MORTGAGE LOAN PURCHASE AGREEMENT
EXECUTION
This
MORTGAGE LOAN PURCHASE AGREEMENT (this “Agreement”) is dated as of November 1,
2006, between Bayview Financial Securities Company, LLC, a Delaware limited
liability company (the “Purchaser”), and Bayview Financial, L.P., a Delaware
limited partnership (the “Seller”).
Preliminary
Statement
The
Seller intends to sell to the Purchaser certain fixed rate and adjustable rate
mortgage loans, including balloon payment loans (the “Mortgage Loans”), on the
terms and subject to the conditions set forth in this Agreement. References
in
this Agreement to conveyance of all of the Seller’s right, title and interest
in, to and under any loans or other property shall be deemed to include all
accounts, accounts receivable, contract rights, claims, choses in action,
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, notes, drafts, letters of credit,
advices of credit, investment property, uncertificated securities and rights
to
payment of any and every kind consisting of, arising from or relating to any
of
such loans or other property. The Purchaser intends to sell the Mortgage Loans
and the other assets constituting the Trust Fund and will assign all of its
rights under this Agreement to U.S. Bank National Association (as successor
to
Wachovia Bank, National Association), as trustee (the “Trustee”) pursuant to the
pooling and servicing agreement dated as of November 1, 2006 (the “Pooling and
Servicing Agreement”), among the Purchaser, as depositor, the Trustee and Xxxxx
Fargo Bank, N.A., as master servicer (the “Master Servicer”).
Capitalized
terms used but not defined herein shall have the meanings set forth in the
Pooling and Servicing Agreement.
The
parties hereto agree as follows:
Section
1. Purchase
and Contribution.
(a) Mortgage
Loans.
The
Seller hereby agrees to sell, and the Purchaser agrees to purchase, on or before
December 15, 2006 (the “Closing Date”), all of the Seller’s right, title and
interest in, to and under the Mortgage Loans; provided,
however,
that
the Purchaser does not assume the obligation under any Mortgage Loan to fund
any
future advances required to be made to the related Mortgagor(s) thereunder,
and
the Purchaser shall not be obligated or permitted to fund any such advances,
it
being understood that Interbay, as lender, shall retain the obligation to fund
future advances. The conveyance of the Mortgage Loans hereunder includes (i)
the
Mortgage Loans (other than the related servicing rights) listed on the Closing
Schedule attached hereto including all payments of interest (other than any
Retained Interest), all prepayment premiums or penalties or yield maintenance
payments received or receivable by the Seller on or with respect to the Mortgage
Loans listed on Schedule
I-B
attached
hereto, and all principal and other amounts received or receivable on or with
respect to the Mortgage Loans listed on Schedule
I
after
the Cut-off Date (other than payments due on or prior to such date) and all
payments due after such date but received prior to such date; (ii) the related
Mortgage Files and all rights of the Seller in the Loan Collateral; (iii) any
Insurance Policies; (iv) any Insurance Proceeds, REO Property, Liquidation
Proceeds and other recoveries (in each case, subject to clause (i) above);
(v)
all Holdback Amounts on deposit in custodial accounts established by Interbay
for the benefit of the Trust Fund; and (vi) all income, revenues, issues, choses
in action, products, revisions, substitutions, replacements, profits, rents
and
all cash and non-cash proceeds of the foregoing, having an aggregate principal
balance as of the close of business on November 1, 2006 (the
“Cut-off Date”), after giving effect to payments of principal due on or before
the Cut-off Date, of $327,281,048.44.
(b) [Reserved]
(c) Assignment
of Additional Rights.
The
Seller hereby assigns to the Purchaser all of the Seller’s rights (excluding its
obligations) under any written contract for the servicing of the Mortgage Loans
to which the Seller becomes a party or a third party beneficiary. The Purchaser
shall have the right to enforce any and all of the Seller’s rights under each of
such Servicing Agreements as if it were a party thereto, including without
limitation, the right to assign such rights to the Trustee, for the benefit
of
the Certificateholders.
Section
2. Schedules
of Mortgage Loans.
The
Purchaser and the Seller have agreed upon which of the mortgage loans owned
by
the Seller are to be purchased by the Purchaser pursuant to this Agreement
and
the Seller will prepare on or prior to the Closing Date a final schedule
describing such Mortgage Loans (the “Closing Schedule”). The Closing Schedule
will conform to the requirements of the Purchaser as set forth in this Agreement
and to the definition of “Mortgage Loan Schedule” under the Pooling and
Servicing Agreement. The Closing Schedule is attached hereto as Schedule
I.
Section
3. Consideration.
(a) In
consideration for the Mortgage Loans to be purchased hereunder and the
obligations undertaken by the Seller with respect to the Mortgage Loans, the
Purchaser shall, as described in Section 8, pay to the Seller an amount (the
“Purchase Amount”) equal to the cash portion of the price obtained by the
Purchaser as consideration for the transfer of the Mortgage Loans to the
Trustee.
(b) [Reserved]
(c) The
Trustee, as assignee of the Purchaser, or any assignee, transferee or designee
of the Trustee shall be entitled to (i) all interest, other than any Retained
Interest, including any prepayment premiums or penalties or yield maintenance
payments and including prepayment premiums or penalties received or receivable
by the Purchaser on or with respect to the Mortgage Loans listed on Schedule
I-B
attached
hereto, and principal received or receivable on or with respect to the Mortgage
Loans listed on Schedule
I
hereto
after the Cut-off Date, but not including interest and principal due and payable
on such Mortgage Loans on or before the Cut-off Date, (ii) all interest, other
than any Retained Interest, including any prepayment premiums or penalties
or
yield maintenance payments and including prepayment premiums or penalties
received or receivable by the Purchaser on or with respect to the Mortgage
Loans
listed on Schedule
I-B
attached
hereto and (iii) other assets described in Section 1.
2
(d) Pursuant
to the Pooling and Servicing Agreement, the Purchaser will assign all of its
right, title and interest in, to and under the Mortgage Loans and the other
assets constituting the Trust Fund, together with its rights under this
Agreement, to the Trustee, for the benefit of the Certificateholders. The
parties hereto agree that the Trustee shall be a third party beneficiary of
this
Agreement, and the Seller hereby restates its representations, warranties and
covenants as set forth herein for the benefit of the Trustee. The rights of
the
Trustee as a third party beneficiary shall be irrevocable and coupled with
an
interest.
Section
4. Transfer
of the Mortgage Loans.
(a) Possession
of Mortgage Files.
The
Seller does hereby sell, transfer, assign, set over and convey to the Purchaser,
without recourse but subject to the terms of this Agreement, all of its right,
title and interest in, to and under the Mortgage Loans. The contents of each
Mortgage File not delivered to the Purchaser or to any assignee, transferee
or
designee of the Purchaser on or prior to the Closing Date are and shall be
held
in trust by the Seller for the benefit of the Purchaser or any assignee,
transferee or designee of the Purchaser. Upon the sale of the Mortgage Loans,
the ownership of each Mortgage Note, the related Mortgage, the other documents
described in this Section 4 and the other contents of the related Mortgage
File
shall be vested in the Purchaser, and the ownership of all records and documents
with respect to the related Mortgage Loan prepared by or that come into the
possession of the Seller on or after the Closing Date shall immediately vest
in
the Purchaser and shall be delivered immediately to the Purchaser or as
otherwise directed by the Purchaser. The Seller’s records will accurately
reflect the sale or contribution, as the case may be, of each Mortgage Loan
to
and the ownership of each Mortgage Loan by the Purchaser. The Seller shall
release its custody of the contents of any Mortgage File only in accordance
with
written instructions from the Purchaser or any assignee, transferee or designee
of the Purchaser.
(b) Delivery
of Mortgage Loan Documents.
