GREENWICH CAPITAL ACCEPTANCE,
INC.,
as Purchaser
and
THORNBURG MORTGAGE HOME LOANS,
INC.,
as Seller
MORTGAGE LOAN PURCHASE
AGREEMENT
Dated as of March 1, 2005
Hybrid and Adjustable-Rate Mortgage
Loans
Thornburg Mortgage Securities Trust
2005-1
Table of Contents
Page
ARTICLE I. DEFINITIONS AND
SCHEDULES
1
Section 1.01.
Definitions
1
ARTICLE II. SALE OF MORTGAGE LOANS;
PAYMENT OF PURCHASE PRICE
2
Section 2.01.
Sale of Mortgage Loans
2
Section 2.02.
Obligations of the Seller Upon
Sale
2
Section 2.03.
Payment of Purchase Price for the
Mortgage Loans
3
ARTICLE III. REPRESENTATIONS AND
WARRANTIES; REMEDIES FOR BREACH
3
Section 3.01
Seller Representations and Warranties
Relating to the Mortgage Loans
3
Section 3.02.
Seller’s Representations and
Warranties
3
Section 3.03
Remedies for Breach of Representations
and Warranties
5
ARTICLE IV. SELLER’S
COVENANTS
5
Section 4.01.
Covenants of the Seller
5
ARTICLE V. INDEMNIFICATION
6
Section 5.01.
Indemnification
6
ARTICLE VI. TERMINATION
6
Section 6.01.
Termination
6
ARTICLE VII. MISCELLANEOUS
PROVISIONS
6
Section 7.01.
Amendment
6
Section 7.02.
Governing Law
6
Section 7.03.
Notices
6
Section 7.04.
Severability of Provisions
7
Section 7.05.
Counterparts
7
Section 7.06.
Further Agreements
7
Section 7.07.
Intention of the Parties
7
Section 7.08.
Successors and Assigns: Assignment of
Purchase Agreement
8
Section 7.09.
Survival
8
Schedule I:
Mortgage Loan Schedule.
I-1
Schedule II:
List of Servicers and Servicing
Agreements
II-1
Schedule III:
Seller’s Representations and
Warranties Relating to Mortgage Loans.
III-1
THIS MORTGAGE LOAN PURCHASE AGREEMENT
dated as of March 1, 2005 (the “ Agreement ”),
is made and entered into between Thornburg Mortgage Home Loans,
Inc. (the “ Seller ”) and Greenwich Capital
Acceptance, Inc. (the “ Purchaser ”).
W I T N E S S E T
H
WHEREAS, the Seller is the owner of the
notes or other evidence of indebtedness (the “ Mortgage
Notes ”) so indicated on Schedule I hereto referred to
below, and the other documents or instruments constituting the
Mortgage File (collectively, the “ Mortgage Loans
”); and
WHEREAS, the Seller is a party to the
servicing agreements identified on Schedule II (each a “
Servicing Agreement ,” and together the “
Servicing Agreements ”), and certain of the Mortgage
Loans are currently being serviced thereunder by the servicers
identified therein; and
WHEREAS, the Seller, as of the date
hereof, owns the mortgages or deeds of trust (the “
Mortgages ”) on the properties (the “
Mortgaged Properties ”) securing such Mortgage Loans,
including rights to (a) any property acquired by foreclosure or
deed in lieu of foreclosure or otherwise, (b) the proceeds of any
insurance policies covering the Mortgage Loans or the Mortgaged
Properties or the obligors on the Mortgage Loans and (c) the
Seller’s security interest in any Additional Collateral;
and
WHEREAS, the parties hereto desire that
the Seller sell the Mortgage Loans, including the Mortgages, and
assign the Seller’s rights under the Servicing Agreements to
the Purchaser pursuant to the terms of this Agreement;
and
WHEREAS, pursuant to the terms of that
certain Pooling and Servicing Agreement dated as of March 1, 2005
(the “ Pooling and Servicing Agreement ”), among
the Purchaser, as depositor, the Seller, as seller, Wells Fargo
Bank, N.A., as master servicer and securities administrator,
Deutsche Bank Trust Company Delaware, as Delaware trustee and
Deutsche Bank National Trust Company, as trustee (in such capacity,
the “ Trustee ”), the Purchaser will convey the
Mortgage Loans to Thornburg Mortgage Securities Trust 2005-1 (the
“ Trust ”).
