EXECUTION COPY
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XXXXXX BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of July 1, 2004
Structured Adjustable Rate Mortgage Loan Trust
(Mortgage Pass-Through Certificates, Series 2004-10)
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ARTICLE I. CONVEYANCE OF MORTGAGE LOANS.....................................3
Section 1.01. Mortgage Loans.........................................3
Section 1.02. Delivery of Documents..................................5
Section 1.03. Review of Documentation................................5
Section 1.04. Representations and Warranties of the Seller...........5
Section 1.05. Grant Clause..........................................16
Section 1.06. Assignment by Depositor...............................17
ARTICLE II. MISCELLANEOUS PROVISIONS........................................17
Section 2.01. Binding Nature of Agreement; Assignment...............17
Section 2.02. Entire Agreement......................................17
Section 2.03. Amendment.............................................17
Section 2.04. Governing Law.........................................18
Section 2.05. Severability of Provisions............................18
Section 2.06. Indulgences; No Waivers...............................18
Section 2.07. Headings Not to Affect Interpretation.................18
Section 2.08. Benefits of Agreement.................................19
Section 2.09. Counterparts..........................................19
SCHEDULE
SCHEDULE A Mortgage Loan Schedule
This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of
July 1, 2004 (the "Agreement"), is executed by and between Xxxxxx Brothers
Holdings Inc. (the "Seller") and Structured Asset Securities Corporation (the
"Depositor").
All capitalized terms not defined herein shall have the same
meanings assigned to such terms in that certain Trust Agreement (the "Trust
Agreement"), dated as of July 1, 2004, among the Depositor, Aurora Loan Services
Inc., as master servicer ("Aurora"), and Xxxxx Fargo Bank, National Association,
as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, Xxxxxx Brothers Bank, FSB (the "Bank"), pursuant to
the following specified agreements (each, a "Bank Transfer Agreement" and
collectively, the "Transfer Agreements"), has purchased or received certain
mortgage loans identified on the Mortgage Loan Schedule attached hereto as
Schedule A-1 (each, a "Bank Transferred Mortgage Loan" and collectively, the
"Transferred Mortgage Loans"):
1. Loan Purchase Agreement, dated as of August 29, 2002, by
and between Xxxxxx Brothers Bank, FSB and American Gold
Mortgage Corp. ("American");
2. Loan Purchase Agreement, dated as of March 21, 2002, by
and between Xxxxxx Brothers Bank, FSB and Colorado
Federal Savings Bank ("Colorado");
3. Loan Purchase Agreement, dated as of February 26, 2002,
by and between Xxxxxx Brothers Bank, FSB and CTX
Mortgage Company, LLC ("CTX");
4. Loan Purchase Agreement, dated as of December 5, 2002,
by and between Xxxxxx Brothers Bank, FSB and E-Loan,
Inc. ("E-Loan");
5. Loan Purchase Agreement, dated as of March 15, 2002, by
and between Xxxxxx Brothers Bank, FSB and Metrociti
Mortgage LLC ("Metrociti");
6. Mortgage Loan Purchase Agreement, dated as of December
18, 2003, by and between Xxxxxx Brothers Bank, FSB and
National Bank of Commerce ("NBC");
7. Loan Purchase Agreement, dated as of January 2, 2003, by
and between Xxxxxx Brothers Bank, FSB and RBC Mortgage
Company ("RBC");
8. Loan Purchase Agreement, dated as of September 8, 2003,
by and between Xxxxxx Brothers Bank, FSB and RBC;
9. Flow Mortgage Loan Purchase and Warranties Agreement,
dated as of June 10, 2002, by and between Xxxxxx
Brothers Bank, FSB and SIB Mortgage Corp. ("SIB"), as
amended by Amendment No. 1 dated as of November 1, 2002
and Amendment No. 2 dated as of September 29, 2003;
10. Mortgage Loan Purchase and Warranties Agreement, dated
as of August 1, 2003, by and between Xxxxxx Brothers
Bank, FSB and Sierra Pacific Mortgage Company, Inc.
("Sierra");
11. Loan Purchase Agreement, dated as of March 18, 2004, by
and between Xxxxxx Brothers Bank, FSB and Summit
Mortgage Corp. ("Summit");
12. Mortgage Loan Purchase and Warranties Agreement, dated
as of August 13, 2003, by and between Xxxxxx Capital, A
Division of Xxxxxx Brothers Holdings, Inc. and U.S.