The
Seller shall, at least three (3) Business Days prior to the Closing Date,
deliver or cause to be delivered to the Purchaser or any assignee, transferee
or
designee of the Purchaser each of the following documents for each Mortgage
Loan:
(i) (A)
the
original Mortgage Note, endorsed in the following form: “Pay to the order of
U.S. Bank National Association, as Trustee, without recourse,” or in blank, with
all prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee or (B) an original
or copy of the installment sale contract for the purchase of the related
Mortgaged Property;
(ii) with
respect to each Mortgage Loan, (A) the original Mortgage or copy of the Mortgage
with evidence of recording thereon, and (B) the original or a copy of recorded
power of attorney, if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon;
(iii) with
respect to each Non-MERS Mortgage Loan,
an
original Assignment of the Mortgage executed in the following form: “U.S. Bank
National Association, as Trustee (Bayview),” or in blank;
3
(iv) with
respect to each Non-MERS Mortgage Loan, the original Assignment or Assignments
of the Mortgage and if such Assignment of Mortgage is not endorsed in blank,
originals or copies of all intervening assignments showing a complete chain
of
assignment from the originator (or, if applicable, from the U.S. Department
of
Housing and Urban Development) to the Person assigning the Mortgage to the
Trustee as contemplated by the immediately preceding clause (iii) or, in the
case of a Cooperative Loan, an original Assignment of the Security
Agreement;
(v) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any;
(vi) with
respect to each Mortgage Loan other than a Cooperative Loan, the original or
a
copy of the lender’s title insurance policy or attorney’s opinion of title or a
copy thereof certified as true and correct by the applicable insurer, together
with all endorsements or riders that were issued with or subsequent to the
issuance of such policy, insuring the priority of the Mortgage as a first lien
or junior lien, as applicable, on the Mortgaged Property represented therein
as
a fee interest or a leasehold interest vested in the Mortgagor, or in the event
such original title policy is unavailable, a written commitment or uniform
binder or preliminary report of title issued by the title insurance or escrow
company or a copy thereof certified by the title company, with the original
policy of title insurance to be delivered within one year of the Closing Date;
(vii) with
respect to any Cooperative Loan, the following documents: the Security
Agreement; a stock certificate evidencing the Cooperative Shares and related
stock power; Proprietary Lease; and Recognition Agreement;
(viii) as
to
each Mortgage Loan insured by the FHA, the original Mortgage Loan Certificate,
and as to each Mortgage Loan guaranteed by the VA, the original VA Loan Guaranty
Certificate, or in each case a “duplicate original” thereof in accordance with
applicable Regulations; and
(ix) if
any
assignment of leases is separate from the Mortgage, the original or copy
thereof, together with an executed reassignment of such instrument to the
Trustee.
With
respect to each MERS Mortgage Loan, the Purchaser shall cause the Trustee,
at
the expense of the Purchaser and at the direction and with the cooperation
of
the applicable Servicer, to take such actions as are necessary to cause the
Trustee to be clearly identified as the owner of each such Mortgage Loan on
the
records of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
With
respect to any Mortgage Loan as to which the original Mortgage Note has been
permanently lost or destroyed and has not been replaced, the obligations of
the
Seller to deliver the original Mortgage Note pursuant to Section 4(b)(i)(A)
above shall be deemed to be satisfied upon delivery to the Purchaser or any
assignee, transferee or designee of the Purchaser of an affidavit from the
Seller to follow within one Business Day certifying that the original Mortgage
Note has been lost, misplaced or destroyed, in the form of Exhibit
6
hereto.
If
any of
the documents referred to in Sections 4(b)(ii) or (iii) 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 Purchaser of a copy of each such document certified by the
Seller 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
Purchaser 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 or a copy of lender’s title
insurance policy was not delivered pursuant to 4(b)(vi) above, the Seller shall
deliver or cause to be delivered to the Purchaser, promptly after receipt
thereof, the original or a copy of lender’s title insurance policy. The Seller
shall deliver or cause to be delivered to the Purchaser 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.
4
The
Seller shall be responsible for recording at its own expense each of the above
documents requiring recordation. Notwithstanding anything to the contrary
contained in this Section 4, in those instances where the public recording
office has not yet returned, or retains the original Mortgage, power of attorney
or Assignment of Mortgage after it has been recorded, the obligations of the
Seller hereunder shall be deemed to have been satisfied upon delivery not later
than ninety (90) days after the Closing Date by the Seller to the Purchaser
or
any assignee, transferee or designee of the Purchaser of a copy of such
Mortgage, power of attorney or Assignment of Mortgage certified by the public
recording office to be a true and complete copy of the recorded original
thereof. Upon delivery to the Seller (x) by the public recording office of
any
recorded original Mortgage, power of attorney or Assignment of Mortgage, or
(y)
by a title insurance or escrow company of any lender’s title insurance policy,
the Seller promptly (and in no event later than five (5) Business Days following
such receipt) shall deliver such document to the Purchaser or any assignee,
transferee or designee of the Purchaser. The Seller promptly (and in no event
later than thirty (30) Business Days following the Closing Date) shall submit
for recording, at no expense to the Trust Fund or the Trustee, in the
appropriate public office for real property records, each Assignment of Mortgage
referred to in clauses (iii) or (iv) of this Section 4(b); provided,
however,
that
such Assignment of Mortgage need not be recorded if, in the opinion of counsel
(which must be from independent counsel) acceptable to the Trustee and each
Rating Agency, recording in such states is not required to protect the Trustee’s
interest in the related Mortgage Loan. In the event that any such Assignment
of
Mortgage is lost or returned unrecorded because of a defect therein, the Seller
promptly shall prepare a substitute Assignment of Mortgage or cure such defect,
as the case may be, and thereafter cause each such Assignment of Mortgage to
be
duly recorded.
The
Seller shall not organize under the law of any jurisdiction other than the
State
under which it is organized as of the Closing Date (whether changing its
jurisdiction of organization or organizing under an additional jurisdiction)
without giving 30 days prior written notice of such action to its immediate
and
mediate transferee, including the Trustee. Before effecting such change, the
Seller shall prepare and file in the appropriate filing office any financing
statements or other statements necessary to continue the perfection of the
interests of its immediate and mediate transferees, including the Trustee,
in
the Mortgage Loans. In connection with the transactions contemplated by the
Basic Documents, the Seller authorizes its immediate or mediate transferee,
including the Trustee, to file in any filing office any initial financing
statements, any amendments to financing statements, any continuation statements,
or any other statements or filings described in this Section 4(b).
5
(c) FHA
Mortgage Loans and VA Mortgage Loans.
On or
prior to the Closing Date, or within the period following the Closing Date
that
is prescribed by applicable Regulations, the Seller shall complete all forms
and
take such other action as may be required by FHA and VA, as applicable, in
connection with the transfer of the applicable Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement, and shall provide such notices
to FHA or VA, as the case may be, in connection therewith as are required under
applicable Regulations, and shall, at the request of the Purchaser, provide
evidence reasonably satisfactory to the Purchaser that such notices have been
provided as so required.
(d) Acceptance
of Mortgage Loans.
The
documents delivered pursuant to Section 4(b) hereof shall be reviewed by the
Purchaser or any assignee, transferee or designee of the Purchaser at any time
before or after the Closing Date (and each document permitted to be delivered
after the Closing Date within seven (7) days of its delivery) to ascertain
that
all required documents have been executed and received and that such documents
relate to the Mortgage Loans identified on the Mortgage Loan Schedule. If the
Purchaser or any assignee, transferee or designee of the Purchaser discovers
that any material document is missing or is defective in any material respect,
the Seller shall correct or cure any such omission or defect or shall repurchase
or substitute for the affected Mortgage Loan in accordance with the terms of
Section 7(a) hereof and Section 2.03 of the Pooling and Servicing Agreement.
At
the time of such repurchase, the Purchaser shall, in exchange for a written
receipt therefor, release such documents relating to such Mortgage Loan as
are
then in its possession to the Seller.
(e) Transfer
of Interest in the Agreement.
