LEHMAN BROTHERS HOLDINGS INC., SELLER and STRUCTURED ASSET SECURITIES CORPORATION, DEPOSITOR MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT Dated as of September 1, 2007 Lehman XS Trust (Mortgage Pass-Through Certificates, Series 2007-18N)
▇▇▇▇▇▇
BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED
ASSET SECURITIES CORPORATION,
DEPOSITOR
Dated
as
of September 1, 2007
▇▇▇▇▇▇
XS Trust
(Mortgage
Pass-Through Certificates, Series 2007-18N)
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3
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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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15
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Section
1.06.
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Assignment
by Depositor
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15
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ARTICLE
II MISCELLANEOUS PROVISIONS
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15
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Section
2.01.
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Binding
Nature of Agreement; Assignment
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15
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Section
2.02.
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Entire
Agreement
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15
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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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16
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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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17
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Section
2.08.
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Benefits
of Agreement
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17
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Section
2.09.
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Counterparts
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17
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SCHEDULES
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SCHEDULE
A-1A
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LBH
Transferred Mortgage Loans (including Prepayment Charge
Schedule)
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SCHEDULE
A-1B
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Bank
Transferred Mortgage Loans (including Prepayment Charge
Schedule)
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SCHEDULE
A-2
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Bank
Originated Mortgage Loans (including Prepayment Charge
Schedule)
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This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of September 1, 2007
(the
“Agreement”), is executed by and between ▇▇▇▇▇▇ 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
September 1, 2007, among the Depositor, Aurora Loan Services LLC, as master
servicer (“Aurora”), and U.S. Bank National Association, as trustee (the
“Trustee”).
WITNESSETH:
WHEREAS,
the Seller, pursuant to the Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of April 10, 2006, by and between the Seller and GreenPoint
Mortgage Funding, Inc. (“GreenPoint”) (the “LBH Transfer Agreement”), has
purchased or received certain mortgage loans identified on the Mortgage Loan
Schedule attached hereto as Schedule A-1A (the “LBH Transferred Mortgage
Loans”);
WHEREAS,
▇▇▇▇▇▇ Brothers Bank, FSB (the “Bank”), pursuant to the following specified
agreements (the “Bank Transfer Agreements” and collectively with the LBH
Transfer Agreement, the “Transfer Agreements”), has purchased or received
certain mortgage loans identified on the Mortgage Loan Schedule attached hereto
as Schedule A-1B (the “Bank Transferred Mortgage Loans” and collectively with
the LBH Transferred Mortgage Loans, the “Transferred Mortgage
Loans”):
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1.
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Flow
Mortgage Loan Purchase, Warranties and Servicing Agreement, dated
as of
May 1, 2007, by and between the Bank and American Home Mortgage Corp.
(“AHMC”);
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2.
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Amended
and Restated Flow Mortgage Loan Purchase and Warranties Agreement,
dated
as of February 1, 2007, by and between the Bank and GreenPoint;
and
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3.
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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.
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WHEREAS,
in addition to the Bank Transferred Mortgage Loans, the Bank may have funded
certain mortgage loans originated by Aurora identified on the Mortgage Loan
Schedule attached hereto as Schedule A-2 (the “Bank Originated Mortgage Loans”
and together with the Transferred Mortgage Loans, the “Mortgage
Loans”).
WHEREAS,
pursuant to an Assignment and Assumption Agreement (the “Assignment and
Assumption Agreement”), dated as of September 1, 2007, between the Bank, as
assignor, and the Seller, as assignee, the Bank has assigned all of its right,
title and interest in and to the Bank Transfer Agreements and the related
Mortgage Loans as listed on Schedule A-1B, in the case of the Bank Transferred
Mortgage Loans, or Schedule A-2, in the case of the Bank Originated Mortgage
Loans, and the Seller has accepted the rights and benefits of, and assumed
the
obligations of the Bank under, the Bank Transfer Agreements;
2
WHEREAS,
the Seller is a party to the following servicing agreements (the “Servicing
Agreements”) pursuant to which the Mortgage Loans are serviced by Countrywide
Home Loans Servicing LP (“Countrywide Servicing”) and Aurora (the
“Servicers”):
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1.
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Reconstituted
Servicing Agreement, dated as of September 1, 2007, by and between
the
Seller and Countrywide Servicing;
and
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2.
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Servicing
Agreement, dated as of September 1, 2007, by and between the Seller
and
Aurora.
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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 Schedules A-1A,
A-1B and A-2 hereto, having an aggregate principal balance as of the Cut-off
Date of $544,789,037.44.
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 September 1, 2007 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 $544,789,037.44. 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-1A specifies
those Mortgage Loans that are LBH Mortgage Loans, the Mortgage Loan Schedule
attached hereto as Schedule A-1B specifies those Mortgage Loans that are Bank
Transferred Mortgage Loans and the Mortgage Loan Schedule attached hereto as
Schedule A-2 specifies those Mortgage Loans that are Bank Originated Mortgage
Loans. The Bank Transferred Mortgage Loans and Bank Originated Mortgage Loans
have been assigned by the Bank to the Seller pursuant to the Assignment and
Assumption Agreement.
