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THORNBURG MORTGAGE HOME LOANS, INC.
AMENDED AND RESTATED
CORRESPONDENT LOAN PURCHASE AGREEMENT
(SERVICING RETAINED LOANS)
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This AMENDED AND RESTATED CORRESPONDENT LOAN PURCHASE AGREEMENT
(this "Agreement") dated as of March 25, 2002, is between THORNBURG
MORTGAGE HOME LOANS, INC., a Delaware corporation ("TMHL"), and the
seller named below (the "Correspondent").
PRELIMINARY STATEMENT
WHEREAS, TMHL and the Correspondent are parties to that certain
Correspondent Loan Purchase Agreement dated as of September 15,
1999 (the "Original Agreement");
WHEREAS, TMHL and the Correspondent desire to amend and restate the
Original Agreement in its entirety as set forth herein;
WHEREAS, in reliance upon the representations and warranties of the
Correspondent contained herein, the Correspondent Sellers Guide and
the Master Servicer Guide which are incorporated by reference
herein, and in the Correspondent Application attached hereto as
Exhibit A, TMHL has agreed to purchase from the Correspondent, from
time to time, and the Correspondent has agreed to sell to TMHL,
from time to time, certain Eligible Loans meeting the criteria set
forth in the Correspondent Sellers Guide;
WHEREAS, the Correspondent may retain the servicing of such
Eligible Loans, in which instance the Correspondent and TMHL desire
to prescribe the terms and conditions of such servicing as set
forth in the Correspondent Sellers Guide and the Master Servicer
Guide, as hereinafter defined;
WHEREAS, TMHL has or is about to contract with the Master Servicer
to master service such Eligible Loans, and may in the future
contract with another master servicer to master service such
Eligible Loans;
WHEREAS, Correspondent shall service such Eligible Loans in
accordance with the Master Servicer Guide and shall recognize the
Master Servicer as the master servicer of such Eligible Loans;
and
WHEREAS, TMHL may transfer and assign, from time to time, Eligible
Loans in Pass-Through Transfers (hereinafter defined) or Agency
Transfers.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, TMHL and the
Correspondent agree as follows:
Section 1. Definitions. Unless otherwise defined herein, the
capitalized terms used herein shall have the meanings set forth in
the Correspondent Sellers Guide or the Master Servicer Guide.
This Agreement shall be deemed to be the "Mortgage Servicing
Contract" or "MSC" as such terms are used in the Master Servicer
Guide.
Section 2. Delivery of the Guides. TMHL has provided to the
Correspondent and the Correspondent has received and reviewed the
Guides, which are incorporated by reference in their entirety into
this Agreement. The Correspondent has had the opportunity to ask
questions of TMHL concerning the Guides. The Correspondent
understands and agrees that TMHL's and/or the Master Servicer's
interpretation of the Guides, as applicable, shall be final and
binding on the Correspondent in all respects. The Correspondent
Sellers Guide is amended as provided in Exhibit D attached
hereto.
Section 3. Sale and Conveyance of Eligible Loans; Possession
of Mortgage Files.
(a) Regarding the purchase of each Eligible Loan or Eligible Loans,
Correspondent agrees to provide TMHL with its wire transfer
instructions. TMHL shall issue a Verification of Purchase and Wire
Transfer by facsimile to Correspondent following such
purchase(s).
(b) On each Purchase Date, the Correspondent, upon the receipt of
the Purchase Price therefor, does hereby sell, transfer, assign,
set over and convey to TMHL, without recourse, but subject to the
terms and provisions of this Agreement, all the right, title, and
interest of the Correspondent in and to one or more Eligible Loans
meeting the requirements of this Agreement. In full consideration
for the sale of each of the Eligible Loans by the Correspondent to
TMHL pursuant to this Agreement, on each Purchase Date TMHL shall
pay to the Correspondent the Purchase Price, as adjusted as set
forth in the Correspondent Sellers Guide, for the Eligible Loans
purchased on such Purchase Date.
