Exhibit 99.1
EXECUTION
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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 February 1, 2001
Structured Asset Securities Corporation
(Mortgage Pass-Through Certificates, Series 2001-3A)
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TABLE OF CONTENTS
Page
ARTICLE I.
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans.....................................2
Section 1.02. Delivery of Documents......................................2
Section 1.03. Review of Documentation....................................3
Section 1.04. Representations and Warranties of Xxxxxx Capital...........3
Section 1.05. Grant Clause..............................................14
Section 1.06. Assignment by Depositor...................................14
ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment...................14
Section 2.02. Entire Agreement..........................................14
Section 2.03. Amendment.................................................14
Section 2.04. Governing Law.............................................15
Section 2.05. Severability of Provisions................................15
Section 2.06. Indulgences; No Waivers...................................16
Section 2.07. Headings Not to Affect Interpretation.....................16
Section 2.08. Benefits of Agreement.....................................16
Section 2.09. Counterparts..............................................16
SCHEDULES
SCHEDULE A Mortgage Loan Schedule
This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of
February 1, 2001 (the "Agreement"), is executed by and between Xxxxxx Capital,
A Division of Xxxxxx Brothers Holdings Inc. ("Xxxxxx Capital"), and Structured
Asset Securities Corporation (the "Depositor").
All capitalized terms not defined herein shall have the same meanings
assigned to such terms in that certain Trust Agreement (the "Trust
Agreement"), dated as of February 1, 2001, among the depositor, Aurora Loan
Services Inc., as master servicer (the "Master Servicer") and The Chase
Manhattan Bank, as trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the following specified master mortgage loan
purchase and warranties agreement (the "Transfer Agreement"), Xxxxxx Capital
has purchased or received from Aurora Loan Services, Inc. (the "Transferor"),
certain mortgage loans identified on the Mortgage Loan Schedule attached
hereto as Schedule A (the "Aurora Mortgage Loans"):
X. Xxxxxx Capital, as purchaser:
a. Loan Purchase Agreement (Servicing Released) dated March
23, 1998 between Xxxxxx Capital and Aurora Loan Services,
Inc.
WHEREAS, Xxxxxx Brothers Bank, FSB, an affiliate of Xxxxxx Capital
(the "Bank") has originated certain mortgage loans identified on the Mortgage
Loan Schedule attached hereto as Schedule B (the "Xxxxxx Bank Mortgage
Loans").
WHEREAS, the Bank has transferred all of its rights title and
interest in the Xxxxxx Bank Mortgage Loans to Xxxxxx Capital pursuant to a
Xxxx of Sale, dated February 28, 2001, by and between the Bank and Xxxxxx
Capital.
WHEREAS, Xxxxxx Capital is the party to the following servicing
agreement (the "Servicing Agreement") pursuant to which the Mortgage Loans are
serviced by the Servicer:
1. Servicing Agreement, dated as of February 1, 2001, between
Xxxxxx Capital and Aurora Loan Services Inc.
WHEREAS, Xxxxxx Capital desires to sell, without recourse, all of its
rights, title and interest in the Aurora Mortgage Loans and the Xxxxxx Bank
Mortgage Loans (together, the "Mortgage Loans") (exclusive of any Retained
Interest on such Mortgage Loans, if any) to the Depositor, to assign all of
its rights and interest under the Transfer Agreement and the Servicing
Agreement, and to delegate all of its obligations thereunder, to the
Depositor; and
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 (exclusive of any Retained
Interest on such Mortgage Loans, if any) identified on Schedule A hereto,
having an aggregate principal balance as of the Cut-off Date of
$152,991,693.63. 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 February 1, 2001 other than, (i) any amounts
representing Retained Interest, if any, and (ii) payments of principal and
interest due on or before such date, and all such payments due after such date
but received prior to such date and intended by the related Mortgagors to be
applied after such date, together with all of 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 and any Additional Collateral.