Mortgage Corp. ("U.S. Mortgage"); and
13. Master Agreement, dated as of October 26, 2000, by and
between Xxxxxx Brothers Bank, FSB and Wendover Financial
Services Corporation ("Wendover" and collectively with
American, Colorado, CTX, E-Loan, Metrociti, NBC, RBC,
SIB, Sierra, Summit and U.S. Mortgage, the "Transferors"
and each, a "Transferor").
WHEREAS, in addition to the Bank Transferred Mortgage Loans,
the Bank has funded certain mortgage loans originated by Aurora Loan Services
Inc. identified on the Mortgage Loan Schedule attached hereto as Schedule A-2
(each, a "Bank Originated Mortgage Loan" and together with the Bank Transferred
Mortgage Loans, the "Bank Mortgage Loans" or the "Mortgage Loans");
WHEREAS, pursuant to an Assignment and Assumption Agreement
(the "Assignment and Assumption Agreement"), dated as of July 1, 2004, between
the Bank, as assignor, and the Seller, as assignee, the Bank has assigned all of
its right, title and interest in and to the Bank Transfer Agreements and related
Mortgage Loans as listed on Schedule A-1, in the case of the Bank Transferred
Mortgage Loans, or Schedule A-2, in the case of the Bank Originated Mortgage
Loans, and the Seller has accepted the rights and benefits of, and assumed the
obligations of the Bank under, the Bank Transfer Agreements;
WHEREAS, the Seller is a party to the following servicing
agreements (collectively, the "Servicing Agreement") pursuant to which the
Mortgage Loans are serviced by Aurora, Colonial Savings, F.A. ("Colonial"), RBC
Mortgage Company ("RBC") and Sierra Pacific Mortgage Company, Inc. ("Sierra")
(each as a servicer, a "Servicer" and collectively, the "Servicers"):
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1. Servicing Agreement, dated as of July 1, 2004, between
the Seller and Aurora pursuant to which the Mortgage
Loans are serviced by Aurora;
2. Reconstituted Servicing Agreement, dated as of July 1,
2004, by and between the Seller and RBC.
3. Correspondent Servicing Agreement, dated as of June 26,
2002, by and among the Bank, Aurora and Colonial and
Transfer Notice, dated as of July 1, 2004, between the
Seller and Colonial;
4. Reconstituted Servicing Agreement, dated as of July 1,
2004, by and between the Seller and Sierra.
WHEREAS, the Seller desires to sell, without recourse, all of
its rights, title and interest in and to the Mortgage Loans (exclusive of any
Retained Interest on such Mortgage Loans, if any) to the Depositor and to assign
all of its rights and interest under the Transfer Agreements and the Servicing
Agreements relating to the Mortgage Loans, and to delegate all of its
obligations thereunder, to the Depositor; and
WHEREAS, the Seller and the Depositor acknowledge and agree
that the Depositor will convey the Mortgage Loans to a Trust Fund created
pursuant to the Trust Agreement, assign all of its rights and delegate all of
its obligations hereunder to the Trustee for the benefit of the
Certificateholders, 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. Mortgage Loans.
(a) 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 (exclusive of any Retained Interest on such
Mortgage Loans, if any) identified on Schedule A-1 and Schedule A-2 hereto,
having an aggregate principal balance as of the Cut-off Date of
$1,749,258,066.14. 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 July 1, 2004 other than, (i) any amounts representing
Retained Interest, if any, and (ii) 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 relating to the Mortgage Loans, the Seller's
security interest in any collateral pledged to secure the Mortgage Loans,
including the Mortgaged Properties, and any proceeds of the foregoing.
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(b) Concurrently with the execution and delivery of this
Agreement, the Seller hereby assigns to the Depositor all of its rights and
interest under each Transfer Agreement and each Servicing Agreement, other than
any right to receive Retained Interest if any, and any servicing rights retained
thereunder, and delegates to the Depositor all of its obligations thereunder, to
the extent relating to the Mortgage Loans. The Seller and the Depositor further
agree that this Agreement incorporates the terms and conditions of any
assignment and assumption agreement or other assignment document required to be
entered into under any of the Transfer Agreements (any such document an
"Assignment Agreement") and this Agreement constitutes an Assignment Agreement
under such Transfer Agreement, and the Depositor hereby assumes the obligations
of the assignee under each such Assignment Agreement. Concurrently with the
execution hereof, the Depositor tenders the purchase price of $1,749,258,066.14.