(c) The Correspondent will deliver the following items to TMHL on
the Effective Date:
(i) an executed original of this Agreement;
(ii) the Officers' Certificate, substantially in the form of
Exhibit B;
(iii) the Opinion of Counsel, substantially in the form of Exhibit
C, which shall be acceptable to TMHL in its sole discretion;
(iv) a certificate or other evidence of merger or change of name,
signed or stamped by the applicable regulatory authority, if any of
the Eligible Loans which were acquired through merger or originated
by the Correspondent while conducting business under a name other
than its present name;
(v) the written approval of any receiver, conservator or trustee
that is (or may be) necessary for consummation of the transactions
contemplated by this Agreement, which written approval shall be
dated no more that twenty (20) days prior to the Effective Date;
and
(vi) any consents or approvals required by any and all applicable
laws, rules or regulations or pursuant to contract to consummate
the transactions contemplated hereby.
(d) Upon payment for the related Eligible Loan pursuant to this
Section 3, the beneficial ownership of each Mortgage Note, each
Mortgage, and each of the other documents comprising the Mortgage
File with respect to each Eligible Loan is hereby vested in TMHL,
and the ownership of all records and documents with respect to each
Eligible Loan prepared by or which come into the possession of the
Correspondent is hereby immediately vested in TMHL and shall be
held and maintained, in trust, by the Correspondent at the will of
TMHL in such custodial capacity only.
(e) In the event an Eligible Loan purchased by TMHL is prepaid in
full by a borrower within one hundred twenty (120) days of the
purchase of the Eligible Loan by TMHL, the Correspondent shall pay
TMHL the premium, if any, paid by TMHL to the Correspondent for
such Eligible Loan.
(f) In the event any borrower fails to make the first payment
within 30 days of its due date on an Eligible Loan, the
Correspondent shall repurchase such Eligible Loan from TMHL, at
TMHL's sole option, pursuant to the Correspondent Sellers
Guide.
Section 4. Application and Amendment of the Guides; Approval
Notification Letter.
(a) The interpretation of TMHL and the Master Servicer, as
applicable, of the Guides shall be final and binding on the parties
hereto in all respects. Regardless of whether specifically
identified as such, each requirement, standard, instruction or
statement in the Guides, the Correspondent Application, this
Agreement and any Approval Notification Letter shall be deemed to
be a representation and warranty by the Correspondent to TMHL. TMHL
or the Master Servicer may amend, alter, modify, supplement,
replace or restate the Guides (an "Amendment") at any time, and
from time to time, in its sole discretion without the consent of
the Correspondent. TMHL shall give written notice of an Amendment
to the Correspondent, and the Amendment shall become effective
immediately or as specifically provided therein; provided, however,
no Amendment of the Correspondent Sellers Guide shall be effective
with respect to an outstanding Approval Notification Letter unless
consented to by the Correspondent. In the event of any
inconsistencies between the provisions of this Agreement and the
Guides, this Agreement shall control.
(b) In the event of any inconsistencies between the provisions of
this Agreement (including the Guides) and the Approval Notification
Letter, the Approval Notification Letter shall control.
Section 5. Representations, Warranties and Covenants of the
Correspondent; TMHL's Remedies.
(a) The Correspondent hereby makes to TMHL as of the Effective Date
all of the Correspondent's representations, and warranties set
forth in the Guides (other than those representations and
warranties that relate only to individual Eligible Loans, which are
made or effective as set forth in the Correspondent Sellers Guide)
and grants to TMHL the remedies set forth hereunder and in the
Guides with respect to a breach of such representations and
warranties. The Correspondent also hereby covenants with TMHL that
the Correspondent shall continue to comply with all of the
Correspondent's representations, warranties and covenants set forth
in the Guides, each Approval Notification Letter and this
Agreement. The warranties, obligations and representations stated
in the Guides are hereby made or undertaken by the Correspondent
with respect to each of the Eligible Loans to be sold and serviced
by it on behalf of TMHL, unless expressly waived in writing by
TMHL. All warranties made by the Correspondent shall survive (i)
any investigation made by or on behalf of TMHL, its assignee or
designee, (ii) liquidation of the Eligible Loan, (iii) purchase of
the Eligible Loan by TMHL, its designee or assignee, (iv)
repurchase of the Eligible Loan by the Correspondent, and (v)
termination of this Agreement or similar event, and all such
warranties shall inure to the benefit of TMHL. The
Correspondent shall supply evidence that is satisfactory to TMHL of
its compliance with any provisions of the Guides.
