MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT dated as of October 28, 2005 by
and between FIRST HORIZON HOME LOAN CORPORATION, a Kansas corporation (the
"Seller"), and FIRST HORIZON ASSET SECURITIES INC. (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, the Seller will simultaneously transfer the servicing rights
for the Mortgage Loans to First Tennessee Mortgage Services, Inc. ("FTMSI")
pursuant to the Servicing Rights Transfer and Subservicing Agreement (as
hereinafter defined).
WHEREAS, the Purchaser will engage 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: Any 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
XxxxxxxXxxxxxx.xxx, or (iv) such other alternative title insurance product that
the Seller utilizes in connection with its then current underwriting criteria.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of Dallas, the State of Texas or
New York City is located are authorized or obligated by law or executive order
to be closed.
Closing Date: October 28, 2005
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
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
October 28, 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: October 1, 2005.
Cut-off Date Principal Balance: As to any Mortgage Loan, the Stated
Principal Balance thereof as of the close of business on the Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a reduction
by a court of competent jurisdiction in a proceeding under the Bankruptcy Code
in the Scheduled Payment for such Mortgage Loan which became final and
non-appealable, except such a reduction resulting from a Deficient Valuation or
any reduction that results in a permanent forgiveness of principal.
Deficient Valuation: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then-outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount of principal to be paid in connection with any Scheduled Payment
that results in a permanent forgiveness of principal, which valuation or
reduction results from an order of such court which is final and non-appealable
in a proceeding under the United States Bankruptcy Reform Act of 1978, as
amended.
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.
Deleted Mortgage Loan: As defined in Section 4.1(c) hereof.
Determination Date: The earlier of (i) the third Business Day after the
15th day of each month, and (ii) the second Business Day prior to the 25th day
of each month, or if such 25th day is not a Business Day, the next succeeding
Business Day.
GAAP: Generally accepted accounting principles as in effect from time
to time in the United States of America.
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Insurance Proceeds: Proceeds paid by an insurer pursuant to any
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies, in each case other than any amount
included in such Insurance Proceeds in respect of expenses covered by such
insurance policy.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received
in connection with the partial or complete liquidation of defaulted Mortgage
Loans, whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property.
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 Loan Purchase Price: With respect to any Mortgage Loan
required to be purchased by the Seller pursuant to Section 4.1(c) hereof, an
amount equal to the sum of (i) 100% of the unpaid principal balance of the
Mortgage Loan on the date of such purchase, and (ii) accrued interest thereon at
the applicable Mortgage Rate from the date through which interest was last paid
by the Mortgagor to the first day in the month in which the Mortgage Loan
Purchase Price is to be distributed to the Purchaser or its designees.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note
from time to time, net of any insurance premium charged by the mortgagee to
obtain or maintain any primary insurance policy.
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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.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
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: $453,015,896.40
Purchaser: First Horizon Asset Securities Inc., 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.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on the first day of the month allocable to principal and/or interest on such
Mortgage Loan which, unless otherwise specified herein, shall give effect to any
related Debt Service Reduction and any Deficient Valuation that affects the
amount of the monthly payment due on such Mortgage Loan.
Security Agreement: The security agreement with respect to a
Cooperative Loan.
Seller: First Horizon Home Loan Corporation, a Kansas corporation, and
its successors and assigns, in its capacity as seller of the Mortgage Loans.
Servicing Agreement: The servicing agreement, dated as of November 26,
2002 by and between First Horizon Asset Securities Inc. 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.
Stated Principal Balance: As to any Mortgage Loan, the unpaid principal
balance of such Mortgage Loan as specified in the amortization schedule at the
time relating thereto (before any adjustment to such amortization schedule by
reason of any moratorium or similar waiver or grace period) after giving effect
to any previous partial Principal Prepayments and Liquidation Proceeds allocable
to principal (other than with respect to any Liquidated Mortgage Loan) and to
the payment of principal due on such date and irrespective of any delinquency in
payment by the related Mortgagor.
