Exhibit 99.1
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XXXXXX BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of May 1, 2004
Structured Asset Securities Corporation
(Mortgage Pass-Through Certificates, Series 2004-12H)
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ARTICLE I CONVEYANCE OF MORTGAGE LOANS............................ 3
Section 1.01 Sale of Mortgage Loans......................... 3
Section 1.02 Delivery of Documents.......................... 4
Section 1.03 Review of Documentation........................ 4
Section 1.04 Representations and Warranties of the Seller... 4
Section 1.05 Grant Clause.................................. 17
Section 1.06 Assignment by Depositor....................... 17
ARTICLE II MISCELLANEOUS PROVISIONS............................... 17
Section 2.01 Binding Nature of Agreement; Assignment....... 17
Section 2.02 Entire Agreement.............................. 17
Section 2.03 Amendment..................................... 17
Section 2.04 Governing Law................................. 18
Section 2.05 Severability of Provisions.................... 18
Section 2.06 Indulgences; No Waivers....................... 19
Section 2.07 Headings Not to Affect Interpretation......... 19
Section 2.08 Benefits of Agreement......................... 19
Section 2.09 Counterparts.................................. 19
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This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of May 1,
2004 (the "Agreement"), is executed by and between Xxxxxx Brothers Holdings Inc.
(the "Seller") and Structured Asset Securities Corporation (the "Depositor").
All capitalized terms not defined herein shall have the same meanings
assigned to such terms in that certain Trust Agreement (the "Trust Agreement"),
dated as of May 1, 2004, among the Depositor, Aurora Loan Services Inc., as
master servicer (the "Master Servicer") and Citibank, N.A., as trustee (the
"Trustee").
W I T N E S S E T H:
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WHEREAS, pursuant to the following specified agreements (the "Transfer
Agreements"), the Seller has purchased or received certain mortgage loans
identified on the Mortgage Loan Schedule attached hereto as Schedule A-1 (the
"Transferred Mortgage Loans"):
Master Mortgage Loan Purchase and Warranties Agreement, dated as of
February 1, 2002, by and between Xxxxxx Brothers Bank, FSB ("the "Bank") and
Centre Capital Group ("CCGI");
Mortgage Loan Purchase, Warranties and Servicing Agreement, dated as of
April 1, 2004, by and between the Bank and Chase Manhattan Mortgage Corporation;
Master Mortgage Loans Sale and Servicing Agreement, dated as of
February 1, 2003, by and between the Bank and GMAC Mortgage Corporation; and
Flow Mortgage Loan Purchase and Warranties Agreement, dated as of
August 1, 2001, by and between the Bank, National Bank of Commerce, Central
California Bank & Trust, NBC Bank, FSB, First Market Bank and Commerce Finance
Company;
WHEREAS, in addition to the Transferred Mortgage Loans, the Bank has
funded certain mortgage loans originated by Aurora Loan Services Inc. identified
on the Mortgage Loan Schedule attached hereto as Schedule A-2 (each, a "Bank
Originated Mortgage Loan" and together with the Transferred Mortgage Loans, the
"Mortgage Loans");
WHEREAS, pursuant to an Assignment and Assumption Agreement (the
"Assignment and Assumption Agreement"), dated as of May 1, 2004, between the
Bank, as assignor, and the Seller, as assignee, the Bank has assigned all of its
right, title and interest in and to the Bank Transfer Agreements and the related
Mortgage Loans as listed on Schedule A-1, in the case of the Bank Transferred
Mortgage Loans, or Schedule A-2, in the case of the Bank Originated Mortgage
Loans, and the Seller has accepted the rights and benefits of, and assumed the
obligations of the Bank under, the Bank Transfer Agreements and the Mortgage
Loans described herein;
WHEREAS, the Seller is a party to the following servicing agreements
(each, a "Servicing Agreement and collectively, the "Servicing Agreements")
pursuant to which the Mortgage Loans are serviced by Aurora Loan Services Inc.
("ALS"), Commercial Federal Bank ("CFB"), Chase Manhattan Mortgage Corporation
("CMMC"), Countrywide Home Loans Servicing LP ("Countrywide"), GMAC Mortgage
Corporation ("GMAC"), SunTrust Mortgage, Inc. ("Suntrust"), Xxxxxxxxxx Mortgage
Company, Inc. ("Xxxxxxxxxx"), Washington Mutual Bank, FA ("WAMU") and Xxxxx
Fargo Home Mortgage, Inc. ("Xxxxx Fargo")(each, a "Servicer"):
Servicing Agreement, dated as of May 1, 2004, among the Seller and ALS;
Reconstituted Servicing Agreement, dated as of May 1, 2004, between the
Seller and CFB;
Reconstituted Servicing Agreement, dated as of May 1, 2004, between the
Seller and Chase Manhattan Mortgage Corporation;
Reconstituted Servicing Agreement, dated as of May 1, 2004, between the
Seller and Countrywide;
Reconstituted Servicing Agreement, dated as of May 1, 2004, between the
Seller and GMAC;
Reconstituted Servicing Agreement, dated as of May 1, 2004, between the
Seller and Suntrust;
Reconstituted Servicing Agreement, dated as of May 1, 2004, between the
Seller and Xxxxxxxxxx;
Reconstituted Servicing Agreement, dated as of May 1, 2004, between the
Seller and Washington Mutual Bank, FA; and
Reconstituted Servicing Agreement, dated as of May 1, 2004, between the
Seller and Xxxxx Fargo.
