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XXXXXX CAPITAL,
A DIVISION OF XXXXXX BROTHERS HOLDINGS INC.
SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION
PURCHASER
MORTGAGE LOAN SALE AGREEMENT
Dated as of January 1, 1998
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MORTGAGE LOAN SALE AGREEMENT
TABLE OF CONTENTS
Page
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ARTICLE I
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans . . . . . . . . . . . . . . . . . . .
Section 1.02. Delivery of Documents . . . . . . . . . . . . . . . . . . .
Section 1.03. Review of Documentation . . . . . . . . . . . . . . . . . .
Section 1.04. Representations and Warranties of
Xxxxxx Capital . . . . . . . . . . . . . . . . . . . . . . .
Section 1.05. Grant Clause . . . . . . . . . . . . . . . . . . . . . . . .
Section 1.06. Assignment by Depositor . . . . . . . . . . . . . . . . . .
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment . . . . . . . . . .
Section 2.02. Entire Agreement . . . . . . . . . . . . . . . . . . . . . .
Section 2.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2.04. Governing Law . . . . . . . . . . . . . . . . . . . . . . .
Section 2.05. Severability of Provisions . . . . . . . . . . . . . . . . .
Section 2.06. Indulgences; No Waivers . . . . . . . . . . . . . . . . . .
Section 2.07. Headings Not To Affect Interpretation . . . . . . . . . . .
Section 2.08. Benefits of Agreement . . . . . . . . . . . . . . . . . . .
Section 2.09. Counterparts . . . . . . . . . . . . . . . . . . . . . . . .
SCHEDULES
SCHEDULE A Mortgage Loan Schedule
EXHIBIT A Servicing Agreements
This MORTGAGE LOAN SALE AGREEMENT is executed by and between Xxxxxx
Brothers Holdings Inc., doing business as Xxxxxx Capital, A Division of
Xxxxxx Brothers Holdings Inc. ("Xxxxxx Capital"), and Structured Asset
Securities Corporation (the "Depositor"), dated of the 1st day of January,
1998.
All capitalized terms not defined herein shall have the same meanings
assigned to such terms in that certain Trust Agreement (the "Trust
Agreement"), dated as of January 1, 1998, among the Depositor, Norwest Bank
Minnesota, National Association, as master servicer, and First Union National
Bank, as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, Xxxxxx Capital desires to sell, without recourse, all of its
right, title and interest (except as specified herein) in and to certain
mortgage loans identified on the Mortgage Loan Schedule attached hereto as
Exhibit A (the "Mortgage Loans") 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 holder 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
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and delivery of this Agreement, Xxxxxx Capital does hereby transfer, assign,
set over, deposit with and otherwise convey to the Depositor, without
recourse, all the right, title and interest of Xxxxxx Capital in and to the
Mortgage Loans identified on Schedule A hereto, having an aggregate principal
balance as of the Cut-off Date of $355,136,702. Such conveyance includes,
without limitation, the right to all distributions of principal and interest
received on or with respect to the Mortgage Loans on and after January 1, 1998
(other than payments of principal and interest due on or before such date),
the proceeds of any REO Property, all rights under any Insurance Policies
related to the Mortgage Loans and any rights of Xxxxxx Capital under any of
the agreements pursuant to which it purchased such Mortgage Loans to the
extent of such Mortgage Loans, Xxxxxx Capital's security interest in any
collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties, and all rights of Xxxxxx Capital to enforce the obligations of
each Servicer under the related Servicing Agreement and to exercise such
remedies as are provided therein, but does not include the servicing rights
with respect to the Mortgage Loans. To the extent that Xxxxxx Capital owns
such servicing rights, Xxxxxx Capital retains ownership of such servicing
rights and may transfer such rights to one or more successor servicers at any
time, subject to the conditions set forth in the Trust Agreement. Concurrently
with the execution hereof, the Depositor tenders the purchase price of the
Mortgage Loans of $355,136,702 (including accrued interest).
