FINANCIAL SECURITY ASSURANCE INC.,
as Insurer
▇▇▇▇▇▇ CAPITAL, A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINS INC.
as Seller
▇▇▇▇▇▇ BROTHERS BANK FSB,
as Seller
STRUCTURED ASSET SECURITIES CORPORATION,
as Depositor
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
INSURANCE AGREEMENT
Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2001-13
$40,000,000 Class 1-A4 Certificates
Dated as of October 1, 2001
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Page
Section 1.01. General Definitions................................................................. 1
Section 1.02. Generic Terms....................................................................... 4
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. Representations, Warranties and Covenants of each Seller and the Depositor.......... 4
Section 2.02. Reserved............................................................................ 9
Section 2.03. Representations, Warranties and Covenants of Trustee ............................... 9
ARTICLE III
THE POLICY; REIMBURSEMENT; SECURITY
Section 3.01. Agreement To Issue the Policy....................................................... 11
Section 3.02. Conditions Precedent to Issuance of the Policy...................................... 11
Section 3.03. Payment of Fees and Premium ........................................................ 11
Section 3.04. Payment Procedure................................................................... 12
Section 3.05. Reimbursement and Additional Payment Obligation of each Seller and the Depositor ... 12
Section 3.06. Indemnification by each Seller and the Depositor ................................... 13
ARTICLE IV
FURTHER AGREEMENTS
Section 4.01. Effective Date; Term of Agreement................................................... 14
Section 4.02. Waiver of Rights; Further Assurances................................................ 14
Section 4.03. Obligations Absolute................................................................ 15
Section 4.04. Assignments; Reinsurance; Third-Party Rights........................................ 15
Section 4.05. Liability of Insurer................................................................ 16
Section 4.06. Subrogation......................................................................... 16
ARTICLE V
DEFAULTS; REMEDIES
Section 5.01. Defaults............................................................................ 16
Section 5.02. Remedies; No Remedy Exclusive ................................ 17
Section 5.03. Waivers....................................................... 17
ARTICLE VI
MISCELLANEOUS
Section 6.01. Amendments, Changes and Modifications......................... 18
Section 6.02. Notices....................................................... 18
Section 6.03. Severability.................................................. 19
Section 6.04. Governing Law................................................. 19
Section 6.05. Consent to Jurisdiction and Venue, Etc........................ 19
Section 6.06. Consent of Insurer ........................................... 20
Section 6.07. Counterparts.................................................. 20
Section 6.08. Headings ..................................................... 20
Section 6.09. WAIVER OF TRIAL BY JURY....................................... 20
Section 6.10. Entire Agreement ............................................. 20
Section 6.11. Third Party Beneficiary....................................... 20
INSURANCE AGREEMENT
THIS INSURANCE AGREEMENT is made as of October 1, 2001 by and among
FINANCIAL SECURITY ASSURANCE INC. (the "Insurer"), ▇▇▇▇▇▇ CAPITAL, A Division Of
▇▇▇▇▇▇ Brothers Holdings Inc., as Seller and ▇▇▇▇▇▇ BROTHERS BANK, FSB, as
Seller (each a "Seller"; collectively the "Sellers"), STRUCTURED ASSET
SECURITIES CORPORATION, as Depositor (the "Depositor"), and ▇▇▇▇▇ FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, in its capacity
as trustee under the Trust Agreement (the "Trustee").
RECITALS:
WHEREAS, the Trust Agreement dated as of October 1, 2001 by and among the
Depositor, Aurora Loan Services Inc., as Master Servicer, and the Trustee (the
"Trust Agreement") relating to the Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series 2001-13 $40,000,000 Class 1-A4
Certificates (the "Insured Certificates") provides for, among other things, the
issuance of mortgage backed certificates, representing fractional ownership
interests in the trust estate (the "Trust") established thereby;
WHEREAS, the Depositor has requested that the Insurer issue a certificate
guaranty insurance policy (the "Policy") to guarantee payment of Insured
Payments (as defined in the Policy) to the Trustee for the benefit of the Owners
of the Insured Certificates upon such terms and conditions as were mutually
agreed upon by the parties and subject to the terms and the conditions of the
Policy;
WHEREAS, the parties hereto desire to specify the conditions precedent to
the issuance of the Policy by the Insurer and to provide for certain other
matters;
NOW, THEREFORE, in consideration of the premises and of the agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. GENERAL DEFINITIONS . The terms defined in this Article I
shall have the meanings provided herein for all purposes of this Agreement,
unless the context clearly requires otherwise, in both singular and plural form,
as appropriate. Capitalized terms used in this Agreement but not otherwise
defined herein will have the meanings assigned to such terms in the Trust
Agreement.
"Agreement" means this Insurance Agreement dated as of October 1, 2001,
including any amendments or any supplements hereto as herein permitted.
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"Bank of America Servicing Agreement" means the Reconstituted Servicing
Agreement dated October 1, 2001, between the ▇▇▇▇▇▇ Brothers Bank FSB ("LBB")
and Bank of America and acknowledged by the Trustee and the Master Servicer
including any amendments and supplements thereto as therein and herein
permitted.
"Business Day" means any day other than (i) a Saturday or a Sunday, (ii) a
day on which the Insurer is closed or (iii) a day on which banking institutions
in New York City, Columbia, Maryland or in the city in which the corporate trust
office of the Trustee under the Trust Agreement is located are authorized or
obligated by law or executive order to close.
"Chase Servicing Agreement" means any of the four Reconstituted Servicing
Agreements dated October 1, 2001, between LBB and Chase Manhattan Mortgage
Corporation and acknowledged by the Trustee and the Master Servicer including
any amendments and supplements thereto as therein and herein permitted.
"Class 1-A4 Premium Percentage" shall have the meaning set forth in
paragraph 4(vi) of the Commitment.
"Commitment" means the Commitment Letter dated October 25, 2001 among
Structured Asset Securities Corporation, ▇▇▇▇▇▇ Capital, A division of ▇▇▇▇▇▇
Brothers Holdings Inc., ▇▇▇▇▇▇ Brothers Bank, FSB and the Insurer.
