SECURITIES PURCHASE AGREEMENT
EXECUTION
This
SECURITIES PURCHASE AGREEMENT, dated June 30, 2008 (the “Agreement”), between
Xxxxxx Brothers Holdings Inc., a Delaware corporation (the “Seller”) and
Structured Asset Securities Corporation (the “Depositor”). Capitalized terms
used but not otherwise defined herein have the respective meanings set forth
in
the Trust Agreement (as defined below).
W
I T N E
S S E T H
WHEREAS,
the Depositor desires to purchase from the Seller and the Seller desires to
sell
to the Depositor certain obligations; and
WHEREAS,
the Depositor intends to sell such obligations to Xxxxx Fargo Bank, N.A., as
trustee (the “Trustee”), under the Trust Agreement (the “Trust Agreement”) dated
as of June 1, 2008 between the Depositor and the Trustee, in exchange for
$206,242,243 aggregate principal amount of Class A1 Pass-Through Certificates
and $51,560,561 aggregate principal amount of Class A2 Pass-Through Certificates
all of which are to be issued under the Trust Agreement;
NOW
THEREFORE, the parties hereto agree as follows:
1. Purchase
and Sale of the Underlying Securities.
(a) Set
forth
in Annex A hereto is a list of obligations to be sold to the Depositor (the
“Underlying Securities”) and certain information with respect to each of the
Underlying Securities.
(b) The
Depositor hereby acknowledges that delivery or transfer of the Underlying
Securities to the Depositor has been made. The Seller hereby sells to the
Depositor and the Depositor hereby purchases from the Seller, the Underlying
Securities, having a market value approximately equal to the percentage as
set
for in Annex A and including all rights with respect thereto. The Seller hereby
acknowledges that the Depositor has paid to the Seller the purchase price in
the
manner agreed upon by the Seller and the Depositor. In the event that any
Underlying Security has not been delivered or transferred to the Depositor
or
any assignee, in the case of Underlying Securities in definitive form, with
any
documentation necessary to effect the assignment thereof to the Depositor or
any
assignee, within five Business Days after the Closing Date, the Seller shall
immediately repurchase such Underlying Security for a price equal to the
purchase price thereof plus interest accrued thereon at the applicable interest
rate.
(c) Concurrently
with the sale by the Seller to the Depositor of the Underlying Securities,
the
Seller hereby assigns to the Depositor all of its rights and interest in
scheduled distributions on the Underlying Securities payable to the Seller
on
the Underlying Distribution Date in June 2008 and thereafter.
(d) It
is the
intention of the Seller that the transfer and assignment of the Underlying
Securities shall constitute a sale from the Seller to the Depositor and that
such Underlying Securities not be a part of the Depositor’s property or estate
for any purpose under state or federal law, including without limitation in
the
event of the insolvency of the Seller. In the event the transfer and assignment
of the Underlying Securities contemplated by this Agreement is deemed to be
other than a sale notwithstanding the intent of the parties hereto, this
Agreement shall be deemed to be and in such event hereby is the grant of a
security interest from the Seller to the Depositor, and the Depositor shall
have
all the rights, powers and privileges of a secured party under the Uniform
Commercial Code in effect in the applicable jurisdiction. In such event, the
Seller agrees to take such action and execute such documents as shall be
necessary in order to fully realize the benefits of such secured party status,
including, without limitation, powers of attorney, financing statements, notices
of lien or other instruments or documents.
2. Conditions.
The
obligations of the parties under this Agreement are subject to the following
conditions:
(a) the
representations and warranties contained herein shall be accurate and complete;
and
(b) on
the
date hereof, counsel for the Depositor shall have been furnished with all such
documents, certificates and opinions as such counsel may reasonably request
in
order to evidence the accuracy and completeness of any of the representations,
warranties or statements of the Seller, the performance of any of the
obligations of the Seller hereunder or the fulfillment of any of the conditions
herein contained.
3. Representations
and Warranties.
(a) Each
party hereby represents and warrants to the other party that (i) it is duly
organized and validly existing as an entity under the laws of the jurisdiction
in which it is chartered or organized, (ii) it has the requisite corporate
power
and authority to enter into and perform this Agreement, and (iii) this Agreement
has been duly authorized by all necessary corporate action, has been duly
executed by one or more duly authorized officers and is the valid and binding
agreement of such party enforceable against such party in accordance with its
terms.