Concurrently with the execution and delivery of this Agreement,
Xxxxxx Capital hereby assigns to the Depositor all of its rights and interest
under the Transfer Agreement and the Servicing Agreement, other than (i) any
right to receive Retained Interest if any, and (ii) 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 Depositor tenders the purchase price of $152,991,693.63.
The Depositor hereby accepts such assignment, and shall be entitled to
exercise all such rights of Xxxxxx Capital under the Transfer Agreement and
the Servicing Agreement, as if the Depositor 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, 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
Agreement or 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, 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 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 LaSalle National Bank, as the custodian (the "Custodian") for the
applicable Mortgage Loans for the Depositor. The Custodian is required to
review, within 45 days following the Closing Date, each applicable Mortgage
File. If in the course of such review the 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 Section 2.02(c) of 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 of the Transferor with respect
to the Aurora Mortgage Loans in the Transfer Agreement were made as of the
date of transfer under such Transfer Agreement. To the extent that any fact,
condition or event with respect to a Aurora Mortgage Loan constitutes a breach
of both (i) a representation or warranty of the Transferor under the Transfer
Agreement and (ii) a representation or warranty of Xxxxxx Capital under this
Agreement, the only right or remedy of the Depositor shall be the right to
enforce the obligations of the Transferor under any applicable representation
or warranty made by it. The Depositor acknowledges and agrees that the
representations and warranties of Xxxxxx Capital 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 Transferor in the Transfer
Agreement. Xxxxxx Capital shall have no obligation or liability with respect
to any breach of a representation or warranty made by it with respect to the
Aurora Mortgage Loans if the fact, condition or event constituting such breach
also constitutes a breach of a representation or warranty made by the
Transferor in the Transfer Agreement, without regard to whether the Transferor
fulfills its contractual obligations in respect of such representation or
warranty; provided, however, that if the Transferor fulfills its obligations
under the provisions of the Transfer Agreement by substituting for the
affected Aurora Mortgage Loan a mortgage loan which is not a Qualifying
Substitute Mortgage Loan, Xxxxxx Capital shall, in exchange for such
substitute mortgage loan, provide the Depositor (a) with the applicable
Purchase Price for the affected Aurora Mortgage Loan or (b) within the two
year period following the Closing Date, with a Qualified Substitute Mortgage
Loan for such affected Aurora Mortgage Loan. Subject to the foregoing, Xxxxxx
Capital represents and warrants upon delivery of the Aurora Mortgage Loans to
the Depositor hereunder, as to each, that:
(i) The information set forth with respect to the Aurora
Mortgage Loans on the Mortgage Loan Schedule provides an accurate
listing of the Aurora Mortgage Loans, and the information with
respect to each Aurora 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) Except in the case of Cooperative Loans, 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 Aurora 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) 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 Aurora
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, an Aurora Mortgage Loan establishes a
valid, subsisting and enforceable first lien on the property
described therein and the Depositor has full right to sell and
assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the
Aurora Mortgage Loans to the Depositor, Xxxxxx Capital was the sole
owner of record and holder of each Aurora Mortgage Loan, and Xxxxxx
Capital had good and marketable title thereto, and has full right to
transfer and sell each Aurora 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 Aurora Mortgage Loan pursuant
to this Agreement;
(vii) Each Aurora 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 Aurora Mortgage Loan, and
its successors and assigns, as to the first priority lien of the
Mortgage in the original principal amount of the Aurora 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 Aurora Mortgage Loan. There is no proceeding pending for the
total or partial condemnation of any Mortgaged Property (or, in the
case of a Cooperative Loan, the related cooperative unit) and each
such property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty, so as to have
a material adverse effect on the value of the related Mortgaged
Property as security for the related Aurora 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 Aurora 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 Aurora Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G of the Code and Treas.
Reg.ss.1.860G-2.
