EXECUTION
==============================================================================
XXXXXX CAPITAL, A DIVISION OF XXXXXX BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of January 1, 2000
(Amortizing Residential Collateral Trust
Mortgage Pass-Through Certificates Series 2000-BC1)
==============================================================================
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 Xxxxxx Capital.......................................3
Section 1.05. Grant Clause...........................................................................7
Section 1.06. Assignment by Depositor................................................................7
ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment................................................7
Section 2.02. Entire Agreement.......................................................................7
Section 2.03. Amendment..............................................................................7
Section 2.04. Governing Law..........................................................................8
Section 2.05. Severability of Provisions.............................................................8
Section 2.06. Indulgences; No Waivers................................................................8
Section 2.07. Headings Not to Affect Interpretation..................................................8
Section 2.08. Benefits of Agreement..................................................................8
Section 2.09. Counterparts...........................................................................8
SCHEDULES
SCHEDULE A Mortgage Loan Schedule
This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT is executed by and
between Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc. ("Xxxxxx
Capital"), and Structured Asset Securities Corporation (the "Depositor"),
dated as of the 1st day of January, 2000.
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 January 1, 2000, among the Depositor, Norwest Bank
Minnesota, National Association, as Master Servicer, and First Union National
Bank, a national banking association, as Trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the following specified mortgage loan purchase,
transfer, sale or assignment agreements (each a "Transfer Agreement," and
together the "Transfer Agreements"), Xxxxxx Capital has purchased from various
mortgage originators or their correspondents (each a "Transferor" and
collectively, the "Transferors"), certain conventional, adjustable and fixed
rate, fully amortizing and balloon, first and junior lien residential mortgage
loans identified on the Mortgage Loan Schedule attached hereto as Schedule A:
1. Mortgage Loan Purchase and Warranties Agreement, dated as of
April 1, 1998, between Xxxxxx Capital, as Purchaser, and Ameriquest
Mortgage Company ("Ameriquest"), as Seller, for conventional adjustable
and fixed rate residential mortgage loans;
2. Seller's Warranties and Servicing Agreement, dated as of August
1, 1998, between Xxxxxx Capital, as Purchaser, and Ameriquest, as Seller,
for conventional residential adjustable rate mortgage loans (Ameri Group
2);
3. Master Mortgage Loan Purchase Agreement, dated as of March 16,
1998, between DLJ Mortgage Capital, Inc ("DLJ")., as Seller, and BNC
Mortgage, Inc. ("BNC"), as Buyer ( hereinafter the "MMLPA 3/16/98"),
including: a) Assignment, Assumption and Recognition Agreement among DLJ,
Xxxxxx Capital, BNC and Option One Mortgage Corporation ("Option One")
(hereinafter an "AARA") dated July 30, 1998 and (b) Side Letter Agreement
(hereinafter "SLA"), dated July 30, 1998, between DLJ and Xxxxxx Capital;
4. MMLPA 3/16/98, including (a) AARA dated August 14, 1998 and (b)
SLA dated August 14, 1998;
5. MMLPA 3/16/98, including (a) AARA dated August 28, 1998 and (b)
SLA dated August 28, 1998;
6. Purchase and Warranties Agreement, dated as of August 13, 1999,
between Xxxxxx Capital, as Purchaser, and BNC, as Seller, for adjustable
rate mortgage loans;
7. MMLPA 3/16/98, including (a) AARA dated June 23, 1998 and (b)
Side Letter Agreement dated June 23, 1998;
8. Purchase and Warranties Agreement, dated February 17, 1999,
