EXECUTION
MORTGAGE LOAN DILIGENCE
AGREEMENT
(BAYVIEW FINANCIAL REVOLVING ASSET TRUST
2003-G,
AND BAYVIEW FINANCIAL REVOLVING ASSET
TRUST 2005-A)
This Mortgage Loan Diligence Agreement is
dated November 10, 2005 (this “Agreement”), is entered
into by and between Bayview Financial, L.P., a Delaware limited
partnership (“Bayview” or the “Agent”), and
Bayview Financial Securities Company, LLC, a Delaware limited
liability company (the “Depositor”).
WITNESSETH:
WHEREAS, the Depositor will acquire
certain mortgage loans identified on Schedule I hereto (the
“Mortgage Loans”) pursuant to an assignment agreement
dated as of October 1, 2005, by and between Bayview Financial
Property Trust II, as assignor, and the Depositor, as
assignee;
WHEREAS, the Depositor intends to
transfer the Mortgage Loans in a securitization transaction
pursuant to a pooling and servicing agreement dated as of October
1, 2005 (the “Pooling and Servicing Agreement”), among
the Depositor, Wells Fargo Bank, N.A., as master servicer, and
Wachovia Bank, National Association, as trustee (the
“Trustee”), and in connection with such sale will
assign its rights under this Agreement to the Trustee;
WHEREAS, the Agent, by and through its
officers, employees, agents, representatives and affiliates, has
specialized expertise in conducting diligence reviews of pools of
mortgage loans;
WHEREAS, the Depositor desires to avail
itself, for the term of this Agreement, of the expertise of the
Agent in such area, by retaining the Agent to undertake a review of
the Mortgage Loans in order to determine compliance with certain of
the applicable representations and warranties and requirements for
delivery of documents;
WHEREAS, the Agent is prepared to provide
certain services for the benefit of the Depositor in the manner and
on the terms set forth herein, including undertaking such review as
it deems appropriate to ascertain the accuracy of the substance of
certain representations and warranties; and
WHEREAS, the Agent will be obligated, as
provided herein, to purchase any defective Mortgage Loan tendered
by the Trustee for purchase for a price generally equal to the
unpaid principal balance thereof, plus accrued interest thereon,
plus the amount of any costs and damages incurred by the Trust Fund
as a result of any related violation of a predatory or abusive
lending law, plus any additional amounts specified in the Pooling
and Servicing Agreement;
NOW, THEREFORE, in consideration of the
mutual covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Definitions . Capitalized terms used but not otherwise
defined in this Agreement shall have the meanings set forth in the
Mortgage Loan Purchase Agreement dated as of October 1, 2005 (the
“Mortgage Loan Purchase Agreement”), between Bayview,
as seller, and the Depositor, as purchaser, or if not defined
therein, as defined in the Pooling and Servicing
Agreement.
2.
Appointment . The Depositor hereby appoints the Agent as
the Depositor's agent to render the diligence services described in
Section 3 hereof.
3.
Diligence Services
. The Agent shall undertake on
behalf of the Depositor such review as it determines is appropriate
in its reasonable judgment to ascertain, based upon a limited
sample of the Mortgage Loans or otherwise, (a) the accuracy of the
substance of the representations and warranties set forth in
Subsections 6(a)-(z), (aa)-(kk) and (mm)-(nn) of the Mortgage Loan
Purchase Agreement; provided, however , that any such
representation and warranty made to the knowledge of the
“Seller” under the Mortgage Loan Purchase Agreement
shall be deemed to be made to the Agent’s knowledge, and (b)
the completeness of the Mortgage File, including the absence of any
material defect in the documents comprising such Mortgage File and
the delivery of each document required to be delivered as part of
such Mortgage File, each as provided in Section 4(b) of the
Mortgage Loan Purchase Agreement (the obligations set forth in (a)
and (b) above, the “Covered Obligations”). Any
out-of-pocket expenses incurred by the Agent in the course of such
review shall be paid by the Agent from its own funds.
The Depositor shall cooperate with the
Agent to facilitate the prompt performance by the Agent of its
obligations under this Section 3. The Agent may provide such
services as required by this Section 3 directly or may assign such
duties to one or more subagents pursuant to submanagement
agreements; provided, however , that any such subagent shall
have been approved by the Depositor; and provided, further,
that notwithstanding any such assignment, the Agent shall remain
primarily liable for performing its duties and obligations under
this Agreement.
4.
Warranty of Performance
. Within 90 days of receipt of
notice by the Agent of a breach of any Covered Obligation that
materially and adversely affects the value of any Mortgage Loan or
the interest therein of the Depositor or the Depositor’s
assignee, transferee or designee, the Agent promptly shall cure
such defect or breach in all material respects, or in the event
such defect or breach cannot be cured, the Agent shall 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 Depositor or the
Depositor’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.
Notwithstanding the preceding sentence, if a breach of
representation or warranty cannot reasonably be cured within 90
days after written notice thereof, and the Agent shall have
commenced to cure such breach within such 90 day period and
thereafter diligently and expeditiously proceeds to cure the same,
such 90 day period shall be extended for so long as it shall
require the Agent 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 90 days or the period of time
during which the seller or the depositor is required to cure a
defect or breach or repurchase an affected Mortgage Loan pursuant
to any sale and/or securitization agreement or arrangement it may
enter into. The Agent shall indemnify the Trustee and the
Trust Fund for the amount of any costs and damages incurred by the
Trust Fund as a result of any violation of any predatory or abusive
lending law arising from or in connection with the origination of
such affected Mortgage Loan, to the extent that such costs or
damages are not covered by the applicable Purchase Price and result
in a reduction of amounts distributable on the
Certificates.
5.
Agent Compensation
. As compensation for its services,
the Agent will be entitled to payment of a fee equal to
$75,000.
6.
Limitation of Responsibility of the
Agent .
The Agent shall have no responsibility
under this Agreement other than to render the services called for
hereunder and fulfill its obligations hereunder. The Agent,
its affiliates, directors, officers and employees shall not be
liable in any respect other than to the extent of the remedies
provided in this Agreement to the Depositor, the Trustee, the
Certificateholders or others, except by reason of acts constituting
bad faith, willful misfeasance or negligence in the discharge of
their duties.
7.
Additional Obligations of
Agent . Unless otherwise
specifically required by any provision of the Pooling and Servicing
Agreement or this Agreement or by applicable law, the Agent shall
use all reasonable efforts to ensure that no action is taken by it
would materially adversely affect the Depositor for purposes of
United States federal or state law or any other law known to the
Agent to be applicable to the Depositor. The Agent covenants
that it shall comply in all material respects with all laws and
regulations applicable to it in connection with the performance of
its duties under this Agreement.
8.
No Partnership or Joint
Venture . The Depositor
and the Agent are not partners or joint venturers with each other
and nothing herein shall be construed to make them such partners or
joint venturers or impose any liability as such on either of them.
The Agent shall be, for all purposes herein, deemed to be an
independent contractor and shall, unless otherwis
