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EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (this
“Agreement”), dated June 29, 2007, between DB
Structured Products, Inc. (the “Seller”) and ACE
Securities Corp., a Delaware corporation (the
“Purchaser”).
Preliminary Statement
The Seller intends to sell the Mortgage Loans
(as hereinafter identified) to the Purchaser on the terms and
subject to the conditions set forth in this Agreement. The
Purchaser intends to deposit the Mortgage Loans into a mortgage
pool comprising the Trust Fund. The Trust Fund will be
evidenced by a single series of mortgage pass-through
certificates designated as Deutsche Alt-A Securities Mortgage
Loan Trust, Series 2007-OA4 Mortgage Pass-Through Certificates
(the “Certificates”). The Certificates will
consist of 25 classes of certificates. The Certificates
will be issued pursuant to a Pooling and Servicing Agreement,
dated as of June 1, 2007 (the “Pooling and Servicing
Agreement”), among the Purchaser as depositor, Wells Fargo
Bank, N.A. as master servicer (the “Master
Servicer”) and as securities administrator, HSBC Bank USA,
National Association as trustee (the “Trustee”) and
Clayton Fixed Income Services Inc., as credit risk manager.
The
Purchaser will sell the Class I-A-1A, Class I-A-1B, Class II-A-1,
Class II-A-2, Class III-A-1, Class A-2A, Class A-2B, Class A-3,
Class A-4, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and
Class M-11 Certificates to Deutsche Bank Securities Inc.
(“DBSI”), pursuant to the Amended and Restated
Underwriting Agreement, dated as of August 1, 2003, as amended
to and including June 29, 2007, between the Purchaser and DBSI,
and the Terms Agreement, dated June 29, 2007, between the
Purchaser and DBSI. The Purchaser will sell the Class
CE-1, Class CE-2, Class CE-3, Class P and Class R Certificates
to DBSI. 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.
Agreement to
Purchase . The Seller hereby sells and the Purchaser
hereby purchases, on the date hereof (the “Closing
Date”), (a) certain one- to four-family, adjustable-rate
and fixed-rate, negative amortization first lien residential
mortgage loans, having an aggregate outstanding principal
balance as of the close of business on June 1, 2007 (the
“Cut-Off Date”), after deducting payments due on or
before that date, of approximately $2,137,962,788 (the
“Mortgage Loans”).
SECTION 2.
Mortgage Loan
Schedule . 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 or cause to be prepared on or prior to the
Closing Date a final schedule (the “Closing
Schedule”) that shall describe such Mortgage Loans and set
forth all of the Mortgage Loans to be purchased under this
Agreement, including the Prepayment Charges. The Closing
Schedule will conform to the requirements set forth in this
Agreement and to the definition of “Loan Schedule”
under the Pooling and Servicing Agreement.
SECTION 3.
Consideration .
(a)
In consideration
for the Mortgage Loans to be purchased hereunder, the Purchaser
shall, as described in Section 8, pay to or upon the order of
the Seller in immediately available funds an amount (the
“Purchase Price”) equal to
$2,186,274,832.84.
(b)
The Purchaser or
any assignee, transferee or designee of the Purchaser shall be
entitled to all scheduled payments of principal due after the
Cut-Off Date, all other payments of principal due and collected
after the Cut-Off Date, and all payments of interest on the
Mortgage Loans allocable to the period after the Cut-Off Date.
All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date
shall belong to the Seller.
(c)
Pursuant to the
Pooling and Servicing Agreement, the Purchaser will assign all
of its right, title and interest in and to the Mortgage Loans,
together with its rights under this Agreement, to the Trustee
for the benefit of the Certificateholders.
SECTION 4.
Transfer of the
Mortgage Loans .
(a)
Possession of
Mortgage Files . The Seller does hereby sell 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, including the related Prepayment Charges.
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 or with respect to a Cooperative Loan
(as defined in Exhibit 3 hereto), the related Security Agreement
and the other contents of the related Mortgage File is 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.
(b)
Delivery of
Mortgage Loan Documents . The Seller will, on or
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)
with respect to
each Mortgage Loan that is not a Cooperative Loan (to the extent
not defined herein or in the Pooling and Servicing Agreement,
capitalized terms used in this Section 4(b)(i) shall have the
meanings set forth on Exhibit 3 to this Agreement):
1.
the original
Mortgage Note (including all riders thereto), or certified
copies thereof, bearing all intervening endorsements necessary
to show a complete chain of endorsements from the original
payee, endorsed in blank, via original signature, and, if
previously endorsed, signed in the name of the last endorsee by
a duly qualified officer of the last endorsee. If
the Mortgage Loan was acquired by the last endorsee in a merger,
the endorsement must be by “[name of last endorsee],
successor by merger to [name of predecessor]”. If the
Mortgage Loan was acquired or originated by the last endorsee
while doing business under another name, the endorsement must be
by “[name of last endorsee], formerly known as [previous
name]”;
2.