between Xxxxxx Capital, as Purchaser, and BNC, as Seller, for fixed and
adjustable rate mortgage loans;
9. MMLPA 3/16/98, including (a) AARA dated July 15, 1998 and SLA
dated July 15, 1998;
10. MMLPA dated 3/16/98, including (a) AARA dated November 16, 1998
and (b) SLA dated November 16, 1998;
11. MMLPA dated 3/16/98, including (a) AARA dated December 29, 1998
and (b) SLA dated December 29, 1998;
12. MMPLA dated 3/16/98, including (a) AARA dated Xxxxx 00, 0000,
(x) Assignment, Assumption and Recognition Agreement dated April 29, 1998
among DLJ, Xxxxxx Capital, BNC and Temple-Inland Mortgage Corporation
("TMC") and (c) SLA dated April 29, 1998;
13. Mortgage Loan Purchase and Warranties Agreement, dated as of
June 1, 1999, between Xxxxxx Capital, as Purchaser, and Fieldstone
Mortgage Company ("FMC"), as Seller, for conventional, fixed and
adjustable rate, residential mortgage loans;
14. Mortgage Loan Purchase and Warranties Agreement, dated as of
October 1,1999, between Xxxxxx Brothers Bank, FSB ("LBB"), as Purchaser,
and FMC, as Seller, for conventional, fixed and adjustable rate,
residential mortgage loans including: (a) Purchase price and Terms letter
between Xxxxxx Capital, as Purchaser, and LBB, as Seller dated February
4, 2000 and (b) Assignment and Assumption dated February 9, 2000 between
LBB, as Assigner, and Xxxxxx Capital, as Assignee;
15. Flow Mortgage Loan Purchase and Warranties Agreement, dated as
of June 30, 1999, between Xxxxxx Capital, as Purchaser, and FINAMCO, LLC,
as Seller, for conventional, fixed and adjustable rate, residential
mortgage loans;
16. Mortgage Loan Purchase and Warranties Agreement, dated as of
April 20, 1998, between Xxxxxx Capital, as Purchaser, and First Franklin
Financial Corporation, as Seller, for conventional adjustable rate
mortgage loans (Group No. 1998-1);
17. Seller's Warranties and Servicing Agreement, dated as of May 21,
1999, between Xxxxxx Capital, as Purchaser, and Life Bank, as Seller, for
fixed and adjustable rate, conventional first lien mortgage loans (Group
1999-1);
18. Purchase and Warranties Agreement, dated and effective as of
October 1, 1997, between Xxxxxx Capital, as Purchaser, and Long Beach
Mortgage Company, as Seller, for adjustable rate mortgage loans under
Flow Delivery Program (Wholesale);
19. Purchase and Warranties Agreement, dated and effective as of
April 1, 1998, between Xxxxxx Capital, as Purchaser, and Long Beach
Mortgage Company, as Seller, for fixed and adjustable rate mortgage loans
under Flow Delivery Program (Wholesale);
20. Mortgage Loan Purchase and Sale Agreement, dated as of June 1,
1999, between Xxxxxx Capital, as Purchaser, and Chase Bank of Texas,
National Association, in its capacities as agent and representative of
two groups of lenders pursuant to Credit Agreements, for residential
fixed and adjustable rate, first and second lien mortgage loans (MCA
Financial Group);
21. Seller's Warranties and Servicing Agreement, dated as of June
23, 1999, between Xxxxxx Capital, as Purchaser, and Option One, as
Seller, for conventional residential adjustable and fixed rate mortgage
loans (Group No. 1999 LB/00I);
22. Seller's Warranties and Servicing Agreement, dated as of
September 1, 1999, between LBB, as Purchaser, and Option One, as Seller,
for conventional residential adjustable and fixed rate mortgage loans
(Group No. 1999 LBB/00I), including (a) Purchase Price and Terms letter
between Xxxxxx Capital, as Purchaser, and LBB, as Seller dated February
4, 2000 and (b) Assignment and Assumption dated February 9, 2000 between
LBB, as Assigner, and Xxxxxx Capital, as Assignee.
23. Mortgage Loan Purchase and Warranty Agreement, dated as of
November 17, 1998, between Xxxxxx Capital, as Purchaser, and Southern
Pacific Funding Corporation, as Seller, for residential mortgage loans.
WHEREAS, Xxxxxx Capital desires to sell, without recourse, all of its
right, title and interest in the Mortgage Loans to the Depositor, to assign
all of its rights and interest under the Transfer Agreements, and to delegate
all of its obligations thereunder, to the extent relating to the Mortgage
Loans, to the Depositor.
