LEHMAN BROTHERS HOLDINGS INC., SELLER and STRUCTURED ASSET SECURITIES CORPORATION, PURCHASER MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT Dated as of April 1, 2007 Structured Asset Securities Corporation Mortgage Pass-Through Certificates, Series 2007-EQ1
EXECUTION
XXXXXX
BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED
ASSET SECURITIES CORPORATION,
PURCHASER
Dated as
of April 1, 2007
Structured
Asset Securities Corporation
Mortgage
Pass-Through Certificates, Series 2007-EQ1
TABLE OF
CONTENTS
Page
|
ARTICLE
I. CONVEYANCE OF MORTGAGE LOANS |
2 | |
|
Section
1.01. |
Sale
of Mortgage Loans. |
2 |
|
Section
1.02. |
Delivery
of Documents. |
3 |
|
Section
1.03. |
Review
of Documentation. |
3 |
|
Section
1.04. |
Representations
and Warranties of the Seller. |
4 |
|
Section
1.05. |
Grant
Clause. |
12 |
|
Section
1.06. |
Assignment
by Depositor. |
12 |
|
ARTICLE
II. MISCELLANEOUS PROVISIONS |
12 | |
|
Section
2.01. |
Binding
Nature of Agreement; Assignment. |
12 |
|
Section
2.02. |
Entire
Agreement. |
12 |
|
Section
2.03. |
Amendment. |
13 |
|
Section
2.04. |
Governing
Law. |
14 |
|
Section
2.05. |
Severability
of Provisions. |
14 |
|
Section
2.06. |
Indulgences;
No Waivers. |
14 |
|
Section
2.07. |
Headings
Not to Affect Interpretation. |
14 |
|
Section
2.08. |
Benefits
of Agreement. |
14 |
|
Section
2.09. |
Counterparts. |
14 |
|
SCHEDULE
A
|
Mortgage
Loan Schedule (including Prepayment Charge Schedule)
|
|
SCHEDULE
B
|
Schedule
of First Payment Default Mortgage Loans
|
|
EXHIBIT
A
|
Certain
Defined Terms
|
|
EXHIBIT
B
|
Form
of Terms Letter
|
i
This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT dated as of April 1, 2007 (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 April 1, 2007, among the
Depositor, Aurora Loan Services LLC, as master servicer (the "Master Servicer"),
Xxxxxxx Fixed Income Services Inc., as credit risk manager, Xxxxx Fargo Bank,
N.A., as securities administrator, and U.S. Bank National Association, as
trustee (the "Trustee").
WITNESSETH:
WHEREAS,
Xxxxxx Brothers Bank, FSB (the "Bank"), pursuant to (A) the Amended and Restated
Flow Mortgage Loan Purchase and Warranties Agreement by and among the Bank, as
purchaser, Equifirst Corporation and Equifirst Mortgage Corporation of Minnesota
(together, the "Transferors"), dated as of February 1, 2006 (the "Transfer
Agreement") and (B) the Term Sheet dated January 3, 2007 and the Term Sheet
Group No. 2007-1-RMS dated as of January 29, 2007, each between the Bank and
Equfirst Corporation (the "Term Sheet") has purchased or received from the
Transferors certain mortgage loans, each 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 April 1, 2007, between the Bank, as assignor,
and LBH, as assignee, the Bank has assigned all of its right, title and interest
in and to the Transfer Agreement, and certain of its rights (as described below)
under the Term Sheet, and the related Mortgage Loans as listed on Schedule A, to
LBH and LBH has accepted the rights and benefits of, and assumed any obligations
of the Bank under, the Transfer Agreement and the Term Sheet;
WHEREAS,
LBH is a party to the following servicing agreements (collectively, the
"Servicing Agreements") pursuant to which the Mortgage Loans are to be initially
serviced by certain servicers as indicated below (each, a "Servicer," and
collectively, the "Servicers"):
1. Securitization
Subservicing Agreement dated as of April 1, 2007 between LBH, as seller, and
Xxxxx Fargo Bank, N.A., as servicer, as acknowledged by the Master Servicer and
the Trustee; and
2. Securitization
Servicing Agreement dated as of April 1, 2007 among LBH, as seller, HomEq
Servicing, as servicer, the Master Servicer, as acknowledged by 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, assign all of its rights
and interest under the Transfer Agreement, the Term Sheet and the Servicing
Agreements (other than any servicing rights) relating to the Mortgage Loans
referred to above, 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 the 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;
1
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 Schedule A
hereto, having an aggregate principal balance as of the Cut-off Date of
$641,487,026. Such conveyance includes, without limitation, the right to all
distributions of principal and interest received on or with respect to the
Mortgage Loans on and after the Cut-off Date, other than payments of 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.
