EXHIBIT 10.1
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT dated as of November 26, 2002, by
and between FIRST HORIZON HOME LOAN CORPORATION, a Kansas corporation (the
"Seller"), and FIRST HORIZON ASSET SECURITIES INC. (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.
WHEREAS, the Seller will simultaneously transfer the servicing rights for
the Mortgage Loans to First Tennessee Mortgage Services, Inc. pursuant to the
Servicing Rights Transfer and Subservicing Agreement (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
Definitions
Agreement: This Mortgage Loan Purchase Agreement, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which banking institutions in the City of Dallas, or the State of Texas
or New York City is located are authorized or obligated by law or executive
order to be closed.
Closing Date: November 26, 2002.
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: LaSalle Bank National Association, a national banking
association, and its successors and assigns, as custodian under the Custodial
Agreement dated as of November 26, 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: November 1, 2002.
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.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any insurance
policy, including all riders and endorsements thereto in effect, including any
replacement policy or policies, in each case other than any amount included in
such Insurance Proceeds in respect of expenses covered by such insurance policy.
Liquidation Proceeds: Amounts, including Insurance Proceeds, received in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee's sale, foreclosure sale or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property.
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Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on the property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 3.1 pertaining to
a particular Mortgage Loan and any additional documents required to be added to
the Mortgage File pursuant to this Agreement.
Mortgage Loans: The mortgage loans transferred, sold and conveyed by the
Seller to the Purchaser, pursuant to this Agreement.
Mortgage Loan Purchase Price: With respect to any Mortgage Loan required
to be purchased by the Seller pursuant to Section 4.1(c) hereof, an amount equal
to the sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on
the date of such purchase, and (ii) accrued interest thereon at the applicable
Mortgage Rate from the date through which interest was last paid by the
Mortgagor to the first day in the month in which the Mortgage Loan Purchase
Price is to be distributed to the Purchaser or its designees.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and is not
accompanied by an amount representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Proprietary Lease: With respect to any Cooperative Unit, a lease or
occupancy agreement between a Cooperative Corporation and a holder of related
Coop Shares.
Purchase Price: $503,118,335.
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.
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.
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Seller: First Horizon Home Loan Corporation, a Kansas corporation, and
its successors and assigns, in its capacity as seller of the Mortgage Loans.
Servicing Rights Transfer and Subservicing Agreement: The servicing
rights transfer and subservicing agreement, dated as of November 26, 2002 by and
between First Horizon Home Loan Corporation, as transferor and subservicer, and
First Tennessee Mortgage Services, Inc., as transferee and servicer.
Stated Principal Balance: As to any Mortgage Loan, the unpaid principal
balance of such Mortgage Loan as specified in the amortization schedule at the
time relating thereto (before any adjustment to such amortization schedule by
reason of any moratorium or similar waiver or grace period) after giving effect
to any previous partial Principal Prepayments and Liquidation Proceeds allocable
to principal (other than with respect to any Liquidated Mortgage Loan) and to
the payment of principal due on such date and irrespective of any delinquency in
payment by the related Mortgagor.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for a
Deleted Mortgage Loan which must, on the date of such substitution, (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
more than 10% less than the Stated Principal Balance of the Deleted Mortgage
Loan; (ii) have Mortgage Rate not lower than the Mortgage Rate of the Deleted
Mortgage Loan; (iii) have a maximum mortgage rate not more than 1% per annum
higher or lower than the maximum mortgage rate of the Deleted Mortgage Loan;
(iv) have a minimum mortgage rate specified in its related Mortgage Note not
more than 1% per annum higher or lower than the minimum mortgage rate of the
Deleted Mortgage Loan; (v) have the same mortgage index, reset period and
periodic rate as the Deleted Mortgage Loan and a gross margin not more than 1%
per annum higher or lower than that of the Deleted Mortgage Loan (vi) be
accruing interest at a rate no lower than and not more than 1% per annum higher
than, that of the Deleted Mortgage Loan; (iv) have a loan-to-value ratio no
higher than that of the Deleted Mortgage Loan; (vii) have a remaining term to
maturity no greater than (and not more than one year less than that of) the
Deleted Mortgage Loan; (viii) not be a Cooperative Loan unless the Deleted
Mortgage Loan was a Cooperative Loan and (ix) comply with each representation
and warranty set forth in Schedule B hereto.
