Exhibit 4.2
ASSET BACKED FUNDING CORPORATION
as Purchaser
and
BANK OF AMERICA, NATIONAL ASSOCIATION
as Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Fixed and Adjustable Rate Mortgage Loans
ABFC 2006-OPT3 Trust
Asset-Backed Certificates, Series 2006-OPT3
Dated as of October 1, 2006
TABLE OF CONTENTS
ARTICLE I DEFINITIONS...........................................................
Section 1.01. Definitions...................................................
ARTICLE II SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE....................
Section 2.01. Sale of Mortgage Loans........................................
Section 2.02. Obligations of Seller Upon Sale...............................
Section 2.03. Payment of Purchase Price for the Mortgage Loans..............
Section 2.04. Regulation AB Compliance......................................
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH.................
Section 3.01. Representations and Warranties Relating to the
Mortgage Loans................................................
Section 3.02. Seller Representations and Warranties.........................
ARTICLE IV SELLER'S COVENANTS...................................................
Section 4.01. Covenants of the Seller.......................................
ARTICLE V TERMINATION...........................................................
Section 5.01. Termination...................................................
ARTICLE VI MISCELLANEOUS PROVISIONS.............................................
Section 6.01. Amendment.....................................................
Section 6.02. Governing Law.................................................
Section 6.03. Notices.......................................................
Section 6.04. Severability of Provisions....................................
Section 6.05. Counterparts..................................................
Section 6.06. Further Agreements............................................
Section 6.07. Intention of the Parties......................................
Section 6.08. Successors and Assigns; Assignment of this Agreement..........
Section 6.09. Survival......................................................
Schedule I Mortgage Loan Schedule
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of October 1, 2006 (the
"Agreement"), between BANK OF AMERICA, NATIONAL ASSOCIATION ("Bank of America"
or the "Seller") and ASSET BACKED FUNDING CORPORATION (the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to the Flow Sale and Servicing Agreement (the "Sale and
Servicing Agreement"), dated as of July 28, 2006, by and among Bank of America,
as the purchaser, Option One Mortgage Corporation, as company and seller
("Option One"), and Option One Owner Trust 2001-1A, Option One Owner Trust
2001-1B, Option One Owner Trust 2001-2, Option One Owner Trust 2002-3, Option
One Owner Trust 2003-4, Option One Owner Trust 2003-5, Option One Owner Trust
2005-6, Option One Owner Trust 2005-7, Option One Owner Trust 2005-8 and Option
One Owner Trust 2005-9 (collectively, the "Option One Owner Trusts"), as
sellers, and the related Memorandum of Sale, dated September 27, 2006 (the
"Memorandum of Sale"), among Bank of America, Option One and the Option One
Owner Trusts, the Seller is the owner of either the notes or other evidence of
indebtedness (the "Mortgage Notes") or other evidence of ownership so indicated
on Schedule I hereto, and the other documents or instruments constituting the
Mortgage File (collectively, the "Mortgage Loans");
WHEREAS, the Seller, as of the date hereof, owns the mortgages (the
"Mortgages") on the related real 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
as of October 1, 2006 (the "Pooling and Servicing Agreement"), among the
Purchaser, as depositor, Option One, as servicer, and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"), the Purchaser will convey the Mortgage Loans to ABFC
2006-OPT3 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 shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of Mortgage Loans.
The Seller does hereby agree to and does hereby sell, assign, set over,
and otherwise convey to the Purchaser, without recourse, on the Closing Date (i)
all of its right, title and interest in and to each Mortgage Loan and the
related Cut-off Date Principal Balance thereof, including any Related Documents;
(ii) all payments on or collections in respect of the Mortgage Loans due after
the Cut-off Date; (iii) property which secured such Mortgage Loan and which has
been acquired by foreclosure or deed in lieu of foreclosure; (iv) its interest
in any insurance policies in respect of the Mortgage Loans; (v) the rights of
the Seller under the Consulting Agreement; and (vii) all proceeds of any of the
foregoing.
