|
<PAGE>
Exhibit 4.2
--------------
Execution Copy
--------------
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
July 31,
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 (i) that certain Flow Sale and Servicing
Agreement,
dated as of January 1, 2005, by and between the Seller and
GreenPoint Mortgage
Funding, Inc. ("GreenPoint"), (ii) that certain Amendment No. 1,
dated as of May
1, 2005, by and between the Seller and GreenPoint, (iii) that
certain Amendment
No. 2 dated as of March 1, 2007, by and between the Seller and
GreenPoint, (iv)
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, (v) that certain Memorandum of Sale, dated March 26,
2007, by and
between Seller and GreenPoint; (vi) those certain Memoranda of
Sale, each dated
June 8, 2007, each by and between the Seller and GreenPoint
(collectively, the
"GreenPoint Agreements"), the Seller purchased the mortgage
loans listed on
Exhibit I hereto (the "GreenPoint Mortgage Loans") from
GreenPoint;
WHEREAS, pursuant to (i) that certain Flow Sale and Servicing
Agreement,
dated as of February 1, 2004, by and between Seller (as
successor in interest to
Banc of America Mortgage Capital Corporation) and SunTrust
Mortgage Inc.
("SunTrust"), (ii) that certain Amendment No. 1, dated as of
June 1, 2004, by
and between the Seller and SunTrust, (iii) that certain Master
Assignment,
Assumption and Recognition Agreement, dated September 1, 2004,
by and among Banc
of America Mortgage Capital Corporation, SunTrust, the Seller
and Wachovia Bank,
National Association, (iv) that certain Amendment No. 2, dated
as of November 1,
2004, by and between the Seller and SunTrust, (v) 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 (vi)
that certain
Memorandum of Sale, dated June 15, 2007, by and between the
Seller and SunTrust
(collectively, the "SunTrust Agreements"), the Seller purchased
the mortgage
loans listed on Exhibit II hereto (the "SunTrust Mortgage Loans"
and, together
with the GreenPoint Mortgage Loans, the "Assigned Mortgage
Loans") from
SunTrust;
WHEREAS, the Seller is the owner of the mortgage loans listed on
Exhibit
III (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 "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;
<PAGE>
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
July 31, 2007 (the "Pooling and Servicing Agreement"), among the
Purchaser, as
depositor, U.S. Bank National Association, as trustee (the
"Trustee"), Citibank,
N.A., as securities administrator (the "Securities
Administrator"), and
CitiMortgage, Inc., as master servicer (the "Master Servicer"),
the Purchaser
will convey the Mortgage Loans to Banc of America Funding 2007-6
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 2007-6 (the "Certificates") or, if not defined therein,
in the
underwriting agreement dated July 31, 2007 (the "Underwriting
Agreement"),
between the Purchaser and Banc of America Securities LLC, or in
the purchase
agreement, dated July 31, 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 $437,679,717.90 (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 Section 3.04 of the Master Bulk Sale and Interim Servicing
Agreement, dated
December 1, 2005, by and between the Seller and MortgageIT,
Inc., with respect
to the BANA Mortgage Loans purchased by the Seller from
MortgageIT, Inc., the
remedy provisions of Sections 3.04 of the SunTrust Agreements,
with respect to
the SunTrust Mortgage Loans purchased by the Seller from
SunTrust, the remedy
provisions of Sections 3.04 of the GreenPoint Agreements, with
respect to the
GreenPoint Mortgage Loans purchased by the Seller from
GreenPoint, and all of
2
<PAGE>
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 or the Custodian all
documents, instruments
and agreements required to be delivered by the Purchaser to the
Trustee or the
Custodian 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 July 31, 2007, by and among the
Seller, the
Purchaser, the Trustee, the Master Servicer and GreenPoint and
(b) the
Assignment, Assumption and Recognition Agreement, dated July 31,
2007, 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
GreenPoint or
SunTrust 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
GreenPoint or
SunTrust, as the case may be, under any applicable
representation or warranty
made by GreenPoint or SunTrust, as applicable. 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 GreenPoint or
SunTrust, as the
case may be, 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 GreenPoint or SunTrust, as the case may be, 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(p) below), without regard to whether GreenPoint or SunTrust,
as the case may
be, fulfills its contractual obligations in respect of such
representation or
warranty. Subject to the foregoing, the Seller represents and
warrants with
respect to the Assigned Mortgage Loans, or each Assigned
Mortgage Loan, as the
case may be, as of the date hereof or such other date set forth
herein, that as
of the Closing Date:
(a) The information set forth with respect to the Assigned
Mortgage
Loans on the mortgage loan schedules attached hereto as Exhibit
I and Exhibit II
(the "Assigned Mortgage Loan Schedules") provides an accurate
listing of the
Assigned Mortgage Loans, and the information with respect to