The
Purchaser has the right to assign its interest under this Agreement, in whole
or
in part, to the Trustee, as may be required to effect the purposes of the
Pooling and Servicing Agreement without the consent of the Seller, and the
assignee shall succeed to the rights and obligations hereunder of the Purchaser.
Any expense reasonably incurred by or on behalf of the Purchaser or the Trustee
in connection with enforcing any obligations of the Seller under this Agreement
will be promptly reimbursed by the Seller.
(f) Examination
of Mortgage Files.
Not
later than three (3) Business Days prior to the Closing Date, the Seller shall
deliver to the Purchaser or to any assignee, transferee or designee of the
Purchaser in escrow, for examination, the Mortgage File pertaining to each
Mortgage Loan. Such examination may be made by the Purchaser or any assignee,
transferee or designee of the Purchaser at any time before or after the Closing
Date. If any such person makes such examination prior to the Closing Date and
identifies any Mortgage Loans which do not conform to the requirements of the
Purchaser as described in this Agreement, such Mortgage Loans shall be deleted
from the Closing Schedule, and may be replaced, prior to the Closing Date,
by
substitute Mortgage Loans acceptable to the Purchaser. The Purchaser may, at
its
option and without notice to the Seller, purchase all or part of the Mortgage
Loans without conducting any partial or complete examination. The fact that
the
Purchaser or any assignee, transferee or designee of the Purchaser has conducted
or has failed to conduct any partial or complete examination of the Mortgage
Files shall not affect the rights of the Purchaser or any assignee, transferee
or designee of the Purchaser to demand repurchase or other relief as provided
herein or under the Pooling and Servicing Agreement.
6
Section
5. Representations
and Warranties of the Seller.
The
Seller hereby represents and warrants to the Purchaser that as of the Closing
Date:
(a) The
Seller is a limited partnership duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full power and
authority (i) to conduct its business as presently conducted by it and (ii)
to
execute and deliver this Agreement and perform its obligations under this
Agreement. The Seller is and will remain in compliance with the laws of each
state in which any Mortgaged Property is located to the extent necessary to
perform its obligations in respect of this Agreement.
(b) The
execution and delivery of this Agreement, the performance by the Seller of
its
obligations hereunder and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Seller. This Agreement has been duly executed and delivered by the Seller and
constitutes a legal, valid and binding obligation of the Seller, enforceable
in
accordance with its terms, subject to bankruptcy, insolvency, reorganization
or
similar laws affecting the enforcement of creditors’ rights generally and to
general principles of equity and public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit
the
enforceability of the provisions of this Agreement which purport to provide
indemnification from securities laws liabilities.
(c) The
execution, delivery and performance of this Agreement by the Seller, and the
consummation of the transactions contemplated hereby, will not (i) violate
or
conflict with any provision of the limited partnership agreement of the Seller
or any law, rule, regulation, order, judgment, award, administrative
interpretation, injunction, writ, decree or the like affecting the Seller or
by
which the Seller is bound or (ii) result in a breach of or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute
a
default) under any indenture or other material agreement to which the Seller
is
a party or by which the Seller is bound, which in the case of either clause
(i)
or (ii) will have a material adverse effect on the Seller’s ability to perform
its obligations under this Agreement.
(d) No
authorization, consent, approval, license, exemption or other action by or
notice to or registration or filing with any governmental authority or
administrative or regulatory body is required for either the execution, the
delivery or the performance of this Agreement by the Seller or the consummation
of the transactions contemplated hereby, except such as shall have been made
or
obtained on or prior to the Closing Date.
(e) There
are
no pending or, to the best of the Seller’s knowledge, threatened actions,
proceedings or investigations against the Seller before any court, governmental
arbitrator or instrumentality which if determined adversely to the Seller may
reasonably be expected, individually or in the aggregate, to (i) have a material
and adverse effect on the Seller’s ability to perform its obligations under this
Agreement or (ii) affect the legality, validity or enforceability of this
Agreement.
7
(f) The
Seller is solvent and the sale of the Mortgage Loans will not cause the Seller
to become insolvent. The sale of the Mortgage Loans is not undertaken with
the
intent to hinder, delay or defraud any of the Seller’s creditors.
(g) The
transfer of the Mortgage Loans to the Purchaser at the Closing Date will be
treated by the Seller for financial accounting and reporting purposes as a
sale
of assets.
(h) This
Agreement does not contain any untrue statement of material fact or omit to
state a material fact necessary to make the statements contained herein not
misleading. The written statements, reports and other documents prepared and
furnished by the Seller pursuant to this Agreement or in connection with the
transactions contemplated hereby taken in the aggregate do not contain any
untrue statement of material fact or omit to state a material fact necessary
to
make the statements contained therein not misleading. No certificate of an
officer, statement or other information furnished in writing or report prepared,
furnished and delivered by the Seller to the Purchaser, any affiliate of the
Purchaser or the Trustee for use in connection with the purchase of the Mortgage
Loans and the transactions contemplated under this Agreement and under the
Pooling and Servicing Agreement will contain any untrue statement of a material
fact, or omit a material fact necessary to make the information, certificate,
statement or report not misleading in any material respect.
(i) The
Seller has not dealt with any broker or agent or other Person who might be
entitled to a fee, commission or compensation in connection with the transaction
contemplated by this Agreement other than the Purchaser and its
affiliates.
(j) The
Seller is not in default with respect to any order or decree of any court,
regulation or demand of any federal, state, municipal or governmental agency,
which default would materially and adversely affect the condition (financial
or
other) or operations of the Seller or its properties or the consequences of
which would have a material adverse effect on the Seller’s ability to perform
its obligations under this Agreement.
(k) The
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller hereunder are not subject to the bulk transfer laws or any similar
statutory provisions in effect in any applicable jurisdiction.
(l) The
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller.
(m) The
representations and warranties set forth in this Section 5 shall survive the
Closing Date.
Section
6. Representations
and Warranties.
The
Seller represents and warrants to the Purchaser, as to each Mortgage Loan,
as of
the date hereinbelow specified or, if no such date is specified, then as of
the
Closing Date, that:
(a) The
Seller has good title to and is the sole owner and holder of the Mortgage
Loan.
8
(b) Immediately
prior to the transfer and assignment to the Purchaser, the Mortgage Note and
the
Mortgage were not subject to an assignment or pledge, other than with respect
to
which a release has been obtained in connection with such transfer, and the
Seller has full right and authority to sell and assign the Mortgage
Loan.
(c) The
Seller is transferring such Mortgage Loan to the Purchaser free and clear of
any
and all liens, pledges, charges or security interests of any nature encumbering
the Mortgage Loans.
(d) The
information set forth on the Closing Schedule is true and correct in all
material respects as of the Cut-off Date or such other date as may be indicated
in such schedule.
(e) The
Mortgage Loan complies in all material respects with all applicable federal,
state and local laws, including, but not limited to, all applicable predatory
and abusive lending laws, and has been acquired, serviced, collected and
otherwise dealt with in compliance with all applicable federal, state and local
laws and regulations, including, without limitation, usury, truth in lending,
real estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws, and the terms of the related Mortgage Note
and
Mortgage.
(f) None
of
the Mortgage Loans are “high-cost” or “covered” loans as defined under any
applicable federal, state or local predatory and abusive lending laws. No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the then current version of Standard & Poor’s LEVELS®
Glossary, which is now Version 5.7 File Format, Appendix E) and no
Mortgage Loan originated on or after October 1, 2002 and prior to March 7,
2003
is governed by the Georgia Fair Lending Act. With respect to Mortgage Loans
subject to the law of the State of New Jersey, no Mortgage Loan is a High-Cost
Home Loan, as defined in the New Jersey predatory and abusive lending law (NJ
High-Cost Home Loans). With respect to Mortgage Loans subject to the law of
the
State of Massachusetts, no Mortgage Loan is a “High Cost Home Mortgage Loan” as
defined in the Massachusetts Predatory Home Loan Practices Act of 2004. No
Mortgage Loan is subject to the Kentucky House Xxxx 287, the New Mexico Home
Loan Protection Act or New York Banking Law § 6-1, as amended. No
Mortgage Loan is a “High Cost Home Loan” as defined in the Indiana Home Loan
Practices Act (Ind. Code Xxx. § 24-9-1 et seq.).
