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EXECUTION
THORNBURG MORTGAGE HOME LOANS, INC.,
as SELLER
and
STRUCTURED ASSET SECURITIES CORPORATION,
as PURCHASER
MORTGAGE LOAN PURCHASE AND ASSIGNMENT
AGREEMENT
Dated as of December 1, 2003
Thornburg Mortgage Securities Trust
2003-6
Mortgage-Backed Notes, Series 2003-6
_____________________________________________________________
TABLE OF CONTENTS
MORTGAGE LOAN PURCHASE AND ASSIGNMENT
AGREEMENT
Page
Section 1.
Purchase and Sale of Mortgage Loans and Contractual Rights
2
Section 2.
Representations and Warranties
4
Section 3.
Survival of Representations
7
Section 4.
Repurchase, Purchase or Substitution of Mortgage Loans
7
Section 5.
Covenants
7
Section 6.
Successors and Assigns, Additional Information
8
Section 7.
Indemnification
8
Section 8.
Notices
8
Section 9.
Representations and Indemnities to Survive
9
Section 10.
Miscellaneous
9
Section 11.
Severability of Provisions
9
SCHEDULE I: MORTGAGE LOAN SCHEDULE
I-1
SCHEDULE II: SERVICING AGREEMENTS
II-1
SCHEDULE III: MORTGAGE LOAN REPRESENTATIONS AND
WARRANTIES
III-1
This Mortgage Loan Purchase and Assignment Agreement (the
“Agreement”), dated as of December 1, 2003, is executed
on the Closing Date (as defined below) by and between Structured
Asset Securities Corporation, a Delaware corporation (such entity,
and its successors and assigns, being referred to herein as the
“Purchaser”) and Thornburg Mortgage Home Loans, Inc., a
Delaware corporation, as seller (the “Seller”).
The Purchaser and the Seller hereby recite and agree as
follows:
RECITALS
1.
Schedule I attached hereto and made a part hereof (the
“Mortgage Loan Schedule”) lists certain conventional,
hybrid and adjustable rate, first lien residential mortgage loans
(collectively, the “Mortgage Loans”) owned by the
Seller that the Seller desires to sell, without recourse, to the
Purchaser.
2.
The Seller is a party to the servicing agreements identified on
Schedule II hereto (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.
3.
The Seller desires to sell, without recourse, all of its right,
title and interest in the Mortgage Loans to the Purchaser, to
assign all of its rights and interest as mortgage loan owner under
the Servicing Agreements, in each case, only with respect to the
portion of the Mortgage Loans subject thereto (as so limited, the
“Contractual Rights”), and to delegate all of its
obligations thereunder, to the Purchaser.
4.
The Purchaser desires to purchase such Mortgage Loans and the
Contractual Rights, and the Purchaser intends immediately
thereafter to transfer all of its right, title and interest in and
to the Mortgage Loans and the Contractual Rights to Thornburg
Mortgage Securities Trust 2003-6 (the “Trust”) pursuant
to the terms of a Sale and Servicing Agreement, dated as of
December 1, 2003 (the “Sale and Servicing Agreement”),
by and among the Trust, as issuer, the Purchaser, as depositor (in
such capacity, the “Depositor”), the Seller, Wells
Fargo Bank Minnesota, National Association, as master servicer (the
“Master Servicer”) and Deutsche Bank National Trust
Company, as indenture trustee (the “Indenture
Trustee”).
5.
The Trust intends to pledge the Mortgage Loans and the Contractual
Rights to the Indenture Trustee pursuant to the terms of an
Indenture, dated as of December 1, 2003 (the
“Indenture”), between the Trust and the Indenture
Trustee and shall issue to the Purchaser the Thornburg Mortgage
Securities Trust 2003-6 Mortgage-Backed Notes, Series 2003-6, Class
A-1, Class A-2 and Class M (the “Notes”).
6.
The Notes will be offered and sold by Lehman Brothers Inc.