WHEREAS, the Seller desires to sell, without recourse, all of its
rights, title and interest in and to the Mortgage Loans (exclusive of any
Retained Interest on such Mortgage Loan, if any) to the Depositor and to assign
all of its rights and interest under the Transfer Agreements and the Servicing
Agreements relating to the Mortgage Loans, and to delegate all of its
obligations thereunder, to the Depositor; and
WHEREAS, the Seller and the Depositor acknowledge and agree that the
Depositor will convey the Mortgage Loans to a Trust Fund created pursuant to the
Trust Agreement, assign all of its rights and delegate all of its obligations
hereunder to the Trustee for the benefit of the Certificateholders, and that
each reference herein to the Depositor is intended, unless otherwise specified,
to mean the Depositor or the Trustee, as assignee, whichever is the owner of the
Mortgage Loans from time to time.
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NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Seller and the 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, the Seller 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 the Seller in and to the Mortgage Loans (exclusive of any
Retained Interest on such Mortgage Loan, if any) identified on Schedule A-1 and
Schedule A-2 hereto, having an aggregate principal balance as of the Cut-off
Date of $173,840,421.94. 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 May 1, 2004 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 the Seller's right, title and
interest in and to each related account and all amounts from time to time
credited to and the proceeds of such account, any REO Property and the proceeds
thereof, the Seller's rights under any Insurance Policies relating to the
Mortgage Loans, and the Seller's security interest in any collateral pledged to
secure the Mortgage Loans, including the Mortgaged Properties and any proceeds
of the foregoing.
(a) Concurrently with the execution and delivery of this Agreement, the
Seller hereby assigns to the Depositor all of its rights and interest under each
Transfer Agreement and each Servicing Agreement, other than any right to receive
Retained Interest, if any, and any servicing rights retained thereunder, and
delegates to the Depositor all of its obligations thereunder, to the extent
relating to the Mortgage Loans. The Seller and the Depositor further agree that
this Agreement incorporates the terms and conditions of any assignment and
assumption agreement or other assignment document required to be entered into
under any of the Transfer Agreements (any such document an "Assignment
Agreement") and this Agreement constitutes an Assignment Agreement under such
Transfer Agreement, and the Depositor hereby assumes the obligations of the
assignee under each such Assignment Agreement. Concurrently with the execution
hereof, the Depositor tenders the purchase price of $173,840,421.94. The
Depositor hereby accepts such assignment and delegation, and shall be entitled
to exercise all the rights of the Seller under each Transfer Agreement and each
Servicing Agreement, other than any servicing rights thereunder, as if the
Depositor had been a party to each such agreement.
(b) Schedules of Mortgage Loans. The Depositor and the Seller have
agreed upon which of the Mortgage Loans owned by the Seller are to be purchased
by the Depositor pursuant to this Agreement and the Seller will prepare on or
prior to the Closing Date a final schedule describing such Mortgage Loans (the
"Mortgage Loan Schedule"). The Mortgage Loan Schedule shall conform to the
requirements of the Depositor as set forth in this Agreement and to the
definition of "Mortgage Loan
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Schedule" under the Trust Agreement. The Mortgage Loan Schedule attached hereto
as Schedule A-1 specifies those Mortgage Loans that are Transferred Mortgage
Loans and the Mortgage Loan Schedule attached hereto as Schedule A-2 specifies
those Mortgage Loans that are Bank Originated Mortgage Loans and which have been
assigned by the Bank to the Seller pursuant to the Assignment and Assumption
Agreement.
Section 1.02 Delivery of Documents.
(a) In connection with such transfer and assignment of the Mortgage
Loans hereunder, the Seller, shall, at least three (3) Business Days prior to
the Closing Date, deliver, or cause to be delivered, to the Depositor (or its
designee) the documents or instruments with respect to each Mortgage Loan (each
a "Mortgage File") so transferred and assigned, as specified in the related
Transfer Agreements or Servicing Agreements.
(b) For Mortgage Loans (if any) that have been prepaid in full on or
after the Cut-off Date and prior to the Closing Date, the Seller, in lieu of
delivering the related Mortgage Files, herewith delivers to the Depositor an
Officer's Certificate which shall include a statement to the effect that all
amounts received in connection with such prepayment that are required to be
deposited in the Collection Account maintained by the Master Servicer for such
purpose have been so deposited.
