EXECUTION
LEHMAN BROTHERS HOLDINGS
INC.,
SELLER
and
STRUCTURED ASSET SECURITIES
CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT
AGREEMENT
Dated as of February 1,
2007
Lehman XS Trust
(Mortgage Pass-Through Certificates,
Series 2007-3)
TABLE OF CONTENTS
Page
ARTICLE I. CONlVEYANCE OF MORTGAGE
LOANS
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3
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Section 1.01. Sale of Mortgage Loans.
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3
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Section 1.02. Delivery of Documents.
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4
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Section 1.03. Review of Documentation.
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5
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Section 1.04. Representations and Warranties of
the Seller.
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5
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Section 1.05. Grant Clause.
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15
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Section 1.06. Assignment by Depositor.
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16
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ARTICLE II. MISCELLANEOUS
PROVISIONS
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16
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Section 2.01. Binding Nature of Agreement;
Assignment.
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Section 2.02. Entire Agreement.
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16
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Section 2.04. Governing Law.
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Section 2.05. Severability of
Provisions.
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Section 2.06. Indulgences; No Waivers.
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Section 2.07. Headings Not to Affect
Interpretation.
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Section 2.08. Benefits of Agreement.
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Section 2.09. Counterparts.
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SCHEDULE
A
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Transferred
Mortgage Loan Schedule (including Prepayment
ChargeSchedule)
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SCHEDULE
B
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Originated
Mortgage Loan Schedule (including Prepayment Charge
Schedule)
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SCHEDULE
C
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Mortgage Loan
Schedule for Seller-paid First Payment Default Mortgage
Loans
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SCHEDULE
D
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Mortgage Loan
Schedule for Seller-paid Early Payment Default Mortgage
Loans
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SCHEDULE
E
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Mortgage Loan
Schedule for Insured Mortgage Loans
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EXHIBIT
A
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Certain Defined
Terms
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EXHIBIT
B
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Form of Terms
Letter
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This MORTGAGE LOAN SALE AND ASSIGNMENT
AGREEMENT, dated as of February 1, 2007 (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 February 1, 2007, among the
Depositor, Aurora Loan Services LLC, as master servicer (the
“Master Servicer”), and LaSalle Bank National
Association, as trustee (the “Trustee”).
WITNESSET
H
:
WHEREAS, Lehman Brothers Bank, FSB (the
“Bank”), pursuant to the following specified mortgage
loan purchase and warranties agreements (each, a “Transfer
Agreements”), has purchased or received from certain
transferors identified below (each, a “Transferor”)
certain mortgage loans, each identified on the Mortgage Loan
Schedule attached hereto as part of Schedule A (collectively, the
“Transferred Mortgage Loans”):
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1.
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Mortgage Loan
Purchase and Warranties Agreement by and between the Bank and ACT
Lending Corporation dated as of August 1, 2002;
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2.
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Flow Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
American Home Mortgage, Corp dated as of November 17, 2004 and
amended as of December 29, 2005 (Regulation AB);
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3.
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Flow Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
Freedom Mortgage Corporation dated as June 1, 2006;
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4.
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Flow Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
New Century Mortgage Corporation dated as of November 14,
2006;
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5.
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Loan Purchase
Agreement by and between the Bank and Meridias Capital, Inc. dated
as of April 15, 2005;
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6.
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Flow Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
MortgageIT, Inc. dated as of January 6, 2004 and amended for
Regulation AB as of February 28, 2006;
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7.
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Flow Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
The Mortgage Store Financial, Inc. dated as of December 1, 2006,
Group No. 2006-FLOW;
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8.
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Amended and
Restated Flow Mortgage Loan Purchase and Warranties Agreement by
and between the Bank and Option One Mortgage Corporation and Option
One Mortgage Capital Corporation, Option One Owner Trust 2001-1A,
Option One Owner Trust 2001-1B, Option One Owner Trust 2001-2,
Option One Owner Trust 2002-3 Option One Owner Trust 2003-4, Option
One Owner Trust 2003-5, Option One Owner Trust 2005-6, and Option
One Owner Trust 2005-7, Option One Owner Trust 2005-8 and Option
One Owner Trust 2005-9 dated as of December 18, 2006;
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9.
