LEHMAN BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES
CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT
AGREEMENT
Dated as of February 1, 2005
Structured Asset Securities
Corporation
(Mortgage Pass-Through Certificates,
Series 2005-4XS)
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.
6
Section 1.04.
Representations and
Warranties of the Seller.
6
Section 1.05.
Grant Clause.
16
Section 1.06.
Assignment by
Depositor.
16
ARTICLE II. MISCELLANEOUS PROVISIONS
16
Section 2.01.
Binding
Nature of Agreement; Assignment.
16
Section 2.02.
Entire
Agreement.
16
Section 2.03.
Amendment.
17
Section 2.04.
Governing
Law.
18
Section 2.05.
Severability
of Provisions.
18
Section 2.06.
Indulgences;
No Waivers.
18
Section 2.07.
Headings
Not to Affect Interpretation.
18
Section 2.08.
Benefits
of Agreement.
18
Section 2.09.
Counterparts.
18
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 February
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 February 1, 2005, among the Depositor, Aurora Loan Services
LLC, as master servicer (the “Master Servicer”),
LaSalle Bank National Association, 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,
pursuant to the following specified mortgage loan purchase and
warranties agreements (each, a “LBH Transfer
Agreement”), the Seller has purchased or received from
certain transferors identified below (each, a “LBH
Transferor”) certain mortgage loans, each as identified on
the Mortgage Loan Schedule attached hereto as part of Schedule A-1
(collectively, the “LBH Transferred Mortgage
Loans”):
1.
Flow Mortgage Loan
Purchase and Warranties Agreement by and between Lehman Capital, A
Division of Lehman Brothers Holdings, Inc. and Ohio Savings Bank
dated as of March 19, 2001.
WHEREAS,
Lehman Brothers Bank, FSB (the “Bank”), pursuant to the
following specified mortgage loan purchase and warranties
agreements (each a “Bank Transfer Agreement,” and
together with the LBH transfer Agreements, the “Transfer
Agreements”), has purchased or received from certain
transferors identified below (each a “Bank Transferor,”
and together with the LBH Transferors, the
“Transferors”) certain mortgage loans, each identified
on the Mortgage Loan Schedule attached hereto as Schedule A (the
“Bank Transferred Mortgage Loans” and together with the
LBH Transferred Mortgage Loans, the “Transferred Mortgage
Loans”):
1.
Flow Purchase
Agreement by and between the Bank and American Gold Mortgage Corp.
dated as of August 29, 2002;
2.
Flow Mortgage Loan
Purchase and Warranties Agreement by and between the Bank and
American Home Mortgage, Corp dated as of November 17,
2004;
3.
Flow Sale and
Servicing Agreement by and between by and between Lehman Brothers
Bank, FSB as assignee of Bank of America Mortgage Capital
Corporation and ABN AMRO Mortgage Group, Inc. dated as of February
1, 2002;
4.
Seller’s
Warranties and Servicing Agreement by and between Banc of Mortgage
Capital Corporation and Wells Fargo Home Mortgage Inc. dated as of
February 1, 2002;
5.
Mortgage Loan Sale
and Servicing Agreement by and between Bank of America, N.A. and
the Bank dated as of September 1, 2002 (2002-SAS-U);
6.
Mortgage Loan
Purchase, Warranties and Servicing Agreement by and among Chase
Home Finance LLC and the Bank dated as of January 1, 2005
(2005-FX1);
7.
Loan Purchase
Agreement by and between the Bank and Family Lending Services, Inc.
dated as of October 10, 2002;
8.
Loan Purchase
Agreement by and between the Bank and First Mutual Corp dated as of
June 24, 2002;
9.
Master Mortgage
Loan Purchase and Warranties Agreement by and between the Bank and
First National Bank of Nevada dated as of August 27,
2004;
10.
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;
11.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Greenpoint
Mortgage Funding, Inc. dated as of January 26, 2000;
12.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank, and Greenpoint
Mortgage Funding, Inc. dated as of December 12, 2001
13.
Loan Purchase Agreement by and
between the Bank and Ideal Mortgage Bankers, Ltd. and Lend America
and Lending Key dated as of July 28, 2004;
14.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Mortgage IT, Inc.
dated as of January 6, 2004;
15.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Nation One
Mortgage Company Inc. dated as of March 29, 2004;
16.
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
17.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Oak Street
Mortgage LLC dated as of April 1, 2003;
18.
Loan Purchase Agreement by and
between the Bank and Reliant Mortgage Company, LLC dated as of
April 8, 2004;
19.
Loan Purchase Agreement by and
between the Bank and Residential Mortgage Capital dated as of
January 9, 2003
20.
Flow Purchase, Warranties and
Servicing Agreement by and between the Bank and Wachovia Mortgage
Corporation dated as of July 1, 2004;
21
Loan Purchase
Agreement by and between Lehman Brothers Bank, FSB and Family
Lending Services, Inc. dates as of October 10, 2002.
22.
Loan Purchase Agreement by and
between the Bank and Wall Street Mortgage Bankers dated as of
December 12, 2002; and
23.
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 Bank Transferred Mortgage Loans, the “Bank
Mortgage Loans, ” and the Bank Mortgage Loans, together with
the LBH 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, 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
Bank 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 February 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 February 28, 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 February 1, 2005, among the Seller, as
seller, Chase Home Finance LLC, as servicer, and the Master
Servicer;
4.
Assignment,
Assumption and Recognition Agreement, dated as of February 1,
2005, among the Seller, as seller, Structured Asset Securities
Corporation, as depositor and ABN AMRO Mortgage Group, Inc., as
servicer;
5.
Reconstituted
Servicing Agreement, dated as of February 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 February 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 February 1, 2005, among the
Seller, as seller, GMAC Mortgage Corporation, as servicer, and
acknowledged by the Master Servicer and the Trustee;
8.
Reconstituted
Servicing Agreement, dated as of February 1, 2005, among the
Seller, as seller, National City Mortgage Co., as servicer, and
acknowledged by the Master Servicer and the Trustee;
9.
Reconstituted
Servicing Agreement, dated as of February 1, 2005, among the
Seller, as seller, Wachovia Mortgage Corporation, as servicer, and
the Master Servicer and acknowledged by the Trustee; and
10.
Reconstituted Servicing
Agreement, dated as of February 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 $759,800,968.
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 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)
&nbs