(g) The
related Mortgage Note and Mortgage are genuine and each is the legal, valid
and
binding obligation of the maker thereof, enforceable in accordance with its
terms except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(h) The
related Mortgage is a valid and enforceable first lien on the related Mortgaged
Property, which Mortgaged Property is free and clear of all encumbrances and
liens (including mechanics liens) having priority over such lien except for:
(i)
liens for real estate taxes and assessments not yet due and payable; (ii)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage, such
exceptions appearing of record being acceptable to mortgage lending institutions
generally or specifically reflected or considered in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and (iii)
other matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
9
(i) Any
security agreement, pledge agreement, chattel mortgage or equivalent document
related to such Mortgage Loan establishes and creates a valid and enforceable
lien on the property described therein, including any Additional
Collateral.
(j) No
payment due on any Mortgage Loan was more than fifty-nine (59) days past due
as
of the Cut-off Date.
(k) [Reserved].
(l) The
Seller has not impaired, waived, altered or modified the related Mortgage or
Mortgage Note in any material respect, or satisfied, canceled, rescinded or
subordinated such Mortgage or Mortgage Note in whole or in part or released
all
or any material portion of the Mortgaged Property from the lien of the Mortgage,
or executed any instrument of release, cancellation, rescission or satisfaction
of the Mortgage Note or Mortgage, in each case other than pursuant to a written
agreement or instrument contained in the Mortgage File.
(m) The
Mortgage has not been satisfied, canceled or subordinated, in whole, or
rescinded, and the Mortgaged Property has not been released from the lien of
the
Mortgage, in whole or in part (except for a release that does not materially
impair the security of the Mortgage Loan or a release the effect of which is
reflected in the Loan-to-Value Ratio for the Mortgage Loan as set forth in
the
Closing Schedule).
(n) No
condition exists with respect to a Mortgage Loan which could give rise to any
right of rescission, set off, counterclaim, or defense including, without
limitation, the defense of usury, and no such right has been
asserted.
(o) There
is
no proceeding pending for the total or partial condemnation of any Mortgaged
Property and there are no eminent domain proceedings pending affecting any
Mortgaged Property.
(p) Each
Mortgage Loan other than a Cooperative Loan is covered by either (i) a mortgage
title insurance policy or other generally acceptable form of insurance policy
customary in the jurisdiction where the Mortgaged Property is located or (ii)
if
generally acceptable in the jurisdiction where the Mortgaged Property is
located, an attorney’s opinion of title given by an attorney licensed to
practice law in the jurisdiction where the Mortgaged Property is located. All
of
the Seller’s rights under such policies, opinions or other instruments shall be
transferred and assigned to the Purchaser upon sale and assignment of the
Mortgage Loans hereunder. The title insurance policy has been issued by a title
insurer licensed to do business in the jurisdiction where the Mortgaged Property
is located, insuring the original lender, its successor and assigns, as to
the
first priority lien or second priority lien, as applicable, of the Mortgage
in
the original principal amount of the Mortgage Loan, subject to the exceptions
contained in such policy. The Seller is the sole insured of such mortgagee
title
insurance policy, and such mortgagee title insurance policy is in full force
and
effect and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. The Seller has not made, and the Seller has
no
knowledge of, any claims under such mortgagee title insurance policy. The Seller
is not aware of any action by a prior holder and the Seller has not done, by
act
or omission, anything that could impair the coverage or enforceability of such
mortgagee title insurance policy or the accuracy of such attorney’s opinion of
title.
10
(q) Other
than delinquency in payment, there is no material default, breach, violation
or
event of acceleration existing under the related 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. The Seller has not waived any
material default, breach, violation or event of acceleration.
(r) With
respect to any Mortgage Loan that provides for an adjustable interest rate,
all
rate adjustments have been performed in accordance with the terms of the related
Mortgage Note, subsequent modifications, if any, and all applicable
law.
(s) There
are
no delinquent taxes, ground rents, water charges, sewer rents, assessments,
insurance premiums, leasehold payments, including assessments payable in future
installments or other outstanding charges, affecting the related Mortgaged
Property.
(t) Except
as
previously disclosed in writing to the Purchaser and the Trustee by the Seller,
to the Seller’s best knowledge no material litigation or lawsuit relating to the
Mortgage Loan is pending.
(u) The
Mortgage Loan obligates the mortgagor thereunder to maintain a hazard insurance
policy (“Hazard Insurance”) in an amount at least equal to the maximum insurable
value of any improvements made to the related Mortgaged Property, and, if it
was
in place at origination of the Mortgage Loan, flood insurance, at the
mortgagor’s cost and expense. If the Mortgaged Property is in an area identified
in the Federal Register by the Federal Emergency Management Agency (“FEMA”) as
having special flood hazards, a flood insurance policy is in effect which met
the requirements of FEMA at the time such policy was issued. The Mortgage
obligates the Mortgagor to maintain the Hazard Insurance and, if applicable,
flood insurance policy at the Mortgagor’s cost and expense, and on the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at the Mortgagor’s cost and expense, and to seek
reimbursement therefor from the Mortgagor. The Mortgaged Property is covered
by
Hazard Insurance (unless such Mortgaged Property is unimproved
land).
(v) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage, any holdback amounts or any reserve amounts,
and
the security interest of any applicable security agreement or chattel
mortgage.
(w) The
Mortgage contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including (i) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale or non-judicial foreclosure and (ii) otherwise by judicial
foreclosure. Except as previously disclosed to the Purchaser by the Seller,
the
Mortgaged Property is not subject to any bankruptcy proceeding or foreclosure
proceeding and the Mortgagor has not filed for protection under applicable
bankruptcy laws. There is no homestead or other exemption available to the
Mortgagor that would interfere with the right to sell the Mortgaged Property
at
a trustee’s sale or the right to foreclose the Mortgage. In the event the
Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable
law to serve as such, has been properly designated and currently so serves
and
is named in the Mortgage, and no fees or expenses are or will become payable
by
the Purchaser to the trustee under the deed of trust, except in connection
with
a trustee’s sale after default by the related Mortgagor. The Mortgagor has not
notified the Seller and the Seller has no knowledge of any relief requested
or
allowed to the Mortgagor under the Servicemembers Civil Relief Act.
11
(x) Except
as
set forth in the appraisal or other written valuation which forms part of the
related Mortgage File or servicing file, the Mortgaged Property, normal wear
and
tear excepted, is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty so as to affect materially and
adversely the value of the Mortgaged Property as security for the Mortgage
Loan
or the use for which the premises were intended.
(y) As
of the
Closing Date, either (i) no Mortgaged Property securing a Mortgage Loan is
subject to an environmental hazard that would have to be eliminated under
applicable law before the sale of, or which could otherwise affect the
marketability of, such Mortgaged Property or which would subject the owner
or
operator of such Mortgaged Property or a lender secured by such Mortgaged
Property to liability under applicable law, and there are no liens which relate
to the existence of any clean-up of a hazardous substance (and no circumstances
are existing that under law would give rise to any such lien) affecting the
Mortgaged Property which are or may be liens prior to or on a parity with the
lien of the related mortgage, or (ii) a secured lender’s environmental insurance
policy issued by American International Specialty Lines Insurance Company or
by
Steadfast Insurance Company, a member company of Zurich Financial Services
Group, is in effect with respect to each Mortgaged Property.
