Exhibit 4.2
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (the "Agreement"), dated
September
29, 2006, is between Banc of America Funding Corporation, a
Delaware corporation
(the "Purchaser") and Bank of America, National Association, a
national banking
association (the "Seller").
WHEREAS, pursuant to (i) that certain Master Mortgage Loan Purchase
and
Servicing Agreement, dated as of April 1, 2003, by and between the
Seller (as
successor in interest to Banc of America Mortgage Capital
Corporation
("BAMCC")), as purchaser, and Countrywide Home Loans, Inc.
("Countrywide"), as
seller, (ii) that certain Amendment No. 1, dated as of July 1,
2003, by and
among BAMCC, Countrywide and the Seller, (iii) that certain
Amendment No. 2,
dated as of September 1, 2004, by and among BAMCC, Countrywide and
the Seller,
(iv) that certain Amendment Reg AB to the Master Mortgage Loan
Purchase and
Servicing Agreement (the "Amendment Reg AB"), dated as of January
1, 2006, by
and between Countrywide and the Seller, (v) certain Purchase
Confirmations
(BA2005-0503 and BA2005-0504), each dated October 25, 2005, by and
between
Countrywide and the Seller, (vi) that certain Purchase
Confirmation, dated
November 22, 2005, by and between Countrywide and the Seller, (vii)
that certain
Purchase Confirmation, dated December 28, 2005, by and between
Countrywide and
the Seller and (viii) certain Purchase Confirmations (BA2006-0137
and
BA2006-0139), each dated March 30, 2006, by and between Countrywide
and the
Seller (collectively, the "Countrywide Agreements"), the Seller
purchased the
mortgage loans listed on Exhibit I (the "Countrywide Mortgage
Loans") from
Countrywide and Countrywide Home Loans Servicing LP, an affiliate
of
Countrywide, currently services the Countrywide Mortgage Loans;
WHEREAS, pursuant to (i) that certain Flow Sale and Servicing
Agreement,
dated as of January 1, 2005, by and between the Seller, as
purchaser, and
GreenPoint Mortgage Funding, Inc. ("GreenPoint"), as seller, (ii)
that certain
Amendment No. 1, dated as of May 1, 2005, by and between the Seller
and
GreenPoint, (iii) that certain Regulation AB Compliance Addendum to
the Flow
Sale and Servicing Agreements, dated as of January 1, 2006, by and
between the
Seller and GreenPoint and (iv) that certain Memorandum of Sale,
dated March 23,
2006, by and between the Seller and GreenPoint (collectively, the
"GreenPoint
Agreements"), the Seller purchased the mortgage loans listed on
Exhibit II (the
"GreenPoint Mortgage Loans") from GreenPoint and GreenPoint
currently services
the GreenPoint Mortgage Loans;
WHEREAS, pursuant to (i) that certain Flow Sale and Servicing
Agreement,
dated as of March 1, 2006, by and between the Seller, as purchaser,
and IndyMac
Bank, F.S.B., a federal savings bank ("IndyMac"), as seller and
(ii) that
certain Memorandum of Sale, dated as of March 2, 2006, by and
between Seller and
IndyMac (collectively, the "IndyMac Agreements"), the Seller
purchased the
mortgage loans listed on Exhibit III (the "IndyMac Mortgage Loans")
from IndyMac
and IndyMac currently services the IndyMac Mortgage Loans;
WHEREAS, pursuant to (i) that certain Mortgage Loan Sale and
Servicing
Agreement, dated as of September 1, 2006, by and between the
Seller, as
purchaser, and Opteum Financial Services, LLC ("Opteum"), as
seller, and (ii)
that certain Memorandum of Sale, dated September
28, 2006, by and between the Seller and Opteum (collectively, the
"Opteum
Agreements"), the Seller purchased the mortgage loans listed on
Exhibit IV (the
"Opteum Mortgage Loans") from Opteum and Opteum currently services,
and Cenlar
FSB currently subservices, the Opteum Mortgage Loans;
WHEREAS, pursuant to (i) that certain Second Amended and Restated
Master
Seller's Warranties and Servicing Agreement, dated as of May 1,
2006 (the
"MSWSA"), by and between the Seller, as purchaser, and Wells Fargo
Bank, N.A.