Section 2.02. Obligations of 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 Closing Date, (x)
to indicate in its books and records that the Mortgage Loans have been sold to
the Purchaser pursuant to this Agreement and (y) to deliver to the Purchaser and
the Trustee a computer file containing a true and complete list of all the
Mortgage Loans specifying, among other things, for each Mortgage Loan, as of the
Cut-off Date, its account number and Cut-off Date Principal Balance. Such file
(the "Mortgage Loan Schedule"), which is set forth on Exhibit D to the Pooling
and Servicing Agreement, 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 such transfer and assignment of the Mortgage Loans, the
Seller shall, on behalf of the Purchaser, deliver and deposit with the Trustee,
the following documents or instruments (with respect to each Mortgage Loan, a
"Mortgage File") with respect to each Mortgage Loan so transferred and assigned:
(i) the original Mortgage Note, including any riders thereto,
endorsed in blank, or with respect to any lost Mortgage Note, a Lost Note
Affidavit, together with a copy of the related Mortgage Note;
(ii) the original Mortgage with evidence of recording thereon
including any riders thereto, 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, in form and substance
acceptable for recording. The Mortgage shall be assigned in blank;
(iv) an original copy of any intervening assignment of Mortgage
showing a complete chain of assignments;
(v) the original or a certified copy of the lender's title insurance
policy; and
(vi) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any.
If any of the documents referred to in Section 2.02(ii), (iii) or (iv)
above has as of the Closing 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 Closing Date, of a
copy of each such document certified by Option One, the Seller, title company,
escrow agent or closing attorney 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. If the
original lender's title insurance policy was not delivered pursuant to Section
2.02(v) above, the Seller shall deliver or cause to be delivered to the Trustee,
a written commitment or interim binder or preliminary report of title issued by
the title insurance or escrow company, with the original to be delivered to the
Trustee, promptly upon receipt thereof. 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 Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan. The Assignments referred to in
Section 2.02(iii) above are not required to be recorded by the Seller.
Upon discovery or receipt of notice of any materially defective document
in, or that a document is missing from, a Mortgage File, or is materially
mutilated, damaged or torn, the Seller shall have 120 days to cure such defect
or deliver such missing document to the Trustee (or 90 days after the earlier of
Seller's discovery or receipt of notification if such defect would cause the
related Mortgage Loan not to be a "qualified mortgage" for REMIC purposes) or
150 days following the Closing Date, in the case of missing Mortgages or
Assignments of Mortgage, or deliver such missing document to the Trustee. 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 Mortgage
Loan in accordance with Section 2.03 of the Pooling and Servicing Agreement.
It is understood and agreed that the obligations of the Seller set forth
in this Section 2.02 to cure, repurchase or substitute for a defective Mortgage
Loan constitute the sole remedies of the Purchaser respecting a defective or
missing document.
The Purchaser hereby acknowledges its acceptance of all right, title and
interest to the 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 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 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. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Pooling and Servicing Agreement.
Section 2.03. Payment of Purchase Price for 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 (i) to pay to the Seller on
the Closing Date by transfer of immediately available funds, as directed by the
Seller, an amount equal to $[_______], and (ii) to deliver to or at the
direction of the Seller on the Closing Date, a 100% interest in each of the
Class R Certificates and the Class R-X Certificates (clauses (i) and (ii)
together, the "Purchase Price"). The Seller shall pay, and be billed directly
for, all reasonable expenses incurred by the Purchaser in connection with the
issuance of the Certificates, including, without limitation, printing fees
incurred in connection with the prospectus relating to the Certificates, blue
sky registration fees and expenses, fees and reasonable expenses of Purchaser's
counsel, fees of the rating agencies requested to rate the Certificates,
accountant's fees and expenses and the fees and expenses of the Trustee and
other out-of-pocket costs, if any.
Section 2.04. Regulation AB Compliance.
For so long as the Trustee is required to file any report with the
Commission pursuant to Section 3.31 of the Pooling and Servicing Agreement, the
Seller shall furnish to the Trustee, on each Distribution Date, the
"significance estimate" of the Interest Rate Swap Agreement, in each case
calculated in accordance with Item 1115 of Regulation AB as of such Distribution
Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01. Representations and Warranties Relating to the
Mortgage Loans.