Section 1.02. Delivery of Documents. (a) In connection with such
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transfer and assignment of the Mortgage Loans hereunder, Xxxxxx Capital does
hereby deliver to the Depositor the following documents or instruments with
respect to each Mortgage Loan (each a "Mortgage File") so transferred and
assigned:
(i) with respect to each Mortgage Loan, the original Mortgage Note
endorsed without recourse in proper form to the order of the Depositor
or its designee, or in blank (in each case, with all necessary
intervening endorsements as applicable);
(ii) the original of any guarantee executed in connection with the
Mortgage Note, assigned to the Depositor or its designee;
(iii) with respect to any Mortgage Loan other than a Cooperative
Loan, the original recorded Mortgage with evidence of recording
indicated thereon. If, in connection with any Mortgage Loan, Xxxxxx
Capital cannot deliver the Mortgage with evidence of recording thereon
on or prior to the Closing Date because of a delay caused by the public
recording office where such Mortgage has been delivered for recordation
or because such Mortgage has been lost, Xxxxxx Capital shall deliver or
cause to be delivered to the Depositor (or its custodian), in the case
of a delay due to recording, a true copy of such Mortgage, pending
delivery of the original thereof, together with an Officer's Certificate
of Xxxxxx Capital certifying that the copy of such Mortgage delivered to
the Depositor (or its custodian) is a true copy and that the original of
such Mortgage has been forwarded to the public recording office, or, in
the case of a Mortgage that has been lost, a copy thereof (certified as
provided for under the laws of the appropriate jurisdiction) and a
written Opinion of Counsel acceptable to the Depositor or its designee
that an original recorded Mortgage is not required to enforce the
Depositor's interest in the Mortgage Loan;
(iv) the original of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans, or, as to any
assumption, modification or substitution agreement which cannot be
delivered on or prior to the Closing Date because of a delay caused by
the public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy
of such assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer's Certificate
of Xxxxxx Capital certifying that the copy of such assumption,
modification or substitution agreement delivered to the Depositor (or
its custodian) is a true copy and that the original of such agreement
has been forwarded to the public recording office;
(v) with respect to any Mortgage Loan other than a Cooperative Loan,
the original Assignment of Mortgage for each Mortgage Loan;
(vi) if applicable, such original intervening assignments of the
Mortgage, notice of transfer or equivalent instrument (each, an
"Intervening Assignment"), as may be necessary to show a complete chain
of assignment from the originator, or, in the case of an Intervening
Assignment that has been lost, a written Opinion of Counsel acceptable
to the Depositor that such original Intervening Assignment is not
required to enforce the Depositor's interest in the Mortgage Loans;
(vii) the original Primary Mortgage Insurance Policy or certificate,
if private mortgage guaranty insurance is required;
(viii) with respect to any Mortgage Loan other than a Cooperative
Loan, the original mortgagee title insurance policy or attorney's
opinion of title and abstract of title;
(ix) the original of any security agreement, chattel mortgage or
equivalent executed in connection with the Mortgage or as to any
security agreement, chattel mortgage or their equivalent that cannot be
delivered on or prior to the Closing Date because of a delay caused by
the public recording office where such document has been delivered for
recordation, a photocopy of such document, pending delivery of the
original thereof, together with an Officer's Certificate of Xxxxxx
Capital certifying that the copy of such security agreement, chattel
mortgage or their equivalent delivered to the Depositor (or its
custodian) is a true copy and that the original of such document has
been forwarded to the public recording office;
(x) with respect to any Cooperative Loan, the Cooperative Loan
Documents; and
(xi) in connection with any pledge of Additional Collateral, the
original additional collateral pledge and security agreement executed in
connection therewith, assigned to the Depositor.
(b) Assignments of Mortgage shall be recorded; provided, however, that
such Assignments need not be recorded if, in the Opinion of Counsel (which
must be Independent counsel), obtained at the expense of Xxxxxx Capital,
acceptable to the Depositor or its designee, recording in such states is not
required to protect the Depositor's interest in the related Mortgage Loans.
(c) In instances where a Title Insurance Policy is required to be
delivered to the Depositor (or its custodian) under clause (b)(viii) above
and is not so delivered, Xxxxxx Capital will provide a copy of such Title
Insurance Policy to the Depositor as promptly as practicable after the
execution and delivery hereof, but in any case within 180 days of the Closing
Date.