("Wells Fargo Bank"), as seller and servicer, (ii) that certain
Second Amended
and Restated Master Mortgage Loan Purchase Agreement, dated as of
May 1, 2006
(the "MMLPA"), by and between the Seller, as purchaser, and Wells
Fargo Bank, as
seller, (iii) certain Assignment and Conveyance Agreements
(2006-W41 and
2006-W42), each dated May 25, 2006, by and between the Seller and
Wells Fargo
Bank, (iv) certain Assignment and Conveyance Agreements (2006-W49
and 2006-W50),
each dated June 16, 2006, by and between the Seller and Wells Fargo
Bank, (v)
certain Assignment and Conveyance Agreements (2006-W52, 2006-W53
and 2006-W54),
each dated June 22, 2006, by and between the Seller and Wells Fargo
Bank, and
(vi) certain Assignment and Conveyance Agreements (2006-W46,
2006-W47 and
2006-W48), each dated June 28, 2006, by and between the Seller and
Wells Fargo
Bank (collectively, with the MSWSA and the MMLPA, the "Wells Fargo
Bank
Agreements" and together with the Countrywide Agreements, the
GreenPoint
Agreements, the IndyMac Agreements and the Opteum Agreements, the
"Transfer
Agreements") the Seller purchased the mortgage loans listed on
Exhibit V (the
"Wells Fargo Bank Mortgage Loans" and together with the Countrywide
Mortgage
Loans, the GreenPoint Mortgage Loans, the IndyMac Mortgage Loans
and the Opteum
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 VI
(the "BANA Mortgage Loans," and together with the Assigned Mortgage
Loans, the
"Mortgage Loans") and the related notes or other evidence of
indebtedness (the
"BANA Mortgage Notes," and together with the notes of the Assigned
Mortgage
Loans, the "Mortgage Notes") or other evidence of ownership, and
the other
documents or instruments constituting the related mortgage file
(the "BANA
Mortgage File");
WHEREAS, the Seller, as of the date hereof, owns the mortgages (the
"Mortgages") on the properties (the "Mortgaged Properties")
securing such
Mortgage Loans, including rights (a) to any property acquired by
foreclosure or
deed in lieu of foreclosure or otherwise, and (b) to the proceeds
of any
insurance policies covering the Mortgage Loans or the Mortgaged
Properties or
the obligors on the Mortgage Loans; 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 29, 2006 (the "Pooling and Servicing Agreement"), among
the Purchaser,
as depositor, U.S. Bank National Association, as trustee (the
"Trustee"), and
Wells Fargo Bank, as securities administrator (the "Securities
Administrator")
and as master servicer (the "Master
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Servicer"), the Purchaser will convey the Mortgage Loans to Banc of
America
Funding 2006-H Trust (the "Trust").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained,
the parties hereto agree as follows:
The Purchaser and the Seller hereby recite and agree as follows:
1. Defined Terms. Terms used without definition herein shall have
the
respective meanings assigned to them in the Pooling and Servicing
Agreement
relating to the issuance of the Purchaser's Mortgage Pass-Through
Certificates,
Series 2006-H (the "Certificates") or, if not defined therein, in
the
underwriting agreement dated September 28, 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. In consideration
of the sale
of the Mortgage Loans from the Seller to the Purchaser on the
Closing Date, the
Purchaser agrees (i) to pay to the Seller on the Closing Date, in
immediately
available funds, an amount equal to $1,861,096,954.72, and (ii) to
deliver to or
at the direction of the Seller on the Closing Date, a 100% interest
in each of
the Class CE Certificates, the Class P Certificates and the Class
1-A-R
Certificate (clauses (i) and (ii) together, the "Purchase Price").
