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XXXXXX BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of June 1, 2003
Structured Asset Securities Corporation
(Mortgage Pass-Through Certificates, Series 2003-23H)
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ARTICLE I CONVEYANCE OF MORTGAGE LOANS.......................................2
Section 1.01 Sale of Mortgage Loans.......................................2
Section 1.02 Delivery of Documents........................................3
Section 1.03 Review of Documentation......................................3
Section 1.04 Representations and Warranties of the Seller.................3
Section 1.05 Grant Clause................................................13
Section 1.06 Assignment by Depositor.....................................13
ARTICLE II MISCELLANEOUS PROVISIONS.........................................14
Section 2.01 Binding Nature of Agreement; Assignment.....................14
Section 2.02 Entire Agreement............................................14
Section 2.03 Amendment...................................................14
Section 2.04 Governing Law...............................................15
Section 2.05 Severability of Provisions..................................15
Section 2.06 Indulgences; No Waivers.....................................15
Section 2.07 Headings Not to Affect Interpretation.......................15
Section 2.08 Benefits of Agreement.......................................15
Section 2.09 Counterparts................................................15
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This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of June 1, 2003
(the "Agreement"), is executed by and between Xxxxxx Brothers Holdings Inc.
("LBH" or 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 June 1, 2003, among the Depositor, Aurora Loan Services Inc., as
master servicer (the "Master Servicer") and Citibank, N.A., as trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, pursuant to the following specified agreements (each, a "Transfer
Agreement," and collectively, the "Transfer Agreements"), LBH has purchased or
received certain mortgage loans identified on the Mortgage Loan Schedule
attached hereto as Schedule A-1 (the "Bank Transferred Mortgage Loans"):
Master Mortgage Loan Purchase and Warranties Agreement, dated as of
February 1, 2002, by and between Xxxxxx Brothers Bank, FSB ("the "Bank") and
Centre Capital Group ("CCGI"); and
Flow Mortgage Loan Purchase and Warranties Agreement, dated as of August
1, 2001, by and between the Bank, National Bank of Commerce, Central California
Bank & Trust, NBC Bank, FSB, First Market Bank and Commerce Finance Company.
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 June 1, 2003, between the
Bank, as assignor, and LBH, 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
LBH has accepted the rights and benefits of, and assumed the obligations of the
Bank under, the Bank Transfer Agreements;
WHEREAS, LBH is the party to the following servicing agreements (each, a
"Servicing Agreement and collectively, the "Servicing Agreements") pursuant to
which the Mortgage Loans are serviced by Aurora Loan Services Inc. ("ALS"),
Countrywide Home Loans Servicing LP ("Countrywide"), SouthTrust Mortgage
Corporation ("SouthTrust"), SunTrust Mortgage, Inc. ("Suntrust"), Washington
Mutual Bank, FA ("WAMU"), Xxxxxxxxxx Mortgage Company, Inc. ("Xxxxxxxxxx") and
Xxxxx Fargo Home Mortgage, Inc. ("WFHM") (each, a "Servicer"):
Servicing Agreement, dated as of June 1, 2003, among LBH and ALS;
Reconstituted Servicing Agreement, dated as of June 1, 2003, between LBH
and Countrywide;
Reconstituted Servicing Agreement, dated as of June 1, 2003, between LBH
and SouthTrust;
Reconstituted Servicing Agreement, dated as of June 1, 2003, between LBH
and Suntrust;
Reconstituted Servicing Agreement, dated as of June 1, 2003, between LBH
and WAMU;
Reconstituted Servicing Agreement, dated as of June 1, 2003, between LBH
and Xxxxxxxxxx; and
Reconstituted Servicing Agreement, dated as of June 1, 2003, between LBH
and WFHM.
WHEREAS, LBH desires to sell, without recourse, all of its rights, title
and interest in and to the Mortgage Loans 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, LBH 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, LBH and the Depositor agree as follows:
ARTICLE I
CONVEYANCE OF MORTGAGE LOANS
Section 1.01 Sale of Mortgage Loans. Concurrently with the execution and
delivery of this Agreement on the Closing Date, LBH 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 LBH in and to the Mortgage Loans identified on Schedule A-1 and Schedule A-2
hereto, having an aggregate principal balance as of the Cut-off Date of
$221,359,412.45. Such conveyance includes, without limitation, the right to all
distributions of principal and interest received on or with respect to the
Mortgage Loans on or after June 1, 2003 other than payments of
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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 LBH'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, LBH's rights under any Insurance Policies relating to the
Mortgage Loans, and LBH's security interest in any collateral pledged to secure
the Mortgage Loans, including the Mortgaged Properties and any proceeds to the
foregoing.
