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 TENNESSEE BANK NATIONAL ASSOCIATION (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.
Mortgage: The mortgage, deed of trust or other instrument creating a
first lien on the property securing a Mortgage Note.
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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: $294,930,392.40.
Purchaser: First Tennessee Bank National Association, 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.
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.
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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 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
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(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;
(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
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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 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
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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:
(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
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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.
(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.
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(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.
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.
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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: 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
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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.
[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 26th day of November, 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 I - 2002-AR2, Signature Page
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
Tennessee Bank National Association (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 to 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
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.
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(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, Pool II and Pool III was originated on
or after March 5, 2002, March 11, 2002 and July 11, 2002,
respectively.
(29) The latest stated maturity date of any Mortgage Loan in Pool I is
November 1, 2032, and the earliest stated maturity date of any
Mortgage Loan in Pool I is March 1, 2032. The latest stated maturity
date of any Mortgage Loan in Pool II is November 1, 2032 and the
earliest stated maturity date of any Mortgage Loan in Pool II is
October 1, 2027. The latest stated maturity date of any Mortgage Loan
in Pool III is November 1, 2032, and the earliest stated maturity date
of any Mortgage Loan in Pool III is August 1, 2032.
(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
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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.
(32) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code.
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