(b) The
Seller further represents and warrants to the Depositor that (i) immediately
prior to the sale thereof to the Depositor, the Seller owned the Underlying
Securities, had good and marketable title thereto, free and clear of any pledge,
lien, security interest, charge, claim, equity, or encumbrance of any kind,
and
upon the delivery or transfer of the Underlying Securities to the Depositor
as
contemplated herein, the Depositor will receive good and marketable title to
the
Underlying Securities, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind; (ii) neither the execution,
delivery nor performance by the Seller of this Agreement shall (A) conflict
with, result in any breach of or constitute a default (or an event which, with
the giving of notice or passage of time, or both, would constitute a default)
under any term or provision of the organizational documents of the Seller,
or
any material indenture, agreement, order, decree or other material instrument
to
which the Seller is party or by which the Seller is bound which materially
adversely affects the Seller’s ability to perform its obligations hereunder or
(B) violate any provision of any law, rule or regulation applicable to the
Seller of any regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties; and
(iii)
no consent, license, approval or authorization from, or registration or
qualification with any governmental body, agency or authority, nor any consent,
approval, waiver or notification of any creditor or lessor is required in
connection with the execution, delivery and performance by the Seller of this
Agreement except such as have been obtained and are in full force and
effect.
2
4. Non-Recourse.
Notwithstanding
anything to the contrary contained herein, no recourse shall be had, whether
by
levy or execution or otherwise, for the payment of the principal of or interest
or premium (if any) on the Underlying Securities, or for any claim based on
payments due thereon, against the Seller or any of its stockholders, directors,
officers, agents or employees under any rule of law, statute or constitution,
or
by the enforcement of any assessment or penalty, or otherwise, nor shall any
of
such persons be personally liable for any such amounts or claims, or liable
for
any defenses or judgment based thereon or with respect thereto; provided,
that
the foregoing shall not (i) constitute a waiver of any rights of the Depositor
against the Seller for breach of any representations or warranties contained
herein, or (ii) be taken to prevent recourse by the Depositor to, and the
enforcement of its rights against, the Underlying Securities or any issuer
thereof.
5. Amendments.
This
Agreement may not be modified, amended, altered or supplemented, except upon
the
execution and delivery of a written agreement by the parties
hereto.
6. Communications.
Except
as
may be otherwise agreed between the parties, all communications hereunder shall
be made in writing to the relevant party by personal delivery or by courier
or
first-class registered mail, or the closest local equivalent thereto, or by
facsimile transmission confirmed by personal delivery or by courier or
first-class registered mail as follows:
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To
the Seller:
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Xxxxxx
Brothers Holdings Inc.
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000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
Contract Finance
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Telephone
Number: (000) 000-0000
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Facsimile
Number: (000) 000-0000
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To
the Depositor:
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Structured
Asset Securities Corporation
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000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
MBS Finance
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Telephone
Number: (000) 000-0000
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Facsimile
Number: (000) 000-0000
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3
or
to
such other address, telephone number or facsimile number as either party may
notify to the other in accordance with the terms hereof from time to time.
Any
communications hereunder shall be effective upon receipt.
7. Successors.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns, and no other person
shall
have any right or obligation hereunder. Neither party may assign its rights
under this Agreement without the written consent of the other
party.
8. Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
9. Headings.
The
headings of the various Sections herein are for convenience of reference only
and shall not define or limit any of the terms or provisions
hereof.
10. Entire
Agreement.
This
Agreement embodies the entire agreement of the parties with respect to the
subject matter hereof and supersedes any prior written or oral agreement or
understanding relating to the subject matter hereof.
11. 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.
12. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall constitute one and the same
agreement.
4
Executed
as of the day and year first above written.
XXXXXX
BROTHERS HOLDINGS INC.
By:
/s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized
Signatory
STRUCTURED
ASSET SECURITIES
CORPORATION
By:
/s/
Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx
Xxxxxxx
Title:
Vice
President
ANNEX
A
SCHEDULE
OF UNDERLYING SECURITIES
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Series/Class
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Assumed
Outstanding
Principal
Balance
($)(1)
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Net
Coupon
(%)(1)
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Approximate
Market
Value
Percentage
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|||
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Xxxxxx
Mortgage Trust, Series 2006-9, Mortgage Pass-Through Certificates,
Class
2-A1
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257,802,804
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2.8625
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77
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(1)
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As
of June 2008.
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A-1
