LEHMAN BROTHERS HOLDINGS INC., SELLER and STRUCTURED ASSET SECURITIES CORPORATION, PURCHASER MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT Dated as of February 1, 2007 Lehman XS Trust (Mortgage Pass-Through Certificates, Series 2007-3)
EXECUTION
XXXXXX
BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED
ASSET SECURITIES CORPORATION,
PURCHASER
Dated
as
of February 1, 2007
Xxxxxx
XS
Trust
(Mortgage
Pass-Through Certificates, Series 2007-3)
TABLE
OF
CONTENTS
Page
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ARTICLE
I. CONlVEYANCE OF MORTGAGE LOANS
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3
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Section
1.01. Sale
of Mortgage Loans.
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3
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Section
1.02. Delivery
of Documents.
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4
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Section
1.03. Review
of Documentation.
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5
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Section
1.04. Representations
and Warranties of the Seller.
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5
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Section
1.05. Grant
Clause.
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15
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Section
1.06. Assignment
by Depositor.
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16
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ARTICLE
II. MISCELLANEOUS PROVISIONS
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16
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Section
2.01. Binding
Nature of Agreement; Assignment.
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16
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Section
2.02. Entire
Agreement.
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16
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Section
2.03. Amendment.
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16
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Section
2.04. Governing
Law.
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17
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Section
2.05. Severability
of Provisions.
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17
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Section
2.06. Indulgences;
No Waivers.
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17
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Section
2.07. Headings
Not to Affect Interpretation.
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18
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Section
2.08. Benefits
of Agreement.
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18
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Section
2.09. Counterparts.
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18
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| SCHEDULE A | Transferred Mortgage Loan Schedule (including Prepayment ChargeSchedule) |
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SCHEDULE
B
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Originated
Mortgage Loan Schedule (including Prepayment Charge
Schedule)
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SCHEDULE
C
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Mortgage
Loan Schedule for Seller-paid First Payment Default Mortgage
Loans
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SCHEDULE
D
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Mortgage
Loan Schedule for Seller-paid Early Payment Default Mortgage
Loans
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SCHEDULE
E
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Mortgage
Loan Schedule for Insured Mortgage Loans
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| EXHIBIT A | Certain Defined Terms |
| EXHIBIT B | Form of Terms Letter |
i
This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of February 1, 2007 (the
“Agreement”), is executed by and between Xxxxxx Brothers Holdings Inc.
(“Holdings” 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 February 1, 2007, among the Depositor, Aurora
Loan Services LLC, as master servicer (the “Master Servicer”), and LaSalle 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
Agreements”), 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 (collectively,
the
“Transferred Mortgage Loans”):
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1.
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Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
ACT
Lending Corporation dated as of August 1,
2002;
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2.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between the
Bank
and American Home Mortgage, Corp dated as of November 17, 2004 and
amended
as of December 29, 2005 (Regulation
AB);
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3.
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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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4.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between the
Bank
and New Century Mortgage Corporation dated as of November 14,
2006;
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5.
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Loan
Purchase Agreement by and between the Bank and Meridias Capital,
Inc.
dated as of April 15, 2005;
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6.
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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
Regulation AB as of February 28,
2006;
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7.
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Flow
Mortgage Loan Purchase and Warranties Agreement by and between the
Bank
and The Mortgage Store Financial, Inc. dated as of December 1, 2006,
Group
No. 2006-FLOW;
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8.
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Amended
and Restated Flow Mortgage Loan Purchase and Warranties Agreement
by and
between the Bank and Option One Mortgage Corporation and Option One
Mortgage Capital 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 and Option One Owner Trust 2005-9 dated as
of
December 18, 2006;
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1
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9.
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Seller's
Warranties and Servicing Agreement by and between the Bank and IndyMac
Bank, FSB dated as of July 1, 2003 and amended as of December 29,
2004 and
June 28, 2006;
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10.
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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; and
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11.
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Amended
and Restated Flow Mortgage Loan Purchase, Warranties and Servicing
Agreement by and between the Bank and GreenPoint Mortgage Funding,
Inc.
dated as of January 1, 2007.
