Exhibit 99.1
XXXXXXX XXXXX MORTGAGE LENDING, INC.,
SELLER
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of June 1, 2004
Specialty Underwriting and Residential Finance Trust
(Mortgage Loan Asset-Backed Certificates, Series 2004-BC2)
TABLE OF CONTENTS
Page
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ARTICLE I CONVEYANCE OF MORTGAGE LOANS.............................................................. 1
Section 1.01. Sale of Mortgage Loans........................................................... 1
Section 1.02. Delivery of Documents............................................................ 1
Section 1.03. Review of Documentation.......................................................... 2
Section 1.04. Representations and Warranties Regarding the Seller.............................. 2
Section 1.05. Grant Clause..................................................................... 8
Section 1.06. Assignment by Depositor.......................................................... 8
ARTICLE II MISCELLANEOUS PROVISIONS.................................................................. 8
Section 2.01. Binding Nature of Agreement; Assignment.......................................... 8
Section 2.02. Entire Agreement................................................................. 8
Section 2.03. Amendment........................................................................ 9
Section 2.04. Governing Law.................................................................... 9
Section 2.05. Severability of Provisions....................................................... 9
Section 2.06. Indulgences; No Waivers.......................................................... 10
Section 2.07. Headings Not to Affect Interpretation............................................ 10
Section 2.08. Benefits of Agreement............................................................ 10
Section 2.09. Counterparts..................................................................... 10
SCHEDULE
SCHEDULE A Mortgage Loan Schedule
This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of June 1,
2004 (the "Agreement"), is executed by and between Xxxxxxx Xxxxx Mortgage
Lending, Inc. (the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the
"Depositor").
All capitalized terms not defined herein shall have the same meanings
assigned to such terms in that certain Pooling and Servicing Agreement (the
"Pooling Agreement"), dated as of June 1, 2004, among the Depositor, JPMorgan
Chase Bank, as trustee (the "Trustee") and Xxxxxx Loan Servicing, LP, as
servicer (the "Servicer").
W I T N E S S E T H:
WHEREAS, the Seller has acquired or originated certain mortgage loans
identified on the Mortgage Loan Schedule attached hereto as Schedule A (the
"Mortgage Loans");
WHEREAS, the Seller desires to sell, without recourse, all of its
rights, title and interest in the Mortgage Loans to the Depositor; and
WHEREAS, the Seller and the Depositor acknowledge and agree that the
Depositor will assign all of its rights and delegate all of its obligations
hereunder to the Trustee, and that each reference herein to the Depositor is
intended, unless otherwise specified, to mean the Depositor or the Trustee, as
assignee, whichever is the owner of the Mortgage Loans from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Seller and the Depositor agree as
follows:
ARTICLE I
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans. Concurrently with the execution
and delivery of this Agreement, the Seller does hereby transfer, assign, set
over, deposit with and otherwise convey to the Depositor, without recourse,
subject to Sections 1.03 and 1.04, all the right, title and interest of the
Seller in and to the Mortgage Loans identified on Schedule A hereto, having an
aggregate principal balance as of the Cut-off Date of $575,029,168.58. Such
conveyance includes, without limitation, the right to all distributions of
principal and interest received on or with respect to the Mortgage Loans on or
after June 1, 2004 other than payments of principal and interest due on or
before such date, and all such payments due after such date but received prior
to such date and intended by the related Mortgagors to be applied after such
date, together with all of the Seller's right, title and interest in and to
each related account and all amounts from time to time credited to and the
proceeds of such account, any REO Property and the proceeds thereof, the
Seller's rights under any Insurance Policies related to the Mortgage Loans,
and the Seller's security interest in any collateral pledged to secure the
Mortgage Loans, including the Mortgaged Properties.
Concurrently with the execution hereof, the Depositor tenders the
purchase price of $575,029,168.58.
