Contract
This
ASSIGNMENT AGREEMENT (the “Assignment Agreement”) is made as of January 1, 2006,
by and between Bayview Financial Property Trust II, a Delaware statutory trust,
as assignor (“BFPT II” or the “Assignor”) and Bayview Financial Securities
Company, LLC, a Delaware limited liability company, as assignee (the
“Assignee”).
WITNESSETH:
WHEREAS,
pursuant to that certain Transfer and Servicing Agreement dated as of December
1, 2003 (together with any amendment or supplement thereto, the “2003-G Transfer
and Servicing Agreement”), among Bayview Financial Revolving Asset Trust 2003-G,
as issuer (the “2003-G Trust”), Xxxxx Fargo, as master servicer, BFPT II, as
depositor, and Wachovia, as indenture trustee (in such capacity, the “2003-G
Indenture Trustee”) and custodian, BFPT II sold certain mortgage loans to the
2003-G Trust and the 2003-G Trust granted a security interest in such mortgage
loans and certain other rights relating to such mortgage loans to the 2003-G
Indenture Trustee, on behalf of the Noteholders, pursuant to the Indenture
dated
as of December 1, 2003, between the 2003-G Trust and the 2003-G Indenture
Trustee;
WHEREAS,
pursuant to that certain Transfer and Servicing Agreement dated as of February
1, 2005 (together with any amendment or supplement thereto, the “2005-A Transfer
and Servicing Agreement”), among Bayview Financial Revolving Asset Trust 2005-A,
as issuer (the “2005-A Trust”), Xxxxx Fargo, as master servicer, BFPT II, as
depositor, and Wachovia, as indenture trustee (in such capacity, the “2005-A
Indenture Trustee”) and custodian, and BNY Trust Company of Canada, as
co-indenture trustee (the “2005-A Co-Indenture Trustee”), BFPT II sold certain
mortgage loans to the 2005-A Trust and the 2005-A Trust granted a security
interest in such mortgage loans and certain other rights relating to such
mortgage loans to the 2005-A Indenture Trustee, on behalf of the Noteholders,
pursuant to the Indenture dated as of February 1, 2005, among the 2005-A Trust,
the 2005-A Indenture Trustee and the 2005-A Co-Indenture Trustee;
WHEREAS,
pursuant to that certain Transfer and Servicing Agreement dated as of November
1, 2005 (together with any amendment or supplement thereto, the “2005-E Transfer
and Servicing Agreement,” and together with the 2003-G Transfer and Servicing
Agreement and the 2005-A Transfer and Servicing Agreement, the “Transfer and
Servicing Agreements”), among Bayview Financial Revolving Asset Trust 2005-E, as
issuer (the “2005-E Trust,” and together with the 2003-G Trust and the 2005-A
Trust, the “Revolving Trusts”), Xxxxx Fargo, as master servicer, BFPT II, as
depositor, Wachovia, as indenture trustee (in such capacity, the “2005-E
Indenture Trustee”) and custodian, and BNY Trust Company of Canada, as
co-indenture trustee (in such capacity, the “2005-E Co-Indenture Trustee”), BFPT
II sold certain mortgage loans to the 2005-E Trust and the 2005-E Trust granted
a security interest in such mortgage loans and certain other rights relating
to
such mortgage loans to the 0000-X Xxxxxxxxx Trustee, on behalf of the
Noteholders, pursuant to the Indenture dated as of November 1, 2005, among
the
2005-E Trust, the 0000-X Xxxxxxxxx Trustee and the 2005-E Co-Indenture
Trustee;
WHEREAS,
pursuant to that certain Assignment and Relinquishment of Security Interest
Agreement dated as of January 1, 2006, among the 2003-G Trust, BFPT II and
the
2003-G Indenture Trustee, the 2003-G Trust sold, transferred and otherwise
assigned those certain mortgage loans listed on Schedule I hereto (the “2003-G
Assigned Mortgage Loans”) to BFPT II, and the 2003-G Indenture Trustee
relinquished its security interest in the 2003-G Assigned Mortgage Loans,
including all of its rights relating to the 2003-G Assigned Mortgage Loans
under
the applicable Purchase Agreement and the applicable Transfer and Servicing
Agreement, and all items in the related Mortgage File;
