EXECUTION VERSION
AMENDMENT NUMBER 1 TO THE POOLING AND SERVICING AGREEMENT
Amendment Number 1, dated as of August 15, 2006 (this "Amendment") to the
Pooling and Servicing Agreement, dated as of February 1, 2006 (the "Agreement"),
by and among XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a Delaware corporation, as
depositor (the "Depositor"), PHH MORTGAGE CORPORATION, a New Jersey corporation,
as servicer (the "Servicer"), and XXXXX FARGO BANK, N.A., a national banking
association, as trustee (the "Trustee"), relating to the Xxxxxxx Xxxxx Mortgage
Investors Trust, Series MLCC 2006-1.
WHEREAS, Section 11.03(b) of the Agreement provides that the Agreement may
be amended from time to time by the Depositor, the Servicer and the Trustee,
with the prior written consent of the Holders of not less than 66-2/3% of the
Class Principal Amount (or Percentage Interest) of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Agreement or of modifying in
any manner the rights of the Holders; provided that no such amendment may (i)
reduce in any manner the amount of, or delay the timing of, payments received on
Mortgage Loans which are required to be distributed on any Certificate, without
the consent of the Holder of such Certificate or (ii) reduce the aforesaid
percentages of Class Principal Amount (or Percentage Interest) of Certificates
of each Class, the Holders of which are required to consent to any such
amendment without the consent of the Holders of 100% of the Class Principal
Amount (or Percentage Interest) of each Class of Certificates affected thereby;
WHEREAS, in accordance therewith, by the execution and delivery of this
Amendment and the Consent of the Holders of the Class II-A-2 Certificates, the
parties hereby amend the Agreement to the extent and on the terms set forth in
this Amendment.
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
each party hereto agrees as follows for the benefit of the other parties and for
the benefit of the Certificateholders:
ARTICLE I
Cross Reference to Definitions in the Agreement
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SECTION 1.01. Capitalized terms used in this Amendment and not defined
herein or amended by the terms of this Amendment shall have the meanings
assigned to such terms in the Agreement.
ARTICLE II
Effectiveness
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SECTION 2.01. Section 11.03(b) of the Agreement provides that the
Agreement may be amended from time to time by the Depositor, the Servicer and
the Trustee, with the with the prior written consent of the Holders of not less
than 66-2/3% of the Class Principal Amount (or Percentage Interest) of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Agreement or of modifying in any manner the rights of the Holders; provided that
no such amendment may
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate, without the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Principal Amount (or Percentage
Interest) of Certificates of each Class, the Holders of which are required to
consent to any such amendment without the consent of the Holders of 100% of the
Class Principal Amount (or Percentage Interest) of each Class of Certificates
affected thereby.
SECTION 2.02. By their execution of this Amendment, the Depositor, the
Servicer and the Trustee agree to make the amendments to the Agreement set forth
below.
ARTICLE III
Amendments to the Agreement
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SECTION 3.01. Section 5.03 of the Agreement is hereby amended by:
(a) deleting clause (ii) in its entirety and replacing it with the
following:
"(ii) commencing on the Credit Support Depletion Date, Realized
Losses will be allocated among the Senior Certificates as follows:
first, if the Realized Loss occurs on a Mortgage Loan in a Mortgage
Pool where the aggregate Stated Principal Balance of the Mortgage Loans in
such Mortgage Pool is greater than the aggregate Class Principal Amount of
the related Senior Certificates, the Realized Loss will be allocated to
any Senior Certificates related to a Mortgage Pool where the aggregate
Stated Principal Balance of the Mortgage Loans in such Mortgage Pool is
less than the aggregate Class Principal Amount of the related Senior
Certificates (any such amount, the "Deficiency Amount"), pro rata, based
on the respective Deficiency Amount, in each case until the amount by
which the aggregate Stated Principal Balance of the Mortgage Loans in the
Mortgage Pool in which the Realized Loss occurs exceeds the aggregate
Class Principal Amount of the related Senior Certificates until the Class
Principal Amounts of such Senior Certificates have been reduced to zero;
provided, however, that any portion of any Realized Loss that would
otherwise be allocated to the Class II-A-1 Certificates will instead be
allocated first to the Class II-A-2 Certificates until the Class
Certificate Balance thereof has been reduced to zero; and second, to the
Senior Certificates related to the Mortgage Pool in which the Realized
Loss occurred, until the Class Principal Amounts thereof have been reduced
to zero."
ARTICLE IV
Miscellaneous
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SECTION 4.01. Counterparts. This Amendment may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 4.02. Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 4.03. Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, all of the terms and conditions of the Agreement
shall remain in full force and effect. All references to the Agreement in any
other document or instrument shall be deemed to mean such Agreement as amended
by this Amendment. This Amendment shall not constitute a novation of the
Agreement, but shall constitute an amendment thereof. The parties hereto agree
to be bound by the terms and obligations of the Agreement, as amended by this
Amendment, as though the terms and obligations of the Agreement were set forth
herein.
SECTION 4.04. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers as of the day and year first above
written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:
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Name:
Title:
PHH MORTGAGE CORPORATION,
as Servicer
By:
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Name:
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Title:
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XXXXX FARGO BANK, N.A.,
not in its individual capacity,
but solely as Trustee
By:
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Name:
Title:
