EXHIBIT 99.1
EXECUTION COPY
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST
SERIES MLCC 2003-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 March 1, 2003
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.................................................................. 4
SECTION 5. INTENTION OF PARTIES.......................................................................... 4
SECTION 6. SERVICING OF ADDITIONAL COLLATERAL MORTGAGE LOANS............................................. 5
SECTION 7. TERMINATION................................................................................... 5
SECTION 8. MISCELLANEOUS................................................................................. 6
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MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (the "Agreement") is
made as of March 1, 2003, 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 Trust Agreement,
dated as of March 1, 2003 (the "Trust Agreement") among MLMI, as depositor,
Xxxxx Fargo Bank Minnesota, National Association, as trustee (the "Trustee"),
and acknowledged by MLCC, as 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 Trust 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 MLCC 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 the 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:
(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.
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(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 Trust 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 set forth in Schedule B to the Trust Agreement, for the benefit
of MLMI and the Trustee. With respect to the representations and warranties
described in Schedule B 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 Trust 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
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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 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 Trust 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.
(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 Trust 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 Trust 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
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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-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
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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 1 and 2 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 Trust 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 Trust 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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