FINANCIAL GUARANTYGuarantee Agreement |
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Search Guarantee Agreement by:
Exhibit 99.5
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FINANCIAL GUARANTY |
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INSURANCE POLICY |
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OBLIGOR: First Horizon ABS Trust 2007-HE1 |
Policy No.: 51849-N |
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OBLIGATIONS:
$307,000,000 First Horizon HELOC Notes, |
Date of Issuance: June 28, 2007 |
FINANCIAL SECURITY ASSURANCE INC. (“Financial Security”), for consideration received, hereby UNCONDITIONALLY AND IRREVOCABLY GUARANTEES to each Holder, subject only to the terms of this Policy (which includes each endorsement hereto), the full and complete payment by the Obligor of Scheduled Payments of principal of, and interest on, the Obligations.
For the further protection of each Holder, Financial Security irrevocably and unconditionally guarantees:
(a) payment of the amount of any distribution of principal of, or interest on, the Obligations made during the Term of this Policy to such Holder that is subsequently avoided in whole or in part as a preference payment under applicable law (such payment to be made by Financial Security in accordance with Endorsement No. 1 hereto).
(b) payment of any amount required to be paid under this Policy by Financial Security following Financial Security’s receipt of notice as described in Endorsement No. 1 hereto.
Financial Security shall be subrogated to the rights of each Holder to receive payments under the Obligations to the extent of any payment by Financial Security hereunder.
Except to the extent expressly modified by an endorsement hereto, the following terms shall have the meanings specified for all purposes of this Policy. “Holder” means the registered owner of any Obligation as indicated on the registration books maintained by or on behalf of the Obligor for such purpose or, if the Obligation is in bearer form, the holder of the Obligation. “Scheduled Payments” means payments which are scheduled to be made during the Term of this Policy in accordance with the original terms of the Obligations when issued and without regard to any amendment or modification of such Obligations thereafter; payments which become due on an accelerated basis as a result of (a) a default by the Obligor, (b) an election by the Obligor to pay principal on an accelerated basis or (c) any other cause, shall not constitute “Scheduled Payments” unless Financial Security shall elect, in its sole discretion, to pay such principal due upon such acceleration together with any accrued interest to the date of acceleration. “Term of this Policy” shall have the meaning set forth in Endorsement No. 1 hereto.
This Policy sets forth in full the undertaking of Financial Security, and shall not be modified, altered or affected by any other agreement or instrument, including any modification or amendment thereto, or by the merger, consolidation or dissolution of the Obligor. Except to the extent expressly modified by an endorsement hereto, the premiums paid in respect of this Policy are nonrefundable for any reason whatsoever, including payment, or provision being made for payment, of the Obligations prior to maturity. This Policy may not be cancelled or revoked during the Term of this Policy. THIS POLICY IS NOT COVERED BY THE PROPERTY/CASUALTY INSURANCE SECURITY FUND SPECIFIED IN ARTICLE 76 OF THE NEW YORK INSURANCE LAW.
In witness whereof, FINANCIAL SECURITY ASSURANCE INC. has caused this Policy to be executed on its behalf by its Authorized Officer.
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FINANCIAL SECURITY ASSURANCE INC. |
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By |
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Authorized Officer |
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A subsidiary
of Financial Security Assurance Holdings Ltd. |
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(212) 826-0100 |
ENDORSEMENT NO. 1
TO FINANCIAL GUARANTY INSURANCE POLICY
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FINANCIAL
SECURITY |
31 West 52nd Street |
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Obligor: |
First Horizon ABS Trust 2007-HE1, established pursuant to the Trust Agreement dated as of June 18, 2007, among First Tennessee Bank National Association, as Seller, First Horizon Asset Securities Inc., as Depositor, and Wilmington Trust Company, as Owner Trustee, as amended and restated by that certain Amended and Restated Trust Agreement dated as of June 28, 2007, among First Tennessee Bank National Association, as Seller, First Horizon Asset Securities Inc., as Depositor, and Wilmington Trust Company, as Owner Trustee. |
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Obligations: |
$307,000,000 First Horizon HELOC Notes, Series 2007-HE1 |
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Policy No.: |
51849-N |
Date of Issuance: June 28, 2007
1. Definitions. For all purposes of this Policy, the terms specified below shall have the meanings or constructions provided below. Capitalized terms used herein and not otherwise defined herein shall have the meanings provided in the Indenture and the Sale and Servicing Agreement, as applicable, unless the context shall otherwise require.
