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 October 1, 2001
Amortizing Residential Collateral Trust
(Mortgage Pass-Through Certificates Series 2001-BC6)
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Table of Contents
Page
ARTICLE I.
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans.......................................2
Section 1.02. Delivery of Documents........................................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
SCHEDULE A Mortgage Loan Schedule (including Prepayment Charge Schedule)
EXHIBIT A Certain Defined Terms
EXHIBIT B Form of Transfer Supplement
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This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of October
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 October 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"), pursuant to which the Seller has purchased or received from
certain transferors identified below (each a "Transferor" and collectively, the
"Transferors"), certain mortgage loans each as identified on the Mortgage Loan
Schedule attached hereto as Schedule A (collectively, the "Initial Mortgage
Loans"):
a. Flow Mortgage Loan Purchase and Warranties Agreement, dated as
of June 30, 1999, between the Seller, as purchaser, and
Finance America, LLC, as seller (for conventional, fixed and
adjustable rate, residential mortgage loans);
b. Mortgage Loan Purchase and Warranties Agreement, dated as of
April 1, 1998, between the Seller, as purchaser, and
Ameriquest Mortgage Company, as seller (for conventional
adjustable and fixed rate residential mortgage loans);
c. Mortgage Loan Purchase and Warranties Agreement, dated as of
September 27, 1999, between the Seller, as purchaser, and
Ameriquest Mortgage Company, as seller (for conventional
adjustable and fixed rate residential mortgage loans);
d. Mortgage Loan Purchase and Warranties Agreement, dated as of
March 1, 2000, between the Seller, as purchaser, and Fremont
Investment & Loan Association;
e. Mortgage Loan Purchase and Warranties Agreement, dated as of
September 1, 2000, between the Seller, as purchaser, and
Fremont Investment & Loan Association;
f. Purchase and Warranties Agreement, dated April 1, 1998,
between Long Beach Mortgage Company, as seller, and the
Seller, as purchaser;
g. Flow Purchase and Warranties Agreement, dated August 1, 2000,
between BNC Mortgage, Inc., as seller, and the Seller, as
purchaser; and
h. Seller's Warranties and Servicing Agreement, dated as of June
23, 1999, between the Seller, as purchaser, and Option One
Mortgage Corporation, as seller.
WHEREAS, the Seller is a party to the following servicing agreements
(together, the "Servicing Agreements") pursuant to which the Initial Mortgage
Loans are to be initially serviced by certain servicers as indicated (each, a
"Servicer" and, collectively, the "Servicers"):
a. Servicing Agreement dated as of October 1, 2001, among the
Seller, as seller, Xxxxxx Brothers Bank FSB, as seller, Aurora
Loan Services Inc., as servicer, and the Master Servicer;
b. Reconstituted Servicing Agreement dated as of October 1, 2001,
among the Seller, as seller, Xxxxxx Brothers Bank FSB, as
seller, Countrywide Home Loans, Inc., as servicer, and the
Master Servicer, reconstituting the Servicing Agreement dated
as of January 29, 2001 (for Fixed and Adjustable Rate Mortgage
Loans--Group FF-2001-1), between the Seller and Countrywide
Home Loans, Inc.;
c. Servicing Agreement dated as of October 1, 2001, among the
Seller, as seller, Xxxxxx Brothers Bank FSB, as seller,
Fairbanks Capital Corp., as servicer, and the Master Servicer;
d. Reconstituted Servicing Agreement dated as of October 1, 2001,
among the Seller, as seller, Xxxxxx Brothers Bank FSB, as
seller, Ocwen Federal Bank FSB, as servicer, and the Master
Servicer for certain Mortgage Loans originated by Finance
America, LLC reconstituting the Residential Flow Servicing
Agreement dated August 1, 1999, between Ocwen Federal Bank FSB
and the Seller; and
e. Servicing Agreement dated as of October 1, 2001, among the
Seller, as seller, Xxxxxx Brothers Bank FSB, as seller, Option
One Mortgage Corporation, as servicer, and the Master
Servicer.
WHEREAS, the Seller desires to sell, without recourse, all of its
rights, title and interest in and to the Initial 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
Initial Mortgage Loans, and to delegate all of its obligations thereunder, to
the Depositor.
WHEREAS, the Depositor intends to purchase additional mortgage loans
(the "Subsequent Mortgage Loans," and together with the Initial Mortgage Loans,
the "Mortgage Loans") from the Seller and to transfer the Subsequent Mortgage
Loans to the Trust during the Pre-Funding Period (as defined in the Trust
Agreement).
