LEHMAN BROTHERS HOLDINGS INC., SELLER and STRUCTURED ASSET SECURITIES CORPORATION, PURCHASER MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT Dated as of September 1, 2007 Lehman Mortgage Trust (Mortgage Pass-Through Certificates, Series 2007-9)
EXECUTION
XXXXXX
BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED
ASSET SECURITIES CORPORATION,
PURCHASER
Dated
as
of September 1, 2007
Xxxxxx
Mortgage Trust
(Mortgage
Pass-Through Certificates, Series 2007-9)
TABLE
OF
CONTENTS
Page
|
ARTICLE
I. CONVEYANCE OF MORTGAGE LOANS
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2
|
|
|
Section
1.01.
|
Sale
of Mortgage Loans.
|
2
|
|
Section
1.02.
|
Delivery
of Documents.
|
3
|
|
Section
1.03.
|
Review
of Documentation.
|
4
|
|
Section
1.04.
|
Representations
and Warranties of the Seller.
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4
|
|
Section
1.05.
|
Grant
Clause.
|
13
|
|
Section
1.06.
|
Assignment
by Depositor.
|
14
|
|
ARTICLE
II. MISCELLANEOUS PROVISIONS
|
14
|
|
|
Section
2.01.
|
Binding
Nature of Agreement; Assignment.
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14
|
|
Section
2.02.
|
Entire
Agreement.
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14
|
|
Section
2.03.
|
Amendment.
|
14
|
|
Section
2.04.
|
Governing
Law.
|
15
|
|
Section
2.05.
|
Severability
of Provisions.
|
15
|
|
Section
2.06.
|
Indulgences;
No Waivers.
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16
|
|
Section
2.07.
|
Headings
Not to Affect Interpretation.
|
16
|
|
Section
2.08.
|
Benefits
of Agreement.
|
16
|
|
Section
2.09.
|
Counterparts.
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16
|
SCHEDULES
|
SCHEDULE
A
|
Transferred
Mortgage Loan Schedule (including Prepayment Charge
Schedule)
|
|
SCHEDULE
B
|
Bank
Originated Mortgage Loan Schedule (including Prepayment Charge
Schedule)
|
|
EXHIBIT
A
|
Certain
Defined Terms
|
|
EXHIBIT
B
|
Form
of Terms Letter
|
This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT dated as of September 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 on Exhibit A attached hereto shall
have
the same meanings assigned to such terms in that certain trust agreement
dated
as of September 1, 2007 (the “Trust Agreement”), among the Depositor, Aurora
Loan Services LLC, as master servicer (the “Master Servicer”) and Xxxxx Fargo
Bank, N.A., 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 “Bank Transfer
Agreement” and collectively, the “Transfer Agreements”), has purchased or
received from certain transferors identified below (each, a “Bank Transferor”
and collectively, the “Transferors”) certain mortgage loans, each identified on
the Mortgage Loan Schedule attached hereto as part of Schedule A (the
“Transferred Mortgage Loans”):
1. Flow
Mortgage Loan Purchase and Warranties Agreement by and between Xxxxxx Brothers
Bank, FSB and Pinnacle Financial Corporation dated as of February 12, 2004
and
amended as of October 15, 2004, December 15, 2004 and April 9, 2007.
2. Amended
and Restated Flow Mortgage Loan Purchase and Warranties Agreement by and
between
Xxxxxx Brothers Bank, FSB and Greenpoint Mortgage Funding, Inc. dated as
of
February 1, 2007.
3. Amended
and Restated Flow Mortgage Loan Purchase, Warranties and Servicing Agreement
by
and between Xxxxxx Brothers Bank, FSB and Greenpoint Mortgage Funding, Inc.
dated as of January 1, 2007.
4.
Assignment, Assumption and Recognition Agreement dated as of March 29,
2007, by
and among the Bank, Sovereign Bank, FSB and PHH Mortgage
Corporation.
5.