(z) No
improvements on the related Mortgaged Property encroach on adjoining properties
(and in the case of a condominium unit, such improvements are within the project
with respect to that unit), and no improvements on adjoining properties encroach
upon the Mortgaged Property unless there exists in the Mortgage File a title
policy with endorsements which insure against losses sustained by the insured
as
a result of such encroachments.
(aa) Approximately
4.96% of the Mortgage Loans (by Principal Balance as of the Cut-off Date) permit
negative amortization.
(bb) With
respect to escrow deposits (including any Holdback Amounts), if any, all such
payments are in the possession of or under the control of, the Seller or the
related servicer and there exist no deficiencies in connection therewith for
which customary arrangements for repayment thereof have not been
made.
(cc) To
the
Seller’s best knowledge, the Mortgaged Property is lawfully occupied or operated
under applicable law.
(dd) The
Mortgage Loan has been serviced by or on behalf of the Seller and any
predecessor servicer in accordance with the terms of the Mortgage Note and
all
applicable laws.
(ee) None
of
the Mortgage Loans has a negative Mortgage Rate.
12
(ff) The
Mortgaged Property is free of material damage and is in good
repair.
(gg) No
proceeds from a Mortgage Loan were used to finance a single-premium credit
insurance policy.
(hh) There
are
no mechanics’ or similar liens or claims that have been filed for work, labor or
material (and no rights are outstanding that under law could give rise to such
lien) affecting the related Mortgaged Property that are or may be liens prior
to, or equal or coordinate with, the lien of the related Mortgage.
(ii) The
Mortgaged Property with respect to each Mortgage Loan is either real property
(or a leasehold interest therein) owned by the related Mortgagor in fee simple,
in the case of a Manufactured Housing Loan, a security interest in the
Manufactured Home or in the case of a Cooperative Loan, the related Cooperative
Shares and Proprietary Lease.
(jj) Each
Mortgage Loan is a first lien Mortgage Loan.
(kk) Each
Manufactured Home has a minimum of 400 square feet of living space and a minimum
width in excess of 102 inches and is of a kind customarily used at a fixed
location.
(ll) [Reserved]
(mm) Each
FHA
Mortgage Loan and each VA Mortgage Loan complies in all material respects with
applicable Regulations. With respect to each FHA Mortgage Loan and each VA
Mortgage Loan, the applicable Policy is in full force and effect, and there
exists no defense or impairment to full recovery thereunder to the maximum
extent provided thereby, without, in the case of any FHA Mortgage Loan,
indemnity to HUD or FHA. Each Policy is the valid, binding and enforceable
obligation of FHA and VA, respectively, to the full extent provided thereby,
without surcharge, set-off or defense, and all actions that are necessary to
ensure that each Policy remains so valid, binding and enforceable have been
taken. The guaranty amount with respect to each VA Mortgage Loan is equal to
the
maximum amount applicable to such Mortgage Loan as provided under Section 5.02
of the VA Lenders Handbook Number 26-7, without regard to the applicable
veteran’s available entitlement.
(nn) Each
Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of
the Code and Treas. Reg. §1.860G-2. Each Mortgage Loan that is secured by one-
to four-family residential real property (or a leasehold interest therein)
has a
loan-to-value ratio of 125% or less (by Principal Balance as of the Cut-off
Date).
The
representations, warranties and covenants, set forth in this Section 6 shall
survive the Closing Date.
Section
7. Repurchase
or Substitution of Mortgage Loans for Defective Documentation and for Breach
of
Representation and Warranty.
(a) The
representations and warranties contained in Sections 5 and 6 shall not be
impaired by any review and examination of loan files or other documents
evidencing or relating to the Mortgage Loans or any failure on the part of
the
Purchaser to review or examine such documents and shall inure to the benefit
of
any assignee, transferee or designee of the Purchaser, including the Trustee
for
the benefit of holders of the Certificates evidencing an interest in all or
a
portion of the Mortgage Loans.
13
Upon
discovery by the Seller, the Purchaser or any assignee, transferee or designee
of the Purchaser (i) of any materially defective document in, or that any
material document is missing from, any Mortgage File, (ii) of a breach of the
representation set forth in Section 6(j) or (iii) of a breach of any of the
other representations and warranties contained in Section 5 or 6 that in the
case of the representations and warranties referred to in this clause (iii)
materially and adversely affects the value of any Mortgage Loan or the interest
therein of the Purchaser or the Purchaser’s assignee, transferee or designee,
the party discovering the breach shall give prompt written notice to the others.
Within ninety (90) days of its discovery or its receipt of notice of any such
missing or materially defective documentation or any such breach of a
representation and warranty, the Seller promptly shall deliver such missing
document or cure such defect or breach in all material respects, or in the
event
such defect or breach cannot be cured, the Seller shall, in the case of a breach
of representation or warranty or the failure of the Seller to satisfy its
obligation with respect to delivery of documents pursuant to Section 4(b)(i),
or
upon receipt of notice from the Purchaser or the Purchaser’s assignee or
transferee that any material document defect has materially impaired the
enforcement of the related Mortgage Loan or Mortgage, either (i) repurchase
the
affected Mortgage Loan at the Purchase Price (as such term is defined in the
Pooling and Servicing Agreement) or (ii) subject to the approval of the
Purchaser or the Purchaser’s assignee, transferee or designee, cause the removal
of such Mortgage Loan from the Trust Fund and substitute one or more Qualified
Substitute Mortgage Loans. In addition, the Seller shall repurchase any Mortgage
Loan, or substitute for any Mortgage Loan, in the event of a breach of its
representations and warranties with respect to such Mortgage Loan if the
substance of any such breach also constitutes fraud in the origination of such
Mortgage Loan on the part of any Person, other than any such fraud of which
the
Seller had knowledge on the Closing Date, and which the Seller has disclosed
in
writing to the Purchaser, the Trustee and each Rating Agency. Notwithstanding
the preceding sentence, if a breach of representation or warranty cannot
reasonably be cured within ninety (90) days after written notice thereof, and
the Seller shall have commenced to cure such breach within such ninety (90)
day
period and thereafter diligently and expeditiously proceeds to cure the same,
such ninety (90) day period shall be extended for so long as it shall require
the Seller in the exercise of due diligence to cure such breach, it being agreed
that no such extension shall be for a period in excess of the lesser of ninety
(90) days or the period of time during which the Seller is required to cure
or
repurchase an affected Mortgage Loan pursuant to any sale and/or securitization
agreement or arrangement it may enter into. The Seller shall amend the Closing
Schedule to reflect the withdrawal of such Mortgage Loan from the terms of
this
Agreement and the Pooling and Servicing Agreement and the addition, if any,
of a
Qualified Substitute Mortgage Loan. The Seller shall deliver to the Purchaser
such amended Closing Schedule and shall deliver such other documents as are
required by this Agreement or the Pooling and Servicing Agreement within five
(5) days of any such amendment. The Seller shall have the option, but not the
obligation, to repurchase any Mortgage Loan if there has occurred a breach
of
any representation or warranty made to the Seller with respect to such Mortgage
Loan upon acquisition thereof, which breach materially and adversely affects
the
value of such Mortgage Loan. Any such repurchase shall be effected in accordance
with this Section.
14
In
addition, to the extent provided in the Pooling and Servicing Agreement, if
the
Value of REO Property from Foreclosure Restricted Loans would equal or exceed
0.75% of the outstanding Principal Balance of the Mortgage Loans listed in
Schedule
I
of the
Pooling and Servicing Agreement as of the end of any Due Period, the Seller
shall purchase at fair market value on or prior to the related Distribution
Date
sufficient REO Property related to Foreclosure Restricted Loans or Foreclosure
Restricted Loans which are in default to cause the Trustee to hold REO Property
related to Foreclosure Restricted Loans with a Value of less than 0.75% of
the
outstanding Principal Balance of the Mortgage Loans listed in Schedule
I
of the
Pooling and Servicing Agreement. For purposes of this paragraph the “Value” of
REO Property from a Foreclosure Restricted Loan shall be treated as equal to
the
Principal Balance of the related Foreclosure Restricted Loan plus interest
that
had accrued on such Mortgage Loan as of the date of acquisition of the REO
Property by the Trustee.
