LEHMAN BROTHERS HOLDINGS
INC.,
SELLER
and
STRUCTURED ASSET SECURITIES
CORPORATION,
DEPOSITOR
MORTGAGE LOAN SALE AND ASSIGNMENT
AGREEMENT
Dated as of March 1, 2007
Lehman XS
Trust
(Mortgage Pass-Through Certificates,
Series 2007-4N)
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ARTICLE I
CONVEYANCE OF MORTGAGE LOANS
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5
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Section 1.01.
Mortgage Loans
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5
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Section 1.02.
Delivery of Documents
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6
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Section 1.03.
Review of Documentation
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6
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Section 1.04.
Representations and Warranties of the Seller
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7
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Section 1.05.
Grant Clause
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18
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Section 1.06.
Assignment by Depositor
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18
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ARTICLE II
MISCELLANEOUS PROVISIONS
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18
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Section 2.01.
Binding Nature of Agreement; Assignment
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18
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Section 2.02.
Entire Agreement
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18
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19
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Section 2.04.
Governing Law
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19
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Section 2.05.
Severability of Provisions
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20
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Section 2.06.
Indulgences; No Waivers
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20
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Section 2.07.
Headings Not to Affect Interpretation
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20
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Section 2.08.
Benefits of Agreement
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20
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Section 2.09.
Counterparts
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20
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SCHEDULES
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SCHEDULE
A-1
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Transferred
Mortgage Loan Schedule
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SCHEDULE
A-2
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Bank Originated
Mortgage Loan Schedule
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This MORTGAGE LOAN SALE AND ASSIGNMENT
AGREEMENT, dated as of March 1, 2007 (the “Agreement”),
is executed by and between Lehman Brothers Holdings Inc. (the
“Seller”) and Structured Asset Securities Corporation
(the “Depositor”).
All capitalized terms not defined herein shall
have the same meanings assigned to such terms in that certain Trust
Agreement (the “Trust Agreement”), dated as of March 1,
2007, among the Depositor, Aurora Loan Services LLC, as master
servicer (“Aurora”), and U.S. Bank National
Association, as trustee (the “Trustee”).
WITNESSETH
:
WHEREAS, Lehman Capital, a division of Lehman
Brothers Holdings Inc. (“Lehman Capital”), pursuant to
the following specified agreements (the “Transfer
Agreements”), has purchased or received certain mortgage
loans identified on the Mortgage Loan Schedule attached hereto as
Schedule A-1 (the “Transferred Mortgage
Loans”):
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1.
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Flow Seller's
Warranties and Servicing Agreement, dated as of June 1, 2006, by
and between Lehman Capital and Countrywide, as amended by the
Amendment Reg AB dated as of June 16, 2006;
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2.
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Sale and
Servicing Agreement, dated as of October 30, 2006, by and between
Lehman Capital and Residential Funding Company, LLC (“RFC
LLC”); and
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3.
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Seller's
Warranties and Servicing Agreement, dated as of September 1, 2005,
by and between Lehman Capital and IndyMac Bank, F.S.B.
(“IndyMac”).
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WHEREAS the Bank may have funded certain
mortgage loans originated by Aurora Loan Services LLC identified on
the Mortgage Loan Schedule attached hereto as Schedule A-2 (the
“Bank Originated Mortgage Loans” and together with the
Transferred Mortgage Loans, the “Mortgage
Loans”);
WHEREAS, the Seller is a party to the following
servicing agreements (the “Servicing Agreements”)
pursuant to which the Mortgage Loans are serviced by Countrywide
Home Loans Servicing LP (“Countrywide Servicing”),
IndyMac, GMAC Mortgage, LLC (“GMAC”) and RFC LLC (the
“Servicers”):
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1.
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Reconstituted
Servicing Agreement, dated as of March 1, 2007, by and between the
Seller and Countrywide Servicing;
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2.
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Reconstituted
Servicing Agreement, dated as of March 1, 2007, by and between the
Seller and IndyMac;
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3.
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Reconstituted
Servicing Agreement, dated as of March 1, 2007, by and between the
Seller and RFC LLC; and
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4.
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Securitization
Servicing Agreement, dated as of March 1, 2007, by and between the
Seller, GMAC and Aurora.
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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 (exclusive of any Retained Interest on such Mortgage
Loans) to the Depositor and to assign all of its rights and
interest under the Transfer Agreements and the Servicing Agreements
relating to the Mortgage Loans, and to delegate all of its
obligations thereunder, to the Depositor; and
WHEREAS, the Seller and the Depositor
acknowledge and agree that the Depositor will convey the Mortgage
Loans to a Trust Fund created pursuant to the Trust Agreement,
assign all of its rights and delegate all of its obligations
hereunder to the Trustee for the benefit of the Certificateholders,
and that each reference herein to the Depositor is intended, unless
otherwise specified, to mean the Depositor or the Trustee, as
assignee, whichever is the owner of the Mortgage Loans from time to
time.
