Exhibit 99.1
EXECUTION COPY
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XXXXXXX XXXXX MORTGAGE LENDING, INC.,
SPONSOR
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of October 1, 2006
Xxxxxxx Xxxxx Mortgage Investors Trust
(Mortgage Pass-Through Certificates Series MLCC 2006-3)
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THIS MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of October 1,
2006 (the "Agreement"), is executed by and between Xxxxxxx Xxxxx Mortgage
Lending, Inc. (the "Sponsor") 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 dated as
of October 1, 2006 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx
Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor"), HSBC Bank USA,
National Association, as trustee (the "Trustee"), Xxxxx Fargo Bank, N.A., as
master servicer and securities administrator ("Master Servicer"), and PHH
Mortgage Corporation, as a servicer.
WITNESSETH:
WHEREAS, pursuant to the Transfer Agreements (as defined in Schedule A),
the Sponsor has purchased or received from the Transferors (as defined in
Schedule A) certain mortgage loans identified on the Mortgage Loan Schedule
attached hereto as Schedule B (the "Mortgage Loans");
WHEREAS, the Sponsor 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 delegate all of its
obligations thereunder to the Depositor; and
WHEREAS, the Sponsor 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 Sponsor 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 Sponsor 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 Sponsor in and
to the Mortgage Loans identified on Schedule B hereto, having an aggregate
stated principal balance as of the Cut-off Date of approximately $537,919,898.
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 October 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 Sponsor'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 Sponsor's rights under any
Insurance Policies related to the Mortgage Loans, and the Sponsor'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 Sponsor
hereby assigns to the Depositor all of its rights and interest under the
Transfer Agreements, other than any servicing rights retained pursuant to the
provisions of each Transfer Agreement, to the extent relating to the Mortgage
Loans. Concurrently with the execution hereof, the Depositor tenders the
purchase price of $[intentionally omitted]. The Depositor hereby accepts such
assignment, and shall be entitled to exercise all such rights of the Sponsor
under the Transfer Agreements, 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 Sponsor 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.
For Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Sponsor, 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 Master 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 Sponsor 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 Sponsor.
(a) The Sponsor hereby represents and warrants to the Depositor that as of
the date hereof that:
(i) The Sponsor 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 Sponsor of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Sponsor; 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
Sponsor or its properties or the federal stock charter or bylaws of the
Sponsor;
(iii) The execution, delivery and performance by the Sponsor 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
Sponsor and, assuming due authorization, execution and delivery by the
Depositor, constitutes a valid and binding obligation of the Sponsor
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 Sponsor, threatened or likely to be asserted against or
affecting the Sponsor, 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 Sponsor will be determined adversely to the
Sponsor and will if determined adversely to the Sponsor 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 Transferors with respect to
each Mortgage Loan contained in the related Transfer Agreements were made as of
the date of the transfer of each such Mortgage Loan to the Depositor. To the
extent that any fact, condition or event with respect to a Mortgage Loan
constitutes a breach of both (i) the representations or warranties of the
related Transferor under the related Transfer Agreement, and (ii) a
representation or warranty of the Sponsor under this Agreement, the sole right
or remedy of the Depositor with respect to a breach by the Sponsor of such
representation and warranty (other than a breach by the Sponsor 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 Transferors
under the applicable representation or warranty made the Transferors. The
representations made by the Sponsor pursuant to Sections 1.04(b)(vi) and
1.04(b)(vii) shall be direct obligations of the Sponsor. The Depositor
acknowledges and agrees that the representations and warranties of the Sponsor
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 related Transferor under the related Transfer Agreement.
The Sponsor 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 related Transferor in the related
Transfer Agreement, without regard to
whether such Transferor fulfills its respective contractual obligations in
respect of such representations or warranties; provided, however, that if such
Transferor fulfills its respective obligations under the related Transfer
Agreement by substituting for the affected Mortgage Loan a mortgage loan which
is not a Replacement Mortgage Loan, the Sponsor 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 Sponsor represents and warrants
upon delivery of the Mortgage Loans to the Depositor hereunder, as to each, that
as of October 30, 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 (x) a single fixed rate in effect throughout the term
of the Mortgage Loan or (y) 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 Sponsor 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
most current Standard & Poor's LEVELS(R) Glossary, 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.
(viii) There is no Mortgage Loan in the Trust Fund that was originated
on or after October 1, 2002 and before March 7, 2003, which is secured by
property located in the State of Georgia. There is no Mortgage Loan in the
Trust Fund that was originated on or after March 7, 2003, which is a "high
cost home loan" as defined under the Georgia Fair Lending Act;
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 Sponsor 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 related Transferor in the related
Transfer Agreement, 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 Sponsor 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 Sponsor indemnifies and holds the Trust Fund, the
Trustee, the Depositor, the Master Servicer and each Certificate holder 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 Master Servicer
and any Certificateholder may sustain in connection with any actions of the
Sponsor relating to a repurchase of a Mortgage Loan other than in compliance
with the terms 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
Sponsor'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: (i) the rights and obligations of the parties shall be established
pursuant to the terms of this Agreement; (ii) the Sponsor hereby grants to the
Depositor a first priority security interest in all of the Sponsor's right,
title and interest in, to and under, whether now owned or hereafter acquired,
such Mortgage Loans and other property; and (iii) 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 Sponsor, 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 Sponsor 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 the Offering Document, as defined in the Pooling
Agreement; 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 Sponsor 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 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 Sponsor 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:
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Title:
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XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:
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Name: Xxxx Park
Title: Authorized Signatory
SCHEDULE A
TRANSFERORS AND TRANSFER AGREEMENTS
1. Master Mortgage Loan Purchase Agreement (the " MLCC Purchase Agreement"),
dated as of August 1, 2004, as amended, by and between the Sponsor, as
purchaser, and Xxxxxxx Xxxxx Credit Corporation, as seller (the "MLCC").
2. Seller's Warranties and Servicing Agreement (WFHM Mortgage Loan Series
2006-W60), dated as of July 1, 2006 (the "WFB Purchase Agreement," and,
together with the MLCC Purchase Agreement, the "Transfer Agreements"),
between the Sponsor as purchaser, and Xxxxx Fargo Bank, N.A. (together with
MLCC, the "Transferors").
SCHEDULE B
MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
2