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Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for
a Deleted Mortgage Loan which must, on the date of such substitution, (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
more than 10% less than the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) have a Mortgage Rate not lower than the Mortgage Rate of the Deleted
Mortgage Loan; (iii) have a maximum mortgage rate not more than 1% per annum
higher or lower than the maximum mortgage rate of the Deleted Mortgage Loan;
(iv) have a minimum mortgage rate specified in its related Mortgage Note not
more than 1% per annum higher or lower than the minimum mortgage rate of the
Deleted Mortgage Loan; (v) have the same mortgage index, reset period and
periodic rate as the Deleted Mortgage Loan and a gross margin not more than 1%
per annum higher or lower than that of the Deleted Mortgage Loan (vi) be
accruing interest at a rate no lower than and not more than 1% per annum higher
than, that of the Deleted Mortgage Loan; (iv) have a loan-to-value ratio no
higher than that of the Deleted Mortgage Loan; (vii) have a remaining term to
maturity no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; (viii) not be a Cooperative Loan unless the Deleted
Mortgage Loan was a Cooperative Loan and (ix) comply with each representation
and warranty set forth in Schedule B hereto.
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, (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,
and (ii) all proceeds from the foregoing. Items (i) and (ii) 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"):
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(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) 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
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(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).
In the event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Seller cannot deliver (i) the original recorded Mortgage
or (ii) all interim recorded assignments satisfying the requirements of clause
(b) or (c) above, respectively, concurrently with the execution and delivery
hereof because such document or documents have not been returned from the
applicable public recording office, the Seller shall promptly deliver or cause
to be delivered to the Trustee or the Custodian on its behalf such original
Mortgage or such interim assignment, as the case may be, with evidence of
recording indicated thereon upon receipt thereof from the public recording
office, or a copy thereof, certified, if appropriate, by the relevant recording
office, but in no event shall any such delivery of the original Mortgage and
each such interim assignment or a copy thereof, certified, if appropriate, by
the relevant recording office, be made later than one year following the Closing
Date; provided, however, in the event the Seller is unable to deliver or cause
to be delivered by such date each Mortgage and each such interim assignment by
reason of the fact that any such documents have not been returned by the
appropriate recording office, or, in the case of each such interim assignment,
because the related Mortgage has not been returned by the appropriate recording
office, the Seller shall deliver or cause to be delivered such documents to the
Trustee or the Custodian on its behalf as promptly as possible upon receipt
thereof and, in any event, within 720 days following the Closing Date; provided,
further, however, that the Seller shall not be required to provide an original
or duplicate lender's title policy (together with all riders thereto) if the
Seller delivers an Alternative Title Product in lieu thereof. The Seller shall
forward or cause to be forwarded to the Trustee or the Custodian on its behalf
(i) from time to time additional original documents evidencing an assumption or
modification of a Mortgage Loan and (ii) any other documents required to be
delivered by the Seller to the Trustee. In the event that the original Mortgage
is not delivered and in connection with the payment in full of the related
Mortgage Loan and the public recording office requires the presentation of a
"lost instruments affidavit and indemnity" or any equivalent document, because
only a copy of the Mortgage can be delivered with the instrument of satisfaction
or reconveyance, the Seller shall execute and deliver or cause to be executed
and delivered such a document to the public recording office. In the case where
a public recording office retains the original recorded Mortgage or in the case
where a Mortgage is lost after recordation in a public recording office, the
Seller shall deliver or cause to be delivered to the Trustee or the Custodian on
its behalf a copy of such Mortgage certified by such public recording office to
be a true and complete copy of the original recorded Mortgage.