Upon payment of the Purchase Price, the Seller shall be deemed to
have
transferred, assigned, set over and otherwise conveyed to the
Purchaser all the
right, title and interest of the Seller in and to the Mortgage
Loans and all
Mortgage Files, including all interest and principal received or
receivable by
the Seller on or with respect to the Mortgage Loans after the
Cut-off Date (and
including scheduled payments of principal and interest due after
the Cut-off
Date but received by the Seller on or before the Cut-off Date and
Principal
Prepayments received or applied on the Cut-off Date, but not
including payments
of principal and interest due on the Mortgage Loans on or before
the Cut-off
Date), together with 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 29, 2006, by and among the
Seller, the
Purchaser, the Trustee, Countrywide and Countrywide Home Loans
Servicing LP,
(ii) the
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Assignment, Assumption and Recognition Agreement, dated September
29, 2006, by
and among the Seller, the Purchaser, the Trustee, the Master
Servicer and
GreenPoint, (iii) the Assignment, Assumption and Recognition
Agreement, dated
September 29, 2006, by and among the Seller, the Purchaser, the
Trustee, the
Master Servicer and IndyMac, (iv) the Assignment, Assumption and
Recognition
Agreement, dated September 29, 2006, by and among the Seller, the
Purchaser, the
Trustee, the Master Servicer, and Opteum and (v) the Assignment,
Assumption and
Recognition Agreement, dated September 29, 2006, by and among the
Seller, the
Purchaser, the Trustee, the Master Servicer 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
II, Exhibit
III, Exhibit IV, and Exhibit V (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 delinquent as of the Cut-off Date.
The Seller has not waived any default, breach, violation or event
of
acceleration, and the Seller has not taken any action to waive any
default,
breach, violation or even of acceleration, with respect to any
Assigned Mortgage
Loan;
(c) There are no delinquent taxes, assessments that could become a
lien prior to the related Mortgage or insurance premiums affecting
the related
Mortgaged Property;
(d) With respect to each Assigned Mortgage Loan, the related
Mortgage
has not been satisfied, canceled, subordinated or rescinded, in
whole or in
part, and the related Mortgaged Property has not been released from
the lien of
the Mortgage, in whole or in part, nor has any instrument been
executed that
would effect any such satisfaction, cancellation, subordination,
rescission or
release;
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(e) With respect to each Assigned Mortgage Loan, there is no
material
default, breach, violation or event of acceleration existing under
any Mortgage
or the related Mortgage Note and no event which, with the passage
of time or
with notice and the expiration of any grace or cure period, would
constitute a
material default, breach, violation or event of acceleration, and
neither the
Seller nor its predecessors have waived any material default,
breach, violation
or event of acceleration;
(f) With respect to each Assigned Mortgage Loan, the related
Mortgaged
Property is free of material damage that would affect adversely the
value of the
Mortgaged Property as security for the Assigned Mortgage Loan or
the use for
which the premises were intended;
(g) With respect to each Assigned Mortgage Loan, to the best of the
Seller's knowledge, there is no proceeding pending for the total or
partial
condemnation of the Mortgaged Property;
(h) With respect to each Assigned Mortgage Loan, the related
Mortgaged
Property is lawfully occupied under applicable law; all
inspections, licenses
and certificates required to be made or issued with respect to all
occupied
portions of each Mortgaged Property and, with respect to the use
and occupancy
of the same, including but not limited to certificates of
occupancy, have been
made or obtained from the appropriate authorities, except where the
failure
would not have a material adverse effect upon the Assigned Mortgage
Loan;
(i) No Assigned Mortgage Loan is in foreclosure;
(j) Each Assigned Mortgage Loan is a "qualified mortgage" within
the
meaning of Section 860G of the Code and Treas. Reg 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
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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, 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 5.6 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
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(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.
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 ef
