Contract
EXECUTION
COPY
XXXXXX
BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED
ASSET SECURITIES CORPORATION,
PURCHASER
Dated
as
of November 1, 2006
Structured
Adjustable Rate Mortgage Loan Trust
(Mortgage
Pass-Through Certificates, Series 2006-11)
TABLE
OF CONTENTS
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Page
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CONVEYANCE
OF MORTGAGE LOANS
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Section
1.01.
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Mortgage
Loans
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3
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Section
1.02.
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Delivery
of Documents
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4
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Section
1.03.
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Review
of Documentation
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5
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Section
1.04.
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Representations
and Warranties of the Seller
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5
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Section
1.05.
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Grant
Clause
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14
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Section
1.06.
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Assignment
by Depositor
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14
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ARTICLE
II
MISCELLANEOUS
PROVISIONS
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Section
2.01.
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Binding
Nature of Agreement; Assignment
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14
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Section
2.02.
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Entire
Agreement
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14
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Section
2.03.
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Amendment
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15
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Section
2.04.
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Governing
Law
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15
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Section
2.05.
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Severability
of Provisions
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16
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Section
2.06.
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Indulgences;
No Waivers
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16
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Section
2.07.
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Headings
Not to Affect Interpretation
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16
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Section
2.08.
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Benefits
of Agreement
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16
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Section
2.09.
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Counterparts
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16
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SCHEDULE
A-1
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Transferred
Mortgage Loan Schedule
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SCHEDULE
A-2
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Bank
Originated Mortgage Loan Schedule
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SCHEDULE
A-3
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First
Payment Default Mortgage Loan
Schedule
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i
This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of November 1, 2006
(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
November 1, 2006, among the Depositor, Aurora Loan Services LLC, as master
servicer (“Aurora”) and U.S. Bank National Association, as trustee (the
“Trustee”).
WITNESSETH:
WHEREAS,
Xxxxxx Brothers Bank, FSB (the “Bank”), pursuant to the following specified
agreements (each, a “Bank Transfer Agreement” and collectively, the “Transfer
Agreements”), has purchased or received certain mortgage loans identified on the
Mortgage Loan Schedule attached hereto as Schedule A-1 (each, a “Bank
Transferred Mortgage Loan” and collectively, the “Transferred Mortgage Loans”):
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1.
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Flow
Mortgage Loan Purchase, Warranties and Servicing Agreement dated
as of
October 1, 2006, including REG AB Addendum, by and between the
Bank and
ABN AMRO Mortgage Group, Inc. (“ABN
AMRO”);
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2.
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Flow
Mortgage Loan Purchase and Warranties Agreement dated as of November
17,
2004 and amended as of December 29, 2005 (reg ab), by and between
the Bank
and American Home Mortgage, Corp (“AHM”);
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3.
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Loan
Purchase Agreement dated as of January 24, 2003, by and between
the Bank
and American Sterling Bank (“ASB”);
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4.
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Flow
Mortgage Loan Purchase and Warranties Agreement dated as of September
16,
2003, by and between the Bank and Bancmortgage, a Division of
National
Bank of Commerce (“Bancmortgage”);
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5.
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Loan
Purchase Agreement dated as of July 29, 2004, by and between
the Bank and
Central Pacific Mortgage
(“Central”);
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6.
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Flow
Seller's Warranties and Servicing Agreement dated as of June
1, 2004 and
amended as of January 31, 2006 (reg ab) by and between the Bank
and
Countrywide Home Loans, Inc.
(“Countrywide”);
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7.
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Loan
Purchase Agreement dated as of December 9, 2005, by and between
the Bank
and DHI Mortgage Company (“DHI”);
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8.
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Loan
Purchase Agreement dated as of December 5, 2002, by and between
the Bank
and E-Loan Mortgage (“E-Loan”);
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9.
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Loan
Purchase Agreement dated as of October 10, 2002, by and between
the Bank
and Family Lending Services, Inc.
(“Family”);
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10.
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Loan
Purchase Agreement dated as of February 20, 2002, by and between
the Bank
and Freedom Mortgage Corp d/b/a Freedom Home Mortgage Corporation
(“Freedom”);
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11.
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Flow
Mortgage Loan Purchase and Warranties Agreement dated as of December
12,
2001 and amended as of March 14, 2003, by and between the Bank
and
Greenpoint Mortgage Funding, Inc.