"Custodial Agreements" means any of (i) the Custodial Agreement dated
October 1, 2001, among the Depositor, the Master Servicer, the Trustee and
LaSalle Bank N.A as custodian ("LaSalle"); (ii) the Custodial Agreement dated
October 1, 2001, among the Depositor, the Master Servicer, the Trustee and U.S.
Bank Trust National Association ("U.S. Bank"); and (iii) the Custodial Agreement
dated October 1, 2001 among the Depositor, the Master Servicer, the Trustee and
Bankers Trust Company of California ("Bankers Trust") including any amendments
and supplements thereto as therein and herein permitted.
"Date of Issuance" means the date on which the Policy is issued as
specified therein.
"Event of Default" means any event of default set forth in Section 5.01
hereof.
"Financial Statements" means, with respect to each Seller or the Depositor
the balance sheets and the statements of income and retained earnings and the
notes thereto.
"First Horizon Servicing Agreement" means the Reconstituted Servicing
Agreement dated October 1, 2001, between LBB and First Horizon Home Loan
Corporation and acknowledged by the Trustee and the Master Servicer including
any amendments and supplements thereto as therein and herein permitted.
"Golden First Servicing Agreement" means the Reconstituted Servicing
Agreement dated October 1, 2001, between ▇▇▇▇▇▇ Capital ("LC") and Golden First
and acknowledged by the Trustee
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and the Master Servicer including any amendments and supplements thereto as
therein and herein permitted.
"GreenPoint Servicing Agreement" means the Reconstituted Servicing
Agreement dated October 1, 2001, between LBB and GreenPoint Mortgage Funding
Inc. and acknowledged by the Trustee and the Master Servicer including any
amendments and supplements thereto as therein and herein permitted.
"Indemnification Agreement" means the Indemnification Agreement dated as of
October 25, 2001 among the Insurer, each Seller and the Underwriter including
any amendments and supplements thereto as therein and herein permitted.
"Late Payment Rate" means the rate of interest publicly announced by
Citibank, N.A. at its principal office in New York, New York as its prime rate
(any change in such prime rate of interest to be effective on the date such
change is announced by Citibank, N.A.) plus 3%. The Late Payment Rate shall be
computed on the basis of a year of 365 days calculating the actual number of
days elapsed. In no event shall the Late Payment Rate exceed the maximum rate
permissible under law applicable to this Agreement limiting interest rates.
"Material Adverse Change" means, in respect of any Person, a material
adverse change in the ability of such Person to perform its obligations under
any of the Transaction Documents.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., a Delaware corporation,
and any successor thereto, and, if such corporation shall for any reason no
longer perform the functions of a securities rating agency, "Moody's" shall be
deemed to refer to any other nationally recognized rating agency designated by
the Insurer.
"Mortgage Loan Sale Agreement" means each Mortgage Loan Sale Agreement
dated as of October 1, 2001 between the related Seller and the Depositor
including any amendments and supplements thereto as therein and herein
permitted.
"Offering Document" means the Prospectus dated July 27, 2001 and the
Prospectus Supplement thereto dated October 25, 2001 of the Depositor in respect
of the Insured Certificates (and any amendment or supplement thereto) and any
other offering document in respect of the Insured Certificates prepared by the
Depositor that makes reference to the Policy.
"Owner" means each Holder (as defined in the Trust Agreement) of an Insured
Certificate who, on the applicable Distribution Date, is entitled under the
terms of the Insured Certificates to payment thereunder.
"Person" means an individual, joint stock company, trust, unincorporated
association, joint venture, corporation, business or owner trust, limited
liability company, partnership or other organization or entity (whether
governmental or private).
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"Premium" means the premium payable in accordance with Section 3.03 hereof.
"Purchase Agreement" means the Purchase Agreement dated as of October 25,
2001 between the Depositor and the Underwriter including any amendments and
supplements thereto as therein and herein permitted.
"Registration Statement" means the Registration Statement on Form S-3 of
the Depositor relating to the Certificates.
"Securities Act" means the Securities Act of 1933, including, unless the
context otherwise requires, the rules and regulations thereunder, as amended
from time to time.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
including, unless the context otherwise requires, the rules and regulations
thereunder, as amended from time to time.
"Servicing Agreement" means the Servicing Agreement dated as of October 1,
2001 between each Seller and Aurora Loan Services Inc. including any amendments
and supplements thereto as therein and herein permitted.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto, and, if such corporation
shall for any reason no longer perform the functions of a securities rating
agency, "S&P" shall be deemed to refer to any other nationally recognized rating
agency designated by the Insurer.
"Term of the Agreement" shall be determined as provided in Section 4.01
hereof.
"Transaction" means the transactions contemplated by the Transaction
Documents, including the transaction described in the Prospectus Supplement.
"Transaction Documents" means this Agreement, the Indemnification
Agreement, the Commitment, the Trust Agreement, the Custodial Agreements, the
Servicing Agreement, the Bank of America Servicing Agreement, the Chase
Servicing Agreement, the First Horizon Servicing Agreement, the Golden First
Servicing Agreement, the GreenPoint Servicing Agreement, the Mortgage Loan Sale
Agreement, the Purchase Agreement, the Underwriting Agreement, the Offering
Document and the Certificates.
"Trust Agreement" means the Trust Agreement dated as of October 1, 2001
among the Depositor, Aurora Loan Services Inc., as Master Servicer, and the
Trustee, including any amendments and supplements thereto as therein and herein
permitted.
"Underwriter" means ▇▇▇▇▇▇ Brothers Inc.
"Underwriting Agreement" means the Underwriting Agreement dated as of April
16, 1996 between the Depositor and the Underwriter, as supplemented by a terms
agreement dated October 25,
4
2001 between the Depositor and the Underwriter, including any amendments and
supplements thereto as therein and herein permitted.
