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
First Franklin Mortgage Loan Trust 2006-FFH1
Asset-Backed Certificates, Series 2006-FFH1
Dated as of February 28, 2006
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..................................................................................1
Section 1.01. Definitions..........................................................................1
ARTICLE II SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE...........................................2
Section 2.01. Sale of Mortgage Loans...............................................................2
Section 2.02. Obligations of Seller Upon Sale......................................................2
Section 2.03. Payment of Purchase Price for the Mortgage Loans.....................................4
Section 2.04. Regulation AB Compliance.............................................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH........................................5
Section 3.01. Representations and Warranties Relating to the Mortgage Loans........................5
Section 3.02. Seller Representations and Warranties................................................9
ARTICLE IV SELLER'S COVENANTS.........................................................................11
Section 4.01. Covenants of the Seller.............................................................11
ARTICLE V TERMINATION.................................................................................12
Section 5.01. Termination.........................................................................12
ARTICLE VI MISCELLANEOUS PROVISIONS...................................................................12
Section 6.01. Amendment...........................................................................12
Section 6.02. Governing Law.......................................................................12
Section 6.03. Notices.............................................................................12
Section 6.04. Severability of Provisions..........................................................13
Section 6.05. Counterparts........................................................................13
Section 6.06. Further Agreements..................................................................13
Section 6.07. Intention of the Parties............................................................13
Section 6.08. Successors and Assigns; Assignment of this Agreement................................14
Section 6.09. Survival............................................................................14
Schedule I Mortgage Loan Schedule..................................................................S-1
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MORTGAGE LOAN PURCHASE AGREEMENT, dated as of February 28, 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
"Underlying Sale Agreement"), dated as of November 1, 2005, among Bank of
America, as the purchaser (the "Underlying Purchaser"), First Franklin Financial
Corporation, as the company (the "Company") and National City Home Loan
Services, Inc., as the servicer (the "Servicer") and the related Memorandum of
Sale (Pool A), dated as of November 29, 2005, Memorandum of Sale (Pool B), dated
as of November 29, 2005, Memorandum of Sale (Pool C), dated as of December 29,
2005 and Memorandum of Sale (Pool D), dated as of January 31, 2006
(collectively, the "Underlying Memoranda of Sale" and together with the
Underlying Sale Agreement, the "Transfer Agreement"), among the Underlying
Purchaser, the Servicer and the Company, 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");
and
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; and
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 February 1, 2006 (the "Pooling and Servicing Agreement"), among the
Purchaser, as depositor, the Servicer, and Wells Fargo Bank, N.A., as trustee
(the "Trustee"), the Purchaser will convey the Mortgage Loans to First Franklin
Mortgage Loan Trust 2006-FFH1.
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; and (v) 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, cause to be delivered to and
deposited 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 either (A) in blank or (B) in the following form: "Pay to the
order of Wells Fargo Bank, N.A., as Trustee under the Pooling and
Servicing Agreement, dated as of February 1, 2006, among Asset Backed
Funding Corporation, National City Home Loan Services, Inc. and Wells
Fargo Bank, N.A., First Franklin Mortgage Loan Trust 2006-FFH1,
Asset-Backed Certificates, Series 2006-FFH1, without recourse," 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
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;
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(iii) an original Assignment of Mortgage, in form and substance
acceptable for recording. The Mortgage shall be assigned either (A) in
blank or (B) to "Wells Fargo Bank, N.A., as Trustee under the Pooling
and Servicing Agreement, dated as of February 1, 2006, among Asset
Backed Funding Corporation, National City Home Loan Services, Inc. and
Wells Fargo Bank, N.A., First Franklin Mortgage Loan Trust 2006-FFH1,
Asset-Backed Certificates, Series 2006-FFH1, without recourse";
(iv) the originals of all intervening Assignments (if any)
evidencing a complete chain of assignment from the applicable
originator to the last endorsee with evidence of recording thereon, or
if any such intervening assignment has not been returned from the
applicable recording office or has been lost or if such public
recording office retains the original recorded Assignments, a photocopy
of such intervening assignment, together with (A) in the case of a
delay caused by the public recording office, an Officer's Certificate
of the Company (or certified by the title company, escrow agent, or
closing attorney) stating that such intervening Assignment has been
dispatched to the appropriate public recording office for recordation
and that such original recorded intervening Assignment or a copy of
such intervening Assignment certified by the appropriate public
recording office to be a true and complete copy of the original
recorded intervening assignment of mortgage will be promptly delivered
to the Trustee upon receipt thereof by the Company; or (B) in the case
of an intervening assignment where a public recording office retains
the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original
recorded intervening assignment;
(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 the Company, 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.
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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 $466,583,268.85, and (ii) to deliver to or at the
direction of the Seller on the Closing Date, a 100% interest in each of the
Class CE Certificates, the Class P Certificates and the Class R 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.
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Section 2.04. Regulation AB Compliance.
For so long as the Trustee is required to file any report with the
Commission pursuant to Section 3.32 of the Pooling and Servicing Agreement, the
Seller shall furnish to the Trustee, on the first Business Day of each calendar
month, the "significance estimate" of the Interest Rate Swap Agreement
calculated in accordance with Item 1115 of Regulation AB as of the last Business
Day of the immediately preceding calendar month.
