MORTGAGE CERTIFICATE PURCHASE AGREEMENT
Exhibit
4.2
THIS
MORTGAGE CERTIFICATE PURCHASE AGREEMENT (the “Agreement”) is made
as of February 27, 2009 between Banc of America Securities LLC, a Delaware
limited liability company (the “Seller”), and Banc of
America Funding Corporation, a Delaware corporation (the “Depositor”).
W
I T N E S S E T H
WHEREAS,
the Depositor desires to purchase from the Seller and the Seller desires to sell
to the Depositor an approximate 12.02% Percentage Interest of Banc of America
Funding 2006-D Trust, Class 5-A-2 Certificates (the “Mortgage
Certificates”) set forth on Schedule A hereto,
which was previously issued by the Banc of America Funding 2006-D Trust;
and
WHEREAS,
the Depositor intends to convey such Mortgage Certificates to Xxxxx Fargo Bank,
N.A., as trustee (the “Trustee”), under that
certain Trust Agreement, dated February 27, 2009 (the “Trust Agreement”), by
and between the Depositor and the Trustee, for the benefit of the holders of the
Banc of America Funding 2009-R1 Trust, Class A-1, Class A-2, Class A-3, Class
A-4 and Class A-R Certificates (the “Certificates”) issued
thereunder.
NOW
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Purchase and Sale of the
Mortgage Certificates.
(a) The
Seller agrees to sell to the Depositor, and the Depositor agrees to purchase
from the Seller, the Mortgage Certificates and all amounts payable thereon on or
after the date hereof.
(b) On the
Closing Date, as full consideration for the Seller’s sale of the Mortgage
Certificates to the Depositor, the Depositor will deliver the Certificates to
the Seller.
(c) Delivery,
transfer and/or assignment of the Mortgage Certificates by the Seller to the
Depositor and simultaneous delivery, transfer and/or assignment of the
Certificates to the Seller, shall be made on the Closing Date.
(d) It is the
intention of the Seller that the transfer and assignment of the Mortgage
Certificates shall constitute a sale from the Seller to the Depositor and that
such Mortgage Certificates not be a part of the Depositor’s property or estate
for any purpose under state or federal law, including without limitation in the
event of the insolvency of the Seller. In the event the transfer and
assignment of the Mortgage Certificates contemplated by this Agreement is deemed
to be other than a sale notwithstanding the intent of the parties hereto, this
Agreement shall be deemed to be and in such event hereby is the grant of a
security interest from the Seller to the Depositor, and the Depositor shall have
all the rights, powers and privileges of a secured party under the Uniform
Commercial Code in effect in the applicable jurisdiction. In such
event, the Seller agrees to take such action and execute such documents as shall
be necessary in order to
fully
realize the benefits of such secured party status, including, without
limitation, powers of attorney, financing statements, notices of lien or other
instruments or documents.
2. Conditions.
The
obligations of the parties under this Agreement are subject to the following
conditions:
(a) The
representations and warranties contained herein shall be accurate as of the
Closing Date; and
(b) On the
Closing Date, counsel for the Depositor shall have been furnished with all such
documents, certificates and opinions as they may reasonably request in order to
evidence the accuracy and completeness of any of the representations, warranties
or statements of the Seller, the performance of any of the obligations of the
Seller hereunder or the fulfillment of any of the conditions herein
contained.
3. Representations and
Warranties.
(a) Each
party hereby represents and warrants to the other party that (i) it is duly
incorporated or organized, as the case may be, and validly existing as an entity
under the laws of the jurisdiction in which it is chartered or organized, (ii)
it has the requisite corporate power and authority to enter into and perform
this Agreement, and (iii) this Agreement has been duly authorized by all
necessary corporate action, has been duly executed by one or more duly
authorized officers and, when executed by each of the parties hereto,
constitutes the legal, valid and binding agreement of such party enforceable
against such party in accordance with its terms, except as limited by
bankruptcy, fraudulent conveyance, fraudulent transfer, insolvency,
reorganization, liquidation, receivership, moratorium or other similar laws now
or hereafter in effect relating to creditors’ rights generally and by general
equitable principles, regardless of whether considered in a proceeding in equity
or at law.
(b) The
Seller further represents and warrants to the Depositor that (i) at the time of
transfer, the Seller will be the sole owner of the Mortgage Certificates, free
and clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind created by the Seller, and upon the delivery, transfer
or assignment of the Mortgage Certificates to the Depositor as contemplated
herein, the Depositor will receive the Mortgage Certificates free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind created by the Seller, (ii) none of the execution, delivery or performance
by the Seller of this Agreement shall (a) conflict with, result in any breach of
or constitute a default (or an event which, with the giving of notice or passage
of time, or both, would constitute a default) under, any term or provision of
the organizational documents of the Seller, or any material indenture,
agreement, order, decree or other material instrument to which the Seller is a
party or by which the Seller is bound, which conflict, breach or default would
materially and adversely affect the Seller’ ability to perform its obligations
hereunder or (b) violate any provision of any law, rule or regulation applicable
to the Seller of any regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties, (iii) no consent, license, approval or authorization from, or
registration or qualification with, any governmental
body,
agency or authority, nor any consent, approval, waiver or notification of any
creditor or lessor is required in connection with the execution, delivery and
performance by the Seller of this Agreement except such as have been obtained
and are in full force and effect and (iv) the purchase by the Depositor of the
Mortgage Certificates will not cause the Depositor to assume, and would not
subject the Depositor to, any obligations or liability (other than immaterial
non-payment obligations).
