EXECUTION
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WASHINGTON MUTUAL BANK, FA,
as SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
as PURCHASER
and
XXXXXX BROTHERS INC.
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of March 1, 2000
WASHINGTON MUTUAL MORTGAGE LOAN TRUST
MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2000-1
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TABLE OF CONTENTS
MORTGAGE LOAN PURCHASE AGREEMENT
RECITALS...........................................................................1
AGREEMENT....................................................................... 2
1. PURCHASE AND SALE OF MORTGAGE LOANS AND CERTIFICATES................... 2
2. REPRESENTATIONS AND WARRANTIES......................................... 4
3. SURVIVAL OF REPRESENTATIONS............................................ 7
4. COVENANTS.............................................................. 7
5. SUCCESSORS AND ASSIGNS, ADDITIONAL INFORMATION........................ 8
6. INDEMNIFICATION....................................................... 8
7. NOTICES............................................................... 11
8. REPRESENTATIONS AND INDEMNITIES TO SURVIVE............................ 11
9. MISCELLANEOUS......................................................... 11
10. SEVERABILITY OF PROVISIONS............................................ 11
SCHEDULE I - MORTGAGE LOAN SCHEDULE............................................ SC-1
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
March 1, 2000, is executed on the Closing Date (as defined below) by and among
Structured Assets Securities Corporation, a Delaware corporation (such entity,
and its successors and assigns, being referred to herein as the "Purchaser"),
Washington Mutual Bank, FA, a federally chartered savings association
("Seller"), as seller, and Xxxxxx Brothers Inc. ("Xxxxxx") in its capacity as
underwriter of the Registered Certificates or placement agent of the
Privately-Offered Certificates (each as defined below).
The Purchaser, the Seller and Xxxxxx hereby recite and agree as
follows:
RECITALS
1. Schedule I attached hereto and made a part hereof (the "Mortgage
Loan Schedule") lists certain conventional, adjustable rate, first lien
residential mortgage loans (collectively, the "Mortgage Loans") owned by
the Seller that the Seller desires to sell, without recourse, to the
Purchaser, exclusive of the Seller's Retained Interest and the Seller's
servicing rights with respect thereto.
2. The Purchaser desires to purchase such Mortgage Loans and intends
immediately thereafter to transfer all of its rights, title and interest
in and to the Mortgage Loans to the Washington Mutual Mortgage Loan Trust
(the "Trust") pursuant to the terms of a Pooling and Servicing Agreement,
dated as of March 1, 2000 (the "Pooling and Servicing Agreement"), by and
among the Purchaser, the Seller, as seller and servicer, and Bankers
Trust Company of California, N.A., as trustee of the Trust (the
"Trustee").
3. In exchange for the Mortgage Loans, the Trust shall issue to the
Purchaser Mortgage-Backed Pass-Through Certificates, Series 2000-1, Class
A1, Class M1, Class M2 and Class M3 (collectively, the "Registered
Certificates") and the Class A2, Class B1, Class B2, Class B3 and Class R
Certificates (the "Privately-Offered Certificates" and together with the
Registered Certificates, the "Certificates") pursuant to the terms of the
Pooling and Servicing Agreement.
4. Xxxxxx and the Seller have entered into a pricing letter dated as
of March 24, 2000 (the "Pricing Letter") pursuant to which Xxxxxx has
agreed to purchase from the Seller and the Seller has agreed to sell to
Xxxxxx all of the Certificates, other than the Class A2 Certificates, the
Class B3 Certificates and the Class R Certificate (the "Offered
Certificates"), on the terms and conditions set forth therein.
5. The Registered Certificates will be offered and sold by Xxxxxx as
sole underwriter pursuant to the terms and conditions of an Underwriting
Agreement (Standard Terms) between the Purchaser and Xxxxxx, dated April
16, 1996 (the "Underwriting Agreement (Standard Terms)"), as supplemented
by a terms agreement, dated March 24, 2000 (the "Terms Agreement," and
together with the Underwriting Agreement (Standard Terms), the
"Underwriting Agreement") through the use of a prospectus supplement to
be dated as of the date of its printing but not later than the Settlement
Date (the "Prospectus Supplement") and a related prospectus dated of even
date, the ("Base Prospectus" and together with the Prospectus Supplement,
the "Prospectus"). The Privately-Offered Certificates will be offered by
Xxxxxx as sole Placement Agent pursuant to a Purchase Agreement, dated as
of March 24, 2000 (the "Purchase Agreement"), between the Purchaser and
Xxxxxx through the use of a confidential private placement memorandum
dated as of the date of its first use but not later than the Settlement
Date, which private placement memorandum will incorporate the Base
Prospectus (the "Private Placement Memorandum").
