FIRST HORIZON ASSET SECURITIES INC. MORTGAGE PASS-THROUGH CERTIFICATES (Issuable in Series) UNDERWRITING AGREEMENT
FIRST
HORIZON ASSET SECURITIES INC.
MORTGAGE
PASS-THROUGH CERTIFICATES
(Issuable
in Series)
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Xxxxxx
Xxxxxxx & Co. Incorporated
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June
26, 2006
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1585
Xxxxxxxx
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Xxx
Xxxx, Xxx Xxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Ladies
and Gentlemen:
First
Horizon Asset Securities Inc., a corporation organized and existing under the
laws of the State of Delaware (the “Company”), may offer for sale to you and to
each of the other several underwriters, if any, participating in an underwriting
syndicate managed by you, from time to time its Mortgage Pass-Through
Certificates evidencing interests in pools of mortgage loans (the
“Certificates”). The Certificates may be issued in various series, and within
each series, in one or more classes, in one or more offerings on terms
determined at the time of sale (each such series, a “Series” and each such
class, a “Class”). Each Series of the Certificates will be issued under a
separate Pooling and Servicing Agreement (each, a “Pooling and Servicing
Agreement”) to be dated as of the respective cut-off date (each, a “Cut-off
Date”) among the Company, as depositor, First Horizon Home Loan Corporation, as
seller and master servicer, and The Bank of New York, as trustee (the
“Trustee”). Capitalized terms used but not defined herein shall have the
meanings given to them in the related Pooling and Servicing
Agreement.
The
Certificates issued under each Pooling and Servicing Agreement will represent
the entire beneficial ownership interest in a trust fund (the “Trust Fund”)
established by such Pooling and Servicing Agreement. The assets of each Trust
Fund will consist primarily of (i) one or more pools of conventional, fixed
or
adjustable rate, first lien, fully amortizing, one- to four-family residential
mortgage loans (the “Mortgage Loans”) having the original terms to maturity
specified in the related Terms Agreement referred to hereinbelow, (ii) mortgage
pass-through securities issued or guaranteed by Xxxxxx Mae, Xxxxxx Xxx or
Xxxxxxx Mac, or (iii) private mortgage-backed securities backed by first lien
mortgage loans secured by one- to four-family residential properties or
participations therein. If so specified in the related Terms Agreement, one
or
more elections may be made to treat the assets of each Trust Fund as a real
estate mortgage investment conduit (each, a “REMIC”) for federal income tax
purposes.
Whenever
the Company determines to make an offering of Certificates (each, a “Certificate
Offering”) pursuant to this underwriting agreement ( the “Agreement”) through
you, it will enter into an agreement (the “Terms Agreement”) providing for the
sale of specified Classes of Offered Certificates (as defined below) to, and
the
purchase and public offering thereof by, you and such other underwriters, if
any, selected by you as have authorized you to enter into such Terms Agreement
on their behalf (the underwriters in any such Terms Agreement being referred
to
herein as “Underwriters,” which term shall include you whether acting alone in
the sale of any Series of Certificates or as a member of an underwriting
syndicate). Each such Certificate Offering that the Company elects to make
pursuant to this Agreement shall be governed by this Agreement, as supplemented
by the related Terms Agreement. Each Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, shall specify, among other
things, the Classes of Certificates to be purchased by the Underwriters (the
“Offered Certificates”), the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 14 hereof) and the
principal amount of the Offered Certificates which each severally agrees to
purchase, the names of such other Underwriters, if any, acting as co-managers
with you in connection with each offering, the principal balance or balances
of
the Offered Certificates, each subject to any stated variance, and the price
or
prices at which such Offered Certificates are to be purchased by the
Underwriters from the Company.
1. Representations
and Warranties.
The
Company represents and warrants to and agrees with each Underwriter, as of
the
date of the related Terms Agreement, that:
(a) The
registration statement specified in the related Terms Agreement, on Form S-3,
including a prospectus, has been filed with the Securities and Exchange
Commission (the “Commission”) for the registration under the Securities Act of
1933, as amended (the “Act”), of mortgage pass-through certificates issuable in
series, which registration statement has been declared effective by the
Commission. The initial effective date of the registration statement was no
more
than three years before any Closing Date (or, if three years or more but less
than three years and six months, the Company filed another registration
statement on Form S-3 for the registration under the Act of Certificates
(issuable in series) before three years from the initial effective date of
the
registration statement and such new registration statement meets the
requirements of Rule 415(a)(6) under the Securities Act). Such registration
statement, as amended to the date of the related Terms Agreement, including
any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), on or before the effective date of the
Registration Statement, is hereinafter called the “Registration Statement,” and
such prospectus (the “Base Prospectus”), as such Base Prospectus is supplemented
by a prospectus supplement relating to the Offered Certificates of the related
Series, each in the form first filed after the date of the related Terms
Agreement pursuant to Rule 424(b) under the Act, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act
which were filed under the Exchange Act on or before the date of such prospectus
supplement (such prospectus supplement, including such incorporated documents
and any information that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430A under the Act, in the form first
filed after the date of the related Terms Agreement pursuant to Rule 424(b)
and
that discloses the public offering price and other final terms of the Offered
Certificates, is hereinafter called the “Prospectus Supplement”), is hereinafter
called the “Prospectus.” Any reference herein to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement, the Base Prospectus
or the Prospectus Supplement shall be deemed to refer to and include the filing
of any document under the Exchange Act after the effective date of the
Registration Statement or the date of the Base Prospectus or the Prospectus
Supplement, as the case may be, deemed to be incorporated therein by reference
pursuant to Item 12 of Form S-3 under the Act.
(b) The
related Registration Statement, at the time it became effective and at each
Time
of Sale, and the Prospectus contained therein, and any amendments thereof and
supplements thereto filed prior to the date of the related Terms Agreement,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder; on the date of the related Terms
Agreement and on each Closing Date (as defined in Section 3 hereof), the related
Registration Statement and the related Prospectus, and any amendments thereof
and supplements thereto, will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder; such Registration Statement (including for these purposes any
portion of the Applicable Static Pool Information (as defined in Section
8(b)(i)) deemed not part of the Registration Statement on account of Item
1105(d) of Regulation AB under the Act), at the time it became effective and
at
each Time of Sale, did not contain any untrue statement of a material fact
or
omit to state a material fact required to be stated therein or necessary to
make
the statements therein, not misleading; such Prospectus (including for these
purposes any portion of the Applicable Static Pool Information (as defined
in
Section 8(b)(i)) deemed not part of such Prospectus on account of Item 1105(d)
of Regulation AB under the Act), on the date of any filing pursuant to Rule
424(b) and on the related Closing Date, will not include any untrue statement
of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are
made,
not misleading; and the detailed description (each, a “Detailed Description”)
filed in connection with any Pre-Funding Arrangement referred to in any such
Prospectus, on each closing date relating to the purchase of the related
subsequent Mortgage Loans and the date of any filing thereof under cover of
Form
8-K, will not include any untrue statement of a material fact or omit to state
any information which such Definitive Free Writing Prospectus or Prospectus
states will be included in such Detailed Description; provided,
however,
that
the Company makes no representations or warranties as to any Underwriter
Information. Unless otherwise specified in the related Terms Agreement,
“Underwriter Information” shall mean any information contained in or omitted
from the portions of such Prospectus (or any amendment or supplement thereto)
set forth in the first sentence of the last paragraph of the cover page thereof
and the second sentence of the first paragraph and the first sentence of the
second paragraph, in each case, under the caption “Underwriting” therein. In
addition, the related Initial Issuer Free Writing Prospectus (as defined in
Section 8(b)(i), as amended or supplemented by any Corrected Issuer Free Writing
Prospectus (as defined in Section 8(l)(i) if such Corrected Issuer Free Writing
Prospectus was delivered to the Underwriter sufficiently prior to the Time
of
Sale for each investor to reasonably permit the delivery thereof by the
Underwriter to each such investor), will not contain any untrue statement of
a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in either case at the Time of Sale (as defined in Section
8(f)) to the applicable investor; provided however,
that no
representation is made as to the effect of the omission from any Issuer Free
Writing Prospectus of any information of the type specified in Exhibit
B
hereto
as “Supplemental Information”.
(c) (i)
At
the time of the filing of the Registration Statement and (ii) at the date of
the
Terms Agreement, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405 under the Act, including (x) the Company or any other
subsidiary in the preceding three years not having been convicted of a felony
or
misdemeanor or having been made the subject of a judicial or administrative
decree or order as described in Rule 405 and (y) the Company in the preceding
three years not having been the subject of a bankruptcy petition or insolvency
or similar proceeding, not having had a registration statement be the subject
of
a proceeding under Section 8 of the Act and not being the subject of a
proceeding under Section 8A of the Act, all as described in Rule
405.
(d) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Offered Certificates
or until any earlier date that the Company notified or notifies the Underwriter
as described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time following issuance
of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted
or would conflict with the information then contained in the Registration
Statement or included or would include an untrue statement of a material fact
or
omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, (i) the Company has promptly notified or will
promptly notify the Underwriter and (ii) the Company has promptly amended or
will promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission. The foregoing
two sentences do not apply to statements in or omissions from any Issuer Free
Writing Prospectus in reliance upon and in conformity with Underwriter
Information or Supplemental Information.
(e)
The
Offered Certificates of the related Series will conform to the description
thereof contained in the related Prospectus; will each, if rated at the time
of
issuance in one of the two highest rating categories by a nationally recognized
statistical rating organization, be when issued a “mortgage related security” as
such term is defined in Section 3(a)(41) of the Exchange Act, and will each
on
the related Closing Date be duly and validly authorized, and, when validly
executed, countersigned, issued and delivered in accordance with the related
Pooling and Servicing Agreement and sold to the Underwriters as provided herein
and in the related Terms Agreement, will each be validly issued and outstanding
and entitled to the benefits of the related Pooling and Servicing Agreement.
