EXECUTION COPY
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XXXXXXX XXXXX MORTGAGE LENDING, INC.,
SELLER
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of July 1, 2006
Xxxxxxx Xxxxx Mortgage Investors Trust
(Mortgage Loan Asset-Backed Securities, Series 2006-SL2)
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TABLE OF CONTENTS
PAGE
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ARTICLE I CONVEYANCE OF MORTGAGE LOANS................................... 1
Section 1.01. Sale of Mortgage Loans.................................. 1
Section 1.02. Delivery of Documents................................... 2
Section 1.03. Review of Documentation................................. 2
Section 1.04. Representations and Warranties of the Seller............ 2
Section 1.05. Grant Clause............................................ 5
Section 1.06. Assignment by Depositor................................. 5
ARTICLE II MISCELLANEOUS PROVISIONS...................................... 6
Section 2.01. Binding Nature of Agreement; Assignment................. 6
Section 2.02. Entire Agreement........................................ 6
Section 2.03. Amendment............................................... 6
Section 2.04. Governing Law........................................... 7
Section 2.05. Severability of Provisions.............................. 7
Section 2.06. Indulgences; No Waivers................................. 7
Section 2.07. Headings Not to Affect Interpretation................... 7
Section 2.08. Benefits of Agreement................................... 7
Section 2.09. Counterparts............................................ 7
EXHIBITS
EXHIBIT A TRANSFER AGREEMENTS............................................ 1
EXHIBIT B ORIGINATORS.................................................... 1
SCHEDULE
SCHEDULE A MORTGAGE LOAN SCHEDULE........................................ 1
-i-
This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of July 1, 2006
(the "Agreement"), is executed by and between Xxxxxxx Xxxxx Mortgage Lending,
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 Appendix A of the Indenture, dated as of August 8,
2006 (the "Indenture"), by and between Xxxxxxx Xxxxx Mortgage Investors Trust,
Series 2006-SL2, as issuer (the "Issuer"), LaSalle Bank National Association, as
administrator (the "Administrator"), and Citibank, N.A., as indenture trustee
(the "Indenture Trustee").
WITNESSETH:
WHEREAS, pursuant to certain master mortgage loan purchase and interim
servicing agreements listed on Exhibit A-1 hereto (collectively, the "Transfer
Agreements") between the Seller, Xxxxxxx Xxxxx Credit Corporation ("MLCC") or
Xxxxxxx Xxxxx Mortgage Capital Inc. ("MLMC") and each of the originators listed
on Exhibit B hereto (collectively, the "Originators"), and certain assignment
assumption and recognition agreements listed on Exhibit A-2 hereto
(collectively, the "AARs") between either MLCC or MLMC, as assignor, and MLML,
as assignee, and acknowledged by the related Originator, the Seller has
purchased or received certain mortgage loans identified on the Mortgage Loan
Schedule attached hereto as Schedule A (the "Mortgage Loans");
WHEREAS, each Transfer Agreement (unless otherwise noted on Exhibit A) is
supplemented by a related letter, each dated as of August 8, 2006 (the "Closing
Date") between each related Originator and the Seller (each, a "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 Agreements and the Bring Down Letters,
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 Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-SL2 (the
"Issuing Entity") pursuant to a trust agreement, dated as of August 8, 2006, by
and between the Depositor and Wilmington Trust Company, as owner trustee of the
Issuing Entity, and that each reference herein to the Depositor is intended,
unless otherwise specified, to mean the Depositor or the Issuing Entity, 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:
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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 $249,716,798. 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 July 1,
2006, 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 Agreements, AARs and the Bring Down Letters, other than any servicing
rights retained pursuant to the provisions of the Transfer Agreements, AARs and
the Bring Down Letters, to the extent relating to the Mortgage Loans.
Concurrently with the execution hereof, the Depositor tenders the purchase price
of $249,716,798. The Depositor hereby accepts such assignment, and shall be
entitled to exercise all such rights of the Seller under the Transfer
Agreements, AARs and the Bring Down Letters, as if the Depositor had been a
party to such agreements.
