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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 April 1, 2006
Xxxxxxx Xxxxx Mortgage Investors Trust
(Mortgage Loan Asset-Backed Certificates, Series 2006-AR1)
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This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of April 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 that certain Pooling and Servicing Agreement (the
"Pooling Agreement"), dated as of April 1, 2006, among the Depositor, LaSalle
Bank National Association, as trustee (the "Trustee") and Wilshire Credit
Corporation, as servicer (the "Servicer").
WITNESSETH:
WHEREAS, pursuant to the Mortgage Loan Purchase and Interim Servicing
Agreement, dated as of June 24, 2005, as amended (the "Transfer Agreement"), by
and between Xxxxxxx Xxxxx Mortgage Lending, Inc., as initial purchaser, and
Ameriquest Mortgage Company ("Ameriquest" or the "Transferor") , 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,
dated as of April 27, 2006 provided by Ameriquest to the Seller (the "Bring Down
Letter") and by that certain terms agreement between the Seller and the
Transferor, dated as of March 6, 2006 (the "Term Sheet");
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, the Bring Down Letter and the
Term Sheet, 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 $678,821,101. 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 April 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 Agreement, the Bring Down Letter and the Term Sheet, other than any
servicing rights retained pursuant to the provisions of the Transfer Agreement,
the Bring Down Letter and the Term Sheet, to the extent relating to the Mortgage
Loans. Concurrently with the execution hereof, the Depositor tenders the
purchase price of $678,821,101. The Depositor hereby accepts such assignment,
and shall be entitled to exercise all such rights of the Seller under the
Transfer Agreement, the Bring Down Letter and the Term Sheet, 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 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 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 the Transferor under the Transfer Agreement, Bring Down Letter or
the Term Sheet 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)(vi) and 1.04(b)(vii)) 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)(vi) and
1.04(b)(vii) 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)(vi) and 1.04(b)(vii)) 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, Bring Down Letter or
Term Sheet. 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, Bring Down Letter or Term Sheet, 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, the Bring Down
Letter and the Term Sheet 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 April 27, 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 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 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;
(v) 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;
(vi) 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
(vii) 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, Bring Down Letter or Term Sheet, 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 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 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.
In addition to the representations and warranties of the Transferor in the
Transfer Agreement that were brought forward to the Closing Date pursuant to the
Bring Down Letter, with respect to each Mortgage Loan, the Transferor made
certain additional covenants regarding such Mortgage Loan, as set forth in the
Transfer Agreement and the Term Sheet. With respect to any breach of such
additional covenants that materially and adversely affects the interests of the
Certificateholders in such Mortgage Loan, the Seller shall (1) use reasonable
efforts to enforce such covenant against the Transferor and (2) if the Seller
successfully enforces any obligation of the Transferor to repurchase such
Mortgage Loan, the Seller shall repurchase such Mortgage Loan in accordance with
this Section 1.04. If the Seller does not successfully enforce the obligation,
if any, of the Transferor to repurchase a Mortgage Loan with respect to any
breach of any such additional covenants, the Seller shall have no obligation or
right to repurchase or cure such Mortgage Loan.
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
LENDING, INC.
By:
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Name:
----------------------------------
Title:
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XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By:
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Name:
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Title:
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SCHEDULE A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
