MORTGAGE LOAN PURCHASE AGREEMENT Dated as of March 30, 2006 between FIRST HORIZON ASSET SECURITIES INC. (Purchaser) and FIRST TENNESSEE BANK NATIONAL ASSOCIATION (Seller) First Horizon ABS Trust 2006-HE1
Dated
as of March 30, 2006
between
FIRST
HORIZON ASSET SECURITIES INC.
(Purchaser)
and
FIRST
TENNESSEE BANK NATIONAL ASSOCIATION
(Seller)
First
Horizon ABS Trust 2006-HE1
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of March 30, 2006 (this “Agreement”),
between First Tennessee Bank National Association (the “Seller”) and First
Horizon
Asset Securities Inc. (the “Purchaser”).
W
I T N E S S E T H
WHEREAS,
the Seller is the owner of the notes or other evidence of indebtedness (the
“Mortgage Notes”) indicated on Schedule I hereto (the “Mortgage Loan Schedule”),
and the Related Documents (as defined in Section 2.03 below, and together with
the Mortgage Notes, the “Mortgage Loans”);
WHEREAS,
the Seller, as of the date hereof, owns the mortgages (the “Mortgages”) on the
properties (the “Mortgaged Properties”) securing the Mortgage Loans, including
rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise and (b) the proceeds of any insurance policies covering
the Mortgage Loans or the Mortgaged Properties or the obligors on the Mortgage
Loans;
WHEREAS,
the parties hereto desire that the Seller sell the Mortgage Loans to the
Purchaser pursuant to the terms of this Agreement; and
WHEREAS,
pursuant to the terms of a Sale and Servicing Agreement dated as of March 1,
2006 (the “Sale and Servicing Agreement”) among the Seller, as seller and as
servicer, the Purchaser, as depositor, The Bank of New York, as indenture
trustee (the “Indenture Trustee”) and First Horizon ABS Trust 2006-HE1 (the
“Trust”), the Purchaser will convey the Mortgage Loans to the
Trust.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
All
capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Sale and Servicing Agreement.
ARTICLE
II
SALE
OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01 Sale
of Mortgage Loans.
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 and to (i) each Mortgage
Loan
and the related Mortgage File, including its Cut-Off Date Principal Balance
(including all Additional Balances resulting from Draws made pursuant to the
related Mortgage Note prior to the termination of the Trust; provided, however,
that the Purchaser does not assume any obligation under any Mortgage Note to
fund any such future Draws, and the Purchaser will not be obligated or permitted
to fund any such future Draws) and all collections in respect of interest and
principal received after the related Cut-Off Date; (ii) property that secured
a
Mortgage Loan and which has been acquired by foreclosure or deed in lieu of
foreclosure; (iii) its rights under any insurance policies maintained in respect
of the Mortgage Loans (including any insurance proceeds); and (iv) any and
all
proceeds of the foregoing.
2
Section
2.02 Reserved.
Section
2.03 Obligations
of Seller Upon Sale.
