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MORTGAGE LOAN PURCHASE AGREEMENT

Mortgage Loan Purchase Agreement

MORTGAGE LOAN PURCHASE AGREEMENT | Document Parties: ABFC 2006-OPT2 TRUST | ASSET BACKED FUNDING CORPORATION | BANK OF AMERICA, NATIONAL ASSOCIATION You are currently viewing:
This Mortgage Loan Purchase Agreement involves

ABFC 2006-OPT2 TRUST | ASSET BACKED FUNDING CORPORATION | BANK OF AMERICA, NATIONAL ASSOCIATION

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Title: MORTGAGE LOAN PURCHASE AGREEMENT
Governing Law: New York     Date: 10/27/2006

MORTGAGE LOAN PURCHASE AGREEMENT, Parties: abfc 2006-opt2 trust , asset backed funding corporation , bank of america  national association
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ASSET BACKED FUNDING CORPORATION

 

as Purchaser

 

and

 

BANK OF AMERICA, NATIONAL ASSOCIATION

 

as Seller

 

MORTGAGE LOAN PURCHASE AGREEMENT

 

Fixed and Adjustable Rate Mortgage Loans

 

ABFC 2006-OPT2 Trust

Asset-Backed Certificates, Series 2006-OPT2

 

Dated as of September 1, 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 .

4

ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH

4

 

Section 3.01.

Representations and Warranties Relating to the Mortgage Loans .

4

 

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

11

 

Section 5.01.

Termination .

11

ARTICLE VI MISCELLANEOUS PROVISIONS

11

 

Section 6.01.

Amendment .

11

 

Section 6.02.

Governing Law .

11

 

Section 6.03.

Notices .

12

 

Section 6.04.

Severability of Provisions .

12

 

Section 6.05.

Counterparts .

12

 

Section 6.06.

Further Agreements .

12

 

Section 6.07.

Intention of the Parties .

13

 

Section 6.08.

Successors and Assigns; Assignment of this Agreement .

13

 

Section 6.09.

Survival .

13

Schedule I Mortgage Loan Schedule

S-1

 

 

 

 

 

 

 

 

 

 

-i-

 

 


 

 

MORTGAGE LOAN PURCHASE AGREEMENT, dated as of September 1, 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 “ Sale and Servicing Agreement ”), dated as of July 28, 2006, by and among Bank of America, as the purchaser, Option One Mortgage Corporation, as company and seller (“ Option One ”), and Option One Owner Trust 2001-1A, Option One Owner Trust 2001-1B, Option One Owner Trust 2001-2, Option One Owner Trust 2002-3, Option One Owner Trust 2003-4, Option One Owner Trust 2003-5, Option One Owner Trust 2005-6, Option One Owner Trust 2005-7, Option One Owner Trust 2005-8 and Option One Owner Trust 2005-9 (collectively, the “ Option One Owner Trusts ”), as sellers, and the related Memoranda of Sale, dated August 31, 2006, September 15, 2006 and September 21, 2006 (collectively, the “ Memoranda of Sale ”), among Bank of America, Option One and the Option One Owner Trusts, 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 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;

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 September 1, 2006 (the “ Pooling and Servicing Agreement ”), among the Purchaser, as depositor, Option One, as servicer, and Wells Fargo Bank, N.A., as trustee (the “ Trustee ”), the Purchaser will convey the Mortgage Loans to ABFC 2006-OPT2 Trust.

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; and (vii) 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, deliver 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, including any riders thereto, 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 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;

(iii)        an original Assignment of Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned in blank;

 

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(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 Option One, 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.

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.

 

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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) to deliver to or at the direction of the Seller on the Closing Date, a 100% interest in each of the Class R Certificates and the Class R-X 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.

 

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, on each Distribution Date, the “significance estimate” of the Interest Rate Swap Agreement, in each case 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.

Representations and Warranties Relating to the Mortgage Loans .

The representations and warranties with respect to the Mortgage Loans in the Sale and Servicing Agreement were made as of the dates of the 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 Section 2.01 hereof. 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 Option One under the Sale and Servicing Agreement and (ii) a representation or warranty of the Seller under this Agreement (other than Section 3.01(xi) and

 

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(xix) below), the only right or remedy of the Purchaser shall be the right to enforce the obligations of Option One 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 Option One in the Sale and Servicing 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(xi) and (xix) below) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by Option One in the Transfer Agreement, without regard to whether Option One fulfills its contractual obligations in respect of such representation or warranty. If, however, Option One fails to reimburse the Trustee for any costs or damages incurred by the Trust in connection with a breach of Option One’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 Option One 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)           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;

(ii)         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;

(iii)        There are no delinquent taxes, assessments that could become a lien prior to the related Mortgage or insurance premiums affecting the related Mortgaged Property;

(iv)        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;

(v)          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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(vi)        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;

(vii) &nbs


 
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