EXHIBIT 99.1
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST
SERIES MLCC 2004-B
MORTGAGE PASS-THROUGH CERTIFICATES
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
Between
XXXXXXX XXXXX CREDIT CORPORATION
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
dated as of May 1, 2004
TABLE OF CONTENTS
PAGE
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Section 1. Definitions.......................................................................... 1
Section 2. Representations and Warranties of MLCC and MLMI...................................... 2
Section 3. Additional Representations, Warranties and Agreements of MLCC........................ 3
Section 4. Conveyance of Mortgage Loans......................................................... 9
Section 5. Intention of Parties................................................................. 10
Section 6. Servicing of Additional Collateral Mortgage Loans.................................... 10
Section 7. Termination.......................................................................... 11
Section 8. Miscellaneous........................................................................ 12
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MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (the "Agreement") is
made as of May 1, 2004, by and between Xxxxxxx Xxxxx Credit Corporation, a
Delaware corporation ("MLCC") and Xxxxxxx Xxxxx Mortgage Investors, Inc., a
Delaware corporation ("MLMI").
WHEREAS, the parties hereto desire to provide for the purchase and sale
of the Mortgage Loans on the Closing Date (as defined in the Pooling and
Servicing Agreement, dated as of May 1, 2004 (the "Pooling and Servicing
Agreement") among MLMI, as depositor, Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"), Cendant Mortgage Corporation, as servicer (the "Servicer") and
acknowledged by MLCC, as seller (the "Seller")) (the "Mortgage Loans"), in
accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the parties in consideration of good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, hereby agree as follows:
Section 1. Definitions.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meaning
specified in this Article. Capitalized terms not otherwise defined herein have
the meanings ascribed to such terms in the Pooling and Servicing Agreement.
Additional Collateral: (i) With respect to any Mortgage 100(sm) Loan,
the Securities Account and the financial assets held therein subject to a
security interest pursuant to the related Mortgage 100(sm) Pledge Agreement, or
(ii) with respect to any Parent Power(R) Mortgage Loan, the related Parent
Power(R) Agreement.
Additional Collateral Mortgage Loan: Each Mortgage Loan, as identified
on the Mortgage Loan Schedule, as to which Additional Collateral was required to
be provided at the closing thereof.
Control Agreement: With respect to each Mortgage 100(sm) Loan, the
Xxxxxxx Xxxxx Pledged Collateral Account Control Agreement between the Guarantor
or Mortgagor, as applicable, the Seller and Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated, pursuant to which the Guarantor or Mortgagor, as applicable,
has granted a security interest to the Seller in a Securities Account.
Guarantor: Any Person who has guaranteed payment of a Mortgage Loan
pursuant to a Parent Power(R)Agreement.
Mortgage 100(sm) Loan: A Mortgage Loan secured by Additional Collateral
in the form of a security interest in the Securities Account and the financial
assets held therein and having a value, as of the date of origination of such
Mortgage Loan, of at least equal to the related Original Additional Collateral
Requirement.
Mortgage 100(sm) Pledge Agreement: With respect to each Mortgage
100(sm) Loan, the Pledge Agreement for Securities Account between the related
Mortgagor and MLCC pursuant to which such Mortgagor granted a security interest
in the related securities and other financial assets held therein.
Original Additional Collateral Requirement: With respect to any
Additional Collateral Mortgage Loan, generally 30 percent of the original
principal balance of such Mortgage Loan or such lesser percentage thereof as is
specified by MLCC in connection with the origination of such Additional
Collateral Mortgage Loan.
Parent Power(R)Agreement: With respect to each Parent Power(R)Mortgage
Loan, a Parent Power(R)Guaranty and Security Agreement for Securities Account.