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 Transfer Agreement were made as of the dates of the Underlying Memoranda
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 to that certain Assignment, Assumption and Recognition
Agreement, dated February 28, 2006, among the Seller, as assignor, the
Purchaser, as assignee, the Company and the Servicer. 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 the Company under the Transfer
Agreement and (ii) a representation or warranty of the Seller under this
Agreement (other than Section 3.01(i) and (ii) below), the only right or remedy
of the Purchaser shall be the right to enforce the obligations of the Company
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 the Company in the
Transfer 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(i) and (ii) below) if the fact, condition or event constituting
such breach also constitutes a breach of a representation or warranty made by
the Company in the Transfer Agreement, without regard to whether the Company
fulfills its contractual obligations in respect of such representation or
warranty. If, however, the Company fails to reimburse the Trustee for any costs
or damages incurred by the Trust in connection with a breach of the Company'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 the Servicer 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) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable usury, truth in lending,
real estate settlement procedures, consumer credit protections,
predatory and abusive lending, equal credit opportunity and disclosure
laws;
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(ii) No Mortgage Loan is classified as a "high cost" mortgage
loan under the Home Ownership and Equity Protection Act of 1994, as
amended, nor is any Mortgage Loan a "high cost home," "covered"
(excluding home loans defined as "covered home loans" pursuant to the
New Jersey Home Ownership Security Act of 2002), "high risk home" or
"predatory" loan under any applicable state, federal or local law (or a
similarly classified loan using different terminology under an
applicable law imposing heightened regulatory scrutiny or additional
legal liability for residential mortgage loans having high interest
rates, points and/or fees);
(iii) 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 5.6(d) Revised, 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.
(iv) 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;
(v) 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;
(vi) There are no delinquent taxes, assessments that could become
a lien prior to the related Mortgage or insurance premiums affecting
the related Mortgaged Property;
(vii) 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;
(viii) 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;
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(ix) 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;
(x) To the best of the Seller's knowledge, there is no proceeding
pending for the total or partial condemnation of the Mortgaged
Property;
(xi) 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;
(xii) As of the Closing Date, no Mortgage Loan is in foreclosure;
(xiii) 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;
(xiv) 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, charges or security interests
of any nature encumbering such Mortgage Loan;
(xv) 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;
(xvi) The Seller has not dealt with any broker, investment
banker, agent or other Person (other than the Company and the
Underwriters) who may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans;
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(xvii) Each Mortgage is a valid, subsisting and enforceable first
lien on the Mortgaged Property (including all buildings on the
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 Company and (c) other matters
to which like properties are commonly subject which do not,
individually or in the aggregate, 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. 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 first
lien and first priority security interest on the property described
therein and the Seller has full right to sell and assign the same to
the Purchaser;
(xviii) Each Mortgage Loan is covered by an ALTA lender's title
insurance policy acceptable to Fannie Mae or Freddie Mac or other
generally acceptable form of policy of insurance acceptable to Fannie
Mae or Freddie Mac, issued by a title insurer acceptable to Fannie Mae
or Freddie Mac and qualified to do business in the jurisdiction where
the Mortgaged Property is located, insuring the Company, its successors
and assigns as to the first 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) of subsection (xvii)
above, and, with respect to Adjustable Rate Mortgage Loans, against any
loss by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for adjustment
to the Mortgage Interest Rate and Monthly Payment. The Company, its
successors and assigns are the sole insureds of such lender's title
insurance policy, and such lender's title insurance policy is in full
force and effect and will inure to the benefit of the Purchaser upon
the consummation of the purchase of the Mortgage Loans as contemplated
by this Agreement. To the Seller's knowledge, no prior holder of the
Mortgage has made any claim under or, by act or omission, done anything
that would impair the coverage of the lender's title insurance policy,
and the Seller has not made any claims under such lender's title
insurance policy or done, by act or omission, anything which would
impair the coverage of such lender's title insurance policy; and
(xix) There are no 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) affecting
the related Mortgaged Property which are or may be liens prior to, or
equal or coordinate with, the lien of the related Mortgage.
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, the Servicer
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 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.
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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, the Trustee
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 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 first paragraph of this Section 3.01, within 120 days of the earlier of
its discovery or its receipt of notice of any such breach of a representation or
warranty or 90 days after the earlier of the Seller's discovery or receipt of
notification if such breach would cause the related Mortgage Loan not to be a
"qualified mortgage" for REMIC purposes, 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
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.
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(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.
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(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.
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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
Bank of America Corporate Center
NC1-007-11-07
100 North Tryon Street
Charlotte, North Carolina 28255
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
214 North Tryon Street
21st Floor
Charlotte, North Carolina 28255
Attention: Bruce W. Good
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
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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.
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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]
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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/ Bruce W. Good
---------------------
Name: Bruce W. Good
Title: Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Seller
By: /s/ Daniel B. Goodwin
----------------------
Name: Daniel B. Goodwin
Title: Managing Director
[Signature Page to the Mortgage Loan Purchase Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 28th day of February 2006 before me, a Notary Public in and for
said State, personally appeared Bruce W. Good, known to me to be a Vice
President 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.
/s/ Billie K. Davis
---------------------------------
Notary Public
[Notarial Seal]
My Commission expires the 31st day
of October, 2009.
[Notary page to the Mortgage Loan Purchase Agreement]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 28th day of February 2006 before me, a Notary Public in and for
said State, personally appeared Daniel B. Goodwin, known to me to be a Managing
Director of Bank of America, National Association, the company 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.
/s/ Billie K. Davis
----------------------------------
Notary Public
[Notarial Seal]
My Commission expires the 31st day
of October, 2009.
[Notary page to the Mortgage Loan Purchase Agreement]
SCHEDULE I
MORTGAGE LOAN SCHEDULE
[Attached as Exhibit D to the Pooling and Servicing Agreement]
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