(f) Neither
the issuance nor sale of the Offered Certificates of the related Series nor
the
consummation of any other of the transactions herein contemplated, nor the
fulfillment of the terms hereof or of the related Terms Agreement, will conflict
with any statute, order or regulation applicable to the Company of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company or with any organizational document of the Company or any
instrument or any agreement under which the Company is bound or to which it
is a
party.
(g) This
Agreement and the related Terms Agreement have been duly authorized, executed
and delivered by the Company.
(h) At
or
prior to the related Closing Date, the Company will have entered into the
related Pooling and Servicing Agreement and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, such Pooling and
Servicing Agreement (on such Closing Date) will constitute the valid and binding
agreement of the Company enforceable in accordance with its terms, subject
as to
enforceability, to bankruptcy, insolvency, reorganization or other similar
laws
affecting creditors’ rights and to general principles of equity (regardless of
whether the enforceability of such Pooling and Servicing Agreement is considered
in a proceeding in equity or at law).
2. Purchase
and Sale.
Subject
to the execution of the Terms Agreement for a particular Certificate Offering
and subject to the terms and conditions and in reliance upon the representations
and warranties set forth in this Agreement and such Terms Agreement, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company,
the
respective original principal amounts of the Offered Certificates set forth
in
the applicable Terms Agreement opposite the name of such Underwriter, plus
any
additional original principal amount of Offered Certificates which such
Underwriter may be obligated to purchase pursuant to Section 15 hereof at the
purchase price therefor set forth in such Terms Agreement (the “Purchase
Price”).
The
parties hereto agree that settlement for all securities sold pursuant to this
Agreement and the applicable Terms Agreement shall take place on the settlement
date agreed upon at the time of the related transaction and set forth as the
“Closing Date” in such Terms Agreement and not as set forth in Rule 15c6-1(a) of
the Exchange Act.
3. Delivery
and Payment.
Delivery of and payment for the Offered Certificates of a Series shall be made
at the offices of Xxxxxxx Xxxxx LLP, Dallas, Texas, at 10:00 A.M., Dallas time,
on the Closing Date specified in the related Terms Agreement, which date and
time may be postponed by agreement between you and the Company (such date and
time being herein called the “Closing Date”). Delivery of such Offered
Certificates shall be made to you for the respective accounts of the
Underwriters against payment of the Purchase Price thereof to or upon the order
of the Company by wire transfer in federal or other immediately available funds
or by check payable in federal funds, as the Company shall specify no later
than
five full business days prior to such Closing Date. Unless delivery is made
through the facilities of The Depository Trust Company, the Offered Certificates
shall be registered in such names and in such authorized denominations as you
may request not less than two full business days in advance of each Closing
Date.
The
Company agrees to notify you at least two business days before each Closing
Date
of the exact principal balance evidenced by the Offered Certificates and to
have
such Offered Certificates available for inspection, checking and packaging
in
Dallas, Texas, no later than 12:00 noon on the business day prior to such
Closing Date.
4. Offerings
by the Underwriters.
It is
understood that each Underwriter proposes to offer and/or solicit offers for
the
Certificates to be purchased by it for sale to the public as set forth in the
related Prospectus and each Underwriter agrees that all such offers,
solicitations and sales by it shall be made in compliance with all applicable
laws and regulations. In connection with such offering(s), each Underwriter
agrees to provide the Company the issue price of the Certificates.
Each
Underwriter agrees that it will not sell or transfer any Certificate or interest
therein in the initial sale or transfer of such Certificate by such Underwriter
in an amount less than the minimum denomination for such Certificate set forth
in the related Prospectus Supplement.
Each
Underwriter further agrees that (i) if the Prospectus is not delivered to an
investor with the confirmation in reliance on Rule 172, it will include in
every
confirmation sent out the notice required by Rule 173 informing the investor
that the sale was made pursuant to the Registration Statement and that the
investor may request a copy of the Prospectus from such Underwriter; (ii) if
a
paper copy of the Prospectus is requested by an investor who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus
to
such investor without charge; (iii) if an electronic copy of the Prospectus
is
delivered by an Underwriter for any purpose, such copy shall be the same
electronic file containing the Prospectus in the identical form transmitted
electronically to such Underwriter by or on behalf of the Company specifically
for use by such Underwriter pursuant to this Section 4; for example, if the
Prospectus is delivered to an Underwriter by or on behalf of the Company in
a
single electronic file in portable document format (pdf), then such Underwriter
will deliver the electronic copy of the Prospectus in the same single electronic
file in pdf. Each Underwriter further agrees that (i) if it delivers to an
investor a pdf version of the Prospectus, upon such Underwriter’s receipt of a
request from the investor within the period for which delivery of the Prospectus
is required, such Underwriter will promptly deliver or cause to be delivered
to
the investor, without charge, a paper copy of the Prospectus and (ii) it will
provide to the Company any Underwriter Free Writing Prospectuses, or portions
thereof, which the Company is required to file with the Commission in electronic
format and will use reasonable efforts to provide to the Company such
Underwriter Free Writing Prospectuses, or portions thereof, in either Microsoft
Word® or Microsoft Excel® format and not in a pdf, except to the extent that the
Company, in its sole discretion, waives such requirement.
5. Agreements.
The
Company agrees with each Underwriter that:
(a) The
Company has caused or will cause the Prospectus relating to the Offered
Certificates to be filed pursuant to Rule 424 under the Act and will promptly
advise you when such Prospectus has been so filed, and prior to the termination
of the Certificate Offering to which such Prospectus relates also will promptly
advise you (i) when any amendment to the related Registration Statement or
the
Prospectus shall have become effective, (ii) of any request by the Commission
for any amendment of such Registration Statement or the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of such Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of the
receipt by the Company of any written notification with respect to the
suspension of the qualification of such Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will not file any amendment of the related Registration
Statement or supplement to the related Prospectus (other than any amendment
or
supplement specifically relating to one or more Series of mortgage pass-through
certificates other than the Series that includes the related Offered
Certificates) unless the Company has furnished you and your counsel with a
copy
for your respective review prior to filing and you have consented to such
filing. The Company will use its commercially reasonable efforts to prevent
the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If,
at
any time when a Prospectus relating to the Offered Certificates of a Series
is
required to be delivered under the Act, any event occurs as a result of which
the related Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in light of the circumstances under which they
were
made not misleading, or if it shall be necessary at any time to amend or
supplement the related Prospectus to comply with the Act or the rules
thereunder, the Company promptly shall notify the Underwriters of such event
and
prepare and file with the Commission, subject to the penultimate sentence of
paragraph (a) of this Section 5, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
(c) The
Company will furnish to each Underwriter and counsel for the Underwriters,
without charge, as many signed copies of the related Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by such
Underwriter or dealer may be required by the Act, as many copies of the related
Prospectus and any supplements thereto as such Underwriter may reasonably
request.
(d) The
Company will furnish such information, execute such instruments and take such
actions as may be reasonably requested by you to qualify the Offered
Certificates of a Series for sale under the laws of such jurisdictions as the
Underwriter may designate, to maintain such qualifications in effect so long
as
required for the distribution of such Offered Certificates and to determine
the
legality of such Offered Certificates for purchase by institutional investors;
provided,
however,
that
the Company shall not be required to qualify to do business in any jurisdiction
where it is not qualified on the date of the related Terms Agreement or to
take
any action which would subject it to general or unlimited service of process
in
any jurisdiction in which it is not, on the date of the related Terms Agreement,
subject to such service of process.
(e) So
long
as the Offered Certificates of a Series are outstanding, the Company will
furnish to each Underwriter all documents required to be delivered to holders
of
the Certificates and, upon request, copies of the annual assessment of
compliance of the servicer and the annual independent public accountants’
attestation report, each furnished to the Trustee pursuant to the related
Pooling and Servicing Agreement.
(f) Unless
otherwise specified in the related Terms Agreement, the Company will pay, and
First Horizon Home Loan Corporation will cause the Company to pay, all expenses
incident to the performance of the Company’s obligations under this Agreement
and the applicable Terms Agreement, including and without limitation those
related to: (i) the filing of the Registration Statement with respect to
the Certificates and all amendments thereto, (ii) the printing or
photocopying and delivery to the Underwriters, in such quantities as you may
reasonably request, of copies of this Agreement and the Terms Agreement,
(iii) the preparation, registration, issuance and delivery to the
Underwriters of the Certificates underwritten pursuant to this Agreement,
(iv) the fees and disbursements of the Company’s counsel and accountants,
and of any counsel rendering a closing opinion with respect to matters of local
law, (v) the qualification of the Certificates underwritten pursuant to
this Agreement under securities and Blue Sky laws and the determination of
the
eligibility of the Certificates for investment, including filing fees in
connection therewith, and any Blue Sky Survey and Legal Investment Survey,
(vi)
the printing and delivery to the Underwriters, in such quantities as they may
reasonably request, of copies of the Registration Statement with respect to
the
Certificates underwritten pursuant to this Agreement and all amendments thereto,
of the final Prospectus and all amendments and supplements thereto and all
documents incorporated therein and for expenses incurred for preparing, printing
and distributing any Issuer Free Writing Prospectus to investors or prospective
investors, (vii) the printing or photocopying and delivery to the
Underwriters, in such quantities as you may reasonably request, of copies of
the
applicable Pooling Agreement, (viii) the fees charged by investment rating
agencies requested by the Company to rate the Certificates underwritten pursuant
to this Agreement, (ix) the fees and expenses, if any, incurred in
connection with the listing of the Certificates underwritten pursuant to this
Agreement on any national securities exchange, and (x) the fees and
expenses of the Trustee and its counsel. It is understood that, except as
provided in Section 7 or Section 8(t) hereof or in the applicable Terms
Agreement, each Underwriter will pay all of its own expenses in connection
with
the transactions contemplated by this Agreement, including (i) the fees of
any
counsel to such Underwriter, (ii) any due diligence expenses incurred by such
Underwriter, (iii) any transfer taxes on resale of any of the Certificates
by
it, (iv) any advertising expenses connected with any offers that it may make,
(v) any expenses incurred in connection with the preparation and delivery of
any
Underwriter Free Writing Prospectus and the filing of any such Underwriter
Free
Writing Prospectus, if required to be filed by the Underwriter with the
Commission, and (vi) the expenses of Deloitte & Touche LLP under Section
8(r) hereof.