Parent Power(R) Guaranty and Security Agreement for Securities Account:
With respect to a Parent Power(R) Mortgage Loan, an agreement between the Seller
and a guarantor on behalf of the Mortgagor under such Parent Power(R) Mortgage
Loan pursuant to which such guarantor guarantees the payment of certain losses
under such Parent Power(R) Mortgage Loan and has granted a security interest to
the Seller in certain marketable securities to collateralize such guaranty. The
required amount of such collateral is at least equal to the Original Additional
Collateral Requirement for such Parent Power(R) Mortgage Loan.
Parent Power(R) Mortgage Loan: A Mortgage Loan having at the time of
origination a Loan-to-Value Ratio generally in excess of the Seller's maximum
acceptable Loan-to-Value Ratio for such Mortgage Loan as set forth in the
Underwriting Standards, which Mortgage Loan is supported by a Parent Power(R)
Agreement.
Pledge Agreement: Any Mortgage 100(sm) Pledge Agreement or Parent
Power(R)Guaranty and Security Agreement for Securities Account related to an
Additional Collateral Mortgage Loan.
Securities Account: With respect to any Additional Collateral Mortgage
Loans, the account, together with the financial assets held therein, that are
the subject of the related Pledge Agreement.
Support Agreement: That certain Support Agreement dated as of February
28, 1996 between Xxxxxxx Xxxxx & Co., Inc. and the Seller and acknowledged by
the Surety Bond Issuer.
Surety Agreement: That certain Surety Bond Reimbursement Agreement, as
amended, dated as of February 28, 1996 between the Seller and the Surety Bond
Issuer.
Surety Bond means the limited purpose surety bond (Policy No.
AB0039BE), dated February 28, 1996 in respect to Mortgage Loans originated by
the Seller, issued by the Surety Bond Issuer for the benefit of certain
beneficiaries, but only to the extent that such Surety Bond covers any
Additional Collateral Mortgage Loan.
Surety Bond Issuer: means Ambac Assurance Corporation (f/k/a Ambac
Indemnity Corporation), or any successor thereto.
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Section 2. Representations and Warranties of MLCC and MLMI. MLCC and
MLMI, each as to itself and not the other, hereby represents, warrants and
agrees for the benefit of the other party that:
(a) Authorization. The execution, delivery and performance of this
Agreement by it are within its respective powers and have been duly authorized
by all necessary action on its part.
(b) No Conflict. The execution, delivery and performance of this
Agreement will not violate or conflict with (i) its charter or bylaws, (ii) any
resolution or other corporate action by it, or (iii) any decisions, statutes,
ordinances, rulings, directions, rules, regulations, orders, writs, decrees,
injunctions, permits, certificates or other requirements of any court or other
governmental or public authority in any way applicable to or binding upon it,
and will not result in or require the creation, except as provided in or
contemplated by this Agreement, of any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind upon the Mortgage Loans.
(c) Binding Obligation. This Agreement has been duly executed by
it and is its legally valid and binding obligation, enforceable against it in
accordance with this Agreement's terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity.
Section 3. Additional Representations, Warranties and Agreements of
MLCC.
(a) MLCC represents and warrants to, and agrees with, MLMI that
(i) on the Closing Date, MLCC will have good, valid and marketable title to the
Mortgage Loans that are identified in Schedule A to the Pooling and Servicing
Agreement and the contractual rights with respect to the Mortgage Loans under
the Servicing Agreement in each case free and clear of all liens, mortgages,
deeds of trust, pledges, security interests, charges, encumbrances or other
claims; and (ii) upon transfer to MLMI, MLMI will receive good, valid and
marketable title to all of the Mortgage Loans and will receive all of MLCC's
contractual rights and obligations under the Servicing Agreement, in each case
free and clear of any liens, mortgages, deeds of trust, pledges, security
interests, charges, encumbrances or other claims.