(“Greenpoint”);
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12.
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Flow
Mortgage Loan Purchase and Warranties Agreement dated as of September
1,
2004 and amendment for reg ab as of December 22, 2005, by and
between the
Bank and Impac Funding Corporation
(“Impac”);
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13.
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Mortgage
Loan Purchase Agreement dated as of April 20, 2006 by and between
Xxxxxx
Brothers Bank, FSB and Just Mortgage Inc. (“Just
Mortgage”);
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14.
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Flow
Mortgage Loan Purchase and Warranties Agreement dated as of May
31, 2005,
by and between the Bank and Loancity
(“Loancity”);
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15.
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Flow
Mortgage Loan Purchase and Warranties Agreement dated as of March
31,
2005, by and between Xxxxxx Capital, A Division of the Bank and
Ohio
Savings Bank (“OSB”);
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16.
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Seller's
Warranties and Servicing Agreement dated as of December 13, 2005
and
amended as of July 18, 2006, by and between the Bank and Option
One
Mortgage Corporation, Option One Owner Trust 2001-1A, Option
One Owner
Trust 2001-1B, Option One Owner Trust 2001-2, Option One Owner
Trust
2002-3 Option One Owner Trust 2003-4, Option One Owner Trust
2003-5,
Option One Owner Trust 2005-6, Option One Owner Trust 2005-7
and Option
One Owner Trust 2005-8 (“Option One”);
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17.
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Flow
Purchase and Warranties Agreement dated as of September 25, 2003,
by and
between the Bank and Plaza Home Mortgage Inc. (“Plaza”);
and
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18.
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Loan
Purchase Agreement dated as of January 9, 2003, by and between
the Bank
and Residential Mortgage Capital (“RMC” and collectively with ABN AMRO,
AHM, SB, Bancmortgage, Central, Countrywide, DHI, E-Loan, Family,
Freedom,
Greenpoint, Impac, Just Mortgage, Loancity, OSB, Option One and
Plaza,
“Transferors” and each a
“Transferor”).
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WHEREAS,
in addition to the Bank Transferred Mortgage Loans, the Bank has funded
certain
mortgage loans originated by Aurora Loan Services LLC identified on the
Mortgage
Loan Schedule attached hereto as Schedule A-2 (each, a “Bank Originated Mortgage
Loan” and together with the Bank Transferred Mortgage Loans, the “Bank Mortgage
Loans” or the “Mortgage Loans”);
WHEREAS,
pursuant to an Assignment and Assumption Agreement (the “Assignment and
Assumption Agreement”), dated as of November 1, 2006, 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 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 Transfer Agreements;
2
WHEREAS,
the Seller is a party to the following servicing agreements (collectively,
the
“Servicing Agreement”) pursuant to which the Mortgage Loans are serviced by ABN
AMRO, Aurora, Colonial Savings, F.A. and Countrywide Home Loans Servicing
LP
(each as a “Servicer” and collectively, the “Servicers”):
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1.
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Reconstituted
Servicing Agreement, dated as of November 1, 2006, by and between
the
Seller and ABN AMRO;
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2.
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Servicing
Agreement, dated as of November 1, 2006, by and between the Seller
and
Aurora pursuant to which the Mortgage Loans are serviced by
Aurora;
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3.
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Colonial
Savings Transfer Notice, dated as of November 1, 2006, by and
between the
Seller and Colonial Savings, F.A.;
and
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4.
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Reconstituted
Servicing Agreement, dated as of November 1, 2006, by and between
the
Seller and Countrywide Home Loans Servicing
LP
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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 Loans) 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.
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. Mortgage
Loans.
(a) 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 Loans, if any) identified on Schedule
A-1 and
Schedule A-2 hereto, having an aggregate principal balance as of the Cut-off
Date of approximately $543,334,141.01.
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 November 1, 2006 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, the Seller’s
security interest in any collateral pledged to secure the Mortgage Loans,
including the Mortgaged Properties, and any proceeds of the
foregoing.
3
(b) 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
the Servicing Agreements except for (A) any rights against the Transferor
with
respect to (i) first payment date defaults or early payment date defaults
or
(ii) reimbursement of any amount in excess of the Purchase Price for a
breach of
a representation or warranty and (B) 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 $543,334,141.01. 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.
