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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 (this
"Agreement"), dated
February
27, 2007, is between Banc of America Funding Corporation, a
Delaware corporation
(the "Purchaser") and Bank of America, National Association,
a national banking
association (the "Seller").
WHEREAS, pursuant
to (a) that
certain Master Seller's Warranties and
Servicing Agreement,
dated as of September
1, 2003, by and
between the Seller
(as successor in interest to BAMCC), as purchaser, and National City Mortgage,
as seller ("National
City Mortgage"), as
amended by (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 ("Wachovia"), (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 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, (g) that certain Assignment and Conveyance
Agreement,
dated January 24,
2007, by and between
National City Mortgage
and the Seller,
and (h) that certain
Assignment and
Conveyance
Agreement,
dated February 1,
2007, by and between
National City Mortgage and the Seller (collectively, the
"National City Mortgage Agreements"), the Seller purchased the mortgage loans
listed on Exhibit I (the "National City Mortgage Loans") from National City
Mortgage and National
City Mortgage currently services the National City
Mortgage Loans;
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 BAMCC),
as purchaser, and SunTrust Mortgage, Inc., as seller
("SunTrust"), as
amended by (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, (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 January 23, 2007, by and between the
Seller and SunTrust,
(g) that certain
Memorandum of Sale,
dated February 9,
2007, by and between the Seller and SunTrust, and (h) that certain
Memorandum of
Sale, dated
February 15, 2007, by and between the Seller and SunTrust
(collectively, the
"SunTrust
Agreements"), the
Seller purchased the
mortgage
loans listed on Exhibit II (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 ("WMB fsb"),
Washington Mutual Bank ("WMB") and the
Seller (as successor in interest to BAMCC), as purchaser (as
amended by (i) that
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certain Master
Assignment, Assumption
and Recognition
Agreement, dated as
of
July 1, 2004 (the "MAAR"), by and among BAMCC, the Seller and WMB,
and (ii) that
certain Regulation
AB Amendment to the Mortgage Loan Purchase and Sale
Agreement, dated as of
January 1, 2006, by and among WMB fsb, WMB and the
Seller), (b) the Servicing Agreement (Amended and Restated), dated
as of July 1,
2003, by and between the Seller and WMB, 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 WMB and the Seller), (c) that
certain Term
Sheet, dated December
22, 2006, by and between the Seller and WMB, and (d) that
certain Term Sheet,
dated January 26,
2007, by and between
the Seller and WMB
(collectively, the
"WAMU Agreements"),
the Seller purchased the mortgage loans
listed on Exhibit III (the "WAMU Mortgage Loans") from WMB and WMB 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, National
Association ("Wells
Fargo Bank" and together with National City Mortgage, SunTrust and WMB, the
"Underlying
Transferors" and each, an "Underlying Transferor"), 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,
(c) those certain
Assignment and
Conveyance Agreements
(2006-W103 and 2006-W113), each dated December 20, 2006,
each by and between the Seller and Wells Fargo Bank, (d) that
certain Assignment
and Conveyance Agreement, dated January 19, 2007 (2007-W01),
by and between the
Seller and Wells Fargo, and (e) that certain Assignment and
Conveyance Agreement
(2007-W02), dated
January 26,
2007, each by and between the Seller and
Wells
Fargo Bank
(collectively, the
"Wells Fargo
Agreements" and
together with the
National City
Mortgage Agreements, the SunTrust Agreements and the WAMU
Agreements, the "Transfer Agreements"), the Seller purchased the mortgage
loans
listed on Exhibit IV (the "Wells Fargo Mortgage Loans" and together with the
National City Mortgage Loans, the SunTrust Mortgage Loans and the WAMU
Mortgage
Loans, the "Assigned Mortgage Loans") from Wells Fargo and Wells
Fargo currently
services the Wells Fargo Mortgage Loans;
WHEREAS, the Seller is
the owner of the mortgage loans listed on Exhibit V
(the "BANA Mortgage
Loans," and together with the Assigned Mortgage Loans, the
"Mortgage Loans") and
the related notes or other evidence of indebtedness (the
"BANA Mortgage
Notes," and together
with the notes of the
Assigned Mortgage
Loans, the
"Mortgage Notes") or other evidence of ownership, and the other
documents or
instruments
constituting
the related
mortgage file (the "BANA
Mortgage File");
WHEREAS, the
Seller, as of the date hereof, owns the mortgages (the
"Mortgages") on the
properties
(the "Mortgaged Properties") securing such
Mortgage Loans,
including rights (a) to any property acquired by foreclosure or
deed in lieu of
foreclosure
or otherwise, and (b) to the proceeds of any
insurance policies
covering the Mortgage
Loans or the Mortgaged
Properties or
the obligors on the Mortgage Loans;
WHEREAS, the parties
hereto desire that the Seller sell the Mortgage Loans
to the Purchaser and the Purchaser purchase the Mortgage Loans from the Seller
pursuant to the terms of this Agreement; and
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WHEREAS, pursuant to the terms of a Pooling and Servicing
Agreement, dated
February 27, 2007 (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 2007-2 Trust (the
"Trust").