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In addition, in the event that in connection with any Mortgage Loan the
Seller cannot deliver or cause to be delivered the original or duplicate
original lender's title policy (together with all riders thereto), satisfying
the requirements of clause (v) above, concurrently with the execution and
delivery hereof because the related Mortgage has not been returned from the
applicable public recording office, the Seller shall promptly deliver or cause
to be delivered to the Trustee or the Custodian on its behalf such original or
duplicate original lender's title policy (together with all riders thereto) upon
receipt thereof from the applicable title insurer, but in no event shall any
such delivery of the original or duplicate original lender's title policy be
made later than one year following the Closing Date; provided, however, in the
event the Seller is unable to deliver or cause to be delivered by such date the
original or duplicate original lender's title policy (together with all riders
thereto) because the related Mortgage has not been returned by the appropriate
recording office, the Seller shall deliver or cause to be delivered such
documents to the Trustee or the Custodian on its behalf as promptly as possible
upon receipt thereof and, in any event, within 720 days following the Closing
Date.
Notwithstanding anything to the contrary in this Agreement, within
thirty days after the Closing Date, the Seller shall either (i) deliver or cause
to be delivered to the Trustee or the Custodian on its behalf the Mortgage File
as required pursuant to this Section 3.1 for each Delay Delivery Mortgage Loan
or (ii) (A) substitute or cause to be substituted a Substitute Mortgage Loan for
the Delay Delivery Mortgage Loan or (B) repurchase or cause to be repurchased
the Delay Delivery Mortgage Loan, which substitution or repurchase shall be
accomplished in the manner and subject to the conditions set forth in Section
4.1 (treating each Delay Delivery Mortgage Loan as a Deleted Mortgage Loan for
purposes of such Section 4.1), provided, however, that if the Seller fails to
deliver a Mortgage File for any Delay Delivery Mortgage Loan within the
thirty-day period provided in the prior sentence, the Seller shall use its best
reasonable efforts to effect or cause to be effected a substitution, rather than
a repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 4.1 hereof shall not apply to the initial
delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but rather
the Seller shall have five (5) Business Days to cure or cause to be cured such
failure to deliver.
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 Kansas corporation
and is validly existing and in good standing under the laws of the
State of Kansas 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 full corporate 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 corporate 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 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; 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.
(5) The Seller is a member of MERS in good standing, and
will comply in all material respects with the rules and procedures of
MERS in connection with the servicing of the MERS Mortgage Loans for as
long as such Mortgage Loans are registered with MERS.
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(b) The Seller hereby makes the representations and warranties set
forth in Schedule B hereto to the Purchaser, as of the Closing
Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach
of a representation or warranty made pursuant to Schedule B
hereto that materially and adversely affects the interests of
the Purchaser in any Mortgage Loan, the party discovering such
breach shall give prompt notice thereof to the other party.
The Seller hereby covenants that within 90 days of the earlier
of its discovery or its receipt of written notice from the
Purchaser of a breach of any representation or warranty made
pursuant to Schedule B hereto which materially and adversely
affects the interests of the Purchaser in any Mortgage Loan,
it shall cure such breach in all material respects, and if
such breach is not so cured, shall, (i) if such 90-day period
expires prior to the second anniversary of the Closing Date,
remove such Mortgage Loan (a "Deleted Mortgage Loan") from the
pool of mortgages listed on Schedule B hereto and substitute
in its place a Substitute Mortgage Loan, in the manner and
subject to the conditions set forth in this Section; or (ii)
repurchase the affected Mortgage Loan or Mortgage Loans from
the Purchaser at the Mortgage Loan Purchase Price in the
manner set forth below. With respect to the representations
and warranties described in this Section which are made to the
best of the Seller's knowledge, if it is discovered by either
the Seller or the Purchaser that the substance of such
representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related
Mortgage Loan or the interests of the Purchaser therein,
notwithstanding the Seller's lack of knowledge with respect to
the substance of such representation or warranty, such
inaccuracy shall be deemed a breach of the applicable
representation or warranty.
With respect to any Substitute Mortgage Loan or Loans, the
Seller shall deliver to the Trustee or to the Custodian on its behalf
the Mortgage Note, the Mortgage, the related assignment of the
Mortgage, and such other documents and agreements as are required by
Section 3.1, with the Mortgage Note endorsed and the Mortgage assigned
as required by Section 3.1. No substitution is permitted to be made in
any calendar month after the Determination Date for such month.