The Depositor hereby accepts such assignment and delegation, and shall be
entitled to exercise all the rights of the Seller under each Transfer Agreement
and each Servicing Agreement, other than any servicing rights thereunder, as if
the Depositor had been a party to each such agreement.
(c) Schedules of Mortgage Loans. The Depositor and the Seller
have agreed upon which of the Mortgage Loans owned by the Seller are to be
purchased by the Depositor pursuant to this Agreement and the Seller will
prepare on or prior to the Closing Date a final schedule describing such
Mortgage Loans (the "Mortgage Loan Schedule"). The Mortgage Loan Schedule shall
conform to the requirements of the Depositor as set forth in this Agreement and
to the definition of "Mortgage Loan Schedule" under the Trust Agreement. The
Mortgage Loan Schedule attached hereto as Schedule A-1 specifies those Mortgage
Loans that are Transferred Mortgage Loans and the Mortgage Loan Schedule
attached hereto as Schedule A-2 specifies those Mortgage Loans that are Bank
Originated Mortgage Loans and which have been assigned by the Bank to the Seller
pursuant to the Assignment and Assumption Agreement.
Section 1.02. Delivery of Documents.
(a) In connection with such transfer and assignment of the
Mortgage Loans hereunder, the Seller, shall, at least three (3) Business Days
prior to the Closing Date, deliver, or cause to be delivered, to the Depositor
(or its designee) the documents or instruments with respect to each Mortgage
Loan (each a "Mortgage File") so transferred and assigned, as specified in the
related Transfer Agreements or Servicing Agreements.
(b) For Mortgage Loans (if any) that have been prepaid in full
on or 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 Collection Account maintained by the Master Servicer for such
purpose have been so deposited.
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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 custodian, LaSalle Bank National Association, U.S. Bank National
Association and Xxxxx Fargo Bank, National Association, as applicable (each, a
"Custodian" and together, the "Custodians"), for the Depositor. Each Custodian
is required to review, within 45 days following the Closing Date, each
applicable Mortgage File. If in the course of such review the related Custodian
identifies any Material Defect, the Seller shall be obligated to cure such
Material 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 Qualifying Substitute 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 Section 2.02(c) of the Trust Agreement.
Section 1.04. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Depositor
that as of the Closing Date:
(i) The Seller is a 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 and the Assignment and
Assumption Agreement;
(ii) The execution and delivery by the Seller of this
Agreement and the Assignment and Assumption Agreement have
been duly authorized by all necessary corporate action on the
part of the Seller; neither the execution and delivery of this
Agreement or the Assignment and Assumption Agreement, nor the
consummation of the transactions herein or therein
contemplated, nor compliance with the provisions hereof or
thereof, 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 certificate of
incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the
Seller of this Agreement and the Assignment and Assumption
Agreement and the consummation of the transactions
contemplated hereby and thereby 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;
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(iv) Each of this Agreement and the Assignment and
Assumption Agreement has been duly executed and delivered by
the Seller and, assuming due authorization, execution and
delivery by the Bank, in the case of the Assignment and
Assumption Agreement, and the Depositor, in the case of this
Agreement, constitutes a valid and binding obligation of the
Seller enforceable against it in accordance with its
respective 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 the Assignment and Assumption 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 or the Assignment
and Assumption Agreement.