The representations and warranties with respect to the Mortgage Loans in
the Sale and Servicing Agreement were made as of the dates of the Memorandum of
Sale. 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 Section 2.01 hereof. 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 Option One under the Sale and Servicing Agreement
and (ii) a representation or warranty of the Seller under this Agreement (other
than Section 3.01(xi) and (xix) below), the only right or remedy of the
Purchaser shall be the right to enforce the obligations of Option One under any
applicable representation or warranty made by it. The Purchaser acknowledges and
agrees that the representations and warranties of the Seller in this Section
3.01 are applicable only to facts, conditions or events that do not constitute a
breach of any representation or warranty made by Option One in the Sale and
Servicing 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 (other than the representations and warranties made in
Sections 3.01(xi) and (xix) below) if the fact, condition or event constituting
such breach also constitutes a breach of a representation or warranty made by
Option One in the Transfer Agreement, without regard to whether Option One
fulfills its contractual obligations in respect of such representation or
warranty. If, however, Option One fails to reimburse the Trustee for any costs
or damages incurred by the Trust in connection with a breach of Option One's
representations and warranties with respect to abusive or predatory lending laws
set forth in Section 3.02 of the Underlying Sale Agreement (such amount, the
"Reimbursement Amount"), the Seller shall pay the Reimbursement Amount to the
Trust. The Reimbursement Amount shall be delivered to Option One for deposit
into the Collection Account within ten (10) days from the date the Seller was
notified by the Trustee of the amount of such costs and damages. Subject to the
foregoing, the Seller represents and warrants upon delivery of the Mortgage
Loans to the Purchaser hereunder, as to each, that:
(i) The information set forth with respect to the Mortgage Loans on
the Mortgage Loan Schedule attached hereto as Schedule I provides an
accurate listing of the Mortgage Loans, and the information with respect
to each Mortgage Loan on the Mortgage Loan Schedule is true and correct in
all material respects at the date or dates on which such information is
given;
(ii) No Mortgage Loan was 30 days or more contractually 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 default, breach, violation or event of acceleration,
with respect to any Mortgage Loan;
(iii) There are no delinquent taxes, assessments that could become a
lien prior to the related Mortgage or insurance premiums affecting the
related Mortgaged Property;
(iv) Each 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;
(v) Other than any Mortgage Loan that is less than 30 days
contractually delinquent as of the Cut-off Date, 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;
(vi) Each Mortgaged Property is free of material damage that would
affect adversely the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended;
(vii) To the best of the Seller's knowledge, there is no proceeding
pending for the total or partial condemnation of the Mortgaged Property;
(viii) As of the date of origination, each Mortgaged Property was
lawfully occupied under applicable law and to the Seller's knowledge, each
Mortgaged Property is lawfully occupied as of the date hereof; 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 Mortgage Loan;
(ix) As of the Closing Date, no Mortgage Loan is in foreclosure;
(x) As of the Closing Date, each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G of the Code and Treas. Reg
ss. 1.860G-2;
(xi) 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 applicable to the origination of each Mortgage Loan have been
complied with;
(xii) No Mortgage Loan is a "high cost" loan as defined under any
federal, state or local law applicable to such Mortgage Loan at the time
of its origination;
(xiii) The Seller is the sole owner of record and holder of the
Mortgage Loan and the 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 Mortgage Loan to the
Purchaser. The Seller is transferring the 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 Mortgage Loan, 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), charges or security
interests of any nature encumbering such Mortgage Loan;
(xiv) 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 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 Mortgage Loan Schedule;
(xv) The Seller has not dealt with any broker, investment banker,
agent or other Person (other than Option One and the Underwriter) who may
be entitled to any commission or compensation in connection with the sale
of the Mortgage Loans;
(xvi) Each Mortgage is a valid, subsisting enforceable and perfected
