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XXXXXXX XXXXX MORTGAGE CAPITAL INC.,
SELLER
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of May 1, 2005
Xxxxxxx Xxxxx Mortgage Investors Trust
(Mortgage Loan Asset-Backed Certificates, Series 2005-WMC2)
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This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of May 1,
2005 (the "Agreement"), is executed by and between Xxxxxxx Xxxxx Mortgage
Capital Inc. (the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the
"Depositor").
All capitalized terms not defined herein shall have the same meanings
assigned to such terms in that certain Pooling and Servicing Agreement (the
"Pooling Agreement"), dated as of May 1, 2005, among the Depositor, Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee") and Wilshire Credit Corporation, as
servicer (the "Servicer").
W I T N E S S E T H:
WHEREAS, pursuant to the Master Mortgage Loan Purchase and Interim
Servicing Agreement, dated as of January 1, 2004, by and between the Seller and
WMC Mortgage Corp. ("WMC" or the "Transferor") (the "Transfer Agreement"), the
Seller has purchased or received certain mortgage loans identified on the
Mortgage Loan Schedule attached hereto as Schedule A (the "Mortgage Loans");
WHEREAS, the Transfer Agreement is supplemented by that certain letter
agreement, dated as of May 31, 2005 among WMC and the Seller (the "Bring Down
Letter");
WHEREAS, the Seller desires to sell, without recourse, all of its
rights, title and interest in the Mortgage Loans to the Depositor, to assign all
of its rights and interest under the Transfer Agreement and the Bring Down
Letter, and to delegate all of its obligations thereunder, to the Depositor; and
WHEREAS, the Seller and the Depositor acknowledge and agree that the
Depositor will assign all of its rights and delegate all of its obligations
hereunder to the Trustee, and that each reference herein to the Depositor is
intended, unless otherwise specified, to mean the Depositor or the Trustee, as
assignee, whichever is the owner of the Mortgage Loans from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Seller and the Depositor agree as follows:
ARTICLE I
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans. Concurrently with the execution
and delivery of this Agreement, the Seller does hereby transfer, assign, set
over, deposit with and otherwise convey to the Depositor, without recourse,
subject to Sections 1.03 and 1.04, all the right, title and interest of the
Seller in and to the Mortgage Loans identified on Schedule A hereto, having an
aggregate principal balance as of the Cut-off Date of $780,433,779. Such
conveyance includes, without limitation, the right to all distributions of
principal and interest received on or with respect to the Mortgage Loans on or
after May 1, 2005, other than payments of principal
and interest due on or before such date, and all such payments due after such
date but received prior to such date and intended by the related Mortgagors to
be applied after such date, together with all of the Seller's right, title and
interest in and to each related account and all amounts from time to time
credited to and the proceeds of such account, any REO Property and the proceeds
thereof, the Seller's rights under any Insurance Policies related to the
Mortgage Loans, and the Seller's security interest in any collateral pledged to
secure the Mortgage Loans, including the Mortgaged Properties.
Concurrently with the execution and delivery of this Agreement, the
Seller hereby assigns to the Depositor all of its rights and interest under the
Transfer Agreement and the Bring Down Letter, other than any servicing rights
retained pursuant to the provisions of the Transfer Agreement and the Bring Down
Letter, to the extent relating to the Mortgage Loans. Concurrently with the
execution hereof, the Depositor tenders the purchase price of $780,433,779. The
Depositor hereby accepts such assignment, and shall be entitled to exercise all
such rights of the Seller under the Transfer Agreement and the Bring Down
Letter, as if the Depositor had been a party to such agreement.
Section 1.02. Delivery of Documents. In connection with such transfer
and assignment of the Mortgage Loans hereunder, the Seller does hereby deliver,
or cause to be delivered, to the Depositor (or its designee) the documents or
instruments with respect to each Mortgage Loan (each a "Mortgage File") so
transferred and assigned, as specified in the Transfer Agreement.
(a) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, the Seller, in lieu of
delivering the related Mortgage Files, herewith delivers to the Depositor an
Officer's Certificate which shall include a statement to the effect that all
amounts received in connection with such prepayment that are required to be
deposited in the account maintained by the Servicer for such purpose have been
so deposited.
Section 1.03. Review of Documentation. The Depositor, by execution and
delivery hereof, acknowledges receipt of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by the Trustee, for the Mortgage Loans for the Depositor. The Trustee is
required to review, within 45 days following the Closing Date, each applicable
Mortgage File. If in the course of such review the Trustee identifies any
material defect, the Seller shall be obligated to cure such defect or to
repurchase the related Mortgage Loan from the Depositor (or, at the direction of
and on behalf of the Depositor, from the Trust Fund), or to substitute a
Replacement Mortgage Loan therefor, in each case to the same extent and in the
same manner as the Depositor is obligated to the Trustee and the Trust Fund
under the Pooling Agreement.