NOW, THEREFORE, in consideration of the mutual
agreements herein set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the Seller and the Depositor agree as
follows:
ARTICLE I
CONVEYANCE OF MORTGAGE
LOANS
Section 1.01. 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 (exclusive
of any Retained Interest on such Mortgage Loans, if any) identified
on Schedule A-1 and Schedule A-2 hereto, having an aggregate
principal balance as of the Cut-off Date of $2,164,428,895. Such
conveyance includes, without limitation, the right to all
distributions of principal and interest received on or with respect
to the Mortgage Loans on or after March 1, 2007 other than (i) any
amounts representing Retained Interest, if any, and (ii) 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,
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.
(b) 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 the
Servicing Agreements except for (A) any rights against the
Transferor 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
and (B) any right to receive Retained Interest if any, and 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 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 of
$2,164,428,895. 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.
(c) 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-1 specifies those Mortgage Loans that are Transferred
Mortgage Loans and the Mortgage Loan Schedule attached hereto as
Schedule A-2 specifies those Mortgage Loans that are Bank
Originated Mortgage Loans.
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 the custodian, Deutsche Bank National Trust
Company, U.S. Bank National Association or Wells Fargo Bank, N.A.
(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, to carry on its business as presently
conducted, and to enter into and perform its obligations under this
Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of
this Agreement has been duly authorized by all necessary corporate
action on the part of the Seller; neither the execution and
delivery of this Agreement, nor the consummation of the
transactions herein contemplated, nor compliance with the
provisions 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 this Agreement and the consummation of the transactions
contemplated 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) This Agreement has been duly executed and
delivered by the Seller and, assuming due authorization, execution
and delivery by the Depositor 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 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 this Agreement.
(b) The representations and warranties of each
Transferor with respect to the Transferred 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 and warranties made pursuant to Sections
1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix),
1.04(b)(xx) and 1.04(b)(xxi)) 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), 1.04(b)(xvii), 1.04(b)(xviii),
1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xxi) 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 the representations and warranties made
pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii),
1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xxi)) 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
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 Transferred
Mortgage Loan. Subject to the foregoing, the Seller represents and
warrants upon delivery of the Transferred Mortgage Loans to the
Depositor hereunder on the Closing Date, as to each,
that:
(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 FNMA
or FHLMC. If upon origination of a 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) Each Mortgage evidences a valid, subsisting,
enforceable and perfected first lien on the related Mortgaged
Property (including all improvements on the Mortgaged Property).
The lien of the Mortgage is subject only to: (1) liens of current
real property taxes and assessments not yet due and payable and, if
the related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage acceptable to
mortgage lending institutions in the area in which the related
Mortgaged Property is located and specifically referred to in the
lender’s Title Insurance Policy or attorney’s opinion
of title and abstract of title delivered to the originator of the
applicable Transferred Mortgage Loan, and (3) such other matters to
which like properties are commonly subject which do not,
individually or in the aggregate, materially interfere with the
benefits of the security intended to be provided by the Mortgage.
Any security agreement, chattel mortgage or equivalent document
related to, and delivered to the Trustee in connection with, a
Transferred Mortgage Loan establishes a valid, subsisting and
enforceable first lien on the property described therein and the
Depositor has full right to sell and assign the same to the
Trustee;
(vi) Immediately prior to the transfer and
assignment of the Transferred Mortgage Loans to the Depositor, the
Seller was the sole owner of record and holder of each Transferred
Mortgage Loan, and the Seller had good and marketable title
thereto, and has full right to transfer and sell each Transferred
Mortgage Loan to the Depositor free and clear, except as described
in paragraph (v) above, of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest, and has
full right and authority, subject to no interest or participation
of, or agreement with, any other party, to sell and assign each
Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any
Cooperative Loan is covered by either (i) an attorney’s
opinion of title and abstract of title the form and substance of
which is generally acceptable to mortgage lending institutions
originating mortgage loans in the locality where the related
Mortgaged Property is located or (ii) an ALTA mortgagee Title
Insurance Policy or other generally acceptable form of policy of
insurance, issued by a title insurer qualified to do business in
the jurisdiction where the Mortgaged Property is located, insuring
the originator of the Transferred Mortgage Loan, and its successors
and assigns, as to the first priority lien of the Mortgage in the
original principal amount of the Transferred Mortgage Loan (subject
only to the exceptions described in paragraph (v) above). If the
Mortgaged Property is a condominium unit located in a state in
which a title insurer will generally issue an endorsement, then the
related Title Insurance Policy contains an endorsement insuring the
validity of the creation of the condominium form of ownership with
respect to the project in which such unit is located. With respect
to any Title Insurance Policy, the originator is the sole insured
of such mortgagee Title Insurance Policy, such mortgagee Title
Insurance
