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FHASI
2007-4
EX-10.1
MORTGAGE LOAN PURCHASE
AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT dated as of June 29,
2007 by and between FIRST HORIZON HOME LOANS, a division of First
Tennessee Bank National Association, a national banking association
(the “Seller”), and FIRST HORIZON ASSET SECURITIES
INC., a Delaware corporation (the
“Purchaser”).
WHEREAS, the Seller owns certain Mortgage Loans (as
hereinafter defined) which Mortgage Loans are more particularly
listed and described in Schedule
A attached hereto and made a part
hereof.
WHEREAS, the Seller and the Purchaser wish to set forth the
terms pursuant to which the Mortgage Loans, excluding the servicing
rights thereto, are to be sold by the Seller to the
Purchaser.
WHEREAS, 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
SharperLending.com, 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 : June 29,
2007
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 June 29, 2007
by and among The Bank of New York, as trustee, First Horizon, as
master servicer, and the Custodian.
Cut-Off Date : June 1,
2007.
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 25
th day of
each month, or if such 25 th day is not a Business
Day, the next succeeding Business Day.
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First Horizon : First Horizon
Home Loans, a division of First Tennessee Bank National
Association, a national banking association.
GAAP : Generally accepted
accounting principles 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.
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® 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.
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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.
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 :
$342,770,352.65
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 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, as transferor and subservicer, and
First Tennessee Mortgage Services, Inc., as transferee and
servicer.
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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 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; (vii) have a
loan-to-value ratio no higher than that of the Deleted Mortgage
Loan; (viii) have a remaining term to maturity no greater than (and
not more than one year less than that of) the Deleted Mortgage
Loan; (ix) not be a Cooperative Loan unless the Deleted Mortgage
Loan was a Cooperative Loan and (x) 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.
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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)
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(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 |
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(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; |
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(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; |
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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; |
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(d) |
the original or copies of each
assumption, modification, written assurance or substitution
agreement, if any; |
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(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 |
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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: |
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(1)
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The Coop Shares, together with a
stock power in blank; |
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(2) |
The executed Security
Agreement; |
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(3) |
The executed Proprietary
Lease; |
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(4) |
The executed Recognition
Agreement; |
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(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 |
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(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). |
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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 li
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