of a reconstitution.
Trust Agreement: The agreement pursuant to which the Trust is
created.
Trustee: Any trustee identified by Purchaser in connection with any
Trust.
Trust Fund: Any trust fund identified by the Trustee with respect
to a
Trust.
ARTICLE II
SERVICING OF MORTGAGE LOANS;
RECORD TITLE AND POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS; CUSTODIAL AGREEMENT;
DELIVERY OF MORTGAGE LOAN DOCUMENTS
Section 2.01.
Agreement to Purchase.
The Seller agrees to sell and the Purchaser agrees to purchase the
Mortgage Loans, exclusive of the Servicing Rights associated
therewith, having
an aggregate principal balance on
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the Cut-off Date in an amount as set forth in the Mortgage Loan
Schedule. The
Seller shall deliver the Mortgage Loan Schedule for the Mortgage
Loans to be
purchased on the Closing Date to the Purchaser at least two (2)
Business Days
prior to the Closing Date.
Section 2.02.
Purchase Price.
The Purchase Price for each Mortgage Loan shall be the percentage
of par
as stated in the Purchase Price and Terms Letter (subject to
adjustment as
provided therein), multiplied by the aggregate principal balance,
as of the
Cut-off Date, of the Mortgage Loans listed on the attached Mortgage
Loan
Schedule, after application of scheduled payments of principal due
on or before
the Cut-off Date whether or not collected. The initial principal
amount of the
Mortgage Loans shall be the aggregate principal balance of the
Mortgage Loans,
so computed as of the Cut-off Date.
In addition to the Purchase Price as described above, the Purchaser
shall
pay to the Seller, at closing, accrued interest on the Stated
Principal Balance
of the Mortgage Loans as of the Cut-off Date at the weighted
average Mortgage
Loan Remittance Rate of the Mortgage Loans.
The Purchase Price plus accrued interest as set forth in the
preceding
paragraph shall be paid on the Closing Date by wire transfer of
immediately
available funds.
The Purchaser shall be entitled to (1) all scheduled principal due
after
the Cut-off Date, (2) all other recoveries of principal collected
on or after
the Cut-off Date (provided, however, that all scheduled payments of
principal
due on or before the Cut-off Date and collected by the Seller or
any successor
servicer after the Cut-off Date shall belong to the Seller), and
(3) all
payments of interest on the Mortgage Loans net of applicable
Servicing Fees
(minus that portion of any such payment which is allocable to the
period prior
to the Cut-off Date). The outstanding principal balance of each
Mortgage Loan as
of the Cut-off Date is determined after application of payments of
principal due
on or before the Cut-off Date whether or not collected, together
with any
unscheduled Principal Prepayments collected prior to the Cut-off
Date; provided,
however, that payments of scheduled principal and interest prepaid
for a Due
Date beyond the Cut-off Date shall not be applied to the principal
balance as of
the Cut-off Date. Such prepaid amounts shall be the property of the
Purchaser.
The Seller shall deposit any such prepaid amounts into the
Custodial Account,
which account is established for the benefit of the Purchaser for
subsequent
remittance by the Seller to the Purchaser.
If, subsequent to the Closing Date, the amount on which the
Purchase Price
with respect to a Mortgage Loan was based is found to be in error,
or if, for
any other reason, the Purchase Price or such other amounts are
found to be in
error, within ten (10) Business Days of the receipt of information
sufficient to
provide notice that payment is due the party benefiting from the
error shall pay
an amount sufficient to correct and reconcile the Purchase Price
plus interest
thereon at an agreed upon market rate or such other amounts and
shall provide a
reconciliation statement and such other documentation sufficient
reasonably to
satisfy the other party concerning the accuracy of such
reconciliation.
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Section 2.03.
Servicing of Mortgage Loans.
Simultaneously with the execution and delivery of this Agreement,
the
Seller does hereby agree to service the Mortgage Loans listed on
the Mortgage
Loan Schedule subject to the terms of this Agreement. The rights of
the
Purchaser to receive payments with respect to the related Mortgage
Loans shall
be as set forth in this Agreement.
Section 2.04.
Record Title and Possession of Mortgage Files; Maintenance
of Servicing Files.
