EXECUTION
LEHMAN BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES
CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT
AGREEMENT
Dated as of July 1, 2005
Lehman XS Trust
(Mortgage Pass-Through Certificates,
Series 2005-2)
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.
6
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.
16
Section 2.03.
Amendment.
16
Section 2.04.
Governing Law.
17
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.
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 July 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 July 1, 2005, among the
Depositor, Aurora Loan Services LLC, as master servicer (the
“Master Servicer”), and LaSalle Bank National
Association, 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 “Bank 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.
Second Amended and Restated Flow Mortgage
Loan Sale and Servicing Agreement by and between the Bank and Bank
of America, National Association dated as of June 1,
2005;
2.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Bay Capital
Corporation dated as of September 20, 2004;
3.
Assignment, Assumption and Recognition
Agreement by and among Bank of America, National Association,
JPMorgan Chase Bank, N.A. and the Bank dated as of April 20,
2005;
4.
Mortgage Loan Purchase and Servicing
Agreement by and between the Bank and CitiMortgage, Inc. dated as
of May 1, 2004;
5.
Flow Seller’s Warranties and
Servicing Agreement by and between the Bank and Countrywide Home
Loans, Inc. dated as of June 1, 2004;
6.
Assignment, Assumption and Recognition
Agreement by and among Countrywide Home Loans, Inc, Bank of
America, N.A., as assignor, and the Bank, as assignee, dated as of
April 19, 2005;
7.
Loan Purchase Agreement by and between
the Bank and Family Lending Services, Inc. dated as of October 10,
2002;
8.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Loancity dated as
of May 1, 2005;
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.
Asset Purchase and Interim Servicing
Agreement by and between the Bank and GE Mortgage Services, LLC
dated as of October 31, 2004;
11.
Master Mortgage Loan Sale and Servicing
Agreement by and between the Bank and GMAC Mortgage Corporation
dated as of June 1, 2005;
12.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Greenpoint
Mortgage Funding, Inc. dated as of December 12, 2001 and amended as
of March 14, 2003;
13.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Impac Funding
Corporation dated as of September 1, 2004;
14.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Nation One
Mortgage Company Inc. dated as of March 29, 2004;
15.
Assignment, Assumption and Recognition
Agreement by and among the Bank, Bank of America, National
Association and National City Mortgage Company, dated as of April
20, 2005;
16.
Flow Purchase and Warranties Agreement by
and between the Bank and Pinnacle Direct Funding Corp. dated as of
July 26, 2004; and
17.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between the Bank and Southstar Funding
LLC dated as of January 26, 2005;
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 “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 July 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 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 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 (collectively, 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 July 1,
2005 among the Seller, as seller, and Aurora Loan Services LLC, in
the dual capacities of servicer and Master Servicer, and
acknowledged by the Trustee;
2.
Reconstituted Servicing Agreement dated
as of July 1, 2005 among the Seller, as seller, Bank of America,
National Association, as servicer, and the Master Servicer, and
acknowledged by the Trustee;
3.
Securitization Servicing Agreement dated
as of July 1, 2005 among the Seller, as seller, JPMorgan Chase
Bank, N.A., as servicer, and the Master Servicer, and acknowledged
by the Trustee;
4.
Reconstituted Servicing Agreement dated
as of July 1, 2005 among the Seller, as seller, CitiMortgage, Inc.,
as servicer, and the Master Servicer, and acknowledged by the
Trustee;
5.
Transfer Notice dated July 1, 2005 from
the Seller, 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;
6.
Reconstituted Servicing Agreement dated
as of July 1, 2005 among the Seller, as seller, Countrywide Home
Loans Servicing LP, as servicer, and the Master Servicer, and
acknowledged by the Trustee;
7.
Reconstituted Servicing Agreement dated
as of July 1, 2005 among the Seller, as seller, GMAC Mortgage
Corporation, as servicer, and the Master Servicer, and acknowledged
by the Trustee;
8.
Reconstituted Servicing Agreement dated
as of July 1, 2005 among the Seller, as seller, Greenpoint Mortgage
Funding, Inc., as servicer, and the Master Servicer, and
acknowledged by the Trustee;
9.
Reconstituted Servicing Agreement dated
as of July 1, 2005 among the Seller, as seller, National City
Mortgage Co., as servicer, and the Master Servicer, and
acknowledged by the Trustee; and
10.
Reconstituted Servicing Agreement dated
as of July 1, 2005 among the Seller, as seller, Wells Fargo Bank,
N.A., as servicer, and the Master Servicer and acknowledged by 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 $1,273,241,605.
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 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 LaSalle Bank National Association 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) 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 Mo