(c) Xxxxxx Capital represents and warrants to the Depositor upon the
delivery to the Depositor on the Closing Date of the Xxxxxx Bank Mortgage
Loans originated or acquired by the Bank and listed on Schedule B hereto, but
solely as to each Mortgage Loan listed on Schedule B hereto, that, as of the
Cut-off Date:
(i) The information set forth with respect to the Xxxxxx Bank
Mortgage Loans on the Mortgage Loan Schedule provides an accurate
listing of the Xxxxxx Bank Mortgage Loans, and the information with
respect to each Xxxxxx Bank 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) Except in the case of Cooperative Loans, 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 Mortgaged Property is
located pursuant to insurance policies conforming to the
requirements of the guidelines of FNMA or FHLMC. If upon origination
of the Xxxxxx Bank 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 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, the 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.
Xxxxxx Capital or the Bank have not engaged in, and has no knowledge
of the Mortgagor's having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the
endorsement provided for herein, or the validity and binding effect
of either, including without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any
kind has been or will be received, retained or realized by any
attorney, firm or other person or entity, and no such unlawful items
have been received, retained or realized by Xxxxxx Capital or the
Bank;
(iv) Each Mortgage has not been satisfied, canceled,
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.
Xxxxxx Capital or the Bank have not waived the performance by the
Mortgagor of any action, if the Mortgagor's failure to perform such
action would cause the Mortgage Loan to be in default, nor has
Xxxxxx Capital or the Bank waived any default resulting from any
action or inaction by the Mortgagor;
(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 Xxxxxx Bank
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 Xxxxxx Bank Mortgage Loan establishes
a valid, subsisting and enforceable first lien on the property
described therein and the Depositor has full right to sell and
assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the
Xxxxxx Bank Mortgage Loans to the Depositor, Xxxxxx Capital was the
sole owner of record and holder of each Xxxxxx Bank Mortgage Loan,
and Xxxxxx Capital had good and marketable title thereto, and has
full right to transfer and sell each Xxxxxx Bank 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 Xxxxxx Bank Mortgage
Loan pursuant to this Agreement;
(vii) Each Xxxxxx Bank 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 Xxxxxx
Bank Mortgage Loan, and its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount of
the Aurora 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 Xxxxxx Bank Mortgage Loan. There is no proceeding pending for
the total or partial condemnation of any Mortgaged Property (or, in
the case of a Cooperative Loan, the related cooperative unit) and
each such property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty, so as to have
a material adverse effect on the value of the related Mortgaged
Property as security for the related Xxxxxx Bank 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 Xxxxxx Bank 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 Xxxxxx Bank
Mortgage Loan have been complied with;
(xii) Each Xxxxxx Bank Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G of the Code and Treas.
Reg.ss.1.860G-2;
(xiii) The terms of the Mortgage Note and Mortgage have not
been impaired, waived, altered or modified in any respect, except by
a written instrument which has been recorded, if necessary to
protect the interests of the Depositor and which has been delivered
to the Custodian.
(xiv) The Mortgaged Property is a fee simple property located
in the state identified in the Mortgage Loan Schedule and consists
of a parcel of real property with a detached single family residence
erected thereon, or a two- to four-family dwelling, or an individual
condominium unit in a low-rise condominium project, or an individual
unit in a planned unit development; provided, however, that any
condominium project or planned unit development shall conform with
the applicable FNMA and FHLMC requirements regarding such dwellings,
and no residence or dwelling is a mobile home or a manufactured
dwelling. No portion of the Mortgaged Property is used for
commercial purposes;
(xv) The Mortgage Note and the Mortgage are genuine, and each
is the legal, valid and binding obligation of the maker thereof
enforceable in accordance with its terms. All parties to the
Mortgage Note and the Mortgage and any other related agreement had
legal capacity to enter into the Mortgage Loan and to execute and
deliver the Mortgage Note and the Mortgage and any other related
agreement, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties. The documents, instruments and
agreements submitted for loan underwriting were not falsified and
contain no untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
information and statements therein not misleading. No fraud was
committed in connection with the origination of the Mortgage Loan.
