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