Section 1.03 Review of Documentation. The Depositor, by execution and
delivery hereof, acknowledges receipt of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by U.S. Bank National Association, as custodian or Xxxxx Fargo Bank, National
Association, as custodian, as applicable, (each, the "Custodian" and together,
the "Custodians") for the applicable Mortgage Loans for the Depositor. Each
Custodian is required to review, within 45 days following the Closing Date, each
applicable Mortgage File. If in the course of such review the related Custodian
identifies any Material Defect, the Seller shall be obligated to cure such
Material Defect or to repurchase the related Mortgage Loan from the Depositor
(or, at the direction of and on behalf of the Depositor, from the Trust Fund),
or to substitute a Qualifying Substitute Mortgage Loan therefor, in each case to
the same extent and in the same manner as the Depositor is obligated to the
Trustee and the Trust Fund under Section 2.02(c) of the Trust Agreement.
Section 1.04 Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Depositor that as
of the Closing Date, May 28, 2004:
(i) The Seller is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement and the
Assignment and Assumption Agreement;
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(ii) The execution and delivery by the Seller of this Agreement
and the Assignment and Assumption Agreement have been duly authorized
by all necessary corporate action on the part of the Seller; neither
the execution and delivery of this Agreement or the Assignment and
Assumption Agreement, nor the consummation of the transactions herein
or therein contemplated, nor compliance with the provisions hereof or
thereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Seller or its
properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of
this Agreement and the Assignment and Assumption Agreement and the
consummation of the transactions contemplated hereby and thereby do not
require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date
hereof;
(iv) Each of this Agreement and the Assignment and Assumption
Agreement has been duly executed and delivered by the Seller and,
assuming due authorization, execution and delivery by the Bank, in the
case of the Assignment and Assumption Agreement, and the Depositor, in
the case of this Agreement, constitutes a valid and binding obligation
of the Seller enforceable against it in accordance with its respective
terms, except as such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally and (B) general
principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened or likely to be asserted against or
affecting the Seller, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or the Assignment and
Assumption Agreement or (B) with respect to any other matter which in
the judgment of the Seller will be determined adversely to the Seller
and will if determined adversely to the Seller materially and adversely
affect it or its business, assets, operations or condition, financial
or otherwise, or adversely affect its ability to perform its
obligations under this Agreement or the Assignment and Assumption
Agreement.
(b) The representations and warranties of each Transferor with respect
to the Transferred Mortgage Loans in the applicable Transfer Agreement were made
as of the date of such Transfer Agreement. To the extent that any fact,
condition or event with respect to a Transferred Mortgage Loan constitutes a
breach of both (i) a representation or warranty of a Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of the
Seller under this Agreement, the sole right or remedy of the Depositor with
respect to a breach by the Seller of such representation and warranty (other
than a breach by the Seller of the representations and warranties made pursuant
to Sections 1.04(b)(xi), (xvi) and (xvii)) shall be the right to enforce the
obligations of such
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Transferor under any applicable representation or warranty made by it. The
representations made by the Seller pursuant to Sections 1.04(b)(xi), (xvi) and
(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and
agrees that the representations and warranties of the Seller in this Section
1.04(b) (other than the representations and warranties made pursuant to Sections
1.04(b)(xi), (xvi) and (xvii)) are applicable only to facts, conditions or
events that do not constitute a breach of any representation or warranty made by
the related Transferor in the applicable Transfer Agreement. The Seller shall
have no obligation or liability with respect to any breach of a representation
or warranty made by it with respect to the Transferred Mortgage Loans if the
fact, condition or event constituting such breach also constitutes a breach of a
representation or warranty made by the related Transferor in such Transfer
Agreement, without regard to whether the related Transferor fulfills its
contractual obligations in respect of such representation or warranty; provided,
however, that if the related Transferor fulfills its obligations under the
provisions of such Transfer Agreement by substituting for the affected Mortgage
Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the
Seller shall, in exchange for such substitute mortgage loan, provide the
Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan
or (b) within the two-year period following the Closing Date, with a Qualified
Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to
the foregoing, the Seller represents and warrants upon delivery of the
Transferred Mortgage Loans to the Depositor hereunder (or as of such other date
as may be specified in particular representations and warranties), as to each,
that as of May 28, 2004:
(i) The information set forth with respect to the Transferred
Mortgage Loans on the Mortgage Loan Schedule provides an accurate
listing of the Transferred Mortgage Loans, and the information with
respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule
is true and correct in all material respects at the date or dates
respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in
complying with the terms of any Mortgage, and the Seller has no notice
as to any taxes, governmental assessments, insurance premiums, water,
sewer and municipal charges, leasehold payments or ground rents which
previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each
Mortgage requires all buildings or other improvements on the related
Mortgaged Property to be insured by a generally acceptable insurer
against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the related Mortgaged
Property is located pursuant to insurance policies conforming to the
requirements of the guidelines of FNMA or FHLMC. If upon origination of
the Transferred Mortgage Loan, the Mortgaged Property was in an area
identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards (and such flood insurance has
been made available) a flood insurance policy meeting the requirements
of the current
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guidelines of the Federal Flood Insurance Administration is in effect
which policy conforms to the requirements of the current guidelines of
the Federal Flood Insurance Administration. Each Mortgage obligates the
related Mortgagor thereunder to maintain the hazard insurance policy at
the Mortgagor's cost and expense, and on the Mortgagor's failure to do
so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at such Mortgagor's cost and expense, and to seek
reimbursement therefor from the Mortgagor. Where required by state law
or regulation, each Mortgagor has been given an opportunity to choose
the carrier of the required hazard insurance, provided the policy is
not a "master" or "blanket" hazard insurance policy covering the common