(d) 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 above documents, 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 Master Servicer for such purpose
have been so deposited. All original documents that are not delivered to the
Depositor (or its custodian) shall be held by the Master Servicer in trust
for the benefit of the Depositor.
Section 1.03. Review of Documentation. The Depositor, by execution and
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delivery hereof, acknowledges receipt of the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan Schedule, subject to review thereof
by the Depositor or its custodian. Xxxxxx Capital shall be required to
cooperate with the Depositor in curing any Material Defect identified by the
Trustee pursuant to the Trust Agreement. If such Material Defect is not cured,
Xxxxxx Capital shall, if a loss has been incurred with respect to such
Mortgage Loan that would, if such Mortgage Loan were not purchased from the
Trust Fund, constitute a Realized Loss, and such loss is attributable to the
failure of the Depositor or Xxxxxx Capital to cure such Material Defect,
repurchase the related Mortgage Loan from the Depositor at the applicable
Purchase Price. A loss shall be deemed to be attributable to the failure of
the Depositor or Xxxxxx Capital to cure a Material Defect if, as determined
by the Depositor, absent such Material Defect, such loss would not have been
incurred. Within the two year period following the Closing Date, Xxxxxx
Capital may, in lieu of repurchasing a Mortgage Loan pursuant to this Section
3, substitute for such Mortgage Loan a Qualifying Substitute Mortgage Loan
subject to the provisions of Section 2.05 of the Trust Agreement.
Section 1.04. Representations and Warranties of Xxxxxx Capital. Xxxxxx
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Capital hereby represents and warrants to the Depositor that as of the date
hereof:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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 commercially reasonable 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;
(f) upon delivery of the Mortgage Loans to the Depositor hereunder,
as to each, that:
(i) The information set forth with respect to the Mortgage Loans
on the Mortgage Loan Schedule provides an accurate listing of the
Mortgage Loans, and the information with respect to each Mortgage
Loan on the Mortgage Loan Schedule is true and correct in all
material respects at the date or dates respecting which such
information is given;
(ii) As of the Closing Date, no Mortgage Loan was more than two
Scheduled Payments delinquent as of January 1, 1998;
(iii) All taxes, governmental assessments, insurance premiums,
water, sewer and municipal charges, leasehold payments or ground
rents which previously became due and owing have been paid or an
escrow of funds has been established in an amount sufficient to pay
for every such item that remains unpaid and that has been assessed
but is not yet due and payable;
(iv) Each Mortgage evidences a valid, subsisting and enforceable
first lien on the related Mortgaged Property. The lien of the
Mortgage is subject only to: (1) liens of current real property
taxes and assessments not yet due and payable and, if the related
Mortgaged Property is a condominium unit, any lien for common
charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage acceptable to
mortgage lending institutions in the area in which the related
Mortgaged Property is located and specifically referred to in the
lender's Title Insurance Policy or attorney's opinion of title and
abstract of title delivered to the originator of such Mortgage Loan,
and (3) such other matters to which like properties are commonly
subject which do not, individually or in the aggregate, materially
interfere with the benefits of the security intended to be provided
by the Mortgage. Any security agreement, chattel mortgage or
equivalent document related to, and delivered to the Depositor in
connection with, a Mortgage Loan establishes a valid, subsisting and
enforceable first lien on the property described therein and Xxxxxx
Capital has full right to sell and assign the same to the Depositor;
(v) Immediately prior to the transfer and assignment of the
Mortgage Loans to the Depositor, Xxxxxx Capital was the sole owner
of record and holder of each Mortgage Loan, and Xxxxxx Capital had
good and marketable title thereto, and has full right to transfer
and sell each Mortgage Loan to the Depositor free and clear, except
as described in paragraph (iv) above, of any encumbrance, equity
participation interest, lien, pledge, charge, claim or security
interest, and had full right and authority, subject to no interest
or participation of, or agreement with, any other party, to sell and
assign each Mortgage Loan pursuant to this Agreement;
(vi) Each manufactured home securing a Mortgage Loan satisfies,
at a minimum, the definition of "manufactured home" in Section
603(6) of the National Manufactured Housing Construction and Safety
Standards Act of 1974, as amended, has a minimum of 400 square feet
of living space, has a minimum width in excess of 102 inches and is
of a kind customarily used at a fixed location;
(vii) Each Mortgage Loan was originated by a savings and loan
association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by
a Federal or State authority, or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203
and 211 of the National Housing Act;