(“LBI”), Bear, Stearns & Co Inc. (“Bear
Stearns”) and Greenwich Capital Markets, Inc. (“RBS
GC” and, together with LBI and Bear Stearns, the
“Underwriters”) pursuant to the terms and conditions of
an Underwriting Agreement (Standard Terms) between the Purchaser
and LBI, dated April 25, 2002 (the “Underwriting Agreement
(Standard Terms)”), as supplemented by a terms agreement,
dated December 12, 2003 (the “Terms Agreement” and,
together with the Underwriting Agreement (Standard Terms), the
“Underwriting Agreement”) between the Purchaser and
LBI, as representative of the Underwriters, through the use of a
prospectus supplement, dated December 12, 2003 (the
“Prospectus Supplement”) and a related prospectus dated
August 26, 2003 the (“Base Prospectus” and, together
with the Prospectus Supplement, the “Prospectus”).
7.
Capitalized terms used herein and not defined herein shall have the
meanings assigned to them in the Sale and Servicing Agreement and
the Indenture.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises herein made
and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1.
Purchase and Sale of Mortgage Loans and Contractual Rights .
(a)
Concurrently with the execution and delivery hereof on December 22,
2003 (the “Closing Date”), the Seller hereby sells,
assigns, transfers and otherwise conveys to the Purchaser, without
recourse, all of its right, title and interest in and to the
Mortgage Loans, including all interest and principal received on or
with respect to the Mortgage Loans on or after the Cut-off Date
(other than any such payments that were due on or prior to such
date) and all payments due after such date but received prior to
such date and intended by the related Mortgagors to be applied
after such date, together with all of the Seller’s right,
title and interest in and to any related escrow account and all
amounts from time to time credited to and the proceeds of such
account, the Seller’s rights under any insurance policies
related to the Mortgage Loans and the Seller’s security
interest in any collateral pledged to secure the Mortgage Loans,
including the Mortgaged Properties and any Additional Collateral.
Concurrently with the execution and delivery of this Agreement, the
Seller hereby assigns to the Purchaser all of its Contractual
Rights. In consideration of such assignment and the covenants
of the Seller set forth herein, the Seller (i) shall receive from
the Purchaser on the Closing Date, $1,075,490,414.39 (including
accrued interest, if any) and (ii) agrees to cause the Owner
Trustee to deliver to the Seller, or its designee, a 100%
Percentage Interest in the Trust Certificate, as full consideration
representing price and accrued interest for the transfer of the
Mortgage Loans and the Contractual Rights to the Purchaser.
The Purchaser hereby accepts such assignment, and shall be
entitled to exercise all Contractual Rights of the Seller under
each Servicing Agreement as if the Purchaser had been a party to
each such agreement.
(b)
In connection with such transfer and assignment of the Mortgage
Loans hereunder, the Seller does hereby deliver, or cause to be
delivered, to the Purchaser (or its designee) each Mortgage File
relating to the Mortgage Loans in the manner set forth in Section
2.01 of the Sale and Servicing Agreement. In the case of
Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the execution of this Agreement, the
Seller, in lieu of delivering the related Mortgage Files, shall
herewith deliver to the Purchaser 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 have been so deposited.
The Seller hereby convenants not to take any action
inconsistent with the ownership interest of the Purchaser or the
holders of the Notes in the Mortgage Files.
(c)
The Purchaser and the Seller intend that on the Closing Date, the
conveyance by the Seller to the Purchaser of all its right, title
and interest in and to the Mortgage Loans and the Contractual
Rights pursuant to this Agreement shall be, and be construed as, a
sale of the Mortgage Loans, without recourse. It is, further,
not intended that such conveyance be deemed to be a pledge of the
Mortgage Loans or the Contractual Rights by the Seller to the
Purchaser to secure a debt or other obligation of the Seller.