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WHEREAS,
in addition to the Transferred Mortgage Loans, the Bank has directly
underwritten and funded certain mortgage loans originated by Aurora Loan
Services LLC and other correspondents or otherwise purchased certain mortgage
loans identified on the Mortgage Loan Schedule attached hereto as Schedule
B
(the “Originated Mortgage Loans” and, together with the Transferred Mortgage
Loans, collectively referred to hereinafter as the “Mortgage
Loans”);
WHEREAS,
pursuant to an assignment and assumption agreement (the “Assignment and
Assumption Agreement”), dated as of February 1, 2007, between the Bank, as
assignor, and the Seller, as assignee, the Bank has assigned all of its right,
title and interest in and to the foregoing Transfer Agreements and related
Mortgage Loans as listed on Schedule A, in the case of Transferred Mortgage
Loans, or Schedule B, in the case of the Originated Mortgage Loans, and the
Seller has accepted the rights and benefits of, and assumed the obligations
of
the Bank under, the Transfer Agreements;
WHEREAS,
the Seller is a party to the following servicing agreements (collectively,
the
“Servicing Agreements”) pursuant to which the Mortgage Loans are to be initially
serviced by a certain servicer (the “Servicer”) as indicated below:
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1.
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Servicing
Agreement dated as of February 1, 2007 among the Seller, as seller,
and
Aurora Loan Services LLC, in the dual capacities of servicer and
Master
Servicer, and acknowledged by the
Trustee;
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2.
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Reconstituted
Servicing Agreement dated as of February 1, 2007 among the Seller,
as
seller, and GreenPoint Mortgage Funding Inc., as servicer, and
acknowledged by the Master Servicer and the Trustee;
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3.
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Reconstituted
Servicing Agreement dated as of February 1, 2007 among the Seller,
as
seller, and IndyMac F.S.B., as servicer, and acknowledged by the
Master
Servicer and the Trustee;
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2
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4.
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Reconstituted
Servicing Agreement dated as of February 1, 2007 among the Seller,
as
seller, and Xxxxx Fargo Bank, N.A., as servicer, and acknowledged
by the
Master Servicer and the Trustee;
and
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5.
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Transfer
Notice dated as of February 1, 2007 among the Seller, as seller,
and
Colonial Savings, F.A., as
servicer.
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WHEREAS,
the Seller desires to sell, without recourse, all of its rights, title and
interest in and to the Mortgage Loans on the Closing Date to the Depositor,
assign all of its rights and interest under each Transfer Agreement and each
Servicing Agreement relating to the Mortgage Loans referred to above, other
than
any servicing rights retained by the Seller hereunder, 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 to a Trust Fund created pursuant to the Trust
Agreement, assign all of its rights and delegate all of its obligations
hereunder to the Trustee for the benefit of the Certificateholders, and that
each reference herein to the Depositor is intended, unless otherwise specified,
to mean the Depositor or the Trustee, as assignee, whichever is the owner of
the
Mortgage Loans from time to time.
NOW,
THEREFORE, in consideration of the mutual agreements herein set forth, and
for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Seller and the Depositor agree as follows:
ARTICLE
I.
CONVEYANCE
OF MORTGAGE LOANS
Section
1.01. 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 Schedules
A
and B hereto, having an approximate aggregate principal balance of
$1,315,172,300 as of the Cut-off Date. 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.
3
Concurrently
with the execution and delivery of this Agreement, the Seller hereby assigns
to
the Depositor all of its rights and interest under each Transfer Agreement
and
each Servicing Agreement (except for any rights against the related Transferor
with respect to (i) first payment date defaults or early payment date defaults
or (ii) any servicing rights retained thereunder) and delegates to the Depositor
all of its obligations thereunder, to the extent relating to the Mortgage Loans.
The Seller and the Depositor further agree that this Agreement incorporates
the
terms and conditions of any assignment and assumption agreement or other
assignment document required to be entered into under any of the Transfer
Agreements (any such document an “Assignment Agreement”) and that this Agreement
constitutes an Assignment Agreement under such Transfer Agreement, and the
Depositor hereby assumes the obligations of the assignee under each such
Assignment Agreement. In addition, the Seller hereby assigns to Depositor all
of
its right, title and interest in and to (A)(i) the MGIC Mortgage Guaranty Select
Master Policy for Multiple Loan Transactions No. 12-670-4-5004, MGIC form
#71-70282 (2/06) with #71-70283 (2/05), and the MGIC Letter Agreement dated
January 31, 2007 and (ii) Commitment Certificates and (B) PMI Mortgage Master
Policy No. UW 2510.00 (09/00), Bulk No. 00000-0000-0, subject to the terms
and
conditions of PMI Mortgage’s Bulk Primary First Lien Master Policy UW 2510.00
(09/00) and the PMI Letter Agreement dated January 31, 2007, (each, a “Bulk PMI
Policy”) covering the Mortgage Loans identified on Schedule E
hereto.