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 Agreements.
(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 related 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 Custodian for the Mortgage Loans for the Depositor. The Custodian is
required to review, within 45 days following the Closing Date, each applicable
Mortgage File. If in the course of such review the Custodian identifies any
material defect, the Seller (or the related Originator, as the case may be)
shall be obligated to cure such defect, repurchase the related Mortgage Loan or
substitute a Replacement Mortgage
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Loan therefor, in each case as pursuant to the Servicing Agreement, dated as of
July 1, 2006 (the "Servicing Agreement"), by and among the Seller, the
Depositor, the Issuing Entity, Wilshire Credit Corporation, as servicer, LaSalle
Bank National Association, as master servicer and securities administrator, and
Citibank, N.A., as indenture trustee.
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.
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(b) The representations and warranties of each Originator with respect to
the Mortgage Loans contained in the applicable Transfer Agreement were made as
of the date of such Transfer Agreement and brought forward to the Closing Date
pursuant to the applicable Bring Down Letter. The representations and warranties
of each Originator with respect to the Mortgage Loans contained in the
applicable Bring Down Letter are being 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 a Originator
under the applicable 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)(viii) and
1.04(b)(ix)) shall be the right to enforce the obligations of the applicable
Originator under any applicable representation or warranty made by it; provided,
however, that to the extent any of (a) Bayrock Mortgage Corporation ("Bayrock"),
(b) First NLC Financial Services, LLC ("First NLC"), (c) Ownit Mortgage
Solutions, Inc. ("Ownit"), (d) Lime Financial Services, Inc. ("Lime"), (e)
Maribella Mortgage, LLC ("Maribella"), (f) FMF Capital LLC ("FMF"), (g) MILA,
Inc. ("MILA"), (h) NetBank ("NetBank"), (i) NC Capital Corporation ("NC
Capital"), (j) IXIS Real Estate Capital Inc. ("IXIS"), (k) Quicken Loans Inc.
("Quicken"), (l) Secured Funding Corporation ("Secured Funding") or (m) Sierra
Pacific Mortgage Company, Inc ("Sierra Pacific") fails to fulfill its
contractual obligations under the applicable Transfer Agreement then the
Depositor shall have the right to enforce such obligations of Bayrock, First
NLC, Ownit, Lime, Maribella, FMF, MILA, NetBank, NC Capital, IXIS, Quicken,
Secured Funding, and Sierra Pacific, as applicable, against the Seller. The
representations made by the Seller pursuant to Sections 1.04(b)(viii) and
1.04(b)(ix) 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)(viii) and 1.04(b)(ix)) are applicable only to
facts, conditions or events that do not constitute a breach of any
representation or warranty made by a Originator in the applicable Transfer
Agreement, AAR or Bring Down Letter. Except with respect to Bayrock, First NLC,
Ownit, Lime, Maribella, FMF, MILA, NetBank, NC Capital, IXIS, Quicken, Secured
Funding, and Sierra Pacific, 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 a
Originator in the applicable Transfer Agreement, AAR or Bring Down Letter,
without regard to whether such Originator fulfills its contractual obligations
in respect of such representation or warranty; provided, however, that if such
Originator fulfills its obligations under the provisions of the applicable
Transfer Agreement, AAR 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 August 8, 2006:
(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
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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 and as determined based on the maximum line of credit, rather than
the actual amount drawn, with respect to any Mortgage Loan that is a home
equity line of credit);
(iv) The representations and warranties contained in (A) Sections 7.01
and 7.02 of the BayRock Agreement; (B) Subsections 6.01 (a), (c), (g), (h),