Concurrently with the execution and delivery of this Agreement, LBH hereby
assigns to the Depositor all of its rights and interest under each Transfer
Agreement and each Servicing Agreement, other than any servicing rights retained
thereunder, and delegates to the Depositor all of its obligations thereunder, to
the extent relating to the Mortgage Loans. pursuant to the provisions of such
Transfer Agreement or Servicing Agreement, 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 $221,359,412.45. The Depositor hereby accepts such
assignment and delegation, and shall be entitled to exercise all the rights of
LBH under each Transfer Agreement and each Servicing Agreement, as if the
Depositor had been a party to each such agreement.
Section 1.02 Delivery of Documents. In connection with such transfer and
assignment of the Mortgage Loans hereunder, LBH, 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 Transfer Agreements or Servicing Agreements.
(a) For Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, LBH, 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.
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 U.S. Bank, National Association, as custodian or Xxxxx Fargo Bank Minnesota,
National Association, as custodian, as applicable, (each, the "Custodian") for
the applicable Mortgage Loans 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
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review the related Custodian identifies any Material Defect, LBH 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 that:
(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;
(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
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(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 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) and 1.04(b)(xvi) 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) and 1.04(b)(xvi)) 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 (other than the representations and
warranties made pursuant to Sections 1.04(b)(xi) and 1.04(b)(xvi)) 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 (or as of such other date
as may be specified in particular representations and warranties), as to each,
that:
(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
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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;
(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
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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;
(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.
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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;
(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.1860.G-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.
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(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 Cut-off Date, 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 Cut-off Date:
(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
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misleading. To the best of the Seller's knowledge, no fraud was committed
in connection with the origination of the Bank Originated Mortgage Loan;
(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;
(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
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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;
(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
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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;
(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
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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) With respect to any of the foregoing representations and warranties
made in subparagraph (xiv) of Section 1.04(b) that is made to the best of the
Seller's knowledge or belief, if it is discovered by the Seller, the Trustee or
the Depositor that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value of the
related Mortgage Loan then, notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation and warranty being inaccurate at
the time the representation and warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
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) and (xvi) 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) and (xvi) 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 Dateshall
constitute, and shall be construed as, a sale of such property and not a grant
of a security interest to secure a loan. However, if such conveyance is deemed
to be in respect of a loan, it is intended that: (1) the rights and obligations
of the parties shall be established pursuant to the terms of this Agreement; (2)
the Seller hereby grants to the Depositor a first priority security interest in
all of the Seller's right, title and interest in, to and under, whether now
owned or hereafter acquired, the Mortgage Loans and other property; and (3) this
Agreement shall constitute a security agreement under applicable law.
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Section 1.06 Assignment by Depositor. The Depositor shall have the right,
upon notice to but without the consent of the Seller, to assign, in whole or in
part, its interest under this Agreement with respect to the Mortgage Loans to
the Trustee, and the Trustee then shall succeed to all rights of the Depositor
under this Agreement. All references to the Depositor in this Agreement shall be
deemed to include its assignee or designee, specifically including the Trustee.
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
(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
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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.
(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, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 2.05 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 2.06 Indulgences; No Waivers. Neither the failure nor any delay on
the part of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
Section 2.07 Headings Not to Affect Interpretation. The headings contained
in this Agreement are for convenience of reference only, and they shall not be
used in the interpretation hereof.
Section 2.08 Benefits of Agreement. Nothing in this Agreement, express or
implied, shall give to any Person, other than the parties to this Agreement and
their successors hereunder, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement.
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Section 2.09 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Seller and the Depositor have caused their names
to be signed hereto by their respective duly authorized officers as of the date
first above written.
XXXXXX BROTHERS HOLDINGS INC.
By:_____________________________________
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
STRUCTURED ASSET SECURITIES
CORPORATION
By:_____________________________________
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
SCHEDULE A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