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, each Servicing Agreement
and each Bulk PMI Policy, 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 Schedule attached hereto as Schedule A specifies
those Mortgage Loans that are Transferred Mortgage Loans and the Mortgage Loan
Schedule attached hereto as Schedule B specifies those Mortgage Loans that
are
Originated Mortgage Loans, each of which categories of Mortgage Loans have
been
assigned by the Bank to the Seller pursuant to the Assignment and Assumption
Agreement.
Section
1.02. Delivery
of Documents.
(a) In
connection with such transfer and assignment of the Mortgage Loans hereunder,
the Seller shall, at least three (3) Business Days prior to the Closing Date,
deliver, or cause to be delivered, to the Depositor (or its designee) the
documents or instruments with respect to each Mortgage Loan (each a “Mortgage
File”) so transferred and assigned, as specified in the related Transfer
Agreements or Servicing Agreements.
(b) For
Mortgage Loans (if any) that have been prepaid in full on or after the Cut-off
Date and prior to the Closing Date, the Seller, in lieu of delivering the
related Mortgage Files, herewith delivers to the Depositor an Officer’s
Certificate which shall include a statement to the effect that all amounts
received in connection with such prepayment that are required to be deposited
in
the Collection Account maintained by the Master Servicer for such purpose have
been so deposited.
4
Section
1.03. Review
of Documentation.
The
Depositor, by execution and delivery hereof, acknowledges receipt of the
Mortgage Files pertaining to the Mortgage Loans listed on the Mortgage Loan
Schedule, subject to review thereof by Xxxxx Fargo Bank National Association,
LaSalle Bank National Association, Deutsche Bank National Trust Company and
U.S.
Bank National Association as applicable (each, a “Custodian” and, together, the
“Custodians”), for the Depositor. Each Custodian is required to review, within
45 days following the Closing Date, each applicable Mortgage File. If in the
course of such review the related Custodian identifies any Material Defect,
the
Seller shall be obligated to cure such Material Defect or to repurchase the
related Mortgage Loan from the Depositor (or, at the direction of and on behalf
of the Depositor, from the Trust Fund), or to substitute a Qualifying Substitute
Mortgage Loan therefor, in each case to the same extent and in the same manner
as the Depositor is obligated to the Trustee and the Trust Fund under Section
2.02(c) of the Trust Agreement.
Section
1.04. Representations
and Warranties of the Seller.
(a) The
Seller hereby represents and warrants to the Depositor that as of the Closing
Date:
(i) the
Seller is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate
power
and authority to own its property, carry on its business as presently conducted
and enter into and perform its obligations under the Assignment and Assumption
Agreement and this Agreement;
(ii) the
execution and delivery by the Seller of the Assignment and Assumption Agreement
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
and Assumption Agreement 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 and
Assumption Agreement 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;
5
(iv) each
of
the Assignment and Assumption Agreement 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 and Assumption
Agreement, and the Depositor, in the case of this Agreement, constitutes a
valid
and binding obligation of the Seller enforceable against it in accordance with
its respective terms, except as such enforceability may be subject to (A)
applicable bankruptcy and insolvency laws and other similar laws affecting
the
enforcement of the rights of creditors generally and (B) general principles
of
equity regardless of whether such enforcement is considered in a proceeding
in
equity or at law; and
(v) there
are
no actions, suits or proceedings pending or, to the knowledge of the Seller,
threatened or likely to be asserted against or affecting the Seller, before
or
by any court, administrative agency, arbitrator or governmental body (A) with
respect to any of the transactions contemplated by the Assignment and Assumption
Agreement 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 and
Assumption Agreement or this Agreement.