(g) The
Company will (i) prepare and file all operative documents with respect to the
Offered Certificates that are required to be filed under Regulation AB,
including those relating to any credit enhancement and derivatives, on a Form
8-K no later than 15 days after the related Closing Date, (ii) prepare and
file
the report required by Item 6.05 of Form 8-K within four business dates after
the Closing Date if any material pool characteristic in the final pool at the
Closing Date varies by more than 5% from the description in the Prospectus,
(iii) comply with required Form 8-K reporting requirements with respect to
any
prefunding account and (iv) if static pool information required with respect
to
the Offered Certificates is delivered via website, comply with Regulation AB
in
all respects, including the requirement to maintain the information and keep
records for five years. The Underwriter will provide commercially reasonable
assistance to the Company in connection with the calculation of the significance
percentage of any credit enhancement, derivative instrument or other support
mechanism (to be calculated over the expected life of such credit enhancement,
derivative instrument or other support mechanism) with respect to the Offered
Certificates for purposes of Items 1114 and 1115 of Regulation AB under the Act;
provided, however, that the Underwriters shall have no liability with respect
to
any such calculation.
6. Conditions
to the Obligations of the Underwriters.
The
obligations of the Underwriters to purchase the Offered Certificates of any
Series shall be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company contained in this
Agreement, as supplemented by the related Terms Agreement, as of the respective
dates thereof and the related Closing Date, to the accuracy of the statements
of
the Company made in any applicable officers’ certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations under
this Agreement and such Terms Agreement and to the following additional
conditions applicable to the related Certificate Offering:
(a) No
stop
order suspending the effectiveness of the related Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or threatened by the Commission.
(b) Xxxxxxx
Xxxxx LLP, counsel for the Company, shall have furnished to you an opinion
addressed to the Underwriters, dated the related Closing Date, to the effect
that:
(i) this
Agreement and the related Terms Agreement have been duly executed and delivered
by the Company under the laws of the State of New York;
(ii) the
related Pooling and Servicing Agreement has been duly executed and delivered
by
the Company and First Horizon Home Loan Corporation under the laws of the State
of New York and is a legal, valid and binding agreement of the Company and
First
Horizon Home Loan Corporation enforceable against the Company and First Horizon
Home Loan Corporation in accordance with its terms;
(iii) the
Offered Certificates, when duly executed and countersigned by the Trustee in
accordance with the related Pooling and Servicing Agreement, will be validly
issued and outstanding and entitled to the benefits of such Pooling and
Servicing Agreement;
(iv) the
related Pooling and Servicing Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended, and the trust created thereunder
is
not required to be registered under the Investment Company Act of 1940, as
amended;
187715
Xxxxxx
Xxxxxxx/First Horizon
Master
Underwriting Agreement
9
(v) such
counsel confirms that the related Registration Statement is effective under
the
Act and, to the best of such counsel’s knowledge, no stop order with respect
thereto has been issued, and no proceeding for that purpose has been instituted
or threatened by the Commission; such Registration Statement (except the
financial statements and schedules and other financial and statistical data
included therein and the documents incorporated by reference therein, as to
which such counsel need express no view), at the time it became effective,
the
related Prospectus (except the financial statements and schedules, the other
financial and statistical data included therein and the documents incorporated
by reference therein), as of the date of the Prospectus Supplement, conformed
in
all material respects to the requirements of the Act and the rules and
regulations thereunder; and no information has come to the attention of such
counsel that causes it to believe that (A) such Registration Statement (except
the financial statements and schedules and the other financial and statistical
data included or incorporated by reference therein and the documents
incorporated by reference therein, as to which such counsel need express no
view) as of the most recent effective date, contained an untrue statement of
a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (B) such
Prospectus or any amendment or supplement thereto (except the financial
statements and schedules and the other financial and statistical data included
or incorporated by reference therein), as of the date of the Prospectus
Supplement, or at the related Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(vi) Each
Prospectus, as of the date thereof (with the exception of any information
incorporated by reference therein and any numerical, financial, statistical
and
quantitative data included therein, as to which such counsel need express no
view), appeared on its face to be appropriately responsive in all material
respects to the requirements of the Act, and the rules and regulations
thereunder applicable thereto as of the relevant date;
(vii) the
statements set forth under the heading “Description of the Certificates” in the
related Prospectus, insofar as such statements purport to summarize certain
provisions of the related Pooling and Servicing Agreement and the related
Offered Certificates, provide a fair summary of such provisions;
(viii) the
statements set forth in the related Prospectus under the headings “Certain Legal
Aspects of the Mortgage Loans”, “Material Federal Income Tax Consequences” )
(insofar as they relate specifically to the purchase, ownership and disposition
of the related offered Certificates) and “ERISA Considerations,” (insofar as
they relate specifically to the purchase, ownership and disposition of the
related offered Certificates) to the extent that they constitute matters of
law
or legal conclusions, provide a fair summary of such law or conclusions;
(ix) assuming
compliance with all provisions of the related Pooling and Servicing Agreement,
for federal income tax purposes, (A) if any election is made to treat the assets
of the Trust Fund as a REMIC: the related Trust Fund (and any specified
subgrouping therein) will qualify as a REMIC pursuant to Section 860D of the
Internal Revenue Code of 1986, as amended (the “Code”), each Class of
Certificates of the related Series, other than the related Residual Class or
Classes, will constitute a class of “regular interests” in the related REMIC
within the meaning of the Code, and each Class of such Certificates specified
in
the related Prospectus as a Class of Residual Certificates will constitute
the
“residual interest” in the related REMIC within the meaning of the Code; and (B)
if no such REMIC election is made: the Trust Fund will be treated as a “grantor
trust”; and
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(x) assuming
that some or all of the Offered Certificates of the related Series shall be
rated at the time of issuance in one of the two highest rating categories by
a
nationally recognized statistical rating organization, each Offered Certificate
so rated will be at the time of issuance, a “mortgage related security” as such
term is defined in Section 3(a)(41) of the Exchange Act.
Such
opinion may express its reliance as to factual matters on the representations
and warranties made by, and on certificates or other documents furnished by,
officers of the parties to this Agreement, the related Terms Agreement or the
related Pooling and Servicing Agreement. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company. Such opinion may
be
qualified, insofar as it concerns the enforceability of the documents referred
to therein, to the extent that such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of
creditors’ rights in general and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
Such opinion may be further qualified as expressing no opinion as to (x) the
statements in the related Prospectus under the heading “Certain Legal Aspects of
the Mortgage Loans” except insofar as such statements relate to the laws of the
State of New York and the laws of the United States, and (y) the statements
in
such Prospectus under the headings “ERISA Considerations” and “Material Federal
Income Tax Consequences” except insofar as such statements relate to the laws of
the United States. In addition, such opinion may be qualified as an opinion
only
on the laws of the States of New York and Texas and the federal laws of the
United States of America.
(c) Xxxxxxx
Xxxxx LLP, counsel for the Company, shall have furnished to you an opinion
addressed to the Underwriters, dated the related Closing Date, to the effect
that:
(i) the
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware, with corporate power
to
own its properties, to conduct its business as described in the related
Prospectus and to enter into and perform its obligations under this Agreement,
the related Terms Agreement, the related Pooling and Servicing Agreement and
the
Certificates of the related Series;
(ii) the
Company has full power and authority to sell the related Mortgage Loans as
contemplated herein and in the related Pooling and Servicing Agreement;
(iii) this
Agreement, the related Terms Agreement and the related Pooling and Servicing
Agreement have been duly authorized, executed and delivered by the Company
under
the laws of the State of Delaware;
(iv) the
issuance and sale of the Offered Certificates have been duly authorized by
the
Company;
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(v) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the consummation by the Company of the transactions
contemplated herein or in the related Pooling and Servicing Agreement, except
such as may be required under the blue sky laws of any jurisdiction and such
other approvals as have been obtained;
(vi) neither
the issuance of the Certificates of the related Series nor delivery of the
related Offered Certificates, nor the consummation of any other of the
transactions contemplated in this Agreement, the related Terms Agreement or
the
related Pooling and Servicing Agreement, nor the fulfillment of the terms of
the
related Certificates, the related Pooling and Servicing Agreement, this
Agreement or the related Terms Agreement will conflict with or violate any
term
or provision of the articles of incorporation or by-laws of the Company or
any
statute, order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company and will not conflict with, result in a breach or violation or the
acceleration of or constitute a default under the terms of any indenture or
other agreement or instrument known to such counsel to which the Company is
a
party or by which it is bound; and
(vii) there
are
no actions, proceedings or investigations pending or, to the best knowledge
of
such counsel, threatened before any court, administrative agency or other
tribunal (A) asserting the invalidity of this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement or the related
Certificates, (B) seeking to prevent the issuance of the Certificates of the
related Series or the consummation by the Company of any of the transactions
contemplated by this Agreement, such Terms Agreement or such Pooling and
Servicing Agreement, or (C) which might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, such Terms Agreement, such Pooling and
Servicing Agreement or the related Certificates.
In
rendering his or her opinion such counsel may rely as to matters of fact, to
the
extent deemed proper and as stated therein, on certificates of responsible
officers of the Company or public officials. In addition, such opinion may
be
qualified as an opinion only on the general corporation laws of the State of
Delaware.
