Exhibit 10.2
MORTGAGE LOAN PURCHASE AGREEMENT
For Ten Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, FIRST HORIZON HOME
LOAN CORPORATION, a Kansas corporation (the "Seller"), does hereby transfer,
sell and convey to FIRST TENNESSEE BANK NATIONAL ASSOCIATION (the "Purchaser"),
and the Purchaser does hereby purchase and acquire on the terms set forth
herein, certain mortgage loans owned by the Seller (the "Mortgage Loans") which
Mortgage Loans are more particularly listed and described in Schedule A attached
hereto and made a part hereof.
This Mortgage Loan Purchase Agreement ("Agreement") is executed upon
the following terms and conditions:
DEFINITIONS
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: September 30, 2002.
Custodian: LaSalle Bank National Association, a national banking
association, and its successors and assigns, as custodian under the Custodial
Agreement dated as of September 30, 2002 by and among The Bank of New York, as
trustee, First Horizon Home Loan Corporation, as master servicer, and the
Custodian.
Cut-Off Date: September 1, 2002.
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.
FHASI: First Horizon Asset Securities Inc., a Delaware corporation, in
its capacity as the purchaser of the Mortgage Loans pursuant to MLPA II.
MLPA II: The mortgage loan purchase agreement, dated as of September
30, 2002, by and between First Tennessee Bank National Association, as seller,
and First Horizon Asset Securities Inc., as purchaser, as related to the
transfer, sale and conveyance of the Mortgage Loans.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on the property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.1 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement or the related Pooling and
Servicing 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 3.1(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.
Pooling and Servicing Agreement: The pooling and servicing agreement,
dated as of September 1, 2002, by and among First Horizon Asset Securities Inc.,
as depositor, First Horizon Home Loan Corporation, as master servicer, and The
Bank of New York, as trustee, as related to the creation and issuance of the
Mortgage Pass-Through Certificates, Series 2002-6
Purchase Price: $478,267,090.
Purchaser: First Tennessee Bank National Association, in its capacity
as purchaser of the Mortgage Loans from the Seller pursuant to this Agreement.
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.
Seller: First Horizon Home Loan Corporation, a Kansas corporation, and
its successors and assigns, in its capacity as seller of the Mortgage Loans.
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
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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.
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
ARTICLE I
Purchase and Sale
Section 1.1 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 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 or amounts attributable to Retained Yield,
and (ii) all proceeds from the foregoing. Items (i) and (ii) in the preceding
sentence are herein referred to collectively as "Mortgage Assets."
Section 1.2 Timing. The sale of the Mortgage Assets hereunder shall
take place on the Closing Date.
ARTICLE II
Conveyance and Delivery
Section 2.1 Delivery of Mortgage Files. In connection with the transfer
and assignment set forth in Section 1.1 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
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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;
(b) except as provided below, the original recorded Mortgage or a copy of
such Mortgage certified by the Seller as being a true and complete copy
of the Mortgage;
(c) a duly executed assignment of the Mortgage in blank (which may be
included in a blanket assignment or assignments), together with, except
as provided below, all interim recorded assignments of such mortgage
(each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and transfer
to the assignee thereof, under the Mortgage to which the assignment
relates); provided that, if the related Mortgage has not been returned
from the applicable public recording office, such assignment of the
Mortgage may exclude the information to be provided by the recording
office;
(d) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any;
(e) either the original or duplicate original title policy (including all
riders thereto) with respect to the related Mortgaged Property, if
available, provided that the title policy (including all riders
thereto) will be delivered as soon as it becomes available, and if the
title policy is not available, and to the extent required pursuant to
the second paragraph below or otherwise in connection with the rating
of the Certificates, a written commitment or interim binder or
preliminary report of the title issued by the title insurance or escrow
company with respect to the Mortgaged Property, and
(f) in the case of a Cooperative Loan, the originals of the following
documents or instruments:
(1) The Coop Shares, together with a stock power in blank;
(2) The executed Security Agreement;
(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).
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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 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.
In the case of Mortgage Loans that have been prepaid in full as of the
Closing Date, the Seller, in lieu of delivering the above documents to the
Trustee or the Custodian on its behalf,
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will deposit in the Certificate Account the portion of such payment that is
required to be deposited in the Certificate Account pursuant to Section 3.8 of
the Pooling and Servicing Agreement.