6. Capitalized terms used herein and not defined herein shall have
the meanings assigned to them in the Pooling and Servicing Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises herein made
and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale of Mortgage Loans and Certificates.
(a) Concurrently with the execution and delivery hereof on March 31,
2000 (the "Closing Date"), the Seller hereby sells, assigns, transfers and
otherwise conveys to the Purchaser, without recourse, all of its right, title
and interest in and to the Mortgage Loans, including all interest and
principal received on or with respect to the Mortgage Loans on or after the
Cut-off Date (other than any such payments that were due on or prior to such
date) and all 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 any related
escrow 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 related to the Mortgage Loans and the
Seller's security interest in any collateral pledged to secure the Mortgage
Loans, including the Mortgaged Properties. In consideration of such assignment
and the covenants of the Seller set forth in Section 4 below, the Seller shall
receive from the Purchaser on the Closing Date the Certificates in full
consideration for the transfer of the Mortgage Loans to the Purchaser.
(b) Xxxxxx hereby agrees to purchase, or to cause the Purchaser to
purchase, from the Seller and the Seller hereby agrees to sell to the
Purchaser or Xxxxxx all of the Offered Certificates at the prices agreed to by
Xxxxxx and the Seller in accordance with the terms of the Pricing Letter, but
in no event at prices less than the "Take-Down" prices set forth in the
Pricing Letter. The purchase and sale of all of the Offered Certificates shall
settle on the Settlement Date and, if less than all the Offered Certificates
are purchased and sold on the Settlement Date, on a subsequent date in no
event later than the "Take-Down Date" specified in the Pricing Letter. On the
Settlement Date and any such subsequent date, the Seller shall deliver to
Xxxxxx all of the Offered Certificates to be purchased and sold on such date,
together with the certificate referred to in Section 2(b), against receipt of
payment of the purchase price therefor as set forth in the Pricing Letter. On
the Settlement Date, the Seller shall pay and/or reimburse to the Purchaser
the costs and expenses incurred in connection with the issuance of the
Certificates, including but not limited to the fees and expenses relating to
rating agencies, accountants, underwriting fees, law firms, the printing and
distribution of the Prospectus and the Private Placement Memorandum, the
Trustee, the due diligence review of the Mortgage Loans and that portion of
the registration fee paid by the Purchaser to the Securities and Exchange
Commission (the "Commission") allocable to the registration of the Registered
Certificates.
(c) 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) each Trustee Mortgage File relating to the
Mortgage Loans. In the case of Mortgage Loans (if any) that have been prepaid
in full after the Cut-off Date and prior to the execution of this Agreement,
the Seller, in lieu of delivering the related Trustee Mortgage Files, shall
herewith deliver 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 Custodial Account have
been so deposited. The Seller hereby convenants not take any action
inconsistent with the ownership interest of the Purchaser or the holders of
the Certificates in the Trustee Mortgage Files.
