Exhibit 99.1
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS TRUST
SERIES MLCC 2005-A
MORTGAGE PASS-THROUGH CERTIFICATES
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
Between
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT CORPORATION
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
dated as of February 1, 2005
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 February 1, 2005, by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation, a Delaware
corporation ("MLCC") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 February 1, 2005 (the "Pooling and Servicing Agreement")
among MLMI, as depositor, ▇▇▇▇▇ Fargo Bank, N.A., as trustee (the "Trustee"),
PHH 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 ▇▇▇▇▇▇▇
▇▇▇▇▇ Pledged Collateral Account Control Agreement between the Guarantor or
Mortgagor, as applicable, the Seller and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ & 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.
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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.
(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
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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 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 ▇▇▇▇▇▇▇▇▇'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;
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(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 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,
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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 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;
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(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) 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
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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, 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.
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(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.
(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.
(xxxv) None of the Mortgage Loans that are secured by property located
in the State of Illinois are in violation of the provisions of the Illinois
Interest 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
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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 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors
Trust, Series MLCC 2005-A.
(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
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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 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
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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.
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.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
By:
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT CORPORATION
By:
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
Standard & Poor's LEVELS(R) Glossary Version 5.6 Revised, Appendix E
[INTENTIONALLY OMITTED]