LEHMAN BROTHERS HOLDINGS INC., SELLER and STRUCTURED ASSET SECURITIES CORPORATION, PURCHASER MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT Dated as of December 1, 2007 Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series...
EXECUTION
XXXXXX
BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED
ASSET SECURITIES CORPORATION,
PURCHASER
Dated
as
of December 1, 2007
Structured
Asset Securities Corporation
Mortgage
Pass-Through Certificates, Series 2007-BC4
TABLE
OF
CONTENTS
Page
ARTICLE
I. CONVEYANCE OF MORTGAGE LOANS
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6
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Section
1.01.
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Sale
of Mortgage Loans.
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6
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Section
1.02.
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Delivery
of Documents.
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7
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Section
1.03.
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Review
of Documentation.
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7
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Section
1.04.
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Representations
and Warranties of the Seller.
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8
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Section
1.05.
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Grant
Clause.
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21
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Section
1.06.
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Assignment
by Depositor.
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22
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ARTICLE
II. MISCELLANEOUS PROVISIONS
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22
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Section
2.01.
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Binding
Nature of Agreement; Assignment.
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22
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Section
2.02.
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Entire
Agreement.
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22
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Section
2.03.
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Amendment.
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22
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Section
2.04.
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Governing
Law.
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23
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Section
2.05.
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Severability
of Provisions.
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23
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Section
2.06.
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Indulgences;
No Waivers.
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23
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Section
2.07.
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Headings
Not to Affect Interpretation.
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24
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Section
2.08.
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Benefits
of Agreement.
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24
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Section
2.09.
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Counterparts.
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24
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SCHEDULE
A-1
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Transferred
Mortgage Loan Schedule (including Prepayment Charge
Schedule)
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SCHEDULE
A-2
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Bank
Originated Mortgage Loan Schedule (including Prepayment Charge
Schedule
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SCHEDULE
B
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Mortgage
Loan Schedule for Delinquent Loans originated by BNC Mortgage LLC
as of
the Cut-off Date (relating to Section 1.04(c)(xxiv))
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EXHIBIT
A
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Certain
Defined Terms
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EXHIBIT
B
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Form
of Terms Letter
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i
This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of December 1, 2007
(the
“Agreement”), is executed by and between Xxxxxx Brothers Holdings Inc. (“LBH” or
the “Seller”) and Structured Asset Securities Corporation (the
“Depositor”).
All
capitalized terms not defined herein or in Exhibit A attached hereto shall
have
the same meanings assigned to such terms in that certain trust agreement
(the
“Trust Agreement”) dated as of December 1, 2007, among the Depositor, Aurora
Loan Services LLC, as master servicer (the “Master Servicer”), Xxxxxxx Fixed
Income Services Inc., as credit risk manager and U.S. Bank National Association,
as trustee (the “Trustee”).
WITNESSETH:
WHEREAS,
Xxxxxx Brothers Bank, FSB (the “Bank”), pursuant to the following specified
mortgage loan purchase and warranties agreements (each, a “Transfer Agreement”),
has purchased or received from certain transferors identified below (each,
a
“Transferor”) certain mortgage loans, each identified on the Mortgage Loan
Schedule attached hereto as part of Schedule A-1 (collectively, the “Transferred
Mortgage Loans”):
1.
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Bulk
Sale and Interim Servicing Agreement by and between the Bank and
Broadhollow Funding, LLC dated as of September 26, 2007 (the “American
Home Mortgage Loans”).
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2.
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Mortgage
Loan Purchase and Warranties Agreement by and between the Bank
and
Sovereign Bank, FSB dated as of March 29,
2007.
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3.
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Mortgage
Loan Purchase and Warranties Agreement by and between the Bank
and
Sovereign Bank, FSB dated as of June 27,
2007.
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4.
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Assignment,
Assumption and Recognition Agreement by and among the Bank, Sovereign
Bank, FSB and PHH Mortgage Corporation dated as of March 29,
2007.
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5.
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Assignment,
Assumption and Recognition Agreement by and among the Bank, Sovereign
Bank, FSB and PHH Mortgage Corporation dated as of June 27,
2007.
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6.
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Seller’s
Warranties and Servicing Agreement by and between the Bank and
Option One
Mortgage Corporation, Option One Owner Trust 2001-1A, Option One
Owner
Trust 2001-1B, Option One Owner Trust 2001-2, Option One Owner
Trust
2002-3 Option One Owner Trust 2003-4, Option One Owner Trust 2003-5
dated
as of November 20, 2003.
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7.
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Seller’s
Warranties and Servicing Agreement by and between the Bank and
Option One
Mortgage Corporation, Option One Owner Trust 2001-1A, Option One
Owner
Trust 2002-3, Option One Owner Trust 2002-4 dated as of November
20, 2003
and amended as of January 27, 2006.
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8.
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Seller’s
Warranties and Servicing Agreement by and between the Bank and
Option One
Mortgage Corporation, Option One Owner Trust 2001-1A, Option One
Owner
Trust 2001-1B, Option One Owner Trust 2001-2, Option One Owner
Trust
2002-3 dated as of May 13, 2003, Group No. 2003
LBB/001.
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1
9.
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Seller’s
Warranties and Servicing Agreement by and between the Bank and
Option One
Mortgage Corporation, Option One Owner Trust 2001-1A, Option One
Owner
Trust 2001-1B, Option One Owner Trust 2001-2, Option One Owner
Trust
2002-3 Option One Owner Trust 2003-4, Option One Owner Trust 2003-5,
Option One Owner Trust 2005-6, and Option One Owner Trust 2005-7,
Option
One Owner Trust 2005-8 dated as of December 13,
2005.
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10.
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Amended
and Restated Flow Mortgage Loan Purchase and Warranties Agreement
by and
between the Bank and Equifirst Corporation and Equifirst Mortgage
Corporation of Minnesota dated as of February 1,
2006.
