Exhibit 4.2
MORTGAGE CERTIFICATE PURCHASE
AGREEMENT
THIS MORTGAGE CERTIFICATE PURCHASE
AGREEMENT (the
“ Agreement ”) is dated March 30, 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 7.60% Percentage Interest of Banc of
America Mortgage 2006-B Trust, Class 4-A-1 Certificates (the
“ Mortgage Certificates ”) set forth on
Schedule A hereto, which was previously issued by the Banc
of America Mortgage 2006-B Trust; and
WHEREAS, the Depositor intends to
convey such Mortgage Certificates to Wells Fargo Bank, N.A., as
trustee (the “ Trustee ”), under that certain
Trust Agreement, dated March 30, 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-R3 Trust, Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5 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
inst