Section 1.04. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Depositor that as
of the date hereof that:
(i) The Seller is a Delaware corporation duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full
corporate power and authority to own its property, to carry on its
business as presently conducted and to enter into and perform its
obligations under this Agreement;
(ii) The execution and delivery by the Seller of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Seller; none of the execution and delivery of this
Agreement, the consummation of the transactions herein contemplated or
compliance with the provisions hereof will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding
on the Seller or its properties or the federal stock charter or bylaws
of the Seller;
(iii) The execution, delivery and performance by the Seller of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency,
except such as has been obtained, given, effected or taken prior to the
date hereof;
(iv) This Agreement has been duly executed and delivered by
the Seller and, assuming due authorization, execution and delivery by
the Depositor, constitutes a valid and binding obligation of the Seller
enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law; and
(v) There are no actions, suits or proceedings pending or, to
the knowledge of the Seller, threatened or likely to be asserted
against or affecting the Seller, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Seller will be determined
adversely to the Seller and will if determined adversely to the Seller
materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability
to perform its obligations under this Agreement.
(b) The representations and warranties of the Transferor with respect
to the Mortgage Loans contained in the Transfer Agreement were made as of the
date of the Transfer Agreement and brought forward to the Closing Date pursuant
to the Bring Down Letter. The representations and warranties of the Transferor
with respect to the Mortgage Loans contained in the Bring Down Letter were made
as of the Closing Date. To the extent that any fact, condition or event with
respect to a Mortgage Loan constitutes a breach of both (i) a representation or
warranty of the Transferor under the Transfer Agreement or Bring Down Letter and
(ii) a representation or warranty of the Seller under this Agreement, the sole
right or remedy of the Depositor with respect to a breach by the Seller of such
representation and warranty (other than a breach by the Seller of the
representations and warranties made pursuant to Sections 1.04(b)(vii) and
1.04(b)(viii)) shall be the right to enforce the obligations of the Transferor
under any applicable representation or warranty made by it. The representations
made by the Seller pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii) shall be
direct obligations of the Seller. The Depositor
acknowledges and agrees that the representations and warranties of the Seller in
this Section 1.04(b) (other than the representations and warranties made
pursuant to Sections 1.04(b)(vii) and 1.04(b)(viii)) are applicable only to
facts, conditions or events that do not constitute a breach of any
representation or warranty made by the Transferor in the Transfer Agreement or
Bring Down Letter. The Seller shall have no obligation or liability with respect
to any breach of a representation or warranty made by it with respect to the
Mortgage Loans if the fact, condition or event constituting such breach also
constitutes a breach of a representation or warranty made by the Transferor in
the Transfer Agreement or Bring Down Letter, without regard to whether the
Transferor fulfills its contractual obligations in respect of such
representation or warranty; provided, however, that if the Transferor fulfills
its obligations under the provisions of the Transfer Agreement and the Bring
Down Letter by substituting for the affected Mortgage Loan a mortgage loan which
is not a Replacement Mortgage Loan, the Seller shall, in exchange for such
substitute mortgage loan, provide the Depositor (a) with the applicable Purchase
Price for the affected Mortgage Loan or (b) within the two year period following
the Closing Date, with a Qualified Substitute Mortgage Loan for such affected
Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon
delivery of the Mortgage Loans to the Depositor hereunder, as to each, that as
of May 31, 2005:
(i) The information set forth with respect to the Mortgage
Loans on the Mortgage Loan Schedule provides an accurate listing of the
Mortgage Loans, and the information with respect to each Mortgage Loan
on the Mortgage Loan Schedule is true and correct in all material
respects at the date or dates respecting which such information is
given;
(ii) As of the Closing Date, no Mortgage Loan is in
foreclosure;
(iii) As of the Closing Date, each Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G of the Code (as
determined without regard to Treas. Reg. Section 1.860G-2(a)(3) or any
similar rule that treats a defective obligation as a qualified mortgage
for a temporary period);
(iv) As to the servicing of the Mortgage Loans, the
representations and warranties contained in Sections 7.02 (3), (4),
(5), (7),(9), (14), (16), (17), (18), (23) and (34) of the Transfer
Agreement are incorporated herein by reference as of the Closing Date;
(v) As of the Closing Date, no Mortgage Loan provides for
interest other than at either (i) a single fixed rate in effect
throughout the term of the Mortgage Loan or (ii) a "variable rate"
(within the meaning of Treas. Reg. Section 1.860G-1(a)(3)) in effect
throughout the term of the Mortgage Loan;
(vi) As of the Closing Date, the Seller would not, based on
the delinquency status of the Mortgage Loans, institute foreclosure
proceedings with respect to any of the Mortgage Loans prior to the next
scheduled payment for such Mortgage Loan;
(vii) None of the Mortgage Loans are "high cost" as defined by
applicable predatory and abusive lending laws; No Mortgage Loan is a
High Cost Loan or Covered
Loan, as applicable (as such terms are defined in the current Standard
& Poor's LEVELS(R) Glossary which is now Version 5.6 Revised, Appendix
E); and
(viii) Each Mortgage Loan at the time it was made complied
with all applicable local, state and federal lending laws, including,
but not limited to, all applicable predatory and abusive lending laws.