Mortgage Loan Purchase and Warranties Agreement by and between the Bank
and
Sovereign Bank, FSB dated as of March 29, 2007.
WHEREAS,
in addition to the Transferred Mortgage Loans, the Bank has directly
underwritten and funded certain mortgage loans or otherwise purchased certain
mortgage loans from correspondents identified on the Mortgage Loan Schedule
attached hereto as Schedule B (the “Bank Originated Mortgage Loans,” and
together with the Transferred Mortgage Loans, the “Mortgage
Loans”);
WHEREAS,
pursuant to (i) an assignment and assumption agreement (the “Assignment and
Assumption Agreement”) dated as of September 1, 2007, between the Bank, as
assignor, and the Seller, as assignee, and (ii) certain bills of sale between
the Bank and the Seller, the Bank has assigned all of its right, title and
interest in and to the Transfer Agreements and related Mortgage Loans as
listed
on Schedule A, in the case of the Transferred Mortgage Loans, or Schedule
B, in
the case of the Bank 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 (each, a “Servicing
Agreement,” and collectively, the “Servicing Agreements”) pursuant to which the
Mortgage Loans are serviced by the various servicers (each, a “Servicer,” and
collectively, the “Servicers”):
1. Servicing
Agreement dated as of September 1, 2007, by and among Holdings, as seller,
and
Aurora Loan Services LLC, in its capacity as Servicer and its capacity as
Master
Servicer, and as acknowledged by the Trustee; and
2. Reconstituted
Servicing Agreement dated as of September 1, 2007, by and between Holdings,
as
seller and PHH Mortgage Corporation, as Servicer, and as acknowledged by
the
Master Servicer and the Trustee.
WHEREAS,
the Seller desires to sell, without recourse, all of its rights, title and
interest in and to the Mortgage Loans to the Depositor, to 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 to 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 of this
Agreement, all the right, title and interest of the Seller in and to the
Mortgage Loans identified on Schedules A and Schedule B hereto, having an
approximate aggregate principal balance as of the Cut-off Date of
$312,489,332.77. Such conveyances include, 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 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.
2
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
(except for any rights against the related Transferor with respect to first
payment date defaults or early payment date defaults) and each 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 each Transfer Agreement
(any such document an “Assignment Agreement”) and that this Agreement
constitutes an Assignment Agreement under each Transfer Agreement, and the
Depositor hereby assumes the obligations of the assignee under each such
Assignment Agreement. Concurrently with the execution hereof, the Depositor
tenders the purchase price set forth in that certain Terms Letter dated as
of
the date hereof, a 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 the related Transfer
Agreement and each Servicing Agreement, other than any servicing rights
thereunder, as if the Depositor had been a party to each such
agreement.
(b) Schedules
of Mortgage Loans. The
Depositor and the Seller have agreed upon which of the Mortgage Loans owned
by
the Seller are to be purchased by the Depositor pursuant to this Agreement
and
the Seller will prepare on or prior to the Closing Date a final schedule
describing such Mortgage Loans (the “Mortgage Loan Schedule”). The Mortgage Loan
Schedule shall conform to the requirements of the Depositor as set forth
in this
Agreement and to the definition of “Mortgage Loan Schedule” under the Trust
Agreement. The Mortgage Loan 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
Bank Originated 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 account maintained by the applicable Servicer for such purpose have been
so
deposited.
3
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,
Xxxxx
Fargo Bank, N.A. and U.S. Bank National Association, as the custodians (each,
a
“Custodian” and together, 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;
(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;
4
(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)(xi)¸(xii),
(xiii), (xiv), (xv) 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)(xi)¸(xii), (xiii), (xiv), (xv) 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
those representations and warranties made pursuant to Sections
1.04(b)(xi)¸(xii), (xiii), (xiv), (xv) and (xvii)) are applicable only to facts,
conditions or events that do not constitute a breach of any representation
or
warranty made by the related Transferor in the applicable Transfer Agreement.