Concurrently
with the execution and delivery of this Agreement, the Seller hereby assigns to
the Depositor all of its rights and interest under the Transfer Agreement
(except for any rights against the Transferors with respect to (i) first payment
date defaults or early payment date defaults or (ii) reimbursement of any amount
in excess of the Purchase Price for a breach of a representation or warranty;
provided,
however, that the
Seller hereby assigns to the Depositor all of its rights and interest against
the Transferors with respect to first payment date defaults or early payment
date defaults on the Mortgage Loans set forth in Schedule B hereto (the "First
Payment Default Mortgage Loans"), assigned to the Seller as provided for
pursuant to the Term Sheet) and the Servicing Agreements, 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 Transfer Agreement
(any such document, an "Assignment Agreement") and that this Agreement
constitutes an Assignment Agreement under the 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, the form of which is attached as Exhibit B hereto (the
"Purchase Price"). The Depositor hereby accepts such assignment and delegation,
and shall be entitled to exercise all the rights of the Seller under the
Transfer Agreement, the Servicing Agreements, other than any servicing rights
thereunder, and the Term Sheet, in each case as if the Depositor had been a
party to each such agreement.
2
(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 shall 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.
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 Transfer Agreement or
the Servicing Agreements.
(b) For
Mortgage Loans (if any) that have been prepaid in full on or after the Cut-off
Date and prior to the Closing Date, the Seller, in lieu of delivering the
related Mortgage Files, herewith delivers to the Depositor an Officer's
Certificate which shall include a statement to the effect that all amounts
received in connection with such prepayment that are required to be deposited in
the Collection Account maintained by the Master Servicer for such purpose have
been so deposited.
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 (the
"Custodian"), for the Depositor. The Custodian is required to review, within 45
days following the Closing Date, each applicable Mortgage File. If in the course
of such review the 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.
3
Section
1.04. Representations
and Warranties of the Seller.
(a) The
Seller hereby represents and warrants to the Depositor that as of the Closing
Date:
(i) the
Seller is a corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full corporate power
and authority to own its property, carry on its business as presently conducted
and enter into and perform its obligations under the Assignment and Assumption
Agreement and this Agreement;
(ii) the
execution and delivery by the Seller of the Assignment and Assumption Agreement
and this Agreement have been duly authorized by all necessary corporate action
on the part of the Seller; neither the execution and delivery of the Assignment
and Assumption Agreement or this Agreement, nor the consummation of the
transactions therein or herein contemplated, nor compliance with the provisions
thereof or hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Seller or its properties or the
certificate of incorporation or bylaws of the Seller;
(iii) the
execution, delivery and performance by the Seller of the Assignment and
Assumption Agreement and this Agreement and the consummation of the transactions
contemplated thereby and hereby do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other action in
respect of, any state, federal or other governmental authority or agency, except
such as has been obtained, given, effected or taken prior to the date
hereof;
(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.
4
(b) The
representations and warranties of the Transferors with respect to the Mortgage
Loans in the Transfer Agreement were made as of the date of the Transfer
Agreement. To the extent that any fact, condition or event with respect to a
Mortgage Loan constitutes a breach of both (i) a representation or warranty of
the Transferors under the 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 (except in the case of a breach by the Seller of the representations
made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and
(xviii) shall be the right to enforce the obligations of the Transferors under
any applicable representation or warranty made by them. The representations made
by the Seller pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and
(xviii) 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) (except in the case of those representations and warranties made
pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xviii)) are
applicable only to facts, conditions or events that do not constitute a breach
of any representation or warranty made by the Transferors in the 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 Mortgage
Loans (except in the case of those representations and warranties made by it
pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xviii) if
the fact, condition or event constituting such breach also constitutes a breach
of a representation or warranty made by the Transferors in the Transfer
Agreement, without regard to whether the Transferors fulfill their contractual
obligations in respect of such representation or warranty; provided,
however, that if
the Transferors fulfill their obligations under the provisions of the Transfer
Agreement by substituting for the affected Mortgage Loan a mortgage loan which
is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for
such substitute mortgage loan, provide the Depositor (a) with the applicable
Purchase Price for the affected Mortgage Loan or (b) within the two-year period
following the Closing Date, with a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan.