(b) MLCC hereby makes the representations and warranties as to the
Mortgage Loans for the benefit of MLMI and the Trustee:
(i) The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the Cut-off
Date;
(ii) As of the related Closing Date, the Mortgage Loan is
not delinquent in payment more than 30 days and the Mortgage Loan has
not been dishonored; there are no material defaults under the terms of
the Mortgage Loan; MLCC has not advanced funds, or induced, solicited
or knowingly received any advance of funds from a party other than the
owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage
Loan;
(iii) To the best of MLCC's knowledge, with respect to
those Mortgage Loans as to which the Mortgagors are required to deposit
funds into an escrow account for
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payment of taxes, assessments, insurance premiums and similar items as
they become due, there are no delinquent taxes, ground rents, water
charges, sewer rents, assessments or other outstanding charges which
constitute a lien on the related Mortgaged Property, and all escrow
deposits have been collected, are under the control of the Servicer,
and have been applied to the payment of such items in a timely fashion,
in accordance with such Mortgage. No escrow deposits or escrow payments
or other charges or payments due the Servicer have been capitalized
under the related Mortgage or Mortgage Note. With respect to those
Mortgage Loans for which escrow deposits are not required, to the best
of MLCC's knowledge, there are no delinquent taxes or other outstanding
charges affecting the related Mortgaged Property which constitute a
lien on the related Mortgaged Property;
(iv) The terms of the Mortgage Note and the Mortgage have
not been impaired, waived, altered or modified in any respect, except
by written instruments contained in the Mortgage File, approved, if
necessary, by the insurer under any Primary Mortgage Insurance Policy
and recorded in all places necessary to maintain the first priority of
the lien, the substance of which waiver, alteration or modification is
reflected on the Mortgage Loan Schedule. No Mortgagor has been
released, in whole or in part, except in connection with an assumption
agreement which assumption agreement is part of the Mortgage File and
the terms of which are reflected in the Mortgage Loan Schedule;
(v) Neither the Mortgage Note nor the Mortgage is subject
to any right of rescission, set-off, counterclaim or defense, including
the defense of usury, nor will the operation of any of the terms of the
Mortgage Note and the Mortgage, or the exercise of any right
thereunder, render the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury and to the best of MLCC's knowledge, no
such right of rescission, set-off, counterclaim or defense has been
asserted by any Person with respect thereto;
(vi) All buildings upon the Mortgaged Property are
required to be insured by a generally acceptable insurer against loss
by fire, hazards of extended coverage and such other hazards as are
customarily included in extended coverage in the area where the
Mortgaged Property is located, pursuant to standard hazard insurance
policies in an amount which is equal to the lesser of (A) the
replacement cost of the improvements securing such Mortgage Loan or (B)
the principal balance owing on such Mortgage Loan. To the best
knowledge of MLCC, all such standard hazard policies are in effect. On
the date of origination, such standard hazard policies contained a
standard mortgagee clause naming MLCC or the originator of the Mortgage
Loan and their respective successors in interest as mortgagee and, to
the best knowledge of MLCC, such clause is still in effect and, to the
best of MLCC's knowledge, all premiums due thereon have been paid. If
the Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency as having special flood hazards under the
National Flood Insurance Act of 1994, as amended, such Mortgaged
Property is covered by flood insurance in the amount required under the
National Flood Insurance Act of 1994. The Mortgage obligates the
Mortgagor thereunder to maintain all such insurance at Mortgagor's cost
and expense, and on the Mortgagor's failure to do so, authorizes the
holder of the
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Mortgage to maintain such insurance at Mortgagor's cost and expense and
to seek reimbursement therefor from the Mortgagor;
(vii) To the best of MLCC's knowledge, at the time of
origination of such Mortgage Loan and thereafter, all requirements of
any federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws required to be
complied with by MLCC as the originator of the Mortgage Loan and
applicable to the Mortgage Loan have been complied with in all material
respects;
(viii) The Mortgage has not been satisfied as of the Closing
Date, canceled or subordinated, in whole, or rescinded, and the
Mortgaged Property has not been released from the lien of the Mortgage,
in whole or in part (except for a release that does not materially
impair the security of the Mortgage Loan or a release the effect of
which is reflected in the Loan-to-Value Ratio for the Mortgage Loan as
set forth in the Mortgage Loan Schedule), nor to the best of MLCC's
knowledge has any instrument been executed that would effect any such
release, cancellation, subordination or rescission;
(ix) Ownership of the Mortgaged Property is held in fee
simple or a leasehold estate. With respect to Mortgage Loans that are
secured by a leasehold estate, (i) the lease is valid, in full force
and effect, and conforms to all of FNMA's requirements for leasehold
estates; (ii) all rents and other payments due under the lease have
been paid; (iii) the lessee is not in default under any provision of
the lease; (iv) the term of the lease exceeds the maturity date of the
related Mortgage Loan by at least five (5) years; and (v) the terms of
the lease provide a Mortgagee with an opportunity to cure any defaults.