facilities of a planned unit development. The hazard insurance policy
is the valid and binding obligation of the insurer, is in full force
and effect, and will be in full force and effect and inure to the
benefit of the Depositor upon the consummation of the transactions
contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated
or rescinded, in whole or in part, and the Mortgaged Property has not
been released from the lien of the Mortgage, in whole or in part, nor
has any instrument been executed that would effect any such release,
cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and
perfected first lien on the related Mortgaged Property (including all
improvements on the Mortgaged Property). The lien of the Mortgage is
subject only to: (1) liens of current real property taxes and
assessments not yet due and payable and, if the related Mortgaged
Property is a condominium unit, any lien for common charges permitted
by statute, (2) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording of such Mortgage acceptable to mortgage lending institutions
in the area in which the related Mortgaged Property is located and
specifically referred to in the lender's Title Insurance Policy or
attorney's opinion of title and abstract of title delivered to the
originator of the applicable Transferred Mortgage Loan, and (3) such
other matters to which like properties are commonly subject which do
not, individually or in the aggregate, materially interfere with the
benefits of the security intended to be provided by the Mortgage. Any
security agreement, chattel mortgage or equivalent document related to,
and delivered to the Trustee in connection with, a Transferred Mortgage
Loan establishes a valid, subsisting and enforceable first lien on the
property described therein and the Depositor has full right to sell and
assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the
Transferred Mortgage Loans to the Depositor, the Seller was the sole
owner of record and holder of each Transferred Mortgage Loan, and the
Seller had good and marketable title thereto, and has full right to
transfer and sell each Transferred Mortgage Loan to the Depositor free
and clear, except as described in paragraph (v) above, of any
encumbrance, equity, participation interest, lien, pledge, charge,
claim or security interest, and has full right and authority, subject
to no interest or participation of, or agreement with, any other party,
to sell and assign each Transferred Mortgage Loan pursuant to this
Agreement;
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(vii) Each Transferred Mortgage Loan other than any Cooperative
Loan is covered by either (i) an attorney's opinion of title and
abstract of title the form and substance of which is generally
acceptable to mortgage lending institutions originating mortgage loans
in the locality where the related Mortgaged Property is located or (ii)
an ALTA mortgagee Title Insurance Policy or other generally acceptable
form of policy of insurance, issued by a title insurer qualified to do
business in the jurisdiction where the Mortgaged Property is located,
insuring the originator of the Transferred Mortgage Loan, and its
successors and assigns, as to the first priority lien of the Mortgage
in the original principal amount of the Transferred Mortgage Loan
(subject only to the exceptions described in paragraph (v) above). If
the Mortgaged Property is a condominium unit located in a state in
which a title insurer will generally issue an endorsement, then the
related Title Insurance Policy contains an endorsement insuring the
validity of the creation of the condominium form of ownership with
respect to the project in which such unit is located. With respect to
any Title Insurance Policy, the originator is the sole insured of such
mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy
is in full force and effect and will inure to the benefit of the
Depositor upon the consummation of the transactions contemplated by
this Agreement, no claims have been made under such mortgagee Title
Insurance Policy and no prior holder of the related Mortgage, including
the Seller, has done, by act or omission, anything that would impair
the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller's knowledge, no foreclosure
action is being threatened or commenced with respect to any Transferred
Mortgage Loan. There is no proceeding pending for the total or partial
condemnation of any Mortgaged Property (or, in the case of any
Cooperative Loan, the related cooperative unit) and each such property
is undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty, so as to have a material adverse
effect on the value of the related Mortgaged Property as security for
the related Transferred Mortgage Loan or the use for which the premises
were intended;
(ix) There are no mechanics' or similar liens or claims which have
been filed for work, labor or material (and no rights are outstanding
that under the law could give rise to such liens) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
(x) Each Transferred Mortgage Loan was originated by a savings and
loan association, savings bank, commercial bank, credit union,
insurance company or similar institution that is supervised and
examined by a Federal or State authority, or by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act;
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(xi) Each Transferred Mortgage Loan at the time it was made
complied in all material respects with applicable local, state, and
federal laws including, but not limited to, all applicable predatory
and abusive lending laws;
(xii) As of the Closing Date, each Transferred Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G of the Code
(determined without regard to Treas. Reg. ss.1.860G-2(f) or any similar
rule that provides that a defective obligation is a qualified mortgage
for a temporary period);
(xiii) As of the Closing Date, other than with respect to Retained
Interest, no Transferred Mortgage Loan provides for interest other than
at either (i) a single fixed rate in effect throughout the term of the
Transferred Mortgage Loan or (ii) a single "variable rate" (within the
meaning of Treas. Reg. ss.1.860G-1(a)(3)) in effect throughout the term
of the Transferred Mortgage Loan;
(xiv) As of the Closing Date, no Transferred Mortgage Loan is the
subject of pending or final foreclosure proceedings;
(xv) As of the Closing Date, based on delinquencies in payment on
the Transferred Mortgage Loans, the Seller would not initiate
foreclosure proceedings with respect to any Transferred Mortgage Loan
prior to the next scheduled payment date on such Transferred Mortgage
Loan;
(xvi) None of the Transferred Mortgage Loans are "high cost" loans
as defined under any applicable federal, state or local predatory or
abusive lending laws;
(xvii) In addition to the foregoing representations and warranties
made in subparagraphs (i) through (xvi) of this Section 1.04(b), the
Seller further represents and warrants that upon delivery of the Pool 1
Transferred Mortgage Loans:
(a) No Pool 1 Transferred Mortgage Loan was originated (or
modified) on or after October 1, 2002 and before March 7, 2003
which is secured by a mortgaged property located in Georgia;
(b) There is no Pool 1 Transferred Mortgage Loan that was
originated on or after March 7, 2003 which is a "high cost home
loan" as defined under the Georgia Fair Lending Act;
(c) No Pool 1 Transferred Mortgage Loan is a "High-Cost Home
Loan" as defined in Section 6-1 of the New York State Banking Law;
no Pool 1 Transferred Mortgage Loan is a "High-Cost Home Loan" as
defined in the Arkansas Home Loan Protection Act (Act 1340 of
2003); no Pool 1 Transferred Mortgage Loan is a "High-Cost Home
Loan" as defined in the Kentucky high-cost home loan statute (Ky.