NOW, THEREFORE, in consideration of the
mutual covenants herein contained, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS AND SCHEDULES
Section 1.01.
Definitions . Any capitalized term used but not defined
herein and below shall have the meaning assigned thereto in the
Pooling and Servicing Agreement, the related Prospectus Supplement
dated March 24, 2005 (the “ Prospectus
Supplement ”) to the Prospectus dated February 22,
2005 (the “ Prospectus ”) or the related Private
Placement Memorandum dated March 24, 2005 (the “
Memorandum ”).
ARTICLE II.
SALE OF MORTGAGE LOANS; PAYMENT OF
PURCHASE PRICE
Section 2.01.
Sale of Mortgage Loans; Assignment of
the Servicing Agreements .
The Seller, concurrently with the execution and delivery of
this Agreement, does hereby sell, assign, set over, and otherwise
convey to the Purchaser, without recourse, all of its right, title
and interest in, to and under (i) each Mortgage Loan, including the
related Cut-Off Date Principal Balance, all interest due thereon
after the Cut-Off Date and all collections in respect of interest
and principal due after the Cut-Off Date (and all principal
received before the Cut-Off Date to the extent such principal
relates to a Monthly Payment due after the Cut-Off Date); (ii)
property which secured such Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure; (iii) its
interest in any insurance policies in respect of the Mortgage
Loans; (iv) any Additional Collateral with respect to the Mortgage
Loans; and (v) all proceeds of any of the foregoing.
Concurrently with the execution and
delivery of this Agreement, the Seller hereby assigns to the
Purchaser all of its rights and interest (but none of its
obligations) under each Servicing Agreement, other than any
servicing rights retained pursuant to the provisions of such
Servicing Agreements, to the extent relating to the Mortgage Loans.
The Purchaser hereby accepts such assignment, and shall be
entitled to exercise all such rights of the Seller under each
Servicing Agreement as if the Purchaser had been a party to each
such agreement.
Section 2.02.
Obligations of the Seller Upon Sale
and Assignment . In
connection with the transfer pursuant to Section 2.01 hereof, the
Seller further agrees, at its own expense, on or prior to the
Closing Date, (a) to indicate in its books and records that the
Mortgage Loans have been sold to the Purchaser pursuant to this
Agreement and (b) to deliver to the Purchaser and the Trustee a
computer file containing a true and complete list of all such
Mortgage Loans specifying for each such Mortgage Loan, as of the
Cut-Off Date, (i) its account number and (ii) the Cut-Off Date
Principal Balance and such file, which forms a part of Schedule A
to the Pooling and Servicing Agreement, shall also be marked as
Schedule I to this Agreement and is hereby incorporated into and
made a part of this Agreement.
In connection with such conveyance by the
Seller, the Seller shall on behalf of the Purchaser deliver to, and
deposit with the Trustee, as assignee of the Purchaser, on or
before the Closing Date, the documents described in Section 2.01 of
the Pooling and Servicing Agreement including, but not limited to,
the Servicing Agreements.
The Seller hereby confirms to the
Purchaser and the Trustee that it has made the appropriate entries
in its general accounting records, to indicate that the Mortgage
Loans have been transferred to the Trustee, or a custodian
appointed pursuant to the Pooling and Servicing Agreement to act on
behalf of the Trustee, and that the Mortgage Loans constitute part
of the Trust in accordance with the terms of the Pooling and
Servicing Agreement.
The Purchaser hereby acknowledges its
acceptance of all right, title and interest in, to and under the
Mortgage Loans and other property, and its rights under the
Servicing Agreements, now existing or hereafter created, conveyed
to it pursuant to Section 2.01 hereof.
The parties hereto intend that the
transaction set forth herein be a non-recourse sale by the Seller
to the Purchaser of all of the Seller’s right, title and
interest in, to and under the Mortgage Loans and other property
described in Section 2.01. Nonetheless, in the event the
transaction set forth herein is deemed not to be a sale, the Seller
hereby grants to the Purchaser a security interest in all of the
Seller’s right, title and interest in, to and under the
Mortgage Loans and other property described in Section 2.01,
whether now existing or hereafter created, to secure all of the
Seller’s obligations hereunder; and this Agreement shall
constitute a security agreement under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of the Pooling
and Servicing Agreement.