Section 1.02. GENERIC TERMS. All words used herein shall be construed to be
of such gender or number as the circumstances require. This "Agreement" shall
mean this Agreement as a whole and as the same may, from time to time hereafter,
be amended, supplemented or modified. The words "herein," "hereby," "hereof,"
"hereto," "hereinabove" and "hereinbelow," and words of similar import, refer to
this Agreement as a whole and not to any particular paragraph, clause or other
subdivision hereof, unless otherwise specifically noted.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. REPRESENTATIONS , WARRANTIES AND COVENANTS OF EACH SELLER AND
THE DEPOSITOR. Each of the Sellers and the Depositor, represents and warrants
to, as of the Date of Issuance, and covenants with, the Insurer and the Trustee
as follows:
(a) DUE ORGANIZATION AND QUALIFICATION. Each of LC and the Depositor
is a corporation and LBB is a federal savings bank duly organized, validly
existing and in good standing under the laws of its respective jurisdiction
of incorporation. Each of the Sellers and the Depositor is duly qualified
to do business, is in good standing and has obtained all licenses, permits,
charters, registrations and approvals (together, "approvals") necessary for
the conduct of its business as currently conducted and as described in the
Offering Document and the performance of its obligations under the
Transaction Documents, in each jurisdiction in which the failure to be so
qualified or to obtain such approvals would render any Transaction Document
unenforceable in any respect or would have a material adverse effect upon
the Transaction, the Owners or the Insurer.
(b) POWER AND AUTHORITY. Each Seller and the Depositor have all
necessary corporate or regulatory power and authority to conduct its
business as currently conducted and, as described in the Offering Document,
to execute, deliver and perform its obligations under the Transaction
Documents and to consummate the Transaction.
(c) DUE AUTHORIZATION. The execution, delivery, and performance of the
Transaction Documents by each Seller and the Depositor have been duly
authorized by all necessary corporate action and do not require any
additional approvals or consents, or other action by or any notice to or
filing with any Person, including, without limitation, any governmental
entity or the related Seller's or the Depositor's stockholders, which have
not previously been obtained or given by each Seller or the Depositor.
5
(d) NONCONTRAVENTION. Neither the execution and delivery of the
Transaction Documents by the Sellers or the Depositor, the consummation of
the transactions contemplated thereby nor the satisfaction of the terms and
conditions of the Transaction Documents:
(i) conflicts with or results in any breach or violation of any
provision of the certificate of incorporation or bylaws of each Seller
or the Depositor or any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award currently in effect having
applicability to each Seller or the Depositor or any of its material
properties, including regulations issued by an administrative agency
or other governmental authority having supervisory powers over each
Seller and the Depositor;
(ii) constitutes a default by each Seller or the Depositor under
or a breach of any provision of any material loan agreement, mortgage,
indenture or other agreement or instrument to which the related Seller
or the Depositor is a party or by which any of its or their respective
properties, which are individually or in the aggregate material to the
related Seller or the Depositor, is or may be bound or affected; or
(iii) results in or requires the creation of any lien upon or in
respect of any assets of the related Seller or the Depositor, except
as contemplated by the Transaction Documents.
(e) LEGAL PROCEEDINGS. There is no action, proceeding or investigation
by or before any court, governmental or administrative agency or arbitrator
against or affecting either Seller or the Depositor or any of its or their
subsidiaries, or any properties or rights of either Seller or the Depositor
or any of its or their subsidiaries, pending or, to the Sellers', and the
Depositor's knowledge, threatened, which, in any case, could reasonably be
expected to result in a Material Adverse Change with respect to either
Seller or the Depositor.
(f) VALID AND BINDING OBLIGATION. The Transaction Documents to which
either the Sellers or the Depositor are a party constitute, and when
executed by each Seller and the Depositor (if not previously) will
constitute, the legal, valid and binding obligations of each Seller and the
Depositor, as applicable, enforceable against each Seller and the Depositor
in accordance with their respective terms, except as the enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or limiting creditors' rights generally or general
equitable principles, as such relate to the Sellers or the Depositor.
(g) FINANCIAL STATEMENTS. The Financial Statements supplied, or
publicly available, to the Insurer prior to the Date of Issuance (i)
present fairly the financial condition and results of operations of each
Seller and the Depositor as of the dates and for the periods indicated and
(ii) have been prepared in accordance with generally accepted accounting
principles consistently applied, except as noted therein and subject to
year-end adjustments with
6
respect to interim statements. Since the date of such Financial Statements,
there has been no Material Adverse Change in such condition or operations
of each Seller or the Depositor.
(h) COMPLIANCE WITH LAW, REGULATIONS, ETC. Except as disclosed in
writing to the Insurer or in the Offering Document, neither the Sellers nor
the Depositor has notice or any reason to believe that any practice,
procedure or policy employed by either Seller or the Depositor in the
conduct of its business violates, any law, regulation, judgment or
agreement applicable to either Seller or the Depositor which, if enforced,
would have a material adverse effect on the ability of each Seller or the
Depositor to perform its obligations under the Transaction Documents.
Except as disclosed in writing to the Insurer or in the Offering Document,
neither the Sellers nor the Depositor is in breach of or in default under
any applicable law or administrative regulation of any department,
division, agency or instrumentality which has jurisdiction over it or any
applicable judgment or decree or any loan agreement, note, resolution,
certificate, agreement or other instrument to which either Seller or the
Depositor is a party or is otherwise subject which would have a material
adverse affect on its or their ability to perform under the Transaction
Documents.
(i) DELIVERY OF INFORMATION. None of the Transaction Documents nor any
other documents, reports, notices, operating agreements, schedules,
certificates, statements or other writings (collectively, the "Documents"),
furnished to the Insurer by each Seller or the Depositor on or before the
Date of Issuance contain any statement of a material fact by each Seller or
the Depositor which was untrue or misleading in any material respect when
made. Since the furnishing of the Documents but prior to the offering of
the Insured Certificates, there has been no change nor any development or
event involving a prospective change which would render any of the
Transaction Documents untrue or misleading in a material respect.
(j) CONTINUING INFORMATION. Each Seller or the Depositor shall deliver
to the Insurer concurrently with the delivery thereof to the Trustee the
statements, notices, reports or other information required by the Trust
Agreement to be delivered to the Insurer or the Certificateholders. Upon
the request of the Insurer, the Depositor shall furnish, with reasonable
promptness, any Financial Statements or data regarding the Trust.
(k) ACCESS TO RECORDS; DISCUSSIONS WITH OFFICERS AND ACCOUNTANTS. The
Depositor shall, upon the request of the Insurer, permit the Insurer, or
its authorized agent, at reasonable times and upon reasonable notice, to
inspect, the Depositor's books and records as they may relate to the
Certificates, the Mortgage Loans and the Depositor's obligations under the
Transaction Documents and to discuss the Depositor's affairs, finances and
accounts with an appropriate authorized officer of the Depositor.
