MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT dated as of August 29,
2003 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.
Closing Date: August 29, 2003.
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.
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Custodian: LaSalle Bank National Association, a national
banking association, and its successors and assigns, as custodian
under the Custodial Agreement dated as of August 29, 2003 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, 2003.
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 applied accounting principals as in effect
from time to time in the United States of America.
MLPA I: The mortgage loan purchase agreement, dated as of
August 29, 2003, 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.
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.
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: [ ]
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.
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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 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
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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, the original recorded Mortgage or
a copy of such Mortgage certified by the Seller as being a true
and complete copy of the Mortgage;
(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, 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;
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(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:
(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.
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(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.
(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
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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.
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 Purchaser: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
If to the Seller: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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.
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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 29th day of August, 2003.
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, as Seller
By:____________________________
▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President
FIRST HORIZON ASSET SECURITIES
INC., as Purchaser
By:_____________________________
▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President - Asset
Securitization
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:_____________________________________________
▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President - Asset Securitization
Mortgage Loan Purchase Agreement II - 2003-AR3, Signature Page
SCHEDULE A
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