AND (III) IN ITS SOLE DISCRETION, IN LIEU OF SELLING
ALL OR A PORTION OF SUCH MORTGAGE LOANS, TO GIVE SELLER CREDIT FOR SUCH MORTGAGE
LOANS IN AN AMOUNT EQUAL TO THE FAIR MARKET VALUE THEREFOR ON SUCH DATE,
DETERMINED BY MBF IN ITS SOLE DISCRETION, AND IN EITHER CASE UPON THE
DETERMINATION AND RECEIPT OF BY MBF OF ALL SUCH AMOUNTS OWING BY SELLER, MBF
SHALL TRANSFER ANY REMAINING PORTION OF SUCH MORTGAGE LOANS AND PROCEEDS THEREOF
TO SELLER; PROVIDED, HOWEVER, THAT SELLER SHALL BE LIABLE TO MBF FOR ANY
DEFICIENCY IF THE NET PROCEEDS OF ALL SUCH SALES AND OTHER DISPOSITIONS OF THE
MORTGAGE LOANS ARE INSUFFICIENT TO PAY ALL AMOUNTS OWING BY SELLER TO MBF.
9.
TRUE SALES OF MORTGAGE LOANS.
9.1
TRUE SALES.
FOR THE AVOIDANCE OF DOUBT, MBF AND SELLER CONFIRM
THAT THE TRANSACTIONS CONTEMPLATED HEREIN ARE INTENDED TO BE TRUE SALES AND
ABSOLUTE ASSIGNMENTS OF THE MORTGAGE LOANS BY SELLER TO MBF (AND THEN BY MBF TO
SELLER) AND NOT BORROWINGS SECURED BY THE MORTGAGE LOANS.
MBF SHALL OWN EACH
MORTGAGE LOAN ACQUIRED PURSUANT TO SECTION 3 HEREOF AND HAVE ALL RIGHT AND
ENTITLEMENT APPURTENANT THERETO, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
PLEDGE OR TRANSFER THE MORTGAGE LOAN (SUBJECT ONLY TO ANY CONTINUING OBLIGATIONS
MBF MAY HAVE TO SELLER HEREUNDER), AND THE RIGHT TO REPLACE SELLER AS THE
SERVICING AGENT WITH RESPECT TO SUCH MORTGAGE LOAN, ALL ON SUCH TERMS AS IT
DEEMS APPROPRIATE.
SELLER SHALL NOT TAKE ANY ACTION INCONSISTENT WITH MBF'S
OWNERSHIP OF A MORTGAGE LOAN PURCHASED HEREUNDER AND SHALL NOT CLAIM ANY LEGAL,
BENEFICIAL OR OTHER INTEREST IN SUCH A MORTGAGE LOAN OTHER THAN ITS LIMITED
RIGHT AND OBLIGATION, UNDER SECTION 5 HEREOF, TO PROVIDE SERVICING FOR SUCH
MORTGAGE LOAN.
FOR THE AVOIDANCE OF DOUBT, MBF MAY, IN ITS SOLE DISCRETION,
ASSIGN ALL OF ITS RIGHT, TITLE AND INTEREST IN, OR GRANT A SECURITY INTEREST IN,
ANY MORTGAGE LOAN PURCHASED HEREUNDER.
NO NOTICE OF SUCH ASSIGNMENT NEED BE
GIVEN BY MBF TO SELLER.
ASSIGNMENT BY MBF OF A MORTGAGE LOAN AS PROVIDED IN
THIS SECTION 9.1 SHALL NOT RELEASE MBF FROM ITS OBLIGATIONS UNDER THIS
AGREEMENT.
9.2
PRECAUTIONARY SECURITY INTEREST.
WITHOUT PREJUDICE TO THE
PROVISIONS OF SECTION 9.1 AND THE EXPRESSED INTENT OF THE PARTIES, IN THE EVENT
THAT, FOR ANY REASON, ANY TRANSACTION HEREUNDER CONCERNING A MORTGAGE LOAN IS
CONSTRUED BY ANY REGULATORY AUTHORITY AS A BORROWING OR FINANCING, RATHER THAN A
TRUE SALE AND ABSOLUTE CONVEYANCE OF THE MORTGAGE LOAN, SELLER AND MBF INTEND
AND AGREE THAT MBF SHALL HAVE A PERFECTED FIRST PRIORITY SECURITY INTEREST IN
SUCH MORTGAGE LOAN PURCHASED HEREUNDER.
IN SUCH CASE, SELLER SHALL BE DEEMED TO
HAVE HEREBY GRANTED TO MBF (AND POSSESSION OF ANY PROMISSORY NOTES, INSTRUMENTS
OR DOCUMENTS BY SELLER OR ANY SUCCESSOR SERVICER AS SERVICER SHALL CONSTITUTE
POSSESSION ON BEHALF OF MBF FOR THIS
25
PURPOSE) A SECURITY INTEREST IN AND LIEN UPON THE MORTGAGE LOAN, THE MORTGAGE
NOTE, ANY APPLICABLE TAKEOUT COMMITMENT, ALL SERVICING RIGHTS AND OTHER RIGHTS
AND PRIVILEGES