LEHMAN BROTHERS HOLDINGS INC., SELLER and STRUCTURED ASSET SECURITIES CORPORATION, PURCHASER MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT Dated as of August 1, 2006 Structured Asset Securities Corporation (Mortgage Pass-Through Certificates, Series...
XXXXXX
BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED
ASSET SECURITIES CORPORATION,
PURCHASER
Dated
as
of August 1, 2006
Structured
Asset Securities Corporation
(Mortgage
Pass-Through Certificates, Series 2006-S3)
TABLE
OF
CONTENTS
Page
ARTICLE
I
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CONVEYANCE
OF MORTGAGE LOANS
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Section
1.01.
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Sale
of Mortgage Loans.
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2
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Section
1.02.
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Delivery
of Documents.
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3
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Section
1.03.
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Review
of Documentation.
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3
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Section
1.04.
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Representations
and Warranties of the Seller.
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3
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Section
1.05.
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Grant
Clause.
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11
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Section
1.06.
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Assignment
by Depositor.
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11
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ARTICLE
II
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MISCELLANEOUS
PROVISIONS
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Section
2.01.
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Binding
Nature of Agreement; Assignment.
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11
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Section
2.02.
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Entire
Agreement.
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11
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Section
2.03.
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Amendment.
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12
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Section
2.04.
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Governing
Law.
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13
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Section
2.05.
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Severability
of Provisions.
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13
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Section
2.06.
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Indulgences;
No Waivers.
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13
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Section
2.07.
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Headings
Not to Affect Interpretation.
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13
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Section
2.08.
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Benefits
of Agreement.
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13
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Section
2.09.
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Counterparts.
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13
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SCHEDULES
AND EXHIBITS
SCHEDULE
A
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Mortgage
Loan Schedule (including Prepayment Charge Schedule)
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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 August 1, 2006 (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 used but 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 August 1, 2006, among the
Depositor, Aurora Loan Services LLC, as master servicer (“Aurora” or the “Master
Servicer”), Xxxxxxx Fixed Income Services Inc., as credit risk manager, and
Citibank, N.A., as trustee (the “Trustee”).
WITNESSETH:
WHEREAS,
Xxxxxx Brothers Bank, FSB (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 A (the “Mortgage Loans”);
WHEREAS,
pursuant to an assignment and assumption agreement (the “Assignment and
Assumption Agreement”) dated as of August 1, 2006, between the Bank, as
assignor, and LBH, as assignee, the Bank has assigned all of its right, title
and interest in and to the Mortgage Loans as listed on Schedule A, together
with
its rights under the Flow Servicing Agreement by and between Xxxxxx Brothers
Bank, FSB and Aurora Loan Services LLC (as successor in interest to Aurora
Loan
Services Inc.) dated as of August 31, 1999.
WHEREAS,
LBH is a party to the following servicing agreement (the “Servicing Agreement”)
pursuant to which the Mortgage Loans will be serviced by the servicer (the
“Servicer”):
1.
|
Servicing
Agreement dated as of August 1, 2006, between Aurora Loan Services
LLC, in
the dual capacities of Servicer and Master Servicer, and the
Seller;
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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, assign all of its rights and interest
under the Servicing Agreement with respect to such Mortgage Loans 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:
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-1 and A-2 hereto, having an aggregate principal balance as of the
Cut-off Date of $439,856,690.61. Such conveyance includes, without limitation,
the right to all distributions of principal and interest received on or with
respect to the Mortgage Loans on or after the Cut-off Date, other than payments
of 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 and 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 the Servicing Agreement,
other than 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 the Servicing
Agreement (any such document, an “Assignment Agreement”) and that this Agreement
constitutes an Assignment Agreement under such Servicing 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, a form of which is attached hereto as Exhibit B (the “Purchase
Price”). The Depositor hereby accepts such assignment and delegation, and shall
be entitled to exercise all the rights of the Seller under the 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”), attached as
Schedule A hereto. 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.
2
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 Servicing
Agreement.
