Exhibit 99.1
EXECUTION
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XXXXXX BROTHERS HOLDINGS INC.,
SELLER
and
IBF SPECIAL PURPOSE CORPORATION VII,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of February 1, 2001
Amortizing Residential Collateral Trust
(Mortgage Pass-Through Certificates Series 2001-BC1)
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Table of Contents
Page
ARTICLE I.
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans..........................................3
Section 1.02. Delivery of Documents...........................................3
Section 1.03. Review of Documentation.........................................3
Section 1.04. Representations and Warranties of the Seller....................4
Section 1.05. Grant Clause....................................................9
Section 1.06. Assignment by Purchaser.........................................9
ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment.........................9
Section 2.02. Entire Agreement................................................9
Section 2.03. Amendment.......................................................9
Section 2.04. Governing Law..................................................10
Section 2.05. Severability of Provisions.....................................10
Section 2.06. Indulgences; No Waivers........................................10
Section 2.07. Headings Not to Affect Interpretation..........................11
Section 2.08. Benefits of Agreement..........................................11
Section 2.09. Counterparts...................................................11
SCHEDULES
SCHEDULE A Mortgage Loan Schedule
EXHIBIT A Underwriting Criteria of each Transferor
This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of February 1,
2001 (the "Agreement"), is executed by and between Xxxxxx Brothers Holdings
Inc. ("LBH" or the "Seller") and IBF Special Purpose Corporation VII (the
"Purchaser").
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 February 1, 2001, between Structured Asset Securities
Corporation, as depositor (the "Depositor"), and Xxxxx Fargo Bank Minnesota,
National Association, as trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the following specified mortgage loan purchase and
warranties, seller's warranties and servicing or assignment agreements (each a
"Transfer Agreement," and together the "Transfer Agreements"), Xxxxxx Capital,
a division of Xxxxxx Brothers Holdings Inc. ("Xxxxxx Capital"), or Xxxxxx
Brothers Bank, FSB, an affiliate of the Seller (the "Bank"), has purchased
from various mortgage originators or their correspondents (each a "Transferor"
and collectively, the "Transferors"), certain conventional, first lien,
adjustable and fixed rate, fully amortizing and balloon, residential mortgage
loans identified on the Mortgage Loan Schedule attached hereto as Schedule A
(collectively, the "Mortgage Loans"):
X. Xxxxxx Capital, as purchaser:
a. Mortgage Loan Purchase and Warranties Agreement, dated as of
March 1, 2000, between Xxxxxx Capital, as Purchaser, and
Fremont Investment & Loan, as Seller (for Conventional, Fixed
and Adjustable Rate, Residential Mortgage Loans);
II. Bank, as purchaser:
a. Seller's Warranties and Servicing Agreement, dated as of
September 1, 1999, between the Bank, as Purchaser, and Option
One Mortgage Corporation, as Seller (for Conventional
Residential Adjustable and Fixed Rate Mortgage Loans);
b. Purchase and Warranties Agreement, dated as of October 13,
1999, between the Bank, as Purchaser, and BNC Mortgage, Inc.,
as Seller (for Adjustable Rate Mortgage Loans);
c. Purchase and Warranties Agreement, dated and effective as of
October 26, 1999, between the Bank, as Purchaser, and Long
Beach Mortgage Company, as Seller (for Fixed and Adjustable
Rate Mortgage Loans - Flow Delivery Program);
d. Purchase and Warranties Agreement, dated as of December 10,
1999, between the Bank, as Purchaser, and BNC Mortgage, Inc.,
as Seller (for Fixed Rate Mortgage Loans);
e. Mortgage Loan Purchase and Warranties Agreement, dated as of
December 15, 1999, between the Bank, as Purchaser, and
Ameriquest Mortgage Company, as Seller (for Conventional
Adjustable Rate Residential Mortgage Loans);
f. Flow Purchase and Warranties Agreement, dated as of March 10,
2000, between the Bank, as Purchaser, and BNC Mortgage, Inc.,
as Seller (for Fixed and Adjustable Rate Mortgage Loans).
g. Purchase, Warranties and Servicing Agreement, dated as of April
1, 2000, between Xxxxxx Brothers Bank, FSB, as Purchaser and
Long Beach Mortgage Company, as Seller (for Fixed and
Adjustable Rate Mortgage Loans -- Flow Delivery Program).