(b) The representations and warranties of each Transferor with
respect to the Transferred Mortgage Loans in the applicable Transfer Agreement
were made as of the date of such Transfer Agreement. To the extent that any
fact, condition or event with respect to a Transferred Mortgage Loan constitutes
a breach of both (i) a representation or warranty of a Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of the
Seller under this Agreement, the sole right or remedy of the Depositor with
respect to a breach by the Seller of such representation and warranty (other
than a breach by the Seller of the representations and warranties made pursuant
to Sections 1.04(b)(xi), 1.04(b)(xvi) and 1.04(b)(xvii)) shall be the right to
enforce the obligations of such Transferor under any applicable representation
or warranty made by it. The representations made by the Seller pursuant to
Sections 1.04(b)(xi), 1.04(b)(xvi) and 1.04(b)(xvii) shall be direct obligations
of the Seller. The Depositor acknowledges and agrees that the representations
and warranties of the Seller in this Section 1.04(b) (other than the
representations and warranties made pursuant to Sections 1.04(b)(xi),
1.04(b)(xvi) and 1.04(b)(xvii)) are applicable only to facts, conditions or
events that do not constitute a breach of any representation or warranty made by
the related Transferor in the applicable Transfer Agreement. The Seller shall
have no obligation or liability with respect to any breach of a representation
or warranty made by it with respect to the Transferred Mortgage Loans if the
fact, condition or event constituting such breach also constitutes a breach of a
representation or warranty made by the related Transferor in such Transfer
Agreement, without regard to whether the related Transferor fulfills its
contractual obligations in respect of such representation or warranty; provided,
however, that if the related Transferor fulfills its obligations under the
provisions of such Transfer Agreement by substituting for the affected Mortgage
Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the
Seller shall, in exchange for such substitute mortgage loan, provide the
Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan
or (b) within the two-year period following the Closing Date, with a Qualified
Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to
the foregoing, the Seller represents and warrants upon delivery of the
Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to
each, that:
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(i) The information set forth with respect to the
Transferred Mortgage Loans on the Mortgage Loan Schedule
provides an accurate listing of the Transferred Mortgage
Loans, and the information with respect to each Transferred
Mortgage Loan on the Mortgage Loan Schedule is true and
correct in all material respects at the date or dates
respecting which such information is given;
(ii) There are no defaults (other than delinquency in
payment) in complying with the terms of any Mortgage, and the
Seller has no notice as to any taxes, governmental
assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously
became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any,
each Mortgage requires all buildings or other improvements on
the related Mortgaged Property to be insured by a generally
acceptable insurer against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area
where the related Mortgaged Property is located pursuant to
insurance policies conforming to the requirements of the
guidelines of FNMA or FHLMC. If upon origination of the
Transferred Mortgage Loan, the Mortgaged Property was in an
area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards
(and such flood insurance has been made available) a flood
insurance policy meeting the requirements of the current
guidelines of the Federal Flood Insurance Administration is in
effect which policy conforms to the requirements of the
current guidelines of the Federal Flood Insurance
Administration. Each Mortgage obligates the related Mortgagor
thereunder to maintain the hazard insurance policy at the
Mortgagor's cost and expense, and on the Mortgagor's failure
to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at such Mortgagor's cost and expense,
and to seek reimbursement therefor from the Mortgagor. Where
required by state law or regulation, each Mortgagor has been
given an opportunity to choose the carrier of the required
hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance
policy is the valid and binding obligation of the insurer, is
in full force and effect, and will be in full force and effect
and inure to the benefit of the Depositor upon the
consummation of the transactions contemplated by this
Agreement;
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(iv) Each Mortgage has not been satisfied, cancelled,
subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the
Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such release, cancellation,
subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting,
enforceable and perfected first lien on the related Mortgaged
Property (including all improvements on the Mortgaged
Property). The lien of the Mortgage is subject only to: (1)
liens of current real property taxes and assessments not yet
due and payable and, if the related Mortgaged Property is a
condominium unit, any lien for common charges permitted by
statute, (2) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the
date of recording of such Mortgage acceptable to mortgage
lending institutions in the area in which the related
Mortgaged Property is located and specifically referred to in
the lender's Title Insurance Policy or attorney's opinion of
title and abstract of title delivered to the originator of the
applicable Transferred Mortgage Loan, and (3) such other
matters to which like properties are commonly subject which do
not, individually or in the aggregate, materially interfere
with the benefits of the security intended to be provided by
the Mortgage. Any security agreement, chattel mortgage or
