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
2005-NC1
(Mortgage Pass-Through Certificates Series
2005-NC1)
TABLE OF CONTENTS
Page
ARTICLE I. CONVEYANCE OF MORTGAGE LOANS
2
Section 1.01.
Sale of Mortgage Loans.
2
Section 1.02.
Delivery of Documents.
3
Section 1.03.
Review of Documentation.
3
Section 1.04.
Representations and Warranties of the
Seller.
3
Section 1.05.
Grant Clause.
12
Section 1.06.
Assignment by Depositor.
12
ARTICLE II. MISCELLANEOUS PROVISIONS 13
Section 2.01.
Binding Nature of Agreement;
Assignment.
13
Section 2.02.
Entire Agreement.
13
Section 2.03.
Amendment.
14
Section 2.04.
Governing Law.
14
Section 2.05.
Severability of Provisions.
14
Section 2.06.
Indulgences; No Waivers.
14
Section 2.07.
Headings Not to Affect
Interpretation.
14
Section 2.08.
Benefits of Agreement.
15
Section 2.09.
Counterparts.
15
SCHEDULE A
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. (“LBH” 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”), Risk
Management Group, as credit risk manager, 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 Flow Mortgage Loan Purchase and Warranties
Agreement by and between the Bank, as purchaser and NC Capital
Corporation , as seller (in such capacity, the
“Transferor”), dated as of May 18, 2004 (the
“Transfer Agreement), has purchased or received from the
Transferor certain mortgage loans, each identified on the Mortgage
Loan Schedule attached hereto as part of Schedule A (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 LBH, as
assignee, the Bank has assigned all of its right, title and
interest in and to the Transfer Agreement and the Mortgage Loans as
listed on Schedule A, and LBH has accepted the rights and benefits
of, and assumed the obligations of the Bank under, the Transfer
Agreement;
WHEREAS, LBH is a party to a Servicing Agreement dated as of
January 1, 2005 among LBH, as seller, New Century Mortgage
Corporation, as servicer (the “Servicer”), and the
Master Servicer (the “Servicing Agreement”);
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 the Transfer
Agreement and the Servicing Agreement relating to the Mortgage
Loans referred to above, 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 on the Closing Date 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 Schedule A
hereto, having an aggregate principal balance of $713,599,311.97.
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 the Transfer Agreement (except for any rights
against the Transferor with respect to (i) first payment date
defaults or early payment date defaults or (ii) reimbursement of
any amount in excess of the Purchase Price for a breach of a
representation or warranty) and the 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 the Transfer Agreement
(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 the
Transfer Agreement and the Servicing Agreement, other than any
servicing rights thereunder, as if the Depositor had been a party
to each such agreement.
(b)
Schedule 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 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 Transfer Agreement
or Servicing Agreement.
(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
Deutsche Bank National Trust Company (the “Custodian”),
for the Depositor. The Custodian is required to review,
within 45 days following the Closing Date, each applicable Mortgage
File. If in the course of such review the 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 the Transferor with respect
to the Mortgage Loans in the 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 Mortgage Loan constitutes a
breach of both (i) a representation or warranty of the Transferor
under the 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 (except in the case of a breach by the
Seller of the representations made by it pursuant to Sections
1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xix)), 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)(xiii), (xiv), (xv), (xvi), (xvii) and (xix) 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) (except in the case of those
representations and warranties made pursuant to Sections
1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xix)) are applicable
only to facts, conditions or events that do not constitute a breach
of any representation or warranty made by the Transferor in the
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 Mortgage Loans (except in
the case of those representations and warranties made by it
pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii), and
(xix)) if the fact, condition or event constituting such breach
also constitutes a breach of a representation or warranty made by
the Transferor in such Transfer Agreement, without regard to
whether the Transferor fulfills its contractual obligations in
respect of such representation or warranty; provided, however, that
if the 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 Mortgage Loans to the Depositor hereunder, as to
each, that:
(i)
The information set forth with respect to the Mortgage Loans on the
Mortgage Loan Schedule provides an accurate listing of the Mortgage
Loans, and the information with respect to each 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 Mortgage Loan, the Mortgaged
Property was in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards
(and such flood insurance has been made available), a flood
insurance policy meeting the requirements of the current guidelines
of the Federal Flood Insurance Administration is in effect, which
policy conforms to the requirements of the current guidelines of
the Federal Flood Insurance Administration. Each Mortgage
obligates the related Mortgagor thereunder to maintain the hazard
insurance policy at the Mortgagor’s cost and expense, and on
the Mortgagor’s failure to do so, authorizes the holder of
the Mortgage to obtain and maintain such insurance at such
Mortgagor’s cost and expense, and to seek reimbursement
therefor from the Mortgagor. Where required by state law or
regulation, each Mortgagor has been given an opportunity to choose
the carrier of the required hazard insurance, provided the policy
is not a “master” or “blanket” hazard
insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and
binding obligation of the insurer, is in full force and effect, and
will be in full force and effect and inure to the benefit of the
Depositor upon the consummation of the transactions contemplated by
this Agreement;
(iv)
Each Mortgage has not been satisfied, cancelled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has not
been released from the lien of the Mortgage, in whole or in part,
nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission;
(v)
In the case of approximately 96.00% and 4.00% of the Mortgage Loans
(by Scheduled Principal Balance as of the Cut-off Date), the
related Mortgage evidences a valid, subsisting, enforceable and
perfected first lien or second lien, respectively, on the related
Mortgaged Property (including all improvements on the Mortgaged
Property). The lien of the Mortgage is subject only to: (1)
the first Mortgage, in the case of a Mortgaged Property that is
secured by a perfected second lien, (2) liens of current real
property taxes and assessments not yet due and payable and, if the
related Mortgaged Property is a condominium unit, any lien for
common charges permitted by statute, (3) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage acceptable to
mortgage lending institutions in the area in which the related
Mortgaged Property is located and sp
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