Section 2.03.
Payment of Purchase Price for the
Mortgage Loans . In
consideration of the sale of the Mortgage Loans from the Seller to
the Purchaser on the Closing Date, the Purchaser agrees to pay to
the Seller on the Closing Date by transfer of immediately available
funds, an amount equal to $1,258,034,666.36 (which amount includes
accrued interest) (the “ Purchase Price ”).
The Seller shall pay, and be billed directly for, the amounts
set forth in the Thornburg Securitization Engagement Letter dated
October 18, 2001, including all reasonable expenses incurred by the
Purchaser in connection with the issuance of the Certificates,
including, without limitation, printing fees incurred in connection
with the Prospectus Supplement and the Memorandum relating to the
Certificates, fees and expenses of Purchaser’s counsel, fees
of the rating agencies requested to rate the Certificates,
accountant’s fees and expenses and the fees and expenses of
the Trustee and other out-of-pocket costs, if any.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES
FOR BREACH
Section 3.01.
Seller Representations and Warranties
Relating to the Mortgage Loans . The Seller hereby makes the representations
and warranties set forth in Schedule III hereto applicable to the
Mortgage Loans and by this reference incorporated herein, to the
Depositor and the Trustee, as of the Closing Date or, if
applicable, such other date as may be specified therein.
Section 3.02.
Seller’s Representations
and Warranties . The Seller represents, warrants and
covenants to the Purchaser as of the Closing Date or as of such
other date specifically provided herein:
(i)
the Seller is duly organized, validly
existing and in good standing as a corporation under the laws of
the State of Delaware and is and will remain in compliance with the
laws of each state in which any Mortgaged Property is located to
the extent necessary to fulfill its obligations
hereunder;
(ii)
the Seller has the power and authority to
hold each Mortgage Loan, to sell each Mortgage Loan, to execute,
deliver and perform, and to enter into and consummate, all
transactions contemplated by this Agreement. The Seller has duly
authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement and this
Agreement, assuming due authorization, execution and delivery by
the Purchaser, constitutes a legal, valid and binding obligation of
the Seller, enforceable against it in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy,
insolvency or reorganization or other similar laws in relation to
the rights of creditors generally;
(iii)
the execution and delivery of this
Agreement by the Seller and the performance of and compliance with
the terms of this Agreement will not violate the Seller’s
articles of incorporation or by-laws or constitute a material
default under or result in a material breach or acceleration of,
any material contract, agreement or other instrument to which the
Seller is a party or which may be applicable to the Seller or its
assets;
(iv)
the Seller is not in violation of, and
the execution and delivery of this Agreement by the Seller and its
performance and compliance with the terms of this Agreement will
not constitute a violation with respect to, any order or decree of
any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction over the
Seller or its assets, which violation might have consequences that
would materially and adversely affect the condition (financial or
otherwise) or the operation of the Seller or its assets or might
have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(v)
the Seller does not believe, nor does it
have any reason or cause to believe, that it cannot perform each
and every covenant contained in this Agreement;
(vi)
the Seller has good, marketable and
indefeasible title to the Mortgage Loans, free and clear of any and
all liens, pledges, charges or security interests of any nature
encumbering the Mortgage Loans;
(vii)
the Mortgage Loans are not being
transferred by the Seller with any intent to hinder, delay or
defraud any creditors of the Seller;
(viii)
there are no actions or proceedings
against, or investigations known to it of, the Seller before any
court, administrative or other tribunal (A) that might prohibit its
entering into this Agreement, (B) seeking to prevent the sale of
the Mortgage Loans or the consummation of the transactions
contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by the Seller of
its obligations under, or validity or enforceability of, this
Agreement;
(ix)
no consent, approval, authorization or
order of any court or governmental agency or body is required for
the execution, delivery and performance by the Seller of, or
compliance by the Seller with, this Agreement or the consummation
of the transactions contemplated by this Agreement, except for such
consents, approvals, authorizations or orders, if any, that have
been obtained; and
(x)
the consummation of the transactions
contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance
of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to the bulk transfer or any similar
statutory provisions.