Except as permitted by the fourth sentence of this paragraph (i), the
Mortgage is a valid, subsisting and enforceable first lien on the
Mortgaged Property, including all buildings on the Mortgaged Property
and all installations and mechanical, electrical, plumbing, heating and
air conditioning systems affixed to such buildings, and all additions,
alterations and replacements made at any time with respect to the
foregoing securing the Mortgage Note's original principal balance. The
Mortgage and the Mortgage Note do not contain any evidence on their
face of any security interest or other interest or right thereto. Such
lien is free and clear of all adverse claims, liens and encumbrances
having priority over the first lien of the Mortgage subject only to (1)
the lien of non-delinquent current real property taxes and assessments
not yet due and payable, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of the public record as of
the date of recording which are acceptable to mortgage lending
institutions generally, or which are specifically referred to in the
lender's title insurance policy delivered to the originator of the
Mortgage Loan and either (A) which are referred to or otherwise
considered in the appraisal made for the originator of the Mortgage
Loan, or (B) which do not in the aggregate adversely affect the
appraised value of the Mortgaged Property as set forth in such
appraisal, and (3) other matters to which like properties are commonly
subject which do not in the aggregate materially interfere with the
benefits of the security intended to be provided by the Mortgage or the
use, enjoyment, value or marketability of the related Mortgaged
Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting and enforceable first lien
and first priority security interest on the property described therein.
With respect to each Co-
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op Loan, the security instruments create a valid, enforceable and
subsisting first priority security interest in the Co-op Lease and
Co-op Stock securing the related Mortgage Note subject to only to (a)
the lien of the related cooperative for unpaid assessments representing
the Mortgagor's pro rata share of payments for a blanket mortgage, if
any, current and future real property taxes, insurance premiums,
maintenance fees and other assessments to which like collateral is
commonly subject, and (b) other matters to which the collateral is
commonly subject which do not materially interfere with the benefits of
the security intended to be provided; provided, however, that the
related Co-op Loan may be subordinated or otherwise subject to the lien
of a Mortgage on the cooperative building;
(x) The Mortgage Note is not subject to a third party's
security interest or other rights or interest therein;
(xi) The Mortgage Note and the related Mortgage are
genuine and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms subject to
bankruptcy, insolvency and other laws of general application affecting
the rights of creditors. All parties to the Mortgage Note and the
Mortgage had the legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note and the Mortgage. The Mortgage
Note and the Mortgage have been duly and properly executed by such
parties. The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and
all requirements as to completion of any on-site or off-site
improvements and as to disbursements of any escrow funds therefor have
been complied with;
(xii) MLCC has good title to, and the full right to
transfer and sell, the Mortgage Loan free and clear of any encumbrance,
equity, lien, pledge, charge, claim or security interest, including, to
the best knowledge of MLCC, any lien, claim or other interest arising
by operation of law;
(xiii) To the best of MLCC's knowledge, each Mortgage Loan
is covered by an ALTA lender's title insurance policy or other
generally acceptable form of policy or insurance acceptable to FNMA or
FHLMC, issued by a title insurer acceptable to FNMA or FHLMC and
qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained in
paragraph (ix)(1) (2) and (3) above) MLCC, its successors and assigns,
as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan. To the best of MLCC's knowledge, MLCC is
the sole insured of such lender's title insurance policy, such title
insurance policy has been duly and validly endorsed to the purchaser or
the assignment to the purchaser of MLCC's interest therein does not
require the consent of or notification to the insurer and such lender's
title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated
by this Agreement. To the best of MLCC's knowledge, no claims have been
made under such lender's title insurance policy, and no prior holder of
the related Mortgage has done, by act or omission, anything which would
impair the coverage of such lender's title insurance policy;
(xiv) To the best of MLCC's knowledge, there is no default,
breach, violation or event of acceleration existing under the Mortgage
or the related Mortgage Note and no