Rev. Stat. Section 360.100); no Pool 1 Transferred Mortgage Loan
is a "High-Risk Home Loan" as defined in the Illinois High-Risk
Home Loan Act (815 Ill. Comp. Stat. 137/1 et seq.);
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(d) To the best of the Seller's knowledge, except with
respect to broker yield spread premium ("YSP") as permitted by
law, no borrower was encouraged or required to select a Pool 1
Transferred Mortgage Loan product offered by the applicable
Transferor which is a higher cost product designed for less
creditworthy borrowers, unless at the time of such Mortgage Loan's
origination, the borrower did not qualify taking into account
credit history and debt-to-income ratios for a lower-cost credit
product then offered by the applicable Transferor;
(e) To the best of the Seller's knowledge, the methodology
used in underwriting the extension of credit for each Pool 1
Transferred Mortgage Loan does not rely solely on the equity in
the Collateral for determining approval of credit extension, but
relies on additional factors such as the borrower's income,
assets, liabilities and/or credit history. Such underwriting
methodology confirmed that at the time of origination
(application/approval), the borrower had a reasonable ability to
make timely payments on the Pool 1 Transferred Mortgage Loan;
(f) With respect to any Pool 1 Transferred Mortgage Loan that
contains a provision permitting imposition of a Prepayment Charge
upon a prepayment prior to maturity, to the best of the Seller's
knowledge: (i) pursuant to the applicable Transferor's
underwriting guidelines, the borrower received a premium in
exchange for a monetary benefit, including but not limited to a
rate or fee reduction, (ii) prior to Pool 1 Transferred Mortgage
Loan's origination, the borrower was offered the option of
obtaining a mortgage loan that did not require payment of such
Prepayment Charge, (iii) the Prepayment Charge is disclosed to the
borrower in the loan documents pursuant to applicable state and
federal law, and (iv) notwithstanding any state or federal law to
the contrary, the applicable Servicer shall not impose such
Prepayment Charge in any instance when the mortgage debt is
accelerated as the result of the borrower's default in making the
loan payments;
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(g) To the best of the Seller's knowledge, no borrower was
required to purchase any credit life, disability, accident or
health insurance product as a condition of obtaining the extension
of credit evidenced by the Pool 1 Transferred Mortgage Loan. No
borrower obtained a prepaid single-premium credit life,
disability, accident or health insurance policy in connection with
the origination of the Pool 1 Transferred Mortgage Loan; no
proceeds from any Pool 1 Transferred Mortgage Loan were used to
purchase single premium credit insurance policies as part of the
origination of, or as a condition to closing, such Pool 1
Transferred Mortgage Loan;
(h) To the best of the Seller's knowledge, all points and
fees related to each Pool 1 Transferred Mortgage Loan were
disclosed in writing to the borrower in accordance with applicable
state and federal law and regulation. Except in the case of a Pool
1 Transferred Mortgage Loan in an original principal amount of
less than $60,000 which would have resulted in an unprofitable
origination, no borrower was charged "points and fees" (whether or
not financed) in an amount greater than 5% of the principal amount
of such Pool 1 Transferred Mortgage Loan, such 5% limitation
calculated in accordance with Xxxxxx Mae's anti-predatory lending
requirements as set forth in the Xxxxxx Mae Selling Guide;
(i) All fees and charges (including finance charges) and
whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Pool 1
Transferred Mortgage Loan has been disclosed in writing to the
borrower in accordance with applicable state and federal law and
regulation;
(j) The Seller shall cause the applicable Servicer to
transmit full-file credit reporting data for each Pool 1
Transferred Mortgage Loan pursuant to Xxxxxx Xxx Guide
Announcement 95-19 and, with respect to each Pool 1 Transferred
Mortgage Loan, the Seller shall cause the applicable Servicer to
report one of the following statuses each month as follows: new
origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off;
(k) The applicable Servicer for each Pool 1 Transferred
Mortgage Loan has fully furnished in the past (and the Seller
shall cause the applicable Servicer to furnish in the future), in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information on its borrower
credit files to Equifax, Experian and Trans Union Credit
Information Company, on a monthly basis;
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(l) No Pool 1 Transferred Mortgage Loan imposes a Prepayment
Charge for a term in excess of five years;
(m) The outstanding Scheduled Principal Balance of each Pool
1 Transferred Mortgage Loan does not exceed the applicable maximum
original loan amount limitations with respect to first lien or
second lien one-to-four family residential mortgage loans, as
applicable, as set forth in the Xxxxxx Mae Selling Guide; and
(n) With respect to Pool 1 Transferred Mortgage Loans secured
by manufactured housing, each contract is secured by a "single
family residence" within the meaning of Section 25(e)(10) of the
Code. The fair market value of the manufactured home securing each
contract was at least 80% of the adjusted issue price of the
contract at either (i) the time the contract was originated
(determined pursuant to the REMIC provisions of the Code) or (ii)
the time the contract was transferred to the Seller. Each such
contract is a qualified mortgage under Section 860G(a)(3) of the
Code.
