EXHIBIT 99.1
EXECUTION COPY
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST
SERIES MLCC 2004-E
MORTGAGE PASS-THROUGH CERTIFICATES
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
Between
XXXXXXX XXXXX CREDIT CORPORATION
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
dated as of September 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 September 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 September 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 meanings 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.
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:
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(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 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
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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 Xxxxxxxxx's cost and expense,
and on the Mortgagor's failure to do so, authorizes the holder of the
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
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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-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
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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 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)
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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 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,
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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 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.
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(xxxiv) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then current Standard &
Poor's LEVELS(R) Glossary which is now Version 5.6 Revised, Appendix E,
attached hereto as Exhibit A) and no Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair
Lending Act.
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 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
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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-E.
(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:
(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-
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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.
(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.
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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
EXHIBIT A
Standard & Poor's LEVELS(R) Glossary Version 5.6 Revised, Appendix E
[INTENTIONALLY OMITTED]