(b)
On the Closing Date, the Seller shall
deliver to the Purchaser a certificate of an authorized officer of
the Seller to the effect that, as of the Closing Date, the
information set forth in the Prospectus Supplement and the
Memorandum, as it relates to the Thornburg Information does not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made,
not misleading.
Section 3.03.
Remedies for Breach of Representations
and Warranties . It is
understood and agreed that (i) the representations and warranties
set forth in Sections 3.01 and 3.02 shall survive the sale of the
Mortgage Loans to the Purchaser and shall inure to the benefit of
the Purchaser and the Trust, notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment or the
examination or lack of examination of any Mortgage File and (ii)
the remedies for the breach of such representations and warranties
and for the failure to deliver the documents referred to in Section
2.02 hereof shall be as set forth in Section 2.03 of the Pooling
and Servicing Agreement.
It is understood and agreed that the
representations and warranties set forth in Section 3.01 hereof
shall survive delivery of the respective Mortgage Files to the
Trustee on behalf of the Purchaser.
ARTICLE IV.
SELLER’S COVENANTS
Section 4.01.
Covenants of the Seller
. The Seller hereby covenants that,
except for the transfer hereunder, it will not sell, pledge, assign
or transfer to any other Person, or grant, create, incur, assume or
suffer to exist any Lien on any Mortgage Loan, or any interest
therein; it will notify the Trust, as assignee of the Purchaser, of
the existence of any Lien on any Mortgage Loan immediately upon
discovery thereof; and it will defend the right, title and interest
of the Trust, as assignee of the Purchaser, in, to and under the
Mortgage Loans, against all claims of third parties claiming
through or under the Seller; provided , however ,
that nothing in this Section 4.01 shall prevent or be deemed to
prohibit the Seller from suffering to exist upon any of the
Mortgage Loans any Liens for municipal or other local taxes and
other governmental charges if such taxes or governmental charges
shall not at the time be due and payable or if the Seller shall
currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books
adequate reserves with respect thereto.
ARTICLE V.
INDEMNIFICATION
Section 5.01.
Indemnification
. The Seller agrees to indemnify
and to hold each of the Purchaser, the Trust, the Trustee, each of
the officers and directors of each such entity and each person or
entity who controls each such entity or person harmless against any
and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments, and any other costs, fees and
expenses that the Purchaser, the Trust, the Trustee, or any such
person or entity may sustain in any way related to the failure of
the Seller to perform its duties in compliance with the terms of
this Agreement. The Seller shall immediately notify the
Purchaser and the Trustee if a claim is made under this provision.
The Seller shall assume the defense of any such claim and pay
all expenses in connection therewith, including reasonable counsel
fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against the Purchaser, the Trust, the
Trustee or any such person or entity in respect of such
claim.
ARTICLE VI.
TERMINATION
Section 6.01.
Termination . The respective obligations and
responsibilities of the Seller and the Purchaser created hereby
shall terminate, except for the respective indemnity obligations as
provided herein, upon the termination of the Trust as provided in
Article X of the Pooling and Servicing Agreement.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section 7.01.
Amendment . This Agreement may be amended from time to
time by the Seller and the Purchaser by written agreement signed by
the parties hereto.
Section 7.02.
Governing Law . This Agreement shall be governed by and
construed in accordance with the laws of the State of New York,
without reference to its conflict of law provisions (other than
Section 5-1401 of the General Obligations Law), and the
obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
Section 7.03.
Notices . All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered at or mailed by registered mail,
postage prepaid, addressed as follows:
if to the Seller:
Thornburg Mortgage Home Loans,
Inc.
150 Washington Avenue, Suite
302
Santa Fe, New Mexico 87501
Attention: Deborah Burns
or such other address as may hereafter be
furnished to the Purchaser in writing by the Seller.
if to the Purchaser:
Greenwich Capital Acceptance,
Inc.
600 Steamboat Road
Greenwich, Connecticut
06830
Attention: Legal
Department
or such other address as may hereafter be
furnished to Thornburg Mortgage Home Loans, Inc. in writing by the
Purchaser.
Section 7.04.
Severability of Provisions
. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall
be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity of enf