WHEREAS, pursuant to the following assignment and assumption agreements,
the Bank has assigned all of its rights, title and interest in and to the
foregoing Transfer Agreements listed in II(a) through (g), including the
Mortgage Loans acquired by the Bank thereunder, to the Seller:
a. Assignment and Assumption Agreements, each dated as of
March 8, 2001, and effective as of February 1, 2001, between
the Bank, as assignor, and the Seller, as assignee, with
respect to each Transfer Agreement entered into by the Bank
listed in II (a) through (g) above.
WHEREAS, the Seller is a party to a servicing agreement dated as of
February 1, 2001 (the "Servicing Agreement") between the Seller and Option One
Mortgage Corporation, as servicer, pursuant to which the Mortgage Loans are to
be serviced by the Servicer.
WHEREAS, the Seller desires to sell, without recourse, all of its right,
title and interest in and to the Mortgage Loans to the Purchaser and to assign
all of its rights and interest under the Transfer Agreements and the Servicing
Agreement relating to the Mortgage Loans to the Purchaser.
WHEREAS, the Seller and the Purchaser acknowledge and agree (i) that the
Purchaser will convey the Mortgage Loans to the Depositor, assign all of its
rights and delegate all of its obligations hereunder to the Depositor, (ii)
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 Purchaser is
intended, unless otherwise specified, to mean the Depositor, the Purchaser 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 Purchaser 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, the Seller does hereby transfer, assign, set over,
deposit with and otherwise convey to the Purchaser, 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 identified on Schedule A hereto, having an aggregate
Scheduled Principal Balance as of the Cut-off Date of $217,850,332.99. 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 the Cut-off Date (other than 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,
and the Seller's security interest in any collateral pledged to secure the
Mortgage Loans, including the Mortgaged Properties.
Concurrently with the execution and delivery of this Agreement, the
Seller hereby assigns to the Purchaser all of its rights and interest under
each Transfer Agreement and the Servicing Agreement, other than any servicing
rights retained pursuant to the provisions of such Transfer Agreement or
Servicing Agreement, to the extent relating to the Mortgage Loans.
Concurrently with the execution hereof, the Purchaser tenders the purchase
price of $230,051,820. The Purchaser hereby accepts such assignment and
delegation, and shall be entitled to exercise all the rights of the Seller
under each Transfer Agreement and the Servicing Agreement, as if the Purchaser
had been a party to each such agreement.
Section 1.02. Delivery of Documents. (a) In connection with such transfer
and assignment of the Mortgage Loans hereunder, the Seller does hereby
deliver, or cause to be delivered, to the Purchaser (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 the Servicing Agreement.
(b) For Mortgage Loans (if any) that have been prepaid in full 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 Purchaser 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 Certificate Account maintained by the Trustee for such purpose have
been so deposited.
Section 1.03. Review of Documentation. The Purchaser, 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 Xxxxx Fargo Bank Minnesota, National Association (the "Trustee"), The Chase
Manhattan Bank, as successor by merger to Chase Bank of Texas, National
Association and U.S. Bank Trust National Association (each, a "Custodian" and,
collectively, the "Custodians") for the Purchaser. Each Custodian and the
Trustee are required to review, within 45 days following the Closing Date,
each applicable Mortgage File. If in the course of such review the Trustee or
the related Custodian discovers any document or documents constituting a part
of a Mortgage File that is missing, does not appear regular on its face (i.e.,
is mutilated, damaged, defaced, torn or otherwise physically altered) or
appears to be unrelated to the Mortgage Loans identified in the Mortgage Loan
Schedule (each a "Material Defect"), the Seller shall be obligated to cure
such Material Defect or to repurchase the related Mortgage Loan from the
Purchaser (or, at the direction of and on behalf of the Depositor or the
Purchaser, as the case may be, from the Trust Fund or the Depositor, as the
case may be), or to substitute a Qualifying Substitute Mortgage Loan therefor,
in each case to the same extent and in the same manner as the Purchaser is
obligated to the Depositor under the mortgage loan sale and assignment
agreement dated February 1, 2001, between the Purchaser and the Depositor (or
the Depositor is obligated to the Trustee and the Trust Fund under the Trust
Agreement, as the case may be).