Subject
to the foregoing, the Seller represents and warrants upon delivery of the
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;
5
(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 Mortgage Loan, the Mortgaged Property was in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Flood Insurance Administration is in effect, which policy conforms to
the requirements of the current guidelines of the Federal Flood Insurance
Administration. Each Mortgage obligates the related Mortgagor thereunder to
maintain the hazard insurance policy at the Mortgagor's cost and expense, and on
the Mortgagor's failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor's cost and expense, and to
seek reimbursement therefor from the Mortgagor. Where required by state law or
regulation, each Mortgagor has been given an opportunity to choose the carrier
of the required hazard insurance, provided the policy is not a "master" or
"blanket" hazard insurance policy covering the common facilities of a planned
unit development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be in full
force and effect and inure to the benefit of the Depositor upon the consummation
of the transactions contemplated by this Agreement;
(iv) Each
Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or
rescission;
(v) In the
case of approximately 98.21% and 1.79% of the Mortgage Loans (by Scheduled
Principal Balance as of the Cut-off Date), the related Mortgage evidences a
valid, subsisting, enforceable and perfected first lien or second lien,
respectively, on the related Mortgaged Property (including all improvements on
the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the
first Mortgage, in the case of a Mortgaged Property that is secured by a
perfected second lien, (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 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 Mortgage Loan, 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. In the case of approximately 98.21% of the Mortgage Loans (by
Scheduled Principal Balance as of the Cut-off Date), 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 first lien on the property described therein and the Depositor has
full right to sell and assign the same to the Trustee;
6
(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) Each
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 Mortgage Loan, and its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount of the Mortgage
Loan (subject only to the exceptions described in paragraph (v) above). If the
Mortgaged Property is a condominium unit located in a state in which a title
insurer will generally issue an endorsement, then the related Title Insurance
Policy contains an endorsement insuring the validity of the creation of the
condominium form of ownership with respect to the project in which such unit is
located. With respect to any Title Insurance Policy, the originator is the sole
insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance
Policy is in full force and effect and will inure to the benefit of the
Depositor upon the consummation of the transactions contemplated by this
Agreement, no claims have been made under such mortgagee Title Insurance Policy
and no prior holder of the related Mortgage, including the Seller, has done, by
act or omission, anything that would impair the coverage of such mortgagee Title
Insurance Policy;
(viii) No
foreclosure action is being threatened or commenced with respect to any 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 Mortgage Loan or the use for which the premises were
intended;
7
(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) [Reserved]
(xi) Each
Mortgage Loan will have a CLTV of 100% or less as of the Closing
Date;
(xii) 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 made, complied in all material respects with
applicable local, state and federal laws, including, but not limited to, all
applicable predatory, abusive and fair lending laws; and, specifically, (a) no
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. 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 at the time of origination subject to the Home Ownership and
Equity Protection Act of 1994 (15 U.S.C. § 1602(c)) ("HOEPA"), Regulation Z (12
CFR § 226.32) or any comparable state law.