In
connection with any transfer 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
or
to the Owner Trustee as assignee of the Purchaser, as applicable, pursuant
to
this Agreement and (b) to deliver to the Purchaser or at the direction of the
Purchaser, to the Indenture Trustee, as applicable, a computer file containing
a
true and complete list of all such Mortgage Loans specifying, among other
things, for each such Mortgage Loan, as of the Cut-Off Date, (1) its account
number and (2) the Cut-Off Date Principal Balance. Such file, which forms a
part
of Exhibit 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 transfer by the Seller, the Seller agrees to:
| (i) |
on
behalf of the Purchaser, on or before the Closing Date, deliver to
and
deposit
with the Purchaser or, at the direction of the Purchaser, to the
Indenture
Trustee
(or its designee), the Mortgage Loan Schedule in computer readable
format;
and
|
| (ii) |
on
behalf of the Purchaser, deliver to and deposit with the
Custodian,
for the benefit of the Indenture Trustee and the Insurer, the following
documents or instruments with respect to each Mortgage Loan so
assigned:
|
(A) the
original Mortgage Note, endorsed in blank, or a copy of such original Mortgage
Note with an accompanying Lost Note Affidavit;
(B) the
original Assignment of Mortgage from the Seller to “The Bank of New York, as
Indenture Trustee for First Horizon ABS Trust 2006-HE1”, which assignment shall
be in form and substance acceptable for recording;
(C) the
original recorded Mortgage or a copy of such recorded Mortgage, certified by
the
Seller as being a true and complete copy thereof; provided that if the original
Mortgage has been delivered for recording to the appropriate public recording
office of the jurisdiction in which the Mortgaged Property is located but has
not yet been returned to the Seller by such recording office, the Seller shall
deliver to the Custodian a copy of such original Mortgage, certified by the
Seller as being a true and complete copy thereof and certifying that such
original Mortgage has been so delivered to such recording office; in all such
instances, the Seller shall deliver or cause to be delivered to the Custodian
the original recorded Mortgage, or a copy thereof, certified by the Seller
as
being a true and complete copy thereof, promptly upon its receipt
thereof;
3
(D) (i)
if
the Credit Limit for such Mortgage Loan is greater than $1,000,000, the original
attorney’s opinion of title or the original policy of title insurance, or a copy
of the original attorney’s opinion of title or the original policy of title
insurance, certified by the Seller as being a true and complete copy thereof;
or
(ii) if the Credit Limit for such Mortgage Loan is equal to or less than
$1,000,000, the Seller may deliver to the Custodian an original lender’s policy
of title insurance or a copy of the original lender’s policy of title insurance
of a copy thereof, certified by the Seller as being a true and complete copy
thereof, or appropriate evidence of lien protection coverage; or (iii) if the
Mortgage Loan is a “combo loan” pursuant to which the Seller has also originated
the related Senior Lien, the Seller may deliver to the Custodian a copy of
the
original attorney’s opinion of title or the original policy of title insurance
for the first lien mortgage loan;
(E) all
original intervening recorded assignments, or copies of such intervening
assignments certified by the Seller as being true and complete copies of the
interim assignments (each such assignment, when duly and validly completed,
to
be in recordable form and sufficient to effect the assignment of and transfer
to
the assignee thereof, under the related Mortgage); provided that if the related
Mortgage has not been returned from the applicable public recording office,
such
assignment of the Mortgage may exclude the information to be provided by the
recording office; and
(F) originals
of all assumption and modification agreements, if any, or copies thereof,
certified by the Seller as being true and complete copies thereof,
provided,
however, that as to any Mortgage Loan, if as evidenced by an Opinion of Counsel
delivered to and in form and substance satisfactory to the Owner Trustee, the
Indenture Trustee, the Insurer and the Rating Agencies, (x) an optical image
or
other representation of the related documents specified in clause (ii)(C) above
is enforceable in the relevant jurisdictions to the same extent as the original
of such document and (y) such optical image or other representation does not
impair the ability of an owner of such Mortgage Loan to transfer or perfect
its
interest in such Mortgage Loan, such optical image or other representation
may
be delivered as required in clause (ii) above.
The
Seller hereby confirms to the Purchaser that it has made the appropriate entries
in its
general
accounting records, to indicate clearly and unambiguously that such Mortgage
Loans have
been
sold to the Purchaser by the Seller, sold by the Purchaser to the Trust and
pledged by the
Trust
to the Indenture Trustee and constitute part of the Trust in accordance with
the
terms of
the Sale
and Servicing Agreement.
The
Purchaser hereby acknowledges its acceptance of all right, title and interest
to
the Mortgage Loans and other property, now existing and hereafter created,
conveyed to it pursuant to Section 2.01 above.
The
Seller hereby acknowledges that, within 90 days following the occurrence of
an
Assignment Event specified in clause (i) of the definition thereof, the Seller
shall (i) segregate (a) the Related Documents from documents and instruments
relating to mortgage loans that are not Mortgage Loans and (b) the Mortgage
Note
from the Related Documents for each Mortgage Loan and shall assemble and
maintain the Mortgage Notes together (separate and apart from the Related
Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan.
The Assignments of Mortgage will be held by the Seller pursuant to Section
2.01(b) of the Sale and Servicing Agreement.
