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
2005-7XS)
TABLE OF CONTENTS
Page
ARTICLE I. CONVEYANCE OF MORTGAGE LOANS
3
Section 1.01.
Sale of Mortgage Loans.
3
Section 1.02.
Delivery of Documents.
4
Section 1.03.
Review of Documentation.
4
Section 1.04.
Representations and Warranties of the Seller.
5
Section 1.05.
Grant Clause.
14
Section 1.06.
Assignment by Depositor.
14
ARTICLE II. MISCELLANEOUS PROVISIONS
14
Section 2.01.
Binding Nature of Agreement; Assignment.
14
Section 2.02.
Entire Agreement.
15
Section 2.03.
Amendment.
15
Section 2.04.
Governing Law.
16
Section 2.05.
Severability of Provisions.
16
Section 2.06.
Indulgences; No Waivers.
16
Section 2.07.
Headings Not to Affect Interpretation.
16
Section 2.08.
Benefits of Agreement.
16
Section 2.09.
Counterparts.
17
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 March
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 March 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 “Transfer Agreement”),
has purchased or received from certain transferors identified below
(each a “Transferor”) certain mortgage loans, each
identified on the Mortgage Loan Schedule attached hereto as
Schedule A (the “Transferred Mortgage Loans”):
1.
Mortgage Loan Purchase, Warranties and Servicing Agreement by and
between the Bank and Chase Manhattan Mortgage Corporation, dated as
of December 1, 2004;
2.
Mortgage Loan Purchase, Warranties and Servicing Agreement by and
between the Bank and Chase Home Finance LLC, dated as of January 1,
2005;
3.
Master Mortgage Loan Purchase and Warranties Agreement by and
between the Bank and First National Bank of Nevada, dated as of
August 27, 2004;
4.
Asset Purchase and Interim Servicing Agreement by and between the
Bank and GE Mortgage Services, LLC, a North Carolina limited
liability company dated as of this 31 st day of October,
2004;
5.
Flow Mortgage Loan Purchase and Warranties Agreement by and between
the Bank and Mortgage IT, Inc., dated as of January 6, 2004;
6.
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;
7.
Loan Purchase Agreement by and between the Bank and RBC Mortgage
Company, dated as of September 8, 2003; and
8.
Flow Purchase, Warranties and Servicing Agreement by and between
the Bank and SunTrust Mortgage, Inc., dated March 1, 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, correspondents and
others 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
March 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 foregoing 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 Transfer
Agreements;
WHEREAS, the Seller is a party to the following servicing
agreements (together, 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 March 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 March 1, 2005, among
the Seller, as seller, Bank of America, N.A., as servicer, and
acknowledged by the Master Servicer and the Trustee;
3.
Reconstituted Servicing Agreement, dated as of March 1, 2005, among
the Seller, as seller, Cendant Mortgage Corporation, as servicer,
and acknowledged by the Master Servicer and the Trustee;
4.
Servicing Agreement, dated as of March 1, 2005, among the Seller,
as seller, Chase Home Finance LLC, as servicer, and the Master
Servicer, and acknowledged by the Trustee;
5.
Transfer Notice, dated March 31, 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 March 1, 2005, among
the Seller, as seller, GMAC Mortgage Corporation, as servicer, and
acknowledged by the Master Servicer and the Trustee;
7.
Reconstituted Servicing Agreement, dated as of March 1, 2005, among
the Seller, as seller, SunTrust Mortgage, Inc., as servicer, and
acknowledged by the Master Servicer and the Trustee; and
8.
Subservicing Agreement, dated as of March 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 $516,556,934. 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, U.S. Bank National Association
and Wells Fargo Bank, N.A., 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
(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 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)
The related Mortgage evidences a valid, subsist
|