(xvi) 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);
8
(xvii) No
Mortgage Loan was originated (or modified) on or after October 1, 2002, and
before March 7, 2003, which is secured by a mortgaged property located in
Georgia;
(xviii) In
addition to the foregoing representations and warranties made in subparagraphs
(i) through (xvii) of this Section 1.04(b), the Seller further represents and
warrants upon delivery of the Pool 1 Mortgage Loans, as to each such Mortgage
Loan, that:
(a) The
outstanding Scheduled Principal Balance of each Pool 1 Mortgage Loan does not
exceed the applicable maximum original loan amount limitations with respect to
first lien or subordinate lien one-to-four family residential mortgage loans, as
applicable, as set forth in the Xxxxxxx Mac Selling Guide;
(b) With
respect to any Pool 1 Mortgage Loan that is a subordinate lien mortgage loan,
(i) such lien is on a one- to four-family residence that is the principal
residence of the borrower; (ii) the original principal balance does not exceed
the applicable limitations with respect to subordinate lien mortgage loans as
set forth in the Xxxxxxx Mac Selling Guide; and (iii) the original principal
balance of the first lien mortgage loan plus the original principal balance of
any subordinate lien mortgage loans relating to the same mortgaged property do
not exceed the applicable limitations with respect to first lien mortgage loans
for that property type as set forth in the Xxxxxxx Mac Selling
Guide;
(c) No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act of 1994
("HOEPA") and its implementing regulations, including 12 CFR § 226.32(a)(1)(i)
and (ii). As part of its due diligence process, Seller conducted a statistically
relevant sampling of approximately 23.64% of the Mortgage Loans. The Mortgage
Loans sampled include refinance, home equity, and purchase loans. None of the
Mortgage Loans sampled exceeds the thresholds set by HOEPA. Seller confirms that
its sampling procedure is effective in identifying loans that exceed the
thresholds set by HOEPA. Seller is not aware that any of Mortgage Loans that
were not sampled exceed the thresholds set by HOEPA;
(d) The
Servicer for each Pool 1 Mortgage Loan has fully furnished in the past (and the
Seller shall cause the Servicer to furnish in the future), in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company, on a
monthly basis;
9
(e) With
respect to any Pool 1 Mortgage Loan that contains a provision permitting
imposition of a Prepayment Charge upon a prepayment prior to maturity, to the
best of the Seller's knowledge: (i) the Pool 1 Mortgage Loan provides some
benefit to the borrower (e.g., a rate or fee reduction) in exchange for
accepting such Prepayment Charge; (ii) the Pool 1 Mortgage Loan's originator had
a written policy of offering the borrower, or requiring third-party brokers to
offer the borrower, the option of obtaining a mortgage loan that did not require
payment of such Prepayment Charge; (iii) the Prepayment Charge was adequately
disclosed to the borrower in the loan documents pursuant to applicable state and
federal law; (iv) no subprime loan originated on or after October 1, 2002, will
provide for a Prepayment Charge for a term in excess of three years and any
subprime loan or non-subprime loan originated prior to such date will not
provide for a Prepayment Charge for a term in excess of five years; in each case
unless such loan was modified to reduce the prepayment period to no more than
three years from the date of the note in the case of a subprime loan and no more
than five years from the date of the note in the case of a non-subprime loan and
the borrower was notified in writing of such reduction in prepayment period; and
(v) such Prepayment Charge shall not be imposed in any instance where the
Pool 1 Mortgage Loan is accelerated or paid off in connection with the workout
of a delinquent mortgage or due to the borrower's default, notwithstanding that
the terms of the Pool 1 Mortgage Loan or state or federal law might permit the
imposition of such Prepayment Charge;
(f) With
respect to any Pool 1 Mortgage
Loan originated on or after August 1, 2004, neither the related mortgage nor the
related mortgage note requires the borrower to submit to arbitration to resolve
any dispute arising out of or relating in any way to the mortgage
loan transaction;
(g) No
borrower under a Pool 1 Mortgage Loan was charged "points and fees" in an amount
greater than (a) $1,000 or (b) 5% of the principal amount of such mortgage loan,
whichever is greater. For purposes of this representation, "points and fees" (x)
include origination, underwriting, broker and finder's fees and charges that the
lender imposed as a condition of making the mortgage loan, whether they are paid
to the lender or a third party; and (y) exclude bona fide discount points, fees
paid for actual services rendered in connection with the origination of the
mortgage (such as attorneys' fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood and
tax certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges, which miscellaneous fee and charges, in total, do not exceed 0.25
percent of the loan amount; and
10
(h) No Pool 1
Mortgage Loan was originated more than twelve months prior to the Closing
Date.
(c) With
respect to any of the foregoing representations and warranties made in
subparagraphs (xiii) (xiv), (xv), (xvi), (xvii) and (xviii) 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.
