EXECUTION
LEHMAN BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of January 1, 2005
Structured Asset Securities Corporation
(Mortgage Pass-Through Certificates, Series
2005-2XS)
TABLE OF CONTENTS
Page
ARTICLE I. CONVEYANCE OF MORTGAGE LOANS
4
Section
1.01. Sale of Mortgage Loans.
4
Section
1.02. Delivery of Documents.
5
Section
1.03. Review of Documentation.
5
Section
1.04. Representations and Warranties of the Seller.
5
Section
1.05. Grant Clause.
15
Section
1.06. Assignment by Depositor.
15
ARTICLE II. MISCELLANEOUS PROVISIONS 15
Section
2.01. Binding Nature of Agreement; Assignment.
15
Section
2.02. Entire Agreement.
15
Section
2.03. Amendment.
16
Section
2.04. Governing Law.
16
Section
2.05. Severability of Provisions.
17
Section
2.06. Indulgences; No Waivers.
17
Section
2.07. Headings Not to Affect Interpretation.
17
Section
2.08. Benefits of Agreement.
17
Section
2.09. Counterparts.
17
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
January 1, 2005 (the “Agreement”), is executed by and
between Lehman Brothers Holdings Inc. (“Holdings” or
the “Seller”) and Structured Asset Securities
Corporation (the “Depositor”).
All capitalized terms 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 January 1, 2005, among the Depositor, Aurora Loan Services
LLC, as master servicer (the “Master Servicer”),
Citibank, N.A., as securities administrator (the “Securities
Administrator”) and Wilmington Trust Company, as trustee (the
“Trustee”).
W I T N E
S S E T H :
WHEREAS, Lehman 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 “Transferor,” and
collectively, the “Transferors”) certain mortgage
loans, each identified on the Mortgage Loan Schedule attached
hereto as Schedule A (the “Transferred Mortgage
Loans”):
1. Flow Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
American Home Mortgage, Corp dated as of November 17, 2004;
2. Flow Mortgage
Loan Purchase and Warranties Agreement by and between Bay Capital
Corporation and the Bank dated as of September 20, 2004;
3. Mortgage Loan
Purchase, Warranties and Servicing Agreement by and between the
Bank and Chase Manhattan Mortgage Corporation dated as of July 1,
2004 (2004 FX-10);
4. Master Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
First National Bank of Nevada dated as of August 27, 2004;
5. Master Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
First National Bank of Nevada dated as of November 15, 2000,
Amendment No. 1 dated as of September 7, 2001 and Amendment No. 2
dated as of June 2, 2003;
6. Flow Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
Mortgage IT, Inc. dated as of January 6, 2004;
7. Flow Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
Nation One Mortgage Company Inc. dated as of March 29, 2004;
8. Flow Purchase,
Warranties and Servicing Agreement by and between the Bank and
National City Mortgage, Co. dated as of August 1, 2001, Group No.
2001-1, and Amendment No. 1 dated as of November 21, 2001
9. Flow Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
Oak Street Mortgage LLC dated as of April 1, 2003;
10. Flow Mortgage Loan Purchase
and Warranties Agreement dated as of October 20, 2004 by and
between the Bank and Paul Financial, LLC;
11. Flow Mortgage Loan Purchase
and Warranties Agreement by and between the Bank and SIB Mortgage
Corp. dated as of June 10, 2002 and Amendment No.1 dated as
November 1, 2002;
12. Flow Mortgage Loan Purchase
and Warranties Agreement by and between the Bank and The Mortgage
Store Financial, Inc. dated as of July 23, 2001;
13. Loan Purchase Agreement by
and between the Bank and Wall Street Mortgage Bankers dated as of
December 12, 2002; and
14. Flow Mortgage Loan Purchase
and Warranties Agreement by and between the Bank and US Bank NA
dated as of March 1, 2004.