4
The
Seller acknowledges that the Indenture Trustee is required to review the
Mortgage Notes and Related Documents in the case of any delivery required upon
the occurrence of an Assignment Event pursuant to Sections 2.01(d) and (e)
of
the Sale and Servicing Agreement and if the Indenture Trustee finds any document
or documents not to have been properly executed, or to be missing or to be
defective in any material respect, the Indenture Trustee is required to notify
the Seller. If the Seller does not within the time period specified in Section
2.02(b) of the Sale and Servicing Agreement correct or cure such omission or
document deficiency, the Seller shall either repurchase such relevant Mortgage
Loan directly from the Trust or substitute an Eligible Substitute Mortgage
Loan
for such Mortgage Loan, in either case, within the time frame and in the manner
specified in Section 2.02(b) of the Sale and Servicing Agreement.
Without
limiting the generality of the foregoing, the Seller hereby agrees to take
such
actions described in Section 2.01(a) of the Sale and Servicing Agreement as
are
necessary to complete and file any UCC Financing Statements and any continuation
statements required to perfect and protect the Purchaser's interest in the
Mortgage Loans.
Section
2.04 Payment
of Purchase Price for the Mortgage Loans.
(a) In
consideration of the sale of the Mortgage Loans from the Seller to the Purchaser
on or before 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
the
sum of $298,900,600 in respect of the Mortgage Loans (the “Purchase Price”). The
Purchaser shall pay all expenses it incurs in connection with the Trust's
issuance of the Notes, including, without limitation, printing fees incurred
in
connection with the prospectus relating to the Notes, blue sky registration
fees
and expenses, fees and expenses of Purchaser's counsel, fees of the rating
agencies requested to rate the Notes, accountant's fees and expenses and the
fees of the Insurer as set forth in the Insurance and Indemnity
Agreement.
(b) Each
Mortgage Note permits the related Mortgagor to make Draws against
its Mortgage
Loan. Such Draws will create Additional Balances, which Additional Balances
the
Seller shall sell to the Purchaser or its assignee from time to time. In
consideration of the sale of Additional Balances by the Seller to the Purchaser
from time to time, the Purchaser agrees to pay the Seller on the date any such
Additional Balance is delivered an amount equal to the outstanding principal
balance of such Additional Balance. Payment will be made, (i) during the Managed
Amortization Period, (A) from Principal Collections, to the extent that
Principal Collections exceed Draws, and/or (B) by increasing the value of the
Transferor Interest, to the extent that Draws exceed Principal Collections,
and
(ii) during the Rapid Amortization Period, by increasing the value of the
Transferor Interest. Any increase in the value of the Transferor Interest,
which
shall initially be held by the Seller, will result in a corresponding increase
in the value of the Seller's interest in the Purchaser.
5
(c) The
Seller, at its expense, shall within 90 days of an Assignment Event cause the
Custodian to submit to the appropriate recording offices Assignments of Mortgage
to the Indenture Trustee on behalf of the Trust, which may be blanket
assignments if permitted by applicable law, for the Mortgage Loans. In lieu
of
recording any such Assignments of Mortgage, the Custodian, at its expense,
may
provide to the Indenture Trustee and the Insurer and Opinion of Counsel in
a
form reasonably acceptable to the Indenture Trustee and the Insurer, to the
effect that recordation of an Assignment of Mortgage in one or more states
where
the related Mortgaged Properties are located is not necessary to protect the
interests of the Owner Trustee, the Indenture Trustee or the Class A Noteholders
in the related Mortgage Loans. In the event that any such Assignment of Mortgage
is lost or returned unrecorded because of a defect therein, the Seller, at
its
own expense, shall promptly prepare a substitute Assignment of Mortgage or
cure
such defect, as the case may be, and thereafter the Seller shall be required
to
submit each such Assignment of Mortgage for recording. Any failure of the Seller
to comply with this Section shall result in the obligation of the Seller to
repurchase or substitute an Eligible Substitute Mortgage Loan for the related
Mortgage Loan pursuant to the provisions of the Sale and Servicing
Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES;
REMEDIES
FOR BREACH
Section
3.01 Seller
Representations and Warranties Relating to the Mortgage Loans.