Section 1.02. Delivery of Documents. In connection with such transfer
and assignment of the Mortgage Loans hereunder, the Seller does hereby
deliver, or cause to be delivered, to the Depositor (or
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its designee) the following documents or instruments with respect to each
Mortgage Loan (each a "Mortgage File") so transferred and assigned; provided
that for Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Seller, in lieu of delivering
the related Mortgage Files, herewith delivers to the Depositor an Officer's
Certificate which shall include a statement to the effect that all amounts
received in connection with such prepayment that are required to be deposited
in the account maintained by the Servicer for such purpose have been so
deposited.
(a) The Original Mortgage Note endorsed, "Pay to the order of JPMorgan
Chase Bank, as trustee - SURF 2004-BC2, without recourse" together with all
riders thereto. The Mortgage Note shall include all intervening endorsements
showing a complete chain of the title from the originator to the Seller.
(b) Except as provided below and for each Mortgage Loan that is not a
MERS Loan, the original recorded Mortgage together with all riders thereto,
with evidence of recording thereon, or, if the original Mortgage has not yet
been returned from the recording office, a copy of the original Mortgage
together with all riders thereto certified by the Seller to be true copy of
the original of the Mortgage that has been delivered for recording in the
appropriate recording office of the jurisdiction in which the Mortgaged
Property is located and in the case of each MERS Loan, the original Mortgage
together with all riders thereto, noting the presence of the MIN of the Loan
and either language indicating that the Mortgage Loan is a MOM Loan or if the
Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated thereon, or a
copy of the Mortgage certified by the public recording office in which such
Mortgage has been recorded.
(c) In the case of each Mortgage Loan that is not a MERS Loan, the
original Assignment of each Mortgage, to "JPMorgan Chase Bank, as trustee -
SURF 2004-BC2."
(d) The original policy of title insurance (or a preliminary title
report, commitment or binder if the original title insurance policy has not
been received from the title insurance company).
(e) Originals of any intervening assignments of the Mortgage, with
evidence of recording thereon or, if the original intervening assignment has
not yet been returned from the recording office, a copy of such assignment
certified to be a true copy of the original of the assignment which has been
sent for recording in the appropriate jurisdiction in which the Mortgaged
Property is located.
(f) Originals of all assumption and modification agreements, if any.
Section 1.03. Review of Documentation. The Depositor, by execution and
delivery hereof, acknowledges receipt of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by the trustee, JPMorgan Chase Bank (the "Trustee") for the Mortgage Loans for
the Depositor. The Trustee is required to review, within 60 days following the
Closing Date, each applicable Mortgage File. If in the course of such review
the Trustee finds any document or documents constituting a part of a Mortgage
File to be missing or defective (that is, mutilated, damaged, defaced or
unexecuted) in any material respect, the Seller shall be obligated to cure
such defect or to repurchase the related Mortgage Loan from the Depositor (or,
at the direction of and on behalf of the Depositor, from the Trust Fund), or
to substitute a Replacement Mortgage Loan therefor, in each case to the same
extent and in the same manner as the Depositor is obligated to the Trustee and
the Trust Fund under the Pooling Agreement.
Section 1.04. Representations and Warranties Regarding the Seller.
(a) The Seller hereby represents and warrants to the Depositor that as
of the date hereof that:
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(i) The Seller is a Delaware corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) The execution and delivery by the Seller of this Agreement
have been duly authorized by all necessary corporate action on the part
of the Seller; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance
with the provisions hereof, will conflict with or result in a breach of,
or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Seller or its properties or the federal stock charter or bylaws of the
Seller;
(iii) The execution, delivery and performance by the Seller of
this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except
such as has been obtained, given, effected or taken prior to the date
hereof;
(iv) This Agreement has been duly executed and delivered by the
Seller and, assuming due authorization, execution and delivery by the
Depositor, constitutes a valid and binding obligation of the Seller
enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened or likely to be asserted against or
affecting the Seller, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Seller will be determined
adversely to the Seller and will if determined adversely to the Seller
materially and adversely affect it or its business, assets, operations
or condition, financial or otherwise, or adversely affect its ability to
perform its obligations under this Agreement.
