MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT dated as of December 30, 2004 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 (Home Equity Loans) (as hereinafter defined).
WHEREAS, the Seller has engaged FTMSI to service the mortgage Loans
pursuant to the Servicing Agreement (Home Equity Loans) (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: December 30, 2004.
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 December 30,
2004 by and among The Bank of New York, as trustee, First Horizon Home Loan
Corporation, as master servicer, and the Custodian.
Cut-Off Date: December 1, 2004.
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 December 30,
2004, 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.
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.
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.
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.
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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: $235,257,077.58.
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 (Home Equity Loans): The servicing agreement (home
equity loans), dated as of December 1, 2004 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 (Home Equity Loans):
The servicing rights transfer and subservicing agreement (home equity loans),
dated as of December 1, 2004 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."
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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;
(c) in the case of a Mortgage Loan that is not a MERS Mortgage
Loan, 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;
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(d) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any;
(e) for any Mortgage Loan other than a Combo Mortgage Loan, 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) for any Mortgage Loan other
than a Combo Mortgage Loan 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 Pooling and
Servicing Agreement, 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;
(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, the
Trustee and the Insurer, 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.
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(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 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.
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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.
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.
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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: 0000 Xxxxxxx Xxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxx
If to the Seller: 000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Xx.
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.
Section 5.7 Third Party Beneficiaries. The benefits of this Agreement
shall inure to the Insurer and the Trustee, their respective successors and
assigns. The Insurer and the Trustee, their respective successors and assigns,
each in its own name and for its own interest and benefit, shall be entitled to
enforce this Agreement, and each part and aspect hereof.
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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 December, 2004.
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, as Seller
By:
---------------------------------------
Xxxx Xxxxxx
Senior Vice President
FIRST HORIZON ASSET SECURITIES INC., as Purchaser
By:
---------------------------------------
Xxxxxx Xxxxx
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:___________________________________
Xxxxx XxXxx
Senior Vice President
SCHEDULE A
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[Available Upon Request From Trustee]
