UNDERLYING CERTIFICATES PURCHASE AGREEMENT Dated as of May 31, 2006 between FIRST HORIZON ASSET SECURITIES INC., Purchaser, and CITIGROUP GLOBAL MARKETS INC. Seller
Dated
as of May 31, 2006
between
FIRST
HORIZON ASSET SECURITIES INC.,
Purchaser,
and
CITIGROUP
GLOBAL MARKETS INC.
Seller
TABLE
OF CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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1
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Section
1.1
Definitions
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1
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ARTICLE
II CONVEYANCE OF THE CONVEYED ASSETS
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2
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Section
2.1 Conveyance of
the Conveyed Assets
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2
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Section
2.2
Closing
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3
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ARTICLE
III REPRESENTATIONS, WARRANTIES AND COVENANTS
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3
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Section
3.1
Representations, Warranties and Covenants of Seller
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3
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Section
3.2
Representations, Warranties and Covenants of Purchaser
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5
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Section
3.3 Additional
Documents and Actions
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6
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Section
3.4 Costs and
Expenses
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7
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ARTICLE
IV MISCELLANEOUS
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7
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Section
4.1
Notices
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7
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Section
4.2 Severability
Clause
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7
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Section
4.3
Counterparts
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7
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Section
4.4 Place of
Delivery and Governing Law
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8
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Section
4.5 Remedies
Cumulative; No Waiver
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8
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Section
4.6
Miscellaneous
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8
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Section
4.7 Agreement of
Seller
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8
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Section
4.8 Successors and
Assigns
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8
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Section
4.9
Survival
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Section
4.10 Intention of
Parties
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i
THIS
UNDERLYING CERTIFICATES PURCHASE AGREEMENT (this “Agreement”)
is
dated as of May 31, 2006 and is by and between CITIGROUP GLOBAL MARKETS INC.,
a
Delaware corporation (“Purchaser”),
and
FIRST HORIZON ASSET SECURITIES INC., a Delaware corporation (“Seller”).
RECITALS:
A. Subject
to the terms and conditions of this Agreement, Seller hereby agrees to sell
to
Purchaser, and Purchaser hereby agrees to purchase from Seller, the Underlying
Certificates (as defined below).
B. The
Underlying Certificates (including all distributions with respect thereto
payable on and after the Closing Date, other than the Underlying Yield
Supplement Amounts) will be sold, transferred and assigned by Purchaser to
a
trust in exchange for the Class A-1 and Class A-R Certificates issued by First
Horizon Alternative Mortgage Securities Trust 2006-RE1 (collectively, the
“Certificates”)
on the
Closing Date.
C. The
Certificates will be issued pursuant to a Pooling Agreement dated as of May
31,
2006 (the “Pooling
Agreement”)
between Purchaser, as depositor, the Seller and The Bank of New York, as trustee
(the “Trustee”).
Pursuant to the Pooling Agreement, Purchaser will assign certain of its rights
under this Agreement to the Trustee.
NOW,
THEREFORE, in consideration of the premises and mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions.
Initially capitalized terms used but not otherwise defined in this Agreement
have the meanings assigned to them in the Pooling Agreement. Whenever used
in
this Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Assigned
Distributions:
All
distributions payable on the Underlying Certificates, other than any Underlying
Yield Supplement Amounts payable in respect thereof, from and after the Closing
Date.
Certificates:
As
defined in the Recitals to this Agreement.
Closing
Date:
May 31,
2006.
Conveyed
Assets:
The
Underlying Certificates and the Assigned Distributions.
FHHLC:
First
Horizon Home Loan Corporation.
Initial
Purchaser:
Citigroup Global Markets Inc., in its capacity as such under the Purchase
Agreement.
Pooling
Agreement:
As
defined in the Recitals to this Agreement.
Purchase
Agreement:
The
Purchase Agreement dated as of May 26, 2006 by and among the Purchaser, FHHLC
and the Underwriter, as supplemented by a Terms Agreement with respect thereto
dated as of May 26, 2006.