(b) The Seller hereby represents and warrants to the Depositor the
following with respect to the Mortgage Loans as of the Closing Date. To the
extent that any fact, condition or event with respect to a Mortgage Loan
constitutes a breach of a representation or warranty of Seller under this
Agreement, the only right or remedy of the Depositor shall be the right to
enforce the obligations of the Seller under any applicable representation or
warranty made by it.
(i) The information set forth with respect to the Mortgage Loans
on the Mortgage Loan Schedule provides a true, complete, and accurate
and there are no material omissions of material facts.
(ii) Each Mortgage is a valid and enforceable lien on the
Mortgaged Property, subject only to (a) in the case of the second lien
Mortgage Loans, the related first lien,(b) the lien of non-delinquent
real property taxes and assessments not yet due and payable, (c)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record as of the date of recording of such
Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally, specifically referred to in the
lender's title insurance policy referred to in x below or referred to or
otherwise considered in the appraisal made in
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connection with the origination of the related Mortgage Loan, and (d)
other matters to which like properties are commonly subject that do not
materially interfere with the benefits of the security intended to be
provided by such Mortgage.
(iii) Immediately prior to the assignment of the Mortgage Loans to
the Depositor, the Seller was the sole legal and beneficial owner of
each Mortgage Loan and had full right to transfer and sell the Mortgage
Loan free and clear of any encumbrance, equity. lien, pledge, charge,
claim or security interest.
(iv) There is no delinquent tax or assessment lien against any
Mortgaged Property.
(v) There is no valid set-offs or defense to any Mortgage Note or
Mortgage.
(vi) There are no mechanic's or similar liens or claims that have
been filed for work, labor or material and there are not outstanding
rights that under law, could give rise to such lien, which would affect
the Mortgaged Property as a lien senior to or equal to the lien of the
Mortgage Loan.
(vii) To the best of the Seller's knowledge each Mortgaged
Property is, (i ) undamaged by any toxic materials or other
environmental hazards on, in or potentially affecting such Mortgage
Property; and (ii) free and clear of damage and waste and there is no
proceeding pending for the total or partial condemnation.
(viii) Each Mortgage Loan is in compliance with local, state or
federal law or regulation designated to protect the health and safety of
the occupants of the Mortgaged Property.
(ix) As of the Closing Date, the Mortgage Loan has not been
modified in any material respect including as to prepayment penalties
(except that a Mortgage Loan may have been modified by a written
instrument that has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificate Holders).
(x) With respect to each first lien Mortgage Loan that is covered
by a lender's policy of title insurance, each such policy is
enforceable, and each such policy was issued by a title insurer
qualified to do business in the jurisdiction where the related Mortgaged
Property is located and acceptable to Xxxxxx Xxx or Xxxxxxx Mac and is
in a form acceptable to Xxxxxx Mae or Xxxxxxx Mac, which policy insures
the Seller and successor owners of indebtedness secured by the related
insured Mortgage, as to the first priority lien of the related Mortgage;
to the best of the Seller's knowledge, no claims have been made under
such mortgage title insurance policy and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything
that would impair the coverage of such mortgage title insurance policy.
(xi) With respect to each second lien Mortgage Loan, either (a) no
consent for the second lien Mortgage Loan is required by the holder of
the related first lien or (b) such consent has been obtained and is
contained in the Mortgage File.
(xii) Intentionally omitted.
(xiii) To the best of the Seller's knowledge, as of the date of
origination all of the improvements that were included for the purpose
of determining the appraisal value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property.
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(xiv) To the best of the Seller's knowledge, as of the date of
origination no improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation.
(xv) To the best of the Seller's knowledge, as of the date of
origination all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy, have been made
or obtained from the appropriate authorities, and the Mortgaged Property
is lawfully occupied under applicable law.
(xvi) 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 and under applicable law,
except that the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally. To the best of the Seller's knowledge, all
parties to the Mortgage Note and the Mortgage had legal capacity to
execute the Mortgage Note and the Mortgage and each Mortgage Note and
Mortgage have been duly and properly executed by such parties.
