Exhibit 4.2
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ASSET BACKED FUNDING CORPORATION
as
Purchaser
and
BANK OF AMERICA, NATIONAL ASSOCIATION
as Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Fixed Rate and
Adjustable Rate Mortgage Loans
ABFC Asset-Backed Certificates, Series 20 -
Dated as of [______] 1, 20
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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............
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01 Seller
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
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MORTGAGE LOAN PURCHASE AGREEMENT, dated as of [________] 1, 20
(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 [_____________] Agreement (the
"Underlying
Sale Agreement"), dated as of [_____], 20 , by and between Bank of
America,
National Association, as the purchaser (the "Underlying
Purchaser"), and
[____________], as company and seller (the "Company"), and the
related
Memorandum of Sale, dated as of [______], 20 , between the
Underlying Purchaser
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");
WHEREAS, the Seller, as of the date hereof, owns the mortgages
(the
"Mortgages") on the 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 [_________], 20 (the "Pooling and Servicing
Agreement"), among the
Purchaser, as depositor, the Company, as servicer ("[_______]" or
the
"Servicer"), and Wells Fargo Bank, N.A., as trustee (the
"Trustee"), the
Purchaser will convey the Mortgage Loans to the Trustee, on behalf
of the ABFC
20 - Trust (the "Trust"), the trust created pursuant to the Pooling
and
Servicing Agreement.
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,
(vi) the rights of the Seller in respect of the Mortgage Loans
under Sections
[___] and [___] of the Underlying Sale Agreement and the [___]
paragraph of
Section [___] of the Underlying Sale Agreement, and (vii) all
proceeds of any of
the foregoing.
Section 2.02 Obligations of Seller Upon Sale. (a) 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 as Exhibits D-1 and D-2 to the Pooling and
Servicing
Agreement, 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 to 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, 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,
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 the
Seller or the
Company 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 original 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.
Upon discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage File,
the Seller
shall have 120 days to cure such defect or deliver such missing
document to the
Trustee or 150 days following the Closing Date, in the case of
missing Mortgages
or Assignments (or within 90 days of 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 that the
Mortgage Loan is
defective in a manner that would cause it to be a "defective
obligation" within
the meaning of Treasury regulations relating to REMICs). If the
Seller does not
cure such defect or deliver such missing document within such time
period, the
Seller shall either repurchase or substitute for such 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 missing
or defective 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) deliver to or at
the direction
of the Seller on the Closing Date, the Class CE, Class P, Class R
and Class R-X
Certificates, in respect of the Mortgage Loans (collectively, 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, within five (5) calendar days
following
each Distribution Date, the "significance estimate" of each Yield
Maintenance
Agreement 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 Seller Representations and Warranties Relating to
the
Mortgage Loans
The representations and warranties in the Underlying Sale
Agreement
were made as of [_______], 20 .
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 Section 2.01 of this Agreement. 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
Underlying Sale
Agreement and (ii) a representation or warranty of the Seller under
this
Agreement (other than Section 3.01(k) and 3.01(t) 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 Underlying Sale 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
made in
Section 3.01(k) 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 Underlying Sale Agreement, without regard to whether the
Company fulfills
its contractual obligations in respect of such representation or
warranty. If,
however, the Originator fails to reimburse the Trustee for any
costs or damages
incurred by the Trust in connection with a breach of the
Originator's
representation set forth in Section [___] or [____] 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 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:
(a) 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 respecting which such information is
given;
(b) 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;
(c) There are no delinquent taxes, assessments that could become
a
lien prior to the related Mortgage or insurance premiums affecting
the related
Mortgaged Property;
(d) 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, recission or release;
(e) 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, vi