As of the Closing Date, the Seller shall sell, transfer, assign,
set over
and convey to the Purchaser, without recourse, and the Seller
hereby
acknowledges that as of the Closing Date the Purchaser shall have,
subject to
the terms of this Agreement, all of the right, title and interest
of the Seller
in and to the Mortgage Loans. The delivery of the Mortgage Files on
the Closing
Date shall be at the expense of the Seller. The Seller shall
maintain a
Servicing File consisting of a copy of the contents of each
Mortgage File and
the originals of the documents in each Mortgage File not delivered
to the
Purchaser or its designee. The Servicing File shall contain all
documents
necessary to service the Mortgage Loans. The possession of each
Servicing File
by the Seller is at the will of the Purchaser, for the sole purpose
of servicing
the related Mortgage Loan, and such retention and possession by the
Seller is in
a custodial capacity only. From the Closing Date, the ownership of
each Mortgage
Loan, including the Mortgage Note, the Mortgage, the contents of
the related
Mortgage File and all rights, benefits, proceeds and obligations
arising
therefrom or in connection therewith, shall be vested in the
Purchaser. All
rights arising out of the Mortgage Loans including, but not limited
to, all
funds received on or in connection with the Mortgage Loans and all
records or
documents with respect to the Mortgage Loans prepared by or which
come into the
possession of the Seller shall be received and held by the Seller
in trust for
the benefit of the Purchaser as the owner of the Mortgage Loans.
Any portion of
the Mortgage Files retained by the Seller shall be appropriately
identified in
the Seller's computer system to clearly reflect the ownership of
the Mortgage
Loans by the Purchaser. The Seller shall release its custody of the
contents of
the Mortgage Files only in accordance with written instructions of
the
Purchaser, except when such release is required as incidental to
the Seller's
servicing of the Mortgage Loans or is in connection with a
repurchase of any
Mortgage Loan or Loans with respect thereto pursuant to this
Agreement, such
written instructions shall not be required.
Section 2.05.
Books and Records.
The sale of each Mortgage Loan shall be reflected on the Seller's
balance
sheet and other financial statements as a sale of assets by the
Seller. The
Seller shall be responsible for maintaining, and shall maintain, a
complete set
of books and records for the Mortgage Loans which shall be
appropriately
identified in the Seller's computer system to clearly reflect the
ownership of
the Mortgage Loan by the Purchaser. In particular, the Seller shall
maintain in
its possession, available for inspection by the Purchaser, or its
designee and
shall deliver to the Purchaser upon demand, evidence of compliance
with all
federal, state and local laws, rules and regulations, and
requirements of FNMA
or FHLMC, as applicable, including but not limited to documentation
as to the
method used in determining the applicability of the provisions of
the Flood
Disaster Protection Act of 1973, as amended, to the Mortgaged
Property,
documentation
14
evidencing insurance coverage and eligibility of any condominium
project for
approval by Seller and periodic inspection reports as required by
Section 4.13.
To the extent that original documents are not required for purposes
of
realization of Liquidation Proceeds or Insurance Proceeds,
documents maintained
by the Seller may be in the form of microfilm or microfiche or such
other
reliable means of recreating original documents, including but not
limited to,
optical imagery techniques so long as the Seller complies with the
requirements
of the FNMA Guides.
The Seller shall maintain with respect to each Mortgage Loan and
shall
make available for inspection by any Purchaser or its designee the
related
Servicing File during the time the Purchaser retains ownership of a
Mortgage
Loan and thereafter in accordance with applicable laws and
regulations.
In addition to the foregoing, Seller shall provide to any
supervisory
agents or examiners that regulate Purchaser, including but not
limited to, the
Office of the Comptroller of the Currency ("OCC") and other
comparable
regulatory authorities supervising the Purchaser and other similar
entities,
access, during normal business hours, upon reasonable advance
notice to Seller
and without charge to Purchaser or such supervisory agents or
examiners, to any
documentation regarding the Mortgage Loans that may be required by
any
applicable regulator. It is anticipated that Purchaser will
reimburse Seller for
its out-of-pocket expenses incurred in complying with this
requirement.
Section 2.06.
Transfer of Mortgage Loans.