(d) In-house
counsel for First Horizon Home Loan Corporation (or its ultimate parent) shall
have furnished to you an opinion addressed to the Underwriters, dated the
related Closing Date, to the effect that:
(i) First
Horizon Home Loan Corporation has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Kansas, with
corporate power to own its properties, to conduct its business as described
in
the related Prospectus and to enter into and perform its obligations under
this
Agreement, the related Terms Agreement, the related Pooling and Servicing
Agreement and the Certificates of the related Series;
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(ii) First
Horizon Home Loan Corporation has full power and authority to sell and master
service the related Mortgage Loans as contemplated herein and in the related
Pooling and Servicing Agreement;
(iii) this
Agreement, the related Terms Agreement and the related Pooling and Servicing
Agreement have been duly authorized, executed and delivered by First Horizon
Home Loan Corporation under the law of the State of Kansas;
(iv) the
issuance and sale of the Offered Certificates have been duly authorized by
First
Horizon Home Loan Corporation;
(v) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the consummation by First Horizon Home Loan Corporation
of
the transactions contemplated herein or in the related Pooling and Servicing
Agreement, except such as may be required under the blue sky laws of any
jurisdiction and such other approvals as have been obtained;
(vi) neither
the issuance of the Certificates of the related Series nor delivery of the
related Offered Certificates, nor the consummation of any other of the
transactions contemplated in this Agreement, the related Terms Agreement or
the
related Pooling and Servicing Agreement, nor the fulfillment of the terms of
the
related Certificates, the related Pooling and Servicing Agreement, this
Agreement or the related Terms Agreement will conflict with or violate any
term
or provision of the articles of incorporation or by-laws of First Horizon Home
Loan Corporation or any statute, order or regulation applicable to First Horizon
Home Loan Corporation of any court, regulatory body, administrative agency
or
governmental body having jurisdiction over First Horizon Home Loan Corporation
and will not conflict with, result in a breach or violation or the acceleration
of or constitute a default under the terms of any indenture or other agreement
or instrument known to such counsel to which First Horizon Home Loan Corporation
is a party or by which it is bound, other than such conflicts, breaches and
violations or defaults which, individually or on a cumulative basis, would
not
have a material adverse effect on First Horizon Home Loan Corporation and its
subsidiaries, taken as a whole, or on the issuance and sale of the Certificates
or the consummation of the transactions contemplated hereby; and
(vii) there
are
no actions, proceedings or investigations pending or, to the best knowledge
of
such counsel, threatened before any court, administrative agency or other
tribunal (A) asserting the invalidity of this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement or the related
Certificates, (B) seeking to prevent the issuance of the Certificates of the
related Series or the consummation by First Horizon Home Loan Corporation of
any
of the transactions contemplated by this Agreement, such Terms Agreement or
such
Pooling and Servicing Agreement, or (C) which might materially and adversely
affect the performance by First Horizon Home Loan Corporation of its obligations
under, or the validity or enforceability of, this Agreement, such Terms
Agreement, such Pooling and Servicing Agreement or the related Certificates.
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In
rendering his or her opinion such counsel may rely as to matters of fact, to
the
extent deemed proper and as stated therein, on certificates of responsible
officers of First Horizon Home Loan Corporation or public officials. In
addition, such opinion may be qualified as an opinion which is based solely
upon
a review of the general corporations law of the State of Kansas without regard
to the interpretational case law thereof.
(e) You
shall
have received from XxXxx Xxxxxx LLP, counsel for the Underwriters, such opinion
or opinions, dated the related Closing Date, with respect to the issuance and
sale of the Certificates of the related Series, the related Registration
Statement, the related Prospectus and such other related matters as the
Underwriters may reasonably require, and the Company shall have furnished to
such counsel such documents as the Underwriters may reasonably request for
the
purpose of enabling them to pass upon such matters.
(f) The
Company shall have furnished to you a certificate of the Company and signed
by
the President or any Vice President or the principal financial or accounting
officer of the Company dated the related Closing Date, to the effect that the
signers of such certificate have carefully examined the related Registration
Statement (excluding any documents incorporated by reference therein), the
related Prospectus, any Detailed Description, this Agreement and the related
Terms Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and
correct in all material respects on and as of the related Closing Date with
the
same effect as if made on such Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such Closing Date;
(ii) no
stop
order suspending the effectiveness of such Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to their
knowledge, threatened; and
(iii) nothing
has come to their attention that would lead them to believe that such
Registration Statement contains any untrue statement of a material fact or
omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the related Prospectus contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein,
in
the light of the circumstances under which they were made, not misleading,
or
that any Detailed Description includes any untrue statement of a material fact
or omits to state any information which the Prospectus (or the related
Prospectus Supplement) states will be included in such Detailed Description.
(g) Counsel
for the Trustee shall have furnished to you an opinion addressed to the
Underwriters, dated the related Closing Date, to the effect that:
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(i) the
Trustee has been duly incorporated and is validly existing as a New York banking
corporation in good standing under the laws of the State of New York with
corporate power to own its properties and conduct its business as presently
conducted by it, to conduct business as a trustee and to enter into and perform
its obligations under the related Pooling and Servicing Agreement;
(ii) the
related Pooling and Servicing Agreement has been duly authorized, executed
and
delivered by the Trustee and constitutes the legal, valid and binding agreement
of the Trustee enforceable against the Trustee in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting the enforcement of creditors’ rights generally and
to judicial discretion, and general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(iii) the
Trustee has duly accepted its appointment as trustee under the related Pooling
and Servicing Agreement;
(iv) no
consent, approval, authorization or order of any New York or federal court
or
government agency or body is required on the part of the Trustee for the
consummation of the transactions contemplated in the related Pooling and
Servicing Agreement, except such as may be required under any federal or state
securities law; and
(v) the
performance on the part of the Trustee of any of the transactions contemplated
in the related Pooling and Servicing Agreement does not conflict with or result
in a breach or violation of any term or provision of, or constitute a default
under, the Articles of Organization, as amended, or By-Laws of the Trustee,
or
any New York or federal statute or regulation applicable to the Trustee, or
to
such counsel’s knowledge, any indenture or other agreement or instrument to
which the Trustee is a party or by which it is bound, or, to such counsel’s
knowledge, any order of any state or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the Trustee.
In
addition, such counsel shall furnish to you such opinions as to the treatment
of
the Trust Fund for purposes of New York tax law as are reasonably satisfactory
to the Underwriter.
(h) The
Company shall have delivered to you (i) a letter from the Deloitte & Touche
LLP, dated on or before the date on which the Prospectus Supplement is dated
and
printed, in the form and reflecting the performance of the procedures previously
agreed to by the Company and the Underwriters with respect to numerical and
statistical information included in the Prospectus Supplement (other than static
pool information, if any, provided pursuant to Item 1105 of Regulation AB under
the Act), (ii) a copy of a letter from Deloitte & Touche LLP, addressed to
the Company and Underwriters, dated as of a date not more than 135 days prior
to
the date of first use of the Prospectus Supplement, reflecting the performance
of the procedures previously agreed to by the Company and Deloitte & Touche
LLP with respect to any static pool information contained on the Company’s
static pool website for securitized mortgage pools issued on or after January
1,
2006 and/or vintage origination years commencing on or after January 1, 2006
which is incorporated by reference into the Prospectus Supplement and (iii)
a
bring-down letter, dated the date of the Prospectus Supplement, from the
Independent Accountants with respect to the letter described in the preceding
clause (ii), which shall be addressed to the Underwriters provided that the
Underwriters shall have complied with the reasonable requests of Deloitte &
Touche LLP as a condition thereto.
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(i) The
Offered Certificates of the related Series shall have received the ratings
specified in the related Terms Agreement (the “Required Ratings”).
(j) Prior
to
the related Closing Date, the Company shall have furnished to the Underwriters
such further information, certificates and documents as the Underwriters may
reasonably request.
(k) If
any
Certificates of the related Series are to be sold to any other underwriter
and/or offered in reliance upon an exemption from the registration requirements
of the Act, the sale at or prior to the related Closing Date of such
Certificates to the purchaser thereof shall have occurred.
(l) Subsequent
to the date of the related Terms Agreement, there shall not have been any
change, or any development involving a prospective change, in or affecting
the
business or properties of the Company which the Underwriters conclude in their
respective reasonable judgment, after consultation with the Company, materially
impairs the investment quality of the Offered Certificates of the related Series
so as to make it impractical or inadvisable to proceed with the public offering
or the delivery of such Offered Certificates as contemplated by the related
Prospectus.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled in
all
material respects with respect to the particular Offered Certificates of a
Series when and as provided in this Agreement and the related Terms Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this
Agreement and the related Terms Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Underwriters and their
counsel, this Agreement (with respect to the related Offered Certificates)
and
the related Terms Agreement and all obligations of the Underwriters hereunder
(with respect to the related Offered Certificates) and thereunder may be
canceled at, or at any time prior to, the related Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
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7. Indemnification
and Contribution.
(a) The
Company and First Horizon Home Loan Corporation will jointly and severally
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act or the Exchange Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or such controlling person may become subject, under the Act,
the Exchange Act, or other Federal or state statutory law or regulation, at
common law or otherwise, and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter and each such controlling person in connection with investigating
or
defending any such loss, claim, damage, liability or action, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon (i) any untrue statement or alleged untrue statement of
a
material fact contained in the Registration Statement, or in any revision or
amendment thereof or supplement thereto (including for these purposes any
portion of the Applicable Static Pool Information (as defined in Section
8(b)(i)) deemed not part of the Registration Statement on account of Item
1105(d) of Regulation AB under the Act), or the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statements therein not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus, or in any
revision or amendment thereof or supplement thereto (including for these
purposes any portion of the Applicable Static Pool Information (as defined
in
Section 8(b)(i)) deemed not part of the Prospectus on account of Item 1105(d)
of
Regulation AB under the Act), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (iii) any untrue statement or alleged untrue statement
of a material fact contained in any Issuer Free Writing Prospectus (as defined
in Section 8(b)(iv)) or in any preliminary or final quantitative data about
the
Mortgage Loans (“Mortgage Loan Data”) supplied by the Company or First Horizon
Home Loan Corporation to the Underwriter, or (iv) in the case of an Issuer
Free
Writing Prospectus, the omission or alleged omission to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except to the extent that such omissions
or alleged omissions are the result of omissions from the Issuer Free Writing
Prospectus of any information of the type specified in Exhibit
B
hereto
as Supplemental Information, or (v) in the case of the Mortgage Loan Data
delivered by the Company or First Horizon Home Loan Corporation to the
Underwriter, the omission or alleged omission to include material data therein
necessary to make the data therein not misleading, in the case of (ii), (iii),
(iv) or (v), at the Time of Sale to the applicable investor (and, in the case
of
(ii), on the date thereof and on the Closing Date), when considered in
conjunction with the Time of Sale Information, and provided that such
misstatement or omission was not corrected by information subsequently supplied
by the Company or First Horizon Home Loan Corporation to the Underwriter
sufficiently prior to the Time of Sale to such investor to reasonably permit
the
delivery thereof by the Underwriter to such investor, and each of the Company
and First Horizon Home Loan Corporation jointly and severally agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by it or him in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that neither the
Company nor First Horizon Home Loan Corporation will be liable in any such
case
to the extent that any such loss, claim, damage or liability arises out of
or is
based upon any such untrue statement or alleged untrue statement in or omission
or alleged omission made in any such documents based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and inconformity with written information furnished
to
the Company or First Horizon Home Loan Corporation by or on behalf of the
Underwriter specifically for use in connection with the preparation thereof.