However, in the event that the Mortgage Loans and the
Contractual Rights are held to be property of the Seller, or if
this Agreement is held or deemed to create a security interest in
the Mortgage Loans and the Contractual Rights, then it is intended
that (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; (ii) the conveyances provided for in
this Section 1 shall be deemed to be a grant by the Seller to the
Purchaser, to secure payment in full of the Secured Obligations (as
defined below), of a security interest in all of the Seller’s
right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to the
Contractual Rights and the Mortgage Loans, including the Mortgage
Notes, the Mortgages, any related insurance policies, the
Seller’s security interest in any collateral pledged to
secure the Mortgage Loans, any Additional Collateral with respect
to the Mortgage Loans, the Guaranty Surety Bond conveyed to the
Seller from Cendant, all other documents in the related Mortgage
Files, and all accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property constituting part of the assets of the Trust, arising from
or relating to (A) the Mortgage Loans, including with respect to
each Mortgage Loan, the Mortgage Note and related Mortgage, and all
other documents in the related Mortgage Files, and including any
Qualifying Substitute Mortgage Loans; (B) pool insurance policies,
hazard insurance policies and any bankruptcy bond relating to the
foregoing, if applicable; (C) all amounts payable on or after the
Cut-off Date (other than any such payments that were due on or
prior to such date) to the holders of the Mortgage Loans in
accordance with the terms thereof; (D) all income, payments,
proceeds and products of the conversion, voluntary or involuntary,
of the foregoing into cash, instruments, securities or other
property; and (E) all cash and non-cash proceeds of any of the
foregoing; (iii) the possession or control by the Indenture Trustee
or any agent of the Indenture Trustee of Mortgage Notes or such
other items of property as constitute instruments, money,
documents, advices of credit, letters of credit, goods,
certificated securities or chattel paper shall be deemed to be
possession or control by the secured party, or possession or
control by the Purchaser, for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code (including,
without limitation, Sections 9-312 or 9-313 thereof); and (iv)
notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or
acknowledgements, receipts or confirmations from, securities
intermediaries, bailees or agents of, or persons holding for, the
Indenture Trustee, as applicable, for the purpose of perfecting
such security interest under applicable law. “Secured
Obligations” means the rights of the Purchaser under this
Agreement and the amount owing the holders of the Notes
representing an interest in the Mortgage Loans and the Contractual
Rights. The Seller shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to
ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, the Contractual Rights and the
other property described above, such security interest would be
deemed to be a perfected security interest of first priority under
applicable law and would be maintained as such throughout the term
of this Agreement. Without limiting the generality of the
foregoing, the Seller shall prepare and deliver to the Purchaser at
least two months prior to any filing date, and the Purchaser shall
file, or shall cause to be filed, at the expense of the Seller, all
filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code as in effect in
any jurisdiction to perfect the Purchaser’s security interest
in or lien on the Mortgage Loans and the Contractual Rights.
Notwithstanding the foregoing provisions of this Section 1, (i) the
Seller, as a servicer of certain of the Mortgage Loans, shall
retain servicing rights (including, without limitation, primary
servicing and master servicing) with respect to certain of the
Mortgage Loans, and rights to receive servicing fees, servicing
income, reimbursement for advances made in respect of such Mortgage
Loans and other payments made as compensation for such servicing
subject to the Sale and Servicing Agreement pursuant to the terms
and conditions set forth therein (collectively, the
“Servicing Rights”) and (ii) the Servicing Rights are
not included in the collateral in which the Seller grants a
security interest in favor of the Purchaser pursuant to the
immediately preceding paragraph, nor are the Servicing Rights
included in the assets being sold pursuant to this Agreement.
2.
Representations and Warranties .
(a)
The Seller hereby represents and warrants to the Purchaser, as of
the date of this Agreement, that:
(i)
the Seller has been duly organized and is validly existing and in
good standing as a Delaware corporation, with full power and
authority to enter into and perform its obligations under this
Agreement, and is in compliance with the laws of each jurisdiction
in which a Mortgaged Property is located to the extent necessary to
ensure the enforceability of each Mortgage Loan;
(ii)
this Agreement has been duly authorized, executed and delivered by
the Seller and assuming the due authorization, execution and
delivery thereof by the Purchaser, constitutes a legal, valid and
binding agreement of the Seller, enforceable against it in
accordance with its terms, subject to (A) bankruptcy, insolvency,
receivership, conservatorship, reorganization, moratorium or other
similar laws affecting creditors’ rights generally or the
rights of creditors of federally chartered savings associations,
(B) general principles of equity regardless of whether enforcement
is sought in a proceeding in equity or at law, and (C) public
policy considerations limiting the enforceability of provisions of
this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(iii)
neither the execution and delivery by the Seller of this Agreement,