The Seller shall keep at its servicing office books and records in
which,
subject to such reasonable regulations as it may prescribe, the
Seller shall
note transfers of Mortgage Loans. No transfer of a Mortgage Loan
may be made
unless such transfer is in compliance with the terms hereof. For
the purposes of
this Agreement, the Seller shall be under no obligation to deal
with any person
with respect to this Agreement or any Mortgage Loan unless a notice
of the
transfer of such Mortgage Loan has been delivered to the Seller in
accordance
with this Section 2.06 and the books and records of the Seller show
such person
as the owner of the Mortgage Loan. The Purchaser may, subject to
the terms of
this Agreement, sell and transfer one or more of the Mortgage
Loans, provided,
however, that (i) the transferee will not be deemed to be a
Purchaser hereunder
binding upon the Seller unless such transferee shall agree in
writing to be
bound by the terms of this Agreement and an original counterpart of
the
instrument of transfer and an Assignment and Assumption of this
Agreement
substantially in the form of Exhibit D hereto executed by the
transferee shall
have been delivered to the Seller, (ii) in no event shall there be
more than
four (4) Persons at any given time having the status of "Purchaser"
under each
of the Reconstitution Agreements, as more particularly described in
Sections
11.01 and 12.12 hereunder, and (iii) if the Seller is to service
pursuant to a
Reconstitution Agreement , such agreement will not contain any
greater
obligations on the part of the Seller than are contained in this
Agreement. The
Purchaser also shall advise the Seller of the transfer. Upon
receipt of notice
of the transfer, the Seller shall mark its books and records to
reflect the
ownership of the Mortgage Loans of such assignee, and the previous
Purchaser
shall be released from its obligations hereunder with respect to
the Mortgage
Loans sold or transferred.
15
Section 2.07.
Delivery of Mortgage Loan Documents.
The Seller shall deliver and release to the Purchaser or its
designee,
Wachovia Bank, National Association, the Mortgage Loan Documents.
The Mortgage
Loan Documents shall be delivered by the Seller to the Purchaser or
its
designee, Wachovia Bank, National Association, at 4527 Metropolitan
Court, Suite
C, Frederick, Maryland 21704, Attention: Ron Fisher, at least five
(5) Business
Days prior to the Closing Date pursuant to a bailee letter
agreement. All other
documents in Exhibit A hereto, together with all other documents
executed in
connection with the Mortgage Loan that Seller may have in its
possession, shall
be retained by the Servicer in trust for the Purchaser. If the
Seller cannot
deliver the original recorded Mortgage Loan Documents or the
original policy of
title insurance, including riders and endorsements thereto, on the
Closing Date,
the Seller shall, promptly upon receipt thereof and in any case not
later than
180 days from the Closing Date, deliver such original documents,
including
original recorded documents, to the Purchaser or its designee
(unless the Seller
is delayed in making such delivery by reason of the fact that such
documents
shall not have been returned by the appropriate recording office).
If delivery
is not completed within 180 days of the Closing Date solely due to
delays in
making such delivery by reason of the fact that such documents
shall not have
been returned by the appropriate recording office, Seller shall
deliver a copy
of such document, if not previously delivered, and a Seller's
Officer's
Certificate to Purchaser, or its designee. In the event that
documents have not
been received by the date specified in the Seller's Officer's
Certificate, a
subsequent Seller's Officer's Certificate shall be delivered by
such date
specified in the prior Seller's Officer's Certificate, stating a
revised date
for receipt of documentation. The procedure shall be repeated until
the
documents have been received and delivered. The Seller shall
continue to use
commercially reasonable best efforts to effect delivery within 270
days of the
Closing Date.
The Seller shall pay all initial recording fees, for the
Assignments of
Mortgage or Form UCC-3's for Co-op Loans and any other fees in
connection with
the transfer of all original documents to the Purchaser or its
designee. Seller
shall prepare, in recordable form, all Assignments of Mortgage or
Form UCC-3's
for Co-op Loans necessary to assign the Mortgage Loans to
Purchaser, or its
designee. Seller shall be responsible for recording the Assignments
of Mortgage
or Form UCC-3's for Co-op Loans.
Seller shall provide a copy of the title insurance policy to
Purchaser or
its designee within ninety (90) days of the receipt of the recorded
documents
(required for issuance of such policy) from the applicable
recording office.
Any review by the Purchaser, or its designee, of the Mortgage Files
shall
in no way alter or reduce the Seller's obligations hereunder.