The
Seller represents and warrants to the Purchaser that with respect to the
Mortgage Loans as of the
Closing Date, each of the representations and warranties contained in Section
2.04 of the Sale and
Servicing Agreement, with the same force and effect as if fully set forth
herein, are true and
correct
as of the Closing Date.
With
respect to the representations and warranties set forth in this Section 3.01
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 Seller, the
Servicer, the Insurer or a Responsible Officer of the Indenture Trustee,
pursuant to the Sale and Servicing Agreement, that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan 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.
With
respect to any breach of a representation or warranty set forth in this Section
3.01, the Seller shall cure, repurchase or substitute the related Mortgage
Loan
in accordance with the Sale and Servicing Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 3.01 shall survive delivery of the respective Mortgage Files and the
sale and assignment of the Mortgage Loans as contemplated hereby.
Section
3.02 Seller
Representations and Warranties –
General.
The
Seller hereby represents and warrants to the Purchaser that as of the Closing
Date or as of such date specifically provided herein:
6
| (i) |
The
Seller is a duly organized and validly existing national banking
association, in good standing under the laws of the United States
and has
the power and authority to own its assets and to transact the business
in
which it is currently engaged. The
Seller is duly qualified to do business and is in good standing in
each
jurisdiction in which
the character of the business transacted by it or properties owned
or
leased by it requires such qualification and in which the failure
to so
qualify would have a material adverse effect on (a) its business,
properties, assets or condition (financial or other), (b) the
performance of its obligations under this Agreement, (c) the value
or
marketability of the
Mortgage Loans, or (d) the ability to foreclose on the related Mortgaged
Properties;
|
| (ii) |
The
Seller has the power and authority to make, execute, deliver and
perform
its obligations under this Agreement
and to consummate all of the transactions contemplated under this
Agreement, and has taken all necessary action to authorize the execution,
delivery and performance of this Agreement. When executed and delivered,
this Agreement will constitute its legal, valid and binding obligation
enforceable in accordance with its terms, except as enforcement of
such
terms may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or similar laws affecting the enforcement
of
creditors' rights generally and by the availability of equitable
remedies;
|
| (iii) |
The
Seller holds all necessary licenses, certificates and permits from
all
governmental authorities necessary for conducting its business as
it is
presently conducted. It is not required to obtain the consent of
any other
party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau
or
agency in connection with the execution, delivery, performance, validity
or enforceability of this Agreement, except for such consents, licenses,
approvals or authorizations, or registrations or declarations, as
the case
may be, as shall have been obtained or filed, prior to the Closing
Date;
|
| (iv) |
The
execution, delivery and performance of this Agreement by it will
not
conflict with or result in a breach of, or constitute a default under,
any
provision of any existing law or regulation or any order or decree
of any
court applicable to the Seller or any of its properties or any provision
of its Articles of Incorporation or Bylaws, or constitute a material
breach of, or result in the creation or imposition of any lien, charge
or
encumbrance upon any of its properties pursuant to, any mortgage,
indenture, contract or other agreement to which it is a party or
by which
it may be bound;
|
| (v) |
No
certificate of an officer, statement famished in writing or report
delivered pursuant to the terms hereof by the Seller contains any
untrue
statement of a material
fact or omits to state any material fact necessary to make the
certificate, 'statement or report, as applicable, not
misleading;
|
7
| (vi) |
The
transactions contemplated by this Agreement are bona fide, arm’s-length
transactions between the Seller and the Purchaser, and are being
undertaken in the ordinary course of the Seller's
business;
|
| (vii) |
The
Seller is not insolvent, nor will the Seller be made insolvent by
the
transfer of the Mortgage Loans as contemplated by this Agreement,
nor is
the Seller aware of any pending
insolvency;
|
| (viii) |
The
Seller is not in violation of, and the execution and delivery of
this
Agreement by it 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,
which violation would materially and adversely affect the Seller's
condition (financial or otherwise) or operations or any of the Seller's
properties or materially and adversely affect the performance of
any of
its duties hereunder;
|
| (ix) |
The