(c) The
Seller further represents and warrants to the Depositor that the Mortgage
Certificates constitute a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code. Within 90 days of its discovery or its
receipt of notice of a breach of this Section 3(c) or Section 3(b)(i), the
Seller shall cure such breach in all material respects or shall
repurchase the affected Mortgage Certificates from the Depositor at the
Repurchase Price.
(d) The
Seller further represents and warrants to the Depositor that at the time of
transfer the Mortgage Certificates have a rating of at least “AAA” (or its
equivalent) from at least one of Fitch Ratings, Xxxxx’x Investors
Service, Inc., Standard & Poor’s Rating Services, a Division of The
XxXxxx-Xxxx Companies, Inc., or DBRS, Inc. and are not subject to any downgrade
watch in respect of such rating.
4. Limited Recourse to the
Depositor and Non-Petition.
Notwithstanding
anything in this Agreement to the contrary, all amounts payable or expressed to
be payable by the Seller on, under or in respect of its obligations and
liabilities under this Agreement shall be recoverable only from and to the
extent of the net proceeds from the sale of the Certificates and upon final
realization of such sums and proceeds, the Seller shall have no further
liability and all claims in respect of such sums due but still unpaid shall be
extinguished. The Depositor agrees that its rights against the Seller
under this Agreement are limited to the extent that it will not take any action
or proceedings against the Seller to recover any amounts due and payable by the
Seller to it under this Agreement except as expressly permitted by the
provisions of this Agreement. The Depositor further agrees that it
will not petition a court for, or take any other action or commence any
proceedings for, the liquidation or winding-up of the Seller or any other
bankruptcy or insolvency proceedings with respect to the Seller until one year
and one day (or such longer preference period) after the later to occur of
repayment of all the Certificates or other satisfaction or extinguishment of all
liability with respect thereto. This provision shall survive the
termination of this Agreement.
5. Representations and
Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Seller and the Depositor or their officers set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of the Seller or the Depositor or any
of the their respective officers, directors or controlling persons, and will
survive delivery of and payment for the Mortgage Certificates.
6. Amendments.
This
Agreement may not be modified, amended, altered or supplemented, except upon the
execution and delivery of a written agreement by each of the parties
hereto.
7. Communications.
Except as
may be otherwise agreed between the parties, all communications hereunder shall
be made in writing to the relevant party by personal delivery or by courier or
first-class registered mail, or the closest local equivalent thereto, or by
facsimile transmission confirmed by personal delivery or by courier or
first-class registered mail as follows:
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to
the Seller:
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Banc
of America Securities LLC
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxxxx
Xxxxx
Facsimile
Number: (000) 000-0000
Reference: BAFC
2009-R1
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to
the Depositor:
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Banc
of America Funding Corporation
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxxxx
Xxxxx
Facsimile
Number: (000) 000-0000
Reference: BAFC
2009-R1
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or to
such other address, telephone number or facsimile number as either party may
notify to the other in accordance with the terms hereof from time to
time. Any communications hereunder shall be effective upon
receipt.
8. Governing
Law.
(a) 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 LAWS PRINCIPLES THEREOF
THAT WOULD REQUIRE THE APPLICATION OF A LAW OF A JURISDICTION OTHER THAN NEW
YORK.
(b) Each of
the parties hereto irrevocably (i) agrees that any legal suit, action or
proceeding against the Depositor brought by the Seller or by any person who
controls the Seller arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York court, (ii)
waives, to the fullest extent it may effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding.
(c) Each of
the parties hereto irrevocably and unconditionally waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement.
9. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page by
facsimile or other electronic transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
10. Definitions.
Capitalized
terms used herein but not defined herein shall have the meanings ascribed to
them in the Trust Agreement.
11. No
Assignment.
This
Agreement may not be assigned in whole or in part by any party hereto without
prior written consent of the other party hereto.
12. Entire
Agreement.
This
Agreement contains the entire agreement with respect to the rights and
obligations of the parties hereto relating to the purchase and sale of the
Certificates between the Seller and the Depositor.
13. Severability of
Provisions.
If any
one or more of the covenants, agreements, representations and warranties,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid in any jurisdiction, then, to the extent permitted by applicable law in
such jurisdiction, such covenants, agreements, representations and warranties,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, representations and warranties, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement, the Certificates or the rights of the holder
thereof.
14. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and their respective officers and directors and
controlling persons and their successors and assigns, and no other person will
have any right or obligation hereunder.
IN
WITNESS WHEREOF, this Agreement has been entered into as of the date first
written above.
BANC
OF AMERICA SECURITIES LLC
By: ________/s/ Xxxxx
Evans_________________
Name: Xxxxx
Xxxxx
Title: Principal
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BANC
OF AMERICA FUNDING CORPORATION
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By: ________/s/ Xxxxx
Evans_________________
Name: Xxxxx
Xxxxx
Title: Senior Vice President
SCHEDULE
A
Schedule
of Mortgage Certificates
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Issuer/Issuing
Entity
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Class
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Certificate
Balance
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Percentage
Interest
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Underlying
Pooling Agreement
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Banc
of America
Funding
2006-D
Trust
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5-A-2
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$20,124,786
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12.02%
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Pooling
and Servicing Agreement, dated April 28, 2006, among Banc of America
Funding Corporation, Xxxxx Fargo Bank, N.A. and U.S. Bank National
Association.
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Schedule A-1