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11.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and National City Mortgage, Co. dated as of May 9, 2005 and amended
as of
May 10, 2006.
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12.
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Master
Seller’s Warranties and Servicing Agreement by and between the Bank and
Xxxxx Fargo Bank, N.A. dated as of May 1, 2006 and amended as of
August 1,
2006.
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13.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and New Day Financial LLC dated as of December 1,
2004.
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14.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and Freedom Mortgage Corporation dated as June 1, 2006.
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15.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and First Franklin Financial Corporation dated as of May 23, 2001
and
amended as of May 15, 2002 and amended as of December
2002.
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16.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and Metrocities Mortgage Corp. dated as of May 1,
2006.
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17.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and Ace Mortgage Funding LLC dated as of March 1,
2007.
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18.
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Loan
Purchase Agreement by and between the Bank and The Provident Bank
dated as
of July 1, 2003.
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19.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and First NLC Financial Services, Inc. dated as of June 6, 2003
and
amended as of April 21, 2006.
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20.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and Aames Capital Corporation dated as of April 21, 2003 and amended
as of
September 28, 2004.
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21.
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Amended
and Restated Flow Mortgage Loan Purchase and Warranties Agreement
by and
between the Bank and First Franklin Financial Corporation dated
as of
April 1, 2005.
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2
22.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and MortgageIT, Inc. dated as of January 6, 2004 and amended for
Reg AB as
of February 28, 2006.
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WHEREAS,
in addition to those Transferred Mortgage Loans described above, the Bank
or the
Seller, as applicable, has acquired certain mortgage loans from various
originators (the “Orphaned Mortgage Loans”) pursuant to the following flow
mortgage loan purchase and warranties agreements:
1.
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Mortgage
Loan Purchase and Warranties Agreement by and between the Seller
and
Ameriquest Mortgage Company dated as of September 27,
1999.
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2.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Seller
and First Street Financial, Inc. dated as of March 1, 2004 and
amended as
of January 3, 2007 and Reg AB Amendment as of January 2,
2007.
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3.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and among the
Seller,
FMF Capital LLC and FMF Capital Group Ltd. dated as of May 1, 2006.
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4.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Seller
and People’s Choice Home Loan, Inc. dated as of July 1, 2002, and amended
as September 27, 2002 and amended as of January
2006.
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5.
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Amended
and Restated Flow Mortgage Loan Purchase and Warranties Agreement
by and
between the Bank and Mortgage Lenders Network USA, Inc. dated as
of
September 22, 2006, with a Regulation AB Side Letter dated as of
September
27, 2006.
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6.
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Flow
Mortgage Loan Purchase Agreement by and between the Bank and Fieldstone
Mortgage Company dated as of July 1, 2000 and Amendment No. 1 dated
as of
July 20, 2001 and further amended by Amendment No. 2 dated as of
October
31, 2002 and Amendment Reg AB dated as of September 8,
2005.
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7.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and NC Capital Corporation dated as of May 18,
2004.
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8.
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Flow
Mortgage Loan Purchase and Warranties Agreement dated as of June
20, 2003
and amended as of December 20, 2004 by and between the Bank and
Oakmont
Mortgage Company.
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9.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and Oakmont Mortgage Company dated as of June 20, 2003 and amended
as of
December 20, 2004, May 25, 2005 and September 26,
2005.
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10.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between
the Bank
and Ameriquest Mortgage Company and AMC Mortgage Services, Inc.
dated as
of April 11, 2005.
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3
11.
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Amended
and Restated Master Mortgage Loan Purchase Agreement by and between
the
Bank and Ameriquest Mortgage Company and AMC Mortgage Services,
Inc. dated
as of December 21, 2005.
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WHEREAS,
for all purposes of this agreement, the Orphaned Mortgage Loans shall be
treated
as Bank Originated Mortgage Loans (as defined below) and shall be included
with
the other Bank Originated Mortgage Loans identified in Schedule
A-2;
WHEREAS,
in addition to the Transferred Mortgage Loans, the Bank has directly
underwritten and funded certain mortgage loans originated by BNC Mortgage
LLC or
otherwise purchased certain mortgage loans from correspondents identified
on the
Mortgage Loan Schedule attached hereto as Schedule A-2 (the “Bank Originated
Mortgage Loans,” and together with the Transferred Mortgage Loans, collectively,
referred to hereinafter as the “Mortgage Loans”);
WHEREAS,
pursuant (i) an assignment and assumption agreement (the “Assignment and
Assumption Agreement”) dated as of December 1, 2007, between the Bank, as
assignor, and the Seller, as assignee, and (ii) certain bills of sale between
the Bank and the Seller (each a “Xxxx of Sale,” and together with the Assignment
and Assumption Agreement, the “Assignment Agreements”), the Bank has assigned
all of its right, title and interest in and to the foregoing Transfer Agreements
and the related Mortgage Loans as listed on Schedule A-1, in the case of
the
Transferred Mortgage Loans, or Schedule A-2, in the case of the Bank Originated
Mortgage Loans, and LBH has accepted the rights and benefits of, and assumed
the
obligations of the Bank under, the Transfer Agreements;
WHEREAS,
LBH is a party to the following servicing agreements (collectively, the
“Servicing Agreements”) pursuant to which the Mortgage Loans are to be initially
serviced by certain servicers as indicated below (each, a “Servicer,” and
collectively, the “Servicers”):
1. Servicing
Agreement dated as of December 1, 2007, by and among LBH, Aurora Loan Services
LLC, as servicer, the Master Servicer, and acknowledged by the
Trustee;
2. Transfer
Notice dated December 1, 2007, from LBH, as owner, to Colonial Savings, F.A.