(l) NOTICE OF MATERIAL EVENTS. Each Seller and the Depositor shall be
obligated (which obligation shall be satisfied as to each if performed by
either Seller or the Depositor) promptly to inform the Insurer in writing
of the occurrence of any of the following to the extent any of the
following relate to it:
7
(i) the submission of any claim or the initiation or threat of
any legal process, litigation or administrative or judicial
investigation or rule making or disciplinary proceeding in any
federal, state or local court or before any arbitration board, or any
such proceeding threatened by any government agency, which, if
adversely determined, would have a material adverse effect on each
Seller, the Depositor, the Owners or the Insurer or would result in a
Material Adverse Change with respect to either Seller or the
Depositor;
(ii) the occurrence of any Default or Event of Default or of any
Material Adverse Change;
(iii) the commencement of any proceedings by or against each
Seller or the Depositor under any applicable bankruptcy,
reorganization, liquidation, rehabilitation, insolvency or other
similar law now or hereafter in effect or of any proceeding in which a
receiver, liquidator, conservator, trustee or similar official shall
have been, or may be, appointed or requested for each of the Sellers
or the Depositor or any of its or their assets; or
(iv) the receipt of notice that (A) either Seller or the
Depositor is being placed under regulatory supervision, (B) any
license, permit, charter, registration or approval necessary for the
conduct of either Seller or the Depositor business is to be or may be
suspended or revoked, or (C) either Seller or the Depositor is to
cease and desist any practice, procedure or policy employed by either
Seller or the Depositor in the conduct of its business, and such
cessation may result in a Material Adverse Change with respect to
either Seller or the Depositor.
(m) IMPAIRMENT OF RIGHTS. Each Seller and the Depositor shall not take
any action, if such action will have a material adverse effect on the
Insurer's ability to enforce its rights under the Trust Agreement, or this
Agreement; provided, however, that this Section 2.01 (m) shall not prohibit
either Seller or the Depositor from taking any action it is required to
take pursuant to the Transaction Documents, any applicable law or order of
any court or regulatory authority with jurisdiction over either Seller, the
Depositor, the Transaction Documents or the Certificates.
(n) SECURITIES LAW COMPLIANCE. Each Seller and the Depositor each
represent and warrant that neither the offer nor the sale of the
Certificates to the Underwriter has been or will be in violation of the
Securities Act or any federal or state securities laws. Each Seller and the
Depositor further represent and warrant that it is not required to be
registered as an "investment company" under the Investment Company Act of
1940, as amended.
(o) TRANSCRIPTS. Each Seller and the Depositor shall, within 90 days
following the closing of the Transaction, provide each of the Insurer and
its counsel a final transcript containing the documents and opinions
executed in connection with the Transaction.
8
(p) TRANSACTION DOCUMENTS. Each of the representations and warranties
of each Seller and the Depositor contained in the Transaction Documents is
true and correct in all material respects, and each Seller and the
Depositor hereby make each such representation and warranty to, and for the
benefit of, the Insurer as if the same were set forth in full herein.
(q) SOLVENCY; FRAUDULENT CONVEYANCE. Each Seller and the Depositor are
solvent and will not be rendered insolvent by the Transaction and, after
giving effect to the Transaction, neither the Sellers nor the Depositor
will be left with an unreasonably small amount of capital with which to
engage in its business, nor does either Seller or the Depositor intend to
incur, or believe that it has incurred, debts beyond its ability to pay as
they mature. Neither of the Sellers nor the Depositor contemplates the
commencement of insolvency, bankruptcy, liquidation or consolidation
proceedings or the appointment of a receiver, liquidator, conservator,
trustee or similar official in respect of either Seller or the Depositor or
any of its or their assets. The amount of consideration being received by
the Depositor upon the sale of the Certificates to the Underwriter
constitutes reasonably equivalent value and fair consideration for the
interest in the Mortgage Loans evidenced by the Certificates. Each Seller
is not transferring the Mortgage Loans to the Depositor, the Depositor is
not transferring the Mortgage Loans to the Trust and the Depositor is not
selling the Certificates to the Underwriter, as provided in the Transaction
Documents, with any intent to hinder, delay or defraud any of the Sellers'
or the Depositor's creditors.
(r) COMPLIANCE WITH AGREEMENTS AND APPLICABLE LAWS. Each Seller and
the Depositor shall comply in all material respects with the terms and
conditions of the Transaction Documents to which it is a party and shall
comply with all material requirements of any law, rule or regulation
applicable to it.
(s) MAINTENANCE OF EXISTENCE. Each Seller and the Depositor, its or
their successors and assigns, shall maintain their corporate existence and
shall at all times continue to be duly organized under the laws of their
respective jurisdictions of organization and duly qualified and duly
authorized (as described in section 2.01(a), (b) and (c) hereof) and shall
conduct its business in accordance with the terms of its charter,
certificate or articles of incorporation and bylaws.
Section 2.02. RESERVED.
Section 2.03. REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRUSTEE. The
Trustee represents and warrants to, as of the Date of Issuance, and covenants
with the other parties hereto as follows:
(a) Due Organization and Qualification. The Trustee is a national
banking association, duly organized, validly existing and in good standing
under the laws of the United States. The Trustee is duly qualified to do
business, is in good standing and has obtained all licenses, permits,
charters, registrations and approvals (together, "approvals") necessary for
9
the conduct of its business as currently conducted and the performance of
its obligations under the Transaction Documents to which it is a party, in
each jurisdiction in which the failure to be so qualified or to obtain such
approvals would render any Transaction Document to which it is a party
unenforceable in any respect or would have a material adverse effect upon
the Transaction, the Owners or the Insurer.
(b) DUE AUTHORIZATION. The execution, delivery and performance of the
Transaction Documents to which it is a party by the Trustee have been duly
authorized by all necessary action and do not require any additional
approvals or consents, or other action by or any notice to or filing with
any Person, including, without limitation, any governmental entity or the
Trustee's stockholders, which have not previously been obtained or given by
the Trustee.