NOW,
THEREFORE, in
consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
The
Purchaser and the Seller hereby recite and agree as follows:
1. Defined Terms. Terms used without definition herein shall have the
respective meanings
assigned to them in
the Pooling and
Servicing Agreement
relating to the issuance of the Purchaser's Mortgage Pass-Through
Certificates,
Series 2007-2
(the "Certificates") or, if not defined therein, in the
underwriting agreement
dated February 27, 2007 (the "Underwriting Agreement"),
between the Purchaser
and Banc of America
Securities
LLC, or in the
purchase
agreement, dated
February 27, 2007 (the "Purchase Agreement"), between the
Purchaser and Banc of America Securities LLC.
2.
Purchase Price;
Purchase and Sale.
The Seller agrees to
sell, and the
Purchaser agrees to
purchase, the Mortgage
Loans. In consideration of the sale
of the Mortgage Loans
from the Seller to the Purchaser on the Closing Date, the
Purchaser agrees
to pay to the
Seller on the
Closing Date, in immediately
available funds, an amount equal to $1,002,000,840.79 (the
"Purchase Price").
Upon
payment of the
Purchase Price, the Seller shall be deemed
to have transferred,
assigned, set over and otherwise conveyed to the Purchaser
all the right, title and interest of the Seller in and to the
Mortgage Loans and
all Mortgage Files,
including all interest and principal received or receivable
by the Seller on or with respect to the Mortgage Loans after the Cut-off Date
(and including
scheduled payments of principal and interest due after the
Cut-off Date but
received by the Seller on or before the Cut-off Date and
Principal Prepayments received or applied on the Cut-off Date, but
not including
payments of principal
and interest due on
the Mortgage Loans on
or before the
Cut-off Date), together with the remedy provisions of Section 3.04
of the Master
Bulk Sale and Interim Servicing Agreement, dated as of May 1, 2006, between
the
Seller and American Home Mortgage Corp., with respect to the BANA
Mortgage Loans
purchased by the Seller from American Home Mortgage Corp., the
remedy provisions
of Part I: General
Information, Section
3.04.03 of the Buyer's
Correspondent
Direct Seller Guide
and the Correspondent
Loan Purchase and Sale Agreement,
dated March
23, 2006, by and between the Seller and Pinnacle Financial
Corporation, with
respect to the BANA
Mortgage Loans
purchased by the
Seller
from Pinnacle
Financial Corporation,
the remedy provisions
of Part I: General
Information, Section
3.04.03 of the Buyer's
Correspondent Direct
Seller Guide
and the Correspondent Loan Purchase and Sale Agreement,
dated February 8,
2006,
by and between the Seller and Coastal Capital Corp., with respect to the BANA
Mortgage Loans
purchased by the Seller from Coastal Capital Corp., the remedy
provisions of Sections
3.04 of the
SunTrust Agreements, with respect to the
SunTrust Mortgage
Loans purchased by the
Seller from SunTrust,
and all of the
Seller's rights,
title and interest in
and to all Mortgaged
Property and any
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related title, hazard, primary mortgage, mortgage pool policy or
other insurance
policies including
all income,
payments, products and proceeds of any of
the
foregoing (but
excluding (i) any fees payable by a
Mortgagor for the right to
cancel any portion of principal or interest of a BPP Mortgage
Loan and (ii) any
the rights the Seller may have with respect to premium recapture or purchase
price protection).
The Purchaser hereby directs the Seller, and the Seller
hereby agrees,
to deliver to the Trustee all documents, instruments and
agreements required to
be delivered by the
Purchaser to the Trustee under the
Pooling and
Servicing Agreement and such other documents, instruments and
agreements as the Purchaser or the Trustee shall reasonably
request.
3.