Scheduled Payments due with respect to Substitute Mortgage Loans in the
month of substitution will be retained by the Seller. Upon such
substitution, the Substitute Mortgage Loan or Loans shall be subject to
the terms of this Agreement in all respects, and the Seller shall be
deemed to have made with respect to such Substitute Mortgage Loan or
Loans, as of the date of substitution, the representations and
warranties made pursuant to Schedule B hereto with respect to such
Mortgage Loan.
It is understood and agreed that the obligation under this
Agreement of the Seller to cure, repurchase or replace any Mortgage
Loan as to which a breach has occurred and is continuing shall
constitute the sole remedy against 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.
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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 the Seller to the Purchaser pursuant to
this Agreement 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: 0000 Xxxxxxx Xxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxx
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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.
[remainder of page intentionally left blank]
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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 28th day of October, 2005.
FIRST HORIZON HOME LOAN CORPORATION, as Seller
By:
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Xxxxx XxXxx
Executive Vice President
FIRST HORIZON ASSET SECURITIES INC., as Purchaser
By:
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Xxxxxx Xxxxx
Vice President
SCHEDULE A
[BEGINS ON NEXT PAGE]
[Available Upon Request From Trustee]
SCHEDULE B
REPRESENTATIONS AND WARRANTIES AS TO THE MORTGAGE LOANS
First Horizon Home Loan Corporation (the "Seller") hereby makes the
representations and warranties set forth in this Schedule B on which First
Horizon Asset Securities Inc. (the "Purchaser") relies in accepting the Mortgage
Loans. Such representations and warranties speak as of the execution and
delivery of the Mortgage Loan Purchase Agreement, dated as of October 28, 2005
(the "MLPA"), between First Horizon Home Loan Corporation, as seller, and the
Purchaser and as of the Closing Date, or if so specified herein, as of the
Cut-off Date or date of origination of the Mortgage Loans, but shall survive the
sale, transfer, and assignment of the Mortgage Loans to the Purchaser and any
subsequent sale, transfer and assignment by the Purchaser to a third party.
Capitalized terms used but not otherwise defined in this Schedule B shall have
the meanings ascribed thereto in the MLPA or the Pooling and Servicing
Agreement, dated as of October 1, 2005, between First Horizon Asset Securities
Inc., as depositor, First Horizon Home Loan Corporation, as master servicer, and
The Bank of New York, as trustee.
(1) The information set forth on Schedule A to the MLPA, with respect
to each Mortgage Loan is true and correct in all material respects
as of the Closing Date.
(2) Each Mortgage is a valid and enforceable first lien on the
Mortgaged Property subject only to (a) the lien of nondelinquent
current real property taxes and assessments and liens or interests
arising under or as a result of any federal, state or local law,
regulation or ordinance relating to hazardous wastes or hazardous
substances and, if the related Mortgaged Property is a unit in a
condominium project or Planned Unit Development, any lien for
common charges permitted by statute or homeowner association fees,
(b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record
being generally acceptable to mortgage lending institutions in the
area wherein the related Mortgaged Property is located or
specifically reflected in the appraisal made in connection with
the origination of the related Mortgage Loan, and (c) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to
be provided by such Mortgage.
(3) Immediately prior to the assignment of the Mortgage Loans to the
Purchaser, the Seller had good title to, and was the sole owner
of, each Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority,
subject to no interest or participation of, or agreement with, any
other party, to sell and assign the same pursuant to this
Agreement.
(4) As of the date of origination of each Mortgage Loan, there was no
delinquent tax or assessment lien against the related Mortgaged
Property.
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(5) There is no valid offset, defense or counterclaim to any Mortgage
Note or Mortgage, including the obligation of the Mortgagor to pay
the unpaid principal of or interest on such Mortgage Note.
(6) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a
lien prior to, or equal with, the lien of such Mortgage, except
those which are insured against by the title insurance policy
referred to in item (11) below.
