MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT

 

 

 

                                                                  EXECUTION COPY

 

 

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                    WACHOVIA BANK, NATIONAL ASSOCIATION,

 

                                    SELLER

 

 

                                     and

 

 

                     WACHOVIA MORTGAGE LOAN TRUST, LLC,

 

                                  PURCHASER

 

 

 

                 MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT

 

                        Dated as of September 1, 2005

 

 

 

                      Wachovia Mortgage Loan Trust, LLC

         (Mortgage Loan Asset-Backed Certificates, Series 2005-WMC1)

 

 

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      This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of September 1,

2005 (the "Agreement"), is executed by and between Wachovia Bank, National

Association (the "Seller") and Wachovia Mortgage Loan Trust, LLC (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 September 1, 2005, among the Depositor, U.S.

Bank National Association, as trustee (the "Trustee") and HomEq Servicing

Corporation, as servicer (the "Servicer").

 

                              W I T N E S S E T H:

                              -------------------

 

      WHEREAS, pursuant to the Mortgage Loan Purchase and Interim Servicing

Agreement, dated as of August 30, 2005, 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 September 29, 2005 among WMC, the Seller and the Servicer

(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 $715,020,746.47. Such conveyance

includes, without limitation, the right to all distributions of principal and

interest received on or

 

 

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with respect to the Mortgage Loans on or after September 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 (i) tenders the purchase price of [INTENTIONALLY

OMITTED] and (ii) shall cause the Class R Certificate to be registered in the

name of and delivered to the Seller. 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:

 

 

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              (i)      The Seller is a national banking association, validly

      existing and in good standing under the laws of the United States of

      America 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 ex