Representations
and Warranties as to
the Assigned Mortgage
Loans. The
representations and
warranties with
respect to the Assigned Mortgage Loans in
the related
Transfer Agreement were made as of the date specified in such
Transfer
Agreement. The
Seller's
right,
title
and interest in such
representations and
warranties
and the remedies in
connection therewith
have
been assigned to the Purchaser pursuant to (a) the Assignment, Assumption and
Recognition Agreement,
dated February 27, 2007, by and among
the Seller, the
Purchaser, the
Trustee and National City Mortgage, (b) the Assignment,
Assumption and Recognition Agreement, dated February 27, 2007, by and
among the
Seller, the Purchaser, the Trustee and SunTrust, (c) the
Assignment,
Assumption
and Recognition Agreement, dated February 27, 2007, by and among
the Seller, the
Purchaser, the
Trustee and WMB, and (d) the Assignment, Assumption and
Recognition Agreement,
dated February 27, 2007, by and among
the Seller, the
Purchaser, the
Trustee and Wells Fargo Bank with respect to the Wells Fargo
Mortgage Loans. To the extent that any fact, condition or event with respect
to
a Mortgage Loan constitutes a breach of both (i) a representation
or warranty of
an Underlying
Transferor
under the related Transfer Agreement and (ii) a
representation or warranty of the Seller under this Agreement, the
only right or
remedy of the
Purchaser shall be the
right to enforce the
obligations of the
related Underlying
Transferor under any
applicable
representation or warranty
made by it. The Purchaser acknowledges and agrees that the
representations
and
warranties of the
Seller in this Section 3 are applicable only to facts,
conditions or events that do not constitute a breach of any
representation
or
warranty made by an Underlying Transferor in the related Transfer
Agreement. The
Seller shall have no
obligation or
liability with respect to any breach of
a
representation or
warranty made by it with respect to the Mortgage Loans if the
fact, condition or event constituting such breach also constitutes
a breach of a
representation or
warranty made by an Underlying Transferor in the related
Transfer Agreement (other than with respect to the representations
or warranties
in Section 3(k), to the extent such representations and warranties relate to
predatory or abusive lending and the representations and warranties in Section
3(o) below), without
regard to whether such Underlying Transferor fulfills its
contractual
obligations in respect of such representation or warranty.
Subject
to the foregoing,
the Seller represents and warrants with respect to the
Assigned Mortgage
Loans, or each Assigned Mortgage Loan, as the case may be, as
of the date hereof or such other date set forth herein, that as of the Closing
Date:
(a) The information
set forth with respect to the Mortgage Loans
on the mortgage loan schedules attached hereto as Exhibit I,
Exhibit II, Exhibit
III and Exhibit IV (the "Assigned Mortgage Loan Schedules")
provides an accurate
listing of the Assigned Mortgage Loans, and the information with
respect to each
Assigned Mortgage Loan
on the related
Assigned Mortgage Loan
Schedule is true
and correct in all material respects at the date or dates
respecting which such
information is given;
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(b) No Assigned Mortgage Loan is more than 30 days delinquent as
of
the Cut-off Date. The
Seller has not waived any default, breach, violation or
event of acceleration,
and the Seller has not taken any action to waive any
default, breach, violation or even of acceleration, with respect to
any Assigned
Mortgage Loan;
(c) There are no
delinquent taxes, assessments that could become a
lien prior to the related Mortgage or insurance premiums affecting the related
Mortgaged Property;
(d) With respect
to each Assigned Mortgage Loan, the related
Mortgage has not been satisfied, canceled, subordinated or rescinded, in
whole
or in part, and the
related Mortgaged
Property has not been
released from the
lien of the Mortgage,
in whole or in part, nor has any instrument been executed
that would effect any such satisfaction, cancellation,
subordination, rescission
or release;
(e) With respect
to each Assigned Mortgage Loan, there is no
material default,
breach, violation or event of acceleration existing under any
Mortgage or the related Mortgage Note and no event which,
with the passage
of
time or with notice
and the expiration of any grace or cure period, would
constitute a material default, breach, violation or event of
acceleration, and
neither the Seller nor
its predecessors
have waived any material default,
breach, violation or event of acceleration;
(f) With respect
to each Assigned Mortgage Loan, the related
Mortgaged Property is
free of material
damage that would affect adversely the
value of the Mortgaged
Property as security
for the Assigned
Mortgage Loan or
the use for which the premises were intended;
(g) With respect to each Assigned Mortgage Loan, to
the best of
the Seller's knowledge, there is no proceeding pending for
the total or partial
condemnation of the Mortgaged Property;
(h) With respect
to each Assigned Mortgage
Loan, the related
Mortgaged Property is
lawfully occupied
under applicable law; all inspections,