Trustee:
The
Bank of New York, not in its individual capacity, but solely in its capacity
as
trustee for the benefit of the certificate holders under the Pooling Agreement,
and any successor thereto under the Pooling Agreement.
Underlying
Certificates:
An
82.29% interest in the Class I-A-1 Certificates and a 63.71% interest in the
Class I-A-3 Certificates, each issued by the Underlying Trust pursuant to the
Underlying PSA.
Underlying
PSA:
The
Pooling and Servicing Agreement dated as of March 1, 2005 by and among First
Horizon Asset Securities Inc., as depositor, FHHLC, as master servicer, and
The
Bank of New York, as trustee.
Underlying
Trust:
First
Horizon Alternative Mortgage Securities Trust 2005-FA3, a common law trust
created pursuant to the Underlying PSA.
Underlying
Yield Supplement Amount:
63.71%
of the “Class I-A-1/Class I-A-2 Yield Supplement Amount” as such term is defined
in the Underlying PSA.
Underwriter:
Citigroup Global Markets Inc., in its capacity as such under the Underwriting
Agreement.
Underwriting
Agreement:
The
Underwriting Agreement dated as of May 26, 2006 by and among the Purchaser,
FHHLC and the Underwriter, as supplemented by a Terms Agreement with respect
thereto dated as of May 26, 2006.
ARTICLE
II
CONVEYANCE
OF THE CONVEYED ASSETS
Section
2.1 Conveyance
of the Conveyed Assets.
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(a)
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Seller
hereby agrees to sell, transfer, assign, set over and otherwise convey
to
Purchaser, without recourse, all of the right, title and interest
of
Seller in and to the Conveyed
Assets.
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(b)
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On
or prior to the Closing Date, Seller shall take or cause to be taken
all
actions necessary to effect the transfer of the beneficial ownership
of
the Underlying Certificates to the Trustee on the book-entry records
of
The Depository Trust Company. Seller, effective as of the Closing
Date,
hereby acknowledges and agrees that any of the Assigned Distributions
received by it shall be held in trust for the exclusive benefit of
the
Trustee and shall be immediately paid and delivered to the Trustee
for
deposit into the Distribution Account established pursuant to the
Pooling
Agreement.
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(c)
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As
consideration for the sale of the Conveyed Assets to the Purchaser
hereunder, on the Closing Date the Purchaser will deliver or cause
to be
delivered the Certificates to the Underwriter and the Initial Purchaser,
as applicable, or their respective designees in accordance with the
written instructions of the Seller.
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(d)
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The
obligation of Seller to sell, and of Purchaser to purchase, the Conveyed
Assets as set forth in this Section
2.1
is
contingent upon the consummation, on the Closing Date, of the transactions
pursuant to which the Purchaser sells (i) the Class A-1 Certificates
to
the Underwriter pursuant to the Underwriting Agreement and (ii) the
Class
A-X and Class A-R Certificates to the Initial Purchaser pursuant
to the
Purchase Agreement.
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Section
2.2 Closing.
The closing for the sale of the Conveyed Assets shall occur on the Closing
Date
at such time and place and in such manner as the parties shall
agree.
ARTICLE
III
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Section
3.1 Representations,
Warranties and Covenants of Seller.
Seller
hereby affirms to Purchaser and the Trustee that each of the following
representations and warranties will be true and correct as of the Closing
Date:
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(a)
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Seller
is a corporation, duly incorporated, validly existing and in good
standing
under the laws of the State of Delaware, with corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder.
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(b)
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The
execution and delivery of this Agreement by Seller, the consummation
of
the transactions contemplated hereby, and the fulfillment of and
compliance with the terms and conditions hereof, will not (i) conflict
with or result in a breach of or give rise to any default under any
of the
terms, conditions or provisions of Seller’s charter or by-laws or any term
or provision of any material pooling agreement, deed of trust, contract
or
other agreement or instrument to which Seller is a party or is bound;
or
(ii) result in the violation of or conflict with any law, rule,
regulation, order, judgment or decree of any court or governmental
authority having jurisdiction over
Seller.