(c) In addition to the representations and warranties set forth in
Section 1.04(b), all of which are also made by the Seller with respect to the
Bank Originated Mortgage Loans as of the Closing Date (or as of such other date
as is specified in particular representations and warranties), the Seller hereby
represents and warrants to the Depositor upon the delivery to the Depositor on
the Closing Date, May 28, 2004, of any Bank Originated Mortgage Loans, but
solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(i) With respect to any hazard insurance policy covering a Bank
Originated Mortgage Loan and the related Mortgaged Property, the Seller
has not engaged in, and has no knowledge of the Bank's or the
Mortgagor's having engaged in, any act or omission which would impair
the coverage of any such policy, the benefits of the endorsement
provided for therein, or the validity and binding effect of either,
including without limitation, no unlawful fee, commission, kickback or
other unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other person or
entity, and no such unlawful items have been received, retained or
realized by the Seller;
(ii) Neither the Seller nor the Bank has waived the performance by
the Mortgagor of any action, if the Mortgagor's failure to perform such
action would cause a Bank Originated Mortgage Loan to be in default,
nor has the Seller or the Bank waived any default resulting from any
action or inaction by the Mortgagor;
(iii) The terms of the Mortgage Note and Mortgage have not been
impaired, waived, altered or modified in any respect, except by a
written instrument which has been recorded, if necessary to protect the
interests of the Depositor and which has been delivered to the
Custodian;
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(iv) The Mortgaged Property relating to each Bank Originated
Mortgage Loan is a fee simple property located in the state identified
in the Mortgage Loan Schedule and consists of a parcel of real property
with a detached single family residence erected thereon, or a two- to
four-family dwelling, or an individual condominium unit in a low-rise
condominium project, or an individual unit in a planned unit
development; provided, however, that any condominium project or planned
unit development shall conform with the applicable FNMA and FHLMC
requirements regarding such dwellings. No portion of the Mortgaged
Property is used for commercial purposes;
(v) The Mortgage Note and the Mortgage are genuine, and each is
the legal, valid and binding obligation of the maker thereof
enforceable in accordance with its terms. All parties to the Mortgage
Note and the Mortgage and any other related agreement had legal
capacity to enter into the Bank Originated Mortgage Loan and to execute
and deliver the Mortgage Note and the Mortgage and any other related
agreement, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties. The documents, instruments and
agreements submitted for loan underwriting were not falsified and
contain no untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
information and statements therein not misleading. To the best of the
Seller's knowledge, no fraud was committed in connection with the
origination of the Bank Originated Mortgage Loan;
(vi) Each Bank Originated Mortgage Loan has been closed and the
proceeds of the Bank Originated Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and any and
all requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefor have
been complied with. All costs, fees and expenses incurred in making or
closing the Bank Originated Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of
any amounts paid or due under the Mortgage Note or Mortgage;
(vii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach,
violation or event of acceleration, and neither the Seller nor its
predecessors has waived any default, breach, violation or event of
acceleration;
(viii) All improvements which were considered in determining the
Appraised Value of the Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property and
no improvements on adjoining properties encroach upon the Mortgaged
Property. No improvement located on or being part of the Mortgaged
Property is in violation of any applicable zoning law or regulation;
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(ix) Each Mortgage contains customary and enforceable provisions
which render the rights and remedies of the holder thereof adequate for
the realization against the related Mortgaged Property of the benefits
of the security, including (A) in the case of a Mortgage designated as
a deed of trust, by trustee's sale, and (B) otherwise by judicial or
non-judicial foreclosure. There is no homestead or other exemption
available to the related Mortgagor which would materially interfere
with the right to sell the Mortgaged Property at a trustee's sale or
the right to foreclose the Mortgage subject to the applicable federal
and state laws and judicial precedent with respect to bankruptcy and
rights of redemption. Upon default by a Mortgagor on a Bank Originated
Mortgage Loan and foreclosure on, or trustee's sale of, the Mortgaged
Property pursuant to the proper procedures, the holder of the Bank
Originated Mortgage Loan will be able to deliver good and merchantable
title to the property;
(x) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage and the
security interest of any applicable security agreement or chattel
mortgage;
(xi) In the event the Mortgage constitutes a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the
Depositor to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor;
(xii) The Mortgage Note, the Mortgage, the Assignment of Mortgage
and any other documents required to be delivered for the Bank
Originated Mortgage Loan by the Seller under this Agreement as set