This indemnity agreement will be in addition to any liability which the Company
and First Horizon Home Loan Corporation may otherwise have.
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(b) Each
Underwriter will, severally and not jointly, indemnify and hold harmless the
Company and First Horizon Home Loan Corporation and each of their respective
directors, each officer of the Company who has signed the Registration
Statement, and each person, if any, who controls the Company or First Horizon
Home Loan Corporation within the meaning of the Act or the Exchange Act against
any losses, claims, damages or liabilities to which the Company, First Horizon
Home Loan Corporation or any such director, officer or controlling person may
become subject, under the Act, the Exchange Act, or other Federal or state
statutory law or regulation, at common law or otherwise, and will reimburse
any
legal or other expenses reasonably incurred by the Company, First Horizon Home
Loan Corporation or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action, insofar as such losses, claims, damages or liabilities
(or
actions in respect thereof) arise out of or are based upon (i) the Underwriter
Information; (ii) any untrue statement or alleged untrue statement of a of
a
material fact contained in any Underwriter Free Writing Prospectus, or any
omission or alleged omission to state in such Underwriter Free Writing
Prospectus a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading at the
Time of Sale to the applicable investor, when considered in conjunction with
the
Time of Sale Information; except to the extent that such misstatements or
omissions are the result of misstatements in or omissions from any Mortgage
Loan
Data supplied by the Company or First Horizon Home Loan Corporation to such
Underwriter which, in any case, were not corrected by information subsequently
supplied by the Company or First Horizon Home Loan Corporation to such
Underwriter sufficiently prior to the Time of Sale to the applicable investor
to
reasonably permit the delivery thereof by such Underwriter to such investor
or
(iii) any failure by the Underwriter to deliver the Issuer Free Writing
Prospectus and the Supplemental Information to the applicable investor prior
to
the Time of Sale. This indemnity agreement will be in addition to any liability
which the Underwriter may otherwise have. Each of the Company and First Horizon
Home Loan Corporation acknowledges and agrees that, unless otherwise set forth
in the applicable Terms Agreement, the Underwriters’ Information constitutes the
only information furnished in writing by or on behalf of any Underwriter
expressly for use in the Registration Statement or the Prospectus or in any
amendment thereof or supplement thereto, as the case may be furnished to the
Company by such Underwriter), and each Underwriter confirms, on its behalf,
that
such statements are correct.
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(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 7, except to the extent that the omission to so notify the indemnifying
party causes or exacerbates a loss. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to
the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory
to
such indemnified party; provided,
however,
that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party or the use of such counsel chosen by the indemnifying party
would present such counsel with a conflict of interest, the indemnified party
or
parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf
of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel approved by the indemnified party in the case
of
subparagraph (a) or (b), representing the indemnified parties under subparagraph
(a) or (b), who are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent
the
indemnified party within a reasonable time after notice of commencement of
the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If
the
indemnification provided for in this Section 7 is unavailable or insufficient
to
hold harmless an indemnified party under subsection (a) or (b) above, then
each
indemnifying party shall contribute to the amount paid or payable by such
indemnified parry as a result of the losses, claims, damages or liabilities
referred to in subsection (a)(i), (a)(ii), (a)(iii), (a)(iv), (a)(v), (b)(i),
(b)(ii) or (b)(iii) above in such proportion as is appropriate to reflect both
(i) the relative benefits received by the Company and First Horizon Home Loan
Corporation on the one hand and the related Underwriter on the other from the
offering of the Certificates and (ii) the relative fault of the Company and
First Horizon Home Loan Corporation on the one hand and the related Underwriter
on the other in connection with the statements or omissions which resulted
in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company and
First Horizon Home Loan Corporation on the one hand and the related Underwriter
on the other shall be deemed to be in the same proportion as the total proceeds
from the offering (before deducting expenses) received by the Company bear
to
the difference between (1) the total price at which the Certificates
underwritten by such Underwriter and distributed to the public were offered
to
the public, and (ii) the portion of the total proceeds from the offering (before
deducting expenses) received by the Company attributable to the Certificates.
The relative fault for the purposes of the first sentence of this paragraph
shall be determined by reference to, among other things, whether the untrue
or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact related to information supplied by the Company or
First
Horizon Home Loan Corporation on the one hand or the related Underwriter on
the
other hand and the parties relative intent, knowledge, access to information
and
opportunity to correct or prevent such untrue statement or omission. The
Company, First Horizon Home Loan Corporation and each Underwriter hereby agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any other method
of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid by an indemnified party as
a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), and
with
respect to losses, claims, damages or liabilities referred to in subsection
(a)
or (b) above, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 (f) of the Act) shall be entitled to contribution
from
any person who was not guilty of such fraudulent misrepresentation.
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(e) The
obligations of the Company and First Horizon Home Loan Corporation under this
Section 7 shall be in addition to any liability which the Company or First
Horizon Home Loan Corporation may otherwise have and shall extend, upon the
same
terms and conditions, to each person, if any, who controls an Underwriter within
the meaning of the Act; and the obligations of each Underwriter under this
Section 7 shall be in addition to any liability which such Underwriter may
otherwise have and shall extend, upon the same terms and conditions, to (i)
the
officers of the Company who signed the Registration Statement or any amendment
thereof, to its directors, and to each person who controls the Company within
the meaning of either the Act or the Exchange Act and (ii) each person who
controls First Horizon Home Loan Corporation within the meaning of either the
Act or the Exchange Act.
(f) As
used
in this Agreement, “Time of Sale” means, as to any investor in the Certificates,
the time at which such investor enters into a Contract of Sale (as defined
in
Section 8(b)(ii)) for the Certificates, or if such Contract of Sale is
subsequently terminated and a new Contract of Sale is entered into by mutual
agreement between such investor and the applicable Underwriter in a manner
sufficient to constitute a reformation of the contract within the contemplation
of Section IV.2.c of Securities Act Release 33-8591, such time at which the
new
Contract of Sale is entered into, and “Time of Sale Information” means all
information with respect to the offering of the Certificates which has been
conveyed to an investor at or prior to the Time of Sale to such
investor.
8. Offering
Communications; Free Writing Prospectuses.
(a) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Act, no Underwriter shall convey or deliver any written
communication, as defined in Rule 405 under the Act (a “Written Communication”),
to any person in connection with the initial offering of the Certificates,
unless such Written Communication (1) is made in reliance on and in conformity
with Rule 134 under the Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act or (iii) constitutes a “free writing
prospectus,” as defined in Rule 405 under the Act (a “Free Writing Prospectus”).
Notwithstanding anything to the contrary contained in this Agreement, without
the prior written consent of the Company, which may be withheld in its sole
discretion, no Underwriter shall convey or deliver in connection with the
initial offering of the Certificates, any Free Writing Prospectus unless such
Free Writing Prospectus contains only ABS Informational and Computational
Material, as defined in Item 1101(a) of Regulation AB under the Act (“ABS
Informational and Computational Material”); provided however, that any such Free
Writing Prospectus may also contain a column showing the status of subscriptions
for and allotments of the Certificates. No Underwriter shall convey or deliver
any ABS Informational and Computational Material in reliance on Rules 167 and
426 under the Act. Any Free Writing Prospectus prepared by or on behalf of
an
Underwriter is referred to herein as an “Underwriter Free Writing
Prospectus.”
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(b) The
following procedures shall be applicable to Issuer Free Writing
Prospectuses:
(i) The
Company shall deliver to the related Underwriter, as soon as practicable
following the date on which the Company notifies such Underwriter that that
Company has selected it to underwrite the offering of the Certificates (the
“Bid
Date”), a Free Writing Prospectus which contains general information about the
offering, including the basic senior/subordinate structure of the Certificates
(excluding the subdivision of the senior classes into tranches), risk factors
applicable to Mortgage Loans of the type included in the Mortgage Pool, the
identity of and material information about transaction parties known to the
Company, the material tax and ERISA. treatment of the Certificates and whether
the Certificates will be “mortgage related securities” as defined in Section
3(a)(41) of the Exchange Act, and which contains a hyperlink to the Base
Prospectus most recently filed by the Company with the Commission and a
hyperlink to the portion of the Company’s static pool website containing static
pool information with respect to mortgage loans of the same asset type (as
determined by the Company) (the “Applicable Static Pool Information”) as the
Mortgage Loans (the “Initial Issuer Free Writing Prospectus”).