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(c)
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This
Agreement has been duly and validly authorized, executed and delivered
by
Seller and, assuming the due authorization, execution and delivery
hereof
by Purchaser, constitutes a legal, valid and binding obligation of
Seller,
enforceable against Seller in accordance with its terms, except as
such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership or moratorium or other similar laws affecting creditors’
rights, and by the availability of equitable remedies (including
specific
performance and injunctive relief), regardless of whether such enforcement
is considered in a proceeding in equity or at law, and except as
enforcement of the indemnification provisions thereof may be limited
by
public policy.
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(d)
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Seller
is not in default with respect to any order or decree of any court
or any
order, regulation or demand of any federal, state, municipal or
governmental agency, which default would materially and adversely
affect
its performance of this Agreement.
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(e)
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There
is no action, suit or proceeding before or by any court or governmental
agency or body now pending or, to Seller’s knowledge, threatened, which,
if determined adversely to Seller, would materially and adversely
affect
the ability of Seller to perform and comply with the terms of this
Agreement.
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(f)
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Seller
has the full corporate power and authority to purchase, hold and
transfer
the Conveyed Assets and to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions
of, this
Agreement.
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(g)
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No
consent, approval, authorization or order of, or registration or
filing
with, or notice to, any court, governmental agency or body or supervisory
agent, in each case which has not been obtained, made, or given,
as
applicable, is required for the execution, delivery and performance
by
Seller of or compliance by Seller with this Agreement or the consummation
by Seller of the transactions contemplated by this
Agreement.
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(h)
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Seller
does not believe, nor does it have any reason or cause to believe,
that it
cannot perform each and every covenant of Seller contained in this
Agreement.
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(i)
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The
consummation of the transactions contemplated by this Agreement is
being
undertaken in the ordinary course of business of Seller and the transfer,
assignment and conveyance of the Conveyed Assets pursuant to this
Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any relevant
jurisdiction.
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(j)
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From
and after the Closing Date, Seller will record in its books and records
and report the transfer of the Conveyed Assets to Purchaser as a
sale for
federal income tax purposes and pursuant to generally accepted accounting
principles.
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(k)
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Seller
has not dealt with any broker, investment banker or agent or other
person
other than the Underwriter that may be entitled to any commission
or
compensation in connection with the sale of the Conveyed Assets to
Purchaser.
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(l)
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The
consideration received by Seller upon the sale of the Conveyed Assets
under this Agreement constitutes fair consideration and reasonably
equivalent value to Seller for the Conveyed
Assets.
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(m)
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Seller
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Conveyed Assets. The Seller will not
be left
with unreasonably small capital to conduct its business as a result
of the
sale hereunder and Seller believes that it will be able to, and it
intends
to, pay its debts as they mature. The sale of the Conveyed Assets
is not
undertaken with the intent to hinder, delay, or defraud any of Seller’s
creditors.
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(n)
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Seller
hereby represents and warrants to Purchaser, as to each of the Conveyed
Assets as of the Closing Date,
that:
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(i)
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All
steps necessary to transfer all of Seller’s right, title and interest in
and to the Conveyed Assets have been taken by
Seller;
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(ii)
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Immediately
prior to the transfer contemplated by this Agreement, Seller is the
sole
owner and holder of the Conveyed Assets free and clear of any and
all
liens, pledges, charges or security interests of any nature and has
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;
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(iii)
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Seller
has acquired the Conveyed Assets in the ordinary course of its business,
in good faith, for value and without notice of any claim against
or claim
to the Conveyed Assets on the part of any person;
and
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(iv)
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Seller
has no actual or constructive knowledge or notice of any interest
in the
Conveyed Assets contrary to the Trustee’s interest under the Pooling
Agreement.