first or second lien and first priority security interest on the related
Mortgaged Property, including all buildings on such Mortgaged Property and
all installations and mechanical, electrical, plumbing, heating and air
conditioning systems located in or annexed to such buildings, and all
additions, alterations and replacements made at any time with respect to
the foregoing. The lien of the Mortgage is subject only to:
(a) the lien of current real property taxes and assessments
not yet due and payable;
(b) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and (i) referred to
or to otherwise considered in the appraisal made for the originator
of the Mortgage Loan or (ii) which do not adversely affect the
appraised value of the Mortgaged Property set forth in such
appraisal;
(c) other matters to which like properties are commonly
subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property;
and
(d) with respect to each second lien Mortgage, a prior
mortgage lien on the Mortgaged Property;
(xvii) The Mortgage Loan is covered by (a) an attorney's opinion of
title and abstract of title the form and substance of which is acceptable
to Xxxxxx Xxx, (b) an ALTA lender's title insurance policy or (c) a CLTA
lender's title insurance policy or (d) another generally acceptable form
of policy of insurance issued by a title insurer qualified to do business
in the jurisdiction where the Mortgaged Property is located insuring the
related Originator, its successors and assigns, as to the first or second
priority lien of the Mortgage in the original principal amount of the
Mortgage Loan subject only to the exceptions contained in clauses (a), (b)
and (c), and with respect to each second lien Mortgage Loan clause (d), of
paragraph (xvi) of this Section 3.01, and against any loss by reason of
the invalidity of unenforceability of the lien resulting from the
provisions of the Mortgage providing for adjustment in the Mortgage
Interest Rate and Monthly Payment. Additionally, such lender's title
insurance policy affirmatively insures ingress and egress, and against
encroachments by or upon the Mortgaged Property or any interest therein.
Where required by state law or regulation, the Mortgagor has been given
the opportunity to choose the carrier of such lender's title insurance
policy. The Originator, its successors and assigns, are the sole insureds
of such lender's title insurance policy, and such lender's title insurance
policy is valid and remains in full force and effect and will be in full
force and effect upon the sale of the Mortgage Loan to the Purchaser. No
claims have been made under such lender's title insurance policy, and no
prior holder of the Mortgage, including the Originator or the Seller, has
done anything which would impair the coverage of such lender's title
insurance policy. In connection with the issuance of such lender's title
insurance policy, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained
or realized by any attorney, firm or other person or entity, and no such
unlawful items have been received, retained or realized by the Originator
or the Seller;
(xviii) Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting and enforceable (A) first lien
and first priority security interest with respect to each first lien
Mortgage Loan, or (B) second lien and second priority security interest
with respect to each second lien Mortgage Loan, in either case, on the
property described therein and the Originator has full right to sell and
assign the same to the Purchaser. The Mortgaged Property was not, as of
the date of origination of the Mortgage Loan, subject to a mortgage, deed
of trust, deed to secure debt or other security instrument creating a lien
subordinate to the lien of the Mortgage; and
(xix) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current version of
Standard & Poor's LEVELS(R) Glossary, which as of the date hereof is
Version 5.7, Appendix E) and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
With respect to the representations and warranties set forth in this
Section 3.01 that are made to the best of the Seller's knowledge or as to which
the Seller has no knowledge, if it is discovered by the Purchaser, Option One or
the Trustee that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan, Prepayment Charge or the interest therein of the Purchaser or the
Purchaser's assignee, transferee or designee 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 or warranty was made,
such inaccuracy shall be deemed a breach of the applicable representation or
warranty.
It is understood and agreed that the representations and warranties set
forth in this Section 3.01 shall survive delivery of the respective Mortgage
Files to the Trustee on behalf of the Purchaser and shall inure to the benefit
of the Certificateholders notwithstanding any restrictive or qualified
endorsement or assignment.
