EXHIBIT 10
SUBSEQUENT TRANSFER INSTRUMENT
Pursuant to (i) this Subsequent Transfer Instrument, dated July 15, 2004
(this "Instrument"), between Xxxxxxx Xxxxx Mortgage Investors, Inc., as seller
(the "Depositor"), and U.S. Bank National Association, not in its individual
capacity but solely as trustee of the Terwin Mortgage Trust, Asset-Backed
Certificates, Series TMTS 2004-5HE, as purchaser (the "Trustee"), and the
Pooling and Servicing Agreement, dated as of June 1, 2004 (the "Pooling and
Servicing Agreement"), among the Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor, Terwin Advisors LLC, as seller, Chase Manhattan Mortgage Corporation,
as master servicer, JPMorgan Chase Bank, as securities administrator and backup
servicer, Countrywide Home Loans Servicing LP, as servicer, GreenPoint Mortgage
Funding Inc., as servicer, Specialized Loan Servicing, LLC, as servicer and U.S.
Bank National Association, as trustee, the Depositor hereby transfers certain
Mortgage Loans listed on the attached Schedule of Mortgage Loans (the
"Subsequent Mortgage Loans") to the Trustee, on behalf of the Trust Fund.
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement.
Section 1. Conveyance of Subsequent Mortgage Loans.
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(a) The Depositor does hereby sell, transfer, assign, set over and convey
to the Trustee, on behalf of the Trust Fund, without recourse, all of its right,
title and interest in and to the Subsequent Mortgage Loans, and including all
amounts due on the Subsequent Mortgage Loans after the related Subsequent
Cut-off Date, and all items with respect to the Subsequent Mortgage Loans to be
delivered pursuant to Section 2.01 of the Pooling and Servicing Agreement;
provided, however, that the Depositor reserves and retains all right, title and
interest in and to amounts due on the Subsequent Mortgage Loans on or prior to
the related Subsequent Cut-off Date. The Depositor, contemporaneously with the
delivery of this Instrument, has delivered or caused to be delivered to the
Trustee each item set forth in Section 2.01 of the Pooling and Servicing
Agreement. The transfer to the Trustee by the Depositor of the Subsequent
Mortgage Loans identified on the Mortgage Loan Schedule attached hereto as
Exhibit B shall be absolute and is intended by the Depositor, the Servicer, the
Trustee and the Certificateholders to constitute and to be treated as a sale by
the Depositor to the Trust Fund.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders all the right, title
and interest of the Depositor, in, to and under the Subsequent Mortgage Loan
Purchase Agreement, dated the date hereof, between the Depositor as purchaser
and the Servicer as seller, to the extent of the Subsequent Mortgage Loans, a
copy of which agreement is annexed hereto as Attachment G.
(c) Any additional terms of the sale are set forth on Attachment A hereto.
Section 2. Representations and Warranties; Conditions Precedent.
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(a) The Depositor hereby confirms that each of the conditions precedent and
the representations and warranties set forth in Sections 2.03 and 2.11 of the
Pooling and Servicing Agreement are satisfied as of the date hereof with respect
to the Subsequent Mortgage Loans.
(b) All terms and conditions of the Pooling and Servicing Agreement are
hereby ratified and confirmed; provided, however, that in the event of any
conflict, the provisions of this Instrument shall control over the conflicting
provisions of the Pooling and Servicing Agreement.
Section 3. Recordation of Instrument.
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To the extent permitted by applicable law, this Instrument, or a memorandum
thereof if permitted under applicable law, is subject to recordation in all
appropriate public offices for real property records in all of the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the applicable Servicer at the
Certificateholders' expense on direction of the related Certificateholders, but
only when accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders or is necessary for the administration or servicing of the
Mortgage Loans.
Section 4. Governing Law.
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This Instrument shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws, without giving effect to
principles of conflicts of law.
Section 5. Counterparts.
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This Instrument may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same instrument.
Section 6. Successors and Assigns.
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This Instrument shall inure to the benefit of and be binding upon the
Depositor and the Trustee and their respective successors and assigns.
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.
By:
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Name: Xxxxxxx Xxxxxx
Title: President
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee for Terwin Mortgage Trust,
Asset-Backed Certificates, Series TMTS
2004-5HE
By:
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Name:
Title:
Attachments
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A. Additional terms of sale, if any.
B. Schedule of Subsequent Mortgage Loans.
C. Depositor's Officer's certificate.
D. Opinions of Depositor's counsel (bankruptcy, corporate).
E. Trustee's Certificate.
F. Opinion of Trustee's Counsel.
G. Subsequent Mortgage Loan Purchase Agreement.