equivalent document related to, and delivered to the Trustee
in connection with, a Transferred Mortgage Loan establishes a
valid, subsisting and enforceable first lien on the property
described therein and the Depositor has full right to sell and
assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of
the Transferred Mortgage Loans to the Depositor, the Seller
was the sole owner of record and holder of each Transferred
Mortgage Loan, and the Seller had good and marketable title
thereto, and has full right to transfer and sell each
Transferred Mortgage Loan to the Depositor free and clear,
except as described in paragraph (v) above, of any
encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and has full right and
authority, subject to no interest or participation of, or
agreement with, any other party, to sell and assign each
Transferred Mortgage Loan pursuant to this Agreement;
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(vii) Each Transferred Mortgage Loan other than any
Cooperative Loan is covered by either (i) an attorney's
opinion of title and abstract of title the form and substance
of which is generally acceptable to mortgage lending
institutions originating mortgage loans in the locality where
the related Mortgaged Property is located or (ii) an ALTA
mortgagee Title Insurance Policy or other generally acceptable
form of policy of insurance, issued by a title insurer
qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring the originator of the
Transferred Mortgage Loan, and its successors and assigns, as
to the first priority lien of the Mortgage in the original
principal amount of the Transferred Mortgage Loan (subject
only to the exceptions described in paragraph (v) above). If
the Mortgaged Property is a condominium unit located in a
state in which a title insurer will generally issue an
endorsement, then the related Title Insurance Policy contains
an endorsement insuring the validity of the creation of the
condominium form of ownership with respect to the project in
which such unit is located. With respect to any Title
Insurance Policy, the originator is the sole insured of such
mortgagee Title Insurance Policy, such mortgagee Title
Insurance Policy is in full force and effect and will inure to
the benefit of the Depositor upon the consummation of the
transactions contemplated by this Agreement, no claims have
been made under such mortgagee 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 mortgagee Title Insurance Policy;
(viii) To the best of the Seller's knowledge, no
foreclosure action is being threatened or commenced with
respect to any Transferred Mortgage Loan. There is no
proceeding pending for the total or partial condemnation of
any Mortgaged Property (or, in the case of any Cooperative
Loan, the related cooperative unit) and each such property is
undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty, so as to have a
material adverse effect on the value of the related Mortgaged
Property as security for the related Transferred Mortgage Loan
or the use for which the premises were intended;
(ix) There are no mechanics' or similar liens or claims
which have been filed for work, labor or material (and no
rights are outstanding that under the law could give rise to
such liens) affecting the related Mortgaged Property which are
or may be liens prior to, or equal or coordinate with, the
lien of the related Mortgage;
(x) Each Transferred Mortgage Loan was originated by a
savings and loan association, savings bank, commercial bank,
credit union, insurance company or similar institution that is
supervised and examined by a Federal or State authority, or by
a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act;
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(xi) Each Transferred 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 and abusive lending laws;
(xii) As of the Closing Date, each Transferred Mortgage
Loan is a "qualified mortgage" within the meaning of Section
860G of the Code and Treas. Reg. ss.1.860G-2 (determined
without regard to Treas. Reg. ss.1.860G-2(f) or any similar
rule that provides that a defective obligation is a qualified
mortgage for a temporary period);
(xiii) As of the Closing Date, other than with respect to
Retained Interest, no Transferred Mortgage Loan provides for
interest other than at either (i) a single fixed rate in
effect throughout the term of the Transferred Mortgage Loan or
(ii) a single "variable rate" (within the meaning of Treas.
Reg. ss.1.860G-1(a)(3)) in effect throughout the term of the
Transferred Mortgage Loan;
(xiv) As of the Closing Date, no Transferred Mortgage Loan
is the subject of pending or final foreclosure proceedings;
(xv) As of the Closing Date, based on delinquencies in
payment on the Transferred Mortgage Loans, the Seller would
not initiate foreclosure proceedings with respect to any
Transferred Mortgage Loan prior to the next scheduled payment
date on such Transferred Mortgage Loan; and
(xvi) None of the Transferred Mortgage Loans are "high
cost" loans as defined under any applicable federal, state or
local predatory or abusive lending laws.
(xvii) No Transferred 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 Transferred Mortgage
Loan originated on or after October 1, 2002 through March 6,
2003 is governed by the Georgia Fair Lending Act.
In addition to the foregoing representations and warranties
made in subparagraphs (i) through (xvii) of this Section 1.04(b), the Seller
further represents and warrants upon delivery of the Pool 2 Transferred Mortgage
Loans, as to each, that:
(a) No Pool 2 Transferred Mortgage Loan underlying the
security is covered by the Home Ownership and
Equity Protection Act of 1994 ("HOEPA").
(b) No Pool 2 Transferred Mortgage Loan was originated
in the State of Georgia between October 1, 2002
and March 7, 2003;
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(c) There is no Pool 2 Mortgage Transferred Mortgage
Loan in the trust that was originated on or after
March 7, 2003, which is a "high cost home loan" as
defined under the Georgia Fair Lending Act.