(xvi) Each Xxxxxx Bank Mortgage Loan has been closed and the
proceeds of the Xxxxxx Bank Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any
and all requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefor
have been complied with. All costs, fees and expenses incurred in
making or closing the Xxxxxx Bank Mortgage Loan and the recording of
the Mortgage were paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(xvii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration, and neither Xxxxxx
Capital nor its predecessors have waived any default, breach,
violation or event of acceleration;
(xviii) All improvements which were considered in determining
the Appraised Value of the Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property
and no improvements on adjoining properties encroach upon the
Mortgaged Property. No improvement located on or being part of the
Mortgaged Property is in violation of any applicable zoning law or
regulation;
(xix) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder
thereof adequate for the realization against the related Mortgaged
Property of the benefits of the security, including (A) in the case
of a Mortgage designated as a deed of trust, by trustee's sale, and
(B) otherwise by judicial or non-judicial foreclosure. There is no
homestead or other exemption available to the related Mortgagor
which would materially interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage subject to the applicable federal and state laws and
judicial precedent with respect to bankruptcy and rights of
redemption. Upon default by a Mortgagor on a Xxxxxx Bank Mortgage
Loan and foreclosure on, or trustee's sale of, the Mortgaged
Property pursuant to the proper procedures, the holder of the Xxxxxx
Bank Mortgage Loan will be able to deliver good and merchantable
title to the property;
(xx) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage and the
security interest of any applicable security agreement or chattel
mortgage referred to in (v) above;
(xxi) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has
been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the
Depositor to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(xxii) The Mortgage Note, the Mortgage, the Assignment of
Mortgage and any other documents required to be delivered for the
Xxxxxx Bank Mortgage Loan by Xxxxxx Capital under this Agreement as
set forth in Section 1.02 hereof have been delivered to the
Custodian. Xxxxxx Capital is in possession of a complete, true and
accurate Mortgage File in compliance with Section 1.02 hereof,
except for such documents the originals of which have been delivered
to the Custodian;
(xxiii) The Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which
the Mortgaged Property is located;
(xxiv) The Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the
Xxxxxx Bank Mortgage Loan in the event that the Mortgaged Property
is sold or transferred without the prior written consent of the
Mortgagee thereunder;
(xxv) The Xxxxxx Bank Mortgage Loan does not contain provisions
pursuant to which Monthly Payments are paid or partially paid with
funds deposited in any separate account established by the Bank,
Xxxxxx Capital, the Mortgagor or anyone on behalf of the Mortgagor,
or paid by any source other than the Mortgagor nor does it contain
any other similar provisions currently in effect which may
constitute a "buydown" provision. The Xxxxxx Bank Mortgage Loan is
not a graduated payment mortgage loan and the Xxxxxx Bank Mortgage
Loan does not have a shared appreciation or other contingent
interest feature;
(xxvi) Any future advances made prior to the Cut-off Date have
been consolidated with the outstanding principal amount secured by
the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of
the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority by a title insurance policy,
an endorsement to the policy insuring the mortgagee's consolidated
interest or by other title evidence acceptable to FNMA and FHLMC.
