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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
2005-1)
TABLE OF CONTENTS
Page
ARTICLE I. CONVEYANCE OF MORTGAGE LOANS
5
Section 1.01.
Sale of Mortgage Loans.
5
Section 1.02.
Delivery of Documents.
6
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.
17
ARTICLE II. MISCELLANEOUS PROVISIONS
17
Section 2.01.
Binding Nature of Agreement; Assignment.
17
Section 2.02.
Entire Agreement.
17
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.
19
Section 2.08.
Benefits of Agreement.
19
Section 2.09.
Counterparts.
19
SCHEDULES
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 dated as of January 1, 2005 (the
“Trust Agreement”), 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-1 (the “Transferred Mortgage
Loans”):
1.
Assignment, Assumption and Recognition Agreement by and among the
Bank, Bank of America, N.A. and ABN AMRO Mortgage Group, Inc. dated
as of December 9, 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.
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.
Mortgage Loan Purchase, Warranties and Servicing Agreement by and
between the Bank and Chase Manhattan Mortgage Corporation dated as
of September 1, 2004;
5.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and First Guaranty Mortgage Corporation dated as of July
21, 2003;
6.
Master Mortgage Loan Purchase and Warranties Agreement by and
between the Bank and First National Bank of Nevada dated as of
August 27, 2004;
7.
Assignment, Assumption and Recognition Agreement by and among the
Bank, Bank of America, N.A. and GMAC Mortgage Corporation dated as
of December 9, 2002;
8.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and Mortgage IT, Inc. dated as of January 6, 2004;
9.
Flow Purchase and Warranties Agreement by and between the Bank and
Nation One Mortgage Company Inc. dated as March 29, 2004;
10.
Flow Mortgage Loan Purchase and Warranties Agreement by and among
the Bank, National Bank of Commerce, Central California Bank &
Trust, NBC Bank, FSB, First Market Bank and Commerce Finance
Company dated as of August 1, 2001;
11.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and Oak Street Mortgage LLC dated as of April 1, 2003;
12.
Flow Purchase and Warranties Agreement by and between the Bank and
Pinnacle Direct Funding Corp. dated as of July 26, 2004;
13.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and Pinnacle Financial Corporation dated as of February
12, 2004, Group No. 2004-1;
14.
Loan Purchase Agreement by and between the Bank and RBC Mortgage
Company dated as of September 8, 2003 and amended May 2004;
15.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and SIB Mortgage Corp. dated as of June 10, 2002 and
amended as of November 1, 2002;
16.
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 of November 1, 2002 and Amendment No. 2
dated as of September 29, 2003;
17.
Flow Purchase, Warranties and Servicing Agreement by and between
the Bank and Wachovia Mortgage Corporation dated as of July 1,
2004;
18.
Assignment, Assumption and Recognition Agreement by and among the
Bank, Bank of America, N.A. and Wells Fargo Home Mortgage, Inc.
dated as of December 9, 2002; and
19.
Seller’s Warranties and Servicing Agreement by and between
the Bank and Wells Fargo Home Mortgage, Inc. dated as of September
1, 2004 (WFMR 2004-M04); and
WHEREAS, in addition to the Transferred Mortgage Loans, the Bank
has funded certain mortgage loans originated by Aurora Loan
Services LLC, 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
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 Transfer Agreements and related Mortgage
Loans as listed on Schedule A, in the case of the 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 Transfer
Agreements;
WHEREAS, the Seller is a party to the following servicing
agreements (each, a “Servicing Agreement,” and
collectively, the “Servicing Agreements”) pursuant to
which the Mortgage Loans are serviced by the various servicers
(each, a “Servicer,” and collectively, the
“Servicers”):
1.
Assignment, Assumption and Recognition Agreement, dated as of
January 1, 2005, between Holdings, Structured Asset Securities
Corporation and ABN AMRO Mortgage Group, Inc.;
2.
Servicing Agreement, dated as of January 1, 2005, between Holdings,
as seller, and Aurora Loan Services LLC (“Aurora”), in
the dual capacities of servicer and master servicer;
3.
Servicing Agreement, dated as of January 1, 2005, between Holdings,
as seller, and Chase Home Finance LLC, as servicer;
4.
Transfer Notice dated January 31, 2005, from Holdings, as owner, to
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 Aurora, as
master servicer;
5.
Reconstituted Servicing Agreement, dated as of January 1, 2005,
between Holdings, as seller, and GMAC Mortgage Corporation, as
servicer;
6.
Servicing Agreement, dated as of January 1, 2005, between Holdings
as seller, Aurora, as master servicer, and IndyMac Bank, F.S.B., as
servicer;
7.
Servicing Agreement, dated as of January 1, 2005, between Holdings,
as seller, Aurora, as master servicer, and Midwest Loan Services,
Inc., as servicer;
8.
Reconstituted Servicing Agreement, dated as of January 1, 2005,
among Holdings, as seller, Aurora, as master servicer, and Wachovia
Mortgage Corporation, as servicer;and
9.
Reconstituted Servicing Agreement, dated as of January 1, 2005,
between Holdings, as seller, and Wells Fargo Bank, N.A., as
servicer.
WHEREAS, the Seller desires to sell, without recourse, all of its
rights, title and interest in and to the Mortgage Loans to the
Depositor, to 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 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.
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
of this Agreement, all the right, title and interest of the Seller
in and to the Mortgage Loans identified on Schedules A and Schedule
B hereto, having an approximate aggregate principal balance as of
the Cut-off Date of $1,299,875,209.31. 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, a 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
account maintained by the 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
U.S. Bank National Association, Wells Fargo Bank, N.A. and LaSalle
Bank National Association, as the custodians (each, a
“Custodian” and collectively, the
“Custodians”), for the applicable Mortgage Loans 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) through (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) through (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 those representations and warranties made
pursuant to Sections 1.04(b)(xii) through (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 (except in the case of those
representation and warranties made by it pursuant to Sections
1.04(b)(xii) through (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 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
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