(“Colonial”), as servicer, in connection with the Correspondent Servicing
Agreement dated as of June 26, 2002 and amended as of October 27, 2006, among
Colonial, Holdings and the Master Servicer;
3. Securitization
Servicing Agreement dated as of December 1, 2007, by and among LBH, HomEq
Servicing, as servicer, and the Master Servicer, and acknowledged by the
Trustee;
4. Securitization
Servicing Agreement dated as of December 1, 2007, by and among LBH, Home
Loan
Services, Inc., as servicer, and the Master Servicer, and acknowledged by
the
Trustee;
5. Securitization
Servicing Agreement dated as of December 1, 2007, by and among LBH, JPMorgan
Chase Bank, National Association, as servicer, and the Master Servicer, and
acknowledged by the Trustee;
4
6. Securitization
Servicing Agreement dated as of December 1, 2007, by and among LBH, Midwest
Loan
Services Inc., as servicer, and the Master Servicer, and acknowledged by
the
Trustee;
7. Securitization
Servicing Agreement dated as of December 1, 2007, by and among LBH, Ocwen
Loan
Services, LLC, as servicer, and the Master Servicer, and acknowledged by
the
Trustee;
8. Reconstituted
Servicing Agreement dated as of December 1, 2007, by and among LBH, PHH Mortgage
Corporation, as servicer and the Master Servicer, and acknowledged by the
Trustee;
9. Subservicing
Agreement dated as of December 1, 2007, by and among LBH, Select Portfolio
Servicing, Inc., as servicer, and the Master Servicer, and acknowledged by
the
Trustee;
10. Securitization
Subservicing Agreement dated as of December 1, 2007, by and among LBH, Xxxxx
Fargo Bank, N.A. (“Xxxxx Fargo”), as servicer, and the Master Servicer, and
acknowledged by the Trustee;
11. Reconstituted
Servicing Agreement dated as of December 1, 2007, by and between LBH and
Xxxxx
Fargo, as servicer, and acknowledged by the Master Servicer and the
Trustee;
12. Reconstituted
Servicing Agreement dated as of December 1, 2007, by and among LBH, Countrywide
Home Loans Servicing LP, as servicer and Countrywide Home Loans Inc., and
acknowledged by the Master Servicer and the Trustee;
WHEREAS,
the Seller desires to sell, without recourse, all of its rights, title and
interest in and to the Mortgage Loans to the Depositor, assign all of its
rights
and interest under each Transfer Agreement and each Servicing Agreement,
and
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 on the Closing Date 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:
5
ARTICLE
I.
CONVEYANCE
OF MORTGAGE LOANS
Section
1.01. Sale
of 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 identified on Schedule
A-1
and Schedule A-2 hereto, having an aggregate principal balance as of the
Cut-off
Date of $1,307,437,745.36. Such conveyance includes, without limitation,
the
right to all distributions of principal and interest received on or with
respect
to the Mortgage Loans on and after the Cut-off Date, other than payments
of
scheduled principal and interest due on or before such date, and all such
payments due after such date but received prior to such date and intended
by the
related Mortgagors to be applied after such date, all Prepayment Charges
received on or with respect to the Mortgage Loans on or after the Cut-off
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.
Concurrently
with the execution and delivery of this Agreement, the Seller hereby assigns
to
the Depositor all of its rights and interest under each Servicing Agreement
and
each Transfer Agreement (except for any rights against the related Transferor
with respect to reimbursement of any amount in excess of the Purchase Price
for
a breach of a representation or warranty.
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 that this
Agreement constitutes an Assignment Agreement under any 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 set forth in that certain Terms Letter dated as
of
the date hereof, the form of which is attached as Exhibit B hereto (the
“Purchase Price”). The Depositor hereby accepts such assignment and delegation,
and shall be entitled to exercise all the rights of the Seller under each
Transfer Agreement and each Servicing Agreement, other than any servicing
rights
thereunder, as if the Depositor had been a party to each such
agreement.
(b) 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
6
Schedule
attached hereto as Schedule A-1 specifies those Mortgage Loans that are
Transferred Mortgage Loans that have been assigned by the Bank to the Seller
and
the Schedule attached hereto as Schedule A-2 specifies those Mortgage Loans
that
are Bank Originated Mortgage Loans that have been assigned by the Bank to
the
Seller, in each case 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.
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 Deutsche Bank National Trust Company,
LaSalle Bank National Association, U.S. Bank National Association, The Bank
of
New York Trust Company, N.A and Xxxxx Fargo Bank, N.A., as applicable (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.
7
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, carry on its business as presently conducted
and enter into and perform its obligations under the Assignment Agreements
and
this Agreement;
(ii) the
execution and delivery by the Seller of the Assignment Agreements and this
Agreement have been duly authorized by all necessary corporate action on
the
part of the Seller; neither the execution and delivery of the Assignment
Agreements or this Agreement, nor the consummation of the transactions therein
or herein contemplated, nor compliance with the provisions thereof or hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of any law, governmental rule, regulation, judgment, decree
or
order binding on the Seller or its properties or the certificate of
incorporation or bylaws of the Seller;
(iii) the
execution, delivery and performance by the Seller of the Assignment Agreements
and this Agreement and the consummation of the transactions contemplated
thereby
and hereby do not require the consent or approval of, the giving of notice
to,
the registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency, except such as
has
been obtained, given, effected or taken prior to the date hereof;
(iv) each
of
the Assignment Agreements and this 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 Agreements, and the Depositor,
in the
case of this Agreement, constitutes a valid and binding obligation of the
Seller
enforceable against it in accordance with its respective terms, except as
such
enforceability may be subject to (A) applicable bankruptcy and insolvency
laws
and other similar laws affecting the enforcement of the rights of creditors
generally and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law; and
(v) there
are
no actions, suits or proceedings pending or, to the knowledge of the Seller,
threatened or likely to be asserted against or affecting the Seller, before
or
by any court, administrative agency, arbitrator or governmental body (A)
with
respect to any of the transactions contemplated by the Assignment Agreements
or
this Agreement or (B) with respect to any other matter which in the judgment
of
the Seller will be determined adversely to the Seller and will if determined
adversely to the Seller materially and adversely affect it or its business,
assets, operations or condition, financial or otherwise, or adversely affect
its
ability to perform its obligations under the Assignment Agreements or this
Agreement.
