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Exhibit 10.4(B)
SECOND AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AGREEMENT
This
is a Second Amended and Restated Master Mortgage Loan Purchase
Agreement (the "Agreement"), dated as of May 1, 2006, by and
between Bank of
America, National Association, having an office at 214 North Tryon
Street,
Charlotte, North Carolina 28255 (the "Purchaser") and Wells Fargo
Bank, N.A.,
having an office at 1 Home Campus, Des Moines, Iowa 50328-0001 (the
"Seller").
WITNESSETH
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WHEREAS, the Seller agrees to sell, and the Purchaser agrees to
purchase,
from time to time certain residential first lien adjustable rate
and/or fixed
rate mortgage loans (the "Mortgage Loans") on a servicing retained
basis as
described herein:
WHEREAS, the Mortgage Loans shall be delivered as pools of whole
loans
(each a "Loan Package") on various dates as provided herein (each a
"Closing
Date"); and
WHEREAS, the parties intend hereby to set forth the terms and
conditions
upon which the proposed Transactions will be effected.
NOW
THEREFORE, in consideration of the promises and the mutual
agreements
set forth herein, the parties hereto agree as follows:
SECTION 1. All capitalized terms not otherwise defined herein have
the
respective meanings set forth in the Second Amended and Restated
Master Seller's
Warranties and Servicing Agreement, dated as of the date herewith
(the "Master
Seller's Warranties and Servicing Agreement").
SECTION 2. Agreement to Purchase. The Seller agrees to sell, and
the
Purchaser agrees to purchase from time to time, Mortgage Loans in
Loan Packages
having aggregate principal balances on the related Cut-off Date in
amounts as
set forth in the respective Commitment Letters, or in such other
amounts as
agreed by the Purchaser and the Seller as evidenced by the actual
aggregate
principal balance of the Mortgage Loans in the related Loan Package
accepted by
the Purchaser on the related Closing Date. The Mortgage Loans will
be delivered
pursuant to the Master Seller's Warranties and Servicing Agreement,
between the
Purchaser and the Seller.
SECTION 3. Mortgage Loan Schedule. The Seller will provide the
Purchaser
with certain information constituting a listing of the Mortgage
Loans to be
purchased under this Agreement for each Transaction (the "Mortgage
Loan
Schedule"). Each Mortgage Loan Schedule shall conform to the
definition of
"Mortgage Loan Schedule" under the Master Seller's Warranties and
Servicing
Agreement.
SECTION 4. Purchase Price. The purchase price for each Loan Package
(the
"Purchase Price") shall be the percentage of par as stated in the
related
Commitment Letter, multiplied by the aggregate scheduled principal
balance, as
of the related Cut-off Date, of the Mortgage Loans in the related
Loan Package,
after application of scheduled payments of principal for such
related
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Loan Package due on or before such Cut-off Date whether or not
collected. The
Purchase Price for a Loan Package may be adjusted as stated in the
related
Commitment Letter.
In
addition to the Purchase Price, the Purchaser shall pay to the
Seller,
at closing, accrued interest on the aggregate scheduled principal
amount of the
related Mortgage Loans at the weighted average Mortgage Loan
Remittance Rate for
each Loan Package from the related Cut-off Date through the day
prior to the
related Closing Date, inclusive.
With
respect to each Loan Package, the Purchaser shall be entitled to
(1)
all scheduled principal due after the related Cut-off Date, (2) all
other
recoveries of principal collected after the related Cut-off Date
(provided,
however, that all scheduled payments of principal due on or before
the related
Cut-off Date and collected by the Seller after the related Cut-off
Date shall
belong to the Seller), (3) all payments of interest on the Mortgage
Loans at the
Mortgage Loan Remittance Rate (minus that portion of any such
payment which is
allocable to the period prior to the related Cut-off Date) and (4)
all
Prepayment Penalties. The principal balance of each Mortgage Loan
as of the
related Cut-off Date is determined after application of payments of
principal
due on or before the related Cut-off Date whether or not collected.
Therefore,
payments of scheduled principal and interest prepaid for a Due Date
beyond the
related Cut-off Date shall not be applied to the principal balance
as of the
related Cut-off Date. Such prepaid amounts (minus interest at the
Servicing Fee
Rate) shall be the property of the Purchaser. The Seller shall
deposit any such
prepaid amounts into the Custodial Account, which account is
established for the
benefit of the Purchaser for subsequent remittance by the Seller to
the
Purchaser.
SECTION 5. Examination of Mortgage Files. Prior to the related
Closing
Date, the Seller shall (a) deliver to the Purchaser in escrow, for
examination,
the Custodial Mortgage File for each Mortgage Loan, including a
copy of the
Assignment of Mortgage, pertaining to each Mortgage Loan, or (b)
make the
Custodial Mortgage Files and the Retained Mortgage Files available
to the
Purchaser for examination at the Seller's offices or such other
location as
shall otherwise be agreed upon by the Purchaser and the Seller.