(c) NONCONTRAVENTION. Neither the execution and delivery of the
Transaction Documents to which it is a party by the Trustee, the
consummation of the transactions contemplated thereby nor the satisfaction
of the terms and conditions of such Transaction Documents:
(i) conflicts with or results in any breach or violation of any
provision of the certificate or articles of incorporation or bylaws of
the Trustee or any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award currently in effect having
applicability to the Trustee or any of its material properties,
including regulations issued by an administrative agency or other
governmental authority having supervisory powers over the Trustee;
(ii) constitutes a default by the Trustee under or a breach of
any provision of any loan agreement, mortgage, indenture or other
agreement or instrument to which the Trustee is a party or by which
any of its or their respective properties, which are individually or
in the aggregate material to the Trustee, is or may be bound or
affected; or
(iii) results in or requires the creation of any lien upon or in
respect of any assets of the Trustee, except as contemplated by the
Transaction Documents.
(d) LEGAL PROCEEDINGS. There is no action, proceeding or investigation
by or before any court, governmental or administrative agency or arbitrator
against or affecting the Trustee, or any of its subsidiaries, or any
properties or rights of the Trustee, or any of its subsidiaries, pending
or, to the Trustee's knowledge after reasonable inquiry, threatened, which,
in any case, could reasonably be expected to result in a Material Adverse
Change with respect to the Trustee.
(e) VALID AND BINDING OBLIGATIONS. The Trustee has duly authorized,
and executed the Insured Certificates. The Transaction Documents (other
than the Insured Certificates) to which it is a party, when executed and
delivered by the Trustee, will constitute
10
the legal, valid and binding obligations of the Trustee, enforceable in
accordance with their respective terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and general equitable
principles. The Trustee will not at any time in the future deny that the
Transaction Documents to which it is a party constitute the legal, valid
and binding obligations of the Trustee.
(f) COMPLIANCE WITH LAW, ETC. No practice, procedure or policy
employed, or proposed to be employed, by the Trustee in the conduct of its
business violates any law, regulation, judgment, agreement, order or decree
applicable to any of them that, if enforced, could reasonably be expected
to result in a Material Adverse Change with respect to the Trustee. The
Trustee is not in breach of or in default under any applicable law or
administrative regulation of its respective jurisdiction of incorporation,
or any department, division, agency or instrumentality thereof or of the
United States or any applicable judgment or decree or any loan agreement,
note, resolution, certificate, agreement or other instrument to which the
Trustee is a party or is otherwise subject which, if enforced, would have a
material adverse effect on the ability of the Trustee to perform its
obligations under the Transaction Documents to which it is a party.
(g) TRANSACTION DOCUMENTS. Each of the representations and warranties
of the Trustee contained in the Transaction Documents to which it is a
party is true and correct in all material respects, and the Trustee hereby
makes each such representation and warranty to, and for the benefit of, the
Insurer as if the same were set forth in full herein.
(h) COMPLIANCE. The Trustee covenants that during the Term of the
Agreement the Trustee shall comply in all material respects with the terms
and conditions of the Transaction Documents to which it is a party.
ARTICLE III
THE POLICY; REIMBURSEMENT; SECURITY
Section 3.01. AGREEMENT TO ISSUE THE POLICY. The Insurer agrees, subject to
the conditions set forth in Section 3.02 hereof, to issue the Policy on the Date
of Issuance.
Section 3.02. CONDITIONS PRECEDENT TO ISSUANCE OF THE POLICY. Each Seller,
the Depositor and the Underwriter shall have complied with the terms and
satisfied the conditions precedent set forth below:
(a) the Underwriter shall have paid or caused to be paid that portion
of a non-refundable Premium, if any, payable on the Date of Issuance in
accordance with Section 3.03 hereof;
11
(b) each Seller and the Depositor shall have complied with all
requirements of the Commitments;
(c) the Insurer shall have received true and correct copies of any
governmental approvals necessary for the transactions contemplated by this
Agreement and the Trust Agreement or a certificate to the effect that no
such approvals are necessary;
(d) the Insurer shall have received a certificate of an authorized
officer of each Seller and the Depositor certifying the name and true
signatures of the officers of each Seller and the Depositor executing the
Transaction Documents; and
(e) the Insurer shall have received confirmation that the risk secured
by the Policy constitutes a "AAA" risk by S&P and at least "Aaa" by ▇▇▇▇▇'▇
and that the Insured Certificates, when issued, will be rated "AAA" by S&P
without regard to the Policy.
Issuance of the Policy will be conclusive evidence of satisfaction or
waiver of any of the conditions set forth in this Section 3.02.
Section 3.03. PAYMENT OF FEES AND PREMIUM.
(a) In consideration of the issuance by the Insurer of the Policy, the
Insurer shall be entitled to receive a premium (the "Premium") in
accordance with the terms of the Commitment. The Premium shall be
calculated according to paragraph 1 of the Commitment. The Premium paid
hereunder shall be nonrefundable without regard to whether the Insurer
makes any payment under the Policy or any other circumstances relating to
the Insured Certificates or provision being made for payment of the Insured
Certificates prior to maturity. The Trustee shall make all payments of
Premium to be made by it pursuant to the Trust Agreement by wire transfer
to an account designated by the Insurer by written notice to the Trustee.
(b) The Underwriter shall pay the fees of the Insurer's counsel in
connection with the Transaction, ▇▇▇▇▇'▇ fees for the shadow rating, S&P's
fees and the cost of obtaining the Insurer's accountant's consent letter.
Section 3.04. PAYMENT PROCEDURE. All payments to be made to the Insurer
under this Agreement shall be made to the Insurer in lawful currency of the
United States of America in immediately available funds at the notice address
for the Insurer as specified in the Trust Agreement on the date when due.
Payments to be made to the Insurer under this Agreement shall bear interest at
the Late Payment Rate from the date when due to the date paid, provided that
reimbursement to the Insurer of Insured Payments shall be made from the assets
of the Trust in accordance with the terms of the Trust Agreement at the Late
Payment Rate. If the Trustee is required to pay any amounts to the Insurer from
moneys available therefore under the Trust Agreement and the Trustee fails to
pay any such amount within two (2) Business Days of their required date of
payment at a time when such moneys are
12
available, the Trustee shall, from the Trustee's own funds, reimburse each
Seller or the Depositor, as applicable, for any resulting penalty interest if
the Trustee's failure was due to negligence, bad faith or willful misconduct.
