EXECUTION
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XXXXXX BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of July 1, 2001
Amortizing Residential Collateral Trust
(Mortgage Pass-Through Certificates Series 2001-BC5)
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Table of Contents
Page
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ARTICLE I.
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans.....................................2
Section 1.02. Delivery of Documents......................................3
Section 1.03. Review of Documentation....................................3
Section 1.04. Representations and Warranties of the Seller...............3
Section 1.05. Grant Clause...............................................7
Section 1.06. Assignment by Depositor....................................8
ARTICLE II.
MISCELLANEOUS PROVISIONS
Section 2.01. Binding Nature of Agreement; Assignment....................8
Section 2.02. Entire Agreement...........................................8
Section 2.03. Amendment..................................................8
Section 2.04. Governing Law..............................................9
Section 2.05. Severability of Provisions.................................9
Section 2.06. Indulgences; No Waivers....................................9
Section 2.07. Headings Not to Affect Interpretation......................9
Section 2.08. Benefits of Agreement......................................9
Section 2.09. Counterparts...............................................9
SCHEDULES
EXHIBIT A Certain Defined Terms
SCHEDULE A Mortgage Loan Schedule (including Prepayment Charge Schedule)
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This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of July 1,
2001 (the "Agreement"), is executed by and between Xxxxxx Brothers Holdings Inc.
("LBH" or the "Seller") and Structured Asset Securities Corporation (the
"Depositor").
All capitalized terms not defined herein or in Exhibit A attached
hereto shall have the same meanings assigned to such terms in that certain trust
agreement (the "Trust Agreement") dated as of July 1, 2001, among the Depositor,
Xxxxx Fargo Bank Minnesota, National Association, as master servicer (the
"Master Servicer"), The Murrayhill Company, as loss mitigation advisor, and Bank
One, National Association, as trustee (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the following specified mortgage loan purchase and
warranties agreements (each a "Transfer Agreement," and together the "Transfer
Agreements"), Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc.
("Xxxxxx Capital"), or Xxxxxx Brothers Bank FSB, an affiliate of the Seller (the
"Bank"), has purchased from Finance America, LLC (formerly known as Finamco,
LLC), in the case of Xxxxxx Capital, and First Franklin Financial Corporation,
in the case of the Bank (each a "Transferor" and collectively, the
"Transferors"), certain conventional, first and second lien, adjustable and
fixed rate, fully amortizing and balloon, residential mortgage loans each as
identified on the Mortgage Loan Schedule attached hereto as Schedule A
(collectively, the "Mortgage Loans"):
X. Xxxxxx Capital, as purchaser:
Flow Mortgage Loan Purchase and Warranties Agreement, dated as
of June 30, 1999, between Xxxxxx Capital, as purchaser, and
Finance America, LLC, as seller (for conventional, fixed and
adjustable rate, residential mortgage loans); and
II. Bank, as purchaser:
Flow Mortgage Loan Purchase and Warranties Agreement, dated as
of May 23, 2001, between the Bank, as Purchaser, and First
Franklin Financial Corporation, as seller (for conventional,
fixed and adjustable rate, residential mortgage loans).
WHEREAS, pursuant to the following assignment and assumption agreement,
the Bank has assigned all of its right, title and interest in and to the
foregoing Transfer Agreements listed in II above, including the Mortgage Loans
acquired by the Bank thereunder, to the Seller:
a. Assignment and Assumption Agreement, dated as of August 13,
2001, and effective as of July 1, 2001, between the Bank, as
assignor, and the Seller, as assignee, with respect to the
Transfer Agreement entered into by the Bank listed in II
above.
WHEREAS, the Seller is a party to the following servicing agreements
(together, the "Servicing Agreements") pursuant to which the Mortgage Loans are
to be initially serviced by either Option One Mortgage Corporation or Ocwen
Federal Bank FSB (each, a "Servicer" and, collectively, the "Servicers"):
a. Reconstituted Servicing Agreement, dated as of July 1, 2001,
between the Seller and Ocwen Federal Bank FSB, as servicer,
for certain Mortgage Loans originated by Finance America, LLC
reconstituting the Residential Flow Servicing Agreement
between Ocwen Federal Bank FSB and the Seller, dated August 1,
1999; and
b. Servicing Agreement, dated as of July 1, 2001, between Option
One Mortgage Corporation, as Servicer, Xxxxx Fargo Bank
Minnesota, National Association, as Master Servicer, and
Xxxxxx Brothers Holdings Inc., as Seller.