(d) The Purchaser and the Seller intend that the conveyance by the
Seller to the Purchaser of all its right, title and interest in and to the
Mortgage Loans on the Closing Date pursuant to this Agreement shall be, and be
construed as, a sale of the Mortgage Loans, without recourse, by the Seller to
the Purchaser. It is, further, not intended that such conveyance be deemed to
be a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a
debt or other obligation of the Seller. However, in the event that the
Mortgage Loans are held to be property of the Seller, or if this Agreement is
held or deemed to create a security interest in the Mortgage Loans, then it is
intended that (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (ii) the conveyances provided for in this Section 1 shall be
deemed to be a grant by the Seller to the Purchaser, to secure payment in full
of the Secured Obligations (as defined below), of a security interest in all
of the Seller's right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Trustee Mortgage Files, and
all accounts, general intangibles, chattel paper, instruments, documents,
money, deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of the Trust Fund,
arising from or relating to (A) the Mortgage Loans, including with respect to
each Mortgage Loan, the Mortgage Note and related Mortgage, and all other
documents in the related Trustee Mortgage Files, and including any Replacement
Mortgage Loans; (B) pool insurance policies, hazard insurance policies and any
bankruptcy bond relating to the foregoing, if applicable; (C) all amounts
payable on or after the Cut-off Date to the holders of the Mortgage Loans in
accordance with the terms thereof; (D) all income, payments, proceeds and
products of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property; and (E) all cash and non-cash
proceeds of any of the foregoing; (iii) the possession or control by the
Trustee or any agent of the Trustee of Mortgage Notes or such other items of
property as constitute instruments, money, documents, advices of credit,
letters of credit, goods, certificated securities or chattel paper shall be
deemed to be possession or control by the secured party, or possession or
control by the Purchaser, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-305 or 9-115 thereof); and (iv) notifications to persons holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or acknowledgements,
receipts or confirmations from, securities intermediaries, bailees or agents
of, or persons holding for, the Trustee, as applicable, for the purpose of
perfecting such security interest under applicable law. "Secured Obligations"
means the rights of the Purchaser under this Agreement and the amount owing
the holders of the Certificates. The Seller shall, to the extent consistent
with this Agreement, take such reasonable actions as may be necessary to
ensure that, if this Agreement were deemed to create a security interest in
the Mortgage Loans and the other property described above, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and would be maintained as such throughout the term of
this Agreement. Without limiting the generality of the foregoing, the Seller
shall prepare and deliver to the Purchaser at least six months prior to any
filing date, and the Purchaser shall file, or shall cause to be filed, at the
expense of the Seller, all filings necessary to maintain the effectiveness of
any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Purchaser's security interest in or lien on
the Mortgage Loans.
Notwithstanding the foregoing provisions of this Section 1, (i) the
Seller shall retain (A) the Seller's Retained Interest and (B) all servicing
rights (including, without limitation, primary servicing and master servicing)
relating to or arising out of the Mortgage Loans, and all rights to receive
servicing fees, servicing income and other payments made as compensation for
such servicing granted to it under the Pooling and Servicing Agreement
pursuant to the terms and conditions set forth therein (collectively, the
"Servicing Rights") and (ii) the Seller's Retained Interest and the Servicing
Rights are not included in the collateral in which the Seller grants a
security interest in favor of the Purchaser pursuant to the immediately
preceding paragraph.
2. Representations and Warranties
(a) The Seller hereby represents and warrants to the Purchaser, as of
the date of this Agreement, that:
(i) the Seller has been duly organized and is validly existing
and in good standing as a federally chartered savings association
under the laws of the United States of America, with full power and
authority to enter into and perform its obligations under this
Agreement, and is in compliance with the laws of each jurisdiction
in which a Mortgaged Property is located to the extent necessary to
ensure the enforceability of each Mortgage Loan;
(ii) this Agreement has been duly authorized, executed and
delivered by the Seller and constitutes a legal, valid and binding
agreement of the Seller, enforceable against it in accordance with
its terms, subject to (A) bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium or other similar laws
affecting creditors' rights generally or the rights of creditors of
federally chartered savings associations, (B) general principles of
equity regardless of whether enforcement is sought in a proceeding
in equity or at law, and (C) public policy considerations limiting
the enforceability of provisions of this Agreement which purport to
provide indemnification from liabilities under applicable securities
laws;
(iii) neither the execution and delivery by the Seller of this
Agreement, nor the performance by the Seller of the provisions
hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the charter or
bylaws of the Seller or any law, governmental rule or regulation or