(d) No Pool 2 Transferred Mortgage Loan in the trust
is a "high cost home," "covered" (excluding home
loans defined as "covered home loans" pursuant to
clause (1) of the definition of that term in the
New Jersey Home Ownership Security Act of 2002),
"high risk home" or "predatory" loan under any
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).
(e) No proceeds from any Pool 2 Transferred Mortgage
Loan were used to finance single premium credit
insurance policies as part of the origination of,
or as a condition to closing, such Pool 2
Transferred Mortgage Loan;
(f) The applicable Servicer for each Pool 2
Transferred Mortgage Loan has fully furnished in
the past (and the Seller shall cause the
applicable Servicer to furnish in the future), 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;
(g) No Pool 2 Transferred Mortgage Loan imposes a
Prepayment Charge for a term in excess of five
years; and
(h) The Cut-off Date Balance of each Pool 2
Transferred Mortgage Loan does not exceed the
applicable maximum original loan amount
limitations with respect to first lien or second
lien one-to-four family residential mortgage
loans, as applicable, as set forth in the Xxxxxxx
Mac Selling Guide.
(c) In addition to the representations and warranties set
forth in Section 1.04(b), all of which are also made by the Seller with respect
to the Bank Originated Mortgage Loans as of the Closing Date (or as of such
other date as is specified in particular representations and warranties), the
Seller hereby represents and warrants to the Depositor upon the delivery to the
Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely
as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
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(i) With respect to any hazard insurance policy covering a
Bank Originated Mortgage Loan and the related Mortgaged
Property, the Seller has not engaged in, and has no knowledge
of the Bank's or the Mortgagor's having engaged in, any act or
omission which would impair the coverage of any such policy,
the benefits of the endorsement provided for therein, or the
validity and binding effect of either, including without
limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been
received, retained or realized by the Seller;
(ii) Neither the Seller nor the Bank has waived the
performance by the Mortgagor of any action, if the Mortgagor's
failure to perform such action would cause a Bank Originated
Mortgage Loan to be in default, nor has the Seller or the Bank
waived any default resulting from any action or inaction by
the Mortgagor;
(iii) The terms of the Mortgage Note and Mortgage have not
been impaired, waived, altered or modified in any respect,
except by a written instrument which has been recorded, if
necessary to protect the interests of the Depositor and which
has been delivered to the Custodian;
(iv) The Mortgaged Property relating to each Bank
Originated Mortgage Loan is a fee simple property located in
the state identified in the Mortgage Loan Schedule and
consists of a parcel of real property with a detached single
family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a low-rise
condominium project, or an individual unit in a planned unit
development; provided, however, that any condominium project
or planned unit development shall conform with the applicable
FNMA and FHLMC requirements regarding such dwellings. No
portion of the Mortgaged Property is used for commercial
purposes;
(v) The Mortgage Note and the Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker
thereof enforceable in accordance with its terms. All parties
to the Mortgage Note and the Mortgage and any other related
agreement had legal capacity to enter into the Bank Originated
Mortgage Loan and to execute and deliver the Mortgage Note and
the Mortgage and any other related agreement, and the Mortgage
Note and the Mortgage have been duly and properly executed by
such parties. The documents, instruments and agreements
submitted for loan underwriting were not falsified and contain
no untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to
make the information and statements therein not misleading. To
the best of the Seller's knowledge, no fraud was committed in
connection with the origination of the Bank Originated
Mortgage Loan;
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(vi) Each Bank Originated Mortgage Loan has been closed
and the proceeds of the Bank Originated 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 improvement and as to
disbursements of any escrow funds therefor have been complied
with. All costs, fees and expenses incurred in making or
closing the Bank Originated Mortgage Loan and the recording of
the Mortgage were paid, and the Mortgagor is not entitled to
any refund of any amounts paid or due under the Mortgage Note
or Mortgage;
(vii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the 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 of
acceleration, and neither the Seller nor its predecessors has
waived any default, breach, violation or event of
acceleration;
(viii) All improvements which were considered in
determining the Appraised Value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of
the Mortgaged Property and no improvements on adjoining
properties encroach upon the Mortgaged Property. No
improvement located on or being part of the Mortgaged Property
is in violation of any applicable zoning law or regulation;
(ix) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder
thereof adequate for the realization against the related
