MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT dated as of May 27, 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 (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: May 27, 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: LaSalle Bank National Association, a national banking
association, and its successors and assigns, as custodian under the Custodial
Agreement dated as of May 27, 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: May 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 May 27, 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.
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: $291,801,586.83.
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
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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, 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.
(3) The execution and delivery of this Agreement by the Seller,
the sale of the Mortgage Loans by the Seller under this Agreement, the
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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 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
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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: 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.
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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 27th day of May, 2004.
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, as Seller
By:
-------------------------
Xxxx Xxxxxx
Senior Vice President
FIRST HORIZON ASSET
SECURITIES INC., as Purchaser
By:
-------------------------
Xxxx Xxxxxx
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:
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Xxxx Xxxxxx
Senior Vice President - Asset Securitization
Mortgage Loan Purchase Agreement II - 2004-AA1, Signature Page
SCHEDULE A
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