The Seller shall have no obligation or liability with respect to any breach
of a
representation or warranty made by it with respect to the Transferred Mortgage
Loans (except in the case of those representations and warranties made by
it
pursuant to 1.04(b)(xi)¸(xii), (xiii), (xiv), (xv) 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.
5
Subject
to the foregoing, the Seller represents and warrants upon delivery of the
Transferred Mortgage Loans to the Depositor hereunder, as to each, that,
as of
the Closing Date:
(i) The
information set forth with respect to the Transferred Mortgage Loans on the
Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage
Loans, and the information with respect to each Transferred Mortgage Loan
on the
Mortgage Loan Schedule is true and correct in all material respects at the
date
or dates respecting which such information is given;
(ii) There
are
no defaults (other than delinquency in payment) in complying with the terms
of
any Mortgage, and the Seller has no notice as to any taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing but which
have
not been paid;
(iii) Except
in
the case of Cooperative Loans, if any, each Mortgage requires all buildings
or
other improvements on the related Mortgaged Property to be insured by a
generally acceptable insurer against loss by fire, hazards of 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;
6
(v) Each
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;
(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 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;
7
(viii) To
the
best of the Seller’s knowledge, no foreclosure action is being threatened or
commenced with respect to any Transferred Mortgage Loan. There is no proceeding
pending for the total or partial condemnation of any Mortgaged Property (or,
in
the case of any Cooperative Loan, the related cooperative unit) and each
such
property is undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty, so as to have a material adverse effect
on the
value of the related Mortgaged Property as security for the related Transferred
Mortgage Loan or the use for which the premises were intended;
(ix) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under the law could give
rise to
such liens) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(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 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;
(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. 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);
(xiv) 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;
(xv) There
is
no Mortgage Loan in the Trust Fund that was originated on or after October
1,
2002 through March 6, 2003, which is a “high cost home loan” as defined under
the Georgia Fair Lending Act;
8
(xvi) [Reserved];
and
(xvii) 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).
(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 Bank Originated
Mortgage Loans as of the Closing Date, the Seller hereby further represents
and
warrants to the Depositor upon the delivery to the Depositor on the Closing
Date
of any Bank Originated Mortgage Loans, but solely as to each Bank Originated
Mortgage Loan, that, as of the Closing Date:
(i) With
respect to any hazard insurance policy covering a Bank Originated Mortgage
Loan
and the related Mortgaged Property, the Seller has not engaged in, and has
no
knowledge of the Bank’s or the borrower’s having engaged in, any act or omission
which would impair the coverage of any such policy, the benefits of the
endorsement provided for therein, or the validity and binding effect of either,
including without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and
no
such unlawful items have been received, retained or realized by the
Seller;
(ii) Neither
the Seller nor the Bank has waived the performance by the borrower of any
action, if the Mortgagor’s failure to perform such action would cause a Bank
Originated Mortgage Loan to be in default, nor has the Seller or the Bank
waived
any default resulting from any action or inaction by the borrower;
(iii) The
terms
of the Mortgage Note and Mortgage have not been impaired, waived, altered
or
modified in any respect, except by a written instrument which has been recorded,
if necessary to protect the interests of the Depositor and which has been
delivered to the Custodian;
(iv) The
Mortgaged Property relating to each Bank Originated Mortgage Loan is a fee
simple property (or in the case of certain property situated in Hawaii, property
held under long-term residential lease) 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, an individual
unit in a planned unit development or shares issued by cooperative housing
corporations and related leasehold interests; 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;
9
(v) The
Mortgage Note and the Mortgage are genuine, and each is the legal, valid
and
binding obligation of the maker thereof enforceable in accordance with its
terms. All parties to the Mortgage Note and the Mortgage and any other related
agreement had legal capacity to enter into the Bank Originated Mortgage Loan
and
to execute and deliver the Mortgage Note and the Mortgage and any other related
agreement, and the Mortgage Note and the Mortgage have been duly and properly
executed by such parties. To the best of Seller’s knowledge, no fraud was