Upon discovery by the Seller, the Servicer, the Purchaser or any assignee,
transferee or designee of the Purchaser of a breach of any of the
representations and warranties contained in this Article III that materially and
adversely affects the value of any Mortgage Loan, Prepayment Charge or the
interest therein of the Purchaser or the Purchaser's assignee, transferee or
designee, the party discovering the breach shall give prompt written notice to
the others. Subject to the second paragraph of this Section 3.01, within 90 days
of the earlier of its discovery or its receipt of notice of any such 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 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 obligations of the Seller set forth
in this Section 3.01 to cure, repurchase or substitute for a Mortgage Loan as a
result of a breach of a representation or warranty, subject to the limitation
contained in the first paragraph of this Section 3.01, and to pay the
Reimbursement Amount constitute the sole remedies of the Purchaser respecting a
breach of the representations or warranties contained in this Section 3.01.
Section 3.02. Seller Representations and Warranties.
The Seller hereby represents and warrants to the Purchaser that as of the
Closing Date or as of such date specifically provided herein:
(a) The Seller is duly organized, validly existing and in good
standing as a national banking association under the laws of the United
States and has the power and authority to own its assets and to transact
the business in which it is currently engaged. The Seller is duly
qualified to do business and is in good standing in each jurisdiction in
which the character of the business transacted by it or properties owned
or leased by it requires such qualification and in which the failure to so
qualify would have a material adverse effect on (i) its business,
properties, assets or condition (financial or other), (ii) the performance
of its obligations under this Agreement, (iii) the value or marketability
of the Mortgage Loans, or (iv) its ability to foreclose on the related
Mortgaged Properties.
(b) The Seller has the power and authority to make, execute, deliver
and perform this Agreement and to consummate all of the transactions
contemplated hereunder and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the Seller's legal, valid and
binding obligation enforceable in accordance with its terms, except as
enforcement of such terms may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, moratorium or similar laws affecting the
enforcement of creditors' rights generally or creditors of national banks
and by the availability of equitable remedies, (ii) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law) or (iii) public policy considerations
underlying the securities laws, to the extent that such policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from securities laws
liabilities.
(c) The Seller holds all necessary licenses, certificates and
permits from all governmental authorities necessary for conducting its
business as it is presently conducted, except for such licenses,
certificates and permits the absence of which, individually or in the
aggregate, would not have a material adverse effect on the ability of the
Seller to conduct its business as it is presently conducted. The Seller is
not required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or declaration
with, any governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations as shall have been
obtained or filed, as the case may be, prior to the Closing Date.
(d) The execution and delivery of this Agreement and the
consummation of the transactions contemplated herein (i) will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Seller pursuant to any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument,
agreement or document to which the Seller is a party or by which it may be
bound or to which any of the property or assets of the Seller is subject,
(ii) will not result in any violation of the provisions of the charter or
by-laws of the Seller, or any law, administrative regulation or
administrative or court decree applicable to the Seller and (iii) will not
require any filing or registration with or notice to or consent, approval,
authorization or order of any court or governmental authority or agency.
(e) The transactions contemplated by this Agreement are in the
ordinary course of the Seller's business.
(f) The Seller is not insolvent, nor will the Seller be made
insolvent by the transfer of the Mortgage Loans, nor is the Seller aware
of any pending insolvency.
(g) The Seller is not in violation of, and the execution and
delivery of this Agreement by it and its performance and compliance with
the terms of this Agreement will not constitute a violation with respect
to any order or decree of any court, or any order or regulation of any
federal, state, municipal or governmental agency having jurisdiction,
which violation would materially and adversely affect the Seller's
condition (financial or otherwise) or operations or any of the Seller's
properties, or materially and adversely affect the performance of any of
its duties hereunder.
(h) There are no actions or proceedings against, or investigations
of, the Seller pending or, to its knowledge, threatened, before any court,
administrative agency or other tribunal (i) that, if determined adversely,
would prohibit the Seller from entering into this Agreement, (ii) seeking
to prevent the consummation of any of the transactions contemplated by
this Agreement or (iii) that, if determined adversely, would prohibit or
materially and adversely affect the Seller's performance of any of its
respective obligations under, or the validity or enforceability of, this
Agreement.
(i) The Seller is not transferring the Mortgage Loans to the
Purchaser hereunder with any intent to hinder, delay or defraud any of its
creditors.