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 2.1 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
3.1 (treating each Delay Delivery Mortgage Loan as a Deleted Mortgage Loan for
purposes of such Section 3.1), 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 2.2 of the Pooling and Servicing Agreement or in
Section 3.1 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. At the end
of such thirty-day period, the Trustee or the Custodian on its behalf shall send
a Delay Delivery Certification for the Delay Delivery Mortgage Loans delivered
during such thirty-day period in accordance with the provisions of Section 2.2
of the Pooling and Servicing Agreement.
ARTICLE III
Representations and Warranties
Section 3.1 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
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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.
(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
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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 2.1, with the Mortgage
Note endorsed and the Mortgage assigned as required by Section 2.1. 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.
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive the sale of the Mortgage Loans to the
Purchaser hereunder, the sale of the Mortgage Loans by the Purchaser to FHASI
pursuant to MLPA II and the transfer of the Mortgage Loans by FHASI to the Trust
pursuant to the Pooling and Servicing Agreement.
ARTICLE IV
Miscellaneous
Section 4.1 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, absolute sales thereof. 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
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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 4.2 Seller's Consent to Assignment. The Seller hereby consents to
the assignment, transfer and conveyance by the Purchaser to FHASI of all of the
Purchaser's rights hereunder pursuant to MLPA II and the assignment, transfer
and conveyance by FHASI to the Trust of all of FHASI's rights against the Seller
pursuant to the Pooling and Servicing Agreement.
Section 4.3 Specific Performance. Either party or its assignees may enforce
specific performance of this Agreement.
Section 4.4 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 4.5 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 30th day of September, 2002.
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
Mortgage Loan Purchase Agreement - Signature Page
SCHEDULE A
[BEGINS ON NEXT PAGE]
SCHEDULE B
Representations and Warranties as to the Mortgage Loans
First Horizon Home Loan Corporation ("Seller") hereby makes the
representations and warranties set forth in this Schedule B to the Purchaser, as
of the Closing Date, or if so specified herein, as of the Cut-off Date or date
of origination of the Mortgage Loan. Capitalized terms used but not otherwise
defined in this Schedule B shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement, dated as of September 1, 2002 (the "Pooling and
Servicing Agreement"), among 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 Mortgage Loan Purchase
Agreement, dated as of September 30, 2002, by and between First
Horizon Home Loan Corporation, as seller, and First Tennessee Bank
National Association, as purchaser (the "Purchaser"), 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.
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(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
(10) 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 state and federal laws, including, without
limitation, usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending and disclosure laws or any noncompliance
does not have a material adverse effect on the value of the related
Mortgage Loan.
(9) 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.
(10) 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.
(11) 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.
(12) 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
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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.
(13) 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.
(14) The proceeds of the Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder.
(15) 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.
(16) 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
Certificateholders to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor.
(17) 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 (17) notwithstanding,
no breach of this item (17) 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 Master Servicer
maintains a blanket policy pursuant to Section 3.9(b) of the Pooling
and Servicing Agreement.
(18) 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.
(19) 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.
B-3
(20) 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.
(21) Any leasehold estate securing a Mortgage Loan has a stated term at
least as long as the term of the related Mortgage Loan.
(22) 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.
(23) The Mortgage Loans provide for the full amortization of the amount
financed over a series of monthly payments.
(24) At origination, substantially all of the Mortgage Loans in the
Mortgage Pools had stated terms to maturity of 30 years.
(25) 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.
(26) The Mortgage Loans may be prepaid at any time by the related
Mortgagors without penalty.
(27) 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.
(28) Each Mortgage Loan in Pool I was originated on or after March 22,
2002. Each Mortgage Loan in Pool II was originated on or after June
3, 2002
(29) The latest stated maturity date of any Mortgage Loan in Pool I is
October 1, 2032, and the earliest stated maturity date of any
Mortgage Loan in Pool I is August 1, 2022. The latest stated maturity
date of any Mortgage Loan in Pool II is September 17, 2017 and the
earliest stated maturity date of any Mortgage Loan in Pool II is
August 1, 2012.
(30) No Mortgage Loan was delinquent more than 30 days as of the Cut-off
Date.
(31) 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.
B-4
(32) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
B-5