(ii) the
Company will use commercially reasonable efforts to file the Initial Issuer
Free
Writing Prospectus with the Commission not later than two business days
following the related Bid Date, and no Underwriter shall convey or deliver
the
Initial Issuer Free Writing Prospectus to any person or entity until the Company
has notified each Underwriter that it has completed such filing. Thereafter,
the
Initial Issuer Free Writing Prospectus may be used by each Underwriter solely
in
connection with the marketing of the Certificates to institutional investors;
provided however, no Underwriter shall enter into any contract of sale with
any
investor within the meaning of Rule 159 under the Act (a “Contract of Sale”),
with respect to any Certificates, unless prior to the Time of Sale to each
investor in the Certificates, such Underwriter shall have (A) delivered to
such
investor the Initial Issuer Free Writing Prospectus or, if applicable, any
Corrected Issuer Free Writing Prospectus (as defined below), together with
any
amendment or supplement thereto supplied by the Company to such Underwriter
sufficiently prior to the Time of Sale to such investor to reasonably permit
delivery thereof by such Underwriter to such investor and (B) provided to such
investor prior to the Time of Sale such of the Supplemental Information
described in Exhibit
B
hereto
that is then known or available to such Underwriter. The Initial Issuer Free
Writing Prospectus and any Corrected Issuer Free Writing Prospectus that is
required to be delivered to an investor pursuant to Section 8(l)(i) hereof
are
referred to herein collectively as an “Issuer Free Writing
Prospectus”.
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(c) The
following procedures shall be applicable to Underwriter Free Writing
Prospectuses:
(i) Each
Underwriter shall deliver to the Company each Underwriter Free Writing
Prospectus that contains any “issuer information,” as defined in Rule 433(h)
under the Act and footnote 271 of Securities Act Release No. 33-8591 (“Issuer
Information”).
(ii) Any
Underwriter Free Writing Prospectus that is required to be delivered pursuant
to
Section 8(c)(i) shall be delivered by the related Underwriter to the Company
no
later than two business days prior to the due date for filing of the Prospectus
pursuant to Rule 424(b) under the Act; provided however, that if such
Underwriter Free Writing Prospectus contains any information other than ABS
Informational and Computational Material, it shall instead be delivered by
such
Underwriter to the Company not later than two business days prior to the date
of
first use of such Free Writing Prospectus.
(iii) Not
later
than one business day after the related Underwriter has determined the final
structure of all classes of Certificates, such Underwriter shall prepare and
deliver to the Company an Underwriter Free Writing Prospectus (which may consist
of a term sheet) containing a description of the final structure of the
Certificates, irrespective of whether such Underwriter Free Writing Prospectus
has been or will be conveyed or delivered by such Underwriter to any investor
in
the Certificates.
(iv) To
facilitate the filing thereof by the Company, each Underwriter shall provide
the
Issuer Information contained in any Underwriter Free Writing Prospectus that
is
required to be delivered to the Company pursuant to this Section 8(c) in a
separate document from the portion of such Free Writing Prospectus which
contains information other than Issuer Information.
(d) Each
Underwriter represents and warrants to the Company that the Underwriter Free
Writing Prospectuses required to be furnished to the Company by such Underwriter
pursuant to Section 8(c) will constitute all Underwriter Free Writing
Prospectuses of the type described therein that were furnished to prospective
investors by such Underwriter in connection with its offer and sale of the
Certificates. If any Underwriter does not provide any Underwriter Free Writing
Prospectuses to the Company pursuant to Section 8(c), that Underwriter shall
be
deemed to have represented to the Company, as of the applicable Closing Date,
that it did not provide any prospective investors with any Written Communication
in connection with the offering of the Certificates that are required to be
filed with the Commission by the Company as a Free Writing Prospectus (other
than any Issuer Free Writing Prospectus) pursuant to Rule 433 of the Act (“Rule
433”).
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(e) Each
Underwriter represents and warrants to the Company that each Underwriter Free
Writing Prospectus provided by it to an investor in the Certificates did not,
as
of the Time of Sale to any prospective investor to which such Underwriter Free
Writing Prospectus was conveyed, when considered in conjunction with the Time
of
Sale Information, include any untrue statement of a material fact or omit any
material fact necessary to make the statements contained therein, in light
of
the circumstances under which they were made, not misleading; provided
however,
that no
Underwriter makes any representation to the extent such misstatements or
omissions were the result of any misstatements in or omissions in the Time
of
Sale Information, except for any information, including Supplemental
Information, that is not contained in the Prospectus, the Registration Statement
or the Mortgage Loan Data supplied by the Company to an Underwriter which
misstatements or omissions were not corrected by information subsequently
supplied by the Company to such Underwriter sufficiently prior to the Time
of
Sale to the applicable investor to reasonably permit the delivery thereof by
such Underwriter to such investor or, to the extent that such misstatements
are
a substantial restatement in all material respects of a misstatement made in
the
Issuer Free Writing Prospectus which misstatements were not corrected by
information subsequently supplied by the Company sufficiently prior to the
Time
of Sale to the applicable investor to reasonably permit delivery thereof by
such
Underwriter to such investor.
(f) Unless
the Company determines that such filing is not required under Rule 433, the
Company agrees to file with the Commission, within the applicable time periods
specified in Rule 433, the following:
(i) Any
Issuer Free Writing Prospectus; and
(ii) Any
Underwriter Free Writing Prospectus delivered by an Underwriter to the Company
pursuant to Section 8(c) or, at the election of the Company, the portion of
such
Underwriter Free Writing Prospectus which consists of Issuer
Information.
(g) Each
Underwriter shall file with the Commission, within the applicable time period
specified in Rule 433, any Free Writing Prospectus that is distributed by or
on
behalf of such Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination.
(h) The
Company and each Underwriter agrees that any Free Writing Prospectuses prepared
by it shall contain substantially the following legend:
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on
the
SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or
any
dealer participating in the offering will arrange to send you the prospectus
if
you request it by calling toll-free 1-8[xx-xxx-xxxx].
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(i) Each
Underwriter shall comply with all applicable laws and regulations in connection
with the use of Free Writing Prospectuses, including but not limited to Rules
164 and 433 of the Act and all Commission guidance relating to Free Writing
Prospectuses, including but not limited to Commission Release No. 33-8591.
The
related underwriter agrees to use commercially reasonable efforts to effect
the
reformation of each such original Contract of Sale consistent with the
foregoing; however, there can be no assurance that such reformation will be
effected in all cases. Any costs and losses associated with any such reformation
shall be borne by the Company or the Underwriter as provided in subsections
(iv)
and (v) of Section 8(l) below.
(j) Each
Underwriter agrees to keep and maintain, for a period of not less than three
years following the date of initial issuance of the Certificates, electronic
or
written records documenting, as to each investor in Certificates, the Time
of
Sale and the date on which each Issuer Free Writing Prospectus and each
Underwriter Free Writing Prospectus was conveyed to such investor. In the event
of any litigation or written notice of potential litigation against the Company
or any of its affiliates with respect to the Certificates, each Underwriter
shall, upon the request of the Company, make available to the Company copies
of
all records required to be maintained by it pursuant to the foregoing sentence
and any Free Writing Prospectus required to be retained by it pursuant to
Section 8(i).
(k) No
Underwriter will enter into, and each Underwriter will obligate in writing
each
dealer to whom it sells any Certificates (which obligation may be in the form
of
a trade stipulation and which, in any event, shall name the Company as an
intended third party beneficiary) not to enter into, any Contract of Sale with
respect to the Certificates with any investor other than an institutional
investor, unless such Underwriter or such dealer has delivered to such investor
a copy of the final Prospectus. In addition, no Underwriter shall enter into
any
Contract of Sale with respect to the Certificates with any institutional
investor unless (i) such Underwriter has delivered to such investor a copy
of
the final Prospectus or (ii) the prospectus delivery exemptions of Rule 172
under the Act are met and the Underwriter complies with the notice requirements
of Rule 173 under the Act.
(l) The
following procedures shall apply to Defective Free Writing Prospectuses (as
defined herein):
(i) In
the
event that the Company becomes aware that any Issuer Free Writing Prospectus
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein, in light
of
the circumstances under which they were made, not misleading (other than as
the
result of the omission from such Issuer Free Writing Prospectus of information
of the type specified in Exhibit
B
hereto
as Supplemental Information) (such Free Writing Prospectus, a “Defective Issuer
Free Writing Prospectus”), the Company shall notify each Underwriter thereof
within one business day after discovery and the Company shall prepare and
deliver to each Underwriter a Free Writing Prospectus which corrects the
material misstatement or omission in the Defective Issuer Free Writing
Prospectus (such corrected Issuer Free Writing Prospectus, a “Corrected Issuer
Free Writing Prospectus”).
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(ii) In
the
event that an Underwriter becomes aware that, as of the applicable Time of
Sale
to an investor in the Certificates, any Underwriter Free Writing Prospectus
prepared by or on behalf of an Underwriter and delivered to such investor
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements contained therein, in light
of
the circumstances under which they were made, not misleading, when considered
in
conjunction with the Time of Sale Information (such Free Writing Prospectus,
a
“Defective Underwriter Free Writing Prospectus” and, together with a Defective
Issuer Free Writing Prospectus, a “Defective Free Writing Prospectus”), such
Underwriter shall notify the Company thereof within one business day after
discovery.
(iii) The
related Underwriter shall, if requested by the Company:
(A)
if
such discovery occurs prior to delivery of the Prospectus Supplement to
investors, prepare a Free Writing Prospectus which corrects the material
misstatement in or omission from the Defective Underwriter Free Writing
Prospectus (such corrected Underwriter Free Writing Prospectus, a “Corrected
Underwriter Free Writing Prospectus” and, together with a Corrected Issuer Free
Writing Prospectus, a “Corrected Free Writing Prospectus”);
(B)
if
such discovery occurs prior to delivery of the Prospectus Supplement to
investors, deliver the Corrected Free Writing Prospectus to each investor which
received the Defective Free Writing Prospectus prior to entering into a Contract
of Sale; and
(C)
comply with the requirements for reformation of the original Contract of Sale
described in Section IV.2.c of Securities Act Release Act 33-8591.
