EXECUTION COPY
THIRD STREET FUNDING LLC
American General Mortgage Loan Trust 2009-1,
American General Mortgage Pass-Through
Certificates, Series 2009-1
PURCHASE AGREEMENT
July 30, 2009
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
Ladies and Gentlemen:
Third Street Funding LLC, as depositor
(the “Depositor”), proposes to sell to you (the
“Purchaser”) the American General Mortgage Loan Trust
2009-1, American General Mortgage Pass-Through Certificates, Series
2009-1, Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7,
Class A-8, Class A-9 and Class A-10 (the
“Offered Certificates”). The Offered Certificates
are to be issued pursuant to a Pooling and Servicing Agreement,
dated July 30, 2009 (the “Pooling and Servicing
Agreement”) among the Depositor, Wells Fargo Bank, N.A., as
master servicer (in such capacity, the “Master
Servicer”) and securities administrator (in such capacity,
the “Securities Administrator”), PennyMac Loan
Services, LLC, as servicer (the “Servicer”), MorEquity,
Inc., as interim subservicer (the “Interim
Subservicer”), The Bank of New York Mellon Trust Company,
National Association, as custodian (the “Custodian”),
Select Portfolio Servicing, Inc., as back-up servicer (the
“Back-up Servicer”), and U.S. Bank National
Association, as trustee (the “Trustee”). The
Offered Certificates will evidence beneficial ownership interests
in the Trust Fund (as defined in the Pooling and Servicing
Agreement) consisting primarily of fixed-rate, one- to four-family
residential mortgage loans (the “Mortgage Loans”).
One or more elections will be made to treat certain assets of
the Trust as real estate mortgage investment conduits
(“REMICs”) for federal income tax purposes.
Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the
Pooling and Servicing Agreement.
SECTION 1.
Representations and Warranties of the
Depositor . The
Depositor represents and warrants to, and agrees with, the
Purchaser as follows:
(a)
The Depositor has been duly organized and
is validly existing and in good standing under the laws of its
state of organization, with full power and authority to own its
assets and conduct its business as presently conducted and as
proposed to be conducted, is duly qualified as a foreign company in
good standing in all jurisdictions in which the ownership or lease
of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not have a material adverse effect on the Depositor, and
is
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conducting its business so as to comply
in all material respects with the applicable statutes, ordinances,
rules and regulations of the jurisdictions in which it is
conducting business;
(b)
As of the Closing Date, the Offered
Certificates will be duly and validly authorized and, when such
Offered Certificates are duly and validly executed by the
Securities Administrator and authenticated by the Certificate
Registrar and issued and delivered in accordance with the Pooling
and Servicing Agreement and delivered and paid for as provided
herein, will be validly issued and outstanding and entitled to the
benefits and security afforded by the Pooling and Servicing
Agreement;
(c)
The execution and delivery by the
Depositor of this Agreement and the Pooling and Servicing
Agreement, and the issuance, sale and delivery of the Offered
Certificates, are within the power of the Depositor and have been,
or will have been, duly authorized by all necessary action on the
part of the Depositor; and neither the execution and delivery by
the Depositor of such instruments, nor the consummation by the
Depositor of the transactions herein or therein contemplated, nor
the compliance by the Depositor with the provisions hereof or
thereof, will (i) conflict with or result in a breach of, or
constitute a default under, any of the provisions of its
organizational documents, (ii) conflict with any of the provisions
of any law, governmental rule, regulation, judgment, decree or
order binding on the Depositor or its properties,
(iii) conflict with any of the provisions of any indenture,
mortgage, contract or other instrument to which the Depositor is a
party or by which it is bound, except such conflicts that would not
materially and adversely affect such execution and delivery,
consummation or compliance by the Depositor, or (iv) result in the
creation or imposition of any lien, charge or encumbrance upon any
of its property pursuant to the terms of any such indenture,
mortgage, contract or other instrument;
(d)
This Agreement has been duly executed and
delivered by the Depositor;
(e)
As of the date hereof, the Pooling and
Servicing Agreement and this Agreement will constitute legal, valid
and binding obligations of the Depositor, enforceable against the
Depositor in accordance with their terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting
creditors’ rights generally from time to time in effect, and
to general principles of equity;
(f)
To the best of the Depositor’s
knowledge, no consent, approval, authorization, order,
registration, license, permit or qualification of or with any court
or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Offered
Certificates, or the consummation by the Depositor of other