8
(b) The
representations and warranties of each Transferor with respect to the Mortgage
Loans in the applicable Transfer Agreement were made as of the date of such
Transfer Agreement. To the extent that any fact, condition or event with
respect
to a Transferred Mortgage Loan constitutes a breach of both (i) a representation
or warranty of the 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 (except in the case of a breach by the Seller
of the
representations made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv),
(xvi), (xvii) and (xviii), 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)(xiii), (xiv),
(xv), (xvi), (xvii) and (xviii) 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) (except in the case of those representations
and
warranties made pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii)
and (xviii)) 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 (except
in
the case of those representations and warranties made by it pursuant to Sections
1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xviii)) 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 Mortgage Loan.
Subject
to the foregoing, the Seller represents and warrants upon delivery of the
Transferred Mortgage Loans to the Depositor hereunder, as to each, that,
as of
the Closing Date:
(i) The
information set forth with respect to the Transferred Mortgage Loans on the
Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage
Loans, and the information with respect to each Transferred Mortgage Loan
on the
Mortgage Loan Schedule is true and correct in all material respects at the
date
or dates respecting which such information is given;
(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
9
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 Xxxxxx Xxx or Xxxxxxx Mac. If upon origination
of the 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) In
the
case of all the Mortgage Loans (by Scheduled Principal Balance as of the
Cut-off
Date), the related Mortgage evidences a valid, subsisting, enforceable and
perfected first lien on the related Mortgaged Property (including all
improvements on the Mortgaged Property). The lien of the Mortgage is subject
only to: (1) liens of current real property taxes and assessments not yet
due
and payable and, if the related Mortgaged Property is a condominium unit,
any
lien for common charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of
the date of recording of such Mortgage acceptable to mortgage lending
institutions in the area in which the related Mortgaged Property is located
and
specifically referred to in the lender’s Title Insurance Policy or attorney’s
opinion of title and abstract of title delivered to the originator of such
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;
10
(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
our
knowledge, no foreclosure action is being threatened or commenced with respect
to any Transferred Mortgage Loan. There is no proceeding pending for the
total
or partial condemnation of any Mortgaged Property (or, in the case of any
Cooperative Loan, the related cooperative unit) and each such property is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty, so as to have a material adverse effect on the
value
of the related Mortgaged Property as security for the related Transferred
Mortgage Loan or the use for which the premises were intended;
(ix) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under the law could give
rise to
such liens) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
11
(x) 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;
(xi) [reserved];
(xii) Each
Transferred Mortgage Loan is a “qualified mortgage” within the meaning of
Section 860G of the Code and Treas. Reg. §1.860G-2;
(xiii) Each
Transferred Mortgage Loan at the time it was made complied in all material
respects with applicable local, state and federal laws, including, but not
limited to, all applicable predatory, abusive and fair lending laws; and,
specifically, (a) no Transferred Mortgage Loan secured by a Mortgaged Property
located in New Jersey is a “High-Cost Home Loan” as defined in the New Jersey
Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.);
(b) no
Transferred Mortgage Loan secured by a Mortgaged Property located in New
Mexico
is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et.
seq.);
(c) no
Transferred Mortgage Loan secured by a Mortgaged Property located in
Massachusetts is a “High-Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C); and (d) no
Transferred Mortgage Loan secured by a Mortgaged Property located in Indiana
is
a “High Cost Home Loan” as defined in the Indiana Home Loan Practices Act
effective January 1, 2005 (Ind. Code Xxx. § 24-9-1 through
24-9-9.);
(xiv) No
Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as
applicable, as such terms are defined in the then current Standard & Poor’s
LEVELS® Glossary. In addition, 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);
(xv) 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))
(“HOEPA”), Regulation Z (12 CFR 226.32) or any comparable state law. As part of
its due diligence process, Seller conducted a statistically relevant sampling
of
approximately 30.09% of the Mortgage Loans. The Mortgage Loans sampled include
refinance, home equity, and purchase loans. None of the Mortgage Loans sampled
exceeds the thresholds set by HOEPA. Seller confirms that its sampling procedure
is effective in identifying loans that exceed the thresholds set by HOEPA.