Mortgaged Property of the benefits of the security, including
(A) in the case of a Mortgage designated as a deed of trust,
by trustee's sale, and (B) otherwise by judicial or
non-judicial foreclosure. There is no homestead or other
exemption available to the related Mortgagor which would
materially interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the
Mortgage subject to the applicable federal and state laws and
judicial precedent with respect to bankruptcy and rights of
redemption. Upon default by a Mortgagor on a Bank Originated
Mortgage Loan and foreclosure on, or trustee's sale of, the
Mortgaged Property pursuant to the proper procedures, the
holder of the Bank Originated Mortgage Loan will be able to
deliver good and merchantable title to the property;
(x) The Mortgage Note is not and has not been secured by
any collateral except the lien of the corresponding Mortgage
and the security interest of any applicable security agreement
or chattel mortgage;
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(xi) In the event the Mortgage constitutes 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 the Mortgage, and no fees or expenses are or
will become payable by the Depositor to the trustee under the
deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(xii) The Mortgage Note, the Mortgage, the Assignment of
Mortgage and any other documents required to be delivered for
the Bank Originated Mortgage Loan by the Seller under this
Agreement as set forth in Section 1.02 hereof have been
delivered to the Custodian. The Seller is in possession of a
complete, true and accurate Mortgage File in compliance with
Section 1.02 hereof, except for such documents the originals
of which have been delivered to the Custodian;
(xiii) The Assignment of Mortgage is in recordable form
and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(xiv) The Mortgage contains an enforceable provision for
the acceleration of the payment of the unpaid principal
balance of a Bank Originated Mortgage Loan in the event that
the Mortgaged Property is sold or transferred without the
prior written consent of the Mortgagee thereunder;
(xv) No Bank Originated Mortgage Loan contains provisions
pursuant to which Monthly Payments are paid or partially paid
with funds deposited in any separate account established by
the Mortgagor or anyone on behalf of the Mortgagor, or paid by
any source other than the Mortgagor, nor does any Bank
Originated Mortgage Loan contain any other similar provisions
currently in effect which may constitute a "buydown"
provision. No Bank Originated Mortgage Loan is a graduated
payment mortgage loan and no Bank Originated Mortgage Loan has
a shared appreciation or other contingent interest feature;
(xvi) Any future advances made prior to the Cut-off Date
have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the
consolidated principal amount is insured by a title insurance
policy, an endorsement to the policy insuring the mortgagee's
consolidated interest or by other title evidence acceptable to
FNMA and FHLMC. The consolidated principal amount does not
exceed the original principal amount of any Bank Originated
Mortgage Loan;
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(xvii) The origination and collection practices used with
respect to each Bank Originated Mortgage Loan have been in
accordance with Accepted Servicing Practices, and have been in
all respects in compliance with all applicable laws and
regulations. With respect to escrow deposits and escrow
payments, all such payments are in the possession of the
Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have
not been made. All escrow payments have been collected in full
compliance with state and federal law. An escrow of funds is
not prohibited by applicable law and has been established in
an amount sufficient to pay for every item which remains
unpaid and which has been assessed but is not yet due and
payable. No escrow deposits or escrow payments or other
charges or payments due the Seller have been capitalized under
the Mortgage or the Mortgage Note. All Mortgage Interest Rate
adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage Note. Any
interest required to be paid pursuant to state and local law
has been properly paid and credited;
(xviii) The Mortgage File contains an appraisal of the
related Mortgage Property signed prior to the approval of the
Bank Originated Mortgage Loan application by a qualified
appraiser, who had 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 the Bank Originated Mortgage Loan,
and the appraisal and appraiser both satisfy the requirements
of Title XI of the Federal Institutions Reform, Recovery, and
Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Bank Originated
Mortgage Loan was originated;
(xix) The Mortgaged Property is free from any and all
toxic or hazardous substances and there exists no violation of
any local, state or federal environmental law, rule or
regulation. There is no pending action or proceeding directly
involving any Mortgaged Property of which the Seller is aware
in which compliance with any environmental law, rule or
regulation is an issue; and to the best of the Seller's
knowledge, nothing further remains to be done to satisfy in
full all requirements of each such law, rule or regulation;
(xx) The Bank Originated Mortgage Loan does not contain a
provision permitting or requiring conversion to a fixed
interest rate Mortgage Loan;
(xxi) No Bank Originated Mortgage Loan was made in