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event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach,
violation or event permitting acceleration, except for any Mortgage
Loan payment which is not late by more than 30 days, and MLCC has not
waived any default, breach, violation or event permitting acceleration;
(xv) To the best of MLCC's knowledge, there are no
mechanics' or similar liens or claims which have been filed for work,
labor or material (and, to the best of MLCC's knowledge, no rights are
outstanding that under law could give rise to such lien) affecting the
related Mortgaged Property which are or may be liens prior to, or equal
or coordinate with, the lien of the related Mortgage;
(xvi) To the best of MLCC's knowledge, all improvements
subject to the Mortgage, lay wholly within the boundaries and building
restriction lines of the Mortgaged Property (and wholly within the
project with respect to a condominium unit) and no improvements on
adjoining properties encroach upon the Mortgaged Property except those
which are insured against by the title insurance policy referred to in
paragraph (xiii) above and all improvements on the property comply with
all applicable zoning and subdivision laws and ordinances;
(xvii) To the best of MLCC's knowledge, each Mortgage Loan
was originated by MLCC or by a savings association, a savings bank, a
commercial bank or similar banking institution that is supervised and
examined by a Federal or state banking authority, a mortgagee approved
by the Secretary of HUD pursuant to Section 203 and 211 of the National
Housing Act, or a FNMA- or FHLMC-approved seller. To the best of MLCC's
knowledge, each Mortgage Loan was underwritten generally in accordance
with the Underwriting Standards as in effect at the time of
origination. To the best of MLCC's knowledge, the Mortgage contains the
usual and customary provision of MLCC at the time of origination for
the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if the related Mortgaged Property is sold without the
prior consent of the mortgagee thereunder;
(xviii) The Mortgaged Property at origination or acquisition
was and, to the best of MLCC's knowledge, currently is free of material
damage and waste and at origination there was, and to the best of
MLCC's knowledge there currently is, no proceeding pending for the
total or partial condemnation thereof;
(xix) The related Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged
Property of the benefits of the security provided thereby, including,
(1) in the case of a Mortgage designated as a deed of trust, by
trustee's sale or judicial foreclosure, and (2) otherwise by judicial
foreclosure. MLCC has no knowledge of any homestead or other exemption
available to the Mortgagor which would interfere with the right to sell
the Mortgaged Property at a trustee's sale or the right to foreclose
the Mortgage;
(xx) To the best of MLCC's knowledge, if the Mortgage
constitutes a deed of trust, a trustee, duly qualified if required
under applicable law to act as such, has been properly designated and
currently so serves and is named in the Mortgage, and no fees or
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expenses are or will become payable to the trustee under the deed of
trust, except in connection with a trustee's sale or attempted sale
after default by the Mortgagor;
(xxi) With respect to each Mortgage Loan, there is an
appraisal on a FNMA-approved form (or a narrative residential
appraisal) of the related Mortgaged Property that conforms to the
applicable requirements of the Financial Institutions Reform Recovery
and Enforcement Act and that was signed prior to the approval of such
Mortgage Loan application by a qualified appraiser, appointed by MLCC
or the originator of such Mortgage Loan, as appropriate, who has no
interest, direct or indirect, in the Mortgaged Property or in any loan
made on the security thereof, and whose compensation is not affected by
the approval or disapproval of such Mortgage Loan;
(xxii) No Mortgage Loan contains "subsidized buydown" or
"graduated payment" features;
(xxiii) The Mortgaged Property is a single-family (one- to
four-unit) dwelling residence erected thereon, or an individual
condominium unit in a condominium, or a Co-operative Apartment or an
individual unit in a planned unit development or in a de minimis
planned unit development as defined by FNMA. No such residence is a
mobile home or a manufactured dwelling which is not permanently
attached to the land;
(xxiv) No Mortgage Loan provides for negative amortization;
(xxv) No Mortgage Loan had an original term in excess of
thirty (30) years;
(xxvi) [RESERVED]
(xxvii) As of the Closing Date, each Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (without regard to Treasury Regulations Section 1.860G-2(f) or any
similar rule that provides that a defective obligation is a qualified
mortgage for a temporary period);
(xxviii) 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 single "variable
rate" (within the meaning of Treasury Regulations Section
1.860G-1(a)(3)) in effect throughout the term of the Mortgage Loan.