Seller has designated Memphis, Tennessee as the city and state of
the
Seller's main office in its organization certificate and such designation
has not been changed;
|
| (x) |
There
are no actions or proceedings against, or investigations of the Seller
pending or, to its knowledge, threatened, before any court, administrative
agency or other tribunal (a) that, if determined adversely, would
prohibit
the Seller from entering into this Agreement or the Sale and Servicing
Agreement, (b) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (c) that, if determined
adversely, would prohibit or materially and adversely affect the
Seller's
performance of any of its respective obligations under, or the validity
or
enforceability of, this Agreement or the Sale and Servicing
Agreement;
|
| (xi) |
The
Seller is not selling the Mortgage Loans to the Purchaser under this
Agreement with any intent to hinder, delay or defraud any of its
creditors
and not in contemplation of
insolvency;
|
| (xii) |
The
Seller represents and warrants that it acquired title to the Mortgage
Loans in good faith, without notice of any adverse claim
thereto;
|
| (xiii) |
The
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Seller to the Purchaser pursuant to this Agreement
are
not subject to the bulk transfer laws or any similar statutory provisions
in effect in any applicable
jurisdiction;
|
| (xiv) |
The
Purchase Price constitutes adequate consideration for the security
interest granted pursuant to Section 6.07
hereof;
|
| (xv) |
Each
of the Credit Policy and Executive Committee of the Seller and the
Senior
Credit Policy Committee of the Seller has authorized the Seller to
enter
into transactions of the type contemplated by this Agreement and
each such
authorization has
not been modified or rescinded and is in full force and effect as
of the
date of this Agreement;
and
|
8
| (xvi) |
So
long as the Notes remain outstanding, the Seller will treat this
Agreement
as an official record of the Seller within the meaning of Section
13(e) of
the Federal Deposit Insurance Act (12 U.S.C. Section
1823(e)).
|
| (xvii) |
The
Seller has been since the date of its organization and currently
is a
national banking association organized solely under the laws of the
United
States; the organization certificate and articles of association
of the
Seller designate the State of Tennessee as the state in which the
Seller’s
main office is located; and the chief executive office of the Seller
for
the five years immediately preceding the date hereof continuously
has been
located only in the State of
Tennessee.
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ARTICLE
IV
SELLER'S'
COVENANTS
Section
4.01 Covenants
of the Seller.
The
Seller hereby covenants that except for the transfer
hereunder, the Seller 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;
the Seller will notify the Purchaser, the Insurer and the Owner Trustee
of
the existence of
any Lien
on
any Mortgage
Loan
immediately upon discovery thereof; and the
Seller will defend
the right, title and interest of the Trust and the Indenture Trustee 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 or 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
TERMINATION
Section
5.01 Termination.
The
respective obligations and responsibilities of the Seller and
the
Purchaser created hereby shall terminate upon the termination of the Trust
as
provided in Article
VIII of the Sale and Servicing Agreement.
ARTICLE
VI
MISCELLANEOUS
PROVISIONS
Section
6.01 Amendment.
This
Agreement may be amended from time to time by the Seller and the Purchaser,
with
the consent of the Insurer (which consent shall not be unreasonably
withheld), by written agreement signed by the Seller and the Purchaser, with
the
consent
of the Insurer (which consent shall not be unreasonably withheld).
Section
6.02 Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
9
Section
6.03 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 overnight
mail, certified mail or registered mail, postage prepaid, addressed as
follows:
if
to the
Seller:
First
Tennessee Bank National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
or
such
other address as may hereafter be furnished to the Purchaser in writing by
the
Seller.
if
to the
Purchaser:
First
Horizon Asset Securities Inc.
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇
or
such
other address as may hereafter be furnished to the Seller in writing by the
Purchaser.
If
to
the
Insurer:
at
the
address designated
in the
Insurance Agreement.
Section
6.04 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.
Section
6.05 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 and such counterparts, together, shall constitute
one and the same agreement.
10
Section
6.06 Further
Agreements.
The
Purchaser and the Seller each agree to execute and deliver to the other such
additional documents, instruments or agreements as may be necessary or
reasonable and appropriate to effectuate the purposes of this Agreement or
in
connection with the issuance of any Series of Notes secured by the Mortgage
Loans.
