EXHIBIT 10.2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
February 28, 2006
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "AAR"), dated
February 28, 2006, among Bank of America, National Association, a national
banking association having an office at 100 North Tryon Street, Charlotte, North
Carolina 28255 (the "Assignor"), Asset Backed Funding Corporation, a Delaware
corporation having an office at 214 North Tryon Street, Charlotte, North
Carolina 28255 (the "Assignee"), First Franklin Financial Corporation, a
Delaware corporation having an office at 2150 No. First Street, Suite 600, San
Jose, California 95130 (the "Company") and National City Home Loan Services,
Inc., a Delaware corporation having an office at 150 Allegheny Center, Locator
23-501, Pittsburgh, Pennsylvania 15212 (the "Servicer").
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 the Assignee
all of the right, title and interest of the Assignor, as Purchaser, under the
Flow Sale and Servicing Agreement, dated as of November 1, 2005 (the "Flow Sale
Agreement") 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 (each such date, an "Original Closing Date")
(collectively, the "Memoranda of Sale," and together with the Flow Sale
Agreement, the "Transfer Agreement"), each among the Assignor, the Company and
the Servicer, including but not limited to the representations and warranties
made by the Company in Sections 3.01 and 3.02 and the remedy provisions set
forth in Section 3.03 of the Flow Sale Agreement (other than the Assignor's
rights to indemnification thereunder), but excluding the Assignor's rights under
Section 3.05 of the Flow Sale Agreement. Notwithstanding the foregoing, the
Company and the Assignee acknowledge that in the event the Assignor repurchases
any Mortgage Loan or otherwise performs any other obligation under the Mortgage
Loan Purchase Agreement (as defined below) that is also the obligation of the
Company under the Transfer Agreement, the Assignor shall be deemed to have
retained its right to enforce such obligation against the Company to the extent
it has performed such obligation. In addition, notwithstanding any provision in
this AAR to the contrary, the Assignor specifically reserves and does not assign
to the Assignee any right, title and interest in, to or under any Mortgage Loans
subject to the Transfer Agreement other than the Mortgage Loans that are subject
to the Mortgage Loan Purchase Agreement (the "Assigned Mortgage Loans").
2. The Assignor has sold, assigned, set over, and otherwise conveyed
its rights in, to and under the Assigned Mortgage Loans delivered under the
Transfer Agreement to the Assignee pursuant to that certain Mortgage Loan
Purchase Agreement (the "Mortgage Loan Purchase Agreement"), dated as of
February 28, 2006, by and between the Assignee, as purchaser, and the Assignor,
as seller.
3. The Assignee has further assigned its rights in, to and under (i)
this AAR and (ii) the Assigned Mortgage Loans delivered under the Transfer
Agreement to Wells Fargo Bank, N.A., as trustee (the "Trustee"), pursuant to
that certain Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of February 1, 2006, among the Assignee, as depositor, the
Servicer and the Trustee.
4. The Assignor represents and warrants to, and covenants with, the
Assignee that:
a. The Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to the Company or the
Servicer with respect to the Transfer Agreement;
b. The Assignor is the lawful owner of the Assigned Mortgage Loans
with the full right to transfer the Assigned Mortgage Loans and all of its
interests, rights and obligations under the Transfer Agreement free from any and
all claims and encumbrances whatsoever. Except for the sale to the Assignee, the
Assignor has not assigned or pledged any Mortgage Note related to any Assigned
Mortgage Loan or the related Mortgage or any interest or participation therein;
c. The Assignor has not satisfied, canceled, or subordinated in
whole or in part, or rescinded the Mortgage related to any Assigned Mortgage
Loan, and the Assignor has not released the Mortgaged Property from the lien of
the Mortgage related to any Assigned Mortgage Loan, in whole or in part, nor has
the Assignor executed an instrument that would effect any such release,
cancellation, subordination, or rescission;
d. The Assignor has not taken any action that would serve to impair
or encumber the Assignor's ownership interest in any Assigned Mortgage Loan
since the related Original Closing Date; and
e. The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Transfer Agreement. 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 Transfer Agreement.
5. The Assignee represents and warrants to, and covenants with, the
Assignor, the Company and the Servicer pursuant to Section 13.08 of the Flow
Sale Agreement that:
a. The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of Section 3.03 of the Flow Sale Agreement, and
from and after the date hereof, the Assignee assumes for the benefit of each of
the Company and the Assignor all of the Assignor's obligations as purchaser
thereunder; and
b. The Assignee's address for purposes of all notices and
correspondence related to the Flow Sale Agreement is:
Asset Backed Funding Corporation
214 North Tryon Street, 21st Floor
Charlotte, North Carolina 28255
Attention: ABFC FFMLT 2006-FFH1
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6. The Company and the Servicer represent and warrant to the Assignor
and the Assignee and covenant, acknowledge and agree that, as of the date
hereof:
a. Attached hereto as Exhibit A is a true and accurate copy of the
Flow Sale Agreement, which agreement is in full force and effect as of the date
hereof and provisions of which have not been waived, amended or modified in any
respect, nor has any notice of termination been given to the Company or the
Servicer thereunder;
b. The Servicer has serviced the Mortgage Loans in accordance with
the provisions of the Flow Sale Agreement; and
c. The representations and warranties set forth in Section 3.01 of
the Flow Sale Agreement are made by the Company as of the date hereof.
7. It is the intention of the Assignor, the Company, the Servicer and
the Assignee that Sections 3.02 and 3.03 of the Flow Sale Agreement shall be
binding upon and inure to the benefit of the Company, the Servicer and the
Assignee and their respective successors and assigns.
8. Capitalized terms used but not defined herein shall have the
respective meaning ascribed thereto in the Mortgage Loan Purchase Agreement.
[Signatures Follow]
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IN WITNESS WHEREOF, the parties have caused this AAR to be executed by
their duly authorized officers as of the date first above written.
BANK OF AMERICA, NATIONAL ASSET BACKED FUNDING
ASSOCIATION CORPORATION
Assignor Assignee
By: /s/ Daniel B. Goodwin By: /s/ Bruce W. Good
------------------------------ -----------------------------
Name: Daniel B. Goodwin Name: Bruce W. Good
Its: Managing Director Its: Vice President
Acknowledged this 28th day of February, 2006
FIRST FRANKLIN FINANCIAL CORPORATION
Company
By: /s/ Steve Mageras
-------------------------------
Name: Steve Mageras
Its: Executive Vice President
NATIONAL CITY HOME LOAN SERVICES, INC.
Servicer
By: /s/ Steven A. Baranet
-------------------------------
Name: Steven A. Baranet
Its: Vice President
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EXHIBIT A
Flow Sale Agreement
[See Exhibit G to the Pooling and Servicing Agreement]