WHEREAS,
pursuant to that certain Assignment and Relinquishment of Security Interest
Agreement dated as of January 1, 2006, among the 2005-A Trust, BFPT II and
the
2005-A Indenture Trustee, the 2005-A Trust sold, transferred and otherwise
assigned those certain mortgage loans listed on Schedule II hereto (the “2005-A
Assigned Mortgage Loans”) to BFPT II, and the 2005-A Indenture Trustee
relinquished its security interest in the 2005-A Assigned Mortgage Loans,
including all of its rights relating to the 2005-A Assigned Mortgage Loans
under
the applicable Purchase Agreement and the applicable Transfer and Servicing
Agreement, and all items in the related Mortgage File;
WHEREAS,
pursuant to that certain Assignment and Relinquishment of Security Interest
Agreement dated as of January 1, 2006, among the 2005-E Trust, BFPT II and
the
2005-E Indenture Trustee, the 2005-E Trust sold, transferred and otherwise
assigned those certain mortgage loans listed on Schedule III hereto (the “2005-E
Assigned Mortgage Loans,” and together with the 2003-G Assigned Mortgage Loans
and the 2005-A Assigned Mortgage Loans, the “Assigned Mortgage Loans”) to BFPT
II, and the 2005-E Indenture Trustee relinquished its security interest in
the
2005-E Assigned Mortgage Loans, including all of its rights relating to the
2005-E Assigned Mortgage Loans under the applicable Purchase Agreement and
the
applicable Transfer and Servicing Agreement, and all items in the related
Mortgage File; and
WHEREAS,
the Assignor desires to sell, transfer and otherwise assign the Assigned
Mortgage Loans to the Assignee, and the Assignee desires to purchase such
Assigned Mortgage Loans.
NOW
THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Conveyance
of Assigned Mortgage Loans.
The
Assignor does hereby grant, transfer, assign, set over and otherwise convey
to
the Assignee, without recourse, all right, title and interest of the Assignor
in
and to (i) the Assigned Mortgage Loans, including all payments of interest
(other than any Retained Interest), all prepayment premiums or penalties or
yield maintenance payments, and all principal and other amounts received or
receivable on or with respect to the Assigned Mortgage Loans on or after January
1, 2006, (other than payments due on or prior to such date), and all payments
due after such date but received prior to such date and intended by the related
obligor to be applied after such date, (ii) the related Mortgage Files and
all
rights of the Assignor 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 of the
Assignor’s rights relating to the Assigned Mortgage Loans under the applicable
Purchase Agreement and the applicable Transfer and Servicing Agreement 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.
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2. Representations
and Warranties of BFPT II.
BFPT II
hereby represents and warrants to the Assignee that as of the Closing
Date:
(a) BFPT
II
is a statutory trust duly organized, validly existing and in good standing
under
the laws of the State of Delaware, and is duly qualified to do business, and
is
in good standing in each jurisdiction in which the nature of its business
requires it to be so qualified.
(b) The
execution and delivery of this Assignment Agreement by BFPT II and its
performance and compliance with the terms of this Assignment Agreement have
been
duly authorized by all necessary trust action on the part of BFPT
II.
(c) This
Assignment Agreement, assuming due authorization, execution and delivery by
the
other parties hereto, constitutes a valid, legal and binding obligation of
BFPT
II, enforceable against it in accordance with the terms hereof, except as the
enforcement hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally and by general principles of equity (whether considered in a
proceeding or action in equity or at law).