(xvii) The proceeds of the Mortgage Loan have been fully
disbursed, there is no requirement for future advances thereunder and
completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making, or closing or recording the
Mortgage Loans were paid.
(xviii) The related Mortgage contains customary and enforceable
provisions that render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure.
(xix) With respect to each Mortgage constituting a deed of trust,
a trustee, duly qualified under applicable law to serve as such, has
been properly designated and currently so serves and is named in such
Mortgage, and no fees or expenses are or will become payable by the
Certificate Holders to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor.
(xx) There exist no deficiencies with respect to escrow deposits
and payments, if such are required, for which customary arrangements for
repayment thereof have not been made, and no escrow deposits or payments
of other charges or payments due to the Seller have been capitalized
under the Mortgage or the related Mortgage Note.
(xxi) The origination practices used by the Seller with respect to
each Mortgage Loan have been in compliance with any and all applicable
"doing business" and licensing requirements of the laws of the state
where the Mortgaged Property is located.
(xxii) The Mortgage Note is not, and has not been, secured by any
collateral except the lien of the corresponding Mortgage on the
Mortgaged Property.
(xxiii) With respect to Mortgage Loans at the Cut-off Date, all
buildings on the Mortgaged Property are covered by a valid and existing
hazard insurance policy with a generally acceptable carrier that
provides for fire and extended coverage and coverage for such other
hazards as are customary in the area where the Mortgaged Property is
located. All such
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individual insurance policies contain a standard mortgagee clause naming
the Seller or the original mortgagee, or its successors in interest, as
mortgagee, and the Seller has received no notice that any premiums due
and payable thereon have not been paid; the Mortgage obligates the
Mortgagor thereunder to maintain all such insurance, including flood
insurance, at the Mortgagor's cost and expense, and upon the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor.
(xxiv) With respect to Mortgage Loans, if the Mortgaged Property
is in an area identified on a Flood Hazard Map or Flood Insurance Rate
Map issued by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Flood Insurance
Administration is in effect with respect to such Mortgaged Property.
(xxv) To the best of the Seller's knowledge, there is no
proceeding pending for the total or partial condemnation of the
Mortgaged Property.
(xxvi) There is no material monetary default existing under any
Mortgage or the related Mortgage Note and, to the best of the Seller's
knowledge, there is no material event that, 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 of acceleration under
the Mortgage or the related Mortgage Note; and the Seller has not waived
any default, breach, violation or event of acceleration.
(xxvii) Each Mortgaged Property is of a type described in the
Prospectus Supplement.
(xxviii) Each Mortgage Loan is being serviced by the Servicer.
(xxix) Prior to the approval of the Mortgage Loan application, an
appraisal of the related Mortgaged Property that satisfies the standards
of the Program Documents and the standards under the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 was obtained.
The appraisal was signed by a qualified appraiser, and whose
compensation is not affected by the approval or disapproval of the
Mortgage Loan.
(xxx) The Mortgage Loans were selected from among the outstanding
one- to four-family mortgage loans in the Seller's portfolio at the
Closing Date as to which the representations and warranties made as to
the Mortgage Loans set forth in this Section 1.04(b) can be made.
(xxxi) The Mortgage Loans, individually and in the aggregate,
conform in all material respects to the descriptions thereof in the
Prospectus Supplement.
(xxxii) As of the Closing Date, each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G of the Code (as determined
without regard to Treasury Regulations Section 1.860G-2(a)(3)(iii) or
any similar rule that provides that a defective obligation is a
qualified mortgage for a temporary period).
(xxxiii) Each prepayment penalty is permissible and enforceable in
accordance with its terms upon the Mortgagor's full and voluntary
Principal Prepayment (except to the extent that: (1) the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors' rights
generally; (2) the collectability thereof may be limited due to
acceleration in connection with a foreclosure or other involuntary
prepayment; or (3)
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subsequent changes in applicable law may limit or prohibit
enforceability thereof) under applicable law.