forth in Section 1.02 hereof have been delivered to the Custodian. The
Seller is in possession of a complete, true and accurate Mortgage File
in compliance with Section 1.02 hereof, except for such documents the
originals of which have been delivered to the Custodian;
(xiii) The Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which
the Mortgaged Property is located;
(xiv) The Mortgage contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of a Bank
Originated Mortgage Loan in the event that the Mortgaged Property is
sold or transferred without the prior written consent of the Mortgagee
thereunder;
(xv) No Bank Originated Mortgage Loan contains provisions pursuant
to which Monthly Payments are paid or partially paid with funds
deposited in any separate account established by the Mortgagor or
anyone on behalf of the Mortgagor, or paid by any source other than the
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Mortgagor, nor does any Bank Originated Mortgage Loan contain any other
similar provisions currently in effect which may constitute a "buydown"
provision. No Bank Originated Mortgage Loan is a graduated payment
mortgage loan and no Bank Originated Mortgage Loan has a shared
appreciation or other contingent interest feature;
(xvi) Any future advances made prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the
Mortgage, and the secured principal amount, as consolidated, bears a
single interest rate and single repayment term. The lien of the
Mortgage securing the consolidated principal amount is insured by a
title insurance policy, an endorsement to the policy insuring the
mortgagee's consolidated interest or by other title evidence acceptable
to FNMA and FHLMC. The consolidated principal amount does not exceed
the original principal amount of any Bank Originated Mortgage Loan;
(xvii) The origination and collection practices used with respect
to each Bank Originated Mortgage Loan have been in accordance with
Accepted Servicing Practices, and have been in all respects in
compliance with all applicable laws and regulations. With respect to
escrow deposits and escrow payments, all such payments are in the
possession of the Seller and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof have
not been made. All escrow payments have been collected in full
compliance with state and federal law. An escrow of funds is not
prohibited by applicable law and has been established in an amount
sufficient to pay for every item which remains unpaid and which has
been assessed but is not yet due and payable. No escrow deposits or
escrow payments or other charges or payments due the Seller have been
capitalized under the Mortgage or the Mortgage Note. All Mortgage
Interest Rate adjustments have been made in strict compliance with
state and federal law and the terms of the related Mortgage Note. Any
interest required to be paid pursuant to state and local law has been
properly paid and credited;
(xviii) The Mortgage File contains an appraisal of the related
Mortgage Property signed prior to the approval of the Bank Originated
Mortgage Loan application by a qualified appraiser, who had no
interest, direct or indirect in the Mortgaged Property or in any loan
made on the security thereof; and whose compensation is not affected by
the approval or disapproval of the Bank Originated Mortgage Loan, and
the appraisal and appraiser both satisfy the requirements of Title XI
of the Federal Institutions Reform, Recovery, and Enforcement Act of
1989 and the regulations promulgated thereunder, all as in effect on
the date the Bank Originated Mortgage Loan was originated;
(xix) The Mortgaged Property is free from any and all toxic or
hazardous substances and there exists no violation of any local, state
or federal environmental law, rule or regulation. There is no pending
action or proceeding directly involving any Mortgaged Property of which
the Seller is aware in which compliance with any environmental law,
rule or regulation is an issue; and to the best of the Seller's
knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation;
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(xx) The Bank Originated Mortgage Loan does not contain a
provision permitting or requiring conversion to a fixed interest rate
Mortgage Loan;
(xxi) No Bank Originated Mortgage Loan was made in connection with
(i) the construction or rehabilitation of a Mortgaged Property or (ii)
facilitating the trade-in or exchange of a Mortgaged Property;
(xxii) No action, inaction or event has occurred and no state of
facts exists or has existed that has resulted or will result in the
exclusion from, denial of, or defense to coverage under any applicable
pool insurance policy, special hazard insurance policy, primary
mortgage loan insurance policy or bankruptcy bond, irrespective of the
cause of such failure of coverage. In connection with the placement of
any such insurance, no commission, fee or other compensation has been
or will be received by the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director or employee
had a financial interest at the time of placement of such insurance;
(xxiii) Each original Mortgage was recorded and, except for those
Bank Originated Mortgage Loans subject to the MERS identification
system, all subsequent assignments of the original Mortgage (other than
the assignment to the Depositor) have been recorded in the appropriate
jurisdictions wherein such recordation is necessary to perfect the
liens thereof as against creditors of the Seller, or are in the process
of being recorded; and
(xxiv) Any and all requirements of any federal, state or local
law, including, without limitation, usury, truth in lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to each Bank Originated
Mortgage Loan have been complied with.