WHEREAS, the Seller desires to sell, without recourse, all of its
right, title and interest in and to the Mortgage Loans to the Depositor and,
except as retained hereunder, to assign all of its rights and interest under the
Transfer Agreements and the Servicing Agreements relating to the Mortgage Loans
to the Depositor.
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.
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:
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. Such
conveyance includes, without limitation, the right to all payments of principal
and interest received on or with respect to the Mortgage Loans on and after the
Cut-off Date (other than payments of principal and interest due on or before
such date), and all such payments due after such date but received prior to such
date and intended by the related Mortgagors to be applied after such date, all
Prepayment Charges and DA Dividends received on or with respect to the Mortgage
Loans on or after the Cut-off Date (but excluding any DA Dividends on Direct
Access Mortgage Loans required to be refunded to the related Mortgagors pursuant
to the Servicing Agreements), 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
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pledged to secure the Mortgage Loans, including the Mortgaged Properties and
any proceeds of the foregoing.
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 (exclusive of the right, in the
case of the Direct Access Mortgage Loans serviced by Option One Mortgage
Corporation, to receive that portion of any DA Dividend required to be refunded
to the related Mortgagor), and delegates to the Depositor all of its obligations
thereunder, to the extent relating to the Mortgage Loans. Concurrently with the
execution hereof, the Depositor tenders the purchase price of $579,244,233. 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, as if the Depositor had been a party to each such
agreement.
Section 1.02. Delivery of Documents.
(a) In connection with such transfer and assignment of the Mortgage
Loans hereunder, the Seller does hereby deliver, or cause to be delivered, to
the Depositor (or its designee) the documents or instruments with respect to
each Mortgage Loan (each a "Mortgage File") so transferred and assigned, as
specified in the 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 Bankers Trust Company of California,
N.A., and U.S. Bank Trust National Association (each, a "Custodian" and,
collectively, the "Custodians") for the Depositor. Each Custodian is required to
review, within 45 days following the Closing Date, each applicable Mortgage
File. If in the course of such review the related Custodian discovers any
document or documents constituting a part of a Mortgage File that is missing,
does not appear regular on its face (i.e., is mutilated, damaged, defaced, torn
or otherwise physically altered) or appears to be unrelated to the Mortgage
Loans identified in the Mortgage Loan Schedule (each a "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 the Trust
Agreement.
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Section 1.04. Representations and Warranties of the Seller.
(a) The Seller hereby represents and warrants to the Depositor that as
of the date hereof that:
(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;
(ii) the execution and delivery by the Seller of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Seller; 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 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 consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency,
except such as has been obtained, given, effected or taken prior to the
date hereof;
(iv) this Agreement has been duly executed and delivered by
the Seller and, assuming due authorization, execution and delivery by
the Depositor, constitutes a valid and binding obligation of the Seller
enforceable against it in accordance with its terms except as such
enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the
rights of creditors generally and (B) general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law; and
(v) there are no actions, suits or proceedings pending or, to
the knowledge of 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 (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.
(b) The representations and warranties of each Transferor with respect
to the 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 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 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
Depositor acknowledges and agrees that the representations and warranties of the
Seller in this Section 1.04(b) are applicable only to facts, conditions or
events that do not constitute a breach of any representation or warranty made by
the 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 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. Subject to the foregoing, the Seller
represents and warrants upon delivery of the Mortgage Loans to the Depositor
hereunder, as to each, that:
(i) The information set forth with respect to the
Mortgage Loans on the Mortgage Loan Schedule provides an accurate
listing of the Mortgage Loans, and the information with respect to each
Mortgage Loan on the Mortgage Loan Schedule is true and correct in all
material respects at the date or dates respecting which such
information is given;
(ii) There are no defaults (other than delinquency in
payment) in complying with the terms of any Mortgage, and 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 Mortgage Loan, the Mortgaged Property was in an area identified in
the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the
current guidelines of the Federal Flood Insurance Administration is in
effect which policy conforms to the requirements of the current
guidelines of the Federal Flood Insurance Administration. Each Mortgage
obligates the related Mortgagor thereunder to maintain the hazard
insurance policy at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor's cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where
required by state law or regulation, each Mortgagor has been given an
opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance
policy covering the common facilities of a planned unit development.
The hazard insurance policy is the valid and binding obligation of the
insurer, is in full force and effect, and will be in full force and
effect and inure to the benefit of the Depositor upon the consummation
of the transactions contemplated by this Agreement.