Section 3.05. REIMBURSEMENT AND ADDITIONAL PAYMENT OBLIGATION OF EACH
SELLER AND THE DEPOSITOR.
(a) In accordance with the priorities established in Section 5.02 of
the Trust Agreement, the Insurer shall be entitled to reimbursement for any
payment made by the Insurer under the Policy, which reimbursement shall be
due and payable on the date that any amount is to be paid pursuant to a
Notice (as defined in the Policy), in an amount equal to the amount to be
so paid and all amounts previously paid that remain unreimbursed, together
with interest on any and all amounts remaining unreimbursed (to the extent
permitted by law, if in respect of any unreimbursed amounts representing
interest) from the date such amounts became due until paid in full (after
as well as before judgment), at a rate of interest equal to the Late
Payment Rate.
(b) Notwithstanding anything in Section 3.05(a) to the contrary, each
Seller agrees to reimburse the Insurer for payments made under the Policy
arising as a result of each Seller's failure to repurchase any Mortgage
Loan required to be repurchased pursuant to Section 1.04 of the Mortgage
Loan Sale Agreement, together with interest on any and all amounts
remaining unreimbursed (to the extent permitted by law, if in respect of
any unreimbursed amounts representing interest) from the date such amounts
became due until paid in full (after as well as before judgment), at a rate
of interest equal to the Late Payment Rate.
(c) Each Seller and the Depositor each agree to reimburse the Insurer,
immediately upon receipt of two Business Days' prior written notice, for
any and all charges, fees, costs and expenses that the Insurer may
reasonably pay or incur including, but not limited to, reasonable
attorneys' and accountants' fees and reasonable expenses, in connection
with (a) the enforcement, defense or preservation of any rights in respect
of any of the Transaction Documents, including defending or participating
in any litigation or proceeding (including any insolvency or bankruptcy
proceeding in respect of any Transaction participant or any affiliate
thereof) relating to any of the Transaction Documents, any party to any of
the Transaction Documents, in its capacity as such a party, or the
Transaction, provided that the foregoing arises out of each Seller's or the
Depositor's breach or alleged breach of its or their obligations under the
applicable Transaction Document or (b) any amendment of any Transaction
Document, whether or not executed or completed.
(d) Each Seller and the Depositor agree to pay to the Insurer as
follows: any payments made by the Insurer on behalf of, or advanced to each
Seller or the Depositor, respectively, including, without limitation, any
amounts payable by each Seller or the Depositor pursuant to the
Certificates or any other Transaction Documents.
All such amounts are to be immediately due and payable without demand.
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Section 3.06. INDEMNIFICATION BY EACH SELLER AND THE DEPOSITOR.
(a) In addition to any and all rights of indemnification or any other
rights of the Insurer pursuant hereto or under law or equity, each Seller and
the Depositor and any successors thereto agree to pay, and to protect, indemnify
and save harmless, the Insurer and its officers, directors, shareholders,
employees, agents and each person, if any, who controls the Insurer within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act from and against any and all claims, losses, liabilities
(including penalties), actions, suits, judgments, demands, damages, costs or
reasonable expenses (including, without limitation, reasonable fees and expenses
of attorneys, consultants and auditors and reasonable costs of investigations)
or obligations whatsoever paid by the Insurer (herein collectively referred to
as "Liabilities") of any nature arising out of or relating to the transactions
contemplated by the Transaction Documents by reason of:
(i) any act or omission of either Seller or the Depositor, or the
allegation thereof, in connection with the offering, issuance, sale or
delivery of the Certificates other than by reason of false or misleading
information provided by the Insurer in writing for inclusion in the
Offering Document, which is contained in the caption "The Class 1-A4
Certificate Insurance Policy" of the Offering Document;
(ii) the misfeasance or malfeasance of, or negligence or theft
committed by, any director, officer, employee or agent of either Seller or
the Depositor;
(iii) the violation by either Seller or the Depositor of any federal
or state securities, banking or antitrust laws, rules or regulations in
connection with the issuance, offer and sale of the Certificates or the
transactions contemplated by the Transaction Documents;
(iv) the violation by either Seller or the Depositor of any federal or
state laws, rules or regulations relating to the Transaction, including
without limitation the maximum amount of interest permitted to be received
on account of any loan of money or with respect to the Mortgage Loans;
(v) the breach by either Seller or the Depositor of any of its
obligations under this Insurance Agreement or any of the other Transaction
Documents; and
(vi) the breach by either Seller or the Depositor of any
representation or warranty on the part of either Seller or the Depositor
contained in the Transaction Documents or in any certificate or report
furnished or delivered to the Insurer thereunder.
This indemnity provision and the provisions in Section 3.05 shall survive
the termination of this Insurance Agreement and shall survive until the statute
of limitations has run on any
14
causes of action which arise from one of these reasons and until all suits
filed as a result thereof have been finally concluded.
(b) Each of the Sellers and the Depositor agree to pay to the Insurer
interest on any and all amounts required to be paid by the Sellers or the
Depositor, including but not limited to those amounts described in Section
3.05 and this Section 3.06, from the date payable until payment thereof is
made in full. Such interest shall be payable at the Late Payment Rate per
annum.
ARTICLE IV
FURTHER AGREEMENTS
Section 4.01. EFFECTIVE DATE; TERM OF AGREEMENT. This Agreement shall take
effect on the date on which the Policy is issued and shall remain in effect
until such time as the Insurer is no longer subject to a claim under the Policy
and all amounts payable by either Seller or the Depositor hereunder or under the
Trust Agreement and under the Certificates have been paid in full; provided,
however, that the provisions of Sections 3.05 and 3.06 shall survive any
termination of this Agreement.
Section 4.02. WAIVER OF RIGHTS; FURTHER ASSURANCES.
(a) Excepting at such times as a default in payment under the Policy
shall exist or shall have occurred, none of the Trustee, neither Seller or
the Depositor shall grant any waiver of rights under any of the Transaction
Documents to which any of them is a party without the prior written consent
of the Insurer, (unless such waiver is expressly permitted in the
applicable Transaction Document) and any such waiver without the prior
written consent of the Insurer shall be null and void and of no force or
effect.
