MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT dated as of August 29,
2003 by and between FIRST HORIZON HOME LOAN CORPORATION, a Kansas
corporation (the "Seller"), and FIRST TENNESSEE BANK NATIONAL
ASSOCIATION (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.
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, or the State of Texas or New York City is located are
authorized or obligated by law or executive order to be closed.
Closing Date: August 29, 2003
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.
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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 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.
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 applied accounting principals as in effect
from time to time in the United States of America.
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.
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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.
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: $384,674,889.34
Purchaser: First Tennessee Bank National Association, 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.
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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 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.
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.
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 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.
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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"):
(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;
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(c) a duly executed assignment of the Mortgage in blank (which
may be included in a blanket assignment or assignments), together
with, except as provided below, all interim recorded assignments
of such mortgage (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect the
assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates); provided that, if the
related Mortgage has not been returned from the applicable public
recording office, such assignment of the Mortgage may exclude the
information to be provided by the recording office;
(d) the original or copies of each assumption, modification,
written assurance or substitution agreement, if any;
(e) either the original or duplicate original title policy
(including all riders thereto) with respect to the related
Mortgaged Property, if available, provided that the title policy
(including all riders thereto) will be delivered as soon as it
becomes available, and if the title policy is not available, and
to the extent required pursuant to the second paragraph below or
otherwise in connection with the rating of the Certificates, a
written commitment or interim binder or preliminary report of the
title issued by the title insurance or escrow company with
respect to the Mortgaged Property, 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).
In the event that in connection with any 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
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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. 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.
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.
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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.
(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.
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(4) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would prohibit the
execution or delivery of, or performance under, this Agreement by
the Seller.
(b) The Seller hereby 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.
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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.
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.
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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: 000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Xx.
If to the Seller: 0000 Xxxxxxx Xxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxx
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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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 HORIZON HOME LOAN
CORPORATION, as Seller
By:______________________________
Xxxx Xxxxxx
Senior Vice President - Asset
Securitization
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, as Purchaser
By:_______________________________
Xxxx Xxxxxx
Senior Vice President - Asset
Securitization
Mortgage Loan Purchase Agreement I - 2003-AR3, Signature Page
SCHEDULE A
[BEGINS ON NEXT PAGE]
[Available Upon Request From Trustee]
SCHEDULE B
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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 Tennessee Bank National Association
(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
August 29, 2003 (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.
(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.
(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.
B-1
(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.
(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.
(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.
B-2
(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 Loan 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) At the Cut-off 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.
B-3
(19) If at the time of origination of each Mortgage Loan, related
the 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
adjustable-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 Pools had stated terms to maturity of 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) The Mortgage Loans may be prepaid at any time by the related
Mortgagors without penalty.
(28) Substantially all 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 Pool I, Pool II and Pool III was
originated on or after January 1, 2003, October 15, 2002 and
February 7, 2003, respectively.
(30) The latest stated maturity date of any Mortgage Loan in Pool
I, Pool II and Pool III is August 1, 2033. The earliest stated
maturity of any Mortgage Loan in Pool I is February 1, 2033. The
earliest stated maturity date of any Mortgage Loan in Pool II is
November 1, 2032. The earliest stated maturity date of any
Mortgage Loan in Pool III is March 1, 2033.
(31) No Mortgage Loan was delinquent more than 30 days as of the
Cut-off Date.
B-4
(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 Xxx or Xxxxxxx Mac.
(33) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code.
B-5