(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 a Transferor under the applicable Transfer Agreement and (ii)
a
representation or warranty of the Seller under this Agreement, the sole right
or
remedy of the Depositor with respect to a breach by the Seller of such
representation and warranty (other than a breach by the Seller of the
representations made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv),
(xv), (xvi) and (xvii), shall be the right to enforce the obligations of such
Transferor under any applicable representation or warranty made by it. The
representations made by the Seller pursuant to Sections 1.04(b)(xii), (xiii),
(xiv), (xv), (xvi) and (xvii) shall be direct obligations of the Seller. The
Depositor acknowledges and agrees that the representations and warranties of
the
Seller in this Section 1.04(b) (other than any representations and warranties
made pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii)
by
it) 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 (other than any representations and
warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv),
(xvi) and (xvii)) 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:
6
(i) The
information set forth with respect to the Transferred Mortgage Loans on the
Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage
Loans, and the information with respect to each Transferred Mortgage Loan on
the
Mortgage Loan Schedule is true and correct in all material respects at the
date
or dates respecting which such information is given;
(ii) There
are
no defaults (other than delinquency in payment) in complying with the terms
of
any Mortgage, and the Seller has no notice as to any taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing but which have
not been paid;
(iii) Except
in
the case of Cooperative Loans, if any, each Mortgage requires all buildings
or
other improvements on the related Mortgaged Property to be insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the related Mortgaged
Property is located pursuant to insurance policies conforming to the
requirements of the guidelines of Xxxxxx Mae 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) 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;
7
(vi) Immediately
prior to the transfer and assignment of the Transferred Mortgage Loans to the
Depositor, the Seller was the sole owner of record and holder of each
Transferred Mortgage Loan, and the Seller had good and marketable title thereto,
and has full right to transfer and sell each Transferred Mortgage Loan to the
Depositor free and clear, except as described in paragraph (v) above, of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority, subject to no interest
or
participation of, or agreement with, any other party, to sell and assign each
Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each
Transferred Mortgage Loan other than any Cooperative Loan is covered by either
(i) an attorney’s opinion of title and abstract of title the form and substance
of which is generally acceptable to mortgage lending institutions originating
mortgage loans in the locality where the related Mortgaged Property is located
or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable
form of policy of insurance, issued by a title insurer qualified to do business
in the jurisdiction where the Mortgaged Property is located, insuring the
originator of the Transferred Mortgage Loan, and its successors and assigns,
as
to the first priority lien of the Mortgage in the original principal amount
of
the Transferred Mortgage Loan (subject only to the exceptions described in
paragraph (v) above). If the Mortgaged Property is a condominium unit located
in
a state in which a title insurer will generally issue an endorsement, then
the
related Title Insurance Policy contains an endorsement insuring the validity
of
the creation of the condominium form of ownership with respect to the project
in
which such unit is located. With respect to any Title Insurance Policy, the
originator is the sole insured of such mortgagee Title Insurance Policy, such
mortgagee Title Insurance Policy is in full force and effect and will inure
to
the benefit of the Depositor upon the consummation of the transactions
contemplated by this Agreement, no claims have been made under such mortgagee
Title Insurance Policy and no prior holder of the related Mortgage, including
the Seller, has done, by act or omission, anything that would impair the
coverage of such mortgagee Title Insurance Policy;
(viii) 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;
8
(ix) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under the law could give rise
to
such liens) affecting the related Mortgaged Property which are or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(x) Each
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) Each
Transferred Mortgage Loan is a “qualified mortgage” within the meaning of
Section 860G of the Code and Treas. Reg. §1.860G-2;
(xii) Each
Transferred Mortgage Loan at the time it was made complied in all material
respects with applicable local, state and federal laws, including, but not
limited to, all applicable predatory, 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 et seq.);
(xiii) 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
which is now Version 5.7d Revised, Appendix E) and no mortgage loan originated
on or after October 1, 2002 through March 6, 2003 is governed by the Georgia
Fair Lending Act;
(xiv) 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);
9
(xv) No
Transferred Mortgage Loan was originated (or modified) on or after February
1,
2002 and before March 7, 2003 which is secured by a mortgaged property located
in Georgia;
(xvi) No
Transferred Mortgage Loan that is secured by property located in Illinois is
in
violation of the provisions of the Illinois Interest Act (815 Ill. Comp. Stat.