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(o)
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Seller
hereby represents and warrants to Purchaser as to the Certificates,
that:
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(i)
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If
the Seller ever sells any of the Certificates, it will sell at least
25%
of its beneficial ownership interest in the Certificates to one or
more
unaffiliated third parties; and
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(ii)
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If
Seller ever owns more than 75% of the beneficial ownership interest
in the
Certificates, it will own 100% of the
Certificates.
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Section
3.2 Representations,
Warranties and Covenants of Purchaser.
Purchaser hereby affirms to Seller and the Trustee that each of the following
representations and warranties is true and correct as of the Closing
Date:
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(a)
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Purchaser
is a corporation, duly incorporated, validly existing and in good
standing
under the laws of the State of Delaware, with corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder.
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(b)
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The
execution and delivery of this Agreement by Purchaser, the consummation
of
the transactions contemplated hereby, and the fulfillment of and
compliance with the terms and conditions hereof, will not (i) conflict
with or result in a breach of or give rise to any default under any
of the
terms, conditions or provisions of Purchaser’s charter or by-laws or any
term or provision of any material pooling agreement, deed of trust,
contract or other agreement or instrument to which Purchaser is a
party or
is bound; or (ii) result in the violation of or conflict with any
law,
rule, regulation, order, judgment or decree of any court or governmental
authority having jurisdiction over
Purchaser.
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(c)
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This
Agreement has been duly and validly authorized, executed and delivered
by
Purchaser and, assuming the due authorization, execution and delivery
hereof by Seller, constitutes a legal, valid and binding obligation
of
Purchaser, enforceable against Purchaser in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership or moratorium or other similar laws
affecting
creditors’ rights, and by the availability of equitable remedies
(including specific performance and injunctive relief), regardless
of
whether such enforcement is considered in a proceeding in equity
or at
law, and except as enforcement of the indemnification provisions
thereof
may be limited by public policy.
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(d)
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Purchaser
is not in default with respect to any order or decree of any court
or any
order, regulation or demand of any federal, state, municipal or
governmental agency, which default would materially and adversely
affect
its performance of this Agreement.
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(e)
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There
is no action, suit or proceeding before or by any court or governmental
agency or body now pending or, to Purchaser’s knowledge, threatened,
which, if determined adversely to Purchaser, would materially and
adversely affect the ability of Purchaser to perform and comply with
the
terms of this Agreement.
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(f)
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Purchaser
has the full corporate power and authority to execute and deliver,
engage
in the transactions contemplated by, and perform and observe the
terms and
conditions of, this Agreement.
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(g)
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No
consent, approval, authorization or order of, or registration or
filing
with, or notice to, any court, governmental agency or body or supervisory
agent, in each case which has not been obtained, made, or given,
as
applicable, is required for the execution, delivery and performance
by
Purchaser of or compliance by Purchaser with this Agreement or the
consummation by the Purchaser of the transactions contemplated by
this
Agreement.
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(h)
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Purchaser
does not believe, nor does it have any reason or cause to believe,
that it
cannot perform each and every covenant of Purchaser contained in
this
Agreement.
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Section
3.3 Additional
Documents and Actions.
Seller
agrees to use its best efforts to furnish (or cause to be furnished) such
information and to execute, deliver and file, or cause to be executed, delivered
and filed, such documents or instruments as the Purchaser may reasonably request
in connection with the transactions herein contemplated and the issuance of
the
Certificates, including, but not limited to, officers’ certificates, financing
statements, transfer instructions, opinions of counsel and letters of
accountants in order to effectuate the purposes, terms and conditions of this
Agreement. Seller shall pay, or take all such actions as may be necessary to
cause to be paid, all Assigned Distributions to the Trustee for deposit into
the
Distribution Account established pursuant to the Pooling Agreement.
-6-
Section
3.4 Costs
and Expenses.
Seller
will pay all costs and expenses in connection with the transfer and delivery
of
the Conveyed Assets in the manner contemplated herein.