any judgment, decree or order binding on the Seller or any of its
properties, or any of the provisions of any indenture, mortgage,
deed of trust, contract or other instrument to which the Seller is a
party or by which it is bound, or (B) result in the creation of any
lien, charge, or encumbrance upon any of its properties pursuant to
the terms of any such indenture, mortgage, deed of trust, contract
or other instrument, which, in the case of either (A) or (B), would
have a material adverse effect on its ability to perform its
obligations hereunder or on the financial condition of the Seller;
(iv) there are no actions, suits or proceedings against the
Seller pending or, to the knowledge of the Seller, threatened, or,
to the knowledge of the Seller, investigations pending, before any
court, administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or (C) which might materially and adversely affect the
performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement;
(v) the Seller is the owner of each Mortgage Loan;
(vi) the Seller has acquired its ownership of each Mortgage
Loan in good faith without notice of any adverse claim;
(vii) the Seller has not assigned any interest or participation
in any Mortgage Loan, or, if the Seller has assigned an interest or
participation in any Mortgage Loan, such interest or participation
has been fully released;
(viii) the Seller has full right to sell the Mortgage Loans to
the Purchaser;
(ix) there has not been any material adverse change in the
business, operations, financial condition, properties or assets of
the Seller since December 31, 1999;
(x) the Seller is not in violation of its charter or bylaws or
in default under any agreement, indenture or instrument the effect
of which default would have a material adverse effect on the ability
of the Seller to perform its obligations under this Agreement or on
the financial condition of the Seller;
(xi) the Seller is not a party to, bound by or in breach or
violation of any indenture or other agreement or order or regulation
of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it that materially and adversely
affects the (A) ability of the Seller to perform its obligations
under this Agreement or (B) the business, operations, financial
condition, properties or assets of the Seller;
(xii) the Seller is not as of the date hereof subject to any
provisions of any supervisory agreement or memorandum of
understanding with the Office of Thrift Supervision of the U.S.
Department of Treasury; and
(xiii) no consent, approval, authorization or order of any
federal or state court or governmental agency or body is required
for the consummation by the Seller of the transactions contemplated
by the terms of this Agreement.
(b) On the Settlement Date, the Seller shall deliver to Xxxxxx and
the Purchaser a certificate of an authorized officer of the Seller to the
effect that, as of the Settlement Date:
(i) the information set forth in the Prospectus Supplement
(excluding the information set forth under the captions "Description
of the Certificates," "Yield, Prepayment and Weighted Average Life,"
"Underwriting," and "Annex I, Global Clearance, Settlement and Tax
Documentation Procedures," such excluded information, the
"Underwriter Information") does not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements contained therein, in light of the circumstances
under which they were made, not misleading;
(ii) the information set forth in the Private Placement
Memorandum (excluding the Base Prospectus and the Underwriter
Information incorporated in the Private Placement Memorandum, the
information set forth under the captions "Notice to Investors",
"Description of the Privately-Offered Certificates", "Yield on the
Privately-Offered Certificates and Prepayments" and "Plan of
Offering" and the information in Schedule I to Private Placement
Memorandum, such excluded information, the "Initial Purchaser
Information") does not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under
which they were made, not misleading.
(c) The Seller hereby represents and warrants to the Purchaser that,
with respect to the Mortgage Loans, or each Mortgage Loan, as the case may be,
as of the date of this Agreement, each of the representations and warranties
set forth in Section 2.04 of the Pooling and Servicing Agreement is true and
correct.
(d) The Purchaser hereby represents and warrants to the Seller that
as of the date of this Agreement:
(i) a registration statement on Form S-3 (File No. 333-31252),
including the Base Prospectus (the "Registration Statement"), has
been filed with the Commission and has become effective under the
Securities Act of 1933, as amended (the "Securities Act"), and no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been initiated, or to the Purchaser's knowledge, threatened, by the
Commission;
(ii) it is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has
full corporate power and authority to enter into and perform its
obligations under this Agreement and the Pooling and Servicing
Agreement; and
(iii) this Agreement and the Pooling and Servicing Agreement
have been duly authorized, executed and delivered by the Purchaser
and constitute the legal, valid and binding agreements of the
Purchaser enforceable against the Purchaser in accordance with their
respective terms, subject to (A) bankruptcy, insolvency,
receivership, conservatorship, reorganization, moratorium or other
similar laws affecting creditors' rights generally, (B) general
principles of equity regardless of whether enforcement is sought in
a proceeding in equity or at law, and (C) public policy
considerations limiting the enforceability of provisions of this
Agreement and the Pooling and Servicing Agreement which purport to
provide indemnification from penalties under applicable securities
laws.