Trustee: The Bank of New York and its successors and, if a successor
trustee is appointed hereunder, such successor.
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 for the Mortgage Loans, and all
property securing such Mortgage Loans, including all interest and principal
received or
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receivable by the Seller with respect to the Mortgage Loans on or after the
Cut-off Date and all interest and principal payments on the Mortgage Loans
received on or prior to the Cut-off Date in respect of installments of interest
and principal due thereafter, but not including payments of principal and
interest due and payable on the Mortgage Loans on or before the Cut-off Date,
and (ii) all proceeds from the foregoing. Items (i) and (ii) in the preceding
sentence are herein referred to collectively as "Mortgage Assets."
Section 2.2 Timing. The sale of the Mortgage Assets hereunder shall take
place on the Closing Date.
ARTICLE III
Conveyance and Delivery
Section 3.1 Delivery of Mortgage Files. In connection with the transfer
and assignment set forth in Section 2.1 above, the Seller has delivered or
caused to be delivered to the Trustee or to the Custodian on its behalf (or, in
the case of the Delay Delivery Mortgage Loans, will deliver or cause to be
delivered to the Trustee or to the Custodian on its behalf within thirty (30)
days following the Closing Date) the following documents or instruments with
respect to each Mortgage Loan so assigned (collectively, the "Mortgage Files"):
(a) (1) the original Mortgage Note endorsed by manual or
facsimile signature in blank in the following form: "Pay to the order of
________________, without recourse," with all intervening endorsements
showing a complete chain of endorsement from the originator to the Person
endorsing the Mortgage Note (each such endorsement being sufficient to
transfer all right, title and interest of the party so endorsing, as
noteholder or assignee thereof, in and to that Mortgage Note); or
(2) with respect to any Lost Mortgage Note, a lost note
affidavit from the Seller stating that the original Mortgage Note
was lost or destroyed, together with a copy of such Mortgage Note;
(b) except as provided below, the original recorded Mortgage or a copy
of such Mortgage certified by the Seller as being a true and
complete copy of the Mortgage;
(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;
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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 policy (including all riders
thereto) will be delivered as soon as it becomes available, and if the
title policy is not available, and to the extent required pursuant to
the second paragraph below or otherwise in connection with the rating
of the Certificates, a written commitment or interim binder or
preliminary report of the title issued by the title insurance or
escrow company with respect to the Mortgaged Property, and
(f) in the case of a Cooperative Loan, the originals of the following
documents or instruments:
(1) The Coop Shares, together with a stock power in blank;
(2) The executed Security Agreement;
(3) The executed Proprietary Lease;
(4) The executed Recognition Agreement;
(5) The executed UCC-1 financing statement with evidence of
recording thereon which have been filed in all places required to
perfect the Seller's interest in the Coop Shares and the Proprietary
Lease; and
(6) Executed UCC-3 financing statements or other appropriate UCC
financing statements required by state law, evidencing a complete and
unbroken line from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for recordation).
In the event that in connection with any Mortgage Loan the Seller cannot
deliver (i) the original recorded Mortgage or (ii) all interim recorded
assignments satisfying the requirements of clause (b) or (c) above,
respectively, concurrently with the execution and delivery hereof because such
document or documents have not been returned from the applicable public
recording office, the Seller shall promptly deliver or cause to be delivered to
the Trustee or the Custodian on its behalf such original Mortgage or such
interim assignment, as the case may be, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but in no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, be made later than one year following the Closing Date;
provided, however, in 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
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documents required to be delivered by the Seller to the Trustee. In the event
that the original Mortgage is not delivered and in connection with the payment
in full of the related Mortgage Loan and the public recording office requires
the presentation of a "lost instruments affidavit and indemnity" or any
equivalent document, because only a copy of the Mortgage can be delivered with
the instrument of satisfaction or reconveyance, the Seller shall execute and
deliver or cause to be executed and delivered such a document to the public
recording office. In the case where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, the Seller shall deliver or cause to
be delivered to the Trustee or the Custodian on its behalf a copy of such
Mortgage certified by such public recording office to be a true and complete
copy of the original recorded Mortgage.