In
addition, the Seller shall have the option, but not the obligation, to
substitute a Qualified Substitute Mortgage Loan for a Removable Mortgage Loan
in
the manner and subject to the limitations set forth in this Section 7(a). The
Seller’s option shall be exercisable on the date that such Mortgage Loan becomes
30 days delinquent, provided
that no
such substitution for a Removable Mortgage Loan shall be made after December
31,
2006 . If the Seller exercises such option with respect to any Removable
Mortgage Loan, such Mortgage Loan shall be removed from the Trust Fund (in
which
case it shall become a Deleted Mortgage Loan). Without regard to whether the
related Mortgagor subsequently makes a late Monthly Payment, the Seller shall
retain its right to exercise the option described above.
Any
repurchase pursuant to this Section 7(a) shall be accomplished by transfer
to an
account designated by the Purchaser of the amount of the Purchase Price in
accordance with Section 2.03 of the Pooling and Servicing Agreement. Any
repurchase or substitution required or permitted by this Section shall be made
in a manner consistent with Section 2.03 of the Pooling and Servicing
Agreement.
(b) In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller’s representations and warranties contained in this Agreement. It is
understood and agreed that the obligations of the Seller set forth in this
Section 7 to cure, substitute for or repurchase a defective Mortgage Loan and
to
indemnify the Purchaser as provided in this Section 7 constitute the sole
remedies of the Purchaser respecting a breach of the foregoing representations
and warranties.
(c) Any
cause
of action against the Seller relating to or arising out of the breach of any
representations and warranties made in Section 6 shall accrue as to any Mortgage
Loan upon (i) discovery of such breach by the Purchaser or notice thereof by
the
Seller to the Purchaser, (ii) failure by the Seller to cure such breach or
repurchase such Mortgage Loan as specified above, and (iii) demand upon the
Seller by the Purchaser for compliance with this Agreement.
(d) With
respect to the representations and warranties contained in Section 6, which
are
made to the best of Seller’s knowledge or as to which Seller has no knowledge,
if it is discovered by the Seller or the Trustee that the substance of any
such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan, then notwithstanding
the Seller’s knowledge or lack of knowledge with respect to the inaccuracy of
such representation and warranty at the time it was made, the party discovering
the inaccuracy shall take the action as described under this Section
7.
15
Section
8. Closing;
Payment for the Mortgage Loans.
The
closing of the purchase and sale of the Mortgage Loans shall be held at the
Washington, D.C. office of XxXxx Xxxxxx LLP at 9:00 a.m. New York Time on the
Closing Date.
The
closing shall be subject to each of the following conditions:
(i) All
of
the representations and warranties of the Seller set forth in Section 5 of
this
Agreement shall be true and correct as of the Closing Date and no event shall
have occurred which, with notice or the passage of time, would constitute a
default under this Agreement or an Event of Default under the Pooling and
Servicing Agreement;
(ii) The
Purchaser shall have received, or the Purchaser’s attorneys shall have received,
in escrow (to be released from escrow at the time of closing), all Closing
Documents as specified in Section 9 of this Agreement, in such forms as are
agreed upon and acceptable to the Purchaser, duly executed by all signatories
other than the Purchaser as required pursuant to the respective terms thereof;
(iii) The
Seller shall have delivered and released to the Purchaser or to its assignee,
transferee or designee, all documents (including without limitation, the
Mortgage Loans) required to be so delivered by the Seller pursuant to Section
4(b) hereof; and
(iv) All
other
terms and conditions of this Agreement shall have been complied
with.
Subject
to the foregoing conditions, the Purchaser shall deliver or cause to be
delivered to the Seller on the Closing Date, against delivery and release by
the
Seller to the Trustee of all documents required pursuant to this Agreement
and
the Pooling and Servicing Agreement, the consideration for the Mortgage Loans
as
specified in Section 3 of this Agreement, by delivery to the Seller of the
Purchase Amount in immediately available funds.
Section
9. Closing
Documents.
The
Closing Documents shall consist of the following:
(i) The
Pooling and Servicing Agreement, dated as of the Cut-off Date, substantially
in
the form of Exhibit
1
hereto
and with such further changes therein as the Seller and the Purchaser shall
mutually agree to, together with all documents required to be delivered
thereunder; and
(ii) With
respect to the Mortgage Loans:
(1) An
Officer’s Certificate of the Seller, dated the Closing Date, upon which the
Purchaser and each of X.X. Xxxxxx Securities Inc., Citigroup Global Markets
Inc.
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “Underwriters”)
may rely, in the form of Exhibit
2
hereto,
and attached thereto a certified copy of the resolutions of the board of
directors of the Seller, together with copies of the Seller’s Certificate of
Limited Partnership and Agreement of Limited Partnership, as amended, and a
certificate of good standing of the Seller from the Secretary of State of the
State of Delaware;
16
(2) An
Officer’s Certificate of the Seller, dated the Closing Date, upon which the
Purchaser and the Underwriters may rely, in the form of Exhibit
3
hereto,
with respect to certain facts regarding the sale of the Mortgage Loans by the
Seller to the Purchaser;
(3) An
Opinion of Counsel of the Seller (who may be in-house counsel of the Seller),
dated the Closing Date and addressed to the Purchaser and the Underwriters,
substantially in the form attached hereto as Exhibit
4;
(4) A
letter
from Deloitte & Touche LLP, dated the date hereof, to the effect that they
have performed certain specified procedures as a result of which they determined
that certain information of an accounting, financial or statistical nature
set
forth in the Purchaser’s prospectus dated December 7, 2006, as supplemented by
the supplement dated December 12, 2006 (the “Prospectus Supplement”), relating
to the offering of certain classes of Bayview Financial Mortgage Pass-Through
Certificates, Series 2006-D, has been properly calculated;
(5) Such
opinions of counsel as the Rating Agencies or the Trustee may reasonably request
in connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or the Seller’s execution and delivery of, or performance under, this Agreement
or the Pooling and Servicing Agreement; and
(6) Such
further information, certificates, opinions and documents as the Purchaser
or
Underwriters may reasonably request.
(iii) Such
additional documentation as is required to be delivered under the Underwriting
Agreement dated December 12, 2006, among the Seller, the Purchaser and X.X.
Xxxxxx Securities Inc., as representative of the several
Underwriters.
Section
10. Costs.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person to the
extent that the Purchaser or such other Person shall pay) all costs and expenses
incurred in connection with the transfer and delivery of the Mortgage Loans,
including without limitation recording fees, fees for title policy endorsements
and continuations, recording fees, the fees and expenses of the Seller’s
accountants for delivery of the letter specified in Section 9(ii)(4) above
and
the Seller’s attorneys, the fees, expenses and disbursements of the Trustee
under the Pooling and Servicing Agreement (other than the annual fee paid out
of
the Trust Fund) and any related insurance agreement or related documents. The
Seller shall pay the costs and expenses of printing (or otherwise reproducing)
and delivering the Prospectus Supplement relating to the Certificates and the
related Prospectus, dated December 7, 2006 (the “Base Prospectus,” and together
with the Prospectus Supplement, the “Prospectus”), the Pooling and Servicing
Agreement and related documents including the costs of printing any of the
Certificates, the initial fees, the fees and expenses of the Purchaser’s counsel
in connection with the preparation of all documents relating to the
securitization of the Mortgage Loans and the fees charged by any rating agency
to rate the Certificates.