(viii) Each Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G of the Code and Treas. Reg. Section1.860G-2;
(ix) Each Mortgage Loan had a Loan-to-Value Ratio at origination
(or, if the Mortgage Loan has been the subject of a "significant
modification" since origination, other than as a result of a default
or reasonably foreseeable default, as of the date of modification)
or as of the Cut-off Date less than or equal to 125%;
(x) No Mortgage Loan is subject to any right of rescission, set-
off, counterclaim or defense, including the defense of usury, nor
will the operation of any of the terms of any Mortgage Note or
Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable in whole or in part, or
subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(xi) Each Mortgage Loan at the time it was made complied in all
material respects with applicable state and federal laws and
regulations, including, without limitation, usury, equal credit
opportunity, consumer credit, truth-in-lending and disclosure laws;
(xii) Other than with respect to those Mortgage Loans which have
missing mortgage loan documentation, which Mortgage Loans comprise
no more than 4.40% of the Mortgage Loans (by Aggregate Scheduled
Principal Balance), with respect to each Mortgage Loan, a lender's
title insurance policy, issued in standard American Land Title
Association or California Land Title Association form, or other form
acceptable in a particular jurisdiction, by a title insurance
company authorized to transact business in the state in which the
related Mortgaged Property is situated, together with a condominium
endorsement, if applicable, in an amount at least equal to the
original principal balance of such Mortgage Loan insuring the
mortgagee's interest under the related Mortgage Loan as the holder
of a valid first mortgage lien of record on the real property
described in the Mortgage was valid and in full force and effect on
the date of the origination of such Mortgage Loan and as of the
Closing Date;
(xiii) Each Mortgage and Mortgage Note is the legal, valid and
binding obligation of the related Mortgagor and is enforceable in
accordance with its terms, except only as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether considered in
a proceeding or action in equity or at law), and all parties to each
Mortgage Loan and the Mortgagee had full legal capacity to execute
all Mortgage Loan documents and to convey the estate therein
purported to be conveyed;
(xiv) The terms of the Mortgage Loan and the Mortgage have not
been impaired, altered or modified in any material respect, except
by a written instrument which has been recorded or is in the process
of being recorded, if necessary, to protect the interests of the
Certificateholders and the Certificate Insurer and which has been or
will be delivered to the Trustee. The substance of any such
alteration or modification is reflected on the related Mortgage Loan
Schedule and was approved, if required, by the related primary
mortgage guaranty insurer, if any. Other than with respect to those
Mortgage Loans which have missing mortgage loan documentation, which
Mortgage Loans comprise no more than 3.20% of the Mortgage Loans (by
Aggregate Scheduled Principal Balance), with respect to each
Mortgage Loan, each original Mortgage was recorded, and all
subsequent assignments of the original Mortgage have been recorded
in the appropriate jurisdictions wherein such recordation is
necessary to perfect the lien thereof as against creditors of Xxxxxx
Capital, or are in the process of being recorded;
(xv) No instrument of release or waiver has been executed in
connection with the Mortgage Loan, and no Mortgagor has been
released, in whole or in part;
(xvi) There is no proceeding pending or, to the best of Xxxxxx
Capital's knowledge, threatened for the total or partial
condemnation of any Mortgaged Property, nor is such a proceeding
currently occurring, and such property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other
casualty, so as to affect adversely the value of the Mortgaged
Property as security for the Mortgage Loan or the use for which the
premises were intended;
(xvii) To the best of Xxxxxx Capital's knowledge, all of the
improvements which were included for the purpose of determining the
appraised value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of such property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property;
(xviii) To the best of Xxxxxx Capital's knowledge, no
improvement located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation. To the best
of Xxxxxx Capital's knowledge, all inspections, licenses and
certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the
use and occupancy of the same, including but not limited to
certificates of occupance and fire underwriting certificates, have
been made or obtained from the appropriate authorities and the
Mortgaged Property is lawfully occupied under applicable law;
(xix) The proceeds of each Mortgage Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee
to make future advances thereunder. Any and all requirements as to
completion of any on-site or off-site improvements and as to
disbursement of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing or
recording the Mortgage Loans were paid;
(xx) Each Mortgage Note is not and has not been secured by any
collateral, pledged account or other security except the lien of the
corresponding Mortgage;
(xxi) No Mortgage Loan was originated under a buydown plan;