If the Purchaser or its designee discovers any defect with respect
to a
Mortgage File, the Purchaser shall, or shall cause its designee to,
give written
specification of such defect to the Seller in the exception report
or the
certification delivered pursuant to this Section 2.07, and the
Seller shall cure
or repurchase such Mortgage Loan in accordance with Section 3.03.
16
The Seller shall forward to the Purchaser, or its designee,
original
documents evidencing an assumption, modification, consolidation or
extension of
any Mortgage Loan entered into in accordance with Section 4.01 or
6.01 in
accordance with the FNMA Guides; provided, however, that the Seller
shall
provide the Purchaser, or its designee, with a certified true copy
of any such
document submitted for recordation within one week of its
execution, and shall
provide the original of any document submitted for recordation or a
copy of such
document certified by the appropriate public recording office to be
a true and
complete copy of the original within sixty (60) days of its
submission for
recordation.
From time to time, in order to fulfill its obligations hereunder,
the
Seller may have a need for Mortgage Loan Documents to be released
by Purchaser,
or its designee. Purchaser shall, or shall cause its designee, upon
the written
request of the Seller, within ten (10) Business Days, deliver to
the Seller, any
requested documentation previously delivered to Purchaser or its
designee as
part of the Mortgage File, provided that such documentation is
promptly returned
to Purchaser, or its designee, when the Seller no longer requires
possession of
the document, and provided that during the time that any such
documentation is
held by the Seller, such possession is in trust for the benefit of
Purchaser.
Seller shall indemnify Purchaser, and its designee, from and
against any and all
losses, claims, damages, penalties, fines, forfeitures, costs and
expenses
(including court costs and reasonable attorney's fees) resulting
from or related
to the loss, damage, or misplacement of any documentation delivered
to Seller
pursuant to this paragraph.
Any and all documents required to be delivered pursuant to this
Section
2.07 other than those Mortgage Loan Documents required to be
delivered within
five (5) Business Days prior to the Closing Date pursuant to a
bailee letter
agreement shall be delivered to the following addressee: Wachovia
Bank, National
Association, 4527 Metropolitan Court, Suite C, Frederick, Maryland
21704,
Attention: Ron Fisher.
Section 2.08.
Quality Control Procedures.
The Seller must have an internal quality control program that
verifies, on
a regular basis, the existence and accuracy of the legal documents,
credit
documents, property appraisals, and underwriting decisions. The
program must be
capable of evaluating and monitoring the overall quality of its
loan production
and servicing activities. The program is to ensure that the
Mortgage Loans are
originated and serviced in accordance with prudent mortgage banking
practices
and accounting principles; guard against dishonest, fraudulent, or
negligent
acts; and guard against errors and omissions by officers,
employees, or other
authorized persons.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SELLER; REPURCHASE; REVIEW OF MORTGAGE LOANS
Section 3.01.
Representations and Warranties of the Seller.
The Seller represents, warrants and covenants to the Purchaser that
as of
the Closing Date or as of such date specifically provided herein:
17
(a)
The Seller is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of
Delaware and has
all licenses necessary to carry out its business as now being
conducted, and is
licensed and qualified to transact business in and is in good
standing under the
laws of each state in which any Mortgaged Property is located or is
otherwise
exempt under applicable law from such licensing or qualification or
is otherwise
not required under applicable law to effect such licensing or
qualification and
no demand for such licensing or qualification has been made upon
such Seller by
any such state, and in any event such Seller is in compliance with
the laws of
any such state to the extent necessary to ensure the enforceability
of each
Mortgage Loan and the servicing of the Mortgage Loans in accordance
with the
terms of this Agreement;
(b)
The Seller has the full power and authority and legal right to
hold, transfer and convey each Mortgage Loan, to sell each Mortgage
Loan and to
execute, deliver and perform, and to enter into and consummate all
transactions
contemplated by this Agreement and to conduct its business as
presently
conducted, has duly authorized the execution, delivery and
performance of this
Agreement and any agreements contemplated hereby, has duly executed
and
delivered this Agreement, and any agreements contemplated hereby,
and this
Agreement and each Assignment of Mortgage to the Purchaser and any
agreements
contemplated hereby, constitutes a legal, valid and binding
obligation of the
Seller, enforceable against it in accordance with its terms, and
all requisite
corporate action has been taken by the Seller to make this
Agreement and all
agreements contemplated hereby valid and binding upon the Seller in
accordance
with their terms;
(c)
None of the execution and delivery of this Agreement, the
origination of the Mortgage Loans by the Seller, the sale of the
Mortgage Loans