(iv) In
the
event that the Defective Free Writing Prospectus was an Issuer Free Writing
Prospectus or an Underwriter Free Writing Prospectus that became a Defective
Free Writing Prospectus due to a material misstatement in or omission from
the
Mortgage Loan Data or any other information (including an Issuer Free Writing
Prospectus) furnished by or on behalf of the Company to the Underwriter for
use
in connection with the Underwriter Free Writing Prospectus, and an Underwriter
shall in good faith incur any reasonable costs or losses in connection with
the
reformation or termination of the Contract of Sale, the Company agrees to
reimburse such Underwriter for such costs and losses promptly following
presentation of reasonably detailed documentation of such costs and losses
to
the Company; provided however, that the Company shall have no obligation to
reimburse the Underwriter under this subsection (iv) if the material
misstatement or omission that caused an Issuer Free Writing Prospectus to become
a Defective Free Writing Prospectus resulted from Underwriter Information or
information furnished to the Company by or on behalf of the Underwriter
specifically for use in connection with the preparation of the Issuer Free
Writing Prospectus, including without limitation any Supplemental Information
of
the type described on Exhibit
B
hereto.
Each Underwriter agrees to use commercially reasonable efforts to mitigate
any
such costs and losses.
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(v) In
the
event that the Defective Free Writing Prospectus was an Underwriter Free Writing
Prospectus or an Issuer Free Writing Prospectus that became a Defective Free
Writing Prospectus due to a material misstatement in or omission from
Underwriter Information or written information furnished by or on behalf of
the
Underwriter to the Company specifically for use in the preparation of the Issuer
Free Writing Prospectus, including without limitation any Supplemental
Information of the type specified in Exhibit
B
hereto,
and the Company shall in good faith incur any reasonable costs or losses in
connection with the reformation or termination of the Contract of Sale, the
related Underwriter agrees to reimburse the Company for such costs and losses
promptly following presentation of reasonably detailed documentation of such
costs and losses to such Underwriter; provided however, that the Underwriter
shall have no obligation to reimburse the Company under this subsection (v)
if
the material misstatement or omission that caused an Underwriter Free Writing
Prospectus to become a Defective Free Writing Prospectus resulted from the
Mortgage Loan Data or any other information furnished to the Underwriter by
or
on behalf of the Underwriter specifically for use in connection with the
preparation of the Underwriter Free Writing Prospectus, including without
limitation any Issuer Free Writing Prospectus. The Company agrees to use
commercially reasonable efforts to mitigate any such costs.
(m) Each
Underwriter represents and covenants to the Company that it has in place and
shall maintain internal controls and procedures that it reasonably believes
to
be sufficient to ensure full compliance with all applicable legal requirements
of the Act (and the regulations promulgated thereunder) with respect to the
generation and use of Underwriter Free Writing Prospectuses in connection with
the offering of the Certificates. Each Underwriter covenants with the Company
that it will make available to the Company, upon reasonable prior notice and
at
reasonable times during normal business hours, such personnel as are familiar
with such Underwriter’s compliance procedures for the purpose of answering
questions concerning such Underwriter’s practices and procedures for the
preparation and dissemination of Written Communications concerning the
Certificates to prospective investors prior to the delivery of the final
Prospectus to such investors.
(n) Each
Underwriter covenants with the Company that after the final Prospectus is
available, such Underwriter shall not distribute any Written Communication
concerning the Certificates to a prospective investor unless such communication
is preceded or accompanied by the final Prospectus.
(o) Each
Underwriter agrees, upon request of the Company, to provide to the Company
any
information within the control of such Underwriter which the Company may
reasonably request to enable the Company to timely and accurately meet its
disclosure and reporting obligations under the Act and the Exchange
Act.
(p) Each
Underwriter agrees that it will not arrange for or engage any credit enhancement
provider, derivative counterparty, special servicer or credit risk manager
in
connection with an offering of Certificates unless such credit enhancement
provider, derivative counterparty, special servicer or credit risk manager
has
agreed in writing to provide to the Company such narrative disclosure, financial
information, including required accountants’ consents, and other information as
the Company may reasonably request to enable the Company to timely and
accurately meet its disclosure and reporting obligations under the Act and
the
Exchange Act, or unless alternative arrangements for the provision of such
information and consents are implemented to the reasonable satisfaction of
the
Company.
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(q) It
is
understood and agreed that all information provided by any Underwriter to or
through Bloomberg or Intex or similar entities for use by prospective investors,
or imbedded in any CDI file provided to prospective investors, to the extent
constituting a Free Writing Prospectus, shall be deemed for all purposes hereof
to be an Underwriter Free Writing Prospectus not containing Issuer Information.
In connection therewith, the Underwriter agrees that it shall not provide any
information constituting Issuer Information through the foregoing media unless
that information is contained in an Issuer Free Writing Prospectus or in an
Underwriter Free Writing Prospectus required to be delivered pursuant to Section
8(c)(i).
(r) Each
Underwriter shall provide the Company with a letter from Deloitte & Touche
LLP, certified public accountants, prior to the Closing Date, with respect
to
any Underwriter Free Writing Prospectus provided by that Underwriter to the
Company under Section 8(c)(i), satisfactory in form and substance to the Company
and their counsel and the Underwriter, to the effect that such accountants
have
performed certain specified procedures, all of which have been agreed to by
the
Company and the Underwriter, as a result of which they determined that all
accounting, financial or statistical information that is included in such
Underwriter Free Writing Prospectus, is accurate except as to such matters
that
are not deemed by the Company and the Underwriter to be material. The foregoing
letter shall be at the expense of the respective Underwriter.
(s) In
the
event of any delay in the delivery by an Underwriter to the Company of any
Underwriter Free Writing Prospectuses required to be delivered in accordance
with Section 8(c) above, or in the delivery of the accountant’s comfort letter
in respect thereof pursuant to Section 8(t) above, the Company shall have the
right to delay the release of the Prospectus to investors or to the
Underwriters, to delay the Closing Date and to take other appropriate actions
in
each case as necessary in order to allow the Company to comply with its
agreement set forth in Section 8(f) to file the Free Writing Prospectuses within
the applicable time periods specified in Rule 433.
(t) Notwithstanding
any other provision herein, the Underwriter and the Company each agree to pay
all costs and expenses of the other party including, without limitation, legal
fees and expenses, incurred in connection with any successful action by the
Underwriter or the Company against the other party to enforce any of its rights
set forth in this Section 8.
9. Termination.
This
Agreement (with respect to a particular Certificate Offering) and the related
Terms Agreement shall be subject to termination in your absolute discretion,
by
notice given to the Company prior to delivery of and payment for the related
Offered Certificates, if prior to the related Closing Date (i) trading in
securities generally on the New York Stock Exchange shall have been suspended
or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either federal or New York State
authorities, or (iii) there shall have occurred any outbreak or escalation
of
hostilities or other calamity, event or crisis the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market such Offered Certificates.
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10. Representations
and Indemnities to Survive Delivery.
The
agreements, representations, warranties, indemnities and other statements of
the
Company (or First Horizon Home Loan Corporation, as the case may be) or its
officers and of each Underwriter set forth in or made pursuant to this Agreement
and the related Terms Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
(or
First Horizon Home Loan Corporation, as the case may be) or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the related Offered Certificates. The
provisions of Section 7 hereof shall survive the termination or cancellation
of
this Agreement and the related Terms Agreement.
11. Successors.
This
Agreement and the related Terms Agreement will inure to the benefit of and
be
binding upon the parties hereto and thereto and their respective successors
and
the officers, directors and controlling persons referred to in Section 7 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder or thereunder. No purchaser of any Offered Certificate
from
any Underwriter shall be deemed a successor or assign by reason of such
purchase.
12. APPLICABLE
LAW.
(a)
THIS
AGREEMENT AND THE RELATED TERMS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE
AND TO BE PERFORMED THEREIN , WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND
THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
(b) EACH
PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS
AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT;
PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN
IN
NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY
HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK
OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HERBY WAIVES PERSONAL SERVICE
OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT
AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE
BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 18 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF SUCH PARTY’S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER
DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW.
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(c) BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION
RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING
SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT
TO
TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED
WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
13. Miscellaneous.
This
Agreement, as supplemented by the related Terms Agreement, supersedes all prior
and contemporaneous agreements and understandings relating to the subject matter
hereof. This Agreement and the related Terms Agreement or any term of each
may
not be changed, waived, discharged or terminated except by an affirmative
written agreement made by the party against whom enforcement of the change,
waiver, discharge or termination is sought. The headings in this Agreement
and
the related Terms Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof or thereof.
14. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to you, will be delivered to the address first above written; or if
sent
to the Company, will be delivered to First Horizon Asset Securities Inc., 0000
Xxxxxxx Xxx, Xxxxxx, Xxxxx 00000, Attention: Xxxxxx Xxxxx, with a copy to First
Tennessee National Corporation, 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxxxx, Xx., Esq.
15. Default
by One or More of the Underwriters.
If one
or more of the Underwriters shall fail on the Closing Date to purchase the
Offered Certificates which it or they are obligated to purchase hereunder and
under the applicable Terms Agreement (the “Defaulted Certificates”), you shall
have the right, within 24 hours thereafter, to make arrangements for one or
more
of the non-defaulting Underwriters, or any other underwriters, to purchase
all,
but not less than all, of the Defaulted Certificates in such amounts as may
be
agreed upon and upon the terms herein set forth and under the applicable Terms
Agreement. If, however, you have not completed such arrangements within such
24-hour period, then:
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(a) if
the
aggregate original principal amount of Defaulted Certificates does not exceed
10% of the aggregate original principal amount of the Certificates to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
thereunder bear to the underwriting obligations of all non-defaulting
Underwriters; and
(b) if
the
aggregate original principal amount of Defaulted Certificates exceeds 10% of
the
original principal amount of the Offered Certificates to be purchased pursuant
to such Terms Agreement, the applicable Terms Agreement shall terminate without
any liability on the part of any non-defaulting Underwriter.
No
action
taken pursuant to this Section 15 and nothing in this Agreement shall relieve
any defaulting Underwriter from liability in respect of its
default.
In
the
event of any such default which does not result in a termination of this
Agreement or such applicable Terms Agreement, either you or the Company shall
have the right to postpone the Closing Date for a period of time not exceeding
seven days in order to effect any required changes in the Registration Statement
or in any other documents or arrangements.