(xxxiv) No Mortgage Loan is covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA") and no Mortgage Loan is in
violation of any comparable state law.
(xxxv) The Seller has caused the servicer for each Mortgage Loan
to fully furnish, in accordance with the Fair Credit Reporting Act and
its implementing regulations, accurate and complete information on its
borrower credit files to Equifax, Experian, and Trans Union Credit
Information Company, on a monthly basis.
(xxxvi) No proceeds from any Mortgage Loan to be used to finance
single-premium credit insurance policies.
(xxxvii) No Group One Mortgage Loan originated on or after October
1, 2002 will impose a prepayment premium for a term in excess of three
years. Any Mortgage Loans originated prior to such date will not impose
prepayment penalties in excess of five years.
(xxxviii) As of the Closing Date, no Mortgage Loan is in
foreclosure.
(xxxix) No Mortgage Loan provides for interest other than at
either (i) a single fixed rate in effect throughout the term of the
Mortgage Loan or (ii) a "variable rate" (within the meaning of Treasury
Regulation Section 1.860G-1(a)(3)) in effect throughout the term of the
Mortgage Loan.
(xl) As of the Closing Date, the Seller would not institute
foreclosure proceedings with respect to any of the Mortgage Loans prior
to the next scheduled payment date for such Mortgage Loan based on such
Mortgage Loan's delinquency status.
(xli) There is no Mortgage Loan that was originated on or after
October 1, 2002 and before March 7, 2003, which is secured by property
located in the state of Georgia.
(xlii) There is no Mortgage Loan that was originated on or after
March 7, 2003 which is a "high cost home loan" as defined under the
Georgia Fair Lending Act.
(xliii) None of the Mortgage Loans (a) is a "High Cost Mortgage"
as defined in Regulation Z, Section 226.32 or otherwise subject to the
provisions of the Homeownership and Equity Protection Act of 1994 or any
similar state or local law or (b) was made or serviced in violation of
the provisions of any applicable predatory lending laws or regulations.
(xliv) No Mortgage Loan is classified as a high cost mortgage loan
under HOEPA, and no Mortgage Loan is a "high cost home," "covered,"
"high risk home" or "predatory" loan under any other applicable state,
federal or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high
interest rates, points and/or fees).
(xlv) No Mortgage Loan is a "high cost," "covered" or other
similarly designated loan as defined under any state, local or federal
law, which law contains provisions that may result in liability to the
purchaser or assignee of such loan.
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(xlvi) 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.
(xlvii) All Mortgage Loans were originated in compliance with all
applicable laws, including, but not limited to, all applicable
anti-predatory lending laws.
(xlviii) 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)
and no Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act.
It is understood and agreed that the representations and warranties set
forth in Sections 1.04(a) and (b) herein shall survive delivery of the
Mortgage Files and the Assignment of Mortgage of each Mortgage Loan to the
Depositor. Upon discovery by any of the Seller, the Depositor, the Servicer or
the Trustee of a breach of any of the foregoing representations and warranties
that adversely and materially affects the value of the related Mortgage Loan,
payment charges or the interest of the Certificate Holders, the party
discovering such breach shall give prompt written notice to the other parties.
Within 90 days of the discovery of any such breach, the Seller shall either
(a) cure such breach in all material respects, (b) repurchase such Mortgage
Loan or any property acquired in respect thereof from the Depositor at the
applicable Purchase Price or (c) within the two year period following the
Closing Date, substitute a Replacement Mortgage Loan for the affected Mortgage
Loan. The Seller indemnifies and holds the Trust Fund, the Trustee, the
Depositor, the Servicer, the NIMs Insurer and each Certificateholder harmless
against any and all taxes, claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs, fees
and expenses that the Trust Fund, the Trustee, the Depositor, the Servicer,
the NIMs Insurer and any Certificateholder may sustain in connection with any
actions of the Seller relating to a repurchase of a Mortgage Loan other than
in compliance with the terms of Section 2.03 of the Pooling Agreement and this
Agreement, to the extent that any such action causes (i) any federal or state
tax to be imposed on the Trust Fund or any REMIC provided for in the Pooling
Agreement, including without limitation, any federal tax imposed on
"prohibited transactions" under Section 860F(a)(1) of the Code or on
"contributions after the startup date" under Section 860(d)(1) of the Code, or
(ii) any REMIC created in the Pooling Agreement to fail to qualify as a REMIC
at any time that any Certificate is outstanding.