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as (a)
have been previously obtained or (b) the failure to which to obtain
would not have a material adverse effect on the performance by the
Depositor of its obligations under, or the validity or
enforceability of, this Agreement;
(g)
The Depositor has not offered or sold or
solicited any offer to buy, and will not offer or sell or solicit
any offer to buy, directly or indirectly, any Offered Certificates
or any other security in any manner that would render the issuance
and sale of such Offered Certificates under this Agreement, or the
reoffer and resale of such Offered Certificates as
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contemplated by Section 3 hereof,
a violation of the Securities Act of 1933, as amended (the
“Act”);
(h)
Assuming the truth and accuracy of the
representations and warranties made by the Purchaser herein, the
offer or sale of the Offered Certificates to the Purchaser in the
manner contemplated herein is exempt from registration under the
Act; and the Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as
amended;
(i)
The Trust is not (and after the offering
of the Offered Certificates will not be) an investment company
subject to registration under the Investment Company Act of 1940,
as amended (the “Investment Company Act”) and is not
under the control of an investment company;
(j)
At the Closing Date the representations
and warranties made by the Depositor in the Pooling and Servicing
Agreement are true and correct.
(k)
At the time of the execution and delivery
of the Pooling and Servicing Agreement, (i) the Depositor will be
the beneficial owner of the Mortgage Loans being transferred to the
Trustee pursuant to the Pooling and Servicing Agreement, free and
clear of any lien or other encumbrance and (ii) the Depositor will
not have assigned to any person any of its right, title or interest
in the Mortgage Loans or in the Pooling and Servicing Agreement or
the Offered Certificates;
(l)
At the time of the execution and delivery
of the Pooling and Servicing Agreement, the Depositor will have the
power and authority to transfer the Mortgage Loans to the Trustee
and to transfer the Offered Certificates to the Purchaser and, upon
execution and delivery to the Trustee of the Pooling and Servicing
Agreement and delivery to the Purchaser of the Offered Certificates
and payment therefor, the Mortgage Loans will have been duly and
validly assigned to the Trustee in accordance with the terms of the
Pooling and Servicing Agreement;
(m)
Any taxes, fees and other governmental
charges in connection with the execution and delivery of this
Agreement and the Pooling and Servicing Agreement, and the
execution, delivery and issuance of the Offered Certificates have
been or will be paid at or prior to the Closing Date;
(n)
The Offered Certificates and the Pooling
and Servicing Agreement will conform in all material respects to
the descriptions thereof contained in the Memorandum (as defined
below);
(o)
As of the date hereof, the information
provided to the Purchaser (in writing or via electronic
transmission) concerning the characteristics of the Mortgage Loans
is true and correct in all material respects, except for errors the
Depositor or a Seller has provided corrected information to the
Purchaser prior to the date hereof;
(p)
As of the date thereof and as of the
Closing Date, the Memorandum will not contain any untrue statement
of fact or omit to state a material fact necessary in order
to
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make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided , however , that the Depositor make no
representation or warranty as to the Initial Purchaser Information
(as defined in the Indemnification Agreement);
(q)
There are no actions, proceedings or
investigations pending with respect to which the Depositor has
received service of process or, to the knowledge of the Depositor,
threatened by or before any court, administrative agency or other
tribunal to which the Depositor is a party or of which any of its
properties is the subject (i) which if determined adversely to the
Depositor would (A) have a material adverse effect on the business
or financial condition of the Depositor or (B) have a material
adverse effect on the Mortgage Loans, (ii) asserting the invalidity
of any of the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreement (collectively, the “Operative
Documents”), (iii) seeking to prevent the issuance of the
Offered Certificates or the consummation by the Depositor of any of
the transactions contemplated by the Operative Documents or (iv)
which would be reasonably likely to materially and adversely affect
the performance by the Depositor of its obligations under, or the
validity or enforceability of, the Operative Documents.
SECTION 2.
Sale and Delivery to the Purchaser;
Closing . On the basis
of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, the Depositor agrees
to sell to the Purchaser, and the Purchaser agrees to purchase from
the Depositor, the Offered Certificates at the purchase price set
forth in Schedule I hereto (the “Purchase
Price”).