WHEREAS, in addition to the Transferred Mortgage Loans, the Bank
has directly underwritten and funded certain mortgage loans
originated by Aurora Loan Services LLC, correspondents and
others 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 an assignment and assumption agreement (the
“Assignment and Assumption Agreement”), dated as of
January 1, 2005, between the Bank, as assignor, and the Seller, as
assignee, the Bank has assigned all of its right, title and
interest in and to the foregoing Bank Transfer Agreements and
related Bank Mortgage Loans as listed on Schedule A, in the case of
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
Bank Transfer Agreements;
WHEREAS, the Seller is a party to the following servicing
agreements (together, 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. Servicing
Agreement, dated as of January 1, 2005, among the Seller, as
seller, and Aurora Loan Services LLC (“Aurora”) in the
dual capacities of servicer and master servicer;
2. Transfer Notice,
dated January 31, 2005, from Holdings, as owner, and Colonial
Savings, F.A. (“Colonial”), as servicer, in connection
with the Correspondent Servicing Agreement dated as of June 26,
2002, by and among Colonial, the Bank and the Master Servicer;
3. Servicing
Agreement, dated as of January 1, 2005, among the Seller, as
seller, JPMorgan Chase Bank, National Association, as servicer, and
the Master Servicer;
4. Reconstituted
Servicing Agreement, dated as of January 1, 2005, among the Seller,
as seller, ABN AMRO Mortgage Group, Inc., as servicer, and the
Master Servicer;
5. Reconstituted
Servicing Agreement, dated as of January 1, 2005, among the Seller,
as seller, Bank of America, N.A., as servicer, and acknowledged by
the Master Servicer and the Trustee;
6. Reconstituted
Servicing Agreement, dated as of January 1, 2005, among the Seller,
as seller, CitiMortgage, Inc., as servicer, and acknowledged by the
Master Servicer and the Trustee;
7. Reconstituted
Servicing Agreement, dated as of January 1, 2005, among the Seller,
as seller, Countrywide Home Loans, Inc., as servicer, and
acknowledged by the Master Servicer and the Trustee;
8. Reconstituted
Servicing Agreement, dated as of January 1, 2005, among the Seller,
as seller, GMAC Mortgage Corporation, as servicer, and acknowledged
by the Master Servicer and the Trustee;
9. Reconstituted
Servicing Agreement, dated as of January 1, 2005, among the Seller,
as seller, National City Mortgage Co., as servicer, and
acknowledged by the Master Servicer and the Trustee;
10. Reconstituted Servicing
Agreement, dated as of January 1, 2005, among the Seller, as
seller, Washington Mutual Bank, FA, as servicer, and acknowledged
by the Master Servicer and the Trustee; and
11. Reconstituted Servicing
Agreement, dated as of January 1, 2005, among the Seller, as
seller, Wells Fargo Bank, N.A., as servicer, and 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, 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 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,
all the right, title and interest of the Seller in and to the
Mortgage Loans identified on Schedules A and B hereto, having an
approximate aggregate principal balance of $499,857,952.24.
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 each Transfer Agreement 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 any of the
Transfer Agreements (any such document an “Assignment
Agreement”) and that this Agreement constitutes an Assignment
Agreement under such 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 each 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 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, Wells Fargo Bank, N.A. and U.S.
Bank National Association, as applicable (each, a
“Custodian” and, collectively, the
“Custodians”), for the Depositor. Each Custodian
is required to review, within 45 days following the Closing Date,
each applicable Mortgage File. If in the course of such
review the related Custodian identifies any Material Defect, the
Seller shall be obligated to cure such Material Defect or to
repurchase the related Mortgage Loan from the Depositor (or, at the
direction of and on behalf of the Depositor, from the Trust Fund),
or to substitute a Qualifying Substitute Mortgage Loan therefor, in
each case to the same extent and in the same manner as the
Depositor is obligated to the Trustee and the Trust Fund under
Section 2.02(c) of the Trust Agreement.
Section 1.04. Representations and Warranties of the
Seller .
(a) The Seller hereby represents and warrants to the
Depositor that as of the Closing Date:
(i) the Seller is a
corporation duly organized, validly existing and in good standing
under the laws governing its creation and existence and has full
corporate power and authority to own its property, carry on its
business as presently conducted and enter into and perform its
obligations under the Assignment and Assumption Agreement and this
Agreement;
(ii) the execution and
delivery by the Seller of the Assignment and Assumption Agreement
and this Agreement have been duly authorized by all necessary
corporate action on the part of the Seller; neither the execution
and delivery of the Assignment and Assumption Agreement or this
Agreement, nor the consummation of the transactions therein or
herein contemplated, nor compliance with the provisions thereof or
hereof, will conflict with or result in a breach of, or constitute
a default under, any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Seller
or its properties or the certificate of incorporation or bylaws of
the Seller;
(iii) the execution, delivery and
performance by the Seller of the Assignment and Assumption
Agreement and this Agreement and the consummation of the
transactions contemplated thereby and hereby do not require the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date
hereof;
(iv) each of the Assignment and
Assumption Agreement and this Agreement has been duly executed and
delivered by the Seller and, assuming due authorization, execution
and delivery by the Bank, in the case of the Assignment and
Assumption Agreement, and the Depositor, in the case of this
Agreement, constitutes a valid and binding obligation of the Seller
enforceable against it in accordance with its respective terms,
except as such enforceability may be subject to (A) applicable
bankruptcy and insolvency laws and other similar laws affecting the
enforcement of the rights of creditors generally and (B) general
principles of equity regardless of whether such enforcement is
considered in a proceeding in equity or at law; and
(v) there are no actions,
suits or proceedings pending or, to the knowledge of the Seller,
threatened or likely to be asserted against or affecting the
Seller, before or by any court, administrative agency, arbitrator
or governmental body (A) with respect to any of the transactions
contemplated by the Assignment and Assumption Agreement or this
Agreement or (B) with respect to any other matter which in the
judgment of the Seller will be determined adversely to the Seller
and will if determined adversely to the Seller materially and
adversely affect it or its business, assets, operations or
condition, financial or otherwise, or adversely affect its ability
to perform its obligations under the Assignment and Assumption
Agreement or this Agreement.
(b) The 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)(xii),
(xiii), (xiv), (xv) and (xvi), 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)(xii), (xiii), (xiv), (xv) and
(xvi) 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 any
representations and warranties made pursuant to Sections
1.04(b)(xii), (xiii), (xiv), (xv) and (xvi) by it) 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 (other than any representations and
warranties made by it pursuant to Sections 1.04(b)(xii), (xiii),
(xiv), (xv) and (xvi)) 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. 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 Fannie Mae or Freddie 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 r
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