Section
1.02. Delivery
of Documents.
(a) In
connection with such transfer and assignment of the Mortgage Loans hereunder,
the Seller, shall, at least three (3) Business Days prior to the Closing Date,
deliver, or cause to be delivered, to the Depositor (or its designee) the
documents or instruments with respect to each Mortgage Loan (each a “Mortgage
File”) so transferred and assigned, as specified in the related Transfer
Agreements or Servicing Agreements.
(b) For
Mortgage Loans (if any) that have been prepaid in full on or after the Cut-off
Date and prior to the Closing Date, the Seller, in lieu of delivering the
related Mortgage Files, herewith delivers to the Depositor an Officer’s
Certificate which shall include a statement to the effect that all amounts
received in connection with such prepayment that are required to be deposited
in
the Collection Account maintained by the Master Servicer for such purpose have
been so deposited.
4
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, Deutsche Bank National
Trust Company, LaSalle Bank National Association or U.S. Bank National
Association (each a “Custodian” and collectively the “Custodians”), for the
Depositor. Each Custodian is required to review, within 45 days following the
Closing Date, each applicable Mortgage File. If in the course of such review
the
related Custodian 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;
(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
5
(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:
6
(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 (including the prepayment 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 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 (and the prepayment premium associated with such
Transferred Mortgage Loan) at the time it was made complied in all material
respects with, and was enforceable in accordance with its terms under,
applicable local, state, and federal laws including, but not limited to, all
applicable predatory and abusive lending laws (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);
(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. ▇▇▇. §§ 58-21A-1 et seq.);
9
(xviii) No
Transferred Mortgage Loan was at the time of origination 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, Appendix E) 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 and the Mortgage Loans originated by AHMC 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 and any
Mortgage Loans originated by AHMC, but solely as to each Bank Originated
Mortgage Loan and each Mortgage Loan originated by AHMC, 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;
10
(iv) The
Mortgaged Property relating to each Bank Originated Mortgage Loan is a fee
simple property located in the state identified in the Mortgage Loan Schedule
and consists of a parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
condominium unit in a low-rise condominium project, or an individual unit in
a
planned unit development; provided, however, that any condominium project or
planned unit development shall conform with the applicable FNMA and FHLMC
requirements regarding such dwellings. No portion of the Mortgaged Property
is
used for commercial purposes;
(v) The
Mortgage Note and the Mortgage are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Mortgage Note and the Mortgage and any other related
agreement had legal capacity to enter into the Bank Originated Mortgage Loan
and
to execute and deliver the Mortgage Note and the Mortgage and any other related
agreement, and the Mortgage Note and the Mortgage have been duly and properly
executed by such parties. The documents, instruments and agreements submitted
for loan underwriting were not falsified and contain no untrue statement of
material fact or omit to state a material fact required to be stated therein
or
necessary to make the information and statements therein not misleading. To
the
best of the Seller’s knowledge, no fraud was committed in connection with the
origination of the Bank Originated Mortgage Loan;
(vi) Each
Bank
Originated Mortgage Loan has been closed and the proceeds of the Bank Originated
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder, and any and all requirements as to completion of any
on-site or off-site improvement and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses incurred in
making or closing the Bank Originated Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(vii) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and neither the Seller
nor
its predecessors has waived any default, breach, violation or event of
acceleration;
(viii) All
improvements which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being part
of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(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;
11
(x) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage;
(xi) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Depositor to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(xii) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered for the Bank Originated Mortgage Loan by the Seller
under this Agreement as set forth in Section 1.02 hereof have been delivered
to
the Custodian. The Seller is in possession of a complete, true and accurate
Mortgage File in compliance with Section 1.02 hereof, except for such documents
the originals of which have been delivered to the Custodian;
(xiii) The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(xiv) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of a Bank Originated Mortgage Loan in the event
that the Mortgaged Property is sold or transferred without the prior written
consent of the Mortgagee thereunder;
(xv) No
Bank
Originated Mortgage Loan contains provisions pursuant to which Monthly Payments
are paid or partially paid with funds deposited in any separate account
established by the Mortgagor or anyone on behalf of the Mortgagor, or paid
by
any source other than the 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;
12
(xvii) The
origination and collection practices used with respect to each Bank Originated
Mortgage Loan have been in accordance with Accepted Servicing Practices, and
have been in all respects in compliance with all applicable laws and
regulations. With respect to escrow deposits and escrow payments, all such
payments are in the possession of the Seller and there exist no deficiencies
in
connection therewith for which customary arrangements for repayment thereof
have
not been made. All escrow payments have been collected in full compliance with
state and federal law. An escrow of funds is not prohibited by applicable law
and has been established in an amount sufficient to pay for every item which
remains unpaid and which has been assessed but is not yet due and payable.