(xxix) As of the Closing Date, no Mortgage Loan is the
subject of pending or final foreclosure proceedings.
(xxx) Based on delinquencies in payment on the Mortgage
Loans as of the Closing Date, MLCC would not initiate foreclosure
proceedings with respect to any of the Mortgage Loans prior to the next
scheduled payment date on such Mortgage Loan.
(xxxi) Each Mortgage Note is comprised of one original
promissory note and each such promissory note constitutes an
"instrument" for purposes of section 9-102(a)(65) of the UCC.
(xxxii) No Mortgage Loan is covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA") and no Mortgage Loan is "high
cost" as defined by
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any applicable federal, state or local predatory or abusive lending
law. Any breach of this representation shall be deemed to materially
and adversely affect the value of the Mortgage Loan and shall require a
repurchase of the affected Mortgage Loan.
(xxxiii) Each Mortgage Loan at the time it was made complied
in all material respects with applicable local, state and federal laws,
including, but not limited to, all applicable predatory or abusive
lending laws.
With respect to the foregoing representations and warranties which are
made to the best of MLCC's knowledge, if it is discovered by any of the Trustee,
the Servicer or MLMI that the substance of such representation and warranty is
inaccurate, then notwithstanding MLCC's lack of knowledge with respect to the
substance of such representation and warranty being inaccurate at the time the
representation or warranty was made, such inaccuracy shall be deemed a breach of
the applicable representation or warranty.
(c) MLCC hereby agrees that it will comply with the provisions of
Section 2.04 of the Pooling and Servicing Agreement in respect of a breach of
any of the representations and warranties set forth in this Section 3.
(d) MLCC hereby represents and warrants for the benefit of MLMI
and the Trustee: (i) the Mortgage Loans constitute "instruments" within the
meaning of the applicable UCC; (ii) MLCC, immediately prior to its transfer of
Mortgage Loans under this Agreement, will own and have good, valid and
marketable title to the Mortgage Loans free and clear of any Lien, claim or
encumbrance of any Person; (iii) MLCC has received all consents and approvals
required by the terms of the Mortgage Loans to the sale of the Mortgage Loans
hereunder to MLMI; (iv) MLCC has received a written acknowledgment from the
Custodian that the Custodian is holding the Mortgage Notes that constitute or
evidence the Mortgage Loans solely on behalf and for the benefit of MLMI; (v)
other than the security interest granted to MLMI pursuant to this Agreement and
security interests granted to lenders which will be automatically released at
the Closing, MLCC has not pledged, assigned, sold, granted a security interest
in, or otherwise conveyed any of the Mortgage Loans; MLCC has not authorized the
filing of and is not aware of any financing statements against it that include a
description of collateral covering the Mortgage Loans other than any financing
statement relating to the security interest granted to MLMI hereunder or that
will be automatically released upon the sales to MLMI; (vi) MLCC is not aware of
any judgment or tax lien filing against itself; and (vii) none of the Mortgage
Notes that constitute or evidence the Mortgage Loans has any marks or notations
indicating that they have been pledged, assigned or otherwise conveyed to any
Person other than MLMI.