Seller is not aware that any of Mortgage Loans that were not sampled exceed
the
thresholds set by HOEPA;
12
(xvi) The
information set forth in the Prepayment Charge Schedules, included as part
of
the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the
Prepayment Charge Summary attached thereto) is complete, true and correct
in all
material respects on the date or dates on which such information is furnished
and each Prepayment Charge is permissible, originated in compliance with,
and
enforceable in accordance with its terms under, applicable federal, state
and
local law (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);
(xvii) There
is
no Transferred Mortgage Loan in the Trust Fund that was originated on or
after
October 1, 2002 through March 6, 2003, which is a “high cost home loan” as
defined under the Georgia Fair Lending Act;
(xviii) In
addition to the foregoing representations and warranties made in subparagraphs
(i) through (xvii) of this Section 1.04(b), the Seller further represents
and
warrants upon delivery of the Pool 1 Transferred Mortgage Loans, as to each
such
Mortgage Loan, that:
(a) [reserved];
(b) No
Pool 1
Transferred Mortgage Loan secured by a mortgaged property located in Georgia
is
a “High-Cost Home Loan” as defined in the Georgia Fair Lending Act; no Pool 1
Transferred Mortgage Loan secured by a mortgaged property located in New
York is
a “High-Cost Home Loan” as defined in Section 6-1 of the New York State Banking
Law; no Pool 1 Transferred Mortgage Loan secured by a mortgaged property
located
in Arkansas is a “High-Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective June 24, 2003 (Act 1340 of 2003); no Pool 1 Transferred
Mortgage Loan secured by a mortgaged property located in Kentucky is a
“High-Cost Home Loan” as defined in the Kentucky high-cost home loan statute
effective June 16, 2003 (Ky. Rev. Stat. Section 360.100); no Pool 1 Transferred
Mortgage Loan secured by a mortgaged property located in Illinois is a
“High-Risk Home Loan” as defined in the Illinois High-Risk Home Loan Act (815
Ill. Comp. Stat. 137/1 et seq.); no Pool 1 Transferred Mortgage Loan is a
“High-Risk Home Loan” as defined in the Rhode Island Home Loan Protection Act,
effective December 31, 2006 (R.I. Gen. Laws Sections 34-25.2-1 through
34-25.2-15); and no Pool 1 Transferred Mortgage Loan is a “High-Risk Home Loan”
as defined in the Tennessee Home Loan Protection Act, effective January 1,
2007
(Tenn. Code Xxx. Sections 4520-101, et seq.);
(c) To
the
best of the Seller’s knowledge, except with respect to broker yield spread
premium (“YSP”) as permitted by law, no borrower was required to select a
mortgage loan product offered by the Transferor which is a higher cost product
designed for less creditworthy borrowers,
13
unless
at
the time of such Pool 1 Transferred Mortgage Loan’s origination, the borrower
did not qualify taking into account credit history and debt-to-income ratios
for
a lower-cost credit product then offered by the Transferor or an affiliate
of
the Transferor. If, at the time of the loan application, the borrower may
have
qualified for a lower-cost credit product then offered by any mortgage lending
affiliate of the Transferor, the Transferor referred the borrower’s application
to such affiliate for underwriting consideration;
(d) To
the
best of the Seller’s knowledge, the methodology used in underwriting the
extension of credit for each Pool 1 Transferred Mortgage Loan does not rely
solely on the borrower’s equity in the collateral for determining approval of
credit extension, but relies on additional factors such as the borrower’s
income, assets, liabilities and/or credit history. Such underwriting methodology
confirmed that at the time of origination (application/approval), the borrower
had a reasonable ability to make timely payments on the related Pool 1
Transferred Mortgage Loan;
(e) With
respect to any Pool 1 Transferred Mortgage Loan that contains a provision
permitting imposition of a Prepayment Charge upon a prepayment prior to
maturity, to the best of the Seller’s knowledge: (i) pursuant to the
Transferor’s underwriting guidelines, the borrower agreed to such a premium in
exchange for a monetary benefit, including but not limited to a rate or fee
reduction, (ii) prior to such Pool 1 Transferred Mortgage Loan’s origination,
the borrower was offered the option of obtaining a mortgage loan that did
not
require payment of such Prepayment Charge, (iii) the Prepayment Charge is
disclosed to the borrower in the loan documents pursuant to applicable state
and
federal law, (iv) the duration of the prepayment period shall not exceed
three
years from the date of the note, and (v) notwithstanding any state or federal
law to the contrary, the applicable Servicer for such Pool 1 Transferred
Mortgage Loan shall not impose such Prepayment Charge in any instance when
the
mortgage debt is accelerated as the result of the borrower’s default in making
the loan payments;
(f) To
the
best of the Seller’s knowledge, no borrower was required to purchase any credit
life, disability, accident, unemployment or health insurance product or debt
cancellation agreement as a condition of obtaining the extension of credit
evidenced by any Pool 1 Transferred Mortgage Loan. No borrower obtained a
prepaid single premium credit life, disability, accident, unemployment, mortgage
or health insurance policy in connection with the origination of the Pool
1
Transferred Mortgage Loan; and no proceeds from any Pool 1 Transferred Mortgage
Loan were used to purchase single premium credit insurance policies or debt
cancellation agreements as part of the origination of, or as a condition
to
closing, such Pool 1 Transferred Mortgage Loan;
14
(g) To
the
best of the Seller’s knowledge, all points and fees related to each Pool 1
Transferred Mortgage Loan were disclosed in writing to the borrower in
accordance with applicable state and federal law and regulation. No borrower
was
charged “points and fees” (whether or not financed) in an amount that exceeds
the greater of (1) 5% of the principal amount of such Pool 1 Transferred
Mortgage Loan and (2) $1,000, such limitation calculated in accordance with
Xxxxxx Mae’s anti-predatory lending requirements as set forth in the Xxxxxx Mae
Selling Guide;
(h) All
fees
and charges (including finance charges) and whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing
of
each Pool 1 Transferred Mortgage Loan have been disclosed in writing to the
borrower in accordance with applicable state and federal law and
regulation;
(i) The
Seller shall cause the applicable Servicer to transmit full-file credit
reporting data for each Pool 1 Transferred Mortgage Loan pursuant to Xxxxxx
Xxx
Guide Announcement 95-19 and, with respect to each Pool 1 Mortgage Loan,
the
Seller shall cause the applicable Servicer to report one of the following