(i), (j), (k), (n), (q), (u), (x), (y), (ff), (jj), (nn), (pp) with respect
to the servicing only and (qq) are made of the Servicing Transfer Date of
the CitiMortgage Agreement; (C) Sections 7.01 and 7.02 of the First NLC
Agreement; (D) Subsections 7.01 (1), (2), (3), (4), (5), (7), (8) (to the
extent such representation relates to a successor servicer), (9), (19),
(26) (excluding the first sentence thereof), (34), (36), (44) and (49) of
the Fremont Agreement; (E) Subsections 7.02(1) through (9), (16), (17),
(19). (21), (22), (24), (25), (26), (31), (34), (35), (36), (38), (42),
(44), (71), (75), (81), (82), (87), (88), (89), (92), (92) and (94) of the
Impac Agreement; (F) Sections 7.01 and 7.02 of the Ownit Agreement; (G)
Sections 7.01 and 7.02 of the Lime Agreement; (H) Sections 7.01 and 7.02 of
the Lime HELOC Agreement; (I) Sections 7.01 and 7.02 of the Maribella
Agreement; (J) Sections 7.01 and 7.02 of the FMF Agreement; (K) Sections
7.01 and 7.02 of the MILA Agreement; (L) Sections 7.01 and 7.02 of the
NetBank Agreement; (M) Sections 7.01 and 7.02 of the IXIS Agreement; (N)
the Option One Agreement, which are not contained in the Exhibit A to the
Bring Down Letter related to Option One Mortgage Corporation; (O) Sections
7.01 and 7.02 of the Quicken Agreement; (P) Sections 7.01 and 7.02 of the
Secured Funding Agreement; and (Q) Sections 7.01 and 7.02 of the Sierra
Pacific Agreement, are hereby restated by the Seller as of the Closing
Date;
(v) The representation and warranties contained in (A) Sections 6.01
(provided that the representations and warranties set forth in Sections
6.01 (a), (c), (g), (h), (i), (j), (k), (n), (q), (u), (x), (y), (ff),
(jj), (nn), (pp) with respect to the servicing only and (qq) are made of
the Servicing Transfer Date) and 6.02 of the CitiMortgage Agreement; (B)
Sections 7.01 and 7.02 of the Decision One Agreement; (C) Sections 7.01 and
7.02 of the Fieldstone Agreement; (D) Sections 3.01 and 3.02 of the First
Horizon Agreement and Exhibit 3 of the related trade confirmations; (E)
Sections 7.01 and 7.02 of the Fremont Agreement (provided that the
representations and warranties set forth in Subsection 7.02 of the
Agreement, clauses (1), (2), (3), (4), (5), (7), (8) (to the extent such
representation relates to a successor servicer), (9), (19), (26) (excluding
the first sentence thereof), (34), (36), (44) and (49) are being made as of
the Closing Date, as such term is defined in the Fremont Agreement and the
representation and warranty set forth in Subsection 7.02 of the Agreement,
clause (25) is made as of the date hereof but is qualified "to the best of
the Seller's knowledge."); (F) Sections 7.01 and Subsections 7.02 (10),
(11), (12), (13), (14), (15), (18), (20), (23), (27), (28), (29), (30),
(32), (33), (37),
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(39), (40), (41), (43), (45) through (70), (72), (73), (74), (76) through
(80), (83) through (86), (90) and (91) of the Impac Agreement; (G) Sections
7.01 and 7.02 of the NC Capital Agreement; and (H) Exhibit A of the Bring
Down Letter related to Option One Mortgage Corporation, are incorporated
herein by reference as of the Closing Date.
(vi) 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;
(vii) 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;
(viii) 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
(ix) 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 a Originator in the applicable
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 hereby
indemnifies and holds the Issuing Entity, the Indenture Trustee, the Depositor,
the Master Servicer, each Servicer and each Securityholder 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 Issuing Entity, the Indenture Trustee, the Depositor, the Master Servicer,
each Servicer and any Securityholder 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 Section 2.03 of the Servicing Agreement and this
Agreement, to the extent that any such action causes (i) any federal or state
tax to be imposed on the Issuing Entity or any REMIC provided for in the
Indenture, 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 Indenture to fail to qualify as a REMIC at any time that any Security is
outstanding.