WHEREAS, the Seller and the Depositor acknowledge and agree that the
Depositor will convey the Mortgage Loans to a Trust Fund created pursuant to the
Trust Agreement, assign all of its rights and delegate all of its obligations
hereunder to the Trustee for the benefit of the Certificateholders, and that
each reference herein to the Depositor is intended, unless otherwise specified,
to mean the Depositor or the Trustee, as assignee, whichever is the owner of the
Mortgage Loans from time to time.
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NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Seller and the Depositor agree as follows:
ARTICLE I.
CONVEYANCE OF MORTGAGE LOANS
Section 1.01. Sale of Mortgage Loans.
(a) Sale of Initial 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 Initial Mortgage Loans. Such conveyance includes, without limitation, the
right to all distributions of principal and interest received on or with respect
to the Initial Mortgage Loans on and after October 1, 2001, 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 received on or
with respect to the Initial Mortgage Loans on or after October 1, 2001, 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 Initial Mortgage Loans, and the Seller's
security interest in any collateral pledged to secure the Initial 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, other than any servicing rights
thereunder, and delegates to the Depositor all of its obligations thereunder, to
the extent relating to the Initial Mortgage Loans. Concurrently with the
execution hereof, the Depositor tenders the purchase price of $568,138,011.67.
The Depositor hereby accepts such assignment and delegation, and shall be
entitled to exercise all the rights of the Seller under each Transfer Agreement
and each Servicing Agreement, other than any servicing rights thereunder, as if
the Depositor had been a party to each such agreement.
(b) Purchase of Subsequent Mortgage Loans. Throughout the term of this
Agreement, by execution of a Transfer Supplement in the form attached hereto as
Exhibit B, the Seller will sell to the Depositor and the Depositor shall
purchase from the Seller pursuant to this Section 1.01(b), subject to
satisfaction of conditions set forth in Section 2.01(b) of the Trust Agreement,
the lesser of (calculated by aggregate Principal Balance): (x) all Eligible
Mortgage Loans then offered for sale by the Seller and (y) the maximum Principal
Balance of such Eligible Mortgage Loans with respect to which the aggregate
Transfer Price (as specified in the Transfer Supplement) does not exceed the
amount then on deposit in the Principal Subaccount of the Pre-Funding Account.
Subject to the conditions set forth in this Section 1.01(b), in consideration of
the Depositor's delivery on the related Transfer Date (as specified in the
Transfer Supplement) to the Seller or its designee, or upon the order of the
Seller, of the Transfer Price for the related Subsequent Mortgage Loans, the
Seller shall, on each Transfer Date, sell, transfer, assign, set over and
otherwise convey to the Depositor, without recourse, but subject to the other
terms and provisions of this Agreement, all of the right, title and interest of
the Seller in and to each Subsequent Mortgage Loan (including all interest and
principal received or receivable on or with respect to such Mortgage Loans, but
not including interest due and payable on such Mortgage Loans prior to the
related Cut-off Date) identified on the Transfer Supplement and delivered by the
Seller on such Transfer Date and all items in the related Mortgage File.
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(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 will 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 is attached hereto as Schedule I. In connection with the sale of
Subsequent Mortgage Loans to the Depositor, the Seller and the Depositor shall
amend the Mortgage Loan Schedule to reflect the addition of Subsequent Mortgage
Loans.
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 or the applicable Transfer Date, deliver, or cause to be delivered,
to the Depositor (or its designee) the documents or instruments with respect to
each Mortgage Loan (each a "Mortgage File") so transferred and assigned, as
specified in the related Transfer Agreements or Servicing Agreements.
(b) For Mortgage Loans (if any) that have been prepaid in full on or
after the Cut-off Date and prior to the related 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., LaSalle Bank, N.A., The Chase Manhattan Bank, formerly known as Chase Bank
of Texas, N.A., U.S. Bank Trust National Association and Xxxxx Fargo Bank
Minnesota, 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 or the applicable Transfer 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.
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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 Closing Date or as of any Transfer Date 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.