(b) If, after purchase of any Eligible Loan by TMHL, any of the
representations or warranties of the Correspondent contained herein
or in the Correspondent Sellers Guide or the Master Servicer Guide
are untrue, TMHL may, at its option, without regard to the
Correspondent's actual or implied knowledge of the untruth of such
warranty (except to the extent the warranty is expressly
conditioned upon the Correspondent's actual knowledge), in addition
to and without limitation as to any other remedy accruing to TMHL,
require the Correspondent to repurchase said Eligible Loan pursuant
to the Guides. It is contemplated that a third party may purchase
from TMHL the Eligible Loans purchased by TMHL from the
Correspondent, and the Correspondent agrees that TMHL may, in its
own name or in the name of the third party, exercise any rights or
remedies at law or in equity on behalf of itself or such third
party.
(c) The Correspondent shall indemnify TMHL and the Master Servicer
from and hold TMHL and the Master Servicer harmless against all
losses, damages, penalties, fines, forfeitures, legal fees and
related costs, judgments, and any other costs, fees, and expenses
heretofore or hereafter resulting from a material breach of any
warranty, obligation or representation contained in or made
pursuant to this Agreement or from any claim, demand, defense or
assertion against or involving TMHL, the Master Servicer or its
assignee or transferee of any Eligible Loan based on or grounded
upon, or resulting from such breach or a breach of any
representation, warranty or obligation made by TMHL in reliance
upon any warranty, obligation or representation made by the
Correspondent contained in or made pursuant to this Agreement. The
Correspondent hereby acknowledges TMHL's intent to sell the
Eligible Loans to third parties in reliance upon the
Correspondent's warranties, obligations and representations. The
obligations of the Correspondent under this Section shall survive
delivery and payment for the Eligible Loans, liquidation or
repurchase of the Eligible Loans and termination of this Agreement
or the expiration hereof.
Section 6. Correspondent's Duties.
The Correspondent shall diligently perform all duties incident to
the selling and servicing of all Eligible Loans that may be sold by
the Correspondent, from time to time. In the performance of such
duties, the Correspondent shall employ procedures and exercise the
same care that it would maintain for loans held in its own
portfolio and in accordance with standards of practice, diligence,
prudence and competence maintained by prudent mortgage lenders in
the jurisdiction where the property is located. The Correspondent
shall also comply with all of the provisions of the Guides and with
all other reasonable requirements and instruction of TMHL and the
Master Servicer, as applicable. The Correspondent shall perform
such services at its sole expense except as otherwise expressly
provided in the Guides. The Correspondent agrees to service each of
such Eligible Loans continuously beginning with the Purchase Date
for such Eligible Loans until either all interest and principal on
each Eligible Loan has been paid in full, the Eligible Loan has
been liquidated as provided in the Guides, or such servicing duties
are terminated by TMHL or the Master Servicer.
Section 7. Compensation.
Unless otherwise set forth herein, the servicing fees to be paid to
Correspondent for each Eligible Loan serviced by the Correspondent
shall be set forth in the related Lock In Reservation.
Section 8. Costs and Expenses; Right of Setoff.
(a) The Correspondent shall pay all fees and expenses incurred in
connection with the transactions contemplated by this Agreement,
including without limitation transfer fees, recording fees, fees
for title policy endorsements and continuations, attorneys' fees
and costs associated with the physical delivery and insured
shipment of the Mortgage Files to TMHL and/or TMHL's document
custodian(s).
(b) TMHL and its successors and assigns shall be entitled to setoff
against any amount to be paid by it to the Correspondent for such
amounts as may be due from the Correspondent under this
Agreement.
Section 9. No Solicitation Rights.
Subject to the provisions set forth in this Section 9, from and
after the date hereof, neither the Correspondent, nor any of its
Affiliates shall solicit, by means of direct mail, or telephonic or
personal solicitation, the Mortgagors of any Eligible Loans for
purposes of prepayment of such Eligible Loans. Solicitations
undertaken by the Correspondent or any affiliate of the
Correspondent that are directed to the general public at large (as
opposed to directed specifically at the Mortgagors), including
without limitation mass mailings based on commercially acquired
mailing lists, and newspaper, radio and television advertisements,
shall not constitute solicitation under this Section 9.