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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 Issuing Entity, and the Issuing Entity 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 Issuing Entity.
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 Securities, the Issuing Entity, the
Servicing 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 Indenture 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 Securities
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(and any Opinion of Counsel requested by the Indenture 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 Principal Amount (or Percentage Interest) of each Class of Securities
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 Security
without the consent of the Holder of such Security or (ii) reduce the aforesaid
percentages of Class Principal Amount (or Percentage Interest) of Securities 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 Securities 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 Securities, the related Security
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
Indenture 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.
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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]
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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 LENDING, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT A-1
TRANSFER AGREEMENTS
1. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
October 1, 2005 (the "BayRock Agreement"), between Xxxxxxx Xxxxx Mortgage
Lending, Inc., as initial purchaser, and BayRock Mortgage Corporation, as
seller and interim servicer.
2. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
November 1, 2005 (the "CitiMortgage Agreement"), between Xxxxxxx Xxxxx
Mortgage Lending, Inc., as initial purchaser, and CitiMortgage, Inc., as
seller and interim servicer.
3. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
January 1, 2004 (the "Decision One Agreement"), by and between Xxxxxxx
Xxxxx Mortgage Lending, Inc., as initial purchaser and Decision One
Mortgage Company, LLC, as seller and interim servicer.
4. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
April 1, 2006 (the "Fieldstone Agreement"), among Xxxxxxx Xxxxx Mortgage
Lending, Inc., as initial purchaser, Fieldstone Mortgage Company, as seller
and interim servicer.
5. Master Seller's Warranties and Servicing Agreement, dated as of March 1,
2005 (the "First Horizon Agreement"), as amended, and the trade
confirmations dated as of November 9, 2005 and January 6, 2006, each
between Xxxxxxx Xxxxx Mortgage Lending, Inc., as initial purchaser, and
First Horizon Home Loan Corporation, as seller and interim servicer.
6. Master Mortgage Loan Purchase Agreement, dated as of April 1, 2006 (the
"First NLC Agreement"), among Xxxxxxx Xxxxx Mortgage Lending, Inc., as
initial purchaser, First NLC Financial Services, LLC, as seller and interim
servicer.
7. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
March 1, 2005 (the "Fremont Agreement"), among Xxxxxxx Xxxxx Mortgage
Capital Inc., Xxxxxxx Xxxxx Mortgage Lending, Inc., each as initial
purchaser, and Fremont Investment & Loan, as seller and interim servicer,
as amended.
8. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
May 1, 2005 (the "Impac Agreement"), between Xxxxxxx Xxxxx Mortgage
Lending, Inc., as initial purchaser, and Impac Funding Corporation, as
seller and interim servicer.
9. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
April 1, 2005 (the "Ownit Agreement"), by and between Xxxxxxx Xxxxx
Mortgage Lending, Inc., as initial purchaser, and Ownit Mortgage Solutions,
Inc., as seller and interim servicer.
10. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
April 1, 2005 (the "Lime Agreement"), between Xxxxxxx Xxxxx Mortgage
Lending, Inc., as initial purchaser, and Lime Financial Services, Ltd., as
seller and interim servicer.
11. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
October 1, 2005 (the "Lime HELOC Agreement"), between Xxxxxxx Xxxxx Credit
Corporation, as initial purchaser, and Lime Financial Services, Ltd., as
seller and interim servicer. (HELOCs)
12. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
December 1, 2005 (the "Maribella Agreement"), between Xxxxxxx Xxxxx
Mortgage Lending, Inc., as initial purchaser, and Maribella Mortgage, LLC,
as seller and interim servicer.
13. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
May 1, 2005 (the "FMF Agreement"), among Xxxxxxx Xxxxx Mortgage Lending,
Inc., as initial purchaser, FMF Capital LLC, as seller, and Michigan
Fidelity Acceptance Corporation, as seller and interim servicer.
14. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
January 1, 2004 (the "MILA Agreement"), by and between Xxxxxxx Xxxxx
Mortgage Capital Inc., as initial purchaser and MILA, Inc., as seller and
interim servicer, as amended.
15. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
May 1, 2005 (the "NetBank Agreement"), between Xxxxxxx Xxxxx Mortgage
Lending, Inc., as initial purchaser, and NetBank, as seller and interim
servicer.
16. Amended and Restated Master Mortgage Loan Purchase and Interim Servicing
Agreement, dated as of March 1, 2002, as amended August 1, 2004 (the "NC
Capital Agreement"), among Xxxxxxx Xxxxx Mortgage Capital Inc., as initial
purchaser, NC Capital Corporation, as seller and New Century Mortgage
Corporation, as interim servicer.
17. Master Mortgage Loan Purchase Agreement, dated as of November 1, 2004 (the
"IXIS Agreement"), between Xxxxxxx Xxxxx Mortgage Capital Inc., as initial
purchaser, and IXIS Real Estate Capital Inc., as seller.
18. Master Mortgage Loan Purchase and Servicing Agreement dated as of April 1,
2005 (the "Option One Agreement"), among Xxxxxxx Xxxxx Mortgage Lending,
Inc., as purchaser, Option One Mortgage Corporation, as seller and
servicer, and the Seller Trusts, as sellers, as amended.
19. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
August 1, 2005 (the "Quicken Agreement"), between Xxxxxxx Xxxxx Mortgage
Lending, Inc., as initial purchaser, and Quicken Loans Inc., as seller and
interim servicer.
20. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
January 1, 2006 (the "Secured Funding Agreement"), between Xxxxxxx Xxxxx
Credit Corporation, as initial purchaser, and Secured Funding Corporation,
as seller and interim servicer.
21. Master Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
December 1, 2005 (the "Sierra Pacific Agreement"), between Xxxxxxx Xxxxx
Mortgage Lending, Inc., as initial purchaser, and Sierra Pacific Mortgage
Company, Inc., as seller and interim servicer.
EXHIBIT A-2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENTS
1. Assignment and Assumption Agreement, dated August 8, 2006, between Xxxxxxx
Xxxxx Mortgage Capital Inc. and Xxxxxxx Xxxxx Mortgage Lending, Inc. and
acknowledged by IXIS Real Estate Capital Inc.
2. Assignment and Assumption Agreement, dated August 8, 2006, between Xxxxxxx
Xxxxx Mortgage Capital Inc. and Xxxxxxx Xxxxx Mortgage Lending, Inc. and
acknowledged by MILA, Inc.
3. Assignment and Assumption Agreement, dated August 8, 2006, between Xxxxxxx
Xxxxx Mortgage Capital Inc. and Xxxxxxx Xxxxx Mortgage Lending, Inc. and
acknowledged by NC Capital Corporation and New Century Mortgage
Corporation.
4. Assignment and Assumption Agreement, dated August 8, 2006, between Xxxxxxx
Xxxxx Mortgage Capital Inc. and Xxxxxxx Xxxxx Mortgage Lending, Inc. and
acknowledged by Secured Funding Corporation.
EXHIBIT B
ORIGINATORS
1. Bayrock Mortgage Corporation
2. CitiMortgage, Inc.
3. Decision One Mortgage Company, LLC
4. Fieldstone Mortgage Company
5. First Horizon Home Loan Corporation
6. First NLC Financial Services, LLC
7. Fremont Investment & Loan
8. Impac Funding Corporation
9. Ownit Mortgage Solutions, Inc.
10. Lime Financial Services, Inc.
11. Maribella Mortgage, LLC
12. Michigan Fidelity Acceptance Corporation and FMF Capital LLC
13. MILA, Inc.
14. NetBank
15. NC Capital Corporation
16. IXIS Real Estate Capital Inc.
17. Option One Mortgage Corporation
18. Quicken Loans Inc.
19. Secured Funding Corporation
20. Sierra Pacific Mortgage Company, Inc.
SCHEDULE A
MORTGAGE LOAN SCHEDULE