(b) To the extent permitted by law, the Trustee, each Seller and the
Depositor agree that they will, from time to time, following good faith
negotiations in connection therewith, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, such supplements hereto
and such further instruments as the Insurer may request and as may be
required in the Insurer's judgment to effectuate the intention of or
facilitate the performance of this Insurance Agreement.
Section 4.03. OBLIGATIONS ABSOLUTE. The obligations of each Seller, the
Depositor and the Trustee hereunder shall be absolute and unconditional, and
shall not be subject to, and each Seller and the Depositor hereby waive (a)
presentment and demand for payment, (b) notices in connection with delivery and
acceptance hereof or notices in connection with performance, default or
enforcement of payment hereunder and (c) its rights of, abatement, diminution,
postponement or deduction, or to any defense other than payment, or to any right
of setoff or recoupment arising out of any breach under any of the Transaction
Documents, by any party thereto or any beneficiary thereof, or out of any
obligation at any time owing to each Seller or the Depositor. Nothing herein
shall be construed as prohibiting each
15
Seller, the Depositor or the Trustee from pursuing any rights or remedies it may
have against any other person or entity in a separate legal proceeding. The
obligations of each Seller, the Depositor and the Trustee hereunder are absolute
and unconditional and will be paid or performed strictly in accordance with this
Agreement.
Section 4.04. ASSIGNMENTS; REINSURANCE; THIRD-PARTY RIGHTS.
(a) This Agreement shall be a continuing obligation of each Seller and
the Depositor and shall (i) be binding upon each Seller and the Depositor,
its or their successors and assigns and (ii) inure to the benefit of and be
enforceable by the Insurer and its successors, transferees and assigns.
Neither the Sellers nor the Depositor may assign this Agreement, or
delegate any of its rights or obligations hereunder, without the prior
written consent of the Insurer.
(b) The Insurer shall have the right to give participations in its
rights under this Agreement and to enter into contracts of reinsurance with
respect to the Policy and each such participant or reinsurer shall be
entitled to the benefit of any representation, warranty, covenant and
obligation of each Seller or the Depositor hereunder as if such participant
or reinsurer was a party hereto; provided that no such grant of
participation shall operate to relieve the Insurer of any of its
obligations hereunder or under the Policy.
(c) In addition, the Insurer shall be entitled to assign or pledge to
any bank or other lender providing liquidity or credit with respect to the
Transaction or the obligations of the Insurer in connection therewith any
rights of the Insurer under the Transaction Documents or with respect to
any real or personal property or other interests pledged to the Insurer, or
in which the Insurer has a security interest, in connection with the
Transaction.
(d) Except as provided herein with respect to participants and
reinsurers, nothing in this Agreement shall confer any right, remedy or
claim, express or implied, upon any person, including, particularly, any
Holder of a Certificate, other than the Insurer, against each Seller and
the Depositor and all the terms, covenants, conditions, promises and
agreements contained herein shall be for the sole and exclusive benefit of
the parties hereto and their successors. Neither the Trustee nor any Holder
of a Certificate shall have any right to payment from the premium paid
pursuant to Section 3.03 hereof.
Section 4.05. LIABILITY OF INSURER. The Insurer shall not be responsible
for any act or omission of the Trustee with respect to its use of the Policy.
Neither the Insurer nor any of its officers, directors or employees shall be
liable or responsible for: (a) the use which may be made of the Policy by or for
any acts or omissions of the Trustee in connection therewith; or (b) the
validity, sufficiency, accuracy or genuineness of documents, or of any
endorsement(s) thereon, submitted by any person in connection with a claim under
the Policy, even if such documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged, unless the Insurer has
actual knowledge thereof. In
16
furtherance and not in limitation of the foregoing, the Insurer may accept
documents that appear on their face to be in order, without responsibility for
further investigation.
Section 4.06. SUBROGATION. To the extent of any payments under the Policy,
the Insurer shall be fully subrogated to any remedies against either Seller or
the Depositor or in respect of the Mortgage Loans available to the Trustee under
the Trust Agreement. The Trustee acknowledges such subrogation and, further,
agrees to execute such instruments prepared by the Insurer and to take such
reasonable actions as, in the sole judgment of the Insurer, are necessary to
evidence such subrogation and to perfect the rights of the Insurer to receive
any moneys paid or payable under the Trust Agreement.
ARTICLE V
DEFAULTS; REMEDIES
Section 5.01. DEFAULTS. The occurrence of any of the following events shall
constitute an Event of Default hereunder:
(a) any representation or warranty made by either Seller or the
Depositor under this Agreement shall prove to be untrue or incomplete in
any material respect; provided, however, that if either Seller or the
Depositor effectively cures any such defect in any representation or
warranty under such agreement within the time period specified in such
agreement as the cure period therefore, such defect shall not in and of
itself constitute an Event of Default hereunder; or
(b) either one of the Sellers or the Depositor shall fail to pay to
the Insurer when due any amount payable by either Seller or the Depositor
under this Agreement, or the Trust Agreement, unless such amounts are paid
in full within the applicable cure period explicitly provided for under
such agreement; or
(c) the occurrence of an Event of Default under Section 8.01 of the
Servicing Agreement (as defined therein) or Section 6.14 of the Trust
Agreement (as defined therein), the termination of Aurora Loan Services
Inc. for cause pursuant to the terms of the Servicing Agreement, if a
successor Master Servicer or a successor Servicer, as applicable, is not
promptly appointed in accordance with the terms of the applicable
agreement.
Section 5.02. REMEDIES; NO REMEDY EXCLUSIVE.
(a) Upon the occurrence of an Event of Default, the Insurer may
exercise any one or both of the rights and remedies set forth below:
(i) exercise any rights and remedies under this Agreement or
the Trust Agreement, as applicable, in accordance with their
terms; or
17
(ii) take whatever action at law or in equity as may appear
necessary or desirable in its judgment to collect the amounts
then due and thereafter to become due under this Agreement, or to
enforce performance and observance of any obligation, agreement
or covenant of either Seller or the Depositor under this
Agreement, the Servicing Agreement, or the IndyMac Servicing
Agreement as applicable.