In addition, in the event that in connection with any Mortgage Loan the
Seller cannot deliver or cause to be delivered the original or duplicate
original lender's title policy (together with all riders thereto), satisfying
the requirements of clause (v) above, concurrently with the execution and
delivery hereof because the related Mortgage has not been returned from the
applicable public recording office, the Seller shall promptly deliver or cause
to be delivered to the Trustee or the Custodian on its behalf such original or
duplicate original lender's title policy (together with all riders thereto) upon
receipt thereof from the applicable title insurer, but in no event shall any
such delivery of the original or duplicate original lender's title policy be
made later than one year following the Closing Date; provided, however, in the
event the Seller is unable to deliver or cause to be delivered by such date the
original or duplicate original lender's title policy (together with all riders
thereto) because the related Mortgage has not been returned by the appropriate
recording office, the Seller shall deliver or cause to be delivered such
documents to the Trustee or the Custodian on its behalf as promptly as possible
upon receipt thereof and, in any event, within 720 days following the Closing
Date.
Notwithstanding anything to the contrary in this Agreement, within thirty
days after the Closing Date, the Seller shall either (i) deliver or cause to be
delivered to the Trustee or the Custodian on its behalf the Mortgage File as
required pursuant to this Section 3.1 for each Delay Delivery Mortgage Loan or
(ii) (A) substitute or cause to be substituted a Substitute Mortgage Loan for
the Delay Delivery Mortgage Loan or (B) repurchase or cause to be repurchased
the Delay Delivery Mortgage Loan, which substitution or repurchase shall be
accomplished in the manner and subject to the conditions set forth in Section
4.1 (treating each Delay Delivery Mortgage Loan as a Deleted Mortgage Loan for
purposes of such Section 4.1), provided, however, that if the Seller fails to
deliver a Mortgage File for any Delay Delivery Mortgage Loan within the
thirty-day period provided in the prior sentence, the Seller shall use its best
reasonable efforts to effect or cause to be effected a substitution, rather than
a repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 4.1 hereof shall not apply to the initial
delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but rather
the Seller shall have five (5) Business Days to cure or cause to be cured such
failure to deliver.
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:
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(1) The Seller is duly organized as a Kansas corporation and is
validly existing and in good standing under the laws of the State of
Kansas and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by the Seller in
any state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in any
event, is in compliance with the doing business laws of any such state,
to the extent necessary to ensure its ability to enforce each Mortgage
Loan and to perform any of its other obligations under this Agreement in
accordance with the terms thereof.
(2) The Seller has the full corporate power and authority to sell
each Mortgage Loan, and to execute, deliver and perform, and to enter
into and consummate the transactions contemplated by this Agreement and
has duly authorized by all necessary corporate action on the part of the
Seller the execution, delivery and performance of this Agreement; and
this Agreement, assuming the due authorization, execution and delivery
thereof by the other parties thereto, constitutes a legal, valid and
binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except that (a) the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors' rights generally and (b) the remedy
of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(3) The execution and delivery of this Agreement by the Seller,
the sale of the Mortgage Loans by the Seller under this Agreement, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of the Seller and will not (a)
result in a material breach of any term or provision of the charter or
by-laws of the Seller or (b) materially conflict with, result in a
material breach, violation or acceleration of, or result in a material
default under, the terms of any other material agreement or instrument to
which the Seller is a party or by which it may be bound, or (c)
constitute a material violation of any statute, order or regulation
applicable to the Seller of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Seller; and the
Seller is not in breach or violation of any material indenture or other
material agreement or instrument, or in violation of any statute, order
or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or violation
may materially impair the Seller's ability to perform or meet any of its
obligations under this Agreement.