3. Survival of Representations. Each of the representations and
warranties of the Seller and the Purchaser contained herein shall survive the
purchase and sale of the Mortgage Loans pursuant hereto and shall continue in
full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination
of this Agreement. The representations and warranties shall not be impaired by
any review and examination of documents to be delivered or held by the Seller
in respect of each Mortgage Loan or other documents evidencing or relating to
the Mortgage Loans or any failure on the part of the Purchaser or any
successor or assignee thereof to review or examine such documents.
4. Covenants.
(a) The Seller hereby covenants to the Purchaser and Xxxxxx that at
any time when a prospectus relating to the Certificates is required to be
delivered pursuant to the Securities Act or a Private Placement Memorandum is
required to be delivered in connection with the placement of Privately-Offered
Certificates, the Seller has knowledge that there has been a material change
affecting the disclosures in the Prospectus Supplement or the Private
Placement Memorandum or that the disclosures therein contain any untrue fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, the
Seller promptly will notify the Purchaser of such change, untrue fact or
omission and update the Prospectus Supplement and/or the Private Placement
Memorandum at its expense subject to the prior written consent of the
Purchaser. The Seller also agrees that, if required by applicable law, it will
update the Prospectus Supplement and/or the Private Placement Memorandum at
its expense, subject to the prior written consent of the Purchaser.
(b) Each of Xxxxxx and the Purchaser hereby covenants to the Seller
that, in the event the Seller desires to sell any of the Class A2
Certificates, the Class B3 Certificate or the Class R Certificates, it will
reasonably cooperate with the Seller to provide the Seller such information as
may be required or appropriate for any offering memorandum or, in the case of
the Class A2 Certificates, any registration statement and prospectus.
5. Successors and Assigns, Additional Information.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. No party
hereto may assign either this Agreement or any of its rights, interests or
obligations hereunder without the prior written approval of the other parties
hereto; provided, however, that the Purchaser may assign its rights and
obligations hereunder to the Trustee without the consent of the other parties
hereto.
(b) The Seller hereby agrees to furnish any and all information,
documents, certificates, letters or opinions with respect to the Mortgage
Loans reasonably requested by the Purchaser or Xxxxxx in order to perform any
of its obligations or satisfy any of the conditions on its part to be
performed or satisfied pursuant to the Pooling and Servicing Agreement, the
Underwriting Agreement or the Purchase Agreement.
6. Indemnification.
(a) In addition to any repurchase and cure obligations of the Seller
under the Pooling and Servicing Agreement, and any and all other remedies
available to the Purchaser or Xxxxxx under this Agreement, the Seller shall
indemnify and hold harmless the Purchaser and Xxxxxx against any and all
losses, damages, penalties, fines, claims, forfeitures, lawsuits, court costs,
reasonable attorney's fees, judgments, and any other costs, fees, and
expenses, arising from claims made or actions brought by any person other than
the Purchaser or Xxxxxx based on or arising from any act or failure to act or
any breach of any warranty, obligation, representation, or covenant contained
in or made by the Seller pursuant to this Agreement by any agent, employee,
representative or officer of the Seller or any of its affiliates. It is
understood and agreed that any permitted assignee of the Purchaser (including
the Trustee) shall be a third party beneficiary of this Agreement. The
indemnification obligations of the Seller hereunder shall survive the
termination of this Agreement.
(b) The Purchaser agrees to indemnify and hold harmless the Seller
and each person who controls the Seller within the meaning of either the
Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act") against any and all losses, claims, damages or liabilities,
joint or several, to which they may become subject under the Securities Act,
the Exchange Act, or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement of a material fact or alleged untrue statement of a material
fact contained in the Registration Statement or the Base Prospectus, the
Underwriter Information contained in the Prospectus Supplement or the Initial
Purchaser Information contained in the Private Placement Memorandum, or in any
revision or amendment thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact with respect to the
Registration Statement required to be stated therein or necessary to make the
statements therein not misleading, or with respect to the Base Prospectus,
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it or
them in connection with investigating or defending any such loss, claim,
damage, liability or action;
(c) The Seller agrees to indemnify and hold harmless the Purchaser,
its directors, its officers who signed the Registration Statement or any
amendment thereof, Xxxxxx, its directors and officers, and each person who
controls the Purchaser or Xxxxxx within the meaning of either the Securities
Act or the Exchange Act, to the same extent as the foregoing indemnities from
the Purchaser to the Seller, but only to the extent that such untrue statement
or alleged untrue statement or omission or alleged omission was in the
Prospectus Supplement (or any updated or supplemented Prospectus Supplement)
or the Private Placement Memorandum (or any updated or amended Private
Placement Memorandum) and was not contained in the Underwriter Information or
the Initial Purchaser Information, as applicable.