WHEREAS, Xxxxxx Capital and the Depositor acknowledge and agree that the
Depositor will assign all of its rights and delegate all of its obligations
hereunder to the Trustee, 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, Xxxxxx Capital 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, Xxxxxx Capital 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 Xxxxxx
Capital in and to the Mortgage Loans identified on Schedule A hereto, having
an aggregate principal balance as of the Cut-off Date of $1,353,485,000. 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 January 1, 2000 (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 Xxxxxx Capital'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,
Xxxxxx Capital's rights under any Insurance Policies related to the Mortgage
Loans, and Xxxxxx Capital'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, Xxxxxx
Capital hereby assigns to the Depositor all of its rights, title and interest
under each Transfer Agreement, and delegates to the Depositor all of its
obligations thereunder, to the extent relating to the Mortgage Loans.
Concurrently with the execution hereof, the Depositor tenders the purchase
price of $1,353,485,000. The Depositor hereby accepts such assignment and
delegation, and shall be entitled to exercise all such rights of Xxxxxx
Capital under each Transfer Agreement, as if the Depositor had been a party to
each Transfer Agreement.
Section 1.02. Delivery of Documents. (a) In connection with such transfer
and assignment of the Mortgage Loans hereunder, Xxxxxx Capital does hereby
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.
(b) For Mortgage Loans (if any) that have been prepaid in full after
the Cut-off Date and prior to the Closing Date, Xxxxxx Capital, 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 custodial or escrow account maintained by the 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 the several custodians, including LaSalle National Bank, Banker's Trust
Company of California, N.A., Chase Bank of Texas, National Association,
Norwest Bank of Minnesota, National Association and U.S. Bank Trust, National
Association (each, a "Custodian" and, collectively, the "Custodians") for the
Depositor. Each Custodian is required to review, within 45 days following the
Closing Date, each applicable Mortgage File. If in the course of such review a
Custodian identifies any Material Defect, Xxxxxx Capital shall be obligated to
cure such 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 the Trust Agreement.
Section 1.04. Representations and Warranties of Xxxxxx Capital. (a)
Xxxxxx Capital hereby represents and warrants to the Depositor that as of the
date hereof that:
(i) Xxxxxx Capital 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 Xxxxxx Capital of this
Agreement have been duly authorized by all necessary corporate action on
the part of Xxxxxx Capital; 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 Xxxxxx Capital or its properties or the certificate of incorporation
or bylaws of Xxxxxx Capital;
(iii) the execution, delivery and performance by Xxxxxx Capital
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
Xxxxxx Capital and, assuming due authorization, execution and delivery by
the Depositor, constitutes a valid and binding obligation of Xxxxxx
Capital 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 Xxxxxx Capital, threatened or likely to be asserted
against or affecting Xxxxxx Capital, 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 Xxxxxx Capital will
be determined adversely to Xxxxxx Capital and will if determined
adversely to Xxxxxx Capital 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 with respect to the Mortgage
Loans made by the Transferor to Xxxxxx Capital in the related 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 a representation or warranty made under the applicable Transfer
Agreement, the Depositor shall have the right to require that Xxxxxx Capital
cure such breach or effect such other remedy as is specified in the last
paragraph of this subsection (b). In addition, Xxxxxx Capital hereby
represents and warrants upon delivery of the Mortgage Loans to the Depositor
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 Xxxxxx Capital 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 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 recision;
(v) Approximately 99.04% of the Mortgage Loans Mortgage
evidence a valid, subsisting, enforceable and perfected first lien on the
related Mortgaged Property (including all improvements on the Mortgaged
Property). The remainder of the Mortgage Loans evidence a valid
subsisting and perfect second lien on the related Mortgage Property
(including all improvements on the Mortgage Property). The lien of the
Mortgage is subject only to: (1) in the case of second lien loans, the
first lien on the related Mortgage Property (in the case of second lien
loans only; (2) 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, (3)
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
(4) 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 or second lien, as
the case may be, 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
Mortgage Loans to the Depositor, Xxxxxx Capital was the sole owner of
record and holder of each Mortgage Loan, and Xxxxxx Capital had good and
marketable title thereto, and has full right to transfer and sell each
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 Mortgage Loan pursuant to this
Agreement;
(vii) Each 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 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 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 Xxxxxx Capital, has done, by act or omission,
anything that would impair the coverage of such mortgagee Title Insurance
Policy;
(viii) To the best of Xxxxxx Capital'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;
(xii) Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G of the Code and Treas. Reg. Section 1.860G-2; and
(xiii) Xxxxxx Capital has no reason to believe that any
borrower will default under the related Mortgage Loan, or that
foreclosure proceedings will be commenced with respect to any Mortgage
Loan, within the six months immediately following the Closing Date.
