MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT dated as of August 30, 2005 by and
between FIRST TENNESSEE BANK NATIONAL ASSOCIATION (the "Seller"), and FIRST
HORIZON ASSET SECURITIES INC., a Delaware corporation (the "Purchaser").
WHEREAS, the Seller owns certain Mortgage Loans (as hereinafter defined)
which Mortgage Loans are more particularly listed and described in Schedule A
attached hereto and made a part hereof.
WHEREAS, the Seller and the Purchaser wish to set forth the terms pursuant
to which the Mortgage Loans, excluding the servicing rights thereto, are to be
sold by the Seller to the Purchaser.
WHEREAS, First Tennessee Mortgage Services, Inc. ("FTMSI") owns the
servicing rights to the Mortgage Loans pursuant to the Servicing Rights Transfer
and Subservicing Agreement (as hereinafter defined).
WHEREAS, the Seller has engaged FTMSI to service the mortgage Loans
pursuant to the Servicing Agreement (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration, and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
ARTICLE I
Definitions
Agreement: This Mortgage Loan Purchase Agreement, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.
Alternative Title Product: Means one of the following: (i) Lien Protection
Insurance issued by Integrated Loan Services or ATM Corporation of America, (ii)
a Mortgage Lien Report issued by EPN Solutions/ACRAnet, (iii) a Property Plus
Report issued by Rapid Refinance Service through ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, or (iv)
such other alternative title insurance product that the Seller utilizes in
connection with its then current underwriting criteria.
Closing Date: August 30, 2005
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and which governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
Section 216 of the Code.
Coop Shares: Shares issued by a Cooperative Corporation.
Cooperative Loan: Any Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Coop Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Custodian: First Tennessee Bank National Association, and its successors
and assigns, as custodian under the Custodial Agreement dated as of August 30,
2005 by and among The Bank of New York, as trustee, First Horizon Home Loan
Corporation, as master servicer, and the Custodian.
Cut-Off Date: August 1, 2005.
Delay Delivery Mortgage Loans: The Mortgage Loans for which all or a
portion of a related Mortgage File is not delivered to the Trustee or to the
Custodian on its behalf on the Closing Date. The number of Delay Delivery
Mortgage Loans shall not exceed 25% of the aggregate number of Mortgage Loans as
of the Closing Date.
FHHLC: First Horizon Home Loan Corporation, a Kansas corporation, in its
capacity as the seller of the Mortgage Loans pursuant to MLPA I.
GAAP: Generally accepted accounting principles as in effect from time to
time in the United States of America.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS
System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for any MERS Mortgage Loan.
MLPA I: The mortgage loan purchase agreement, dated as of August 30, 2005,
between First Horizon Home Loan Corporation, as seller, and First Tennessee Bank
National Association, as purchaser, as related to the transfer, sale and
conveyance of the Mortgage Loans.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Mortgage: The mortgage, deed of trust or other instrument creating a first
lien on the property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 3.1 pertaining to
a particular Mortgage Loan and any additional documents required to be added to
the Mortgage File pursuant to this Agreement.
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Mortgage Loans: The mortgage loans transferred, sold and conveyed by the
Seller to the Purchaser, pursuant to this Agreement.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Purchase Price: $363,494,941.14
Purchaser: First Horizon Asset Securities Inc., a Delaware
corporation, in its capacity as purchaser of the Mortgage Loans from the Seller
pursuant to this Agreement.
Recognition Agreement: With respect to any Cooperative Loan, an agreement
between the Cooperative Corporation and the originator of such Mortgage Loan
which establishes the rights of such originator in the Cooperative Property.
Security Agreement: The security agreement with respect to a
Cooperative Loan.
Seller: First Tennessee Bank National Association, and its successors
and assigns, in its capacity as seller of the Mortgage Loans pursuant to this
Agreement.
Servicing Agreement: The servicing agreement, dated as of November 26,
2002 by and between First Tennessee Bank National Association, and its
assigns, as owner, and First Tennessee Mortgage Services, Inc., as servicer.
Servicing Rights Transfer and Subservicing Agreement: The servicing rights
transfer and subservicing agreement, dated as of November 26, 2002 by and
between First Horizon Home Loan Corporation, as transferor and subservicer, and
First Tennessee Mortgage Services, Inc., as transferee and servicer.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed hereunder, such successor.