Section 1.04. Representations and Warranties of the Seller. (a) The
Seller hereby represents and warrants to the Purchaser that as of the date
hereof 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;
(ii) the execution and delivery by the Seller of this Agreement have
been duly authorized by all necessary corporate action on the
part of the Seller; neither the execution and delivery of this
Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, 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 consummation of the transactions contemplated
hereby 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) this Agreement has been duly executed and delivered by the
Seller and, assuming due authorization, execution and delivery
by the Purchaser, constitutes a valid and binding obligation of
the Seller enforceable against it in accordance with its 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 (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.
(b) The representations and warranties of each Transferor with respect to
the 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 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 only right or remedy of the Purchaser shall be the right to
enforce the obligations of such Transferor under any applicable representation
or warranty made by it. The Purchaser acknowledges and agrees that the
representations and warranties of the Seller in this Section 1.04(b) 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 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 Purchaser (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 Mortgage Loan. Subject to the foregoing, the Seller
represents and warrants upon delivery of the Mortgage Loans to the Purchaser
hereunder, as to each, that:
(i) The information set forth with respect to the Mortgage Loans on
the Mortgage Loan Schedule provides an accurate listing of the
Mortgage Loans, and the information with respect to each
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) 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
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 Purchaser 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 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 such
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 Mortgage
Loan establishes a valid, subsisting and enforceable first lien
on the property described therein and the Purchaser has full
right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the
Mortgage Loans to the Purchaser, the Seller was the sole owner
of record and holder of each Mortgage Loan, and the Seller had
good and marketable title thereto, and has full right to
transfer and sell each Mortgage Loan to the Purchaser 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
Mortgage Loan pursuant to this Agreement;
(vii) Each Mortgage 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
Mortgage Loan, and its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount
of the 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 Purchaser 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 Mortgage
Loan. There is no proceeding pending for the total or partial
condemnation of any Mortgaged Property 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 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 Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union,
insurance company, or similar institution which 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) 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
Mortgage Loan have been complied with; and
(xii) Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G of the Code and Treas. Reg.ss.1.860G-2.
(xiii) No Mortgage Loan is 30 or more days' delinquent in payment as
of the Cut-off Date and has not been 60 or more days delinquent
in payment for the 12 month period prior to the Closing Date.
For purposes of this Agreement 30 days or more delinquent will
be defined as any loan that has been paid through no later than
November 30, 2000.
(xiv) Each Mortgage Loan is secured by a single parcel of property
with one of the following structures thereon: detached single
family residence, two to four family dwelling; individual
condominium unit in a condominium project; individual unit in a
planned unit development; or a manufactured home that conforms
with applicable Xxxxxx Xxx requirements;
(xv) No Mortgage Loan is secured by any of the following types of
properties: cooperatives; log homes; mobile homes; geodesic
homes; condominiums over four stories; or other unique
structures;
(xvi) No Mortgage Loan is subject to the requirements of the Home
Ownership and Equity Protection Act of 1994 or any comparable
state law;
(xvii) No Mortgage Loan has a loan-to-value ratio greater than 90%;
(xviii) No Mortgage Loan had an original balance of greater than
$500,000 nor less than $40,000;
(xix) To the best of the Seller's knowledge, all prepayment
penalties on Mortgage Loans that were originated in states in
which state laws or regulations prohibit the enforcement of
prepayment penalties are enforceable under the Parity Act as of
the Cut-off Date;
It is understood and agreed that the representations and warranties set
forth herein and the obligations of the Seller set forth in this Section
survive delivery of the Mortgage Files and the Assignment of Mortgage of each