(d) BFPT
II
is not in violation of, and the execution, delivery and performance of this
Assignment Agreement by BFPT II and its compliance with the terms hereof will
not constitute a violation with respect to, any existing law or regulation
or
any order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which violation would
materially and adversely affect the condition (financial or other) or operations
of BFPT II or its properties or would have consequences that would adversely
affect its performance hereunder. The execution, delivery and performance of
this Assignment Agreement by BFPT II and its compliance with the terms hereof
will not conflict with, result in any breach of any of the terms and provisions
of, or constitute (with or without notice, lapse of time or both) a default
under, the governing instrument of BFPT II, or any material indenture,
agreement, mortgage, deed of trust or other instrument to which BFPT II is
a
party or by which it is bound, or result in the creation or imposition of any
lien or encumbrance upon any of its material properties pursuant to the terms
of
any such indenture, agreement, mortgage, deed of trust or other
instrument.
(e) No
litigation, actions, proceedings or investigations are pending, or to the best
of BFPT II’s knowledge, threatened against BFPT II which would have consequences
that would prohibit its entering into this Assignment Agreement or that would
materially and adversely affect the condition (financial or otherwise) or
operations of BFPT II or its properties or would have consequences that would
adversely affect its performance hereunder, or the validity or enforceability
of
this Assignment Agreement, or prevent the consummation of any of the
transactions contemplated by this Assignment Agreement.
(f) No
certificate of an officer, statement furnished in writing or report delivered
or
to be delivered pursuant to the terms hereof by BFPT II contains or will contain
any untrue statement of a material fact or omits or will omit to state any
material fact necessary to make the certificate, statement or report, in light
of the circumstances in which it was made or will be made, not
misleading.
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(g) All
actions, approvals, consents, waivers, exemptions, variances, franchises,
orders, permits, authorizations, rights and licenses required to be taken,
given
or obtained, as the case may be, by or from any court or any federal, state
or
other governmental authority or agency that are required in connection with
the
execution, delivery and performance by BFPT II of this Assignment Agreement,
have been duly taken, given or obtained, as the case may be, are in full force
and effect on the date hereof, are not subject to any pending proceedings or
appeals (administrative, judicial or otherwise) and either the time within
which
any appeal therefrom may be taken or review thereof may be obtained has expired
or no review thereof may be obtained or appeal therefrom taken, and are adequate
to authorize the consummation of the transactions contemplated by this
Assignment Agreement on the part of BFPT II and the performance by BFPT II
of
its obligations under this Assignment Agreement.
(h) BFPT
II
is conveying to the Assignee the entire interest in the Assigned Mortgage Loans
which BFPT II has acquired from the Revolving Trusts, free and clear of any
Adverse Claims created by, or for the benefit of, BFPT II.
(i) Immediately
prior to the assignment thereof to the Assignee, BFPT II owned the Assigned
Mortgage Loans, had good and marketable title thereto, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind, and upon the delivery or transfer of the Assigned Mortgage Loans to the
Assignee as contemplated herein, the Assignee will receive good and marketable
title to the Assigned Mortgage Loans, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any
kind.
3. Counterparts.
This
Assignment Agreement may be executed in two or more counterparts (and by
different parties in separate counterparts), each of which shall be an original
but all of which together shall constitute the same instrument.
4. Capitalized
Terms.
Capitalized terms used but not defined herein shall have the meanings given
to
such terms in the applicable Transfer and Servicing Agreement.
5. 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.
[SIGNATURE
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IN
WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement to
be
duly executed by their respective officers as of the day and year first above
written.
| BAYVIEW FINANCIAL PROPERTY TRUST II, as Assignor | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxxx | |
|
Xxxxx X. Xxxxxxxx, not in his individual capacity but solely as Co-Trustee |
||
| BAYVIEW FINANCIAL SECURITIES COMPANY, LLC, as Assignee | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxx | |
|
Name: Xxxxxx Xxxxxxx |
||
| Title: Vice President | ||
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SCHEDULE
I
2003-G
ASSIGNED MORTGAGE LOANS
6
SCHEDULE
II
2005-A
ASSIGNED MORTGAGE LOANS
7
SCHEDULE
III
2005-E
ASSIGNED MORTGAGE LOANS
8