ARTICLE II
Purchase and Sale
Section 2.1 Purchase Price. In consideration for the payment to it of the
Purchase Price on the Closing Date, pursuant to written instructions delivered
by the Seller to the Purchaser on the Closing Date, the Seller does hereby
transfer, sell and convey to the Purchaser on the Closing Date, but with effect
from the Cut-off Date, without recourse, (i) all right, title and interest of
the Seller in the Mortgage Loans, excluding the servicing rights thereto, and
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all property securing such Mortgage Loans, including all interest and principal
received or receivable by the Seller with respect to the Mortgage Loans on or
after the Cut-off Date and all interest and principal payments on the Mortgage
Loans received on or prior to the Cut-off Date in respect of installments of
interest and principal due thereafter, but not including payments of principal
and interest due and payable on the Mortgage Loans on or before the Cut-off
Date, (ii) all of the Seller's rights as Purchaser under MLPA I including,
without limitation, the rights of the Seller to require FHHLC to cure breaches
of representations and warranties with respect to the Mortgage Loans as provided
thereunder, (iii) all right, title and interest of the Seller in, to and under
the Servicing Agreement, and (iv) all proceeds from the foregoing. Items (i)
through (iv) in the preceding sentence are herein referred to collectively as
"Mortgage Assets."
Section 2.2 Timing. The sale of the Mortgage Assets hereunder shall take
place on the Closing Date.
ARTICLE III
Conveyance and Delivery
Section 3.1 Delivery of Mortgage Files. In connection with the transfer
and assignment set forth in Section 2.1 above, the Seller has delivered or
caused to be delivered to the Trustee or to the Custodian on its behalf (or, in
the case of the Delay Delivery Mortgage Loans, will deliver or cause to be
delivered to the Trustee or to the Custodian on its behalf within thirty (30)
days following the Closing Date) the following documents or instruments with
respect to each Mortgage Loan so assigned (collectively, the "Mortgage Files"):
(a) (1) the original Mortgage Note endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
________________, without recourse," with all intervening
endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such
endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note); or
(2) with respect to any Lost Mortgage Note, a lost note
affidavit from the Seller stating that the original Mortgage Note
was lost or destroyed, together with a copy of such Mortgage Note;
(b) except as provided below and for each Mortgage Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage or a copy of such
Mortgage certified by the Seller as being a true and complete copy
of the Mortgage, and in the case of each MERS Mortgage Loan, the
original Mortgage, noting the presence of the MIN of the Mortgage
Loans and either language indicating that the Mortgage Loan is a MOM
Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was
not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated
thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded;
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(c) a duly executed assignment of the Mortgage in blank (which may be
included in a blanket assignment or assignments), together with,
except as provided below, all interim recorded assignments of such
mortgage (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 Mortgage to which the
assignment relates); 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;
(d) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any;
(e) either the original or duplicate original title policy (including
all riders thereto) with respect to the related Mortgaged Property,
if available, provided that the title policy (including all riders
thereto) will be delivered as soon as it becomes available, and if
the title policy is not available, and to the extent required
pursuant to the second paragraph below or otherwise in connection
with the rating of the Certificates, a written commitment or interim
binder or preliminary report of the title issued by the title
insurance or escrow company with respect to the Mortgaged Property,
or, in lieu thereof, an Alternative Title Product; and
(f) in the case of a Cooperative Loan, the originals of the following
documents or instruments:
(1) The Coop Shares, together with a stock power in blank;
(2) The executed Security Agreement;
(3) The executed Proprietary Lease;
(4) The executed Recognition Agreement;
(5) The executed UCC-1 financing statement with evidence of
recording thereon which have been filed in all places required to
perfect the Seller's interest in the Coop Shares and the Proprietary
Lease; and
(6) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for
recordation).
ARTICLE IV
Representations and Warranties
Section 4.1 Representations and Warranties of the Seller. (a) The Seller
hereby represents and warrants to the Purchaser, as of the date of execution and
delivery hereof, that:
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(1) The Seller is duly organized as a national banking association
and is validly existing under the laws of the United States of America and
is duly authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by the Seller in any state
in which a Mortgaged Property is located or is otherwise not required
under applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the extent
necessary to ensure its ability to enforce each Mortgage Loan and to
perform any of its other obligations under this Agreement in accordance
with the terms thereof.
