EXHIBIT 4.1
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Seller
and
ASSET BACKED FUNDING CORPORATION,
as Purchaser
ADDITIONAL MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of August 30, 2006
Adjustable-Rate and Fixed-Rate Mortgage Loans
Asset Backed Funding Corporation Asset-Backed Certificates, Series 2006-OPT1
Table of Contents
Page
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ARTICLE I.
DEFINITIONS
Section 1.01 Definitions.................................................
ARTICLE II.
SALE OF ADDITIONAL GROUP 3 MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01 Sale of Additional Group 3 Mortgage Loans...................
Section 2.02 Obligations of the Seller and Seller Upon Sale..............
Section 2.03 Payment of Purchase Price for the Additional
Group 3 Mortgage Loans......................................
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Seller Representations and Warranties Relating to
the Additional Group 3 Mortgage Loans.......................
Section 3.02 Seller Representations and Warranties Relating to
the Seller..................................................
Section 3.03 Remedies for Breach of Representations and
Warranties..................................................
ARTICLE IV.
SELLER'S COVENANTS
Section 4.01 Covenants of the Seller.....................................
ARTICLE V.
INDEMNIFICATION WITH RESPECT TO THE MORTGAGE LOANS
Section 5.01 [Reserved]..................................................
ARTICLE VI.
TERMINATION
Section 6.01 Termination.................................................
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment...................................................
Section 7.02 Governing Law...............................................
Section 7.03 Notices.....................................................
Section 7.04 Severability of Provisions..................................
Section 7.05 Counterparts................................................
Section 7.06 Further Agreements..........................................
Section 7.07 Intention of the Parties....................................
Section 7.08 Successors and Assigns; Assignment of Purchase
Agreement...................................................
ADDITIONAL MORTGAGE LOAN PURCHASE AGREEMENT, dated as of August 30,
2006 (the "Agreement"), between Bank of America, National Association (the
"Seller") and Asset Backed Funding Corporation (the "Purchaser").
WITNESSETH
----------
WHEREAS, the Seller is the owner of (a) the notes or other evidences
of indebtedness (the "Mortgage Notes") so indicated on Schedule I hereto
referred to below and (b) the other documents or instruments constituting the
Mortgage File (collectively, the "Additional Group 3 Mortgage Loans"); and
WHEREAS, the Seller, as of the date hereof, owns the mortgages (the
"Mortgages") on the properties (the "Mortgaged Properties") securing such
Additional Group 3 Mortgage Loans, including rights to (a) any property acquired
by foreclosure or deed in lieu of foreclosure or otherwise and (b) the proceeds
of any insurance policies covering the Additional Group 3 Mortgage Loans or the
Mortgaged Properties or the obligors on the Additional Group 3 Mortgage Loans;
and
WHEREAS, the parties hereto desire that the Seller sell the Additional
Group 3 Mortgage Loans to the Purchaser pursuant to the terms of this Agreement;
and
WHEREAS, pursuant to the terms of an Additional Transfer Instrument,
dated as of August 30, 2006 (the "Additional Transfer Instrument"), between the
Purchaser, as depositor, and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"),
the Purchaser will convey the Additional Group 3 Mortgage Loans to ABFC
2006-OPT1 Trust (the "Trust").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions. All capitalized terms used but not defined herein
and below shall have the meanings assigned thereto in the Pooling and Servicing
Agreement, dated as of July 1, 2006 (the "Pooling and Servicing Agreement"),
among the Purchaser, as depositor, Option One Mortgage Corporation, as servicer,
and the Trustee.
ARTICLE II.
SALE OF ADDITIONAL GROUP 3 MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01 Sale of Additional Group 3 Mortgage Loans. The Seller,
concurrently with the execution and delivery of this Agreement, does hereby
sell, assign, set over, and otherwise convey to the Purchaser, without recourse,
(i) all of its right, title and interest in and to each Additional Group 3
Mortgage Loan, including the related Cut-off Date Principal Balance, all
interest accruing thereon on or after the Subsequent Cut-off Date and all
collections in respect of interest and principal due after the Subsequent
Cut-off Date; (ii) property which secured such Additional Group 3 Mortgage Loan
and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii)
its interest in any insurance policies in respect of the Additional Group 3
Mortgage Loans and (iv) all proceeds of any of the foregoing.
Section 2.02 Obligations of the Seller Upon Sale. In connection with any
transfer pursuant to Section 2.01 hereof, the Seller further agrees, at its own
expense on or prior to the Additional Transfer Date, (a) to cause its books and
records to indicate that the Additional Group 3 Mortgage Loans have been sold to
the Purchaser pursuant to this Agreement and (b) to deliver to the Purchaser and
the Trustee a computer file containing a true and complete list of all such
Additional Group 3 Mortgage Loans specifying for each such Additional Group 3
Mortgage Loan, as of the Subsequent Cut-off Date, (i) its account number and
(ii) its Cut-off Date Principal Balance. Such file, which forms a part of the
Mortgage Loan Schedule, shall also be marked as Schedule I to this Agreement and
is hereby incorporated into and made a part of this Agreement.