It is understood and agreed that the representations and warranties set
forth in Section 1.04(b) herein shall survive delivery of the Mortgage Files and
the Assignment of Mortgage of each Mortgage Loan to the Depositor. Upon
discovery by either the Seller or the Depositor of a breach of any of the
foregoing representations and warranties that adversely and materially affects
the value of the related Mortgage Loan, and, that does not also constitute a
breach of a representation or warranty of the Transferor in the Transfer
Agreement or Bring Down Letter, the party discovering such breach shall give
prompt written notice to the other party. Within 60 days of the discovery of any
such breach, the Seller shall either (a) cure such breach in all material
respects, (b) repurchase such Mortgage Loan or any property acquired in respect
thereof from the Depositor at the applicable Purchase Price or (c) within the
two year period following the Closing Date, substitute a Replacement Mortgage
Loan for the affected Mortgage Loan. The Seller indemnifies and holds the Trust
Fund, the Trustee, the Depositor, the Servicer, the NIMs Insurer and each
Certificateholder harmless against any and all taxes, claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments and any
other costs, fees and expenses that the Trust Fund, the Trustee, the Depositor,
the Servicer, the NIMs Insurer and any Certificateholder may sustain in
connection with any actions of the Seller relating to a repurchase of a Mortgage
Loan other than in compliance with the terms of this Section 2.03 of the Pooling
Agreement and this Agreement, to the extent that any such action causes (i) any
federal or state tax to be imposed on the Trust Fund or any REMIC provided for
in the Pooling Agreement, including without limitation, any federal tax imposed
on "prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860(d)(1) of the Code, or
(ii) any REMIC created in the Pooling Agreement to fail to qualify as a REMIC at
any time that any Certificate is outstanding.
Section 1.05. Grant Clause. It is intended that the conveyance of the
Seller's right, title and interest in and to Mortgage Loans and other property
conveyed pursuant to this Agreement shall constitute, and shall be construed as,
a sale of such property and not a grant of a security interest to secure a loan.
However, if such conveyance is deemed to be in respect of a loan, it is intended
that: (1) the rights and obligations of the parties shall be established
pursuant to the terms of this Agreement; (2) the Seller hereby grants to the
Depositor a first priority security interest in all of the Seller's right, title
and interest in, to and under, whether now owned or hereafter acquired, such
Mortgage Loans and other property; and (3) this Agreement shall constitute a
security agreement under applicable law.
Section 1.06. Assignment by Depositor. The Depositor shall have the
right, upon notice to but without the consent of the Seller, to assign, in whole
or in part, its interest under this Agreement with respect to the Mortgage Loans
to the Trustee, and the Trustee then shall succeed to all rights of the
Depositor under this Agreement. All references to the Depositor in this
Agreement shall be deemed to include its assignee or designee, specifically
including the Trustee.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 2.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof.
Section 2.03. Amendment. This Agreement may be amended from time to
time by the Seller and the Depositor, without notice to or the consent of any of
the Holders, (i) to cure any ambiguity or correct any mistake, (ii) to cause the
provisions herein to conform to or be consistent with or in furtherance of the
statements made with respect to the Certificates, the Trust Fund, the Pooling
Agreement or this Agreement in any Offering Document; or to correct or
supplement any provision herein which may be inconsistent with any other
provisions herein, (iii) to make any other provisions with respect to matters or
questions arising under this Agreement or (iv) to modify, alter, amend, add to
or rescind any of the terms or provisions to the extent necessary or desirable
to comply with any requirements imposed by the Code and the REMIC Provisions. No
such amendment effected pursuant to clause (iii) of the preceding sentence shall
adversely affect in any material respect the interests of any Holder. Any such
amendment shall be deemed not to adversely affect in any material respect any
Holder, if the Trustee receives written confirmation from each Rating Agency
that such amendment will not cause such Rating Agency to reduce the then current
rating assigned to the Certificates (and any Opinion of Counsel requested by the
Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
(a) This Agreement may also be amended from time to time by the Seller
and the Depositor with the consent of the Holders of not less than 66-2/3% of
the Class Certificate Principal Amount (or Percentage Interest) of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders; provided, however, that no
such amendment may (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed on
any Certificate without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required to
consent to any such amendment without the consent of the Holders of 100% of the
Class Principal Amount (or Percentage Interest) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to "Holder" or
"Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(b) It shall not be necessary for the consent of Holders under this
Section 2.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Section 2.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 2.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 2.06. Indulgences; No Waivers. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
Section 2.07. Headings Not to Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 2.08. Benefits of Agreement. Nothing in this Agreement, express
or implied, shall give to any Person, other than the parties to this Agreement
and their successors hereunder, any benefit or any legal or equitable right,
power, remedy or claim under this Agreement.
Section 2.09. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
IN WITNESS WHEREOF, the Seller and the Depositor have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
By:
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Name: Xxxxxxx X. Xxxx, Xx.
Title: Vice President
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By:
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Name: Xxxxxxx Xxxxxx
Title: President
SCHEDULE A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