(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 LaSalle Bank National Association and
U.S. Bank National Association, as custodians (each, a “Custodian,” and
collectively, the “Custodians”) for the applicable Mortgage Loans 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;
3
(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;
(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
Seller represents and warrants upon delivery of the Mortgage Loans to the
Depositor hereunder, as to each, that, as of the Closing Date:
(i) The
information set forth with respect to the Mortgage Loans on the Mortgage Loan
Schedule provides an accurate listing of the Mortgage Loans, and the information
with respect to each 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) [Reserved];
(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;
4
(v) Each
Mortgage evidences a valid, subsisting, enforceable and perfected junior lien
on
the related Mortgaged Property (including all improvements on the Mortgaged
Property). The lien of the Mortgage is subject to: (1) senior liens of such
Mortgage, (2) 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, (3) 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
(4) 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 Mortgage Loan establishes a valid, subsisting and
enforceable second lien on the property described therein and the Depositor
has
full right to sell and assign the same to the Trustee;
(vi) Immediately
prior to the transfer and assignment of the Mortgage Loans to the Depositor,
the
Seller was the sole owner of record and holder of each Mortgage Loan, and the
Seller had good and marketable title thereto, and has full right to transfer
and
sell each 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 Mortgage Loan pursuant to this Agreement;
(vii) [Reserved];
(viii) No
foreclosure action is being threatened or commenced with respect to any Mortgage
Loan. There is no proceeding pending for the total or partial condemnation
of
any Mortgaged Property 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 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;
(x) Each
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
Mortgage Loan will have a CLTV of 100% or less as of the Closing
Date;
5
(xii) Each
Mortgage Loan that is secured by residential real property (or a leasehold
interest therein) has a loan-to-value ratio of 100% or less (by Scheduled
Principal Balance as of the Cut-off Date). Each Mortgage Loan is a “qualified
mortgage” within the meaning of Section 860G of the Code and Treas. Reg.
§1.860G-2;
(xiii) Each
Mortgage Loan at the time it was originated, complied in all material respects
with applicable local, state and federal laws, including, but not limited to,
all applicable local, state and federal predatory and abusive lending laws;
and,
specifically, (a) no 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
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
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
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.);
(xiv) No
Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such
terms are defined in the then current Standard & Poor’s LEVELSâ
Glossary, Appendix E. In addition, no 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
Mortgage Loan was originated (or modified) on or after October 1, 2002 through
March 6, 2003 which is secured by a mortgaged property located in
Georgia;
(xvi) No
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) (“HOEPA”) or any comparable state law; and
(xvii) 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).
(c) In
addition to the representations and warranties set forth in Section 1.04(b),
the
Seller hereby further represents and warrants to the Depositor upon the delivery
to the Depositor on the Closing Date of any Mortgage Loans, but solely as to
each Mortgage Loan, that, as of the Closing Date:
6
(i) With
respect to any hazard insurance policy covering a 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 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 related Custodian;
(iv) The
Mortgaged Property relating to each 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 Mae 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 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 Mortgage Loan;
(vi) Each
Mortgage Loan has been closed and the proceeds of the 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 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;
7
(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;
(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 Mortgage Loan and foreclosure on, or trustee’s
sale of, the Mortgaged Property pursuant to the proper procedures, the holder
of
the 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 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;
8
(xiv) The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the Mortgagee thereunder;
(xv) No
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 Mortgage Loan contain any other similar provisions
currently in effect which may constitute a “buydown” provision. No Mortgage Loan
is a graduated payment mortgage loan and no 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
Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does not exceed
the original principal amount of any Mortgage Loan;
(xvii) The
origination and collection practices used with respect to each 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 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 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 Mortgage Loan was
originated;
(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;
9
(xx) The
Mortgage Loan does not contain a provision permitting or requiring conversion
to
a fixed interest rate Mortgage Loan;
(xxi) No
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 Primary Mortgage Insurance policy,
special hazard insurance policy, 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
(xxiii) Each
original Mortgage was recorded and, except for those 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 (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.
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 (excluding a breach of subparagraph
(xvii) under Section 1.04(b)) that adversely and materially affects the value
of
the related Mortgage Loan, 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) and (xvi) of Section 1.04(b).
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 (c) within the two-year period following the Closing Date,
substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage
Loan.
10
Notwithstanding
the second paragraph of Section 1.04(b), in connection with the Seller’s
representations and warranties made in subparagraph (xvii) of Section 1.04(b),
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 (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.
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 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 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.
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.
11
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
⅔% 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.
(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.
12
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.
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 enjoy the full benefit
of the provisions of this Agreement as an intended third party beneficiary;
provided,
however,
that
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.
13
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.
14
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 X. Hitzmann_____
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Authorized Signatory
STRUCTURED
ASSET SECURITIES
CORPORATION,
as purchaser
By:
_______/s/
Xxxxx X. Kiernan_________
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
(including
Prepayment Charge Schedules and
Prepayment
Charge Summary)
[To
be
retained in a separate closing binder entitled “SASCO 2006-S3 Mortgage Loan
Schedules” at the Washington, D.C. office 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 at
Exhibit A (broken down into the Mortgage Loan Schedules included at Exhibit
A-1
and Exhibit A-2) (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
________________,
2006
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Re:
|
Structured
Asset Securities Corporation
Mortgage
Pass-Through Certificates, Series
2006-S3
|
Ladies
and Gentlemen:
This
letter (the “Terms Letter”) is made in accordance with the Mortgage Loan Sale
and Assignment Agreement dated as of August 1, 2006 (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 X.
Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
Acknowledged
and Agreed:
STRUCTURED
ASSET SECURITIES
CORPORATION
By: /s/
Xxxxx X.
Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President