(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.
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(b) The Seller hereby makes the representations and warranties set
forth in Schedule B hereto to the Purchaser, as of the Closing Date, or
if so specified therein, as of the Cut-off Date.
(c) Upon discovery by either of the parties hereto of a breach of
a representation or warranty made pursuant to Schedule B hereto that
materially and adversely affects the interests of the Purchaser in any
Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other party. The Seller hereby covenants that within 90
days of the earlier of its discovery or its receipt of written notice
from the Purchaser of a breach of any representation or warranty made
pursuant to Schedule B hereto which materially and adversely affects the
interests of the Purchaser in any Mortgage Loan, it shall cure such
breach in all material respects, and if such breach is not so cured,
shall, (i) if such 90-day period expires prior to the second anniversary
of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage
Loan") from the pool of mortgages listed on Schedule B hereto and
substitute in its place a Substitute Mortgage Loan, in the manner and
subject to the conditions set forth in this Section; or (ii) repurchase
the affected Mortgage Loan or Mortgage Loans from the Purchaser at the
Mortgage Loan Purchase Price in the manner set forth below. With respect
to the representations and warranties described in this Section which are
made to the best of the Seller's knowledge, if it is discovered by either
the Seller or the Purchaser that the substance of such representation and
warranty is inaccurate and such inaccuracy materially and adversely
affects the value of the related Mortgage Loan or the interests of the
Purchaser therein, notwithstanding the Seller's lack of knowledge with
respect to the substance of such representation or warranty, such
inaccuracy shall be deemed a breach of the applicable representation or
warranty.
With respect to any Substitute Mortgage Loan or Loans, the Seller
shall deliver to the Trustee or to the Custodian on its behalf the
Mortgage Note, the Mortgage, the related assignment of the Mortgage, and
such other documents and agreements as are required by Section 3.1, with
the Mortgage Note endorsed and the Mortgage assigned as required by
Section 3.1. No substitution is permitted to be made in any calendar
month after the Determination Date for such month. Scheduled Payments due
with respect to Substitute Mortgage Loans in the month of substitution
will be retained by the Seller. Upon such substitution, the Substitute
Mortgage Loan or Loans shall be subject to the terms of this Agreement in
all respects, and the Seller shall be deemed to have made with respect to
such Substitute Mortgage Loan or Loans, as of the date of substitution,
the representations and warranties made pursuant to Schedule B hereto
with respect to such Mortgage Loan.
It is understood and agreed that the obligation under this
Agreement of the Seller to cure, repurchase or replace any Mortgage Loan
as to which a breach has occurred and is continuing shall constitute the
sole remedy against the Seller respecting such breach available to the
Purchaser on its behalf.
The representations and warranties contained in this Agreement shall not
be construed as a warranty or guaranty by the Seller as to the future payments
by any Mortgagor.
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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, 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
of the Agreement. The Seller and the Purchaser shall arrange for filing any
Uniform Commercial Code continuation statements in connection with any security
interest granted hereby.
Section 5.2 Seller's Consent to Assignment. The Seller hereby
acknowledges the Purchaser's right to assign, transfer and convey all of the
Purchaser's rights under this Agreement to a third party and that the
representations and warranties made by the Seller to the Purchaser pursuant to
this Agreement will, in the case of such assignment, transfer and conveyance, be
for the benefit of such third party. The Seller hereby consents to such
assignment, transfer and conveyance.
Section 5.3 Specific Performance. Either party or its assignees may
enforce specific performance of this Agreement.
