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FHAMS 2007-FA4
Exhibit 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 : $407,164,210.30
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)
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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)
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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)
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the original or copies of each
assumption, modification, written assurance or substitution
agreement, if any; |
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(e)
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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)
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The executed Security
Agreement; |
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(3)
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The executed Proprietary
Lease; |
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(4)
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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 lieu thereof. The Seller
shall forward or cause to be forw
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