Contract
This
ASSIGNMENT AGREEMENT (the “Assignment Agreement”) is made as of July 1, 2007, by
and between Bayview Financial Property Trust II, a Delaware business trust,
as
assignor (“BFPT II” or the “Assignor”) and Bayview Financial Property Trust, a
Delaware business trust, as assignee (the “Assignee”).
WITNESSETH:
WHEREAS,
pursuant to that certain Transfer and Servicing Agreement dated as of April
1,
2004 (together with any amendment or supplement thereto, the “2004-B Transfer
and Servicing Agreement”), among Bayview Financial Revolving Asset Trust 2004-B,
as issuer (the “2004-B Trust”), Xxxxx Fargo, as master servicer, BFPT II, as
depositor, U.S. Bank, as indenture trustee and custodian, and BNY Trust Company
of Canada (“BNY”), as co-indenture trustee, BFPT II sold certain mortgage loans,
including SBA loans, and certain securities to the 2004-B Trust, and the 2004-B
Trust granted a security interest in such mortgage loans and securities, and
certain other rights relating to such mortgage loans and securities, to U.S.
Bank, as indenture trustee, on behalf of the Noteholders, pursuant to the
Indenture dated as of April 1, 2004, among the 2004-B Trust, U.S. Bank, as
indenture trustee, and BNY, as co-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 and securities
administrator, BFPT II, as depositor, U.S. Bank, as indenture trustee and
custodian, and BNY, as co-indenture trustee, BFPT II sold certain mortgage
loans, including SBA loans, and certain securities to the 2005-A Trust, and
the
2005-A Trust granted a security interest in such mortgage loans and securities,
and certain other rights relating to such mortgage loans and securities, to
U.S.
Bank, as indenture trustee, on behalf of the Noteholders, pursuant to the
Indenture dated as of February 1, 2005, among the 2005-A Trust, U.S. Bank,
as
indenture trustee, and BNY, as 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 2004-B 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 2004-B Trust and the 2005-A
Trust, the “Revolving Trusts”), Xxxxx Fargo, as master servicer, and securities
administrator, BFPT II, as depositor, U.S. Bank, as indenture trustee and
custodian, and BNY, as co-indenture trustee, BFPT II sold certain mortgage
loans
and securities to the 2005-E Trust, and the 2005-E Trust granted a security
interest in such mortgage loans and securities, and certain other rights
relating to such mortgage loans and securities, to U.S. Bank, as indenture
trustee, on behalf of the Noteholders, pursuant to the Indenture dated as of
November 1, 2005, among the 2005-E Trust, U.S. Bank, as indenture trustee,
and
BNY, as co-indenture trustee;
WHEREAS,
pursuant to that certain Assignment and Relinquishment of Security Interest
Agreement dated as of July 1, 2007, among the 2004-B Trust, BFPT II and U.S.
Bank, as indenture trustee, the 2004-B Trust sold, transferred and otherwise
assigned those certain (i) mortgage loans and SBA loans listed on Schedule
I-B
hereto (the “2004-B Assigned Loans”) and (ii) underlying securities listed on
Schedule II-B hereto (the “2004-B Assigned Underlying Securities” and together
with the 2004-B Assigned Loans, the “2004-B Assigned Assets”) to BFPT II, and
U.S. Bank, as indenture trustee relinquished its security interest in the 2004-B
Assigned Assets, including all of its rights relating to the 2004-B Assigned
Assets under the applicable Purchase Agreement, the applicable Securities
Transfer Agreement, the applicable Transfer and Servicing Agreement or other
applicable asset acquisition documents, and for the 2004-B Assigned Loans,
all
items in the related loan file;
WHEREAS,
pursuant to that certain Assignment and Relinquishment of Security Interest
Agreement dated as of July 1, 2007, among the 2005-A Trust, BFPT II and U.S.