It is understood and agreed that the representations and warranties set
forth herein and the obligations of Xxxxxx Capital set forth in this Section
survive delivery of the Mortgage Files and the Assignment of Mortgage of each
Mortgage Loan to the Depositor. Upon discovery by either Xxxxxx Capital or the
Depositor of a breach of any of the foregoing representations and warranties
in this Section 1.04(b), or of any of the representations or warranties made
in the Transfer Agreements, that adversely and materially affects the value of
the related Mortgage Loan, the party discovering such breach shall give prompt
written notice to the other party. Within 60 days of the discovery of any such
breach, Xxxxxx Capital 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.
For purposes of this Section, the representation and warranty in clause
(xiii) above will be deemed to have been breached as to any Mortgage Loan if
(in addition to such other facts, occurrences or conditions as will result in
a breach of such representation and warranty by its terms) a United States
Bankruptcy Court having jurisdiction in a case involving the Transferor
recharacterizes the sale of such Mortgage Loan from the Transferor to Xxxxxx
Capital as a financing secured by such Mortgage Loan.
For purposes of this Section, the representation and warranty in clause
(xii) above shall be deemed to have been breached as to any Mortgage Loan only
if all of the following are true: (1) such Mortgage Loan had a Combined
Loan-to-Value Ratio as of the Cut-off Date in excess of 80%; (2) the related
borrower is in default under such Mortgage Loan and liquidation of such
Mortgage Loan is completed within six months after the Closing Date; (3) a
Realized Loss is incurred with respect to such Mortgage Loan and (4) within
six months after the Closing Date and prior to such liquidation, Realized
Losses had been incurred with respect to the Mortgage Loans in the aggregate
in an amount sufficient to reduce the aggregate Certificate Principal Amount
of the Subordinate Certificates to zero.
Section 1.05. Grant Clause. It is intended that the conveyance of Xxxxxx
Capital's right, title and interest in and to 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: (1) the rights and obligations of the parties shall
be established pursuant to the terms of this Agreement; (2) Xxxxxx Capital
hereby grants to the Depositor a first priority security interest in all of
Xxxxxx Capital's right, title and interest in, to and under, whether now owned
or hereafter acquired, such Mortgage Loans and other property; and (3) this
Agreement shall constitute a security agreement under applicable law.
Section 1.06. Assignment by Depositor. The Depositor shall have the
right, upon notice to but without the consent of Xxxxxx Capital, 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. (a) This Agreement may be amended from time to
time by Xxxxxx Capital 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 any Offering Document; 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).
(b) This Agreement may also be amended from time to time by Xxxxxx
Capital and the Depositor with the consent of the Holders of not less than
66-2/3% of the Class Certificate Principal Amount (or Percentage Interest) of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders;
provided, however, that no such amendment may (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which
are required to be distributed on any Certificate without, the consent of the
Holder of such Certificate or (ii) reduce the aforesaid percentages of Class
Certificate Principal 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 Certificate Principal
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 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.
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, Xxxxxx Capital 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 CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxx Xxxxx
--------------------------------------------
Name: Xxx Xxxxx
Title: Vice President
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
SCHEDULE A
----------
MORTGAGE LOAN SCHEDULE