(c) 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 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.
4
(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 the custodian, LaSalle Bank National
Association or U.S. Bank National Association as applicable (each, a “Custodian”
and together, 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 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:
(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;
(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;
5
(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)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx))
shall
be the right to enforce the obligations of such Transferor under any applicable
representation or warranty made by it. The representations made by the
Seller
pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix)
and 1.04(b)(xx) 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)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix)
and 1.04(b)(xx)) 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 on the Closing Date,
as to
each, that:
(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;
6
(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
a
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 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;
7
(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;
(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.
(ix) 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;
8
(x) 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;
(xi) 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;
(xii) 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;
(xiii) As
of the
Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within
the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined
without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides
that a defective obligation is a qualified mortgage for a temporary period);
(xiv) 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. §1.860G-1(a)(3)) in effect
throughout the term of the Transferred Mortgage Loan;
(xv) As
of the
Closing Date, no Transferred Mortgage Loan is the subject of pending or
final
foreclosure proceedings;
(xvi) 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;
(xvii) No
Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,”
“high-risk home” or “predatory” loan under any applicable federal, state or
local predatory or abusive lending law (or a similarly classified loan
using
different terminology under a law imposing heightened regulatory scrutiny
or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees); no Transferred Mortgage Loan originated on
or after
November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home
Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred
Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan
Protection Act (N.M. Stat. Xxx. §§ 58-21A-1 et seq.);
9
(xviii) No
Transferred Mortgage Loan is subject to the Home Ownership and Equity Protection
Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any
comparable state law;
(xix) No
Transferred Mortgage Loan is a High Cost Loan or Covered Loan, as applicable
(as
such terms are defined in the then current version of Standard & Poor’s
LEVELS® Glossary) and no Transferred Mortgage Loan originated on or after
October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act; and
(xx) No
Transferred Mortgage Loan that is secured by property located in Illinois
is in
violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat.
205/1 et seq.).
(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
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;
(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;
10
(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;
(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;
11
(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 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;
12
(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;
(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.
13
(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
(xii), (xvii), (xviii), (xix) and (xx) 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
(xii), (xvii), (xviii), (xix) and (xx) 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.
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.
14
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 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 OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND
REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
15
Section
2.05. Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this
Agreement.
Section
2.06. Indulgences;
No Waivers.
Neither
the failure nor any delay on the part of a party to exercise any right,
remedy,
power or privilege under this Agreement shall operate as a waiver thereof,
nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy,
power or
privilege with respect to any occurrence be construed as a waiver of such
right,
remedy, power or privilege with respect to any other occurrence. No waiver
shall
be effective unless it is in writing and is signed by the party asserted
to have
granted such waiver.
Section
2.07. Headings
Not to Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
2.08. Benefits
of Agreement.
Nothing
in this Agreement, express or implied, shall give to any Person, other
than the
parties to this Agreement and their successors hereunder, any benefit or
any
legal or equitable right, power, remedy or claim under this
Agreement.
Section
2.09. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one
and the
same instrument.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
16
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: | ||
|
Name:
Xxxxx
Xxxxxxx
Title:
Authorized
Signatory
|
||
|
STRUCTURED
ASSET SECURITIES
CORPORATION
|
||
| |
|
|
| By: | ||
|
Name:
Xxxxxxx
X. Xxxxxxxx
Title:
Senior Vice President
|
||
SCHEDULE
A-1
TRANSFERRED
MORTGAGE LOAN SCHEDULE
On
file
at the offices of:
Dechert
LLP
Xxxx
Centre
0000
Xxxx
Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000
Attn:
Xxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
X-0
XXXXXXXX
X-0
BANK
ORIGINATED MORTGAGE LOAN SCHEDULE
On
file
at the offices of:
Dechert
LLP
Xxxx
Centre
0000
Xxxx
Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000
Attn:
Xxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
X-0
XXXXXXXX
X-0
FIRST
PAYMENT DEFAULT MORTGAGE LOAN SCHEDULE
On
file
at the offices of:
Dechert
LLP
Xxxx
Centre
0000
Xxxx
Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000
Attn:
Xxxxxx X. Xxxxxxx
Telephone:
(000) 000-0000
Telecopier:
(000) 000-0000
A-3