each Assigned
Mortgage Loan on the related Assigned Mortgage Loan Schedule is
true and correct
in all material respects at the date or dates respecting which
such information
is given;
(b) No Assigned Mortgage Loan is more than 30 days delinquent as
of
the Cut-off Date. The Seller has not waived any default, breach,
violation or
event of acceleration, and the Seller has not taken any action
to waive any
3
<PAGE>
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;
(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
4
<PAGE>
Assigned Mortgage Loan, the related Mortgage Note and the
Mortgage are not
assigned or pledged, and the Seller has good and marketable
title thereto and
has full right and authority to transfer and sell the Assigned
Mortgage Loan to
the Purchaser. The Seller is transferring the Assigned Mortgage
Loan free and
clear of any and all encumbrances, liens, pledges, equities,
participation
interests, claims, agreements with other parties to sell or
otherwise transfer
the Assigned Mortgage Loan, charges or security interests of any
nature
encumbering such Assigned Mortgage Loan;
(m) With respect to each Assigned Mortgage Loan, the terms of
the
Mortgage Note and Mortgage have not been impaired, waived,
altered or modified
in any respect, except by a written instrument which has been
recorded, if
necessary, to protect the interests of the Purchaser and
maintain the lien
priority of the Mortgage and which has been delivered to the
Purchaser or its
designee. The substance of any such waiver, alteration or
modification has been
approved by the title insurer, to the extent required by the
policy, and its
terms are reflected on the related Assigned Mortgage Loan
Schedule. No
instrument of waiver, alteration or modification has been
executed, and no
Mortgagor has been released, in whole or in part, except in
connection with an
assumption agreement approved by the title insurer, to the
extent required by
the policy, and which assumption agreement is part of the
Mortgage File
delivered to the Purchaser or its designee and the terms of
which are reflected
on the related Assigned Mortgage Loan Schedule;
(n) The Seller has not dealt with any broker, investment banker,
agent
or other Person (other than the Purchaser and Banc of America
Securities LLC)
who may be entitled to any commission or compensation in
connection with the
sale of the Assigned Mortgage Loans;
(o) No Assigned Mortgage Loan is a "high cost" loan as defined
under
any federal, state or local law applicable to such Assigned
Mortgage Loan at the
time of its origination;
(p) No Assigned Mortgage Loan is a High Cost Loan or Covered
Loan, as
applicable (as such terms are defined in S&P's LEVELS(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;
(q) The hazard insurance policy on each Assigned Mortgage Loan
has
been validly issued and is in full force and effect, and will be
in full force
and effect and inure to the benefit of the Purchaser upon the
consummation of
the transactions contemplated by this Agreement;
(r) With respect to each Assigned Mortgage Loan, each
Mortgage
evidences a valid, subsisting, enforceable and perfected first
lien on the
related Mortgaged Property (including all improvements on the
Mortgaged
Property). The lien of the Mortgage is subject only to: (1)
liens of current
real property taxes and assessments not yet due and payable and,
if the related
Mortgaged Property is a condominium unit, any lien for common
charges permitted
by statute, (2) covenants, conditions and restrictions, rights
of way, easements
and other matters of public record as of the date of recording
of such Mortgage
acceptable to mortgage lending institutions in the area in which
the related
Mortgaged Property is located and specifically referred to in
the lender's title
5
<PAGE>
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 or the
Custodian in connection
with, a Mortgage Loan establishes a valid, subsisting and
enforceable first lien
on the property described therein and the Seller has, and the
Purchaser will
have, the full right to sell and assign the same to the
Trustee;
(s) With respect to any Assigned Mortgage Loan covered by a
title
insurance policy, the originator is the sole insured of such
mortgagee title
insurance policy, such mortgagee title insurance policy is in
full force and
effect and will inure to the benefit of the Purchaser upon the
consummation of
the transactions contemplated by this Agreement, no claims have
been made under
such mortgagee title insurance policy and no prior holder of the
related
Mortgage, including the Seller, has done, by act or omission,
anything that
would impair the coverage of such mortgagee title insurance
policy;
(t) With respect to each Assigned Mortgage Loan, there are
no
mechanics' or similar liens or claims which have been filed for
work, labor or
material (and no rights are outstanding that under the law could
give rise to
such liens) affecting the related Mortgaged Property which are
or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(u) 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
(v) 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.
6
<PAGE>
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
| 
