Exhibit 10.1(B)
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EXECUTION COPY
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December 14, 2006
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "AAR"), dated
December 14, 2006, is among Bank of America, National Association, a national
banking association having an office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 (the "Assignor"), Asset Backed Funding Corporation, a Delaware
corporation having an office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 (the "Assignee"), and Accredited Home Lenders, Inc., a California
corporation having an office at 00000 Xxxxxx xx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000 (the "Company").
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 (i) that
certain Flow Sale and Interim Servicing Agreement (the "Flow Sale Agreement"),
dated as of September 1, 2006, by and between the Assignor and the Company, (ii)
the Memorandum of Sale, dated September 28, 2006 (the "Original Closing Date")
(the "Memorandum of Sale," and together with the Flow Sale Agreement, the
"Transfer Agreement"), each by and between the Assignor and the Company,
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
indenmnification thereunder), but excluding the Assignor's rights under Section
3.05 of the Flow Sale Agreement, and (iii) each of the Mortgage Loans delivered
under the Transfer Agreement by the Company to the Assignor. 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 and the Assignee will be deemed to have waived such right. 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 November 1,
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 U.S. Bank National Association, as trustee (the "Trustee"), pursuant to that
certain Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of November 1, 2006, among the Depositor, Option One Mortgage
Corporation, as a servicer, JPMorgan Chase Bank, National Association, as a
servicer, Xxxxxx Loan Servicing LP, as a servicer, Xxxxx Fargo Bank, N.A., as
master servicer and as securities administrator, and U.S. Bank National
Association, as 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 with respect
to the Transfer Agreement or the Mortgage Loans;
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. 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
(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;
e. 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 Original Closing Date; and
f. The Assignor has not waived or agreed to any waiver under, or agreed
to any amendment or other modification of, the Transfer Agreement or the
Mortgage Loans, including without limitation the transfer of the servicing
obligations under the Transfer Agreement. The Assignor has no knowledge of,
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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 or the Mortgage Loans.
5. The Assignee represents and warrants to, and covenants with, the
Assignor and the Company pursuant to Section 11.07 of the Flow Sale Agreement
that:
a. The Assignee agrees to be bound, as Purchaser, by all of the terms,
covenants and conditions of Article 3 of the Flow Sale Agreement with respect to
the Assigned Mortgage Loans, 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 with respect to the Assigned
Mortgage Loans;
b. Neither the Assignee 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 accepted 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 which would constitute a distribution of the Mortgage Loans
under 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, nor will it act, nor has it authorized or will it authorize
any person to act, in such manner with respect to the Mortgage Loans;
c. Either (1) the Assignee is not an employee benefit plan ("Plan")
within the meaning of section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or a plan ("Plan") within the meaning of
section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and the
Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as trustee of, or with
assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not
result in a prohibited transaction under section 406 of ERISA or section 4975 of
the Code; and
d. The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and the Flow Sale Agreement is:
Asset Backed Funding Corporation
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: ABFC 2006-OHE1
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6. The Company represents and warrants to the Assignor and the Assignee and
covenants, acknowledges and agrees that, as of the date hereof:
a. The Company serviced the Mortgage Loans in accordance with the
provisions of the Flow Sale Agreement until the Servicing Transfer Date and has
complied with all covenants and obligations thereunder;
b. The representations and warranties set forth in Section 3.01 and 3.02
of the Flow Sale Agreement are made by the Company as of the date hereof with
respect to the Assigned Mortgage Loans; provided, however, the representations
and warranties related to the Assigned Mortgage Loans shall be modified to the
extent necessary to accurately reflect the pool statistics of the Assigned
Mortgage Loans as of the date hereof and subject to any events or circumstances
occurring or existing subsequent to the Original Closing Date.
7. It is the intention of the Assignor, the Company and the Assignee that,
as to the Assigned Mortgage Loans, Sections 3.02 and 3.03 of the Flow Sale
Agreement shall be binding upon and inure to the benefit of the Company 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/ Xxxxx X. Good By: /s/ Xxxxxxx X. Xxxxx-Xxxxxx
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Name: Xxxxx X. Good Name: Xxxxxxx X. Xxxxx-Xxxxxx
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Its: Principal Its: Vice President
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Acknowledged as of the date first above written
ACCREDITED HOME LENDERS, INC.
Company
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Its: Associate General Counsel-Finance AVP & Ass't Sec'y
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EXHIBIT A
[See Exhibit 10.3(A) of this Current Report on Form 8-K]
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