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: 0000 Xxxxxxx Xxx
Xxxxxx, Xxxxx 00000
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Attn: Xxxxx X. Xxxx
Section 5.5 Choice of Law. This Agreement shall be construed in
accordance with and governed by the substantive laws of the State of Texas
applicable to agreements made and to be performed in the State of Texas and the
obligations, rights and remedies of the parties hereto shall be determined in
accordance with such laws.
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IN WITNESS WHEREOF, the Purchaser and the Seller have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the 26th day of November, 2002.
FIRST HORIZON HOME LOAN
CORPORATION, as Seller
By:______________________________________________
Xxxx Xxxxxx
Senior Vice President - Asset Securitization
FIRST HORIZON ASSET SECURITIES INC.,
as Purchaser
By:______________________________________________
Xxxx Xxxxxx
Senior Vice President - Asset Securitization
SCHEDULE A
[BEGINS ON NEXT PAGE]
SCHEDULE B
Representations and Warranties as to the Mortgage Loans
First Horizon Home Loan Corporation (the "Seller") hereby makes the
representations and warranties set forth in this Schedule B on which First
Horizon Asset Securities Inc. (the "Purchaser") relies in accepting the Mortgage
Loans. Such representations and warranties speak as of the execution and
delivery of the Mortgage Loan Purchase Agreement dated as of November 26, 2002
(the "MLPA"), between First Horizon Home Loan Corporation, as seller, and the
Purchaser and as of the Closing Date, or if so specified herein, as of the
Cut-off Date or date of origination of the Mortgage Loans, but shall survive the
sale, transfer and assignment of the Mortgage Loans to the Purchaser and any
subsequent sale, transfer and assignment by the Purchaser to a third party.
Capitalized terms used but not otherwise defined in this Schedule B shall have
the meanings ascribed thereto in the MLPA.
(1) The information set forth on Schedule A to the MLPA, with respect
to each Mortgage Loan is true and correct in all material respects
as of the Closing Date.
(2) Each Mortgage is a valid and enforceable first lien on the
Mortgaged Property subject only to (a) the lien of nondelinquent
current real property taxes and assessments and liens or interests
arising under or as a result of any federal, state or local law,
regulation or ordinance relating to hazardous wastes or hazardous
substances and, if the related Mortgaged Property is a unit in a
condominium project or Planned Unit Development, any lien for
common charges permitted by statute or homeowner association fees,
(b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record
being generally acceptable to mortgage lending institutions in the
area wherein the related Mortgaged Property is located or
specifically reflected in the appraisal made in connection with
the origination of the related Mortgage Loan, and (c) other
matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to
be provided by such Mortgage.
(3) Immediately prior to the assignment of the Mortgage Loans to the
Purchaser, the Seller had good title to, and was the sole owner
of, each Mortgage Loan free and clear of any pledge, lien,
encumbrance or security interest and had full right and authority,
subject to no interest or participation of, or agreement with, any
other party, to sell and assign the same pursuant to this
Agreement.
(4) As of the date of origination of each Mortgage Loan, there was no
delinquent tax or assessment lien against the related Mortgaged
Property.
(5) There is no valid offset, defense or counterclaim to any Mortgage
Note or Mortgage, including the obligation of the Mortgagor to pay
the unpaid principal of or interest on such Mortgage Note.
B-1
(6) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a
lien prior to, or equal with, the lien of such Mortgage, except
those which are insured against by the title insurance policy
referred to in item (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
B-2
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 holder of the Mortgage to the trustee under the deed of
trust, except in connection with a trustee's sale after default by
the Mortgagor.
(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 Seller maintains a blanket policy.
(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 August 2,
2001. Each Mortgage Loan in Pool II was originated on or after
August 9, 2002.
(29) The latest stated maturity date of any Mortgage Loan in Pool I is
December 1, 2032, and the earliest stated maturity date of any
Mortgage Loan in Pool I is October 1, 2022. The latest stated
maturity date of any Mortgage Loan in Pool II is November 1, 2017
and the earliest stated maturity date of any Mortgage Loan in Pool
II is October 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