No
escrow deposits or escrow payments or other charges or payments due the Seller
have been capitalized under the Mortgage or the Mortgage Note. All Mortgage
Interest Rate adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage Note. Any interest required
to
be paid pursuant to state and local law has been properly paid and
credited;
(xviii) The
Mortgage File contains an appraisal of the related Mortgage Property signed
prior to the approval of the Bank Originated Mortgage Loan application by a
qualified appraiser, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof; and whose compensation
is
not affected by the approval or disapproval of the Bank Originated Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of
Title XI of the Federal Institutions Reform, Recovery, and Enforcement Act
of 1989 and the regulations promulgated thereunder, all as in effect on the
date
the Bank Originated Mortgage Loan was originated;
(xix) The
Mortgaged Property is free from any and all toxic or hazardous substances and
there exists no violation of any local, state or federal environmental law,
rule
or regulation. There is no pending action or proceeding directly involving
any
Mortgaged Property of which the Seller is aware in which compliance with any
environmental law, rule or regulation is an issue; and to the best of the
Seller’s knowledge, nothing further remains to be done to satisfy in full all
requirements of each such law, rule or regulation;
(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;
13
(xxiii) Each
original Mortgage was recorded and, except for those Bank Originated Mortgage
Loans subject to the MERS identification system, all subsequent assignments
of
the original Mortgage (other than the assignment to the Depositor) have been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the liens thereof as against creditors of the Seller, or are in
the
process of being recorded; and
(xxiv) Any
and
all requirements of any federal, state or local law, including, without
limitation, usury, truth in lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity or disclosure laws applicable to
each Bank Originated Mortgage Loan have been complied with.
(d) It
is
understood and agreed that the representations and warranties set forth in
Sections 1.04(b) and 1.04(c) herein shall survive the Closing Date. Upon
discovery by either the Seller or the Depositor of a breach of any of the
foregoing representations and warranties (excluding a breach of subparagraphs
(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. With respect to any of the foregoing representations, warranties
and covenants made in subparagraph (xxi) of Section 1.04(b), a breach of any
such representations, warranties or covenants shall be deemed to materially
and
adversely affect the value of the affected Mortgage Loan and the interest of
Certificateholders therein, irrespective of the Seller’s knowledge of such
breach.
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.
14
Section
1.06. Assignment
by Depositor.
The
Depositor shall have the right, upon notice to but without the consent of the
Seller, to assign, in whole or in part, its interest under this Agreement with
respect to the Mortgage Loans to the Trustee, and the Trustee then shall succeed
to all rights of the Depositor under this Agreement. All references to the
rights of the Depositor in this Agreement shall be deemed to be for the benefit
of and exercisable by its assignee or designee, specifically including the
Trustee.
ARTICLE
II
MISCELLANEOUS
PROVISIONS
Section
2.01. Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
2.02. Entire
Agreement.
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section
2.03. Amendment.
This
Agreement may be amended from time to time by the Seller and the Depositor,
without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust Fund, the Trust Agreement or this Agreement in the Prospectus
Supplement; or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein, (iii) to make any other
provisions with respect to matters or questions arising under this Agreement
or
(iv) to add, delete, or amend any provisions to the extent necessary or
desirable to comply with any requirements imposed by the Code and the REMIC
Provisions. No such amendment effected pursuant to clause (iii) of the preceding
sentence shall adversely affect in any material respect the interests of any
Holder. Any such amendment shall be deemed not to adversely affect in any
material respect any Holder, if the Trustee receives written confirmation from
each Rating Agency 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.
15
(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.
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.
16
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]
17
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.
▇▇▇▇▇▇
BROTHERS HOLDINGS INC.
By:
_______________________________________
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Authorized
Signatory
STRUCTURED
ASSET SECURITIES
CORPORATION
By:
_______________________________________
Name:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
Senior Vice President
SCHEDULE
A-1A
LBH
TRANSFERRED MORTGAGE LOANS (INCLUDING
PREPAYMENT CHARGE SCHEDULE)
On
file
at the offices of:
Dechert
LLP
▇▇▇▇
Centre
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
▇-▇-▇
▇▇▇▇▇▇▇▇
▇-▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ MORTGAGE LOANS (INCLUDING
PREPAYMENT CHARGE SCHEDULE)
On
file
at the offices of:
Dechert
LLP
▇▇▇▇
Centre
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
▇-▇-▇
▇▇▇▇▇▇▇▇
▇-▇
BANK
ORIGINATED MORTGAGE LOANS (INCLUDING
PREPAYMENT CHARGE SCHEDULE)
On
file
at the offices of:
Dechert
LLP
▇▇▇▇
Centre
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
(▇▇▇) ▇▇▇-▇▇▇▇
A-1