connection with (i) the construction or rehabilitation of a
Mortgaged Property or (ii) facilitating the trade-in or
exchange of a Mortgaged Property;
(xxii) No action, inaction or event has occurred and no
state of facts exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to
coverage under any applicable pool insurance policy, special
hazard insurance policy, primary mortgage loan insurance
policy or bankruptcy bond, irrespective of the cause of such
failure of coverage. In connection with the placement of any
such insurance, no commission, fee or other compensation has
been or will be received by the Seller or any designee of the
Seller or any corporation in which the Seller or any officer,
director or employee had a financial interest at the time of
placement of such insurance;
15
(xxiii) Each original Mortgage was recorded and, except
for those Bank Originated Mortgage Loans subject to the MERS
identification system, all subsequent assignments of the
original Mortgage (other than the assignment to the Depositor)
have been recorded in the appropriate jurisdictions wherein
such recordation is necessary to perfect the liens thereof as
against creditors of the Seller, or are in the process of
being recorded; and
(xxiv) Any and 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
applicable to each Bank Originated Mortgage Loan have been
complied with.
(d) It is understood and agreed that the representations and
warranties set forth in Sections 1.04(b) and 1.04(c) herein shall survive the
Closing Date. Upon discovery by either the Seller or the Depositor of a breach
of any of the foregoing representations and warranties (excluding a breach of
subparagraphs (xi), (xvi) and (xvii) under Section 1.04(b)), that adversely and
materially affects the value of the related Mortgage Loan, that does not also
constitute a breach of a representation or warranty of a Transferor in the
related Transfer Agreement, the party discovering such breach shall give prompt
written notice to the other party; provided, however, notwithstanding anything
to the contrary herein, this paragraph shall be specifically applicable to a
breach by the Seller of the representations made pursuant to subparagraphs (xi),
(xvi) and (xvii) under Section 1.04(b) irrespective of the Transferor's breach
of a comparable representation or warranty in the Transfer Agreement. Within 60
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 Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
Section 1.05. Grant Clause. It is intended that the conveyance of the
Seller's right, title and interest in and to the Mortgage Loans and other
property conveyed pursuant to this Agreement on the Closing Date 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 any 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, the Mortgage Loans and other
property; and (3) this Agreement shall constitute a security agreement under
applicable law.
16
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 rights of the Depositor in
this Agreement shall be deemed to be for the benefit of and exercisable by its
assignee or designee, specifically including the Trustee.
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 Holders, (i) to cure any ambiguity, (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 Trust Agreement or this
Agreement in the Prospectus Supplement; or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein,
(iii) to make any other provisions with respect to matters or questions arising
under this Agreement or (iv) to add, delete, or amend 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 clause
(iii) 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
affect in any material respect any Holder, if the Trustee receives written
confirmation from each Rating Agency that such amendment will not cause such
Rating Agency to reduce the then current rating assigned to the Certificates, if
any (and any Opinion of Counsel requested by the Trustee in connection with any
such amendment may rely expressly on such confirmation as the basis therefor).
(a) This Agreement may also be amended from time to time by
the Seller and the Depositor with the consent of the Holders of not less than
66-2/3% of the Class Principal Amount or Class Notional 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
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 Class Notional 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 Class Notional Amount (or Percentage Interest) of each Class of
Certificates affected thereby. For purposes of this paragraph, references to
"Holder" or "Holders" shall be deemed to include, in the case of any Class of
Book-Entry Certificates, the related Certificate Owners.
17
(b) It shall not be necessary for the consent of 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 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 WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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.
18
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.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
19
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.
XXXXXX BROTHERS HOLDINGS INC.
By:_______________________________________
Name: Xxxxxxx Xxxxxxxxxx
Title: Authorized Signatory
STRUCTURED ASSET SECURITIES
CORPORATION
By:_______________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SCHEDULE A-1
TRANSFERRED MORTGAGE LOAN SCHEDULE
Intentionally Omitted
A-1-1
SCHEDULE A-2
BANK ORIGINATED MORTGAGE LOAN SCHEDULE
Intentionally Omitted
A-2-1