17
Section
11. Non-Solicitation.
The
Seller shall not solicit or assist in the solicitation, directly or indirectly,
for any purpose including without limitation refinance, subordinate financing
on
the related Mortgaged Property, home equity, insurance, or any other financial
service or product with regard to any Mortgagor; provided,
however,
that
promotions undertaken by the Seller that are directed to the general public
at
large, including without limitation mass mailings based on commercially acquired
mailing lists and newspaper, radio and television advertisements, shall not
constitute solicitation hereunder. The Seller further agrees to use its best
efforts to cause any Affiliate of the Seller to refrain from taking any action
that is prohibited under this section with respect to the Mortgage
Loans.
Section
12. Mandatory
Delivery; Grant of Security Interest.
The
sale and delivery on the Closing Date of the Mortgage Loans described on the
Closing Schedule in accordance with the terms and conditions of this Agreement
is mandatory. It is specifically understood and agreed that each Mortgage Loan
is unique and identifiable on the date hereof and that an award of money damages
would be insufficient to compensate the Purchaser for the losses and damages
incurred by the Purchaser in the event of the Seller’s failure to deliver the
Mortgage Loans on or before the Closing Date. The Seller hereby grants to the
Purchaser a lien on and a continuing security interest in the Seller’s interest
in each Mortgage Loan and each document and instrument evidencing each such
Mortgage Loan to secure the performance by the Seller of its obligation
hereunder, and the Seller agrees to prepare and deliver to the Purchaser or
Purchaser’s assignee or transferee, not less than fifteen (15) days prior to any
filing date and, the Purchaser or its assignee or transferee shall forward
for
filing, or shall cause to be forwarded for filing, at the expense of the Seller,
all filings necessary to maintain the effectiveness of any original filings
necessary under the Uniform Commercial Code as in effect in any jurisdiction
to
perfect the security interest in or lien on the Mortgage Loans. The Seller
agrees that it holds such Mortgage Loans in custody for the Purchaser, subject
to the Purchaser’s (i) right, prior to the Closing Date, to reject any Mortgage
Loan to the extent permitted by this Agreement and to require another Mortgage
Loan to be substituted therefor pursuant to Section 4 hereof, and (ii)
obligation to deliver or cause to be delivered the consideration for the
Mortgage Loans pursuant to Section 8 hereof. Any Mortgage Loans rejected by
the
Purchaser shall concurrently therewith be released from the security interest
created hereby. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or, subject to Section 7(b) hereof, afforded by law or equity and
all
such rights and remedies may be exercised concurrently, independently or
successively.
Notwithstanding
the foregoing, if on the Closing Date each of the conditions set forth in
Section 8 hereof shall have been satisfied and the Purchaser shall not have
paid
or caused to be paid the Purchase Amount, or any such condition shall not have
been waived or satisfied and the Purchaser determines not to pay or cause to
be
paid the Purchase Amount, the Purchaser shall immediately effect the redelivery
of the Mortgage Loans, if delivery to the Purchaser has occurred, and the
security interest created by this Section 12 shall be deemed to have been
released.
18
Section
13. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by telex, telegraph or
facsimile and confirmed by a similar mailed writing, if to the Purchaser,
addressed to the Purchaser, at 0000 Xxxxx xx Xxxx Xxxxxxxxx, 0xx
Xxxxx,
Xxxxx Xxxxxx, Xxxxxxx 00000, Attention: Secretary, or to such other address
as
the Purchaser may designate in writing to the Seller; and if to the Seller,
addressed to the Seller, at 0000 Xxxxx xx Xxxx Xxxxxxxxx, 0xx
Xxxxx,
Xxxxx Xxxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxx, or to such other address
as
the Seller may designate in writing to the Purchaser.
Section
14. Severability of Provisions.
Any
part, provision, representation or warranty of this Agreement which is
prohibited or which is held to be void or unenforceable shall be ineffective
to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty
of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
Section
15. Agreement of Parties.
The
Seller and the Purchaser each agree to execute and deliver such instruments
and
take such actions as the other may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement
and
the Pooling and Servicing Agreement.
Section
16. Survival.
The
Seller agrees that the representations, warranties and agreements made by it
herein and in any certificate or other instrument delivered pursuant hereto
shall be deemed to be relied upon by the Purchaser, notwithstanding any
investigation heretofore or hereafter made by the Purchaser or on the
Purchaser’s behalf, and that the representations, warranties and agreements made
by the Seller herein or in any such certificate or other instrument shall
survive the delivery of and payment for the Mortgage Loans and shall continue
in
full force and effect, notwithstanding any restrictive or qualified endorsement
on the Mortgage Notes and notwithstanding subsequent termination of this
Agreement, the Pooling and Servicing Agreement or the Trust Fund.
Section
17. Indemnification.
(a) The
Seller agrees to indemnify and hold harmless the Purchaser and each person,
if
any, who controls the Purchaser within the meaning of Section 15 of the
Securities Act (collectively, the “Indemnified Party”) against any and all
losses, claims, expenses, damages or liabilities to which the Indemnified Party
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, expenses, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus or the omission
or
the alleged omission to state therein a material fact necessary in order to
make
the statements therein not misleading, in each case to the extent, but only
to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with information
furnished in writing to the Purchaser by the Seller specifically for use
therein, which shall include the information set forth in the Prospectus
Supplement under “Description of the Mortgage Pools” and in the Base Prospectus
under “Bayview Financial, L.P.;” (ii) any representation, warranty or covenant
made by the Seller in this Agreement or in the Pooling and Servicing Agreement
being, or alleged to be, untrue or incorrect in any material respect; or (iii)
the information regarding the mortgage loan data as set forth on the Closing
Schedule attached hereto as Schedule
I
and made
a part hereof for all purposes being, or alleged to be, untrue or incorrect
in
any material respect; provided,
however,
that to
the extent that any such losses, claims, expenses, damages or liabilities to
which the Indemnified Party may become subject arise out of or are based upon
both (A) statements, omissions, representations, warranties, covenants or
information of the Seller described in clause (i), (ii) or (iii) above and
(B)
any other factual basis, the Seller shall indemnify and hold harmless the
Indemnified Party only to the extent that the losses, claims, expenses, damages
or liabilities of the person or persons asserting the claim are determined
to
arise from or be based upon matters set forth in clauses (i), (ii) and/or (iii)
above. This indemnity agreement will be in addition to any liability which
the
Seller may otherwise have.
19
(b) Promptly
after receipt by the Indemnified Party of notice of the commencement of any
such
action, the Indemnified Party will, if a claim in respect thereof is to be
made
against the Seller under this Section 17, promptly notify the Seller in writing
of the commencement thereof and the Seller, upon the request of the Indemnified
Party, shall retain counsel satisfactory to the Indemnified Party to represent
the Indemnified Party and shall pay the reasonable fees and disbursements of
such counsel related to such proceeding (in which case the Seller shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the Indemnified Party except as set forth below). In any such
proceeding, the Indemnified Party shall have the right to employ separate
counsel (including local counsel), and the Seller shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the Seller to represent the Indemnified Party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in,
or targets of, any such action include both the Indemnified Party and the Seller
and the Indemnified Party shall have reasonably concluded that there may be
legal defenses available to it that are different from or additional to those
available to the Seller, (iii) the Seller shall not have employed counsel
satisfactory to the Indemnified Party to represent the Indemnified Party within
a reasonable time after notice of the institution of such action or (iv) the
Seller shall authorize the Indemnified Party to employ separate counsel at
the
expense of the Seller. The Seller shall reimburse the Indemnified Party for
such
fees, costs and expenses as they are incurred. The Seller will not, without
the
prior written consent of the Indemnified Party, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the Indemnified Party is an actual
or
potential party to such claim or action) unless such settlement, compromise
or
consent includes an unconditional release of each Indemnified Party from all
liability arising out of such claim, action, suit or proceeding. In addition,
for so long as the Seller is covering all costs and expenses of the Indemnified
Party as provided herein, no Indemnified Party shall settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder without the consent of the Seller, which
consent shall not be unreasonably withheld. The Seller shall respond to any
written request to provide such consent within ten (10) days after receipt
thereof; if the Seller fails to respond within such time period, the Seller
shall be deemed to have responded in the negative to such request.
