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 enforceabil
| 