an original
Assignment of Mortgage executed in blank;
3.
the original of any
guarantee executed in connection with the Mortgage Note, if
any;
4.
the original
Mortgage (including all riders thereto) with evidence of
recording thereon and the original recorded power of attorney,
if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon, and in the case of each MOM
Loan, the original Mortgage, noting the presence of the MIN of
the Mortgage Loan and either language indicating that the
Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a
MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS®, with evidence of recording
indicated thereon; or, if the original Mortgage with evidence of
recording thereon has not been returned by the public recording
office where such Mortgage has been delivered for recordation or
such Mortgage has been lost or such public recording office
retains the original recorded Mortgage, a photocopy of such
Mortgage, together with (i) in the case of a delay caused by the
public recording office, an officer’s certificate of the
title insurer insuring the Mortgage, the escrow agent, the
Seller or the related Servicer stating that such Mortgage has
been delivered to the appropriate public recording office for
recordation and that the original recorded Mortgage or a copy of
such Mortgage certified by such public recording office to be a
true and complete copy of the original recorded Mortgage will be
promptly delivered to the Purchaser’s designee upon
receipt thereof by the party delivering the officer’s
certificate or by the related Servicer; or (ii) in the case of a
Mortgage where a public recording office retains the original
recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such
Mortgage with the recording information thereon certified by
such public recording office to be a true and complete copy of
the original recorded Mortgage;
5.
the originals of
all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, if
any;
6.
the originals of
any intervening assignments of mortgage with evidence of
recording thereon evidencing a complete chain of ownership from
the originator of the Mortgage Loan to the last assignee, or if
any such intervening assignment of mortgage has not been
returned from the applicable public recording office or has been
lost or if such public recording office retains the original
recorded intervening assignments of mortgage, a photocopy of
such intervening assignment of mortgage, together with (i) in
the case of a delay caused by the public recording office, an
officer’s certificate of the title insurer insuring the
Mortgage, the escrow agent, the Seller or the related Servicer
stating that such intervening assignment of mortgage has been
delivered to the appropriate public recording office for
recordation and that such original recorded intervening
assignment of mortgage or a copy of such intervening assignment
of mortgage certified by the appropriate public recording office
to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to
the Purchaser’s designee upon receipt thereof by the party
delivering the officer’s certificate or by the related
Servicer; or (ii) in the case of an intervening assignment of
mortgage where a public recording office retains the original
recorded intervening assignment of mortgage or in the case where
an intervening assignment of mortgage is lost after recordation
in a public recording office, a copy of such intervening
assignment of mortgage with recording information thereon
certified by such public recording office to be a true and
complete copy of the original recorded intervening assignment of
mortgage;
7.
if the Mortgage
Note, the Mortgage, any Assignment of Mortgage, or any other
related document has been signed by a Person on behalf of the
Mortgagor, the original power of attorney or other instrument
that authorized and empowered such Person to sign;
8.
the original
lender’s title insurance policy in the form of an ALTA
mortgage title insurance policy or, if the original
lender’s title insurance policy has not been issued, the
irrevocable commitment to issue the same; provided, that the
Seller shall deliver such original title insurance policy to the
Purchaser or any assignee, transferee or designee of the
Purchaser promptly upon receipt by the Seller, if any;
and
9.
the original of any
security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
(ii)
with respect to
each Cooperative Loan, as applicable, (to the extent not defined
herein or in the Pooling and Servicing Agreement, capitalized
terms used in this Section 4(b)(ii) shall have the meanings set
forth on Exhibit 3 to this Agreement):
1.
the original
Mortgage Note (including all riders thereto) bearing all
intervening endorsements necessary to show a complete chain of
endorsements from the original payee, endorsed in blank, via
original signature, and, if previously endorsed, signed in the
name of the last endorsee by a duly qualified officer of the
last endorsee. If the Mortgage Loan was acquired by
the last endorsee in a merger, the endorsement must be by
“[name of last endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or
originated by the last endorsee while doing business under
another name, the endorsement must be by “[name of last
endorsee], formerly known as [previous name]”;
2.
the Cooperative
Shares, together with the Stock Power in blank;
3.
the executed
Security Agreement;
4.
the executed
Proprietary Lease and the Assignment of Proprietary Lease to the
originator of the Cooperative Loan;
5.
the executed
Recognition Agreement;
6.
copies of the
original UCC Financing Statement, and any continuation
statements, filed by the originator of such Cooperative Loan as
secured party, each with evidence of recording thereof,
evidencing the interest of the originator under the Security
Agreement and the Assignment of Proprietary Lease;
7.
copies of the filed
UCC assignments or amendments of the security interest
referenced in clause (6) above showing an unbroken chain of
title from the originator to the Trust, each with evidence of
recording thereof, evidencing the interest of the assignee under
the Security Agreement and the Assignment of Proprietary
Lease;
8.
an executed
assignment of the interest of the originator in the Security
Agreement, the Assignment of Proprietary Lease and the
Recognition Agreement, showing an unbroken chain of title from
the originator to the Trust; and
9.
for any Cooperative
Loan that has been modified or amended, the original instrument
or instruments effecting such modification or
amendment.