ARTICLE
IV
MISCELLANEOUS
Section
4.1 Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed by registered or certified mail, return
receipt requested, or, if by other means, when received by the other party
or at
the following addresses or such other address as may hereinafter be furnished
to
the other party by like notice.
Seller:
Citigroup
Global Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇
▇▇▇▇▇
Purchaser: First
Horizon Asset Securities Inc.
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇
Any
such
demand, notice or communication hereunder shall be deemed to have been given
on
the date delivered to the premises of the addressee (as evidenced, in the case
of registered or certified mail, by the date noted on the return
receipt).
Section
4.2 Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any
provision hereof.
Section
4.3 Counterparts.
For
the
purpose of facilitating the execution and proving of this Agreement, as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to
be
an original, and such counterparts shall constitute but one and the same
instrument.
-7-
Section
4.4 Place
of Delivery and Governing Law.
The
Agreement shall be construed in accordance with the laws of the State of New
York (without regard to conflict of laws principles and the application of
the
laws of any other jurisdiction) and the obligations, rights and remedies of
the
parties hereunder shall be determined in accordance with such laws.
Section
4.5 Remedies
Cumulative; No Waiver.
All
rights and remedies of each party or any successor or assignee of such party
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of
any thereof or of any other rights and remedies available to such party or
such
successors or assigns; and no failure to exercise any right or power accruing
upon any default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or
an
acquiescence therein; and every right and remedy arising under this Agreement
or
by law to a party or such successors or assigns may be exercised from time
to
time, and as often as shall be deemed expedient, by such party or such
successors or assigns.
Section
4.6 Miscellaneous.
This
Agreement may be amended or supplemented from time to time only with the written
consent of Seller, Purchaser and any assignee of Purchaser. This Agreement
contains the entire understanding and agreement of the parties and supersedes
and incorporates all prior negotiations, understandings and agreements which
are
fully merged herein.
Section
4.7 Agreement
of Seller.
Seller
agrees to execute and deliver such instruments and take such actions as
Purchaser may, from time to time, reasonably request in order to effectuate
the
purposes and to carry out the terms of this Agreement.
Section
4.8 Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by and
against Seller, Purchaser, and their respective successors and assigns. Each
party hereto shall have the right to assign its rights, but not its obligations,
hereunder without the consent of the other parties.
Section
4.9 Survival.
Article
IV
hereto
shall survive the consummation of the transactions contemplated
hereby.
Section
4.10 Intention
of Parties.
It
is the
intention of Seller and Purchaser that the sale, transfer, assignment and
conveyance herein contemplated constitute a sale of the Conveyed Assets
conveying good title thereto, free and clear of any liens and encumbrances,
from
Seller to Purchaser and that the Conveyed Assets not be part of Seller’s estate
in the event of an insolvency, and any filing of any financing statement under
the Uniform Commercial Code, as in effect in any applicable jurisdiction, should
not be construed as a conclusion that a sale has not occurred. In the event
that
such conveyance is deemed by any court of competent jurisdiction to be a loan
or
financing notwithstanding the express intent of the parties to the contrary,
then and only in such event, the parties intend that Seller shall be deemed
to
have granted to Purchaser a security interest in all of Seller’s right, title
and interest in the Conveyed Assets, that such loan or financing shall be
non-recourse, that the Conveyed Assets and the proceeds of the Conveyed Assets
constituting the sole source for the repayment of such loan and that this
Agreement shall constitute a security agreement under applicable
law.
-8-
IN
WITNESS WHEREOF, Seller and Purchaser have caused their names to be signed
hereto by their respective officers thereunto duly authorized, all as of the
day
and year first above written.
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SELLER:
CITIGROUP GLOBAL MARKETS INC.
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| By: | ||
| Name: | ||
| Title: | ||
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PURCHASER:
FIRST HORIZON ASSET SECURITIES INC.
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| By: | ||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: | Vice President | |