Mortgage Loan to the Purchaser. Upon discovery by either the Seller or the
Purchaser of a breach of any of the foregoing representations and warranties
(in the case of representation (xix), without regard to the Seller's
knowledge) that adversely and materially affects the value of the related
Mortgage Loan, and that does not also constitute a breach of a representation
or warranty of the related Transferor in the applicable Transfer Agreement,
the party discovering such breach shall give prompt written notice to the
other party. Within 60 days of the discovery of any such breach, the Seller
shall, with respect to a breach of any of representations (i) to (iv), (vi) to
(xii) and (xix) of this Section, either (a) cure such breach in all material
respects, (b) repurchase such Mortgage Loan or any property acquired in
respect thereof from the Purchaser 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. With respect to a
breach of any of representations (v) or (xiii) to (xviii) of this Section
1.04(b), the Seller shall repurchase the Mortgage Loan from the Purchaser at a
price equal to the sum of (a) the Purchase Price with respect to such Mortgage
Loan and (b) an amount equal to the product of (i) the Scheduled Principal
Balance of such Mortgage Loan and (ii) the product of (1) 0.0776 and (2) a
fraction, the numerator of which is the greater of (A) zero and (B) 12 minus
the number of months that have elapsed since the Closing Date and the
denominator of which is 12. With respect to a breach of representation (xix)
of this Section 1.04(b), the Seller shall repurchase the Mortgage Loan from
the Purchaser at a price equal to the sum of (a) the Purchase Price with
respect to such Mortgage Loan and (b) an amount equal to the product of (i)
the Scheduled Principal Balance of such Mortgage Loan and (ii) 0.01.
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 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 such conveyance is deemed to be in respect of a
loan, it is intended that: (a) the rights and obligations of the parties shall
be established pursuant to the terms of this Agreement; (b) the Seller hereby
grants to the Purchaser 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 (c) this
Agreement shall constitute a security agreement under applicable law.
Section 1.06. Assignment by Purchaser. Concurrently with the execution of
this Agreement, the Purchaser shall assign its interest under this Agreement
with respect to the Mortgage Loans to the Depositor and the Depositor shall
assign its interest under this Agreement to the Trustee, and the Trustee then
shall succeed to all rights of the Purchaser under this Agreement. All
references to the rights of the Purchaser in this Agreement shall be deemed to
be for the benefit of and exercisable by its assignee or designee,
specifically including the Depositor or the Trustee, as the case may be.
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. (a) This Agreement may be amended from time to
time by the Seller and the Purchaser, without notice to or the consent of any
of the Certificateholders, (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 Certificateholder. Any
such amendment shall be deemed not to adversely affect in any material respect
any Certificateholder, 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).
(b) This Agreement may also be amended from time to time by the Seller
and the Purchaser with the consent of the Certificateholders 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
Certificateholders; 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 Certificateholder 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 Certificateholders of
which are required to consent to any such amendment without the consent of the
Certificateholders 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.
(c) It shall not be necessary for the consent of Certificateholders 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 Certificateholders 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. The parties to this Agreement agree
that it is appropriate, in furtherance of the intent of such parties set forth
herein, that the Trustee enjoy the full benefit of the provisions of this
Agreement as an intended third party beneficiary; provided, however, nothing
in this Agreement, express or implied, shall give to any Person, other than
the parties to this Agreement and their successors hereunder, the Trustee and
the Certificateholders, any benefit or 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.
IN WITNESS WHEREOF, the Seller and the Purchaser 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.,
as Seller
By: /s/ Xxxxxx X. Xxxxx
_________________________________________
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
IBF SPECIAL PURPOSE CORPORATION VII,
as Purchaser
By: /s/ X. X. Xxxxxxx
_________________________________________
Name: X.X. Xxxxxxx
Title: President
ACKNOWLEDGED BY:
XXXXX FARGO BANK MINNESOTA,
National Association,
as Trustee
By: /s/ Xxx Xxxxx
________________________________
Name: Xxx Xxxxx
Title: Vice President
SCHEDULE A
MORTGAGE LOAN SCHEDULE
EXHIBIT A
UNDERWRITING CRITERIA OF EACH TRANSFEROR
Maintained in a separate closing binder at Xxxxx & Xxxx LLP
entitled "Underwriting Criteria"