(2) The Seller has the requisite power and authority to sell each
Mortgage Loan, and to execute, deliver and perform, and to enter into and
consummate the transactions contemplated by this Agreement and has duly
authorized by all necessary action on the part of the Seller the
execution, delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery thereof by the
other parties thereto, constitutes a legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its
terms, except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally or of creditors of depository
institutions, the accounts of which are insured by the FDIC, and (b) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller, the
sale of the Mortgage Loans by the Seller under this Agreement, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof are
in the ordinary course of business of the Seller and will not (a) result
in a material breach of any term or provision of the charter or by-laws of
the Seller or (b) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under, the
terms of any other material agreement or instrument to which the Seller is
a party or by which it may be bound, or (c) constitute a material
violation of any statute, order or regulation applicable to the Seller of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Seller, other than such conflicts, breaches,
violations, accelerations or defaults which, individually or on a
cumulative basis, would not have a material adverse effect on the Seller
and its subsidiaries, taken as a whole, or the consummation of the
transactions contemplated by this Agreement; and the Seller is not in
breach or violation of any material indenture or other material agreement
or instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it which breach or violation may materially impair the
Seller's ability to perform or meet any of its obligations under this
Agreement.
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(4) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would prohibit the
execution or delivery of, or performance under, this Agreement by
the Seller.
(b) The Seller hereby assigns, transfers and conveys to the Purchaser
all of its rights with respect to the Mortgage Loans including,
without limitation, the representations and warranties of FHHLC made
pursuant to MLPA I, together with all rights of the Seller to
require FHHLC to cure any breach thereof or to repurchase or
substitute for any affected Mortgage Loan in accordance with MLPA I.
It is understood and agreed that the obligation under MLPA I of
FHHLC to cure, repurchase or replace any Mortgage Loan as to which a
breach has occurred and is continuing shall constitute the sole remedy,
which may be enforced solely against FHHLC and not the Seller, respecting
such breach available to the Purchaser on its behalf.
The representations and warranties contained in this Agreement shall not
be construed as a warranty or guaranty by the Seller as to the future payments
by any Mortgagor.
It is understood and agreed that the representations and warranties set
forth in this Section 4.1 shall survive the sale of the Mortgage Loans to the
Purchaser hereunder.
ARTICLE V
Miscellaneous
Section 5.1 Transfer Intended as Sale. 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 in accordance with
GAAP and for regulatory 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 Texas 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.
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Section 5.2 Seller's Consent to Assignment. The Seller hereby acknowledges
the Purchaser's right to assign, transfer and convey all of the Purchaser's
rights under this Agreement to a third party and that the representations and
warranties made by FHHLC to the Seller pursuant to MLPA I will, in the case of
such assignment, transfer and conveyance, be for the benefit of such third
party. The Seller hereby consents to such assignment, transfer and conveyance.
Section 5.3 Specific Performance. Either party or its assignees may
enforce specific performance of this Agreement.
Section 5.4 Notices. All notices, demands and requests that may be given
or that are required to be given hereunder shall be sent by United States
certified mail, postage prepaid, return receipt requested, to the parties at
their respective addresses as follows:
If to
the Seller: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
If to the Purchaser: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
Section 5.5 Choice of Law. This Agreement shall be construed in accordance
with and governed by the substantive laws of the State of Texas applicable to
agreements made and to be performed in the State of Texas and the obligations,
rights and remedies of the parties hereto shall be determined in accordance with
such laws.
Section 5.6 Acknowledgment of FHHLC. FHHLC hereby acknowledges the
provisions of this Agreement, including the duties of FHHLC created hereunder
and the assignment of the representations and warranties made by FHHLC to the
Seller pursuant to MLPA I.
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IN WITNESS WHEREOF, the Purchaser and the Seller have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the 30th day of August, 2005.
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, as Seller
By:
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President
FIRST HORIZON ASSET SECURITIES INC., as
Purchaser
By:
---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
The foregoing agreement is hereby
acknowledged and accepted as of the
date first above written.
FIRST HORIZON HOME LOAN CORPORATION,
in its capacity as the seller pursuant
to MLPA I
By: ___________________________________
▇▇▇▇▇ ▇▇▇▇▇
Executive Vice President
SCHEDULE A
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[Available Upon Request From Trustee]
A-1