In connection with any conveyance by the Seller, the Seller shall on
behalf of the Purchaser deliver to, and deposit with the Trustee, as assignee of
the Purchaser, on or before the Additional Transfer Date, the following
documents or instruments with respect to each Additional Group 3 Mortgage Loan:
(i) the original Mortgage Note, endorsed in blank or with respect to any
lost Mortgage Note, an original Lost Note Affidavit, together with a
copy of the related Mortgage Note;
(ii) the original Mortgage with evidence of recording thereon, and the
original recorded power of attorney, if the Mortgage was executed
pursuant to a power of attorney, with evidence of recording thereon
or, if such Mortgage or power of attorney has been submitted for
recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a copy
of such Mortgage or power of attorney, as the case may be, certified
to be a true and complete copy of the original submitted for
recording;
(iii) an original Assignment of Mortgage (which may be in blank), in form
and substance acceptable for recording; provided, however, if the
related Mortgage has been recorded in the name of Mortgage Electronic
Registration Systems, Inc. ("MERS") or its designee, no Assignment of
Mortgage in favor of the Trustee will be required to be prepared or
delivered and instead, the Servicer shall take all actions as are
necessary to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS;
(iv) an original copy of any intervening assignment of Mortgage showing a
complete chain of assignments;
(v) the original or a certified copy of lender's title insurance policy;
and
(vi) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any.
The Seller hereby confirms to the Purchaser and the Trustee that it
has caused the appropriate entries to be made in its general accounting records
to indicate that such Additional Group 3 Mortgage Loans have been transferred to
the Trustee and constitute part of the Trust in accordance with the terms of the
Pooling and Servicing Agreement.
If any of the documents referred to in Section 2.02(ii), (iii) or (iv)
above has as of the Additional Transfer Date been submitted for recording but
either (x) has not been returned from the applicable public recording office or
(y) has been lost or such public recording office has retained the original of
such document, the obligations of the Seller to deliver such documents shall be
deemed to be satisfied upon (1) delivery to the Trustee, no later than the
Additional Transfer Date, of a copy of each such document certified by the
Seller in the case of (x) above or the applicable public recording office in the
case of (y) above to be a true and complete copy of the original that was
submitted for recording and (2) if such copy is certified by the Seller,
delivery to the Trustee, promptly upon receipt thereof of either the original or
a copy of such document certified by the applicable public recording office to
be a true and complete copy of the original. The Seller shall deliver or cause
to be delivered to the Trustee promptly upon receipt thereof any other documents
constituting a part of a Mortgage File received with respect to any Additional
Group 3 Mortgage Loan, including, but not limited to, any original documents
evidencing an assumption or modification of any Additional Group 3 Mortgage
Loan.
Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File, the Seller
shall have 120 days to cure such defect or deliver such missing document to the
Trustee or 150 days following the Additional Transfer Date, in the case of
missing Mortgages or Assignments of Mortgage (or within 90 days of the earlier
of Seller's discovery or receipt of notification if such defect would cause the
related Additional Group 3 Mortgage Loan not to be a "qualified mortgage" for
REMIC purposes or that the Additional Group 3 Mortgage Loan is defective in a
manner that would cause it to be a "defective obligation" within the meaning of
Treasury regulations relating to REMICs). If the Seller does not cure such
defect or deliver such missing document within such time period, the Seller
shall either repurchase or substitute for such Additional Group 3 Mortgage Loan
in accordance with Section 2.03 of the Pooling and Servicing Agreement.
The Purchaser hereby acknowledges its acceptance of all right, title
and interest to the Additional Group 3 Mortgage Loans and other property, now
existing and hereafter created, conveyed to it pursuant to Section 2.01.
The parties hereto intend that the transaction set forth herein be a
sale by the Seller to the Purchaser of all the Seller's right, title and
interest in and to the Additional Group 3 Mortgage Loans and other property
described above. In the event the transaction set forth herein is deemed not to
be a sale, the Seller hereby grants to the Purchaser a security interest in all
of the Seller's right, title and interest in, to and under the Additional Group
3 Mortgage Loans and other property described above, whether now existing or
hereafter created, to secure all of the Seller's obligations hereunder; and this
Agreement shall constitute a security agreement under applicable law.
Section 2.03 Payment of Additional Group 3 Mortgage Loans Purchase Price.
