EXECUTION COPY
LEHMAN BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of March 1, 2005
Structured Asset Securities Corporation
(Mortgage Pass-Through Certificates Series
2005-RMS1)
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.
4
Section 1.05.
Grant Clause.
10
Section 1.06.
Assignment by Depositor.
10
ARTICLE II. MISCELLANEOUS PROVISIONS
10
Section 2.01.
Binding Nature of Agreement; Assignment.
10
Section 2.02.
Entire Agreement.
10
Section 2.03.
Amendment.
10
Section 2.04.
Governing Law.
11
Section 2.05.
Severability of Provisions.
11
Section 2.06.
Indulgences; No Waivers.
12
Section 2.07.
Headings Not to Affect Interpretation.
12
Section 2.08.
Benefits of Agreement.
12
Section 2.09.
Counterparts.
12
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 March
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 March 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 (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 (the “Transfer Agreements”), has
purchased or received from certain transferors identified below
(the “Transferors”) certain mortgage loans, each
identified on the Mortgage Loan Schedule attached hereto as part of
Schedule A (the “Mortgage Loans”):
1.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and Equifirst Corporation, dated as of June 20, 2002, and
amended as of November 22, 2004;
2.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank, Wilmington Finance, Inc. and Wilmington Finance, A
Division of AIG Federal Savings Bank, dated as of November 23,
2004; and
3.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and Ameritrust Mortgage Company, LLC, dated as of December
1, 2004;
WHEREAS, pursuant to an Assignment and Assumption Agreement (the
“Assignment and Assumption Agreement”), dated as of
March 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 Transfer Agreements and related 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
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.
Securitization Servicing Agreement dated as of March 1, 2005, among
LBH, as seller, JPMorgan Chase Bank, National Association, as
servicer, and the Master Servicer; and
2.
Subservicing Agreement dated as of March 1, 2005, among LBH, as
seller, Wells Fargo Bank, N.A., 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; 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 413,276,626.55. 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)
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
Loan Schedule attached hereto as Schedule A specifies those
Mortgage Loans that 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 related 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 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) and
(xvii))), 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) and (xvii) 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) and (xvii) 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 Mortgage
Loans (except in the case of those representations and warranties
made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi)
and (xvii) 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 Mortgage Loans to the Depos
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