TMHL shall not solicit the customers of Correspondent by means of
direct mail, telephone or personal solicitation. Notwithstanding
the foregoing, solicitations undertaken by TMHL or any affiliate
that are directed to the general public at large (as opposed to
directed specifically at the Mortgagors,) including without
limitation mass mailings based on commercially acquired mailing
lists, and newspaper, radio and television advertisements, shall
not constitute solicitation under this Section 9.
Section 10. Conditions to Purchase.
The obligations of TMHL to purchase any Eligible Loans are subject
to the satisfaction prior to or on each applicable Purchase Date
(or on such other date as expressly provided for herein) of the
following conditions, any one or more of which may be waived in
writing by TMHL:
(a) All of the representations and warranties of the Correspondent
set forth in the Guides shall be true and correct as of the
applicable Purchase Date, and no event shall have occurred which,
with notice or the passage of time, would constitute a Default or
breach under this Agreement or under the Guides.
(b) On each Purchase Date, TMHL shall have received the documents
and instruments required to be delivered to TMHL on or before such
Purchase Date pursuant to the Guides, duly executed by all
signatories other than TMHL as required pursuant to the respective
terms thereof.
(c) All other terms and conditions to be performed on or prior to
the applicable Purchase Date (or such other date as expressly
provided for herein) by the Correspondent shall have been duly
complied with and performed in all respects pursuant to this
Agreement, the applicable Approval Notification Letter and the
Guides.
Section 11. Termination or Suspension Upon Default.
(a) Upon the occurrence of a Default hereunder or under the
Correspondent Sellers Guide or a default under the Master Servicer
Guide as defined therein under either of the Guides, TMHL shall
have the right, at its option and in its sole discretion, to
immediately suspend or terminate the selling privileges of the
Correspondent under this Agreement, in addition to whatever rights
TMHL may have at law or in equity to damages, including injunctive
relief and specific performance. In the event TMHL or the
Correspondent suspends or terminates the selling privileges under
this Agreement, the Correspondent shall not be relieved of its
servicing obligations unless expressly terminated in accordance
with this Agreement, the Correspondent Sellers Guide or the Master
Servicer Guide nor shall the Correspondent be relieved of its other
obligations with respect to Eligible Loans previously purchased by
TMHL including, without limitation, representations and warranties
made herein and in the Correspondent Sellers Guide. TMHL may also
immediately terminate the selling privileges during or after a
suspension of the selling privileges. A termination of this
Agreement or suspension or termination of the selling privileges of
the Correspondent due to a Default shall also terminate or suspend
any outstanding obligations of TMHL as evidenced by Approval
Notification Letters to purchase Eligible Loans from the
Correspondent. TMHL may waive any Default, and upon any waiver,
such Default shall cease to exist. No such waiver shall extend to
any subsequent or other Default or impair any right consequent
thereto except to the extent expressly waived. Suspension or
termination of the selling privileges of the Correspondent or this
Agreement shall not imply any termination of servicing.
(b) TMHL may terminate the servicing rights and obligations of the
Correspondent in accordance with this Agreement, the Correspondent
Sellers Guide or the Master Guide. Notwithstanding the prior
sentence, in no event may the servicing rights and obligations of
the Correspondent be terminated without cause.
Section 12. Master Servicer.
Correspondent acknowledges that TMHL has appointed the Master
Servicer as its master servicer. Notwithstanding anything to the
contrary contained in this Agreement, TMHL shall have the right, in
its sole discretion, to appoint and designate (such action, the
"Appointment") another master servicer as shall be reasonably
acceptable to the Correspondent (in either case, a "Master
Servicer"), as master servicer of some or all of the Eligible Loans
then subject to this Agreement. The Correspondent shall service to,
remit to, and report to, the Master Servicer, all in accordance
with the terms of the Master Servicer Guide and the servicing
provisions set forth in this Agreement. The Correspondent
shall execute any agreements, certificates and documents reasonably
requested by the Master Servicer or TMHL to carry out the terms of
this Section 12.