Section
6.07 Intention
of the Parties.
It is
the express intent of the parties hereto that the conveyance of the Mortgage
Loans by the Seller to the Purchaser be, and be construed as, an absolute sale
thereof for all purposes, other than for tax purposes. It is, further, not
the
intention of the parties that such conveyances be deemed a pledge thereof by
the
Seller to the Purchaser. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans are held to be the property of the Seller
or
the Purchaser, respectively, or if for any other reason this Agreement is held
or deemed to create a security interest in such assets, then (i) this Agreement
shall be deemed to be a security agreement within the meaning of the Uniform
Commercial Code of the State of New York and (ii) the conveyance of the Mortgage
Loans provided for in this Agreement shall be deemed to be an assignment and
a
grant by the Seller to the Purchaser of a security interest in all of the
Mortgage Loans, whether now owned or hereafter acquired. 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, 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 Agreement. The Seller
and
the Purchaser shall arrange for filing any Uniform Commercial Code continuation
statements in connection with any security interest granted hereby. The Insurer
and its successors and assigns shall be a third-party beneficiary to the
provisions of this Agreement, and shall be entitled to rely upon and to directly
enforce such provisions of this Agreement.
Section
6.08 Successors
and Assigns: Assignment of Purchase Agreement.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser, the Insurer, the Owner Trustee and the Indenture Trustee.
The obligations of the Seller under this Agreement cannot be assigned or
delegated to a third party without the consent of the Purchaser and the Insurer,
which consent shall be at the Purchaser's and the Insurer's reasonable
discretion, except that the Purchaser acknowledges and agrees that the Seller
may with the consent of the Insurer assign its obligations hereunder to any
Person into which the Seller is merged or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party or any Person
succeeding to the business of the Seller. The parties hereto acknowledge that
the Purchaser is acquiring the Mortgage Loans for the purpose of contributing
them to a trust that will issue a series of notes secured by such Mortgage
Loans. As an inducement to the Purchaser to purchase the Mortgage Loans, the
Seller acknowledges and consents to the assignment by the Purchaser to the
Owner
Trustee and the assignment by the Owner Trustee to the Indenture Trustee, for
the benefit of the Class A Noteholders and the Insurer, of all of the
Purchaser's rights against the Seller pursuant to this Agreement insofar as
such
rights relate to Mortgage Loans transferred to such Owner Trustee and to the
enforcement or exercise of any right or remedy against the Seller pursuant
to
this Agreement by the Owner Trustee or the Indenture Trustee under the Sale
and
Servicing Agreement and the Indenture. Such enforcement of a right or remedy
by
the Owner Trustee or the Indenture Trustee shall have the same force and effect
as if the right or remedy had been enforced or exercised by the Purchaser
directly.
11
Section
6.09 Survival.
The
representations and warranties set forth in Sections 3.01 and 3.02 hereof shall
survive the purchase of the Mortgage Loans hereunder.
12
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above
written.
|
FIRST
HORIZON ASSET SECURITIES, INC.,
as
Purchaser
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
|
FIRST
TENNESSEE BANK NATIONAL
ASSOCIATION,
as Purchaser
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title | ||
| STATE OF TEXAS | ) |
| ) ss: | |
| COUNTY OF DALLAS | ) |
On
the
______ day of March 2006, before me, a Notary Public in and for said State,
personally appeared _______________________________, known to me to be a
___________________________ of First Horizon Asset Securities Inc., the
corporation that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said limited liability company, and
acknowledged to me that such limited liability company executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| __________________________ | |
| Notary Public |
| STATE OF TENNESSEE | ) |
| ) ss: | |
| COUNTY OF SHELBY | ) |
On
the
____ day of March 2006, before me, a Notary Public in and for said State,
personally appeared _______________________________, known to me to be a
___________________________ of First Tennessee Bank National Association, the
national banking association that executed the within instrument, and also
known
to me to be the person who executed it on behalf of said limited liability
company, and acknowledged to me that such limited liability company executed
the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| ____________________________ | |
| Notary Public |