Delivery of and payment for the Offered
Certificates will be made at the office of the Purchaser located at
Eleven Madison Avenue, New York, New York, 10010, at such time as
shall be on Schedule I hereto or at such other time
thereafter as the Purchaser and the Depositor shall agree upon,
each such time being herein referred to as a “Closing
Date.” Delivery of such Offered Certificates shall be
made by the Depositor to the Purchaser against payment of the
Purchase Price in immediately available funds wired to such bank as
may be designated by the Depositor, or paid by such other manner as
may be agreed upon by the Depositor and the Purchaser.
The parties hereto agree that settlement
for all securities sold pursuant to this Agreement shall take place
on the terms set forth herein as permitted under Rule 15c6-1(d)
under the Exchange Act.
SECTION 3.
Resale of Offered
Certificates . The
Purchaser understands that the Offered Certificates have not been
registered under the Act in reliance upon the exemption provided in
Section 4(2) of the Act, and it agrees that it will not sell or
otherwise transfer any of the Offered Certificates except upon
compliance with the provisions of this Agreement and the Pooling
and Servicing Agreement. The Purchaser represents and
warrants that it will make sales of the Offered Certificates to
institutional purchasers that the Purchaser reasonably believes are
“qualified institutional buyers” as provided by Rule
144A of the rules and regulations promulgated under the Act and
otherwise in compliance with Rule 144A.
Prior to the resale by the Purchaser of
any Offered Certificates, the Depositor will provide the Purchaser
with a supplemental memorandum and a base memorandum
(collectively,
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together with any exhibits or supplements
thereto, the “Memorandum”), for purposes of resales of
the Offered Certificates to qualified institutional buyers in
transactions not involving a public offering. Upon the
Purchaser’s approval of the final Memorandum and prior to the
delivery of the Memorandum to an investor, the Depositor and the
Sellers shall execute and deliver to the Purchaser, and the
Purchaser shall execute and deliver to the Depositor and the
Sellers, an indemnification and contribution agreement in
substantially the form attached hereto as Exhibit A (the
“Indemnification Agreement”).
The Memorandum shall contain, among other
things, information concerning the Pooling and Servicing Agreement,
the Mortgage Loans and the Offered Certificates. Upon the
completion but prior to any distribution of the Memorandum, the
Depositor shall deliver to the Purchaser, at the Depositor’s
sole expense, a letter from PricewaterhouseCoopers LLP
(“PwC”), dated on or prior to the date of the
Memorandum and satisfactory in form and substance to the Depositor
and the Purchaser to the effect that (A) any decrement tables,
yield tables and any related statistical data relating to the
Offered Certificates or the Mortgage Loans contained in or
incorporated by reference in the Memorandum are accurate based upon
the modeling assumptions set forth therein, and (B) covering
such other matters relating to the Memorandum as the Purchaser or
the Depositor may reasonably request.
The Depositor authorizes the Purchaser to
deliver to investors purchasing from the Purchaser copies of the
Pooling and Servicing Agreement, the Memorandum, and any
information required to be delivered to prospective transferees in
accordance with Rule 144A (“Rule 144A
Information”).
If, at any time prior to three (3) months
following the Closing Date, any event occurs as a result of which
the Memorandum (as then amended or supplemented) would include an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, the
Depositor shall promptly notify the Purchaser and prepare and
furnish to the Purchaser an amendment or supplement to the
Memorandum reasonably satisfactory to the Purchaser that will
correct such statement or omission; provided ,
however , that after the expiration of such 3 month period,
the Depositor shall use commercially reasonable efforts to assist
the Purchaser (at the Purchaser’s cost) in updating the
Memorandum. Notwithstanding the foregoing, the Depositor will
not be required to prepare any amendments or supplements to the
Memorandum to reflect any reductions in the principal balances of
the Offered Certificates occurring subsequent to the date of the
initial Memorandum (or any information based on such reduced
principal balances, including any hypothetical payment scenarios),
nor will the Depositor be required to reflect any such reductions
or information in any amendment or supplement to the
Memorandum.
SECTION 4.
Representations, Warranties and
Covenants of the Purchaser .
The Purchaser represents and warrants to, and agrees with,
the Depositor that:
(a)
The Purchaser is duly authorized to enter
into and has duly executed and delivered this Agreement.