(d) Promptly
upon discovery by the Seller or the Depositor that any First Payment Default
Mortgage Loan may be repurchased by the Transferors, the Depositor shall enforce
its rights under the Term Sheet. If the price at which the Transferors are
required to purchase any First Payment Default Mortgage Loan is less than the
Purchase Price as defined in the Trust Agreement, the Seller shall be obligated
to pay such difference to the Depositor on the date of repurchase.
(e) It is
understood and agreed that the representations and warranties set forth in
Sections 1.04(b) 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 the
Transferors in the 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 (xiii), (xiv), (xv), (xvii) and (xviii) of Section
1.04(b) irrespective of the Transferors' breach of a comparable representation
or warranty made in the 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, as applicable, substitute a
Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
(f) Notwithstanding
Section 1.04(e), 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 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 (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 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 Servicer with respect to the related Mortgage Loan in
lieu of collection of such Prepayment Charge.
11
(g) Promptly
upon discovery by the Seller or the Depositor that any First Payment Default
Mortgage Loan may be repurchased by the Transferors, the Depositor shall enforce
its rights under the Term Sheet. If the price at which the Transferors are
required to purchase any First Payment Default Mortgage Loan is less than the
Purchase Price as defined in the Trust Agreement, the Seller shall be obligated
to pay such difference to the Depositor on the date of repurchase and such
difference shall be paid to the Trust Fund.
Section
1.05. Grant
Clause.
It is
intended that the conveyance of the Seller's right, title and interest in and to
the Mortgage Loans and other property conveyed pursuant to this Agreement on the
Closing Date shall constitute, and shall be construed as, a sale of such
property and not a grant of a security interest to secure a loan. However, if
any such conveyance is deemed to be in respect of a loan, it is intended that:
(a) the rights and obligations of the parties shall be established pursuant to
the terms of this Agreement; (b) the Seller hereby grants to the Depositor a first
priority security interest to secure payment of an obligation in an amount equal
to the purchase price set forth in Section 1.01(a) in all of the Seller's right,
title and interest in, to and under, whether now owned or hereafter acquired,
the Mortgage Loans and other property; and (c) this Agreement shall constitute a
security agreement under applicable law.
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.
12
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 and the NIMS Insurer 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 NIMS Insurer 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.
13
Section
2.04. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section
2.05. Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this
Agreement.
Section
2.06. Indulgences;
No Waivers.
Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver shall
be effective unless it is in writing and is signed by the party asserted to have
granted such waiver, as well as the Trustee.
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 and the NIMS Insurer
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, the NIMS
Insurer 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.
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/
Xxxxx X. Xxx
Name:
Xxxxx X. Xxx
Title:
Authorized Signatory
STRUCTURED
ASSET SECURITIES CORPORATION,
as
Purchaser
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
SCHEDULE
A
MORTGAGE
LOANS
MORTGAGE
LOAN SCHEDULE
(including
Prepayment Charge Schedules and Prepayment Charge Summary)
[To be
retained in a separate closing binder entitled "SASCO 2007-EQ1 Mortgage Loan
Schedules" at XxXxx Xxxxxx LLP]
Schedule A
SCHEDULE
B
SCHEDULE
OF FIRST PAYMENT DEFAULT MORTGAGE LOANS
[To be
retained in a separate closing binder entitled "SASCO 2007-EQ1 Mortgage Loan
Schedules" at XxXxx Xxxxxx LLP]
Schedule B
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 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 (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 to the Depositor, the Trustee and the NIMS Insurer.
"Servicer
Prepayment Charge Payment Amount": The
amount payable by the Servicer in respect of any impermissible waiver by the
Servicer of a Prepayment Charge pursuant to the Servicing
Agreement.
A-1
EXHIBIT
B
FORM OF
TERMS LETTER
April 1,
2007
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
|
Re: |
Structured Asset Securities Corporation
Mortgage Pass-Through Certificates, Series
2007-EQ1 |
Ladies
and Gentlemen:
This
letter (the "Terms Letter") is made in accordance with the Mortgage Loan Sale
and Assignment Agreement, dated as of April 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 $643,299,849.91.
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]
B-1
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:
Name:
Xxxxx X. Xxx
Title:
Authorized Signatory
Acknowledged
and Agreed:
STRUCTURED
ASSET SECURITIES
CORPORATION
By:
Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
B-2