(b) Unless otherwise expressly provided, no remedy herein
conferred upon or reserved is intended to be exclusive of any other
available remedy, but each remedy shall be cumulative and shall be in
addition to other remedies given under the Transaction Documents or
existing at law or in equity. No delay or omission to exercise any
right or power accruing under the Transaction Documents upon the
happening of any event set forth in Section 5.01 hereof shall impair
any such right or power or shall be construed to be a waiver thereof,
but any such right and power may be exercised from time to time and as
often as may be deemed expedient. In order to entitle the Insurer to
exercise any remedy reserved to the Insurer in this Article, it shall
not be necessary to give any notice, other than such notice as may be
expressly required in this Article.
Section 5.03. WAIVERS.
(a) No failure by any of the parties to exercise, and no delay by any
of the parties in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by any of the parties of any right hereunder shall
not preclude the exercise of any other right, and the remedies provided
herein to each of the parties are declared in every case to be cumulative
and not exclusive of any remedies provided by law or equity.
(b) The Insurer shall have the right, to be exercised in its complete
discretion, to waive any Event of Default hereunder, by a writing setting
forth the terms, conditions and extent of such waiver signed by the Insurer
and delivered to the Sellers and the Depositor. Unless such writing
expressly provides to the contrary, any waiver so granted shall extend only
to the specific event or occurrence which gave rise to the Event of Default
so waived and not to any other similar event or occurrence which occurs
subsequent to the date of such waiver.
ARTICLE VI
MISCELLANEOUS
Section 6.01. AMENDMENTS, CHANGES AND MODIFICATIONS. This Agreement
may be amended, changed, modified, altered or terminated only by written
instrument or written instruments signed by the Insurer, the Trustee, the
Sellers and the Depositor. The Sellers, the Depositor and the Insurer also
agree to provide prior written notification to ▇▇▇▇▇'▇ and S&P of any
amendment to this Agreement.
18
Section 6.02. Notices. All demands, notices and other communications to be
given hereunder shall be in writing (except as otherwise specifically provided
herein) and shall be mailed by registered mail or personally delivered or
telecopied to the recipient as follows:
(a) To the Insurer:
Financial Security Assurance Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Surveillance Department
SASCO Mortgage Pass-Through Trust 2001-13
(in each case in which notice or other communication to the Insurer
refers to an Event of Default, a claim on the Policy or with respect
to which failure on the part of the Insurer to respond shall be deemed
to constitute consent or acceptance, then a copy of such notice or
other communication should also be sent to the attention of each of
the general counsel and the Insurer and shall be marked to indicate
"URGENT MATERIAL ENCLOSED.")
(b) To the Depositor:
Structured Asset Securities Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 33 rd Floor
Jersey City, New Jersey 07032
Attention: MBS Finance
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
(c) To the Trustee:
▇▇▇▇▇ Fargo Bank Minnesota, National Association
Sixth Avenue and Marquette
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
(d) To the Sellers:
▇▇▇▇▇▇ Capital, A Division of ▇▇▇▇▇▇ Brothers Holdings Inc,
and ▇▇▇▇▇▇ Brothers Bank, FSB
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇ Brothers (Legal)
19
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
Section 6.03. SEVERABILITY. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
the parties hereto agree that such holding shall not invalidate or render
unenforceable any other provision hereof. The parties hereto further agree that
the holding by any court of competent jurisdiction that any remedy pursued by
any party hereunder is unavailable or unenforceable shall not affect in any way
the ability of any party to pursue any other remedy available to it.
Section 6.04. GOVERNING LAW. This agreement shall be construed, and
the obligations, rights and remedies of the parties hereunder shall be
determined, in accordance with the laws of the state of new york.
Section 6.05. CONSENT TO JURISDICTION AND VENUE, ETC. The parties hereto
irrevocably (i) agree that any suit, action or other legal proceeding arising
out of or relating to this Agreement may be brought in a court of record in the
Borough of Manhattan, City of New York, State of New York or in the Courts of
the United States of America located in such state, (ii) consent to the
jurisdiction of each such court in any such suit, action or proceeding and (iii)
waive any objection which it may have to the laying of venue of any such suit,
action or proceeding in any of such courts and any claim that any such suit,
action or proceeding has been brought in an inconvenient forum.
Nothing in this Section 6.05 shall limit or affect the right of the Insurer
to serve legal process in any manner permitted by law or to start legal
proceedings relating to any Transaction Document against any party hereto or its
or their respective property in the courts of any jurisdiction.
Section 6.06. CONSENT OF INSURER. In the event that the Insurer's consent
is required under the terms hereof or any term of the Trust Agreement, it is
understood and agreed that, except as otherwise provided expressly herein or
therein, the determination whether to grant or withhold such consent shall be
made solely by the Insurer in its absolute discretion. The Insurer hereby agrees
that it will respond to any request for consent in a timely manner, taking into
consideration the business of the Depositor.
Section 6.07. COUNTERPARTS. This Agreement may be executed in counterparts
by the parties hereto, and each such counterpart shall be considered an original
and all such counterparts shall constitute one and the same instrument.
Section 6.08. HEADINGS. The headings of sections contained in this
Agreement are provided for convenience only. They form no part of this Agreement
and shall not affect its construction or interpretation. All references to
sections or subsections of this Agreement refer to the corresponding sections or
subsections of this Agreement.
Section 6.09. WAIVER OF TRIAL BY JURY. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY
20
JURY IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT IT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT, AMONG OTHER THINGS, THIS WAIVER.
Section 6.10. ENTIRE AGREEMENT. This Agreement and the Policy set forth the
entire agreement between the parties with respect to the subject matter thereof,
and this Agreement supersedes and replaces any agreement or understanding that
may have existed between the parties prior to the date hereof in respect of such
subject matter.
Section 6.11. THIRD PARTY BENEFICIARY. Each of the parties hereto
acknowledges that the Insurer shall be an express third party beneficiary of the
Trust Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as
of the day and year first above mentioned.
FINANCIAL SECURITY ASSURANCE INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Title: Managing Director
------------------------------
STRUCTURED ASSET SECURITIES
CORPORATION, as Depositor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title: Vice President
------------------------------
▇▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇ BROTHERS HOLDINGS INC, as
Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Senior Vice President
------------------------------
▇▇▇▇▇▇ BROTHERS BANK, FSB, as Seller
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Vice President
------------------------------
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Assistant Vice President
------------------------------