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(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 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 Trustee in connection with, a 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 Mortgage Loans to the Depositor, the Seller was the sole owner
of record and holder of each Mortgage Loan, and the Seller had good and
marketable title thereto, and has full right to transfer and sell each
Mortgage Loan to the Depositor free and clear, except as described in
paragraph (v) above, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and has
full right and authority, subject to no interest or participation of,
or agreement with, any other party, to sell and assign each Mortgage
Loan pursuant to this Agreement;
(vii) Each Mortgage Loan other than any Cooperative
Loan is covered by either (i) an attorney's opinion of title and
abstract of title the form and substance of which is generally
acceptable to mortgage lending institutions originating mortgage loans
in the locality where the related Mortgaged Property is located or (ii)
an ALTA mortgagee Title Insurance Policy or other generally acceptable
form of policy of insurance, issued by a title insurer qualified to do
business in the jurisdiction where the Mortgaged Property is located,
insuring the originator of the Mortgage Loan, and its successors and
assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan (subject only to the exceptions
described in paragraph (v) above). If the Mortgaged Property is a
condominium unit located in a state in which a title insurer will
generally issue an endorsement, then the related Title Insurance Policy
contains an endorsement insuring the validity of the creation of the
condominium form of ownership with respect to the project in which such
unit is located. With respect to any Title Insurance Policy, the
originator is the sole insured of such mortgagee Title Insurance
Policy, such mortgagee Title Insurance Policy is in full force and
effect and will inure to the benefit of the Depositor upon the
consummation of the transactions contemplated by this
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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
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 Mortgage Loan or the use for which the premises were
intended;
(ix) There are no mechanics' or similar liens or
claims which have been filed for work, labor or material (and no rights
are outstanding that under the law could give rise to such liens)
affecting the related Mortgaged Property which are or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(x) Each Mortgage Loan was originated by a savings
and loan association, savings bank, commercial bank, credit union,
insurance company, or similar institution which is supervised and
examined by a Federal or State authority, or by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to sections 203
and 211 of the National Housing Act;
(xi) Any and all requirements of any federal, state
or local law, including, without limitation, usury, truth-in-lending,
real estate settlement procedures, consumer credit protection, equal
credit opportunity or disclosure laws applicable to each Mortgage Loan
have been complied with;
(xii) Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G of the Code and Treas.
Reg.ss.1.860G-2;
(xiii) The information set forth in the Prepayment
Charge Schedule included as part of the Mortgage Loan Schedule at
Schedule A hereto (including the Prepayment Charge Summary attached
thereto) is complete, true and correct in all material respects on the
date or dates on which such information is furnished and each
Prepayment Charge is permissible and enforceable in accordance with its
terms (except to the extent that the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws affecting creditor's rights generally or the
collectibility thereof may be limited due to acceleration in connection
with foreclosure) under applicable state law;
(xiv) No Mortgage Loan in Pool 1 or Pool 2 was at the
time of origination subject to the Home Ownership and Equity Protection
Act of 1994 or any comparable state law;
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(xv) No proceeds from any Mortgage Loan in Pool 1 or
Pool 2 were used to finance single-premium credit insurance policies;
(xvi) The Servicers for each Mortgage Loan in Pool 1
and Pool 2 will accurately and fully report its borrower credit files
to all three credit repositories in a timely manner; and
(xvii) No Mortgage Loan in Pool 1 or Pool 2 imposes a
Prepayment Charge for a term in excess of five years.
It is understood and agreed that the representations and warranties set
forth herein and the obligations of the Seller set forth in this Section survive
delivery of the Mortgage Files and the Assignment of Mortgage of each Mortgage
Loan to the Depositor. Upon discovery by either the Seller or the Depositor of a
breach of any of the foregoing representations and warranties (excluding a
breach of clause (xiii) under this Section 1.04(b) that adversely and materially
affects the value of the related Mortgage Loan, and that does not also
constitute a breach of a representation or warranty of the related Transferor in
the applicable Transfer Agreement, the party discovering such breach shall give
prompt written notice to the other party. Within 60 days of the discovery of any
such breach, 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.
