EXHIBIT 10.3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Assignment, Assumption and Recognition Agreement, dated August 10, 2006,
among Bank of America, National Association, a national banking association (the
"Assignor"), Asset Backed Funding Corporation, a Delaware corporation ("ABFC"),
Xxxxx Fargo Bank, N.A., a national banking association, as trustee of the ABFC
2006-OPT1 Trust (the "Assignee"), Option One Mortgage Corporation, a California
corporation ("Option One"), as servicer of the ABFC 2006-OPT1 Trust and Ownit
Mortgage Solutions, Inc., a California corporation ("Ownit");
WHEREAS, pursuant to the Mortgage Loan Purchase and Warranties Agreement
(the "Purchase Agreement"), dated as of March 1, 2005, by and among Bank of
America, N.A., as purchaser (the "Purchaser"), and Ownit Mortgage Solutions,
Inc., as seller (the "Seller"), the Purchaser purchased the mortgage loans
listed on Exhibit A hereto (the "Mortgage Loans") from the Seller;
WHEREAS, on the date hereof, the Assignor is transferring all of its
right, title and interest in and to the Mortgage Loans under the Purchase
Agreement to ABFC;
WHEREAS, on the date hereof, ABFC is transferring all of its right, title
and interest in and to the Mortgage Loans under the Purchase Agreement to the
Assignee; and
WHEREAS, on the date hereof, Option One Mortgage Corporation, as servicer
(in such capacity, the "Servicer"), is entering into a Pooling and Servicing
Agreement, dated as of July 1, 2006 (the "Pooling Agreement"), among ABFC, the
Servicer and the Assignee, pursuant to which the Servicer will service the
Mortgage Loans.
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to ABFC all of the
right, title and interest (but none of its obligations) of the Assignor in, to
and under the Purchase Agreement and the Mortgage Loans delivered under such
agreement; provided, however, the Assignor retained it remedies under the
Purchase Agreement with respect to the Mortgage Loans solely to the extent Ownit
fail to perform its obligations thereunder and the Assignor is contractually
obligated to perform such obligations, and ABFC hereby grants, transfers and
assigns to the Assignee, all of the right, title and interest (but none of its
obligations) of the Assignor in, to and under the Purchase Agreement and the
Mortgage Loans delivered under such agreement.
2. The Assignor warrants and represents to, and covenants with, ABFC and
the Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with the full
right to transfer the Mortgage Loans free from any and all claims
and encumbrances whatsoever;
b. The Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to the Seller
with respect to the Purchase Agreement or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or agreed
to any amendment or other modification of, the Purchase Agreement or
the Mortgage Loans. The Assignor has no knowledge of, and has not
received notice of, any waivers under or amendments or other
modifications of, or assignments of rights or obligations under, the
Purchase Agreement or the Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar
security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Mortgage Loans, any interest in
the Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security with,
any person in any manner, or made any general solicitation by means
of general advertising or in any other manner, or taken any other
action which would constitute a distribution of the Mortgage Loans
under the Securities Act of 1933, as amended (the "Securities Act"),
or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the Securities Act or require registration
pursuant thereto.
3. From and after the date hereof, Ownit shall (i) note the transfer of
the Mortgage Loans to the Assignee in its books and records, and (ii) recognize
the Assignee as the owner of the Mortgage Loans.
4. Ownit acknowledges that the Assignee shall be authorized to enforce the
terms and conditions of the Purchase Agreement. The Assignee shall be authorized
to enforce directly against Ownit any of the obligations of Ownit provided for
in the Purchase Agreement.
5. Ownit hereby agrees to cooperate with ABFC, the Servicer and the
Assignee to enable ABFC, the Servicer and the Assignee to the extent reasonably
necessary to permit ABFC to timely comply with all Securities and Exchange
Commission ("SEC") disclosure and reporting requirements in effect from time to
time with respect to the trust created by the Pooling Agreement (the "Trust")
and any securities representing ownership interests in or backed by assets of
the Trust, including without limitation, the SEC's recently published rules
regarding asset-backed securities (Release Nos. 33-8518; 34-50905; File No.
S7-21-0433-8419).
6. Ownit hereby represents and warrants to each of the other parties
hereto (i) that it has taken no action nor omitted to take any required action
the omission of which would have the effect of impairing any mortgage insurance
or guarantee on the Mortgage Loans and (ii) that any written information with
respect to the Mortgage Loans, provided by Ownit on or before the date hereof to
the Assignor was true and correct in all material respects as of the dates
provided.
7. Ownit hereby agrees that, in connection with each Mortgage Loan of
which the related Mortgage has been recorded in the name of MERS or its
designee, it shall cooperate, to the extent reasonably requested by the Servicer
of the Mortgage Loans and to the extent reasonably necessary in causing the
Assignee, as trustee of the Trust (as defined in the Pooling Agreement) to be
shown as the owner of such Mortgage Loan on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS.
8. Ownit hereby agrees that any repurchase or substitution of a Mortgage
Loan pursuant to Section 3.03 of the Purchase Agreement will be conducted in
accordance with the provisions set forth in Section 2.03 of the Pooling
Agreement.
9. The Assignee's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Purchase Agreement is:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: ABFC Series 2006-OPT1
The Assignor's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Purchase Agreement is:
Bank of America, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Managing Director
ABFC's address for purposes of all notices and correspondence related to
the Mortgage Loans is:
Asset Backed Funding Corporation.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
The Servicer's address for purposes of all notices and correspondence
related to the Mortgage Loans is:
Option One Mortgage Corporation
3 Ada
Xxxxxx, Xxxxxxxxxx 00000
Ownit's address for purposes of all notices and correspondence related
to the Mortgage Loans is:
Ownit Mortgage Solutions, Inc.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption
and Recognition Agreement to be executed by their duly authorized officers as of
the date first above written.
Bank of America, National Association,
Assignor
By:/s/ Xxxxx X. Good
-----------------------------------
Name: Xxxxx X. Good
Title: Vice President
Xxxxx Fargo Bank, N.A., Assignee
By:/s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Asset Backed Funding Corporation
By:/s/ Xxxxxxx Xxxxx-Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx-Xxxxxx
Title: Vice President
Ownit Mortgage Solutions, Inc.
By:/s/ Xxxxx St. Xxxxx
-----------------------------------
Name: Xxxxx St. Xxxxx
Title: Senior Vice President
Acknowledged this 10th day of August, 2006
Option One Mortgage Corporation, as Servicer
By:/s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
EXHIBIT A
Schedule of Mortgage Loans
Available Upon Request