205/1 et seq.);
(xvii) No
Transferred Mortgage Loan was at the time of origination subject to the Home
Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)),
Regulation Z (12 CFR 226.32) or any comparable state law;
(xviii) The
information set forth in the Prepayment Charge Schedules included as part of
the
Mortgage Loan Schedules at Schedules A and B (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); and
(xix) Each
of
the Mortgage Loans will have a debt-to-income ratio, as of the Closing Date,
less than or equal to 60%.
(c) In
addition to the representations and warranties set forth in Section 1.04(b),
all
of which are also made by the Seller with respect to the Originated Mortgage
Loans as of the Cut-off Date, the Seller hereby further represents and warrants
to the Depositor upon the delivery to the Depositor on the Closing Date of
any
Originated Mortgage Loans, but solely as to each Originated Mortgage Loan,
that,
as of the Closing Date:
(i) With
respect to any hazard insurance policy covering a 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 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
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;
10
(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 related Custodian;
(iv) The
Mortgaged Property relating to each 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 Xxxxxx Xxx and 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 Originated Mortgage Loan and
to
execute and deliver the Mortgage Note and the Mortgage and any other related
agreement, and the Mortgage Note and the Mortgage have been duly and properly
executed by such parties. The documents, instruments and agreements submitted
for loan underwriting were not falsified and contain no untrue statement of
material fact or omit to state a material fact required to be stated therein
or
necessary to make the information and statements therein not misleading. To
the
best of Seller’s knowledge, no fraud was committed in connection with the
origination of the Originated Mortgage Loan;
(vi) Each
Originated Mortgage Loan has been closed and the proceeds of the 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 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 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;
11
(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 Originated Mortgage Loan and foreclosure on,
or
trustee’s sale of, the Mortgaged Property pursuant to the proper procedures, the
holder of the 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 Originated Mortgage Loan by the Seller under
this Agreement as set forth in Section 1.02 hereof have been delivered to the
related Custodian. The Seller is in possession of a complete, true and accurate
Mortgage File in compliance with Section 1.02 hereof, except for such documents
the originals of which have been delivered to the related
Custodian;
(xiii) The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(xiv) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the 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
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 Originated Mortgage Loan
contain any other similar provisions currently in effect which may constitute
a
“buydown” provision. No Originated Mortgage Loan is a graduated payment mortgage
loan and no Originated Mortgage Loan has a shared appreciation or other
contingent interest feature;
12
(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
Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does not exceed
the original principal amount of any Originated Mortgage Loan;
(xvii) The
origination and collection practices used with respect to each Originated
Mortgage Loan have been in accordance with Accepted Servicing Practices, and
have been in all respects in compliance with all applicable laws and
regulations. With respect to escrow deposits and escrow payments, all such
payments are in the possession of the Seller and there exist no deficiencies
in
connection therewith for which customary arrangements for repayment thereof
have
not been made. All escrow payments have been collected in full compliance with
state and federal law. An escrow of funds is not prohibited by applicable law
and has been established in an amount sufficient to pay for every item which
remains unpaid and which has been assessed but is not yet due and payable.
No
escrow deposits or escrow payments or other charges or payments due the Seller
have been capitalized under the Mortgage or the Mortgage Note. All Mortgage
Interest Rate adjustments have been made in strict compliance with state and
federal law and the terms of the related Mortgage Note. Any interest required
to
be paid pursuant to state and local law has been properly paid and
credited;
(xviii)
The
Mortgage File contains an appraisal of the related Mortgage Property signed
prior to the approval of the 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 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 Originated Mortgage
Loan was originated;
(xix) The
Mortgagor has not notified the Bank or the Seller, and neither the Bank nor
the
Seller has any knowledge of any relief requested or allowed to the Mortgagor
under the Servicemembers Civil Relief Act;
(xx) 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;
(xxi) The
Originated Mortgage Loan does not contain a provision permitting or requiring
conversion to a fixed interest rate Mortgage Loan;
13
(xxii) No
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;
(xxiii)
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; and
(xxiv) Each
original Mortgage was recorded and, except for those 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.