(d) It is understood and agreed that the representations and warranties
set forth in Sections 1.04(b) and 1.04(c) herein shall survive the Closing Date.
Upon discovery by either the Seller or the Depositor of a breach of any of the
foregoing representations and warranties (excluding a breach of subparagraphs
(xi), (xvi) and (xvii) under Section 1.04(b)), that adversely and materially
affects the value of the related Mortgage Loan, that does not also constitute a
breach of a representation or warranty of a Transferor in the related Transfer
Agreement, the party discovering such breach shall give prompt written notice to
the other party; provided, however, notwithstanding anything to the contrary
herein, this paragraph shall be specifically applicable to a breach by the
Seller of the representations made pursuant to subparagraphs (xi), (xvi) and
(xvii) under Section 1.04(b) irrespective of the Transferor's breach of a
comparable representation or warranty in the Transfer Agreement. Within 60 days
of the discovery of any such breach, the Seller shall either (a) cure such
breach in all material respects, (b) repurchase such Mortgage Loan or any
property acquired in respect thereof from the Depositor at the applicable
Purchase Price or (c) within the two-year period following the Closing Date
substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
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Section 1.05 Grant Clause. It is intended that the conveyance of the
Seller's right, title and interest in and to the Mortgage Loans and other
property conveyed pursuant to this Agreement on the Closing Date 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 any such conveyance is
deemed to be in respect of a loan, it is intended that: (1) the rights and
obligations of the parties shall be established pursuant to the terms of this
Agreement; (2) the Seller hereby grants to the Depositor a first priority
security interest in all of the Seller's right, title and interest in, to and
under, whether now owned or hereafter acquired, the Mortgage Loans and other
property; and (3) this Agreement shall constitute a security agreement under
applicable law.
Section 1.06 Assignment by Depositor. The Depositor shall have the
right, upon notice to but without the consent of the Seller, to assign, in whole
or in part, its interest under this Agreement with respect to the Mortgage Loans
to the Trustee, and the Trustee then shall succeed to all rights of the
Depositor under this Agreement. All references to the rights of the Depositor in
this Agreement shall be deemed to be for the benefit of and exercisable by its
assignee or designee, specifically including the Trustee.
ARTICLE II MISCELLANEOUS PROVISIONS
Section 2.01 Binding Nature of Agreement; Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 2.02 Entire Agreement. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof.
Section 2.03 Amendment. This Agreement may be amended from time to time
by the Seller and the Depositor, without notice to or the consent of any of the
Holders, (i) to cure any ambiguity, (ii) to cause the provisions herein to
conform to or be consistent with or in furtherance of the statements made with
respect to the Certificates, the Trust Fund, the Trust Agreement or this
Agreement in the Prospectus Supplement; or to correct or supplement any
provision herein which may be inconsistent with any other provisions herein,
(iii) to make any other provisions with respect to matters or questions arising
under this Agreement or (iv) to add, delete, or amend any provisions to the
extent necessary or desirable to comply with any requirements imposed by the
Code and the REMIC Provisions. No such amendment effected pursuant to clause
(iii) of the preceding sentence shall adversely affect in any material respect
the interests of any Holder. Any such amendment shall be deemed not to adversely
affect in any material respect any Holder, if the Trustee receives written
confirmation from each Rating Agency
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that such amendment will not cause such Rating Agency to reduce the then current
rating assigned to the Certificates, if any (and any Opinion of Counsel
requested by the Trustee in connection with any such amendment may rely
expressly on such confirmation as the basis therefor).
(a) This Agreement may also be amended from time to time by the Seller
and the Depositor with the consent of the Holders of not less than 66-2/3% of
the Class Principal Amount or Class Notional Amount (or Percentage Interest) of
each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders;
provided, however, that no such amendment may (i) reduce in any manner the
amount of, or delay the timing of, payments received on Mortgage Loans which are
required to be distributed on any Certificate without the consent of the Holder
of such Certificate or (ii) reduce the aforesaid percentages of Class Principal
Amount or Class Notional Amount (or Percentage Interest) of Certificates of each
Class, the Holders of which are required to consent to any such amendment
without the consent of the Holders of 100% of the Class Principal Amount or
Class Notional Amount (or Percentage Interest) of each Class of Certificates
affected thereby. For purposes of this paragraph, references to "Holder" or
"Holders" shall be deemed to include, in the case of any Class of Book-Entry
Certificates, the related Certificate Owners.
(b) It shall not be necessary for the consent of Holders under this
Section 2.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations as
the Trustee may prescribe.
Section 2.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATION
LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT.
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.
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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.
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IN WITNESS WHEREOF, the Seller and the Depositor have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxxxx Xxxxxx
-------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
-------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
SCHEDULE A-1
TRANSFERRED MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
SCHEDULE A-2
BANK ORIGINATED MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