16. Final
Structure Due Date.
The
Underwriter agrees to submit to the Company, no later than 9:00 a.m. central
time on the Final Structure Due Date specified in the applicable Terms Agreement
its determination of the final structure relating to, among other items, the
class designations, approximate principal amounts and payment priorities of
the
Certificates. Changes to such final structure may be made by the Underwriter
after the Final Structure Due Date if the changes are of a non-material nature.
The determination as to whether such changes are non-material shall be in the
sole discretion of the Company. In addition, on or before the Final Structure
Due Date the Underwriter may elect an extension thereof for an additional one
or
two business days beyond the original Final Structure Due Date if the
Underwriter notifies the Company of its election not later than 9:00 a.m.
central time on such original Final Structure Due Date and the Underwriter
pays
to the Company, on or prior to the Closing Date, an extension fee of $10,000.
for each day the Final Structure Due Date is extended as reimbursement for
the
Company’s costs and expenses arising from such extension.
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17. No
Advisory or Fiduciary Responsibility.
Each of
the Company and First Horizon Home Loan Corporation acknowledges and agrees
that: (i) the purchase and sale of the Certificates pursuant to this Agreement
and any Terms Agreement, including the determination of the offering price
of
the Certificates and any related discounts and commissions, is an arm’s-length
commercial transaction between Company and First Horizon Home Loan Corporation,
on the one hand, and the Underwriters, on the other hand, and each of the
Company and First Horizon Home Loan Corporation is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of
the
transactions contemplated by this Agreement and any Terms Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading
to
such transaction each Underwriter is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary of the Company, First
Horizon Home Loan Corporation or their respective affiliates, stockholders,
creditors or employees or any other party; (iii) no Underwriter has assumed
or
will assume an advisory, agency or fiduciary responsibility in favor of the
Company or First Horizon Home Loan Corporation with respect to any of the
transactions contemplated hereby or the process leading thereto (irrespective
of
whether such Underwriter has advised or is currently advising the Company or
First Horizon Home Loan Corporation on other matters) and no Underwriter has
any
obligation to the Company or First Horizon Home Loan Corporation with respect
to
the offering contemplated hereby except the obligations expressly set forth
in
this Agreement and any Terms Agreement; (iv) the Underwriters and their
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of Company and First Horizon Home
Loan
Corporation and that each Underwriter has no obligation to disclose any of
such
interests by virtue of any advisory, agency or fiduciary relationship; and
(v)
no Underwriter has provided any legal, accounting, regulatory or tax advice
with
respect to the offering contemplated hereby and each of the Company and First
Horizon Home Loan Corporation has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company, First Horizon Home Loan Corporation and the
Underwriters, with respect to the subject matter hereof. Each of the Company
and
First Horizon Home Loan Corporation hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company or First Horizon Home
Loan
Corporation may have against each Underwriter with respect to any breach or
alleged breach of agency or fiduciary duty.
*
* *
187715
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31
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the undersigned a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among First Horizon Home
Loan Corporation, the Company and you.
|
Very
truly yours,
|
|
|
FIRST
HORIZON ASSET SECURITIES INC.
|
|
|
By:_______________________________
|
|
|
Name:
Xxxxxx Xxxxx
|
|
|
Title:
Vice President
|
The
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written.
XXXXXX
XXXXXXX & CO. INCORPORATED
By:_______________________________
Name:
Title:
FIRST
HORIZON HOME LOAN CORPORATION
By:_______________________________
Name:
Xxxxx X. XxXxx
Title:
Executive Vice President
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Underwriting Agreement
EXHIBIT
A
FIRST
HORIZON ASSET SECURITIES INC.
MORTGAGE
PASS-THROUGH CERTIFICATES
SERIES
____-__
TERMS
AGREEMENT
(to
Underwriting Agreement,
dated
[
] [ ],
2006
among
the
Company, First Horizon
Home
Loan
Corporation
and
the
Underwriter)
|
First
Horizon Asset Securities Inc.
|
New
York, New York
|
|
4000
Horizon Way
|
[Date]
|
|
Xxxxxx,
Xxxxx 00000
|
Each
of
Xxxxxx Xxxxxxx & Co. Incorporated [and ] (the “Underwriters”) severally
agrees, subject to the terms and provisions herein and of the captioned
Underwriting Agreement (the “Underwriting Agreement”), to purchase such Classes
of Series ____-__ Certificates specified in Section 2(a) hereof (the “Offered
Certificates”). This letter supplements and modifies the Underwriting Agreement
solely as it relates to the purchase and sale of the Offered Certificates
described below. The Series ____-__ Certificates are registered with the
Securities and Exchange Commission by means of an effective Registration
Statement (No. 333-___). [A Preliminary Prospectus, dated ______ __, ___, has
been prepared by the Company.] Capitalized terms used and not defined herein
have the meanings given them in the Underwriting Agreement.
Section
1. The
Mortgage Pool[s]:
The
Series ____-__ Certificates shall evidence the entire beneficial ownership
interest in [a] [__] mortgage pool[s] (the “Mortgage Pool[s]”) of conventional,
[fixed] [adjustable] rate, fully amortizing one- to four-family residential
mortgage loans (the “Mortgage Loans”) having the following characteristics as of
________ __, ____ (the “Cut-off Date”):
(a) Aggregate
Principal Amount of the Mortgage Pool[s]:
Approximately $[ ] aggregate principal balance as of the Cut-off Date, subject
to [an upward or downward variance of up to [ ]%, the precise aggregate
principal balance to be determined by the Company][a permitted variance such
that the aggregate Scheduled Principal Balance thereof will be not less than
$[
] or greater than $[ ].
(b) Original
Terms to Maturity:
The
original term to maturity of each Mortgage Loan included in the Mortgage Pool[s]
shall be between ___ and ___ years.
Section
2. The
Certificates:
The
Offered Certificates shall be issued as follows:
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Underwriting Agreement
A-1
(a) Classes:
The
Offered Certificates shall be issued with the following Class designations,
interest rates and principal balances, subject in the aggregate to the variance
referred to in Section 1(a)[and, as to any particular Class, to an upward or
downward variance of up to [ ]%]:
|
Class
|
Class
Principal
Balance
|
Pass-Through
Rate
|
Class
Purchase
Price
Percentage
|
Required
Ratings
|
||
|
[Fitch]
|
[S&P]
|
[Xxxxx’x]
|
||||
(b) The
Offered Certificates shall have such other characteristics as described in
the
related Prospectus.
Each
of
the Underwriters agrees, severally and not jointly, subject to the terms and
conditions contained herein and in the Underwriting Agreement, to purchase
the
principal balances of the Classes of Certificates specified opposite its name
below:
|
Series
[ ]
Designation
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
[Underwriter]
|
Section
3. Purchase
Price:
The
Purchase Price for each Class of the Offered Certificates shall be the Class
Purchase Price Percentage therefor (as set forth in Section 2(a) above) of
the
initial Class Principal Balance thereof plus accrued interest at the applicable
per annum Pass-Through Rate set forth in 2(a) above from and including the
Cut-off Date up to, but not including, _________ __, ____ (the “Closing
Date”).
Section
4. Required
Ratings:
The
Offered Certificates shall have received at least the Required Ratings from
[Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc.
(“S&P”)] [Fitch, Inc. (“Fitch”)] [Xxxxx’x Investors Service, Inc.
(“Moody’s”)].
Section
5. Tax
Treatment:
[One or
more elections will be made to treat the assets of the Trust Fund as a REMIC.]
[The Trust Fund will be treated as a “grantor trust” for federal income tax
purposes.]
Section
6. Final
Structure Due Date.
The
Final Structure Due Date for purposes of Section 16 of the Underwriting
Agreement is [____________].
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A-2
[Section
7. Additional
Expenses:]*
*
* to be
inserted if applicable.
187715
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A-3
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the undersigned a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Underwriter,
First
Horizon Home Loan Corporation and the Company
|
Very
truly yours,
|
|
|
[CO-MANAGER:]
|
|
|
XXXXXX
XXXXXXX & CO. INCORPORATED
|
|
|
By:_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
[CO-MANAGER:]
|
|
|
[UNDERWRITER]
|
|
|
By:_________________________________
|
|
|
Name:
|
|
|
Title:
|
The
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written.
FIRST
HORIZON ASSET SECURITIES INC.
By:_________________________________
Name:
Title:
FIRST
HORIZON HOME LOAN CORPORATION
By:_________________________________
Name:
Title:
187715
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Underwriting Agreement
A-4
EXHIBIT
B
SUPPLEMENTAL
INFORMATION
With
respect to any investor, “Supplemental Information” means any of the following
types of information, to the extent omitted from the Issuer Free Writing
Prospectus:
1. The
structure of the Certificates being offered to such investor (such Certificates,
the “Offered Certificates”), including general paydown rules, the interest rate
or interest rate formula, if applicable, the anticipated price range, the yield
to maturity and/or call, the weighted average life at the pricing speed and
under such other scenarios as may be necessary to illustrate the material
effects of prepayments or changes in interest rates on the Offered Certificates
(with a description of any related prepayment, collateral and other
assumptions), and other pricing information;
2. The
“principal type” and “interest type” of the Offered Certificates, using the
categories listed under the “Description of the Certificates—Categories of
Classes of Certificates” in the Base Prospectus;
3. The
interest accrual period for the Offered Certificates;
4. Whether
the Offered Certificates represent interests in the entire Mortgage Pool or
in
one or more mortgage loan groups and the nature of any cross-collateralization
arrangements affecting the Offered Certificates;
5. A
description of any third party credit enhancement or any derivative instruments
being selected by the Underwriter in connection with the Offered Certificates,
together with the identity of and material information about any related
provider or counterparty, to the extent known to the Underwriter, and the
ratings assigned to such provider or counterparty;
6. The
identity of and material information about any special servicer or credit risk
manager selected by the Underwriter with respect to the Offered Certificates;
and
7. The
fees
and expenses payable to the various transaction parties out of the cashflows
from the pool assets.
187715
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