licenses and
certificates
required to be made or
issued with
respect to all
occupied portions of
each Mortgaged
Property and, with
respect to the use and
occupancy of the same,
including but not limited to certificates of occupancy,
have been made or obtained from the appropriate authorities, except where the
failure would not have
a material adverse
effect upon the
Assigned Mortgage
Loan;
(i) No Assigned Mortgage Loan is in foreclosure;
(j) Each Assigned Mortgage Loan is a "qualified mortgage"
within
the meaning of Section 860G of the Code and Treas. Reg 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 (inclusive of
prepayment charges) applicable to the origination and servicing of
each Assigned
Mortgage Loan have been complied with;
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(l) Except with
respect to each Assigned Mortgage Loan for which
the related Mortgage
is recorded in the name of MERS,
the Seller is the
sole
owner of record and holder of the Assigned Mortgage Loan. With respect to each
Assigned Mortgage
Loan, the related Mortgage Note and the Mortgage are not
assigned or pledged,
and the Seller has good and marketable title thereto and
has full right and authority to transfer and sell the Assigned
Mortgage Loan to
the Purchaser. The
Seller is transferring
the Assigned Mortgage
Loan free and
clear of any and all
encumbrances,
liens, pledges, equities, participation
interests, claims,
agreements with other
parties to sell or otherwise transfer
the Assigned
Mortgage Loan, charges or security interests of any nature
encumbering such Assigned Mortgage Loan;
(m) With respect to
each Assigned Mortgage
Loan, the terms of the
Mortgage Note and Mortgage have not been impaired, waived, altered or modified
in any respect,
except by a written
instrument
which has been
recorded, if
necessary, to protect
the interests
of the Purchaser and maintain the lien
priority of the
Mortgage and which has been delivered to the Purchaser or its
designee. The substance of any such waiver, alteration or modification has
been
approved by the title
insurer, to the extent
required by the
policy, and its
terms are reflected on the related Assigned Mortgage Loan Schedule. No
instrument of waiver,
alteration or
modification
has been executed, and no
Mortgagor has been released, in whole or in part, except in connection with an
assumption agreement
approved by the title
insurer, to the extent
required by
the policy,
and which assumption agreement is part of the Mortgage File
delivered to the
Purchaser or its designee and the terms of which are reflected
on the related Assigned Mortgage Loan Schedule;
(n) The Seller
has not dealt with any
broker, investment
banker,
agent or other Person (other than the Purchaser and Banc of America
Securities
LLC) who may be entitled to any commission or compensation in connection with
the sale of the Assigned Mortgage Loans;
(o) No Assigned Mortgage Loan is a High Cost Loan 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
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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;
(s) With respect
to each Assigned Mortgage Loan, there are no
mechanics' or similar
liens or claims which have been filed for work, labor or
material (and no
rights are outstanding
that under the law
could give rise to
such liens) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(t) If the
Assigned Mortgage Loan is secured by a long-term
residential lease, (1) the lessor under the lease holds a fee
simple interest in
the land; (2) the
terms of such lease
expressly permit the
mortgaging of the
leasehold estate,
the assignment of the
lease without the lessor's consent and
the acquisition
by the holder of the
Assigned Mortgage of the rights of the
lessee upon
foreclosure or
assignment in lieu of
foreclosure
or provide the
holder of the Assigned Mortgage with substantially similar
protections; (3)
the
terms of such lease do not (a) allow the termination thereof upon the lessee's
default without the
holder of the Assigned
Mortgage being
entitled to receive
written notice
of, and opportunity to cure, such default, (b) allow the
termination of the
lease in the event of damage or destruction as long as the
Assigned Mortgage is
in existence,
(c) prohibit the holder of the Assigned
Mortgage from being
insured (or
receiving proceeds of insurance) under the
hazard insurance policy or policies relating to the Assigned
Mortgaged Property
or (d) permit any increase in the rent other than pre-established
increases set
forth in the lease;
(4) the original term of such lease in not less than 15
years; (5) the term of
such lease does not
terminate earlier
than five years
after the maturity
date of the Assigned
Mortgage Note; and (6) the Assigned
Mortgaged Property is
located in a
jurisdiction in which
the use of leasehold
estates in transferring ownership in residential properties is a
widely accepted
practice; and
(u) All information
on the Assigned Mortgage Loan Schedules
regarding any
prepayment
charges is complete
and accurate in all material
respects and each
prepayment charge has
customary terms and is permissible and
enforceable in accordance with its terms under applicable law.
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 Mortg