statuses each month as follows: new origination, current, delinquent (30-,
60-,
90-days, etc.), foreclosed, or charged-off;
(j) The
applicable Servicer for each Pool 1 Transferred Mortgage Loan has fully
furnished in the past (and the Seller shall cause the applicable Servicer
to
furnish in the future), in accordance with the Fair Credit Reporting Act
and its
implementing regulations, accurate and complete information on its borrower
credit files to Equifax, Experian and Trans Union Credit Information Company,
on
a monthly basis;
(k) The
outstanding principal balance of each Pool 1 Transferred Mortgage Loan does
not
exceed the applicable maximum original loan amount limitations with respect
to
first lien one-to-four family residential mortgage loans, as set forth in
the
Xxxxxx Mae Selling Guide;
(l) No
Pool 1
Transferred Mortgage Loan is a balloon mortgage loan that has an original
stated
maturity of less than seven years;
(m) No
Pool 1
Transferred Mortgage Loan is subject to mandatory arbitration except when
the
terms of the arbitration also contain a waiver provision that provides that
in
the event of a sale or transfer of the Pool 1 Transferred Mortgage Loan or
interest in the Pool 1 Transferred Mortgage Loan the Seller shall waive the
terms of the arbitration (or in the event of a sale or transfer of the Pool
1
Transferred Mortgage Loan or interest therein to Xxxxxx Xxx, the terms of
the
arbitration are null and void). The Seller or the applicable Servicer for
each
Pool 1 Transferred Mortgage Loan will
15
notify
the borrower in writing within sixty days of the sale or transfer of the
Pool 1
Transferred Mortgage Loan to Xxxxxx Mae that the terms of the arbitration
are
null and void;
(n) With
respect to any Pool 1 Transferred Mortgage Loans secured by manufactured
housing, each contract is secured by a “single family residence” within the
meaning of Section 25(e)(10) of the Code. The fair market value of the
manufactured home securing each contract was at least 80% of the adjusted
issue
price of the contract at either (i) the time the contract was originated
(determined pursuant to the REMIC provisions of the Code) or (ii) the time
the
contract was transferred to the Seller. Each such contract is a “qualified
mortgage” under Section 860G(a)(3) of the Code;
(o) Each
Pool 1 Transferred Mortgage Loan that is a “nontraditional mortgage loan” within
the meaning of the Interagency Guidance on Nontraditional Mortgage Product
Risks, 71 FR 58609 (October 4, 2006), and that has a residential loan
application date on or after September 13, 2007, complies in all material
respects with such guidance, regardless of whether the Pool 1 Transferred
Mortgage Loan’s originator or Seller is subject to such guidance as a matter of
law; and
(p) Each
Pool
1 Transferred Mortgage Loan that is an adjustable rate mortgage loan and
that
has a residential loan application date on or after September 13, 2007, complies
in all material respects with the Interagency Statement on Subprime Mortgage
Lending, 72 FR 37569 (July 10, 2007), regardless of whether the Pool 1
Transferred Mortgage Loan’s originator or Seller is subject to such statement as
a matter of law.
(c) In
addition to the representations and warranties set forth in Section 1.04(b)(i)
through (xvii), all of which are also made by the Seller with respect to
the
Bank Originated Mortgage Loans and the American Home Mortgage Loans as of
the
Closing Date and the representations and warranties set forth in Section
1.04(b)(xviii), all of which are also made by the Seller with respect to
the
Bank Originated Mortgage Loans in Pool 1 and the American Home Mortgage Loans
in
Pool 1 as of the Closing Date, the Seller hereby further represents and warrants
to the Depositor upon the delivery to the Depositor on the Closing Date of
any
Bank Originated Mortgage Loans and any American Home Mortgage Loans, but
solely
as to each Bank Originated Mortgage Loan and each American Home Mortgage
Loan,
that, as of the Closing Date, as applicable (for the purposes of the
representations and warranties in this Section 1.04(c), references to the
Bank
Originated Mortgage Loans shall also include the American Home Mortgage Loans):
(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 borrower’s having engaged in, any act or omission
which would impair the coverage of any such policy, the
16
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 borrower 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 borrower;
(iii) The
terms
of the Mortgage Note and Mortgage have not been impaired, waived, altered
or
modified in any respect, except by a written instrument which has been recorded,
if necessary to protect the interests of the Depositor and which has been
delivered to the Custodian;
(iv) The
Mortgaged Property relating to each Bank Originated Mortgage Loan is a fee
simple property located in the state identified in the Mortgage Loan Schedule
and consists of a parcel of real property with a detached single family
residence erected thereon, or a two- to four-family dwelling, or an individual
condominium unit in a low-rise condominium project, or an individual unit
in a
planned unit development; provided,
however,
that
any condominium project or planned unit development shall conform with the
applicable Xxxxxxx Mac 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. To the best of 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 borrower is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(vii) There
is
no default (other than delinquency in payment), breach, violation or event
of
acceleration existing under the Mortgage or the Mortgage
17
Note
and
no event which, with the passage of time or with notice and the expiration
of
any grace or cure period, would constitute a default, breach, violation or
event
of acceleration, and neither the Seller nor its predecessors has waived any
default, breach, violation or event of acceleration;
(viii) All
improvements which were considered in determining the Appraised Value of
the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being
part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(ix) Each
Mortgage contains customary and enforceable provisions which render the rights
and remedies of the holder thereof adequate for the realization against the
related Mortgaged Property of the benefits of the security, including (A)
in the
case of a Mortgage designated as a deed of trust, by trustee's sale, and
(B)
otherwise by judicial or non-judicial foreclosure. There is no homestead
or
other exemption available to the related Mortgagor which would materially
interfere with the right to sell the Mortgaged Property at a trustee's sale
or
the right to foreclose the Mortgage subject to the applicable federal and
state
laws and judicial precedent with respect to bankruptcy and rights of redemption.
