EXECUTION
THORNBURG MORTGAGE HOME LOANS,
INC.,
as SELLER
and
STRUCTURED ASSET SECURITIES
CORPORATION,
as PURCHASER
MORTGAGE LOAN PURCHASE AND ASSIGNMENT
AGREEMENT
Dated as of September 1, 2004
Thornburg Mortgage Securities Trust
2004-3
Mortgage Loan Pass-Through
Certificates, Series 2004-3
TABLE OF CONTENTS
MORTGAGE LOAN PURCHASE AND ASSIGNMENT
AGREEMENT
Page
MORTGAGE LOAN PURCHASE AND ASSIGNMENT
AGREEMENT
1
RECITALS
1
AGREEMENT
2
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
9
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
MORTGAGE LOAN PURCHASE AND ASSIGNMENT
AGREEMENT
This Mortgage Loan Purchase and
Assignment Agreement (the “Agreement”), dated as of
September 1, 2004, 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 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 and to 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 from the Seller, 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 pursuant to the terms of a Trust Agreement,
dated as of September 1, 2004 (the “Trust Agreement”),
by and among the Seller, as seller, the Purchaser, as depositor (in
such capacity, the “Depositor”), Wells Fargo Bank,
N.A., as master servicer (the “Master Servicer”) and
securities administrator, Deutsche Bank Trust Company Delaware, as
Delaware trustee (the “Delaware Trustee”), and Deutsche
Bank National Trust Company, as trustee (the “Trustee”)
of Thornburg Mortgage Securities Trust 2004-3 (the
“Trust”).
5.
The Trust shall issue to the Purchaser
its Mortgage Loan Pass-Through Certificates, Series 2004-3, Class
B4, Class B5 and Class B6 (collectively, the “Privately
Offered Certificates”) and the Class A, Class A-X, Class B1,
Class B2, Class B3 and Class R Certificates (the “Public
Certificates” and, together with the Privately Offered
Certificates, the “Certificates”).
6.
The Public Certificates will be offered
and sold by Lehman Brothers Inc. (“Lehman”), Bear,
Stearns & Co. Inc. (“Bear Stearns”) and Greenwich
Capital Markets, Inc. (“RBS GC” and, together with
Lehman and Bear Stearns, the Underwriters) pursuant to the terms
and conditions of an Underwriting Agreement (Standard Terms)
between the Purchaser and Lehman, dated April 16, 1996 (the
“Underwriting Agreement (Standard Terms)”), as
supplemented by a terms agreement, dated September 24, 2004 (the
“Terms Agreement” and, together with the Underwriting
Agreement (Standard Terms), the “Underwriting
Agreement”) through the use of a prospectus supplement, dated
September 24, 2004 (the “Prospectus Supplement”) and a
related prospectus dated June 25, 2004 the (“Base
Prospectus” and, together with the Prospectus Supplement, the
“Prospectus”). The Privately Offered Certificates
will be offered by Lehman as sole Placement Agent pursuant to a
Purchase Agreement, dated as of September 24, 2004 (the
“Purchase Agreement”), between the Purchaser and Lehman
through the use of a confidential private placement memorandum,
dated September 24, 2004, which private placement memorandum will
incorporate the Prospectus (the “Private Placement
Memorandum”).
7.
Capitalized terms used herein and not
defined herein shall have the meanings assigned to them in the
Trust Agreement.
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 September 29, 2004 (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 shall receive from the Purchaser on the Closing Date
$1,266,119,058.57 representing the 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 Trust 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 Certificateholders 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 without
limitation the Mortgage Notes, the Mortgages, any related insurance
policies, the Seller’s security interest in any collateral
pledged to secure the Mortgage Loans and any Additional Collateral
with respect to the Mortgage Loans and 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 Trustee or any agent of the 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
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 Certificates
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 Trust 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 June 30, 2004;
(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 and the 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 and the Trust
Agreement;
(ii)
this Agreement and the Trust Agreement
have been duly authorized, executed and delivered by the Purchaser
and constitute the legal, valid and binding agreements of the
Purchaser enforceable against the Purchaser in accordance with
their respective 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 provisions of this
Agreement and the Trust 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 hereto 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. The representations and
warranties shall not be impaired by any review and examination of
documents to be delivered or held by the Seller in respect of each
Mortgage Loan or oth