to the Purchaser, the consummation of the transactions contemplated
hereby, or
the fulfillment of or compliance with the terms and conditions of
this Agreement
will conflict with any of the terms, conditions or provisions of
the Seller's
charter or by-laws or materially conflict with or result in a
material breach of
any of the terms, conditions or provisions of any legal restriction
or any
agreement or instrument to which the Seller is now a party or by
which it is
bound, or constitute a default or result in an acceleration under
any of the
foregoing, or result in the material violation of any law, rule,
regulation,
order, judgment or decree to which the Seller or its property is
subject or
impair the ability of the Purchaser to realize on the Mortgage
Loans or impair
the value of the Mortgage Loans;
(d)
Each Mortgage Note, each Mortgage, each Assignment of Mortgage and
any other documents required pursuant to this Agreement to be
delivered to the
Purchaser or its designee, or its assignee for each Mortgage Loan,
have been, on
or before the Closing Date, delivered to the Purchaser or its
designee, or its
assignee;
(e)
There is no litigation, suit, proceeding or investigation pending
or threatened, or any order or decree outstanding, with respect to
the Seller
which is reasonably likely to have a material adverse effect on the
sale or
servicing of the Mortgage Loans, the execution, delivery,
performance or
enforceability of this Agreement, or which is reasonably likely to
have a
material adverse effect on the financial condition of the Seller.;
18
(f)
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Seller of or compliance by the Seller with this
Agreement,
except for consents, approvals, authorizations and orders which
have been
obtained;
(g)
The consummation of the transactions contemplated by this
Agreement is in the ordinary course of business of the Seller, and
the transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages
by the Seller
pursuant to this Agreement are not subject to bulk transfer or any
similar
statutory provisions in effect in any applicable jurisdiction;
(h)
The Seller is a member of MERS in good standing;
(i)
The Seller used no adverse selection procedures in selecting from
among the outstanding first lien residential mortgage loans owned
by it which
were available for inclusion in the sale to Purchaser;
(j)
The Seller will treat the sale of the Mortgage Loans to the
Purchaser as a sale for reporting and accounting purposes and, to
the extent
appropriate, for federal income tax purposes;
(k)
The Seller is an approved seller/servicer of residential mortgage
loans for FNMA/FHLMC and HUD, with such facilities, procedures and
personnel
necessary for the sound servicing of such mortgage loans. The
Seller is duly
qualified, licensed, registered and otherwise authorized under all
applicable
federal, state and local laws, and regulations, if applicable,
meets the minimum
capital requirements set forth by the OCC, and is in good standing
to sell
mortgage loans to and service mortgage loans for FNMA/FHLMC and no
event has
occurred which would make Seller unable to comply with eligibility
requirements
or which would require notification to either FNMA or FHLMC;
(l)
The Seller does not believe, nor does it have any cause or reason
to believe, that it cannot perform each and every covenant
contained in this
Agreement. The Seller is solvent and the sale of the Mortgage Loans
will not
cause the Seller to become insolvent. The sale of the Mortgage
Loans is not
undertaken with the intent to hinder, delay or defraud any of the
Seller's
creditors;
(m)
No statement, tape, diskette, form, report or other document
prepared by, or on behalf of, Seller pursuant to this Agreement or
in connection
with the transactions contemplated hereby, contains or will contain
any
statement that is or will be inaccurate or misleading in any
material respect;
(n)
The Seller acknowledges and agrees that the Servicing Fee
represents reasonable compensation for performing such services and
that the
entire Servicing Fee shall be treated by the Seller, for accounting
and tax
purposes, as compensation for the servicing and administration of
the Mortgage
Loans pursuant to this Agreement; in the opinion of Seller, the
consideration
received by Seller upon the sale of the Mortgage Loans to Purchaser
under this
Agreement constitutes fair consideration for the Mortgage Loans
under current
market conditions;
19
(o)
If requested by the Purchaser, the Seller has delivered to the
Purchaser financial statements as to its last two complete fiscal
years. All
such financial statements fairly present the pertinent results of
operations and
changes in financial position for each of such periods and the
financial
position at the end of each such period of the Seller and its
subsidiaries and
have been prepared in accordance with GAAP consistently applied
throughout the
periods involved, except as set forth in the notes thereto. There
has been no
change in the business, operations, financial condition, properties
or assets of
the Seller since the date of the Seller's financial statements that
would have a
material adverse effect on its ability to perform its obligations
under this
Agreement; and
(p)
The Seller has not dealt with any broker, investment banker, agent
or other person that may be entitled to any commission or
compensation in
connection with the sale of the Mortgage Loans.
