EXECUTION
LEHMAN BROTHERS HOLDINGS INC.,
SELLER
and
STRUCTURED ASSET SECURITIES
CORPORATION,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT
AGREEMENT
Dated as of February 1, 2005
Structured Asset Investment Loan Trust
2005-2
(Mortgage Pass-Through Certificates
Series 2005-2)
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.
5
Section 1.05.
Grant Clause.
17
Section 1.06.
Assignment by Depositor.
17
ARTICLE II. MISCELLANEOUS
PROVISIONS
18
Section 2.01.
Binding Nature of Agreement;
Assignment.
18
Section 2.02.
Entire Agreement.
18
Section 2.03.
Amendment.
18
Section 2.04.
Governing Law.
19
Section 2.05.
Severability of Provisions.
19
Section 2.06.
Indulgences; No Waivers.
19
Section 2.07.
Headings Not to Affect
Interpretation.
19
Section 2.08.
Benefits of Agreement.
20
Section 2.09.
Counterparts.
20
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
EXHIBIT B
Form of Terms Letter
This MORTGAGE LOAN SALE AND ASSIGNMENT
AGREEMENT, dated as of February 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 February 1, 2005, among
the Depositor, Aurora Loan Services LLC, as master servicer (the
“Master Servicer”), The Murrayhill Company, as credit
risk manager, Wells Fargo Bank, N.A., as securities administrator,
and LaSalle Bank National Association, as trustee (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;
2.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Capital, A Division of
Lehman Brothers Holdings Inc. and Finance America, LLC dated as of
October 25, 2004; and
3.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Capital, A Division of
Lehman Brothers Holdings Inc. and People’s Choice Home Loan,
Inc. dated as of July 1, 2002;
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 Lehman Brothers Bank, FSB and
Bay Capital Corporation dated as of September 20, 2004;
2.
Flow Purchase and Warranties Agreement by
and between Lehman Brothers Bank, FSB and BNC Mortgage Inc. dated
as of March 1, 2002, amended as of December 16, 2002 and June 2,
2003;
3.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Brothers Bank, FSB and
First Horizon Home Loan Corporation dated as of September 24,
2004;
4.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Brothers Bank, FSB and
First NLC Financial Services, Inc. dated as of June 6,
2003;
5.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Brothers Bank, FSB and
First Street Financial, Inc. dated as of March 1,
2004;
6.
Mortgage Loan Purchase and Warranties
Agreement by and between Lehman Brothers Bank, FSB and Home Loan
Corporation d.b.a. Expanded Mortgage Credit dated as of January 23,
2003;
7.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Brothers Bank, FSB and
Lenders Direct Capital Corporation dated as of September 10,
2001;
8.
Mortgage Loan Purchase Agreement by and
between the Bank and Liberty American Mortgage Corp. dated as of
April 11, 2002;
9.
Mortgage Loan Purchase Agreement by and
between Lehman Brothers Bank, FSB and Lime Financial Services, Ltd.
dated as of August 21, 2003;
10.
Loan Purchase Agreement by and between
Lehman Brothers Bank, FSB and American Mortgage Express Financial
dba Millenium Funding Group dated as of June 21, 2004;
11.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Brothers Bank, FSB and
NC Capital Corporation dated as of May 18, 2004;
12.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Brothers Bank, FSB and
Oakmont Mortgage dated as of June 20, 2003;
13.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Brothers Bank, FSB and
Pinnacle Financial Corporation dated as of February 12, 2004, Group
No. 2004-1;
14.
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 November 1,
2002 and Amendment No. 2 dated as of September 23, 2003;
and
15.
Flow Mortgage Loan Purchase and
Warranties Agreement by and between Lehman Brothers Bank, FSB and
Wilmington National Finance, Inc. as of August 22, 2002;
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 or otherwise purchased certain
mortgage loans 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 February 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 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.
Servicing Agreement dated as of February
1, 2005, among LBH, as seller, and Aurora Loan Services LLC, in the
dual capacities of servicer and Master Servicer;
2.
Securitization Servicing Agreement dated
as of February 1, 2005, among LBH, as seller, JPMorgan Chase Bank,
National Association, as servicer, and the Master
Servicer;
3.
Securitization Servicing Agreement dated
as of February 1, 2005, among LBH, as seller, Ocwen Federal Bank
FSB, as servicer, and the Master Servicer;
4.
Subservicing Agreement dated as of
February 1, 2005, among LBH, as seller, Option One Mortgage
Corporation, as servicer, and the Master Servicer; and
5.
Subservicing Agreement dated as of
February 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;
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 of $2,001,755,637. 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 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
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, Deutsche Bank
National Trust Company 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), (xviii) 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), (xviii) 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), (xviii) (xix))
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), (xviii) and (xix)) 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 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 97.54% and
2.46% 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 specifically referred to in the lender’s Title
Insurance Policy or attorney’s opinion of title and abstract
of title delivered to the originator of such Transferred Mortgage
Loan, and (4) such other matters to