Upon the Appointment, the Correspondent shall correspond and
communicate solely with the Master Servicer, as if the Master
Servicer were "TMHL" hereunder. Furthermore, the Master Servicer
shall have all rights as designee of TMHL to enforce the
representations and warranties, and all other covenants and
conditions set forth in this Agreement, and the Correspondent shall
follow the instructions of the Master Servicer under this Agreement
as if such instructions were the instructions of TMHL. The Master
Servicer shall have the right to give any waivers or consents
required or allowed under this Agreement on behalf of TMHL, and
shall furthermore be empowered to enter into and execute and
deliver any amendments or modifications to this Agreement as TMHL's
designee hereunder, and such amendments or modifications shall be
binding upon TMHL as if TMHL had executed and delivered the same.
All amounts due TMHL under this Agreement shall be remitted to the
Master Servicer in accordance with the Master Servicer's
instructions.
From and after the Appointment of the Master Servicer pursuant to
this Section 12 until the Master Servicer Termination (as defined
below) the Correspondent shall be required to recognize and deal
with the Master Servicer under this Agreement.
The Correspondent shall treat the Master Servicer as TMHL under
this Agreement in accordance with the provisions of this Section 12
unless and until the Correspondent receives written notice from
TMHL under this Agreement TMHL has terminated the Master Servicer
(such notice, the "Master Servicer Termination"). Upon receipt of
the Master Servicer Termination, the Correspondent shall no longer
recognize or deal with the Master Servicer as TMHL's designee
hereunder, but shall instead deal directly with TMHL or such other
designee appointed by TMHL by Appointment in accordance with this
Section. From and after the receipt of the Master Servicer
Termination, the Correspondent shall service the Eligible Loans in
accordance with the provisions of this Agreement.
Section 13. Miscellaneous Provisions.
(a) Amendment. Except as provided in Section 4 concerning the
Guides and Section 3 concerning the Approval Notification Letters,
this Agreement may be amended from time to time by the
Correspondent and TMHL solely by written agreement signed by the
Correspondent and TMHL.
(b) Governing Law. This Agreement shall be governed by, construed
and interpreted in accordance with the laws of the State of New
York.
(c) Consent to Jurisdiction. The parties agree that, except as set
forth in the Master Servicer Guide, all legal actions and
proceedings arising out of or related to this Agreement, or the
transactions contemplated hereby, shall be brought in a Federal
Court or State Court located in the State of New York, and the
parties hereby waive any objections to summons, service of process,
jurisdiction over the person or subject matter, or the venue of the
courts listed above.
(d) Reproduction of Documents. This Agreement and all documents
relating hereto, including without limitation (i) consents,
waivers, and modifications which may hereafter be executed, (ii)
documents received by any party at the closing, and (iii) financial
statements, certificates, and other information previously or
hereafter furnished, may be reproduced by any photographic,
facsimile transmission, photostatic, microfilm, microcard,
miniature photographic, or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business,
and that any enlargement, facsimile, or further reproduction of
such reproduction shall likewise be admissible in evidence.
(e) 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, or by a nationally recognized overnight courier service,
to the following:
If to the Correspondent:
First Republic Bank
111 Pine Street
San Francisco, CA 94111
Attention: Cathy Myers, Director of Secondary Marketing
or such other address as may hereafter be furnished to TMHL in
writing by the Correspondent, and
If to TMHL:
Thornburg Mortgage Home Loans, Inc.
119 East Marcy Street
Santa Fe, NM 87501
Attention: Ron Chicaferro, President
or such other address as may hereafter be furnished to the
Correspondent by TMHL in writing.
(f) 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 or enforceability
of the other covenants, agreements, provisions, or terms of this
Agreement or the rights of TMHL hereunder. If the invalidity of any
part, provision, representation, or warranty of this Agreement
shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good
faith to develop a structure the economic effect of which is nearly
as possible the same as the economic effect of this Agreement
without regard to such invalidity.
(g) Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to
be an original, such counterparts, together, shall constitute one
and the same agreement.
(h) Successors and Assigns. (A) This Agreement shall inure to the
benefit of and be binding upon the Correspondent and TMHL and their
respective successors and assigns; provided, however that the
Cor
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