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EXECUTION COPY
 
Exhibit 4.2
 
MORTGAGE LOAN PURCHASE AGREEMENT
 
This Mortgage Loan Purchase Agreement (this “ Agreement ”), dated May 30, 2008, 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 Master Mortgage Loan Purchase and Servicing Agreement, dated as of April 1, 2003, by and between Seller (as successor in interest to Banc of America Mortgage Capital Corporation (“ BAMCC ”)), as purchaser, and Countrywide Home Loans, Inc. (“Countrywide”), as seller, (ii) that certain Amendment No. 1, dated as of July 1, 2003, by and among BAMCC, Countrywide and the Seller, (iii) that certain Amendment No. 2, dated as of September 1, 2004, by and among BAMCC, Countrywide and the Seller and (iv) that certain Amendment Reg AB to the Master Mortgage Loan Purchase and Servicing Agreement, dated as of January 1, 2006, by and between Countrywide and the Seller (collectively, the “ Countrywide Agreements ”), the Seller purchased the Mortgage Loans listed on Exhibit I hereto (the “ Countrywide Mortgage Loans ”) from Countrywide and Countrywide currently services such Mortgage Loans;
 
WHEREAS, pursuant to (i) that certain Flow Sale and Servicing Agreement, dated as of January 1, 2005, by and between the Seller, as purchaser, and GreenPoint Mortgage Funding, Inc. (“ GreenPoint ”), as seller, (ii) that certain Amendment No. 1, dated as of May 1, 2005, by and between the Seller and GreenPoint, (iii) 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 and (iv) that certain Memorandum of Sale, dated June 8, 2007, by and between the Seller and GreenPoint (collectively, the “ GreenPoint Agreements ”), the Seller purchased the Mortgage Loans listed on Exhibit II hereto (the “ GreenPoint Mortgage Loans ”) from GreenPoint and GreenPoint currently services the Mortgage Loans;
 
WHEREAS, pursuant to (i) that certain Second Amended and Restated Master Seller’s Warranties and Servicing Agreement, dated as of May 1, 2006, by and between the Seller and Wells Fargo Bank, National Association (“ Wells Fargo Bank ”) (the “May MSWSA”), (ii) that certain Second Amended and Restated Master Mortgage Loan Purchase Agreement, dated as of May 1, 2006, by and between the Seller and Wells Fargo Bank (the “May MMLPA”), (iii) that certain Assignment and Conveyance Agreement (WFHM 2006-W39), dated as of June 27, 2006 by and between the Seller and Wells Fargo Bank; (iv) that certain Assignment and Conveyance Agreement (WFHM 2006-W46), dated as of June 28, 2006 by and between the Seller and Wells Fargo Bank; (v) that certain Assignment and Conveyance Agreement (WFHM 2006-W105), dated as of December 18, 2006 by and between the Seller and Wells Fargo Bank; (vi) that certain Assignment and Conveyance Agreement (WFHM 2006-W113), dated as of December 20, 2006 by and between the Seller and Wells Fargo Bank; (vii) that certain Assignment and Conveyance Agreement (WFHM 2007-W05), dated as of February 20, 2007 by and between the Seller and Wells Fargo Bank; (viii) that certain Assignment and Conveyance Agreement (WFHM


 
 
 

 

 
2007-W07), dated as of March 22, 2007 by and between the Seller and Wells Fargo Bank; and (ix) that certain Assignment and Conveyance Agreement (WFHM 2007-W13), dated as of April 25, 2007 by and between the Seller and Wells Fargo Bank, and together with the May MSWSA and the May MMLPA, the “ Wells Fargo Bank Agreements ”), the Seller purchased the Mortgage Loans attached on Exhibit III   (the “ Wells Fargo Bank Mortgage Loans ”) from Wells Fargo Bank and Wells Fargo Bank currently services the Mortgage Loans;
 