Notwithstanding anything to the contrary
contained in this Section 4, with respect to a maximum of
approximately 1.00% of the Mortgage Loans, by aggregate
principal balance of the Mortgage Loans as of the Cut-Off Date,
if any original Mortgage Note referred to in Section 4(b)(i)
above cannot be located, the obligations of the Seller to
deliver such documents shall be deemed to be satisfied upon
delivery to the Purchaser or any assignee, transferee or
designee of the Purchaser of a photocopy of such Mortgage Note,
if available, with a lost note affidavit substantially in the
form of Exhibit 1 attached hereto. If any of the
original Mortgage Notes for which a lost note affidavit was
delivered to the Purchaser or any assignee, transferee or
designee of the Purchaser is subsequently located, such original
Mortgage Note shall be delivered to the Purchaser or any
assignee, transferee or designee of the Purchaser within three
(3) Business Days; and if any document referred to in Section
4(b)(ii) or 4(b)(iv) above has 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 hereunder shall be deemed to have been
satisfied upon delivery to the Purchaser or any assignee,
transferee or designee of the Purchaser promptly upon receipt
thereof by or on behalf of the Seller 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.
In the event that the original lender’s
title insurance policy has not yet been issued, the Seller shall
deliver to the Purchaser or any assignee, transferee or designee
of the Purchaser a written commitment or interim binder or
preliminary report of title issued by the title insurance or
escrow company. The Seller shall deliver such original title
insurance policy to the Purchaser or any assignee, transferee or
designee of the Purchaser promptly upon receipt by the Seller,
if any.
Each original document relating to a Mortgage
Loan which is not delivered to the Purchaser or its assignee,
transferee or designee, if held by the Seller, shall be so held
for the benefit of the Purchaser, its assignee, transferee or
designee.
(c)
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 with respect to 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 Closing
Schedule.
(d)
Transfer of
Interest in Agreements . 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.
(e)
Examination of
Mortgage Files . Prior to the Closing Date, the
Seller shall either (i) deliver in escrow to the Purchaser or to
any assignee, transferee or designee of the Purchaser for
examination the Mortgage File pertaining to each Mortgage Loan
or (ii) make such Mortgage Files available to the Purchaser or
to any assignee, transferee or designee of the Purchaser for
examination. Such examination may be made by the Purchaser or
the Trustee, and their respective designees, upon reasonable
notice to the Seller during normal business hours before the
Closing Date and within sixty (60) days after the Closing Date.
If any such person makes such examination prior to the Closing
Date and identifies any Mortgage Loans that do not conform to
the requirements of the Purchaser as described in this
Agreement, such Mortgage Loans shall be deleted from the Closing
Schedule. 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 person 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.
SECTION 5.
Representations,
Warranties and Covenants of the Seller .
The Seller hereby represents and warrants to the
Purchaser, as of the date hereof and as of the Closing Date, and
covenants, that:
(i)
The Seller is a
corporation organized under the laws of the state of Delaware
with full corporate power and authority to conduct its business
as presently conducted by it to the extent material to the
consummation of the transactions contemplated herein. The
Agreement has been duly authorized, executed and delivered by
the Seller. The Seller had the full corporate power and
authority to own the Mortgage Loans and to transfer and convey
the Mortgage Loans to the Purchaser and has the full corporate
power and authority to execute and deliver and engage in the
transactions contemplated by, and perform and observe the terms
and conditions of, this Agreement;
(ii)
The Seller has duly
authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and
this Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a legal, valid and
binding obligation of the Seller, enforceable against it in
accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency or reorganization or by
general principles of equity;
(iii)
The execution,
delivery and performance of this Agreement by the Seller (x)
does not conflict and will not conflict with, does not breach
and will not result in a breach of and does not constitute and
will not constitute a default (or an event, which with notice or
lapse of time or both, would constitute a default) under (A) any
terms or provisions of the articles of incorporation or by-laws
of the Seller, (B) any term or provision of any material
agreement, contract, instrument or indenture, to which the
Seller is a party or by which the Seller or any of its property
is bound, or (C) any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental
authority having jurisdiction over the Seller or any of its
property and (y) does not create or impose and will not result
in the creation or imposition of any lien, charge or encumbrance
which would have a material adverse effect upon the Mortgage
Loans or any documents or instruments evidencing or securing the
Mortgage Loans;
(iv)
No consent,
approval, authorization or order of, registration or filing
with, or notice on behalf of the Seller to any governmental
authority or court is required, under federal laws or the laws