Bank, as indenture trustee, the 2005-A Trust sold, transferred and otherwise
assigned those certain (i) mortgage loans and SBA loans listed on Schedule
I-C
hereto (the “2005-A Assigned Loans”) and (ii) underlying securities listed on
Schedule II-C hereto (the “2005-A Assigned Underlying Securities” and together
with the 2005-A Assigned Loans, the “2005-A Assigned Assets”) to BFPT II, and
U.S. Bank, as indenture trustee relinquished its security interest in the 2005-A
Assigned Assets, including all of its rights relating to the 2005-A Assigned
Assets under the applicable Purchase Agreement, the applicable Securities
Transfer Agreement, the applicable Transfer and Servicing Agreement or other
applicable asset acquisition documents, and for the 2005-A Assigned Loans,
all
items in the related loan file;
WHEREAS,
pursuant to that certain Assignment and Relinquishment of Security Interest
Agreement dated as of July 1, 2007, among the 2005-E Trust, BFPT II and U.S.
Bank, as indenture trustee, the 2005-E Trust sold, transferred and otherwise
assigned those certain (i) mortgage loans listed on Schedule I-D (the “2005-E
Assigned Loans,” and together with the 2004-B Assigned Loans and the 2005-A
Assigned Loans, the “Assigned Loans”) and (ii) underlying securities listed on
Schedule II-D hereto (the “2005-E Assigned Underlying Securities” and together
with the 2005-E Assigned Loans, the “2005-E Assigned Assets;” the 2005-E
Assigned Underlying Securities, together with the 2004-B Assigned Underlying
Securities and the 2005-A Underlying Securities, are sometimes referred to
herein as the “Assigned Underlying Securities” and together with the Assigned
Loans, the “Assigned Assets”) to BFPT II, and U.S. Bank, as indenture trustee
relinquished its security interest in the 2005-E Assigned Assets, including
all
of its rights relating to the 2005-E Assigned Assets under the applicable
Purchase Agreement, the applicable Securities Transfer Agreement and the
applicable Transfer and Servicing Agreement, and any other applicable transfer
documents, and for the 2005-E Assigned Loans, all items in the related loan
file;
WHEREAS,
the Assignor holds an equitable interest in certain contracts (the “Contracts”)
for the purchase of real property (which Contracts provide for retention by
the
mortgagee of the deed to such real property, pending satisfaction of the
purchaser’s obligations under such contract, as security for such obligation)
listed on Schedule I-E hereto, and the Assignee holds legal title to such
Contracts;
WHEREAS,
the Assignor desires to sell, transfer and otherwise assign the Assigned Assets
to the Assignee, and the Assignee desires to purchase such Assigned Assets;
and
WHEREAS,
the Assignor desires to relinquish all of its right, title and interest in
and
to the Contracts, to the Depositor and the Depositor.
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NOW
THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Conveyance
of Assigned Assets; Relinquishment of Interest.
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 (A) (1) the Assigned 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 (i) received on or
with respect to the Assigned Loans on or after July 1, 2007 (the “Cut-off
Date”), regardless of when due, and (ii) due after the Cut-off Date, but
received prior to such date and intended by the related obligors to be applied
after such date, (2) the related Mortgage Files and all rights of the Assignor
in the Loan Collateral, including any security interest in any collateral
pledged to secure the Assigned Loans, (3) any Insurance Policies, (4) any
Insurance Proceeds, REO Property, Liquidation Proceeds and other recoveries
(in
each case, subject to clause (i) above), (B) the Assigned Underlying Securities,
including all payments or distributions thereon after June 2007 and (C) all
of
the Assignor’s rights relating to the Assigned Assets under the applicable
Purchase Agreement, the applicable Securities Transfer Agreement and the
applicable Transfer and Servicing Agreement. In addition, the Assignor does
hereby relinquish, sell, transfer, assign, set over, deposit with and otherwise
convey to the Assignee, without recourse, all the right, title and interest
of
the Seller in and to (A) the Contracts, including, without limitation, the
right
to all payments of principal and interest (including any prepayment premiums
or
penalties) (1) received or receivable on or with respect to the Contracts after
the Cut-off Date (expressly excluding any payments due on or before the Cut-off
Date) and (2) due after the Cut-off Date but received prior to such date and
intended by the related obligors to be applied after such date, all of the
Assignor’s right, title and interest in and to the related mortgaged properties
and other loan collateral, the loan files, the Assignor’s rights under any
insurance policies related to the Contracts (and any proceeds of the foregoing)
and (B) all of the Assignor’s right, title and interest in and to each related
account and all amounts from time to time credited thereto and the proceeds
of
such account. The foregoing conveyances include, without limitation 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, or arising from or relating to
the
Assigned Loans or the Contracts, as applicable, and any proceeds of the
foregoing.
