MORTGAGE LOAN PURCHASE AGREEMENT
THIS
MORTGAGE LOAN PURCHASE AGREEMENT dated as of December 30, 2004 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, excluding the servicing rights
thereto, 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. ("FTMSI") pursuant
to the Servicing Rights Transfer and
Subservicing Agreement
(Home Equity Loans)
(as hereinafter defined).
WHEREAS,
the Purchaser will engage FTMSI to service the
Mortgage Loans
pursuant to the Servicing Agreement (Home Equity Loans) (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: December 30, 2004
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.
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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:
First Tennessee Bank
National Association,
and its successors
and assigns, as custodian under the
Custodial Agreement dated as of December 30,
2004 by and among The Bank of New York,
as trustee, First Horizon Home Loan
Corporation, as master servicer, and the
Custodian.
Cut-Off
Date: December 1, 2004.
Cut-off
Date Principal Balance: As to any Mortgage Loan, the actual
principal balance of such Mortgage Loan as reflected on the Mortgage Loan
Schedule.
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 25th
day
of each month, or if such 25th day is not a
Business Day, the next
succeeding
Business Day.
GAAP:
Generally applied
accounting
principals as in
effect from time to
time in the United States of America.
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.
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<PAGE>
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.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of
the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any Mortgage Loan
registered
with MERS on the
MERS
System.
MERS
(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The
Mortgage Identification Number for any MERS Mortgage Loan.
MOM Loan:
Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
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.
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<PAGE>
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: $235,257,077.58.
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.
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.
Seller:
First Horizon Home Loan Corporation, a Kansas corporation, and
its
successors and assigns, in its capacity as
seller of the Mortgage Loans.
Servicing
Agreement (Home Equity Loans): The servicing agreement (home
equity loans), dated as of December 1, 2004 by
and between First Tennessee Bank
National Association and its assigns,
as owner, and First Tennessee Mortgage
Services, Inc., as servicer.
Servicing
Rights Transfer and Subservicing Agreement (Home Equity Loans):
The servicing rights transfer and subservicing agreement (home equity loans),
dated as of December 1, 2004 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, as confirmed
in a Request for Release, (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 an Adjusted Net
Mortgage Rate not lower than the lower of
(a) the Adjusted Net Mortgage Rate of
the Deleted Mortgage Loan or (b) 5.865%;
provided that the
Master Servicing Fee
for the Substitute Mortgage Loan shall be the same as that of the Deleted
Mortgage Loan; (iii) have a CLTV Ratio no higher than that of the Deleted
Mortgage Loan; (iv) have a remaining term to
maturity no greater than (and not
more than one year less than that of) the
Deleted Mortgage
Loan; (v) not be a
Cooperative Loan unless the Deleted
Mortgage Loan was a
Cooperative
Loan and
(vi) comply with each representation and warranty set forth in Schedule B
attached hereto.
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<PAGE>
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 thereto, 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 (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;
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<PAGE>
(b)
except as
provided below and for
each Mortgage
Loan that is not a
MERS Mortgage Loan, the original recorded Mortgage or a copy of
such
Mortgage certified by
Seller as being a true and complete copy of
the Mortgage
and in the
case of each MERS Mortgage Loan, the
original Mortgage,
noting the
presence of the MIN of
the Mortgage
Loans and either language indicating that the Mortgage Loan is a
MOM
Loan if the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was
not a MOM Loan
at origination, the original Mortgage and the
assignment thereof to
MERS, with
evidence of recording
indicated
thereon, or a copy of the Mortgage certified by the public
recording
office in which such Mortgage has been recorded;
(c)
in the case of a
Mortgage Loan that is not a MERS Mortgage Loan, 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)
for any Mortgage
Loan other than a Combo Mortgage Loan, 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) for any Mortgage Loan other than a Combo Mortgage Loan
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, 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
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<PAGE>
(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 that is not
a MERS
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
