Exhibit 10.2
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT dated as of January 30, 2003 by
and between FIRST TENNESSEE BANK NATIONAL 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 are to be sold by the Seller to the
Purchaser.
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.
Closing Date: January 30, 2003.
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: LaSalle Bank National Association, a national banking
association, and its successors and assigns, as custodian under the Custodial
Agreement dated as of January 30, 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: January 1, 2003.
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.
FHHLC: First Horizon Home Loan Corporation, a Kansas corporation, in
its capacity as the seller of the Mortgage Loans pursuant to MLPA I.
GAAP: Generally applied accounting principals as in effect from time to
time in the United States of America.
MLPA I: The mortgage loan purchase agreement, dated as of January 30,
2003, between First Horizon Home Loan Corporation, as seller, and First
Tennessee Bank National Association, 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 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 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.
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: $449,109,429.00.
Purchaser: First Horizon Asset Securities Inc., a Delaware corporation,
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.
Security Agreement: The security agreement with respect to a
Cooperative Loan.
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Seller: First Tennessee Bank National Association, and its successors
and assigns, in its capacity as seller of the Mortgage Loans pursuant to this
Agreement.
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, without recourse, (i) all right, title and
interest of the Seller in the Mortgage Loans, excluding the servicing rights for
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, (ii) all of the Seller's rights as
Purchaser under MLPA I including, without limitation, the rights of the Seller
to require FHHLC to cure breaches of representations and warranties with respect
to the Mortgage Loans as provided thereunder, and (iii) all proceeds from the
foregoing. Items (i) through (iii) 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
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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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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 national banking association
and is validly existing under the laws of the United States of America 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 requisite 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 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 or of creditors of depository institutions, the accounts
of which are insured by the FDIC, 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
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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 assigns, transfers and conveys to the
Purchaser all of its rights with respect to the Mortgage Loans
including, without limitation, the representations and warranties of
FHHLC made pursuant to MLPA I, together with all rights of the Seller
to require FHHLC to cure any breach thereof or to repurchase or
substitute for any affected Mortgage Loan in accordance with MLPA I.
It is understood and agreed that the obligation under MLPA I of FHHLC
to cure, repurchase or replace any Mortgage Loan as to which a breach has
occurred and is continuing shall constitute the sole remedy against FHHLC
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.
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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 FHHLC to the Seller pursuant to MLPA I
will, in the case of such assignment, transfer and conveyance, be for the
benefit of such third party. The Seller hereby consents to such assignment,
transfer and conveyance.
Section 5.3 Specific Performance. Either party or its assignees may
enforce specific performance of this Agreement.
Section 5.4 Notices. All notices, demands and requests that may be
given or that are required to be given hereunder shall be sent by United States
certified mail, postage prepaid, return receipt requested, to the parties at
their respective addresses as follows:
If to the Purchaser: 0000 Xxxxxxx Xxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxx
If to the Seller: 000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Xx.
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.
Section 5.6 Acknowledgment of FHHLC. FHHLC hereby acknowledges the
provisions of this Agreement, including the duties of FHHLC created hereunder
and the assignment of the representations and warranties made by FHHLC to the
Seller pursuant to MLPA I.
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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 January, 2003.
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, as Seller
By:__________________________________
Xxxx Xxxxxx
Senior Vice President
FIRST HORIZON ASSET SECURITIES INC.,
as Purchaser
By:__________________________________
Xxxx Xxxxxx
Senior Vice President - Asset
Securitization
The foregoing agreement is hereby
acknowledged and accepted as of the
date first above written.
FIRST HORIZON HOME LOAN CORPORATION,
in its capacity as the seller pursuant to MLPA I
By: ________________________________________________
Xxxx Xxxxxx
Senior Vice President - Asset Securitization
Mortgage Loan Purchase Agreement II-2003-1, Signature Page
SCHEDULE A
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