(j) The Seller acquired title to the Mortgage Loans in good faith,
without notice of any adverse claims.
(k) The transfer, assignment and conveyance of the Mortgage Notes
and the Mortgages by the Seller pursuant to this Agreement are not subject
to the bulk transfer laws or any similar statutory provisions in effect in
any applicable jurisdiction.
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, assume or suffer to exist any lien on any 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 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 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 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
TERMINATION
Section 5.01. Termination.
The respective obligations and responsibilities of the Seller and the
Purchaser created hereby shall terminate upon the termination of the Trust as
provided in Article X of the Pooling and Servicing Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. 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 6.02. 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 6.03. 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:
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.
if to the Purchaser:
Asset Backed Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Good
or such other address as may hereafter be furnished to the Seller in writing
by the Purchaser.
Section 6.04. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or 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 or enforceability of the other provisions of this
Agreement.
Section 6.05. Counterparts.
This Agreement may be executed in one or more counterparts 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 6.06. 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 Mortgage Loans.
Without limiting the generality of the foregoing, as a further inducement
for the Purchaser to purchase the Mortgage Loans from the Seller, the Seller
will cooperate with the Purchaser in connection with the sale of any of the
securities representing interests in the Mortgage Loans. In that connection, the
Seller will provide to the Purchaser any and all information and appropriate
verification of information, whether through letters of its auditors and counsel
or otherwise, as the Purchaser shall reasonably request and will provide to the
Purchaser such additional representations and warranties, covenants, opinions of
counsel, letters from auditors, and certificates of public officials or officers
of the Seller as are reasonably required in connection with such transactions
and the offering of investment grade securities rated by the Rating Agencies.
Section 6.07. Intention of the Parties.
It is the intention of the parties that the Purchaser is purchasing, and
the Seller is selling, the Mortgage Loans rather than the pledging of the
Mortgage Loans by the Seller 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 Mortgage Loans. The Purchaser will have the
right to review the Mortgage Loans and the related Mortgage Files to determine
the characteristics of the Mortgage Loans which will affect the federal income
tax consequences of owning the Mortgage Loans and the Seller will cooperate with
all reasonable requests made by the Purchaser in the course of such review.
Section 6.08. Successors and Assigns; Assignment of this 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 and 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
Mortgage Loans for the purpose of contributing them to a trust that will issue a
series of certificates representing undivided interests in such Mortgage Loans.
As an inducement to the Purchaser to purchase the 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 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 6.09. Survival.
The representations and warranties set forth in Sections 3.01 and 3.02
hereof shall survive the purchase of the Mortgage Loans hereunder.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed to this Agreement by their respective officers thereunto duly
authorized as of the day and year first above written.
ASSET BACKED FUNDING CORPORATION,
as Purchaser
By: /s/ Xxxxx X. Good
----------------------------------------
Name: Xxxxx X. Good
Title: Principal
BANK OF AMERICA, NATIONAL ASSOCIATION, as
Seller
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
[SIGNATURE PAGE TO THE ABFC 2006-OPT3 MORTGAGE LOAN PURCHASE AGREEMENT]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 14th day of November 2006 before me, a Notary Public in and for
said State, personally appeared Xxxxxx X. Xxxxxxx, known to me to be a Principal
of Asset Backed Funding Corporation, the corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
----------------------------------------
Notary Public
My Commission expires the ___ day
of ___________, 20___.
[NOTARY PAGE TO THE ABFC 2006- OPT3 MORTGAGE LOAN PURCHASE AGREEMENT]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 14th day of November 2006 before me, a Notary Public in and for
said State, personally appeared Xxxxx X. Good, known to me to be a Principal of
Bank of America, National Association, the association that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said association, and acknowledged to me that such association executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
----------------------------------------
Notary Public
My Commission expires the ___ day
of ___________, 20___.
[NOTARY PAGE TO THE ABFC 2006- OPT3 MORTGAGE LOAN PURCHASE AGREEMENT]
SCHEDULE I
MORTGAGE LOAN SCHEDULE
(INTENTIONALLY OMITTED)
