EXECUTION
GREENWICH CAPITAL ACCEPTANCE,
INC.,
as Purchaser
and
THORNBURG MORTGAGE HOME LOANS,
INC.,
as Seller
MORTGAGE LOAN PURCHASE
AGREEMENT
Dated as of June 1, 2005
Hybrid and Adjustable-Rate Mortgage
Loans
Thornburg Mortgage Securities Trust
2005-2
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 June 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 June 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,
Wilmington Trust Company, as Delaware trustee and LaSalle Bank
National Association, as trustee (in such capacity, the “
Trustee ”), the Purchaser will convey the Mortgage
Loans to Thornburg Mortgage Securities Trust 2005-2 (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 June 27, 2005 (the “
Prospectus Supplement ”) to the Prospectus dated
February 22, 2005 (the “ Prospectus ”) or the
related Private Placement Memorandum dated June 27, 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
$1,624,301,979.60 (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 t