of the State of New York, for the execution, delivery and
performance by the Seller of, or compliance by the Seller with,
this Agreement or the consummation by the Seller of any other
transaction contemplated hereby and by the Pooling and Servicing
Agreement; provided, however, that the Seller makes no
representation or warranty regarding federal or state securities
laws in connection with the sale or distribution of the
Certificates;
(v)
The Seller is not
in violation of, and the execution and delivery of this
Agreement by the Seller and its performance and compliance with
the terms of this Agreement will not constitute a violation with
respect to, any order or decree of any court or any order or
regulation of any federal, state, municipal or governmental
agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and
adversely affect the condition (financial or otherwise) or the
operation of the Seller or its assets or might have consequences
that would materially and adversely affect the performance of
its obligations and duties hereunder;
(vi)
Immediately prior
to the sale of the Mortgage Loans to the Purchaser as herein
contemplated, the Seller was the owner of the related Mortgage
and the indebtedness evidenced by the related Mortgage Note,
and, upon the payment to the Seller of the Purchase Price, in
the event that the Seller retains or has retained record title,
the Seller shall retain such record title to each Mortgage, each
related Mortgage Note and the related Mortgage Files with
respect thereto in trust for the Purchaser as the owner thereof
from and after the date hereof;
(vii)
There are no
actions or proceedings against, or investigations known to it
of, the Seller before any court, administrative or other
tribunal (A) that might prohibit its entering into this
Agreement, (B) seeking to prevent the sale of the Mortgage Loans
by the Seller or the consummation of the transactions
contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by the Seller of
its obligations under, or validity or enforceability of, this
Agreement;
(viii)
The consummation of
the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer,
assignment and conveyance of the Mortgage Notes and the
Mortgages by the Seller pursuant to this Agreement are not
subject to the bulk transfer or any similar statutory provisions
in effect in any relevant jurisdiction, except any as may have
been complied with;
(ix)
There is no
litigation currently pending or, to the best of the
Seller’s knowledge without independent investigation,
threatened against the Seller that would reasonably be expected
to adversely affect the transfer of the Mortgage Loans, the
issuance of the Certificates or the execution, delivery,
performance or enforceability of this Agreement; and
(x)
The information set
forth in the applicable part of the Closing Schedule relating to
the existence of a Prepayment Charge is complete, true and
correct in all material respects at the date or dates respecting
which such information is furnished and each Prepayment Charge
is permissible and enforceable in accordance with its terms upon
the mortgagor’s full and voluntary principal prepayment
under applicable law, except to the extent that: (1) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to
creditors’ rights; (2) the collectability thereof
may be limited due to acceleration in connection with a
foreclosure or other involuntary prepayment; or (3) subsequent
changes in applicable law may limit or prohibit enforceability
thereof under applicable law.
SECTION 6.
Representations
and Warranties of the Seller Relating to the Mortgage
Loans .
The Seller hereby represents and warrants to the
Purchaser that as to each Mortgage Loan as of the Closing Date
(unless otherwise set forth herein):
(i)
The information set
forth in the Closing Schedule is true and correct in all
material respects as of the Cut-Off Date;
(ii)
No Monthly Payment
required to be made under any Mortgage Loan has been
contractually delinquent by one month or more at any time
preceding the date such Mortgage Loan was purchased by the
Seller;
(iii)
To the best of the
Seller’s knowledge, there are no delinquent taxes,
assessment liens or insurance premiums affecting the related
Mortgaged Property;
(iv)
The buildings and
improvements on the Mortgaged Property are insured against loss
by fire and hazards of extended coverage (excluding earthquake
insurance) in an amount which is at least equal to the lesser of
(i) the amount necessary to compensate for any damage or loss to
the improvements which are a part of such property on a
replacement cost basis or (ii) the outstanding principal balance
of the Mortgage Loan. To the best of the Seller’s
knowledge, if the Mortgaged Property is in an area identified on
a flood hazard map or flood insurance rate map issued by the
Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available), a
flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect.
All such insurance policies contain a standard mortgagee clause
naming the originator of the Mortgage Loan, its successors and
assigns as mortgagee and the Seller has not engaged in any act
or omission which would impair the coverage of any such
insurance policies. Except as may be limited by applicable law,
the Mortgage obligates the Mortgagor thereunder to maintain all
such insurance at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at Mortgagor's cost and
expense and to seek reimbursement therefor from the
Mortgagor;
(v)
Each Mortgage Loan
and the related Prepayment Charge complied in all material
respects with any and all requirements of any federal,
state
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