EXHIBIT 10.2
MORTGAGE LOAN PURCHASE AGREEMENT
For Ten Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, FIRST TENNESSEE BANK
NATIONAL ASSOCIATION (the "Seller"), does hereby transfer, sell and convey to
FIRST HORIZON ASSET SECURITIES INC., a Delaware corporation (the "Purchaser"),
and the Purchaser does hereby purchase and acquire on the terms set forth
herein, certain mortgage loans owned by the Seller (the "Mortgage Loans") which
Mortgage Loans are more particularly listed and described in Schedule A attached
hereto and made a part hereof.
This Mortgage Loan Purchase Agreement ("Agreement") is executed upon
the following terms and conditions:
DEFINITIONS
Closing Date: September 30, 2002.
Custodian: LaSalle Bank National Association, a national banking
association, and its successors and assigns, as custodian under the Custodial
Agreement dated as of September 30, 2002 by and among The Bank of New York, as
trustee, First Horizon Home Loan Corporation, as master servicer, and the
Custodian.
Cut-Off Date: September 1, 2002.
FHHLC: First Horizon Home Loan Corporation, a Kansas corporation, in
its capacity as the seller of the Mortgage Loans pursuant to MLPA I.
MLPA I: The mortgage loan purchase agreement, dated as of September 30,
2002, 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 2.1 pertaining
to a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to this Agreement or the related Pooling and
Servicing Agreement.
Mortgage Loans: The mortgage loans transferred, sold and conveyed by
the Seller to the Purchaser, pursuant to this Agreement.
Mortgage Note: The original executed note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Coop Shares and
Proprietary Lease.
Mortgagor: The obligor(s) on a Mortgage Note.
Pooling and Servicing Agreement: The pooling and servicing agreement,
dated as of September 1, 2002, by and among First Horizon Asset Securities Inc.,
as depositor, First Horizon Home Loan Corporation, as master servicer, and The
Bank of New York, as trustee, as related to the creation and issuance of the
Mortgage Pass-Through Certificates, Series 2002-AR1.
Purchase Price: $215,410,955.
Purchaser: First Horizon Asset Securities Inc., a Delaware corporation,
in its capacity as purchaser of the Mortgage Loans pursuant to this Agreement.
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.
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Pooling and Servicing Agreement.
ARTICLE I
Purchase and Sale
Section 1.1 Purchase Price. In consideration for the payment to it of
the Purchase Price on the Closing Date, pursuant to written instructions
delivered by the Seller to the Purchaser on the Closing Date, the Seller does
hereby transfer, sell and convey to the Purchaser on the Closing Date, but with
effect from the Cut-off Date, without recourse, (i) all right, title and
interest of the Seller in the Mortgage Loans and all property securing such
Mortgage Loans, including all interest and principal received or receivable by
the Seller with respect to the Mortgage Loans on or after the Cut-off Date and
all interest and principal payments on the Mortgage Loans received on or prior
to the Cut-off Date in respect of installments of interest and principal due
thereafter, but not including payments of principal and interest due and payable
on the Mortgage Loans on or before the Cut-off Date, (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 1.2 Timing. The sale of the Mortgage Assets hereunder shall
take place on the Closing Date.
ARTICLE II
Conveyance and Delivery
Section 2.1 Delivery of Mortgage Files. In connection with the transfer
and assignment set forth in Section 1.1 above, the Seller has delivered or
caused to be delivered to the Custodian (or, in the case of the Delay Delivery
Mortgage Loans, will deliver or cause to be delivered to the Custodian within
thirty (30) days following the Closing Date) the following
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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
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;
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(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).
ARTICLE III
Representations and Warranties
Section 3.1 Representations and Warranties of the Seller. (a) The Seller
hereby represents and warrants to the Purchaser, as of the date of execution and
delivery hereof, that:
(1) The Seller is duly organized as a national banking association
and is validly existing under the laws of the United States of America.
(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 agency or governmental body having
jurisdiction
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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.
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive the sale of the Mortgage Loans to the
Purchaser hereunder and the subsequent transfer of the Mortgage Loans by the
Purchaser to the Trustee pursuant to the Pooling and Servicing Agreement.
ARTICLE IV
Miscellaneous
Section 4.1 Transfer Intended as Sale. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans by the Seller to the
Purchaser be, and be construed as, absolute sales thereof. It is, further, not
the intention of the parties that such conveyances be deemed a pledge thereof by
the Seller to the Purchaser. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held to be the property of the
Seller or the Purchaser, respectively, or if for any other reason this Agreement
is held or deemed to create a security interest in such assets, then (i) this
Agreement shall be deemed to be a security agreement within the meaning of the
Uniform Commercial Code of the State of Texas and (ii) the conveyance of the
Mortgage Loans provided for in this Agreement shall be deemed to be an
assignment and a grant by the Seller to the Purchaser of a security interest in
all of the Mortgage Loans, whether now owned or hereafter acquired.
The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Seller and the Purchaser shall arrange for filing any
Uniform Commercial Code continuation statements in connection with any security
interest granted hereby.
Section 4.2 Seller's Consent to Assignment. The Seller hereby consents to
the assignment, transfer and conveyance by the Purchaser to the Purchaser's
designee of the rights with respect to the Mortgage Loans granted to the
Purchaser pursuant to the representations and warranties made by Seller in
Section III hereof, including the representations and warranties made by FHHLC
in the Mortgage Loan Purchase Agreement.
Section 4.3 Specific Performance. Either party may enforce specific
performance of this Agreement.
Section 4.4 Notices. All notices, demands and requests that may be given
or that are required to be given hereunder shall be sent by United States
certified mail, postage prepaid, return receipt requested, to the parties at
their respective addresses as follows:
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If to the Purchaser: 0000 Xxxxxxx Xxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxx
If to the Seller: 000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Xx.
Section 4.5 Choice of Law. This Agreement shall be construed in accordance
with and governed by the substantive laws of the State of Texas applicable to
agreements made and to be performed in the State of Texas and the obligations,
rights and remedies of the parties hereto shall be determined in accordance with
such laws.
Section 4.6 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 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 September, 2002.
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
SCHEDULE A
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