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-GEL1
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.
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.
17
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-1
Transferred Mortgage Loan Schedule (including Prepayment Charge
Schedule)
SCHEDULE A-2
Originated Mortgage Loan Schedule (including Prepayment Charge
Schedule)
EXHIBIT A
Certain Defined Terms
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,
as purchaser (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”), The
Murrayhill Company, as credit risk manager and U.S. Bank National
Association, as trustee (in such capacity, 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 Purchase and Warranties Agreement by and between Lehman
Capital, A Division of Lehman Brothers Holdings Inc. and BNC
Mortgage Inc. dated as of August 15, 2000.
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 part of Schedule
A-1 (collectively, the “Bank Transferred Mortgage
Loans” and, together with the LBH Transferred Mortgage Loans,
the “Transferred Mortgage Loans”):
1.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and Aames Capital Corporation dated as of April 21,
2003;
2.
Mortgage Loan Purchase and Warranties Agreement by and between the
Bank and Bank of America, N.A. dated as of June 1, 2004;
3.
Mortgage Loan Purchase and Warranties Agreement by and between the
Bank and Bank of America, N.A. dated as of December 1, 2004;
4.
Flow Purchase and Warranties Agreement by and between the Bank and
BNC Mortgage Inc. dated as of March 1, 2002, as amended as of
December 16, 2002, and as further amended as of June 2, 2003;
5.
Mortgage Loan Flow Purchase, Sale and Servicing Agreement by and
between the Bank, Cendant Mortgage Corporation and Bishop’s
Gate Residential Mortgage Trust (formerly known as Cendant
Residential Mortgage Trust) dated as of June 25, 2004;
6.
Loan Purchase Agreement by and between the Bank and Finance
America, LLC dated as of January 1, 2003 (for conventional, fixed
and adjustable rate residential mortgage loans);
7.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and Oakmont Mortgage dated as of June 20, 2003;
8.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and GRP Loan, LLC, Wells Fargo Bank, N.A. (as Indenture
Trustee for GRP/Ag Real Estate Asset Trust 2003-1) and Wells Fargo
Bank, N.A. (as Indenture Trustee for GRP/AG Real Estate Asset Trust
2004-1) dated as amended as of July 1, 2004;
9.
Seller’s Warranties and Servicing Agreement by and between
the Bank and Option One Mortgage Corporation, Option One Owner
Trust 2001-1A, Option One Owner Trust 2002-3 and Option One Owner
Trust 2002-4 dated as of November 20, 2003;
10.
Loan Purchase Agreement by and between the Bank and The Provident
Bank dated as of July 1, 2003;
11.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and The Provident Bank dated as of June 20, 2002, as
amended as of August 28, 2002, as further amended as of November
26, 2002, and as further amended as of January 28, 2004;
12.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and SIB Mortgage Corp. dated as of June 10, 2002, as
amended by Amendment No. 1 dated as of November 1, 2002, and as
further amended by Amendment No. 2 dated as of September 29,
2003;
13.
Seller’s Warranties and Servicing Agreement by and between
the Bank and Wells Fargo Home Mortgage, Inc. dated as of February
1, 2004;
14.
Seller’s Warranties and Servicing Agreement by and between
the Bank and Wells Fargo Home Mortgage, Inc. dated as of July 1,
2004 (WFHM Pools 6076, 6077, 6078, 6079, 6080, 6081); and
15.
Seller’s Warranties and Servicing Agreement by and between
the Bank and Wells Fargo Bank, N.A. dated as of June 1, 2004 (WFHM
Pools 6051, 6052, 6053, 6054, 6055, 6056).
WHEREAS, in addition to the Bank Transferred Mortgage Loans, the
Bank has directly underwritten and funded certain mortgage loans
originated by Aurora Loan Services LLC and other correspondents
identified on the Mortgage Loan Schedule attached hereto as
Schedule A-2 (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
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 foregoing Bank Transfer Agreements and
related Bank Mortgage Loans as listed on Schedule A-1, in the case
of the Bank Transferred Mortgage Loans, or Schedule A-2, in the
case of the Bank Originated Mortgage Loans, and LBH has accepted
the rights and benefits of, and assumed the obligations of the Bank
under, the Bank Transfer Agreements;
WHEREAS, LBH 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.
Reconstituted Servicing Agreement dated as of January 1, 2005,
among LBH, as seller, Wells Fargo Bank, N.A. (“Wells
Fargo”), as servicer, and the Master Servicer;
2.
Securitization Subservicing Agreement dated as of January 1, 2005,
among LBH, as seller, Wells Fargo, as servicer, and the Master
Servicer;
3.
Servicing Agreement dated as of January 1, 2005, among LBH, as
seller, and Aurora Loan Services LLC, in the dual capacities of
servicer and Master Servicer;
4.
Securitization Servicing Agreement dated as of January 1, 2005,
among LBH, as seller, Ocwen Federal Bank FSB, as servicer, and the
Master Servicer;
5.
Securitization Servicing Agreement dated as of January 1, 2005,
among LBH, as seller, Option One Mortgage Corporation, as servicer
and the Master Servicer;
6.
Securitization Subservicing Agreement dated as of January 1, 2005,
among LBH, as seller, Option One Mortgage Corporation, as servicer
and the Master Servicer;
7.
Securitization Servicing Agreement dated as of January 1, 2005,
among LBH, as Seller, Chase Home Finance LLC, National Association,
as servicer, and the Master Servicer; and
8.
Reconstituted Servicing Agreement dated as of January 1, 2005,
among LBH, as Seller, Cendant Mortgage Corporation, as servicer,
and the Master 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, assign all of its rights and interest under each
Transfer Agreement and each Servicing Agreement relating to the
Mortgage Loans referred to above, and delegate all of its
obligations thereunder, to the Depositor;
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 Schedules A-1 and
A-2 hereto, having an aggregate principal balance as of the Cut-off
Date of $151,835,156.55. 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 (except for any rights
against the related 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 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-1 specifies those
Mortgage Loans that are Transferred Mortgage Loans and the Mortgage
Loan Schedule attached hereto as Schedule A-2 specifies those
Mortgage Loans that are Bank Originated Mortgage Loans, each of
which categories of Bank 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, Deutsche Bank National Trust
Company, 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
(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 (xviii)), 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 (xviii) 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 (xviii)) 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 representations and warranties made by it pursuant to
Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xviii)) 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:
(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
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