THORNBURG MORTGAGE FUNDING,
INC.
as Purchaser
and
THORNBURG MORTGAGE HOME LOANS,
INC.,
as Seller
TMFI MORTGAGE LOAN PURCHASE
AGREEMENT
Dated as of February 1,
2007
(Adjustable Rate and Hybrid Mortgage
Loans)
Thornburg Mortgage Securities Trust
2007-1
Mortgage-Backed Notes, Series
2007-1
Table of
Contents
Page
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ARTICLE I.
DEFINITIONS AND SCHEDULES
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2
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Definitions
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2
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ARTICLE II.
SALE OF MORTGAGE LOANS AND THE CONTRACTUAL RIGHTS; PAYMENT OF
PURCHASE PRICE
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2
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Sale of
Mortgage Loans; Assignment of the Contractual Rights
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2
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Obligations of
the Seller Upon Sale
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2
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Payment of
Purchase Price for the Mortgage Loans
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3
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
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3
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Seller
Representations and Warranties Relating to the Mortgage
Loans
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3
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Seller’s
Representations and Warranties
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4
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Remedies for
Breach of Representations and Warranties
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5
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ARTICLE IV.
SELLER’S COVENANTS
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6
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Covenants of
the Seller
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6
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ARTICLE V.
INDEMNIFICATION
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6
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Indemnification
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6
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ARTICLE VI.
TERMINATION
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7
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Termination
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7
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ARTICLE VII.
MISCELLANEOUS PROVISIONS
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7
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Amendment
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7
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Governing
Law
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7
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Notices
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7
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Severability of
Provisions
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8
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Counterparts
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8
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Further
Agreements
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8
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Intention of
the Parties
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9
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Successors and
Assigns: Assignment of Purchase Agreement
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9
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Schedule
I:
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Mortgage Loan
Schedule.
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I-1
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Schedule
II:
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List of
Servicers and Servicing Agreements
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II-1
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Schedule
III:
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Seller’s Representations and
Warranties Relating to Mortgage Loans .
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III-1
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THIS TMFI MORTGAGE LOAN PURCHASE AGREEMENT,
dated as of February 1, 2007 (the “
Agreement ”), is made and entered into
between Thornburg Mortgage Home Loans, Inc., a Delaware corporation
(the “ Seller ”) and Thornburg
Mortgage Funding, Inc., a Delaware corporation (the “
Purchaser ”).
WITNESSETH
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, 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 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 parties hereto desire that the
Seller sell the Mortgage Loans, the Mortgages and the related
assets referred to above, and assign the Seller’s rights
under the Servicing Agreements to the Purchaser, other than any
servicing rights retained pursuant to the provisions of the
Servicing Agreements, but only to the extent such rights relate to
the servicing of the Mortgage Loans (the “
Contractual Rights ”) pursuant to the terms
of this Agreement with the understanding that Purchaser on the
Closing Date will in turn assign such Mortgage Loans, the Mortgages
and the related assets and the Contractual Rights to Structured
Asset Securities Corporation, a Delaware corporation
(“SASCO”) pursuant to the terms of the SASCO mortgage
loan purchase agreement dated as of February 1, 2007 between the
Purchaser and SASCO (the “SASCO MLPA”); and
WHEREAS, pursuant to the terms of that certain
Sale and Servicing Agreement dated as of February 1, 2007 (the
“ Sale and Servicing Agreement ”)
among Thornburg Mortgage Securities Trust 2007-1 (the “
Trust ”), as issuer (the “
Issuer ”), SASCO, as depositor (the “
Depositor ”), the Seller, as initial seller,
the Purchaser, as seller, Wells Fargo Bank, N.A., as master
servicer and securities administrator and LaSalle Bank National
Association, as indenture trustee (the “
Indenture Trustee
”), SASCO will convey the Mortgage Loans, the Mortgages and
the related assets, the Contractual Rights and rights provided to
the Purchaser hereunder on the Closing Date to the Issuer;
and
WHEREAS on the Closing Date, the Issuer will
pledge the Mortgage Loans, the Mortgages and related assets, the
Contractual Rights and certain rights provided to the Purchaser
hereunder to the Indenture Trustee under an Indenture dated as of
February 1, 2007 (the “ Indenture ”)
between the Issuer and the Indenture Trustee, pursuant to which the
Issuer shall issue its Mortgage-Backed Notes, Series 2007-1 (the
“ Notes ”), the payment of which is to
be secured by such pledged assets.