Upon default by a Mortgagor on a Bank Originated Mortgage Loan and foreclosure
on, or trustee's sale of, the Mortgaged Property pursuant to the proper
procedures, the holder of the Bank Originated Mortgage Loan will be able
to
deliver good and merchantable title to the property;
(x) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage;
(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 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;
18
(xiv) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the 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
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of any Bank Originated Mortgage Loan;
(xvii) 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 Mortgaged 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;
19
(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 special hazard insurance policy,
borrower paid primary mortgage loan insurance policy or bankruptcy bond,
irrespective of the cause of such failure of coverage. In connection with
the
placement of any such insurance, no commission, fee or other compensation
has
been or will be received by the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director or employee had
a
financial interest at the time of placement of such insurance;
(xxiii) Each
original Mortgage was recorded and, except for those Bank Originated Mortgage
Loans subject to the MERS identification system, all subsequent assignments
of
the original Mortgage (other than the assignment to the Depositor) have been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the liens thereof as against creditors of the Seller, or are in
the
process of being recorded; and
(xxiv) As
of the
Closing Date, approximately 15.84% of the Mortgage Loans (as listed on Schedule
C attached hereto) originated by BNC Mortgage LLC were 29 days or more
delinquent, as determined in accordance with the OTS method, and, with respect
to such Mortgage Loans, the related borrower will make a payment in full
of such
delinquent amount no later than January 11, 2008.
(d) With
respect to any of the foregoing representations and warranties made in
subparagraphs (xiii), (xiv), (xv), (xvi), (xvii) and (xviii) of Section 1.04(b),
a breach of any such representations or warranties shall be deemed to materially
and adversely affect the value of the affected Mortgage Loan and the interests
of Certificateholders therein, irrespective of the Seller’s knowledge of such
breach.
(e) 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
20
(excluding
a breach of subparagraph (xvi) under Section 1.04(b)) that adversely and
materially affects the value of the related Mortgage Loan and that does not
also
constitute a breach of a representation or warranty of a Transferor in the
related Transfer Agreement, the party discovering such breach shall give
prompt
written notice to the other party; provided,
however,
that
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 (xiii), (xiv), (xv), (xvii) and (xviii) of Section
1.04(b) irrespective of the Transferor’s breach of a comparable representation
or warranty made in the related 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
in the case of a breach of the representation and warranty made in subparagraph
(xviii) of Section 1.04(b) or the covenant made in Section 1.04(c) within
the
two-year period following the Closing Date, as applicable, substitute a
Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
Notwithstanding
the first paragraph of Section 1.04(e), in connection with the Seller’s
representations and warranties made in subparagraph (xvi) of Section 1.04(b)
and
within 90 days of the earlier of discovery by the Seller or receipt of notice
from the applicable Servicer of a breach of such representation and warranty
by
the Seller, which breach materially and adversely affects the interests of
the
Class P Certificateholders in any Prepayment Charge, the Seller shall, if
(i)
such representation and warranty is breached and a Principal Prepayment has
occurred or (ii) if a change in law subsequent to the Closing Date limits
the
enforceability of the Prepayment Charge (other than in the circumstances
set
forth in subparagraph (xvi) of Section 1.04(b)), pay, at the time of such
Principal Prepayment or change in law, the amount of the scheduled Prepayment
Charge, for the benefit of the holders of the Class P Certificates, by
depositing such amount into the Certificate Account no later than the Deposit
Date immediately following the Prepayment Period in which such Principal
Prepayment on the related Mortgage Loan or such change in law has occurred,
net
of any Servicer Prepayment Charge Payment Amount made by the applicable Servicer
with respect to the related Mortgage Loan in lieu of collection of such
Prepayment Charge.
Section
1.05. Grant
Clause.
It
is
intended that the conveyance of the Seller’s right, title and interest in and to
the Mortgage Loans and other property conveyed pursuant to this Agreement
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:
(a) the rights and obligations of the parties shall be established pursuant
to
the terms of this Agreement; (b) the Seller hereby grants to the Depositor
a first
priority security interest to secure payment of an obligation in an amount
equal
to the purchase price set forth in Section 1.01(a) in all of the Seller’s right,
title and interest in, to and under, whether now owned or hereafter acquired,
the Mortgage Loans and other property; and (c) this Agreement shall constitute
a
security agreement under applicable law.
21
Section
1.06. Assignment
by Depositor.
Concurrently
with the execution of this Agreement, the Depositor shall assign its interest
under this Agreement with respect to the Mortgage Loans to the Trustee, and
the
Trustee then shall succeed to all rights of the Depositor under this Agreement.
All references to the rights of the Depositor in this Agreement shall be
deemed
to be for the benefit of and exercisable by its assignee or designee,
specifically including the Trustee.
ARTICLE
II.
MISCELLANEOUS
PROVISIONS
Section
2.01. Binding
Nature of Agreement; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
Section
2.02. Entire
Agreement.
This
Agreement contains the entire agreement and understanding among the parties
hereto with respect to the subject matter hereof, and supersedes all prior
and
contemporaneous agreements, understandings, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersede any
course
of performance and/or usage of the trade inconsistent with any of the terms
hereof.
Section
2.03. Amendment.
(a) This
Agreement may be amended from time to time by the Seller and the Depositor,
with
the consent of the Trustee but without notice to or the consent of any of
the
Certificateholders, (i) to cure any ambiguity, (ii) to cause the provisions
herein to conform to or be consistent with or in furtherance of the statements
made with respect to the Certificates, the Trust Fund, the Trust Agreement
or
this Agreement in the Prospectus Supplement; or to correct or supplement
any
provision herein which may be inconsistent with any other provisions herein,
(iii) to make any other provisions with respect to matters or questions arising
under this Agreement or (iv) to add, delete, or amend any provisions to the
extent necessary or desirable to comply with any requirements imposed by
the
Code and the REMIC Provisions. No such amendment effected pursuant to clause
(iii) of the preceding sentence shall adversely affect in any material respect
the interests of any Certificateholder. Any such amendment shall be deemed
not
to adversely affect in any material respect any Certificateholder 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 received by the Trustee
in
connection with any such amendment may rely expressly on such confirmation
as
the basis therefor).