committed in connection with the origination of the Bank Originated Mortgage
Loan;
(vi) Each
Bank
Originated Mortgage Loan has been closed and the proceeds of the Bank Originated
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder, and any and all requirements as to completion of any
on-site or off-site improvement and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses incurred in
making or closing the Bank Originated Mortgage Loan and the recording of
the
Mortgage were paid, and the borrower is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(vii) There
is
no default (other than delinquency in payment), breach, violation or event
of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any
grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and neither the Seller nor its predecessors has waived any
default, breach, violation or event of acceleration;
(viii) All
improvements which were considered in determining the Appraised Value of
the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being
part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(ix) Each
Mortgage contains customary and enforceable provisions which render the rights
and remedies of the holder thereof adequate for the realization against the
related Mortgaged Property of the benefits of the security, including (A)
in the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (B)
otherwise by judicial or non-judicial foreclosure. There is no homestead
or
other exemption available to the related Mortgagor which would materially
interfere with the right to sell the Mortgaged Property at a trustee’s sale or
the right to foreclose the Mortgage subject to the applicable federal and
state
laws and judicial precedent with respect to bankruptcy and rights of redemption.
Upon default by a Mortgagor on a Bank Originated Mortgage Loan and foreclosure
on, or trustee’s sale of, the Mortgaged Property pursuant to the proper
procedures, the holder of the Bank Originated Mortgage Loan will be able
to
deliver good and merchantable title to the property;
10
(x) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage;
(xi) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the Depositor to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(xii) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered for the Bank Originated Mortgage Loan by the Seller
under this Agreement as set forth in Section 1.02 hereof have been delivered
to
the related Custodian. The Seller is in possession of a complete Mortgage
File
in compliance with Section 1.02 hereof, except for such documents the originals
of which have been delivered to the 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 Bank Originated Mortgage Loan in the
event that the Mortgaged Property is sold or transferred without the prior
written consent of the Mortgagee thereunder;
(xv) No
Bank
Originated Mortgage Loan contains provisions pursuant to which Monthly Payments
are paid or partially paid with funds deposited in any separate account
established by the Mortgagor or anyone on behalf of the Mortgagor, or paid
by
any source other than the Mortgagor, nor does any Bank Originated Mortgage
Loan
contain any other similar provisions currently in effect which may constitute
a
“buydown” provision. No Bank Originated Mortgage Loan is a graduated payment
mortgage loan and no Bank Originated Mortgage Loan has a shared appreciation
or
other contingent interest feature;
(xvi) Any
future advances made prior to the Cut-off Date have been consolidated with
the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment
term.
The lien of the Mortgage securing the consolidated principal amount is expressly
insured as having first lien priority 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 Bank
Originated Mortgage Loan;
(xvii) The
origination and collection practices used with respect to each Bank 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. Any interest
required to be paid pursuant to state and local law has been properly paid
and
credited;
11
(xviii) The
Mortgage File contains an appraisal of the related Mortgage Property signed
prior to the approval of the Bank Originated Mortgage Loan application by
a
qualified appraiser, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof; and whose compensation
is
not affected by the approval or disapproval of the Bank Originated Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Title
XI
of the Federal Institutions Reform, Recovery, and Enforcement Act of 1989
and
the regulations promulgated thereunder, all as in effect on the date the
Bank
Originated Mortgage Loan was originated;
(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) [Reserved];
(xxii) No
Bank
Originated Mortgage Loan was made in connection with (i) the construction
or
rehabilitation of a Mortgaged Property or (ii) facilitating the trade-in
or
exchange of a Mortgaged Property;
(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
12
(xxiv) Each
original Mortgage was recorded and, except for those Bank Originated Mortgage
Loans subject to the MERS identification system, all subsequent assignments
of
the original Mortgage (other than the assignment to the Depositor) have been
recorded in the appropriate jurisdictions wherein such recordation is necessary
to perfect the liens thereof as against creditors of the Seller, or are in
the
process of being recorded.