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(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 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; 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 or any Transfer Date, with a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan. 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 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;
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(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;
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(xiv) No Mortgage Loan was at the time of origination subject
to the Home Ownership and Equity Protection Act of 1994 or any
comparable state law;
(xv) No proceeds from any Mortgage Loan were used to finance
single-premium credit insurance policies;
(xvi) The Servicers for each Mortgage Loan will accurately and
fully report its borrower credit files to all three credit repositories
in a timely manner; and
(xvii) No Mortgage Loan 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
the Closing Date and any Transfer 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 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 Transfer Price (as set forth in the related Transfer Supplement) or (c)
within the two year period following the Closing Date or any Transfer Date, as
applicable, 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 or the Transfer Date, as applicable, 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.
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Section 1.05. Grant Clause.
It is intended that the conveyance of the Seller's right, title and
interest in and to the Mortgage Loans and other property conveyed pursuant to
this Agreement on the Closing Date and any Transfer 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: (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 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.
(a) 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 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).
10
(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. For purposes of this paragraph, references to
"Certificateholder" or "Certificateholders" shall be deemed to include, in the
case of any Class of Book-Entry Certificates, the related Certificates Owners.
(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.
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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, 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/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
SCHEDULE A
MORTGAGE LOAN SCHEDULE
(including Prepayment Charge Schedule and
Prepayment Charge Summary)
EXHIBIT A
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.
EXHIBIT B
FORM OF TRANSFER SUPPLEMENT
Supplement No: ___________ Dated: _______________
This TRANSFER SUPPLEMENT is made as of the date first above written by
Xxxxxx Brothers Holdings Inc. (the "Seller") and Structured Asset Securities
Corporation (the "Depositor").
W I T N E S S E T H:
WHEREAS, the parties have previously executed and delivered that
certain Mortgage Loan Sale and Assignment Agreement (the "Mortgage Loan Sale
Agreement"), dated as of October 1, 2001, among the Seller and the Depositor;
WHEREAS, the Seller desires to sell, and the Depositor desires to
purchase the Subsequent Mortgage Loans identified on Schedule 1 attached hereto;
NOW THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. Schedule of Subsequent Mortgage Loans. Attached hereto as
Schedule I is the Schedule of Subsequent Mortgage Loans (the "Schedule")
conveyed to the Trust pursuant to Section 3 of this Transfer Supplement.
2. Definitions Relating to Subsequent Mortgage Loans. The
following terms as used in the Mortgage Loan Sale Agreement shall have the
following meanings with respect to the Subsequent Mortgage Loans identified on
the Schedule.
Cut-off Date: __________________.
Transfer Date: _____________________.
Transfer Price: $____________________.
3. Conveyance of Subsequent Mortgage Loans. The Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Depositor,
without recourse (except to the extent specified in the Mortgage Loan Sale
Agreement), all right, title and interest of the Seller, in and to each of the
Subsequent Mortgage Loans identified on the Schedule and all items in the
related Mortgage File.
Concurrently with the execution and delivery of this Transfer
Supplement, the Seller hereby assigns to the Depositor all of its rights and
interest under each Transfer Agreement and each Servicing Agreement listed on
Schedule II attached hereto, except any servicing rights thereunder, any
delegates to the Depositor all of its obligations thereunder, to the extent
relating to the Subsequent Mortgage Loans.
4. Transfer Price. The Depositor hereby pays to the Seller the
Transfer Price in return for the Subsequent Mortgage Loans identified on
Schedule I attached hereto.
5. Incorporation by Reference; Ratification of Mortgage Loan
Sale Agreement. As supplemented by this Transfer Supplement, the Mortgage Loan
Sale Agreement is incorporated herein by this reference and is in all respects
ratified and confirmed and the Agreement as so supplemented by this Transfer
Supplement shall be read, taken and construed as one and the same instrument.
6. Representations and Warranties. All representations and
warranties of the Seller and the Depositor set forth in the Mortgage Loan Sale
Agreement are true and correct as of the date hereof and as of the Transfer
Date.
7. Counterparts. This Transfer Supplement may be executed in
two or more counterparts (and by different parties in separate counterparts),
each of which shall be an original but all of which together shall constitute
the same instrument.
8. Governing Law. THIS TRANSFER SUPPLEMENT 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.
IN WITNESS WHEREOF, the parties hereto have caused this Transfer
Supplement to be duly executed by their respective officers as of the day and
year first above written.
XXXXXX BROTHERS HOLDINGS INC.,
as Seller
By:
--------------------------------
Name:
Title:
STRUCTURED ASSET SECURITIES CORPORATION,
as Depositor
By:
--------------------------------
Name:
Title:
SCHEDULE I TO
TRANSFER SUPPLEMENT