NOW, THEREFORE, in consideration of the mutual
covenants herein contained, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS AND SCHEDULES
Section 1.01. Definitions . Any
capitalized term used but not defined herein shall have the meaning
assigned thereto in the Sale and Servicing Agreement and the
Indenture.
ARTICLE II.
SALE OF MORTGAGE LOANS AND THE
CONTRACTUAL RIGHTS;
PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of Mortgage Loans; Assignment of the
Contractual Rights .
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, 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 the
Contractual Rights. The Purchaser hereby accepts such assignment,
and shall be entitled to exercise such Contractual Rights 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 and
assignment 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 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 Sale 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, the Depositor
and the Issuer deliver to, and deposit with the Indenture Trustee
(or its custodian), on or before the Closing Date, the documents
described in Section 2.01 of the Sale and Servicing Agreement
including, but not limited to, the Mortgage File and the Servicing
Agreements. In the case of the Mortgage Loans (if any) that have
been prepaid in full after the Cut-off Date and prior to execution
of this Agreement, the Seller, in lieu of delivering the related
Mortgage Files, shall deliver to the Indenture Trustee on behalf of
the Purchaser, the Depositor and the Issuer an Officer’s
Certificate which shall include a statement to the effect that all
amounts received in connection with such prepayments that are
required to be deposited in the Collection Account pursuant to
Section 2.01 of the Sale and Servicing Agreement have been so
deposited.
The Seller hereby confirms to the Purchaser that
it has made the appropriate entries in its general accounting
records, to indicate that the Mortgage Loans have been transferred
as directed by the Purchaser.
The Purchaser hereby acknowledges its acceptance
of all rights, title and interests in, to and under the Mortgage
Loans and other property, and the Contractual Rights, 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 rights, title and interests
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 rights,
title and interests 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 and the Contractual Rights,
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 Indenture.
Section 2.03. Payment of Purchase Price for the Mortgage
Loans . In consideration of the sale of the
Mortgage Loans, the related assets and the Contractual Rights 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 $1,475,654,383.67
(which amount includes accrued interest) (the “
Purchase Price ”) minus any expenses billed
to the Purchaser in connection with the issuance and offering of
the Notes pursuant to the SASCO Mortgage Loan Purchase
Agreement.
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 Purchaser, as of the Closing Date or, if applicable,
such other date as may be specified therein, with the understanding
that the Purchaser pursuant to the terms of the SASCO Mortgage Loan
Purchase Agreement will assign to the Depositor, which will assign
to the Issuer, which will assign to the Indenture Trustee any and
all rights and remedies the respective party may have against the
Seller arising from a breach of any such representation and
warranty.
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 certificate 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.
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
and the provisions of Article V, shall survive the purchase of the
Mortgage Loans and the Contractual Rights hereunder (and in the
case of Section 3.01, shall survive delivery of the respective
Mortgage Files to the Indenture Trustee pursuant to the SASCO
Mortgage Loan Purchase Agreement and the Sale and Servicing
Agreement) and shall inure to the benefit of the Purchaser and its
assigns 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 2.04 of the Sale and Servicing
Agreement.
With respect to the representations and
warranties numbered (iii), (xiv), (xvii), (xviii), (xxix), (xxxii)
and (xxxiii) set forth on Schedule III hereto that are made to the
best of the Seller’s knowledge or as to which the Seller has
no knowledge, if it is discovered by the Depositor, the Master
Servicer or the Indenture Trustee that the substance of such
representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage
Loan or the interest therein of the Noteholders then,
notwithstanding the Seller’s lack of knowledge with respect
to the substance of such representation and warranty being
inaccurate at the time the representation or warranty was made,
such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
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
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 Purchaser and its assigns, 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
Depositor, the Issuer, the Indenture 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 Depositor, the Issuer, the Indenture
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, the Depositor, the Issuer and the
Indenture 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 Depositor,
the Issuer, the Indenture 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 Sale and Servicing Agreement as provided in Article X
thereof.
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:
Thornburg
Mortgage Home Loans, Inc.
150 Washington
Avenue, Suite 302
Santa Fe, New
Mexico 87501