PURCHASE AGREEMENT Dated as of October 24, 2007 between EMC MORTGAGE CORPORATION and STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. Bear Stearns Structured Products Inc. Trust 2007-R3, Grantor Trust Certificates, Series 2007-R3
Dated
as
of October 24, 2007
between
EMC
MORTGAGE CORPORATION
and
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
--------------------------------------------------------------------------------
Bear
Xxxxxxx Structured Products Inc. Trust 2007-R3,
Grantor
Trust Certificates,
Series
2007-R3
--------------------------------------------------------------------------------
This
PURCHASE AGREEMENT, dated as of October 24, 2007, as amended and supplemented
by
any and all amendments hereto (collectively, the "Agreement"), is by and between
EMC MORTGAGE CORPORATION, a Delaware corporation (the "Sponsor"), and STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC., a Delaware corporation (the
"Depositor").
Upon
the
terms and subject to the conditions of this Agreement, the Sponsor agrees to
sell and the Depositor agrees to purchase the mortgage pass-through certificates
described on Schedule A hereto (the "Underlying Securities"). The
Depositor intends to sell the Underlying Securities to Bear Xxxxxxx Structured
Products Inc. Trust 2007-R3 (the "Issuing Entity") and cause the issuance of
the
Grantor Trust Certificates, Series 2007-R3, under the Grantor Trust Agreement,
dated as of October 24, 2007 (the "Grantor Trust Agreement"), by and between
the
Depositor and Xxxxx Fargo Bank, N.A., as grantor trust trustee (the "Grantor
Trust Trustee").
Now,
therefore, in consideration of the premises and the mutual agreements set forth
herein, the parties hereto agree as follows:
SECTION
1. Conveyance of the Underlying Securities. The Sponsor hereby
agrees to transfer, assign, set over and otherwise convey to the Depositor,
on
October 24, 2007 (the "Closing Date"), all the right, title and interest of
the
Sponsor in and to the Underlying Securities identified on Schedule A attached
hereto, and the Depositor agrees to pay to the Sponsor the purchase price of
100% of the principal balance thereof. On the Closing Date, the
Sponsor shall cause the Underlying Securities to be transferred to the Grantor
Trust Trustee, as grantor trust trustee on behalf of Grantor Trust
Certificateholders (as defined in the Grantor Trust Agreement).
SECTION
2. Representations and Warranties Concerning the Sponsor. As
of the date hereof and as of the Closing Date, the Sponsor represents and
warrants to the Depositor as follows:
(a)
the
Sponsor is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware with full power and authority to carry
on its business as presently conducted by it. The Sponsor has the
full power and authority and legal right to own the Underlying Securities,
to
transfer and convey the Underlying Securities and to execute and deliver, engage
in the transactions contemplated by, and perform and observe the terms and
conditions of this Agreement;
(b)
the
execution and delivery by the Sponsor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Sponsor; and
neither the execution and delivery of this Agreement nor the consummation of
the
transactions herein contemplated, nor compliance with the provisions 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 Sponsor or its properties or the certificate of
incorporation or by-laws of the Sponsor;
(c)
the
execution, delivery and performance by the Sponsor of this Agreement and the
consummation of the transactions contemplated 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;
(d)
this
Agreement has been duly executed and delivered by the Sponsor and, assuming
due
authorization, execution and delivery by the Depositor, constitutes a valid
and
binding obligation of the Sponsor enforceable against it in accordance with
its
terms (subject to applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally and court
decisions with respect thereto);
(e)
there
are no actions, suits or proceedings pending or, to the knowledge of the
Sponsor, threatened or likely to be asserted against or affecting the Sponsor,
before or by any court, administrative agency, arbitrator or governmental body
(i) with respect to any of the transactions contemplated by this Agreement
or
(ii) with respect to any other matter which in the judgment of the Sponsor
will
be determined adversely to the Sponsor and will if determined adversely to
the
Sponsor materially and adversely affect the Sponsor’s ability to perform its
obligations under this Agreement; and the Sponsor is not in default with respect
to any order of any court, administrative agency, arbitrator or governmental
body so as to materially and adversely affect the transactions contemplated
by
this Agreement;
(f)
the
information set forth on Schedule A with respect to the Underlying Securities
is
true and correct; and
(g)
the
Sponsor purchased the Underlying Securities for value in good faith without
notice of adverse claim, has not granted, created, received notice of or become
aware of any adverse claim, lien, pledge, security interest or encumbrance
against the Underlying Securities, including without limitation, those arising
by operation of law which will not be released as of the Closing Date
(collectively, "Liens") and upon transfer of the Underlying Securities as
provided herein, the Depositor will acquire the Underlying Securities free
and
clear of any Liens.