(7) To the best of the Seller's knowledge, no Mortgaged Property has
been materially damaged by water, fire, earthquake, windstorm,
flood, tornado or similar casualty (excluding casualty from the
presence of hazardous wastes or hazardous substances, as to which
the Seller makes no representation) so as to affect adversely the
value of the related Mortgaged Property as security for such
Mortgage Loan. With respect to the representations and warranties
contained within this item (7) that are made to the knowledge or
the best knowledge of the Seller or as to which the Seller has no
knowledge, if it is discovered that the substance of any such
representation and warranty is inaccurate and the inaccuracy
materially and adversely affects the value of the related Mortgage
Loan, or the interest therein of the Purchaser, 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 and warranty was made, such inaccuracy
shall be deemed a breach of the applicable representation and
warranty and the Seller shall take such action described in
Section 4.1(c) of this Agreement in respect of such Mortgage Loan.
(8) Each Mortgage Loan at origination complied in all material
respects with applicable local, state and federal laws, including,
without limitation, usury, equal credit opportunity, real estate
settlement procedures, truth-in-lending and disclosure laws and
specifically applicable predatory and abusive lending laws, or any
noncompliance does not have a material adverse effect on the value
of the related Mortgage Loan.
(9) No Mortgage Loan is a "high cost loan" as defined by the specific
applicable predatory and abusive lending laws.
(10) Except as reflected in a written document contained in the related
Mortgage File, the Seller has not modified the Mortgage in any
material respect; satisfied, cancelled or subordinated such
Mortgage in whole or in part; released the related Mortgaged
Property in whole or in part from the lien of such Mortgage; or
executed any instrument of release, cancellation, modification or
satisfaction with respect thereto.
(11) A lender's policy of title insurance together with a condominium
endorsement and extended coverage endorsement, if applicable, in
an amount at least equal to the Cut-off Date Principal Balance of
each such Mortgage Loan or a commitment (binder) to issue the same
was effective on the date of the origination of each Mortgage
Loan, each such policy is valid and remains in full force and
effect, or, in lieu thereof, an Alternative Title Product.
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(12) To the best of the Seller's knowledge, all of the improvements
which were included for the purpose of determining the appraised
value of the Mortgaged Property lie wholly within the boundaries
and building restriction lines of such property, and no
improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries
and restriction lines or such encroachment, as the case may be,
does not have a material effect on the value of such Mortgaged
Property.
(13) To the best of the Seller's knowledge, as of the date of
origination of each Mortgage Loan, no improvement located on or
being part of the Mortgaged Property is in violation of any
applicable zoning law or regulation unless such violation would
not have a material adverse effect on the value of the related
Mortgaged Property. To the best of the Seller's knowledge, all
inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy and fire
underwriting certificates, have been made or obtained from the
appropriate authorities, unless the lack thereof would not have a
material adverse effect on the value of such Mortgaged Property.
(14) The Mortgage Note and the related Mortgage are genuine, and each
is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law.
(15) The proceeds of the Mortgage Loans have been fully disbursed and
there is no requirement for future advances thereunder.
(16) The related Mortgage contains customary and enforceable provisions
which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure.
(17) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has
been properly designated and currently so serves and is named in
such Mortgage, and no fees or expenses are or will become payable
by the holder of the Mortgage to the trustee under the deed of
trust, except in connection with a trustee's sale after default by
the Mortgagor.
(18) As of the Closing Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance
policy with a generally acceptable carrier that provides for fire
and extended coverage and coverage for such other hazards as are
customarily required by institutional single family mortgage
lenders in the area where the Mortgaged Property is located, and
the Seller has received no notice that any premiums due and
payable thereon have not been paid; the Mortgage obligates the
Mortgagor thereunder to maintain all such insurance including
flood insurance at the Mortgagor's cost and expense. Anything to
the contrary in this item (18) notwithstanding, no breach of this
item (18) shall be deemed to give rise to any obligation of the
Seller to repurchase or substitute for such affected Mortgage Loan
or Loans so long as the Seller maintains a blanket policy.