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under
this Section, notify the indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability that it may have to any indemnified
party under this Section except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any other legal expenses subsequently and
independently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation by the
indemnified party undertaken with notice to and approval by the indemnifying
party; provided, however, that an indemnified party shall have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel for the indemnified party will be at the expense of
such indemnified party unless (1) the employment of counsel by the indemnified
party has been authorized in writing by the indemnifying party, (2) the
indemnified party has reasonably concluded (based upon advice of counsel to
the indemnified party) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based upon advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf
of the indemnified party) or (4) the indemnifying party has not in fact
employed counsel reasonably satisfactory to the indemnified party to assume
the defense of such action within a reasonable time after receiving notice of
the commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
subsections (a), (b) and (c) above, shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be
a final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(e) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities referred to in subsection (a),
(b) or (c) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Purchaser or Xxxxxx on the one hand and the
Seller on the other from the issuance of the Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, or
if the indemnified party failed to give the notice required under subsection
(d) above and the indemnifying party has been materially prejudiced by such
failure, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above, but also the relative fault of the
Purchaser or Xxxxxx on the one hand and the Seller on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Purchaser on the one hand and
the Seller on the other shall be deemed to be in the same proportion as the
reimbursement for expenses received by the Purchaser from the Seller pursuant
to Section 1 under the heading "Agreement" on the Closing Date bears to the
principal amount of the Certificates on such date. The relative benefits
received by Xxxxxx on the one hand and the Seller on the other shall be deemed
to be in the same proportion as the total cash compensation received by Xxxxxx
in connection with the underwriting of the Registered Certificates and the
placement of the Privately-Offered Certificates bears to the principal amount
of the Registered Certificates and the Privately-Offered Certificates on such
date. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state material fact related to information
supplied by the Purchaser or Xxxxxx on the one hand, or the Seller, on the
other hand, and the parties relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission.
The Purchaser, Xxxxxx and the Seller agree that it would not be just
and equitable if contribution pursuant to this subsection (e) were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to above in this subsection
(e). The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim that is the subject of this subsection (e).
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
7. Notices. All demands, notices and communications hereunder shall
be in writing, shall be effective only upon receipt and shall, if sent to the
Purchaser, be addressed to it at Structured Asset Securities Corporation, 000
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Single Family
Mortgage Department, 12th Floor; if sent to Xxxxxx, be addressed to it at
Three World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxx Xxxxxx, Senior Vice President; or, if sent to the Seller, be
addressed to it at Washington Mutual, FA, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxx X. Xxxxxxx, Senior Executive Vice President.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, covenants, indemnities and other
statements of the Purchaser, Xxxxxx and the Seller and their respective
officers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of the
Purchaser, Xxxxxx or the Seller and will survive delivery of and payment for
the Certificates. The provisions of Section 6 hereof shall survive the
termination or cancellation of this Agreement.
9. Miscellaneous. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated except by
a writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument. This Agreement
supersedes all prior or contemporaneous agreements and understandings relating
to the subject matter hereof.
10. 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.
* * *
IN WITNESS WHEREOF, the Purchaser, Xxxxxx and the Seller have caused
this Agreement to be duly executed by their respective officers as of the day
and year set forth below.
Dated: March 31, 2000 STRUCTURED ASSET SECURITIES
CORPORATION
By:
---------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By:
---------------------------------
Name:
Title:
WASHINGTON MUTUAL BANK, FA
By:
---------------------------------
Name:
Title:
SCHEDULE I
MORTGAGE LOAN SCHEDULE