nor the performance by the Seller of the provisions hereof, will
(A) conflict with or result in a breach of, or constitute a
default under, any of the provisions of the charter or bylaws of
the Seller or any law, governmental rule or regulation or any
judgment, decree or order binding on the Seller or any of its
properties, or any of the provisions of any indenture, mortgage,
deed of trust, contract or other instrument to which the Seller is
a party or by which it is bound, or (B) result in the creation of
any lien, charge, or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, deed of
trust, contract or other instrument, which, in the case of either
(A) or (B), would have a material adverse effect on its ability to
perform its obligations hereunder or on the financial condition of
the Seller;
(iv)
there are no actions, suits or proceedings against the Seller
pending or, to the knowledge of the Seller, threatened, or, to the
knowledge of the Seller, investigations pending, before any court,
administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or (C) which might materially and adversely affect the
performance by the Seller of its obligations under, or the validity
or enforceability of, this Agreement;
(v)
there has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Seller
since September 30, 2003;
(vi)
the Seller is not in violation of its charter or bylaws or in
default under any agreement, indenture or instrument the effect of
which default would have a material adverse effect on the ability
of the Seller to perform its obligations under this Agreement or on
the financial condition of the Seller;
(vii)
the Seller is not a party to, bound by or in breach or violation of
any indenture or other agreement or order or regulation of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over it that materially and adversely affects
the (A) ability of the Seller to perform its obligations under this
Agreement or (B) the business, operations, financial condition,
properties or assets of the Seller; and
(viii)
no consent, approval, authorization or order of any federal or
state court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated by the
terms of this Agreement.
(b)
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, the Trust
and the Indenture Trustee, as of the Closing Date or, if
applicable, such other date as may be specified therein.
(c)
The Purchaser hereby represents and warrants to the Seller that as
of the date of this Agreement:
(i)
it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full
corporate power and authority to enter into and perform its
obligations under this Agreement;
(ii)
this Agreement has been duly authorized, executed and delivered by
the Purchaser and constitutes the legal, valid and binding
agreement of the Purchaser enforceable against the Purchaser in
accordance with its terms, subject to (A) bankruptcy, insolvency,
receivership, conservatorship, reorganization, moratorium or other
similar laws affecting creditors’ rights generally, (B)
general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law, and (C) public policy
considerations limiting the enforceability of the provisions of
this Agreement which purport to provide indemnification from
penalties under applicable securities laws;
(iii)
neither the execution and delivery by the Purchaser of this
Agreement, nor the performance by the Purchaser of the provisions
hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the charter or
bylaws of the Purchaser or any law, governmental rule or regulation
or any judgment, decree or order binding on the Purchaser or any of
its properties, or any of the provisions of any indenture,
mortgage, deed of trust, contract or other instrument to which the
Purchaser is a party or by which it is bound, or (B) result in the
creation of any lien, charge, or encumbrance upon any of its
properties pursuant to the terms of any such indenture, mortgage,
deed of trust, contract or other instrument, which, in the case of
either (A) or (B), would have a material adverse effect on its
ability to perform its obligations hereunder or on the financial
condition of the Purchaser;
(iv)
there are no actions, suits or proceedings against the Purchaser
pending or, to the knowledge of the Purchaser, threatened, or, to
the knowledge of the Purchaser, investigations pending, before any
court, administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or (C) which might materially and adversely affect the
performance by the Purchaser of its obligations under, or the
validity or enforceability of, this Agreement;
(v)
the Purchaser is not in violation of its charter or bylaws or in
default under any agreement, indenture or instrument the effect of
which default would have a material adverse effect on the ability
of the Purchaser to perform its obligations under this Agreement or
on the financial condition of the Purchaser;
(vi)
the Purchaser is not a party to, bound by or in breach or violation
of any indenture or other agreement or order or regulation of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over it that materially and adversely affects
the (A) ability of the Purchaser to perform its obligations under
this Agreement or (B) the business, operations, financial
condition, properties or assets of the Purchaser; and
(vii)
no consent, approval, authorization or order of any federal or
state court or governmental agency or body is required for the
consummation by the Purchaser of the transactions contemplated by
the terms of this Agreement.
3.
Survival of Representations . Each of the
representations and warranties of the Seller and the Purchaser
contained herein shall survive the purchase and sale of the
Mortgage Loans and the Contractual Rights pursuant to this
Agreement and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the
Mortgage Notes and notwithstanding subsequent termination of this
Agreement.
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