WHEREAS, pursuant to (i) that certain Master Seller’s Warranties and Servicing Agreement, dated as of September 1, 2003, by and between Seller (as successor in interest to BAMCC, as purchaser, and National City Mortgage, as seller (as amended by (a) that certain Amendment No. 1, dated as of July 1, 2004, by and among BAMCC, National City Mortgage and the Seller, (b) 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, (c) that certain Amendment No. 2, dated as of October 1, 2004, by and between National City Mortgage and the Seller, (d) that certain Amendment No. 3, dated as of August 11, 2005, by and between National City Mortgage and the Seller, and (e) 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) and (ii) that certain Assignment, Assumption and Recognition Agreement, dated August 21, 2007, among Branch Banking and Trust Company, the Seller and National City Mortgage (collectively, the “ National City Agreements ”), the Seller purchased the Mortgage Loans attached on Exhibit IV (the “ National City Mortgage Loans ”) from National City Mortgage and National City Mortgage currently services the Mortgage Loans;
 
WHEREAS, pursuant to (i) that certain Flow Sale and Servicing Agreement, dated as of February 1, 2004, by and between the Seller (as successor in interest to BAMCC) and SunTrust Mortgage Inc. (“ SunTrust ” and, together with Countrywide, GreenPoint, WMB, and Wells Fargo Bank, the “ Underlying Transferors ”) (as amended by (a) that certain Amendment No. 1, dated as of June 1, 2004, by and between the Seller and SunTrust, (b) that certain Master Assignment, Assumption and Recognition Agreement, dated September 1, 2004, by and among BAMCC, SunTrust, the Seller and Wachovia Bank, (c) that certain Amendment No. 2, dated as of November 1, 2004, by and between the Seller and SunTrust, and (d) 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), (ii) that certain Memorandum of Sale, dated June 8, 2007, by and between the Seller and SunTrust and (iii) that certain Memorandum of Sale, dated July 9, 2007, by and between the Seller and SunTrust (collectively, the “ SunTrust Agreements ” and, together with the Countrywide Agreements, the GreenPoint Agreements and the Wells Fargo Bank Agreements, the “ Transfer Agreements ”), the Seller purchased the mortgage loans listed on Exhibit V hereto (the “ SunTrust Mortgage Loans ” and, together with the Countrywide Mortgage Loans, the GreenPoint Mortgage Loans, and the Wells Fargo Bank Mortgage Loans, the “ Assigned Mortgage Loans ”) from SunTrust;
 
WHEREAS, the Seller is the owner of the mortgage loans listed on Exhibit VI (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

 
 
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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
 
 
WHEREAS, pursuant to the terms of a Pooling and Servicing Agreement, dated May 30, 2008 (the “ Pooling and Servicing Agreement ”), among the Purchaser, as depositor, U.S. Bank National Association, as trustee (the “ Trustee ”), and LaSalle Bank National Association, 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 2008-1 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 2008-1 (the “ Certificates ”) or, if not defined therein, in the underwriting agreement, dated May 30, 2008 (the “ Underwriting Agreement ”), between the Purchaser and Banc of America Securities LLC, or in the purchase agreement, dated May 30, 2008 (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 $232,519,583.96 (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
 

 
 
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on the Mortgage Loans on or before the Cut-off Date), and 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 (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 of 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) that certain Assignment, Assumption and Recognition Agreement, dated May 30, 2008, by and among the Seller, the Purchaser, the Trustee and Countrywide Home Loans, Inc., and Countrywide Home Loans Servicing LP; (b) that certain Assignment, Assumption and Recognition Agreement, dated May 30, 2008, by and among the Seller, the Purchaser, the Trustee and GreenPoint Mortgage Funding, Inc.; (c) that certain Assignment, Assumption and Recognition Agreement, dated May 30, 2008, by and among the Seller, the Purchaser, the Trustee and National City Mortgage Co.; (d) that certain Assignment, Assumption and Recognition Agreement, dated May 30, 2008, by and among the Seller, the Purchaser, the Trustee and SunTrust Mortgage, Inc.; and (e) those certain Assignment, Assumption and Recognition Agreements, each dated May 30, 2008, by and among the Seller, the Purchaser, the Trustee and Wells Fargo Bank.  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 or the applicable originator under the related Transfer Agreement or related underlying sale 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 or applicable originator under any applicable representation or warranty made by the related Underlying Transferor or applicable originator.  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 or applicable originator in the related underlying sale 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 or applicable originator in the related underlying sale 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 such Underlying Transferor or applicable originator 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:
 

 
 
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(a)   The information set forth with respect to the Assigned Mortgage Loans on the mortgage loan schedules attached hereto as Exhibit I , Exhibit II , Exhibit III , Exhibit

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