In consideration of the sale of the Additional Group 3 Mortgage Loans
from the Seller to the Purchaser on the Additional Transfer Date, the Purchaser
agrees to pay $86,052,992.99 on the Additional Transfer Date (the "Additional
Group 3 Mortgage Loans Purchase Price").
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Seller Representations and Warranties Relating to the
Additional Group 3 Mortgage Loans.
The Seller and the Purchaser understand, acknowledge and agree that,
the representations and warranties set forth in this Section 3.01 are made as of
the Additional Transfer Date or as of the date specifically provided herein.
The Seller hereby represents and warrants to the Purchaser with
respect to the Additional Group 3 Mortgage Loans that each of the
representations and warranties made by the Seller pursuant to Section 3.01 of
the Mortgage Loan Purchase Agreement, dated July 1, 2006 (the "MLPA") between
the Seller and the Purchaser, are true and correct as of the Additional Transfer
Date; provided, however, that any references in the MLPA to Cut-off Date shall
be a reference to Subsequent Cut-off Date herein, that any references in the
MLPA to Mortgage Loan shall be a reference to Additional Group 3 Mortgage Loan
herein and that any references in the MLPA to Closing Date shall be a reference
to Additional Transfer Date herein.
Section 3.02 Seller Representations and Warranties Relating to the Seller.
The Seller represents, warrants and covenants to the Purchaser that
each of the representations and warranties made by the Seller pursuant to
Section 3.02 of the MLPA are true and correct as of the Additional Transfer
Date; provided, however, that any references in the MLPA to Cut-off Date shall
be a reference to Subsequent Cut-off Date, that any references in the MLPA to
Mortgage Loan shall be a reference to Additional Group 3 Mortgage Loan and that
any references in the MLPA to Closing Date shall be a reference to Additional
Transfer Date.
Section 3.03 Remedies for Breach of Representations and Warranties.
It is understood and agreed that the representations and warranties
set forth in Subsections 3.01 and 3.02 of the MLPA shall survive the sale of the
Additional Group 3 Mortgage Loans to the Purchaser and shall inure to the
benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment or the examination or lack of
examination of any Mortgage File. With respect to the representations and
warranties contained in the MLPA that are made to the knowledge or the best
knowledge of the Seller, or as to which the Seller has no knowledge, if it is
discovered that the substance of any such representation and warranty is
inaccurate and the inaccuracy materially and adversely affects the value of the
related Additional Group 3 Mortgage Loan, or the interest therein of the
Purchaser or the Purchaser's assignee, designee or transferee, then
notwithstanding the Seller's lack of knowledge with respect to the substance of
such representation and warranty being inaccurate at the time the representation
and warranty was made, such inaccuracy shall be deemed a breach of the
applicable representation and warranty and the Seller shall take such action
described in the following paragraphs of this Section 3.03 in respect of such
Additional Group 3 Mortgage Loan.
Upon discovery by either the Seller or the Purchaser of a breach of
any of the foregoing representations and warranties that materially and
adversely affects the value of the Additional Group 3 Mortgage Loans or the
interest of the Purchaser (or which materially and adversely affects the
interests of the Purchaser in the related Additional Group 3 Mortgage Loan in
the case of a representation and warranty relating to a particular Additional
Group 3 Mortgage Loan), the party discovering such breach shall give prompt
written notice to the other. Subject to the second paragraph of Section 3.01 of
the MLPA, within 90 days of the earlier of its discovery or its receipt of
notice of any breach of a representation or warranty, the Seller shall promptly
cure such breach in all material respects, or in the event such breach cannot be
cured, the Seller shall repurchase the affected Additional Group 3 Mortgage Loan
or cause the removal of such Mortgage Loan from the Trust Fund and substitute
for it one or more Eligible Substitute Mortgage Loans, in either case, in
accordance with Section 2.03 of the Pooling and Servicing Agreement.
It is understood and agreed that the representations and warranties
set forth in Sections 3.01 and 3.02 of the MLPA shall survive delivery of the
respective Mortgage Files to the Trustee on behalf of the Purchaser.
It is understood and agreed that the obligations of the Seller set
forth in this Section 3.03 to cure, repurchase and substitute for a defective
Additional Group 3 Mortgage Loan constitute the sole remedy of the Purchaser
respecting a missing or defective document or a breach of the representations
and warranties contained in Section 3.01 or 3.02 of the MLPA.
ARTICLE IV.