(xxii) Each Mortgage contains a customary provision for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event the related security for the Mortgage
Loan is sold without the prior consent of the mortgagee thereunder;
(xxiii) 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 reflected on
the related Mortgage Loan Schedule. The consolidated principal
amount does not exceed the original principal amount of the Mortgage
Loan. The Mortgage Note does not permit or obligate Xxxxxx Capital
to make future advances to the Mortgagor at the option of the
Mortgagor;
(xxiv) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder
thereof adequate for the realization against the 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 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 except as
set forth in the Prospectus;
(xxv) There is no default, breach, violation or event of
acceleration existing under any Mortgage or the related 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 Xxxxxx
Capital has not waived any default, breach, violation or event of
acceleration;
(xxvi) All parties to the Mortgage Note and the Mortgage had
legal capacity to execute the Mortgage Note and the Mortgage and
each Mortgage Note and Mortgage have been duly and properly executed
by such parties;
(xxvii) All amounts received after the Cut-Off Date with respect
to the Mortgage Loans to which Xxxxxx Capital is not entitled have
been deposited into the Collection Account and are, as of the
Closing Date in the Collection Account;
(xxviii) The Mortgage Loans were not selected by Xxxxxx Capital
for inclusion in the Trust Fund on any basis intended to adversely
affect the Trust Fund or the Certificate Insurer; and
(xxix) Each hazard insurance policy required to be maintained
under Section 9.16 of the Trust Agreement with respect to the
Mortgage Loan is a valid, binding, enforceable and subsisting
insurance policy of its respective kind and is in full force and
effect.
It is understood and agreed that the representations and warranties set
forth herein survive delivery of the Mortgage Files and the Assignment of
Mortgage of each Mortgage Loan to the Depositor, and survive the subsequent
assignment of this Agreement to the Trustee pursuant to Section 1.06 hereof.
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, the party discovering such
breach shall give prompt written notice to the other party. Within 90 days
of the discovery of breach with respect to the representations and warranties
given to the Depositor, 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
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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
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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
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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
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agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section 2.03. Amendment. (a) This Agreement may be amended from time
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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 or the Certificate
Insurer, 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 (without taking into account the
Certificate Insurance Policy) (and any Opinion of Counsel requested by the
Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by Xxxxxx
Capital and the Depositor with the consent of the Certificate Insurer and the
Holders of not less than 66-2/3% of the Class Certificate Principal Amount
(or Aggregate Notional Amount) of each Class of Certificates affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders; provided, however, that no such amendment
may (i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without, the consent of the Holder of such Certificate or (ii)
reduce the aforesaid percentages of Class Certificate Principal Amount (or
Aggregate Notional Amount) of Certificates of each Class, the Holders of
which are required to consent to any such amendment without the consent of
the Holders of 100% of the Class Certificate Principal Amount (or Aggregate
Notional Amount) of each Class of Certificates affected thereby.
(c) It shall not be necessary for the consent of Holders under this
Section 2.03 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be subject to such reasonable regulations
as the Trustee may prescribe.
Section 2.04. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
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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
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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
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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
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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,
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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
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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/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
STRUCTURED ASSET SECURITIES CORPORATION
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
SCHEDULE A
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MORTGAGE LOAN SCHEDULE
EXHIBIT A
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SERVICING AGREEMENTS