(c) Notwithstanding the second paragraph of Section 1.04(b), in
connection with the Seller's representations and warranties made in clause
(xiii) of Section 1.04(b), within 90 days of the earlier of discovery by the
Seller or receipt of notice from the applicable Servicer or the NIMS Insurer of
a breach of any representation and warranty of the Seller made in clause (xiii)
of Section 1.04(b) above, which breach materially and adversely affects the
interests of the Class P Certificateholders in any Prepayment Charge, the Seller
shall, if (i) such representation and warranty is breached and a Principal
Prepayment has occurred or (ii) if a change in law subsequent to the Closing
Date limits the enforceability of the Prepayment Charge (other than in the
circumstances set forth in clause (xiii) of Section 1.04(b)), pay, at the time
of such Principal Prepayment or change in law, the amount of the scheduled
Prepayment Charge, for the benefit of the holders of the Class P Certificates,
by depositing such amount into the Certificate Account no later than the Deposit
Date immediately following the Prepayment Period in which such Principal
Prepayment on the related Mortgage Loan or such change in law has occurred, net
of any Servicer Prepayment Charge Payment Amount made by the applicable Servicer
with respect to the related Mortgage Loan in lieu of collection of such
Prepayment Charge.
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 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: (a)
the rights and obligations of the parties shall be established pursuant to the
terms of this Agreement; (b) the Seller hereby grants to the Depositor a first
priority security interest in all of
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the Seller's right, title and interest in, to and under, whether now owned or
hereafter acquired, the Mortgage Loans and other property; and (c) this
Agreement shall constitute a security agreement under applicable law.
Section 1.06. Assignment by Depositor.
Concurrently with the execution of this Agreement, the Depositor shall
assign 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, with the consent of the Trustee and the NIMS Insurer but
without notice to or the consent of any of the Certificateholders, (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
Certificateholder or the NIMS Insurer. Any such amendment shall be deemed not to
adversely affect in any material respect any Certificateholder or the NIMS
Insurer if the Trustee receives the prior written consent of the NIMS Insurer to
such amendment and 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 or the
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NIM Securities (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 the Seller
and the Depositor with the consent of the Trustee, the NIMS Insurer and the
Certificateholders 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 Certificateholders; 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 Certificateholder 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
Certificateholders of which are required to consent to any such amendment
without the consent of the Certificateholders of 100% of the Class Principal
Amount or Class Notional Amount (or Percentage Interest) of each Class of
Certificates affected thereby.
(c) It shall not be necessary for the consent of Certificateholders
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 Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Section 2.04. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
Section 2.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
Section 2.06. Indulgences; No Waivers.
Neither the failure nor any delay on the part of a party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective
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unless it is in writing and is signed by the party asserted to have granted
such waiver, as well as the Trustee and the NIMS Insurer.
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.
The parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties set forth herein, that the Trustee and
the NIMS Insurer enjoy the full benefit of the provisions of this Agreement each
as an intended third party beneficiary; provided, however, nothing in this
Agreement, express or implied, shall give to any Person, other than the parties
to this Agreement and their successors hereunder, the Trustee, the NIMS Insurer
and the Certificateholders, any benefit or 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.,
as Seller
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Authorized Signatory
STRUCTURED ASSET SECURITIES
CORPORATION,
as Purchaser
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
ACKNOWLEDGED BY:
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X . Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
CERTAIN DEFINED TERMS
"Prepayment Charge": With respect to any Mortgage Loan, the charges or premiums,
if any, due in connection with a full or partial prepayment of such Mortgage
Loan during a Prepayment Period in accordance with the terms thereof (other than
any Servicer Prepayment Charge Payment Amount).
"Prepayment Charge Schedule": As of any date, the list of Prepayment Charges on
the Mortgage Loans included in the Trust Fund on such date, included as part of
the Mortgage Loan Schedule at Exhibit A (including the Prepayment Charge Summary
attached thereto). The Prepayment Charge Schedule shall be prepared by the
Seller and shall set forth the following information with respect to each
Prepayment Charge:
(i) the Mortgage Loan identifying number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination of the related Mortgage Loan;
(iv) the date on which the first Scheduled Payment was due on the
related Mortgage Loan;
(v) the term of the related Prepayment Charge; and
(vi) the Scheduled Principal Balance of the Mortgage Loan as of the
Cut-off Date.
Such Prepayment Charge Schedule shall be amended from time to time by
the Seller and a copy of such amended Prepayment Charge Schedule shall be
furnished by the Seller to the NIMS Insurer.
"Servicer Prepayment Charge Payment Amount": The amount payable by a
Servicer in respect of any impermissible waiver by the Servicer of a Prepayment
Charge pursuant to the related Servicing Agreement.
SCHEDULE A
MORTGAGE LOAN SCHEDULE
(including Prepayment Charge Schedule and
Prepayment Charge Summary)