SELLER'S COVENANTS
Section 4.01 Covenants of the Seller. The Seller hereby covenants that
except for the transfer hereunder, the Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur or assume or suffer to
exist any lien on any Additional Group 3 Mortgage Loan, or any interest therein;
the Seller will notify the Trustee, as assignee of the Purchaser, of the
existence of any lien on any Additional Group 3 Mortgage Loan immediately upon
discovery thereof, and the Seller will defend the right, title and interest of
the Trust, as assignee of the Purchaser, in, to and under the Additional Group 3
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; provided, however, that nothing in this Section 4.01 shall prevent
or be deemed to prohibit the Seller from suffering to exist upon any of the
Additional Group 3 Mortgage Loans, any liens for municipal or other local taxes
and other governmental charges if such taxes or governmental charges shall not
at the time be due and payable or if the Seller shall currently be contesting
the validity thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto.
ARTICLE V.
[RESERVED]
ARTICLE VI.
TERMINATION
Section 6.01 Termination. The respective obligations and responsibilities
of the Seller and the Purchaser created hereby shall terminate, except for the
Seller's indemnity obligations as provided herein upon the termination of the
Trust as provided in Article X of the Pooling and Servicing Agreement.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.01 Amendment. This Agreement may be amended from time to time by
the Seller and the Purchaser, by written agreement signed by the Seller and the
Purchaser.
Section 7.02 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 7.03 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, addressed as
follows: (i) if to the Seller, Bank of America, National Association, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel or
such other address as may hereafter be furnished to the Purchaser in writing by
the Seller and (ii) if to the Purchaser, Asset Backed Funding Corporation, 000
Xxxxx Xxxxx Xxxxxx 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxx-Xxxxxx, or such other address as may hereafter be furnished to the
Seller in writing by the Purchaser.
Section 7.04 Severability of Provisions. If any one or more of the
covenants, agreements, provisions of terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity of
enforceability of the other provisions of this Agreement.
Section 7.05 Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed to be an original and such
counterparts, together, shall constitute one and the same agreement.
Section 7.06 Further Agreements. The Purchaser and the Seller each agree to
execute and deliver to the other such additional documents, instruments or
agreements as may be necessary or reasonable and appropriate to effectuate the
purposes of this Agreement or in connection with the issuance of any Series of
Certificates representing interests in the Additional Group 3 Mortgage Loans.
Section 7.07 Intention of the Parties. It is the intention of the parties
that the Purchaser is purchasing, and the Seller is selling, the Additional
Group 3 Mortgage Loans rather than pledging the Additional Group 3 Mortgage
Loans to secure a loan by the Purchaser to the Seller. Accordingly, the parties
hereto each intend to treat the transaction for federal income tax purposes and
all other purposes as a sale by the Seller, and a purchase by the Purchaser, of
the Additional Group 3 Mortgage Loans. The Purchaser will have the right to
review the Additional Group 3 Mortgage Loans and the related Mortgage Files to
determine the characteristics of the Additional Group 3 Mortgage Loans which
will affect the federal income tax consequences of owning the Additional Group 3
Mortgage Loans and the Seller will cooperate with all reasonable requests made
by the Purchaser in the course of such review.
Section 7.08 Successors and Assigns; Assignment of Purchase Agreement. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser and the Trustee.
The obligations of the Seller under this Agreement cannot be assigned or
delegated to a third party without the consent of the Purchaser which consent
shall be at the Purchaser's sole discretion, except that the Purchaser
acknowledges and agrees that the Seller may assign its obligations hereunder to
any Person into which the Seller is merged or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party or any Person
succeeding to the business of the Seller. The parties hereto acknowledge that
the Purchaser is acquiring the Additional Group 3 Mortgage Loans for the purpose
of contributing them to a trust that will issue a series of Certificates
representing undivided interests in such Additional Group 3 Mortgage Loans. As
an inducement to the Purchaser to purchase the Additional Group 3 Mortgage
Loans, the Seller acknowledges and consents to the assignment by the Purchaser
to the Trustee of all of the Purchaser's rights against the Seller pursuant to
this Agreement insofar as such rights relate to Additional Group 3 Mortgage
Loans transferred to the Trustee and to the enforcement or exercise of any right
or remedy against the Seller pursuant to this Agreement by the Trustee. Such
enforcement of a right or remedy by the Trustee shall have the same force and
effect as if the right or remedy had been enforced or exercised by the Purchaser
directly.
Section 7.09 Survival. The representations and warranties incorporated by
reference in Sections 3.01 and 3.02 and the provisions of Article V hereof shall
survive the purchase of the Additional Group 3 Mortgage Loans hereunder.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed to this Additional Mortgage Loan Purchase Agreement by their
respective officers thereunto duly authorized as of the day and year first above
written.
ASSET BACKED FUNDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxx-Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx-Xxxxxx
Title: Vice President
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Good
----------------------------------
Name: Xxxxx X. Good
Title: Vice President
SCHEDULE I
ADDITIONAL GROUP 3 MORTGAGE LOANS
AVAILABLE UPON REQUEST FROM THE PURCHASER