The consolidated principal amount does not exceed the original
principal amount of the Xxxxxx Bank Mortgage Loan;
(xxvii) The origination and collection practices used with
respect to the Xxxxxx Bank Mortgage Loan have been in accordance
with Accepted Servicing Practices, and have been in all respects in
compliance with all applicable laws and regulations. With respect to
escrow deposits and escrow payments, all such payments are in the
possession of Xxxxxx Capital and there exist no deficiencies in
connection therewith for which customary arrangements for repayment
thereof have not been made. All escrow payments have been collected
in full compliance with state and federal law. An escrow of funds is
not prohibited by applicable law and has been established in an
amount sufficient to pay for every item which remains unpaid and
which has been assessed but is not yet due and payable. No escrow
deposits or escrow payments or other charges or payments due Xxxxxx
Capital have been capitalized under the Mortgage or the Mortgage
Note. All Mortgage Interest Rate adjustments have been made in
strict compliance with state and federal law and the terms of the
related Mortgage Note. Any interest required to be paid pursuant to
state and local law has been properly paid and credited;
(xxviii) The Mortgage File contains an appraisal of the related
Mortgage Property signed prior to the approval of the Xxxxxx Bank
Mortgage Loan application by a qualified appraiser, duly appointed
by the Bank or Xxxxxx Capital, who had no interest, direct or
indirect in the Mortgaged Property or in any loan made on the
security thereof; and whose compensation is not affected by the
approval or disapproval of the Xxxxxx Bank Mortgage Loan, and the
appraisal and appraiser both satisfy the requirements of Title XI of
the Federal Institutions Reform, Recovery, and Enforcement Act of
1989 and the regulations promulgated thereunder, all as in effect on
the date the Xxxxxx Bank Mortgage Loan was originated;
(xxix) The Mortgagor has not notified Xxxxxx Capital, and
Xxxxxx Capital has no knowledge of any relief requested or allowed
to the Mortgagor under the Soldiers' and Sailors' Civil Relief Act
of 1940;
(xxx) The Mortgaged Property is free from any and all toxic or
hazardous substances and there exists no violation of any local,
state or federal environmental law, rule or regulation. There is no
pending action or proceeding directly involving any Mortgaged
Property of which Xxxxxx Capital is aware in which compliance with
any environmental law, rule or regulation is an issue; and to the
best of Xxxxxx Capital's knowledge, nothing further remains to be
done to satisfy in full all requirements of each such law, rule or
regulation;
(xxxi) The Xxxxxx Bank Mortgage Loan does not contain a
provision permitting or requiring conversion to a fixed interest
rate Mortgage Loan;
(xxxii) No Xxxxxx Bank Mortgage Loan was made in connection
with (i) the construction or rehabilitation of a Mortgaged Property
or (ii) facilitating the trade-in or exchange of a Mortgaged
Property;
(xxxiii) No action, inaction, or event has occurred and no
state of facts exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage
under any applicable pool insurance policy, special hazard insurance
policy, Primary Mortgage Loan Insurance Policy or bankruptcy bond,
irrespective of the cause of such failure of coverage. In connection
with the placement of any such insurance, no commission, fee, or
other compensation has been or will be received by Xxxxxx Capital or
any designee of Xxxxxx Capital or any corporation in which Xxxxxx
Capital or any officer, director, or employee had a financial
interest at the time of placement of such insurance;
(xxxiv) Each original Mortgage was recorded and, except for
those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the
assignment to the Depositor) have been recorded in the appropriate
jurisdictions wherein such recordation is necessary to perfect the
lien thereof as against creditors of Xxxxxx Capital, or is in the
process of being recorded.
(xxxv) Xxxxxx Capital has not transferred the Xxxxxx Bank
Mortgage Loans to the Depositor, and the Depositor has not
transferred the Xxxxxx Bank Mortgage Loans to the Trust Fund, with
any intent to hinder, delay or defraud any of its creditors;
It is understood and agreed that the representations and warranties
set forth in Sections 1.04(b) and 1.04(c) 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 that adversely and materially affects
the value of the related Mortgage Loan, and, in the case of Mortgage Loans
other than the Xxxxxx Bank Mortgage Loans, that does not also constitute a
breach of a representation or warranty of the Transferor in the 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, 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.
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. 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).
(a) 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
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 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.
(b) It shall not be necessary for the consent of Holders under
this Section 2.03 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
Section 2.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 2.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement.
Section 2.06. Indulgences; No Waivers. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy,
power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
Section 2.07. Headings Not to Affect Interpretation. The headings
contained in this Agreement are for convenience of reference only, and they
shall not be used in the interpretation hereof.
Section 2.08. Benefits of Agreement. Nothing in this Agreement,
express or implied, shall give to any Person, other than the parties to this
Agreement and their successors hereunder, any benefit or any legal or
equitable right, power, remedy or claim under this Agreement.
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/ Xxxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Authorized Signatory
STRUCTURED ASSET SECURITIES
CORPORATION
By: s/s Xxxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
SCHEDULE A
MORTGAGE LOAN SCHEDULE
Aurora Mortgage Loans
SCHEDULE B
MORTGAGE LOAN SCHEDULE
Xxxxxx Bank Mortgage Loans