(b)
The Purchaser understands that the
Offered Certificates have not been registered or qualified under
the Act or the securities laws of any state and, therefore, cannot
be
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resold unless they are registered or
qualified thereunder or unless an exemption from registration or
qualification is available.
(c)
The Purchaser is acquiring the Offered
Certificates for its own account and not with a view to the public
offering thereof in violation of the Act (subject, nevertheless, to
the understanding that disposition of the Purchaser’s
property shall at all times be and remain within the
Purchaser’s control).
(d)
The Purchaser is a sophisticated
institutional investor having such knowledge and experience in
financial and business matters that it is capable of evaluating the
merits and risks of investment in the Offered Certificates, and is
an “accredited investor” within the meaning of Rule
501(a)(1), (2) or (3) of Regulation D promulgated under the
Act.
(e)
The Purchaser shall not solicit any offer
to buy or to sell, or offer to sell, any of the Offered
Certificates to any investor unless (i) the Purchaser has provided
to such prospective investor a copy of the Memorandum and (ii) the
Purchaser reasonably believes such investor is a qualified
institutional buyer.
(f)
Neither the Purchaser nor anyone acting
on its behalf has offered, transferred, pledged, sold or otherwise
disposed of any Offered Certificate, any interest in any Offered
Certificate or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of
any Offered Certificate, any interest in any Offered Certificate or
any other similar security from, or otherwise approached or
negotiated with respect to any Offered Certificate, any interest in
any Offered Certificate or any other similar security with, any
person in any manner, or made any general solicitation by means of
general advertising or in any other manner, which would constitute
a distribution of the Offered Certificates under the Act or which
would require registration pursuant to the Act nor will the
Purchaser act, nor has it authorized or will authorize any person
to act, in such manner with respect to any Offered Certificate.
The Purchaser will not sell or otherwise transfer any of the
Offered Certificates, except in compliance with the provisions of
the Pooling and Servicing Agreement.
SECTION 5.
Agreements . The Depositor agrees with the Purchaser
that:
(a)
The Depositor will (i) furnish the
Purchaser with copies of the Memorandum for a particular offering
of Offered Certificates in such quantities as the Purchaser may
from time to time reasonably request (such period not to exceed
three (3) months from the Closing Date), and (ii) if prior to the
completion of the resale of such Offered Certificates by the
Purchaser (but not to exceed three (3) months from the Closing
Date) any event shall have occurred as a result of which such
Memorandum as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Memorandum
is delivered, not misleading, notify the Purchaser and upon request
of the Purchaser prepare and furnish without charge to the
Purchaser an amended Memorandum or a supplement to such Memorandum
which will correct such statement or omission; provided ,
however , that after the expiration of such 3 month period,
the Depositor shall use commercially reasonable efforts to assist
the Purchaser (at the Purchaser’s cost) in updating the
Memorandum. Notwithstanding the foregoing, the Depositor will
not be required to prepare any amendments or
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supplements to the Memorandum to reflect
any reductions in the principal balances of the Offered
Certificates occurring subsequent to the date of the initial
Memorandum (or any information based on such reduced principal
balances, including any hypothetical payment scenarios), nor will
the Depositor be required to reflect any such reductions or
information in any amendment or supplement to the
Memorandum.
(b)
The Depositor will furnish such
information, execute such instruments and take such actions as may
be reasonably requested by the Purchaser to qualify the Offered
Certificates for sale pursuant to an exemption under the state
securities or Blue Sky Laws of any state as the Purchaser may
designate and to determine the legality of such Offered
Certificates for purchase by institutional investors;
provided , however , that the Depositor shall not be
required to qualify to do business in any jurisdiction where it is
not qualified on the date hereof or to take any action which would
subject it to general or unlimited service of process in any
jurisdiction in which it is not now subject to such service of
process.
(c)
So long as the Offered Certificates are
outstanding, the Depositor will cause the Securities Administrator
to furnish to the Purchaser (and any subsequent beneficial owner of
an Offered Certificate) (i) copies of the annual independent public
accountants’ servicing report furnished to the Trustee
pursuant to the Pooling and Servicing Agreement, (ii) in connection
with any transfer made pursuant to Rule 144A under the Act,
any Rule 144A Information and (iii) within a reasonab