(d) With
respect to any of the foregoing representations and warranties made in
subparagraphs (xii), (xiii), (xiv), (xv), (xvi) and (xvii) 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) In
addition to the representations and warranties made with respect to the Mortgage
Loans in Section 1.04(b), the Seller hereby covenants that with respect to
any
Mortgage Loan listed in Schedule C (a “Seller-paid First Payment Default
Mortgage Loan”), if the related Mortgagor fails to make the first Scheduled
Payment due on such Mortgage Loan within one calendar month following the date
upon which such first payment was due to the Seller, then the Seller shall
purchase such Mortgage Loan from the Trust Fund at the FPD Purchase Price and
(ii) the Seller hereby covenants that with respect to any Mortgage Loan listed
in Schedule D (the “Seller-paid Early Payment Default Aurora Mortgage Loans” and
collectively with the Seller-paid First Payment Default Aurora Mortgage Loans,
the “First Payment Default Mortgage Loans”), if the related Mortgagor fails to
make the first or second Scheduled Payment due on such Mortgage Loan within
one
calendar month following the date upon which such first or second payment was
due to the Seller, then the Seller shall purchase such Mortgage Loan from the
Trust Fund at the FPD Purchase Price.
It
is
understood and agreed that the representations and warranties set forth in
Sections 1.04(b), 1.04(c) and 1.04(e) herein shall survive the Closing Date.
Upon discovery by either the Seller or the Depositor of a breach of any of
the
foregoing representations and warranties (excluding a breach of subparagraph
(xvii) 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 (xii), (xiii), (xiv), (xv), (xvi) and (xvii) 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 (or FPD Purchase Price in the case of a breach of covenant made
in Section 1.04(e), or (c) within the two-year period following the Closing
Date, as applicable, substitute a Qualifying Substitute Mortgage Loan for the
affected Mortgage Loan.
14
Notwithstanding
the second paragraph of Section 1.04(d), in connection with the Seller’s
representations and warranties made in subparagraph (xvii) 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, as applicable, limits the enforceability of the Prepayment Charge (other
than in the circumstances set forth in subparagraph (xvii) 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.
(f) Promptly
upon discovery by the Seller or the Depositor that any First Payment Default
Mortgage Loan may be repurchased by the Seller, the Depositor shall enforce
its
rights against the Seller under this Agreement. If the price at which the Seller
is required to purchase any First Payment Default Mortgage Loan is less than
the
Purchase Price as defined in the Trust Agreement, the Seller shall be obligated
to pay such difference to the Depositor on the date of repurchase and such
difference shall be paid to the Trust Fund.
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.
15
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 requested 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 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.
16
(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.
17
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.
18
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.,a
as
Seller
By:
/s/ Xxxxxxx
Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
STRUCTURED
ASSET SECURITIES
CORPORATION,
as
Purchaser
By:
/s/ Xxxxx X.
Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
SCHEDULE
A
TRANSFERRED
MORTGAGE LOANS
MORTGAGE
LOAN SCHEDULE
(including
Prepayment Charge Schedules and Prepayment Charge Summary)
[To
be
retained in a separate closing binder entitled “LXS 2007-3 Mortgage Loan
Schedules” at
the
Washington, DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
B
ORIGINATED
MORTGAGE LOANS
MORTGAGE
LOAN SCHEDULE
(including
Prepayment Charge Schedules and Prepayment Charge Summary)
[To
be
retained in a separate closing binder entitled “LXS 2007-3 Mortgage Loan
Schedules” at
the
Washington, DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
C
MORTGAGE
LOAN SCHEDULE FOR
FOR
SELLER-PAID FIRST PAYMENT DEFAULT MORTGAGE LOANS
(including
Prepayment Charge Schedules and Prepayment Charge Summary)
[To
be
retained in a separate closing binder entitled “LXS 2007-3 Mortgage Loan
Schedules” at
the
Washington, DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
D
MORTGAGE
LOAN SCHEDULE FOR SELLER-PAID EARLY PAYMENT DEFAULT MORTGAGE LOANS
(including
Prepayment Charge Schedules and Prepayment Charge Summary)
[To
be
retained in a separate closing binder entitled “LXS 2007-3 Mortgage Loan
Schedules” at
the
Washington, DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
E
MORTGAGE
LOAN SCHEDULE FOR INSURED MORTGAGE LOANS
(including
Prepayment Charge Schedules and Prepayment Charge Summary)
[To
be
retained in a separate closing binder entitled “LXS 2007-3 Mortgage Loan
Schedules” at the
Washington,
DC offices of 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
(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 the
Servicer of a Prepayment Charge pursuant to the related Servicing
Agreement.
EXHIBIT
B
FORM
OF TERMS LETTER