Section 4. Conveyance of Mortgage Loans.
(a) Mortgage Loans. MLCC, concurrently with the execution and
delivery hereof, hereby sells, transfers, assigns, sets over and otherwise
conveys to MLMI, without recourse, all of MLCC's right, title and interest in
and to (i) the Mortgage Loans, including the related Mortgage Documents and all
interest and principal received or receivable by MLCC on or with respect to the
Mortgage Loans after the Cut-off Date and all interest and principal payments on
the Mortgage Loans received prior to the Cut-off Date in respect of installments
of interest and principal due thereafter, but not including payments of interest
and principal due and payable on the Mortgage Loans on or before the Cut-off
Date, and all other proceeds received in respect of such Mortgage Loans, (ii)
MLCC's rights and obligations under the Servicing Agreement with
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respect to the Mortgage Loans, (iii) the pledge, control and guaranty agreements
and the Limited Purpose Surety Bond relating to the Additional Collateral
Mortgage Loans, (iv) the Insurance Policies with respect to the Mortgage Loans,
(v) all cash, instruments or other property held or required to be deposited in
the Custodial Accounts and the Distribution Account and (vi) all proceeds of the
conversion, voluntary or involuntary, of any of the foregoing into cash or other
liquid assets, including, without limitation, all Insurance Proceeds,
Liquidation Proceeds and condemnation awards.
On or prior to the Closing Date, MLCC shall deliver to MLMI or, at
MLMI's direction, to the Trustee, the Trustee's Mortgage File for each Mortgage
Loan in the manner set forth in Section 2.01 of the Pooling and Servicing
Agreement. Release of the Trustee's Mortgage Files on the Closing Date shall be
made against payment by MLMI of the purchase price for the Mortgage Loans. The
amount of the purchase price payable by MLMI shall be set forth in writing in a
separate letter.
MLCC and MLMI each acknowledge that on the Closing Date, (i) MLCC will
immediately transfer the Mortgage Loans to MLMI and (ii) MLMI will then
immediately deposit the Mortgage Loans into the Xxxxxxx Xxxxx Mortgage Investors
Trust, Series MLCC 2004-B.
(b) Defective Mortgage Loans. If any Mortgage Loan is required to
be repurchased due to defective or missing documentation pursuant to Section
2.04 of the Pooling and Servicing Agreement, MLCC shall, at its option, either
(a) repurchase or cause the applicable seller of such Mortgage Loan to MLCC to
repurchase such Mortgage Loan at the Purchase Price, or (b) provide or cause the
applicable seller of such Mortgage Loan to MLCC to provide a Replacement
Mortgage Loan, subject to the terms and conditions of the Pooling and Servicing
Agreement.
Section 5. Intention of Parties. It is the express intent of the
parties hereto that (without addressing characterization for GAAP purposes) the
conveyance of the Mortgage Loans by MLCC to MLMI be construed as, an absolute
sale thereof. It is, further, not the intention of the parties that such
conveyance be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the assigning party, or if for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans, then (i)
this Agreement shall be deemed to be a security agreement within the meaning of
the Uniform Commercial Code of the State of New York and (ii) the conveyance
provided for in this Agreement shall be deemed to be an assignment and a grant
by MLCC to MLMI of a security interest in all of the assets described in such
conveyances, whether now owned or hereafter acquired.
MLCC and MLMI shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Mortgage Loans, such security interest
would be deemed to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement. MLCC shall arrange for filing any Uniform Commercial Code
continuation statements in connection with any security interest granted or
assigned hereunder.
Section 6. Servicing of Additional Collateral Mortgage Loans.