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(19) If at the time of origination of each Mortgage Loan, the related
Mortgaged Property was in an area then identified in the Federal
Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting
the then-current requirements of the Flood Insurance
Administration is in effect with respect to such Mortgaged
Property with a generally acceptable carrier.
(20) To the best of the Seller's knowledge, there is no proceeding
pending or threatened for the total or partial condemnation of any
Mortgaged Property, nor is such a proceeding currently occurring.
(21) To best of the Seller's knowledge, there is no material event
which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a material
non-monetary default, breach, violation or event of acceleration
under the Mortgage or the related Mortgage Note; and the Seller
has not waived any material non-monetary default, breach,
violation or event of acceleration.
(22) Any leasehold estate securing a Mortgage Loan has a stated term at
least as long as the term of the related Mortgage Loan.
(23) Each Mortgage Loan was selected from among the outstanding
fixed-rate one- to four-family mortgage loans in the Seller's
portfolio at the Closing Date as to which the representations and
warranties made with respect to the Mortgage Loans set forth in
this Schedule B can be made. No such selection was made in a
manner intended to adversely affect the interests of the
Certificateholders.
(24) The Mortgage Loans provide for the full amortization of the amount
financed over a series of monthly payments.
(25) At origination, substantially all of the Mortgage Loans in the
Mortgage Pool had stated terms to maturity of between 20 years and
30 years.
(26) Scheduled monthly payments made by the Mortgagors on the Mortgage
Loans either earlier or later than their Due Dates will not affect
the amortization schedule or the relative application of the
payments to principal and interest.
(27) Approximately 1.32% of the Mortgage Loans in the Mortgage Pool
contain a prepayment penalty pricing option. The Mortgagors may
prepay all the other Mortgage Loans at any time without penalty.
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(28) 25.02% of the Mortgage Loans are jumbo mortgage loans that have
Stated Principal Balances at origination that exceed the then
applicable limitations for purchase by Xxxxxx Xxx and Xxxxxxx Mac.
(29) Each Mortgage Loan in the Mortgage Pool was originated on or after
March 28, 2005.
(30) The latest stated maturity date of any Mortgage Loan in the
Mortgage Pool is November 1, 2035, and the earliest is October 1,
2025.
(31) No Mortgage Loan was delinquent more than 30 days as of the
Cut-off Date.
(32) No Mortgage Loan had a Loan-to-Value Ratio at origination of more
than 95%. Generally, each Mortgage Loan with a Loan-to-Value Ratio
at origination of greater than 80% is covered by a Primary
Insurance Policy issued by a mortgage insurance company that is
acceptable to Xxxxxx Mae or Xxxxxxx Mac.
(33) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
(34) No Mortgage Loan is a "high cost loan" as defined by the specific
applicable local, state or federal predatory and abusive lending
laws. In addition, no Mortgage Loan is a "High Cost Loan" or a
"Covered Loan", as applicable (as such terms are defined in the
then current Standard & Poor's LEVELS(R) Glossary which is now
Version 5.6c Revised, Appendix E) and no Mortgage Loan originated
on or after October 1, 2002 through March 6, 2003 is governed by
the Georgia Fair Lending Act.
(35) Appraisal form 1004 or form 2055 with an interior inspection for
first lien mortgage loans has been obtained for all related
mortgaged properties, other than condominiums, investment
properties, two to four unit properties and exempt properties, for
which appraisal form 1004 or form 2055 has not been obtained.
Appraisal form 704, 2065 or 2055 with an exterior only inspection
for junior lien mortgages combined with first lien mortgages
(including home equity lines of credit) has been obtained for all
related mortgaged properties, other than condominiums, investment
properties, two to four unit properties and exempt properties, for
which appraisal form 1004 or form 2055 has not been obtained.
Appraisal form 704, 2065 or 2055 with an exterior only inspection
for all other junior lien mortgages has been obtained for all
related mortgaged properties, other than those related mortgaged
properties that qualify for an Automated Valuation Model.
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