Section 1.05. Grant Clause. It is intended that the conveyance of the
Seller's right, title and interest in and to Mortgage Loans and other property
conveyed pursuant to this Agreement shall constitute, and shall be construed
as, a sale of such property and not a grant of a security interest to secure a
loan. However, if such conveyance is deemed to be in respect of a loan, it is
intended that: (1) the rights and obligations of the parties shall be
established pursuant to the terms of this Agreement; (2) the Seller hereby
grants to the Depositor a first priority security interest in all of the
Seller's right, title and interest in, to and under, whether now owned or
hereafter acquired, such Mortgage Loans and other property; and (3) this
Agreement shall constitute a security agreement under applicable law.
Section 1.06. Assignment by Depositor. The Depositor shall have the
right, upon notice to but without the consent of the Seller, to assign, in
whole or in part, its interest under this Agreement with respect to the
Mortgage Loans to the Trustee, and the Trustee then shall succeed to all
rights of the Depositor under this Agreement. All references to the Depositor
in this Agreement shall be deemed to include its assignee or designee,
specifically including the Trustee.
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ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 2.02. Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 2.03. Amendment. This Agreement may be amended from time to time
by the Seller and the Depositor, without notice to or the consent of any of
the Certificate Holders, (i) to cure any ambiguity or correct any mistake,
(ii) to cause the provisions herein to conform to or be consistent with or in
furtherance of the statements made with respect to the Certificates, the Trust
Fund, the Pooling Agreement or this Agreement in any Offering Document; or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to add any other provisions with respect to
matters or questions arising under this Agreement or (iv) to modify, alter,
and rescind or add any provisions to the extent necessary or desirable to
comply with any requirements imposed by the Code and the REMIC Provisions. No
such amendment effected pursuant to clauses (iii) and (iv) of the preceding
sentence shall adversely affect in any material respect the interests of any
Holder. Any such amendment shall be deemed not to adversely effect in any
material respect the interests of any Holder, if the Person requesting such
amendment obtains (i) an opinion of counsel addressed to the Trustee to such
effect or (ii) a letter from each Rating Agency that such amendment will not
result in a reduction or withdrawal of its rating of any Class of the
Certificates.
(a) This Agreement may also be amended from time to time by the Seller
and the Depositor with the consent of the Certificate Holders of not less than
66-2/3% of the Class Certificate 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 this Agreement or of modifying in any manner the rights of the Certificate
Holders; provided, however, 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 Certificate Holders of which are required to consent to any
such amendment without the consent of the Certificate Holders of 100% of the
Class Principal Amount (or Percentage Interest) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to "Holder" or
"Certificate Holders" shall be deemed to include, in the case of any Class of
Book-Entry Certificates, the related Certificate Owners.
(b) It shall not be necessary for the consent of Certificate Holders
under this Section 2.03 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificate Holders shall be subject
to such reasonable regulations as the Trustee may prescribe.
Section 2.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS,
9
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW
YORK.
Section 2.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 2.06. Indulgences; No Waivers. Neither the failure nor any delay
on the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other
or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 2.07. Headings Not to Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 2.08. Benefits of Agreement. Nothing in this Agreement, express
or implied, shall give to any Person, other than the parties to this Agreement
and their successors hereunder, any benefit or any legal or equitable right,
power, remedy or claim under this Agreement.
Section 2.09. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Seller and the Depositor have caused their
names to be signed hereto by their respective duly authorized officers as of
the date first above written.
XXXXXXX XXXXX MORTGAGE LENDING,
INC.
By:
---------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By:
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
SCHEDULE A
MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