“Business Day” means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions in the State of New York, the State of Delaware or in the city in which the Corporate Trust Office of the Indenture Trustee is located, are authorized or obligated by law, executive order or government decree to be closed.
“Financial Security” means Financial Security Assurance Inc., a New York stock insurance company.
“Holder” or “Noteholder” shall have the meaning set forth in the Indenture; provided, however, that Holder or Noteholder shall not include the Obligor or any affiliates or successors thereof in the event that the Obligor or any such affiliate or successor is a registered or beneficial owner of the Obligation.
“Indenture” means the Indenture dated as of June 1, 2007, pertaining to the Obligations, by and between the Obligor, as Issuer, and The Bank of New York, as Indenture Trustee, as the same may be amended, modified or supplemented from time to time with the consent of Financial Security.
“Indenture Trustee” means The Bank of New York, a New York banking corporation, in its capacity as Indenture Trustee under the Sale and Servicing Agreement and the Indenture, and any successor in such capacity.
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Policy No. 51849-N |
Date of Issuance: June 28, 2007 |
“Policy” means this Financial Guaranty Insurance Policy and includes each endorsement thereto.
“Receipt” and “Received” mean actual delivery to Financial Security and to the Fiscal Agent (as defined below), if any, prior to 12:00 noon, New York City time, on a Business Day; delivery either on a day that is not a Business Day, or after 12:00 noon, New York City time, shall be deemed to be receipt on the next succeeding Business Day. If any notice or certificate given hereunder by the Indenture Trustee is not in proper form or is not properly completed, executed or delivered, or contains any misstatement, it shall be deemed not to have been Received, and Financial Security or its Fiscal Agent shall promptly so advise the Indenture Trustee and the Indenture Trustee may submit an amended notice.
“Sale and Servicing Agreement” means the Sale and Servicing Agreement dated as of June 1, 2007, among the Obligor, as Issuer, First Horizon Asset Securities Inc., as Depositor, First Tennessee Bank National Association, as Seller, Master Servicer and Custodian, and the Indenture Trustee, as amended from time to time with the consent of Financial Security.
“Scheduled Payments” means, without duplication, the payment to be made to Holders in an aggregate amount equal to (i) for each Payment Date, the Monthly Interest Distributable Amount due on the Obligations for such Payment Date, (ii) for the Payment Date occurring in September 2029, the amount needed to pay the outstanding Note Principal Balance, and (iii) for any other Payment Date, the amount of the excess, if any, of the Note Principal Balance (in the case of clauses (ii) and (iii) above, after giving effect to all allocations and payments of principal to be made on the Obligations on the Payment Date, but without giving effect to payments under this Policy to be made on such Payment Date) over the Invested Amount for such Payment Date, in each case in accordance with the original terms of the Obligations when issued and without regard to any amendment or modification of the Obligations, the Indenture or the Sale and Servicing Agreement except amendments or modifications to which Financial Security has given its prior written consent. Financial Security may consent to any amendment of or modification to the Indenture as permitted by the Indenture; provided, however, that no such amendment or modification shall, without the consent of the Holder, change the entitlement of the Holder to payment under this Policy of any unpaid principal of the Obligations due at final maturity or due on any scheduled principal amortization date, or any unpaid interest thereon due on any interest payment date. Scheduled Payments will not include, nor shall coverage be provided under this Policy in respect of, any interest shortfalls due to the application of the Relief Act, any prepayment interest shortfalls, any LIBOR Carryover Interest Shortfalls or any amount required to increase the O/C Amount to the Specified O/C Amount that may be incurred or that may be distributable to the Obligations. Scheduled Payments shall not include payments that become due on an accelerated basis as a result of a default by the Obligor, an election by the Obligor to pay principal on an accelerated basis, the occurrence of an Event of Default under the Indenture or any other cause, unless Financial Security elects, in its sole discretion, to pay in whole or in part such principal due upon acceleration, together with any accrued interest to the date of acceleration. In the event Financial Security does not so elect, this Policy will continue to guarantee payment on the Obligations in accordance with their original terms. Scheduled Payments shall not include any amounts due in respect of the Obligations attributable to any increase in interest rate, penalty or other sum payable by the Obligor by reason of any Default or Event of Default in respect of the
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