MLCC and MLMI agree with respect to the Additional Collateral Mortgage
Loans:
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(i) MLCC, at its own cost and expense, shall administer
the Additional Collateral and the Control Agreement for the benefit of
MLMI (i) in a prudent and non-negligent manner and in accordance with
the procedures it employs to administer Securities Accounts for its own
benefit (as the same may be amended from time to time); (ii) in
accordance with the terms of the related Pledge Agreements, the
applicable Mortgage Loan Documents and this Agreement; and (iii) in
accordance with applicable law;
(ii) MLCC shall be released from its obligations to
administer the Additional Collateral, upon termination of the related
Pledge Agreement. MLMI acknowledges that it shall no longer be afforded
coverage under the terms and provisions of the Surety Bond as to any
particular Additional Collateral Mortgage Loan at such time as MLCC's
obligation to administer such Additional Collateral Mortgage Loan
terminates pursuant to the terms of the related Pledge Agreement.
(iii) MLCC may, without the consent of MLMI, amend or
modify a Mortgage 100(sm) Pledge Agreement or a Parent Power(R)
Agreement in any nonmaterial respect to reflect administrative or
account changes.
(iv) When a "Loss," as defined in the related Pledge
Agreement, is determined, the "cash collateral" necessary to satisfy
the Loss up to the Maximum Amount (as defined in the Pledge Agreement)
shall be sent to the Servicer to apply in accordance with the Mortgage
Loan Documents and hold in accordance with the Servicing Agreement.
Section 7. Termination.
(a) MLMI may terminate this Agreement, by notice to MLCC, at any
time at or prior to the Closing Date:
(i) if the Underwriting Agreement is terminated by the
Underwriters pursuant to the terms of the Underwriting Agreement or if
the Underwriters do not complete the transactions contemplated by the
Underwriting Agreement as the result of the failure of any condition
set forth therein or if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is
given in the Prospectus or Prospectus Supplement, any material adverse
change in the financial condition, earnings, business affairs or
business prospects of MLCC, whether or not arising in the ordinary
course of business, or
(ii) if there has occurred any material adverse change in
the financial markets in the United States, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Underwriters,
impracticable to market the Certificates or to enforce contracts for
the sale of the Certificates, or
(iii) if a banking moratorium has been declared by either
Federal or New York authorities.
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(b) Notwithstanding any termination of this Agreement or the
completion of all sales contemplated hereby, the representations, warranties and
agreements in Sections 2 and 3 hereof shall survive and remain in full force and
effect.
Section 8. Miscellaneous.
(a) Amendments, Etc. No rescission, modification, amendment,
supplement or change of this Agreement shall be valid or effective unless in
writing and signed by all of the parties to this Agreement. No amendment of this
Agreement may modify or waive the representations, warranties and agreements set
forth in Sections 2 and 3 hereof.
(b) Binding Upon Successors, Etc. This Agreement shall bind and
inure to the benefit of and be enforceable by MLCC and MLMI, and the respective
successors and assigns thereof. The parties hereto acknowledge that MLMI is
acquiring the Mortgage Loans for the purpose of pledging, transferring,
assigning, setting over and otherwise conveying them to the Trustee, pursuant to
the Pooling and Servicing Agreement for inclusion in the Trust Fund. As an
inducement to MLMI to purchase the Mortgage Loans, MLCC acknowledges and
consents to the assignment to the Trustee by MLMI of all of MLMI's rights
against MLCC hereunder in respect of the Mortgage Loans sold to MLMI and that
the enforcement or exercise of any right or remedy against MLCC hereunder by the
Trustee or to the extent permitted under the Pooling and Servicing Agreement
shall have the same force and effect as if enforced and exercised by MLMI
directly.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(e) Headings. The headings of the several parts of this Agreement
are inserted for convenience of reference and are not intended to be a part of
or affect the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, each party has caused this Mortgage Loan Purchase
and Sale Agreement to be executed by its duly authorized officer or officers as
of the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: _________________________________
Name: Xxxxxxx Xxxxxx
Title: President
XXXXXXX XXXXX CREDIT CORPORATION
By: _________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
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