(d) With
respect to any of the foregoing representations and warranties made in
subparagraphs (xi)¸(xii), (xiii), (xiv), (xv) 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
(xvi) under Section 1.04(b)), that adversely and materially affects the value
of
the related Mortgage Loan and that does not also constitute a breach of a
representation or warranty of a Transferor in the related Transfer Agreement,
the party discovering such breach shall give prompt written notice to the
other
party; provided,
however,
that
notwithstanding anything to the contrary herein, this paragraph shall be
specifically applicable to a breach by the Seller of the representations
made
pursuant to subparagraphs (xi)¸(xii), (xiii), (xiv), (xv) 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 (c) within the two-year period following the Closing Date substitute a
Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
Notwithstanding
the immediately preceding paragraph, in connection with the Seller’s
representations and warranties made in subparagraph (xvi) of Section 1.04(b)
and
within 90 days of the earlier of discovery by the Seller or receipt of notice
from the applicable Servicer of a breach of such representation and warranty
by
the Seller, which breach materially and adversely affects the interests of
the
Class P1 and Class P2 Certificateholders in respect of 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 (xvi) of Section
1.04(b)), pay, at the time of such Principal Prepayment or change in law,
the
amount of the scheduled Prepayment Charge, for the benefit of the holders
of the
Class P1 and Class P2 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.
13
It
is
intended that the conveyance of the
Seller’s
right,
title and interest in and to the Mortgage Loans and other rights or property
conveyed pursuant to this Agreement on the Closing Date shall constitute,
and
shall be construed as, a sale of such rights or 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: (1) the rights and obligations
of
the parties shall be established pursuant to the terms of this Agreement;
(2)
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 (3) 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.
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).
14
(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.
(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.
15
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.
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.
16
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/
Xxxxx Kiernan__________
Name:
Xxxxx X. Xxxxxxx
Title:
Authorized Signatory
STRUCTURED
ASSET SECURITIES
CORPORATION,
as
Purchaser
By:
_/s/
Xxxxxxx Hitzmann______
Name:
Xxxxxxx Xxxxxxxx
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 “LMT 2007-9 Mortgage Loan
Schedules” at the Washington, DC offices of XxXxx Xxxxxx LLP]
SCHEDULE
B
BANK
ORIGINATED MORTGAGE LOANS
MORTGAGE
LOAN SCHEDULE
(including
Prepayment Charge Schedules and Prepayment Charge Summary)
[To
be
retained in a separate closing binder entitled “LMT 2007-9 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 applicable Servicing
Agreement.
EXHIBIT
B
FORM
OF
TERMS LETTER
September
1, 2007
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
Xxxxxx
Mortgage Trust
|
|
Mortgage-Backed
Certificates, Series 2007-9
|
Ladies
and Gentlemen:
This
letter (the “Terms Letter”) is made in accordance with the Mortgage Loan Sale
and Assignment Agreement, dated as of September 1, 2007 (the “Mortgage Loans
Sale Agreement”), between Structured Asset Securities Corporation and Xxxxxx
Brothers Holdings Inc. Capitalized terms used but not defined herein shall
have
the meanings set forth in the Mortgage Loan Sale Agreement.
The
Purchase Price shall be $[ ].
This
Terms Letter may be signed in any number of counterparts, each of which shall
be
deemed to be an original, but taken together, shall constitute a single
document.
[Remainder
of page intentionally left blank]
Please
acknowledge your agreement with the foregoing by signing and returning the
enclosed copy of this Terms Letter to the undersigned.
Very
truly yours,
XXXXXX
BROTHERS HOLDINGS INC.
By:/s/
Xxxxx V Kiernan_________
Name:
Xxxxx X. Xxxxxxx
Title:
Authorized Signatory
Acknowledged
and Agreed:
STRUCTURED
ASSET SECURITIES
CORPORATION
By: /s/
Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Senior Vice President