SECTION
3. Representations and Warranties Concerning the Depositor. As
of the date hereof and as of the Closing Date, the Depositor represents and
warrants to the Sponsor as follows:
(a)
the
Depositor has full corporate power to own its property, to carry on its business
as presently conducted and to enter into and perform its obligations under
this
Agreement;
(b)
the
execution and delivery by the Depositor of this Agreement have been duly
authorized by all necessary corporate action on the part of the Depositor;
and
neither the execution and delivery of this Agreement, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions 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 Depositor or its properties or the certificate of
incorporation or by-laws of the Depositor;
(c)
the
execution, delivery and performance by the Depositor of this Agreement and
the
consummation of the transactions contemplated 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;
(d)
this
Agreement has been duly executed and delivered by the Depositor and, assuming
due authorization, execution and delivery by the Sponsor, constitutes a valid
and binding obligation of the Depositor enforceable against it in accordance
with its terms (subject to applicable bankruptcy and insolvency laws and other
similar laws affecting the enforcement of the rights of creditors generally
and
court decisions with respect thereto); and
(e)
there
are no actions, suits or proceedings pending or, to the knowledge of the
Depositor, threatened or likely to be asserted against or affecting the
Depositor, before or by any court, administrative agency, arbitrator or
governmental body (i) with respect to any of the transactions contemplated
by
this Agreement or (ii) with respect to any other matter which in the judgment
of
the Depositor will be determined adversely to the Depositor and will if
determined adversely to the Depositor materially and adversely affect the
Depositor’s ability to perform its obligations under this Agreement; and the
Depositor is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to materially
and
adversely affect the transactions contemplated by this Agreement.
SECTION
4. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the
parties hereto or their officers set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or
statement as to the result thereof, made by or on behalf of the Sponsor or
the
Depositor, as the case may be, or any of their officers or directors or any
controlling person and will survive delivery of and payment for the Underlying
Securities and any termination of this Agreement.
SECTION
5. Notices. All communications hereunder will be in writing, and, if sent
to the Sponsor, will be mailed, delivered or telegraphed and confirmed to it
at
EMC Mortgage Corporation, 0000 Xxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxx 00000,
(Telecopy: (000) 000-0000), attention: General Counsel; or if sent to the
Depositor, will be mailed, delivered or telegraphed and confirmed to it at
Structured Asset Mortgage Investments II Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx
Xxxx 00000 (Telecopy: (000) 000-0000), Attention: Xxxxx Xxxxxxxxxxx; or to
any
other address as may hereafter be furnished by one party to the other party
by
like notice. Any such demand, notice or communication hereunder shall be deemed
to have been received on the date received at the premises of the addressee
(as
evidenced, in the case of registered or certified mail, by the date noted on
the
return receipt) provided that it is received on a business day during normal
business hours and, if received after normal business hours, then it shall
be
deemed to be received on the next business day
SECTION
6. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and their
officers and directors and controlling persons, and no other person will have
any rights or obligations hereunder. No party to this Agreement may
assign any rights or obligations hereunder without the prior written consent
of
the other party.
SECTION
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF THE NEW
YORK
GENERAL OBLIGATIONS LAW.
SECTION
8. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which, taken
together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date hereof.
|
EMC
MORTGAGE CORPORATION,
Sponsor
|
|
|
By:
|
/s/ Xxxxxxxxxx Xxxxxx |
|
Name:
|
Xxxxxxxxxx Xxxxxx |
|
Title:
|
Senior Vice President |
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.,
Depositor
|
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx, Xx. |
|
Name:
|
Xxxxxx X. Xxxxxxxxx, Xx. |
|
Title:
|
Vice President |
SCHEDULE
A
UNDERLYING
SECURITIES
|
Full
Name of Series
|
Initial
and Current Principal Balance
|
Principal
Balance Included in Trust
|
Class
% of Current Principal Balance Sold under this
Agreement
|
|
Structured
Asset Mortgage Investments II Trust 2007-AR7, Mortgage Pass-Through
Certificates, Series 2007-AR7, Class III-A-2 Certificates
|
$10,759,000
|
$10,759,000
|
100.00%
|
|
Structured
Asset Mortgage Investments II Trust 2007-AR7, Mortgage Pass-Through
Certificates, Series 2007-AR7, Class A-4 Certificates
|
$134,917,000
|
$14,000,000
|
10.3768%
|