20
(c) Nothing
in this Agreement shall be construed to allow an Indemnified Party to recover
punitive damages or consequential damages from the Seller; provided however,
that
this Section shall not limit indemnification of any Indemnified Party for
damages (however construed) actually recovered from an Indemnified Party by
third parties.
Section
18. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
19. Miscellaneous.
This
Agreement may be executed in two or more counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Agreement
nor
any term hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party against whom enforcement
of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Seller to the Purchaser as provided in Section 4 hereof be, and be
construed as, a sale of the Mortgage Loans by the Seller to the Purchaser and
not as a pledge of the Mortgage Loans by the Seller to the Purchaser to secure
a
debt or other obligation of the Seller. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are
held to be property of the Seller, then, (a) it is the express intent of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to the Purchaser to secure a debt or other obligation of the Seller
and
(b) (1) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of
the
New York Uniform Commercial Code; (2) the conveyance provided for in Section
4
hereof shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller’s right, title and interest in and to the
Mortgage Loans and all amounts payable to the holders of the Mortgage Loans
in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Collection Account whether
in the form of cash, instruments, securities or other property; (3) the
possession by the Purchaser or its agent of Mortgage Notes, the related
Mortgages and such other items of property that constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be “possession by the
secured party” for purposes of perfecting the security interest pursuant to
Section 9-313(a) of the New York Uniform Commercial Code; and (4) notifications
to persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose of perfecting
such security interest under applicable law. Any assignment of the interest
of
the Purchaser pursuant to Section 4(e) hereof shall also be deemed to be an
assignment of any security interest created hereby. 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 this Agreement and the Pooling and
Servicing Agreement.
21
Section
20. Amendment.
This
Agreement may be amended from time to time by the
Seller
and the
Purchaser, with the consent of the Trustee but without notice to or the consent
of any of the Certificateholders, (i) to cure any ambiguity, (ii) to cause
the
provisions herein to conform to or be consistent with or in furtherance of
the
statements made with respect to the Certificates, the Trust Fund, the Pooling
and Servicing Agreement or this Agreement in the Prospectus Supplement, or
to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to make any other provisions with respect to
matters or questions arising under this Agreement or (iv) to add, delete, or
amend any provisions to the extent necessary or desirable to comply with any
requirements imposed by the Code and the REMIC Provisions. No such amendment
effected pursuant to clause (iii) of the preceding sentence shall adversely
affect in any material respect the interests of any Certificateholder. Any
such
amendment shall be deemed not to adversely affect in any material respect any
Certificateholder if the Trustee receives written confirmation from each Rating
Agency that such amendment will not cause such Rating Agency to reduce the
then
current rating assigned to the Certificates, if any (and any Opinion of Counsel
requested by the Trustee in connection with any such amendment may rely
expressly on such confirmation as the basis therefor).
This
Agreement may also be amended from time to time by the Seller and the Purchaser
with the consent of the Trustee and the Certificateholders of not less than
66-2/3% of the Class Principal Balance (or Percentage Interest) of each Class
of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Certificateholders; provided,
however,
that no
such amendment may (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans that are required to be distributed
on
any Certificate without the consent of the Certificateholder of such Certificate
or (ii) reduce the aforesaid percentages of Class Principal Balance (or
Percentage Interest) of Certificates of each Class, the Certificateholders
of
which are required to consent to any such amendment without the consent of
the
Certificateholders of 100% of the Class Principal Balance (or Percentage
Interest) of each Class of Certificates affected thereby. For purposes of this
paragraph, references to “Certificateholder” or “Certificateholders” shall be
deemed to include, in the case of any Class of Book-Entry Certificates, the
related Certificate Owners.
It
shall
not be necessary for the consent of Certificateholders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
22
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names to be
signed by their respective officers thereunto duly authorized as of the date
first above written.
| BAYVIEW FINANCIAL SECURITIES COMPANY, LLC | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxxxx | |
|
Name:
Xxxxx Xxxxxxxxxx
Title:
Vice President
|
||
| BAYVIEW FINANCIAL, L.P. | ||
| |
|
|
| By: |
BAYVIEW
FINANCIAL MANAGEMENT CORP.,
its
General Partner
|
|
| By: | /s/ Xxxxx Xxxxxxxxxx | |
|
Name:
Xxxxx Xxxxxxxxxx
Title:
First Vice President
|
||
SCHEDULE
I
CLOSING
SCHEDULE
SCHEDULE
I-A
[RESERVED]
SCHEDULE
I-B
PREPAYMENT
PREMIUM CONVEYED MORTGAGE LOANS
EXHIBIT
1
POOLING
AND SERVICING AGREEMENT
EXHIBIT
2
OFFICER’S
CERTIFICATE OF THE SELLER
EXHIBIT
3
OFFICER’S
CERTIFICATE OF THE SELLER
WITH
RESPECT TO CERTAIN FACTS
REGARDING
THE SALE OF THE MORTGAGE LOANS
EXHIBIT
4
OPINION
OF COUNSEL TO THE SELLER
EXHIBIT
5
[RESERVED]
EXHIBIT
6
FORM
OF
LOST NOTE AFFIDAVIT
Bayview
Financial, L.P., a Delaware limited partnership (the “Mortgage Loan Seller”), by
its undersigned authorized representative, hereby certifies:
|
(i)
|
Pursuant
to the mortgage loan purchase agreement, dated as of November 1,
2006 (the
“Mortgage Loan Purchase Agreement”), between the Mortgage Loan Seller and
Bayview Financial Securities Company, LLC (the “Purchaser”), the Mortgage
Loan Seller is granting all of its right, title and interest in and
to the
Mortgage Loan identified below to the Purchaser. Terms used but not
defined herein have the respective meanings assigned to them in the
Mortgage Loan Purchase Agreement.
|
Mortgage
Loan Number:
Maker:
Original
Principal Amount:
Original
Note Date:
Maturity
Date:
(ii) The
Mortgage Loan Seller is the current owner and holder of the indebtedness
evidenced by the original Mortgage Note.
(iii) After
diligent search, the Mortgage Loan Seller has been unable to locate the original
Mortgage Note and believes it to be lost or misplaced.
(iv) A
true,
complete and correct photocopy of the original Mortgage Note is attached hereto,
if available.
(v) If
at any
time the Mortgage Loan Seller locates the original Mortgage Note, the Mortgage
Loan Seller shall endorse such original Note in the following form: “Pay to the
order of U.S. Bank, National Association as Trustee (Bayview), without recourse”
or in blank, and shall promptly deliver to the Trustee the original Mortgage
Note so endorsed, with all prior and intervening endorsements showing a complete
chain of endorsement from the originator to the Mortgage Loan
Seller.
(vi) The
Mortgage Loan Seller hereby agrees to indemnify and hold harmless the Purchaser,
the Trustee and the Certificateholders from and against any and all losses,
liabilities, damages, claims or expenses of whatever kind (including without
limitation attorneys’ fees and disbursements) arising from or in connection with
the Mortgage Loan Seller’s failure to have delivered the original Mortgage Note
(as required under the Mortgage Loan Purchase Agreement) to the Trustee,
including without limitation any such losses, liabilities, damages, claims
or
expenses arising from or in connection with any claim by any third party who
is
the holder of such indebtedness by virtue of its possession of such original
Mortgage Note.
(vii) This
Lost
Note Affidavit shall inure to the benefit of the Purchaser, the Trustee and
the
Certificateholders and their respective successors and permitted
assigns.
Dated:
_________________, 20__
| BAYVIEW FINANCIAL, L.P. | ||
| |
|
|
| By: |
BAYVIEW
FINANCIAL MANAGEMENT CORP.,
its
General
Partner
|
|
| By: | ||
|
Name:
Title:
|
||
| BAYVIEW FINANCIAL SECURITIES COMPANY, LLC | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
||