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Exhibit 4.2
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| EXECUTION COPY |
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MORTGAGE LOAN PURCHASE AGREEMENT
This
Mortgage Loan Purchase Agreement (the "Agreement"), dated October 30,
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 Flow Sale and Servicing Agreement,
dated as of February
1, 2004, by and between the Seller (as successor in
interest to
Banc of America Mortgage Capital Corporation ("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, and (f)
that certain Memorandum of Sale, dated as of August 25, 2006, by
and between the
Seller and
SunTrust (collectively, the "Transfer Agreement"), the Seller
purchased the mortgage loans listed on Exhibit I (the "Assigned
Mortgage Loans")
from SunTrust and SunTrust currently services the Assigned Mortgage
Loans;
WHEREAS, the Seller is the owner of the mortgage loans listed on
Exhibit II
(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
October 30, 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
Servicer"), the
Purchaser will convey the
Mortgage Loans to Banc of America Funding 2006-7 Trust (the
"Trust").
NOW,
THEREFORE, in
consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
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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 2006-7
(the "Certificates") or, if not defined therein, in the
underwriting agreement
dated October 30, 2006 (the "Underwriting Agreement"),
between the Purchaser
and Banc of America
Securities
LLC, or in the
purchase
agreement dated
October 30, 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 $739,968,075.26, 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 and the
Class P Certificates
(clause (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 (but excluding any fees payable by a
Mortgagor for the
right to cancel any portion of principal or interest of a BPP
Mortgage Loan). The Purchaser hereby directs the Seller,
and the Seller
hereby
agrees, to deliver to
the Trustee all
documents, instruments
and agreements
required to be delivered by the Purchaser to the Trustee
under the Pooling
and
Servicing Agreement and such other documents, instruments and agreements as
the
Purchaser or the Trustee shall reasonably request.
3.
Representations
and Warranties as to
the Assigned Mortgage
Loans. The
representations and
warranties with
respect to the Assigned Mortgage Loans in
the Transfer
Agreement were made as of the date specified in the 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
the Assignment,
Assumption and
Recognition
Agreement,
dated October 30, 2006, by and among the Seller, the Purchaser, the
Trustee, the
Master Servicer and
SunTrust. 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 SunTrust under the 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
SunTrust 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 SunTrust in
the Transfer
Agreement. The Seller
shall have no obligation or liability with
respect to any breach of a representation or warranty made by it
with respect to
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the Mortgage Loans if the fact, condition or event constituting
such breach also
constitutes a breach
of a representation
or warranty
made by SunTrust in
the
Transfer Agreement (other than with respect to the representations
or warranties
in Section 3(k), to the extent such representations and warranties relate to
predatory or abusive lending and the representations and warranties in Section
3(o) below),
without regard to whether SunTrust 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
schedule attached hereto as Exhibit I (the "Mortgage Loan
Schedule") provides an
accurate listing of the Assigned Mortgage Loans, and the
information with
respect to each
Assigned Mortgage
Loan on the 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;
(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
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portions of each
Mortgaged Property
and, with respect to the use and occupancy
of the same, including
but not limited to certificates of occupancy, have been
made or obtained from
the appropriate
authorities,
except where the failure
would not have a material adverse effect upon the Assigned Mortgage
Loan;
(i)
No Assigned Mortgage Loan is in foreclosure;
(j)
Each Assigned
Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G of the Code and Treas. Reg ss.
1.860G-2;
(k)
Any and all requirements of any federal, state or local law including,
without limitation,
usury, truth in lending, real estate settlement procedures,
consumer credit protections, all applicable predatory and
abusive lending laws,
equal credit
opportunity or disclosure laws applicable to the origination
and
servicing of each Assigned Mortgage Loan have been complied
with;
(l)
Except with respect to each Assigned Mortgage Loan for which the
related Mortgage is
recorded in the name of MERS, the Seller is the sole owner
of record and
holder of the
Assigned Mortgage Loan. With respect to each
Assigned Mortgage
Loan, the related Mortgage Note and the Mortgage are not
assigned or pledged,
and the Seller has good and marketable title thereto and
has full right and authority to transfer and sell the Assigned
Mortgage Loan to
the Purchaser. The
Seller is transferring
the Assigned Mortgage
Loan free and
clear of any and all
encumbrances,
liens, pledges, equities, participation
interests, claims,
agreements with other
parties to 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, 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
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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.
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.
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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 II (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, 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