(b) This
Agreement may also be amended from time to time by the Seller and the Depositor
with the consent of the Trustee and the Certificateholders of not less than
66-2/3% of the Class Principal Amount or Class Notional Amount (or Percentage
Interest) of each Class of
22
Certificates
affected thereby for the purpose of adding any provisions to or changing
in any
manner or eliminating any of the provisions of this Agreement or of modifying
in
any manner the rights of the Certificateholders; provided,
however,
that no
such amendment may (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed
on
any Certificate without the consent of the Certificateholder of such Certificate
or (ii) reduce the aforesaid percentages of Class Principal Amount or Class
Notional Amount (or Percentage Interest) of Certificates of each Class, the
Certificateholders of which are required to consent to any such amendment
without the consent of the Certificateholders of 100% of the Class Principal
Amount or Class Notional Amount (or Percentage Interest) of each Class of
Certificates affected thereby. For purposes of this paragraph, references
to
“Certificateholder” or “Certificateholders” shall be deemed to include, in the
case of any Class of Book-Entry Certificates, the related Certificates
Owners.
(c) It
shall
not be necessary for the consent of Certificateholders under this Section
2.03
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
Section
2.04. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW 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, as well as the Trustee.
23
Section
2.07. Headings
Not to Affect Interpretation.
The
headings contained in this Agreement are for convenience of reference only,
and
they shall not be used in the interpretation hereof.
Section
2.08. Benefits
of Agreement.
The
parties to this Agreement agree that it is appropriate, in furtherance of
the
intent of such parties set forth herein, that the Trustee enjoys the full
benefit of the provisions of this Agreement each as an intended third party
beneficiary; provided,
however,
nothing
in this Agreement, express or implied, shall give to any Person, other than
the
parties to this Agreement and their successors hereunder, the Trustee and
the
Certificateholders, any benefit or legal or equitable right, power, remedy
or
claim under this Agreement.
Section
2.09. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one
and the
same instrument.
24
IN
WITNESS WHEREOF, the Seller and the Depositor have caused their names to
be
signed hereto by their respective duly authorized officers as of the date
first
above written.
XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
By:
/s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
STRUCTURED
ASSET SECURITIES
CORPORATION,
as
Purchaser
By:
/s/ Xxxxxxxx Xxxxxxx
Name:
Xxxxxxxx Xxxxxxx
Title:
Vice President
SCHEDULE
A-1
TRANSFERRED
MORTGAGE LOANS
MORTGAGE
LOAN SCHEDULE
(including
Prepayment Charge Schedules and Prepayment Charge Summary)
[To
be
retained in a separate closing binder entitled “SASCO 2007-BC4 Mortgage
Loan
Schedules”
at XxXxx Xxxxxx LLP]
SCHEDULE
A-2
BANK
ORIGINATED MORTGAGE LOANS
MORTGAGE
LOAN SCHEDULE
(including
Prepayment Charge Schedules and Prepayment Charge Summary)
[To
be
retained in a separate closing binder entitled “SASCO 2007-BC4 Mortgage
Loan
Schedules”
at XxXxx Xxxxxx LLP]
SCHEDULE
B
MORTGAGE
LOAN SCHEDULE FOR DELINQUENT LOANS
ORIGINATED
BY BNC MORTGAGE AS OF THE CUT-OFF DATE
[To
be
retained in a separate closing binder entitled “SASCO 2007-BC4 Mortgage
Loan
Schedules”
at XxXxx Xxxxxx LLP]
EXHIBIT
A
CERTAIN
DEFINED TERMS
“Prepayment
Charge”:
With respect to any Mortgage Loan, the charges or premiums, if any, due in
connection with a full or partial prepayment of such Mortgage Loan during
a
Prepayment Period in accordance with the terms thereof (other than any Servicer
Prepayment Charge Payment Amount).
“Prepayment
Charge Schedule”:
As of any date, the list of Prepayment Charges on the Mortgage Loans included
in
the Trust Fund on such date, included as part of the Mortgage Loan Schedule
at
Exhibit A (including the Prepayment Charge Summary attached thereto). The
Prepayment Charge Schedule shall be prepared by the Seller and shall set
forth
the following information with respect to each Prepayment Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination of the related Mortgage Loan;
(iv)
|
the
date on which the first Scheduled Payment was due on the related
Mortgage
Loan;
|
(v) the
term
of the related Prepayment Charge; and
(vi) the
Scheduled Principal Balance of the Mortgage Loan as of the Cut-off
Date.
Such
Prepayment Charge Schedule shall be amended from time to time by the Seller
and
a copy of such amended Prepayment Charge Schedule shall be furnished by the
Seller.
“Servicer
Prepayment Charge Payment Amount”:
The
amount payable by a Servicer in respect of any impermissible waiver by such
Servicer of a Prepayment Charge pursuant to the related Servicing
Agreement.
EXHIBIT
B
FORM
OF
TERMS LETTER
December
1, 2007
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Re: Structured
Asset Securities Corporation Mortgage Loan Trust
Mortgage
Pass-Through Certificates, Series 2007-BC4
Ladies
and Gentlemen:
This
letter (the “Terms Letter”) is made in accordance with the Mortgage Loan Sale
and Assignment Agreement dated as of December 1, 2007 (the “Mortgage Loans Sale
Agreement”), between Structured Asset Securities Corporation and Xxxxxx Brothers
Holdings Inc. Capitalized terms used but not defined herein shall have the
meanings set forth in the Mortgage Loan Sale Agreement.
The
Purchase Price shall be $[ ].
This
Terms Letter may be signed in any number of counterparts, each of which shall
be
deemed to be an original, but taken together, shall constitute a single
document.
[Remainder
of page intentionally left blank]
Please
acknowledge your agreement with the foregoing by signing and returning the
enclosed copy of this Terms Letter to the undersigned.
Very
truly yours,
XXXXXX
BROTHERS HOLDINGS INC.
By: /s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
Acknowledged
and Agreed:
STRUCTURED
ASSET SECURITIES
CORPORATION
By:/s/
Xxxxxxxx Xxxxxxx
Name:
Xxxxxxxx Xxxxxxx
Title:
Vice President