Such examination
may be made by the Purchaser or by any prospective purchaser of the
Mortgage
Loans from the Purchaser, at any time before or after such Closing
Date upon
prior reasonable notice to the Seller. The fact that the Purchaser
or any
prospective purchaser of the Mortgage Loans has conducted or has
failed to
conduct any partial or complete examination of the Custodial
Mortgage Files and
the Retained Mortgage Files shall not affect the Purchaser's (or
any of its
successor's) rights to demand repurchase, substitution or other
relief or remedy
as provided under the Master Seller's Warranties and Servicing
Agreement.
The
Purchaser shall cause the Custodian to act as bailee for the sole
and
exclusive benefit of the Seller pursuant to the Custodial Agreement
and act only
in accordance with Seller's instructions. Upon the Seller's receipt
of the
Purchase Price, the Seller shall provide notification to the
Custodian to
release ownership of the Mortgage Loan Documents specified above to
the
Purchaser. Such notification shall be in a form of a written notice
by facsimile
or other electronic media, with a copy sent to the Purchaser.
Subsequent to such
release, such Mortgage Loan Documents shall be retained by the
Custodian for the
benefit of the Purchaser. All Mortgage Loan Documents related to
Mortgage Loans
not purchased by the Purchaser on the
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Closing Date, shall be maintained by the Custodian for the benefit
of the Seller
and shall be returned to the Seller within two (2) Business Days
after the
Closing Date.
SECTION 6. Representations, Warranties and Agreements of Seller.
The Seller
agrees and acknowledges that it shall, as a condition to the
consummation of the
transactions contemplated hereby, make the representations and
warranties
specified in Section 3.01 and 3.02 of the Master Seller's
Warranties and
Servicing Agreement, as of each Closing Date. The meaning of the
term
"Agreement" as used in Sections 3.01 and 3.02 of the Seller's
Warranties and
Servicing Agreement shall include this Agreement. The Seller,
without conceding
that the Mortgage Loans are securities, hereby makes the following
additional
representations, warranties and agreements which shall be deemed to
have been
made as of the related Closing Date:
a)
neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of any Mortgage
Loans, any
interest in any Mortgage Loans or any other similar security to,
or
solicited any offer to buy or accept a transfer, pledge or
other
disposition of any Mortgage Loans, any interest in any Mortgage
Loans or
any
other similar security from, or otherwise approached or negotiated
with
respect to any Mortgage Loans, any interest in any Mortgage Loans
or any
other similar security with, any person in any manner, or made any
general
solicitation by means of general advertising or in any other
manner, or
taken any other action which would constitute a distribution of
the
Mortgage Loans under the Securities Act or which would render
the
disposition of any Mortgage Loans a violation of Section 5 of
the
Securities Act or require registration pursuant thereto, nor will
it act,
nor
has it authorized or will it authorize any person to act, in
such
manner with respect to the Mortgage Loans; and
b)
the Seller has not dealt with any broker or agent or anyone else
who
might be entitled to a fee or commission in connection with
this
transaction other than the Purchaser.
SECTION 7. Representation, Warranties and Agreement of Purchaser.
The
Purchaser, without conceding that the Mortgage Loans are
securities, hereby
makes the following representations, warranties and agreements,
which shall have
been deemed to have been made as of the related Closing Date.
a)
the Purchaser understands that the Mortgage Loans have not been
registered under the Securities Act or the securities laws of any
state;
b)
except as contemplated under the Seller's Warranties and
Servicing
Agreement, the Purchaser is acquiring the Mortgage Loans for its
own
account only and not for any other person;
c)
the Purchaser considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in
financial
and
business matters that it is capable of evaluating the merits and
risks
of
investment in the Mortgage Loans;
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d)
the Purchaser has been furnished with all information regarding
the
Mortgage Loans which it has requested from the Seller; and
e)
neither the Purchaser nor anyone acting on its behalf offered,
transferred, pledged, sold or otherwise disposed of any Mortgage
Loan, any
interest in any Mortgage Loan or any other similar security to,
or
solicited any offer to buy or accept a transfer, pledge or
other
disposition of any Mortgage Loan, any interest in any Mortgage Loan
or any
other similar security from, or otherwise approached or negotiated
with
respect to any Mortgage Loan, any interest in any Mortgage Loan or
any
other similar security with, any person in any manner, or made any
general
solicitation by means of general advertising or in any other
manner, or
taken any other action which would constitute a distribution of
the
Mortgage Loans under the Securit