Section 3.02.
Representations and Warranties as to Individual Mortgage
Loans.
The Seller hereby represents and warrants to the Purchaser, as to
each
Mortgage Loan, as of the Closing Date (unless another date is
specified in the
body of the representation and warranty) as follows:
(a)
The information set forth in the Mortgage Loan Schedule and in the
electronic data file provided to the Purchaser by the Seller on or
about January
21, 2005, with respect to the Mortgage Loans is complete, true and
correct in
all material respects as of the Cut-Off Date;
(b)
With respect to a Mortgage Loan that is not a Co-op Loan, the
Mortgage creates a valid, subsisting and enforceable first lien or
a first
priority ownership interest in an estate in fee simple in real
property securing
the related Mortgage Note. With respect to a Mortgage Loan that is
a Co-op Loan,
the Mortgage creates a first lien or a first priority ownership
interest in the
stock ownership associated with the cooperative unit securing the
related
Mortgage Note;
(c)
All payments due prior to the Cut-off Date for such Mortgage Loan
have been made and credited as of the Closing Date; there are no
defaults under
the terms of the Mortgage Loan; the Seller has not advanced funds,
or induced,
solicited or knowingly received any advance of funds from a party
other than the
Mortgagor, directly or indirectly, for the payment of any amount
required by the
Mortgage Loan; and there has been no more than one delinquency
during the
preceding twelve-month period, and such delinquency did not last
more than
thirty (30) days;
(d)
There are no defaults by Seller in complying with the terms of the
Mortgage, and all taxes, governmental assessments, insurance
premiums, water,
sewer and municipal charges, leasehold payments or ground rents
which previously
became due and owing have been paid, or escrow funds have been
established in an
amount sufficient to pay for every such escrowed item which remains
unpaid and
which has been assessed but is not yet due and payable;
(e)
The terms of the Mortgage Note and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by
written
instruments which have been recorded to the extent any such
recordation is
required by law, or, necessary to protect the interest
20
of the Purchaser. No instrument of waiver, alteration or
modification has been
executed, and no Mortgagor has been released, in whole or in part,
from the
terms thereof except in connection with an assumption agreement and
which
assumption agreement is part of the Mortgage File and the terms of
which are
reflected in the Mortgage Loan Schedule; the substance of any such
waiver,
alteration or modification has been approved by the issuer of any
related
Primary Mortgage Insurance Policy and title insurance policy, to
the extent
required by the related policies;
(f)
The Mortgage Note and the Mortgage are not subject to any right of
rescission, set-off, counterclaim or defense, including, without
limitation, the
defense of usury, nor will the operation of any of the terms of the
Mortgage
Note or the Mortgage, or the exercise of any right thereunder,
render the
Mortgage Note or Mortgage 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; and the Mortgagor was not a
debtor in any
state or federal bankruptcy or insolvency proceeding at the time
the Mortgage
Loan was originated;
(g)
All buildings or other customarily insured improvements upon the
Mortgaged Property are insured by an insurer acceptable under the
FNMA Guides,
against loss by fire, hazards of extended coverage and such other
hazards as are
provided for in the FNMA Guides or by FHLMC, as well as all
additional
requirements set forth in Section 4.10 of this Agreement. All such
standard
hazard policies are in full force and effect and on the date of
origination
contained a standard mortgagee clause naming the Seller and its
successors in
interest and assigns as mortgagee loss payee and such clause is
still in effect
and all premiums due thereon have been paid. If required by the
Flood Disaster
Protection Act of 1973, as amended, the Mortgage Loan is covered by
a flood
insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration which policy conforms to FNMA and
F