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Seller's
Warranties and Servicing Agreement by and between the Bank and
IndyMac Bank, FSB dated as of July 1, 2003 and amended as of
December 29, 2004 and June 28, 2006;
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10.
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Master Seller's
Warranties and Servicing Agreement by and between the Bank and
Wells Fargo Bank, N.A. dated as of May 1, 2006 and amended as of
August 1, 2006; and
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11.
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Amended and
Restated Flow Mortgage Loan Purchase, Warranties and Servicing
Agreement by and between the Bank and GreenPoint Mortgage Funding,
Inc. dated as of January 1, 2007.
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WHEREAS, in addition to the Transferred Mortgage
Loans, the Bank has directly underwritten and funded certain
mortgage loans originated by Aurora Loan Services LLC and other
correspondents or otherwise purchased certain mortgage loans
identified on the Mortgage Loan Schedule attached hereto as
Schedule B (the “Originated Mortgage Loans” and,
together with the Transferred Mortgage Loans, collectively referred
to hereinafter as the “Mortgage Loans”);
WHEREAS, pursuant to an assignment and
assumption agreement (the “Assignment and Assumption
Agreement”), dated as of February 1, 2007, 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 Transfer
Agreements and related Mortgage Loans as listed on Schedule A, in
the case of Transferred Mortgage Loans, or Schedule B, in the case
of the 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 (collectively, the “Servicing
Agreements”) pursuant to which the Mortgage Loans are to be
initially serviced by a certain servicer (the
“Servicer”) as indicated below:
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1.
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Servicing
Agreement dated as of February 1, 2007 among the Seller, as seller,
and Aurora Loan Services LLC, in the dual capacities of servicer
and Master Servicer, and acknowledged by the Trustee;
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2.
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Reconstituted
Servicing Agreement dated as of February 1, 2007 among the Seller,
as seller, and GreenPoint Mortgage Funding Inc., as servicer, and
acknowledged by the Master Servicer and the Trustee;
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3.
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Reconstituted
Servicing Agreement dated as of February 1, 2007 among the Seller,
as seller, and IndyMac F.S.B., as servicer, and acknowledged by the
Master Servicer and the Trustee;
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4.
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Reconstituted
Servicing Agreement dated as of February 1, 2007 among the Seller,
as seller, and Wells Fargo Bank, N.A., as servicer, and
acknowledged by the Master Servicer and the Trustee; and
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5.
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Transfer Notice
dated as of February 1, 2007 among the Seller, as seller, and
Colonial Savings, F.A., as servicer.
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WHEREAS, the Seller desires to sell, without
recourse, all of its rights, title and interest in and to the
Mortgage Loans on the Closing Date 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 $1,315,172,300 as of the Cut-off Date. 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 scheduled 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 (except for any rights against the related
Transferor with respect to (i) first payment date defaults or early
payment date defaults or (ii) 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. In addition, the
Seller hereby assigns to Depositor all of its right, title and
interest in and to (A)(i) the MGIC Mortgage Guaranty Select Master
Policy for Multiple Loan Transactions No. 12-670-4-5004, MGIC form
#71-70282 (2/06) with #71-70283 (2/05), and the MGIC Letter
Agreement dated January 31, 2007 and (ii) Commitment Certificates
and (B) PMI Mortgage Master Policy No. UW 2510.00 (09/00), Bulk No.
21046-0036-0, subject to the terms and conditions of PMI
Mortgage’s Bulk Primary First Lien Master Policy UW 2510.00
(09/00) and the PMI Letter Agreement dated January 31, 2007, (each,
a “Bulk PMI Policy”) covering the Mortgage Loans
identified on Schedule E hereto.
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, each Servicing Agreement and each Bulk PMI
Policy, other than any servicing rights thereunder, as if the
Depositor had been a party to each such agreement.
(b) Schedules of Mortgage Loans
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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 Originated Mortgage 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 Wells Fargo Bank National Association, LaSalle
Bank National Association, Deutsche Bank National Trust Company and
U.S. Bank National Association as applicable (each, a
“Custodian” and, together, 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), (xvi) 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)(xii), (xiii), (xiv), (xv),
(xvi) 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 any
representations and warranties made pursuant to Sections
1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii) 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), (xvi) 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.
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 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) The related 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) su
