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
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ARTICLE I DEFINITIONS
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1
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Section 1.01.
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Definitions .
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1
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ARTICLE II SALE OF MORTGAGE LOANS; PAYMENT OF
PURCHASE PRICE
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2
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Section 2.01.
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Sale of Mortgage Loans .
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2
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Section 2.02.
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Obligations of Seller Upon Sale
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2
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Section 2.03.
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Payment of Purchase Price for the Mortgage
Loans .
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4
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Section 2.04.
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Regulation AB Compliance .
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4
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ARTICLE III REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
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4
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Section 3.01.
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Representations and Warranties Relating to the
Mortgage Loans .
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4
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Section 3.02.
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Seller Representations and Warranties
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9
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ARTICLE IV SELLER’S COVENANTS
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11
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Section 4.01.
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Covenants of the Seller .
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11
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ARTICLE V TERMINATION
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11
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Section 5.01.
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Termination .
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11
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ARTICLE VI MISCELLANEOUS PROVISIONS
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11
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Section 6.01.
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Amendment .
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11
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Section 6.02.
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Governing Law .
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11
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Section 6.03.
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Notices .
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12
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Section 6.04.
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Severability of Provisions
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12
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Section 6.05.
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Counterparts .
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12
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Section 6.06.
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Further Agreements .
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12
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Section 6.07.
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Intention of the Parties .
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13
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Section 6.08.
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Successors and Assigns; Assignment of this
Agreement .
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13
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Section 6.09.
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Survival .
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13
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Schedule I Mortgage Loan Schedule
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S-1
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-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
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Section 1.01.
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Definitions
.
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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
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Section 2.01.
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Sale of Mortgage Loans
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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.
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Section 2.02.
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Obligations of Seller Upon
Sale .
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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;
-2-
(iv) an
original copy of any intervening assignment of Mortgage showing a
complete chain of assignments;
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(v)
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the original or a certified copy of
the lender’s title insurance policy; and
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(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.
-3-
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.
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Section 2.03.
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Payment of Purchase Price for the
Mortgage Loans .
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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.
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Section 2.04.
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Regulation AB
Compliance .
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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
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Section 3.01.
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Representations and Warranties
Relating to the Mortgage Loans .
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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
-4-
(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;
-5-
(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