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 business 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.
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(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.
(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.
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(h) BFPT
II
is conveying to the Assignee the entire interest in the Assigned Assets 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
Assets and 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 Assets to the Assignee as
contemplated herein, the Assignee will receive good and marketable title to
the
Assigned Assets, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind.
3. Further
Agreement.
With
respect to each Assigned Loan (each, an “SBA Loan”) designated on Schedule I-A,
Schedule I-B, Schedule I-C or Schedule I-D as “SBA”, the Assignor and the
Assignee further agree hereby to the following:
(a) The
Assignee hereby represents and warrants to, and covenants with, the Assignor
that the Assignee is not: (i) suspended or debarred from doing business with
the
SBA or any other agency of the United States; (ii) an employee with the SBA,
a
member of any such employee’s household or an entity controlled by any such
employee or member of such an employee’s household; and (iii) an individual or
entity that has used or will use the services, directly or indirectly, or any
person or entity ineligible under any of subsections (i) and (ii) above in
connection with the acquisition of the SBA Loans.
(b) The
Assignee understands and acknowledges that it is assuming the obligations as
servicer with respect to the SBA Loans that are the subject of this assignment
provision, including, but not limited to, ensuring that the Loans will be
serviced only by the original purchaser of the SBA Loans (the “Buyer”) or any
successor or assign thereof or any assignee qualifying under paragraph
(a) above or any person or entity qualifying as a legal person under the
jurisdiction in which it was created or does business or any government or
any
agency or political subdivision thereof (a “Person”) that satisfies all of the
following requirements:
(1) Is
(or
any partner of the Buyer, any Person owing at least ten percent (10%) of the
voting shares of Buyer, or any Person who controls, is controlled by, or is
under common control with Buyer is) one or more of the following: (a) an
SBA-approved lender currently authorized to originate and service SBA-guaranteed
or SBA “Development Company” loans; (b) currently approved to service loans for
a U.S. federal entity or a government-sponsored enterprise; (c) a loan servicer
currently rated as “average” or above by a nationally recognized rating agency;
(d) a financial institution supervised and examined by any state or federal
regulatory authority; (e) with respect to business loans, a loan servicer
experienced in servicing commercial or small business loans, which employs
personnel who are trained and experienced in servicing such loans and who are
supervised by a corporate officer or company manager who possesses a minimum
of
three (3) years’ experience in servicing such loans; or (f) with respect to
disaster assistance home loans, a loan servicer experienced in servicing
consumer loans, which employs personnel who are trained and experienced in
servicing such loans and who are supervised by a corporate officer or company
manager who possesses a minimum of three years’ experience in servicing such
loans.
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(2) Has
a
written loss mitigation program in place.
(3) Is
not
currently suspended or debarred from doing business with the SBA or any other
U.S. federal or state agency.
4. 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.
5. Capitalized
Terms.
Capitalized terms used but not defined herein shall have the meanings given
to
such terms in the applicable Transfer and Servicing Agreement.
6. 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
PAGE FOLLOWS]
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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 PROPERTY TRUST,
as
Assignee
By:
/s/
Xxxxxx X.
Xxxx
Xxxxxx
X.
Xxxx, not in his individual capacity
but
solely as Co-Trustee
SCHEDULE
I-A
2004-B
ASSIGNED LOANS
SCHEDULE
I-B
2005-A
ASSIGNED LOANS
SCHEDULE
I-C
2005-E
ASSIGNED LOANS
SCHEDULE
I-E
SCHEDULE
OF CONTRACTS
[None]
SCHEDULE
II-A
2004-B
ASSIGNED UNDERLYING SECURITIES
[None]
SCHEDULE
II-B
2005-A
ASSIGNED UNDERLYING SECURITIES
[None]
SCHEDULE
II-C
2005-E
ASSIGNED UNDERLYING SECURITIES
[None]
