EXECUTION COPY
FIRST HORIZON ASSET SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
FTN Financial Capital Markets, a division of Memphis, Tennessee
First Tennessee Bank National Association
000 Xxxxxxxxx Xxxx, Xxxxx 000 December 22, 2004
Xxxxxxx, Xxxxxxxxx 00000
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 from time to time its Mortgage Pass-Through Certificates evidencing
interests in pool(s) of home equity 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 pursuant to a separate Pooling and Servicing
Agreement (a "Pooling and Servicing Agreement") to be dated as of the respective
cut-off date (each, a "Cut-off Date") among the Company, First Horizon Home Loan
Corporation, as master servicer, and The Bank of New York, as trustee (the
"Trustee").
The Certificates issued under each Pooling and Servicing Agreement will be
issued by a trust (the "Trust") formed pursuant to the related Pooling and
Servicing Agreement. The assets of the Trust will initially consist primarily of
a pool of closed-end, fixed-rate, second lien home equity loans (the "Mortgage
Loans") conveyed to the Trust on the related Cut-off Date and any other accounts
held by the Trustee for the Trust. The Mortgage Loans will be serviced pursuant
to a Pooling and Servicing Agreement. If so specified in the Terms Agreement,
the Certificates will have the benefit of a surety bond (the "Policy") issued by
the surety provider identified therein (the "Insurer"), pursuant to an insurance
and indemnity agreement dated as of the Closing Date (the "Insurance Agreement")
among the Insurer, the Depositor, the Trustee and the Seller. Forms of the
Pooling and Servicing Agreement and the Policy, if any, have been filed as
exhibits to the Registration Statement (hereinafter defined).
Whenever the Company determines to make an offering of Certificates (each,
a "Certificate Offering") pursuant to this Agreement through you, it will enter
into an agreement (the "Terms Agreement") providing for the sale of specified
Classes of Certificates 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 the 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
Underwriter and principal balance or balances of the Certificates, each subject
to any stated variance, and the price or prices at which such Certificates are
to be purchased by the Underwriter from the Company.
1. Representations and Warranties. The Company represents and warrants to and
agrees with the 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. Copies of such Registration Statement have been
delivered by the Company to the Underwriter. 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, as such
prospectus is supplemented by a prospectus supplement relating to the
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 (other than any such incorporated documents that
relate to "Collateral Term Sheets", as defined herein) (such prospectus
supplement, including such incorporated documents, other than those that relate
to Collateral Term Sheets, in the form first filed after the date of the related
Terms Agreement pursuant to Rule 424(b), 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
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 issue date of the Prospectus or 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 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 below), 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, at the time it became effective, 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, on the date of any filing pursuant to Rule
424(b) and on each 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; provided,
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however, that the Company makes no representations or warranties as to the
information contained in or omitted from (A) such Registration Statement or such
Prospectus (or any supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Underwriter
specifically for use in the preparation thereof or (B) any Current Report (as
defined in Section 5(b) below), or in any amendment thereof or supplement
thereto, incorporated by reference in such Registration Statement or such
Prospectus (or any amendment thereof or supplement thereto).
(c) The Certificates of the related Series will conform to the
description thereof contained in the related Prospectus, 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 Underwriter 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.
(d) Neither the issuance nor sale of the 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.
(e) This Agreement and the related Terms Agreement have been duly
authorized, executed and delivered by the Company.
(f) At or prior to the related Closing Date, the Company will have
entered into the related Pooling and Servicing Agreement and Insurance Agreement
(the "Transaction Agreements") and, assuming the due authorization, execution
and delivery thereof by the other parties thereto, such Transaction Agreements
(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 Transaction Agreements is considered in a proceeding in
equity or at law).
(g) Since the respective dates as of which information is given in
the Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
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(h) At the time of execution and delivery of the related Pooling and
Servicing Agreement, the Company will: (i) have equitable title to the interest
in the Mortgage Loans conveyed by the Seller, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"); (ii) not have assigned to any person (other than the
Trustee) any of its right, title or interest in the Mortgage Loans, in the
Pooling and Servicing Agreement, or in the Certificates being issued pursuant
thereto; and (iii) have the power and authority to sell its interest in the
Mortgage Loans to the Trustee and to sell the Certificates to the Underwriter.
Upon execution and delivery of the Pooling and Servicing Agreement by the
Trustee, the Trustee will have acquired beneficial ownership of all of the
Company's right, title and interest in and to the Mortgage Loans. Upon delivery
to the Underwriter of the Certificates, the Underwriter will have good title to
the Certificates free of any Liens.
(i) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Transaction Agreements and the
Certificates have been paid or will be paid at or prior to the Closing Date
specified in the related Terms Agreement.
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 the Underwriter and the
Underwriter agrees to purchase from the Company, the respective original
principal amounts of the Certificates set forth in the applicable Terms
Agreement 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 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 Certificates shall be made to you for the account of the Underwriter
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 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.
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The Company agrees to notify you at least two business days before each
Closing Date of the exact principal balance evidenced by the Certificates and to
have such Certificates available for inspection, checking and packaging in New
York, New York, no later than 12:00 noon on the business day prior to such
Closing Date.
4. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Certificates of the related Series for sale to the public
as set forth in the related Prospectus.
5. Agreements. The Company agrees with the Underwriter that:
(a) The Company will cause the Prospectus as supplemented by a
Prospectus Supplement relating to the Certificates to be filed pursuant to Rule
424 under the Act and will promptly advise you when such Prospectus as so
supplemented 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 specifically relating to
such Certificates shall have become effective or any further supplement to such
Prospectus has been filed, (ii) of any request by the Commission for any
amendment of such Registration Statement or 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 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 Certificates or any Exchange Act filings
other than Current Reports) 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 best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect to the
Certificates of a Series that are delivered by the Underwriter to the Company
pursuant to Section 8 to be filed with the Commission on a Current Report on
Form 8-K (each such filing of such materials, a "Current Report") pursuant to
Rule 13a-11 under the Exchange Act on the business day immediately following the
later of (i) the day on which such Computational Materials and Structural Term
Sheets are delivered to counsel for the Company by the Underwriter, and (ii) the
date on which this Agreement is executed and delivered. The Company will cause
any Collateral Term Sheet (as defined in Section 9 below) with respect to the
Certificates of a Series that is delivered by the Underwriter to the Company in
accordance with the provisions of Section 9 to be filed with the Commission on a
Current Report pursuant to Rule l3a-11 under the Exchange Act on the business
day immediately following the day on which such Collateral Term Sheet is
delivered to counsel for the Company by the Underwriter. Each such Current
Report shall be incorporated by reference in the related Prospectus and the
related Registration Statement.
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(c) If, at any time when a prospectus relating to the 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 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.
(d) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, as many signed copies of the related Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus
by the Underwriter or dealer may be required by the Act, as many copies of the
related Prospectus and any supplements thereto as the Underwriter may reasonably
request.
(e) The Company will furnish such information, execute such
instruments and take such actions as may be reasonably requested by you to
qualify the 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 Certificates and to
determine the legality of such 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. (f) So
long as the Certificates of a Series are outstanding, the Company will furnish
to the Underwriter, upon request, copies of the annual independent public
accountants' servicing report furnished to the Trustee pursuant to the relaxed
Pooling and Servicing Agreement.
(g) 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 (other than the expenses
of Deloitte & Touche LLP under Sections 8(c) and 9(c) hereof, the Underwriter's
due diligence expenses, the Underwriter's counsel fees and the Underwriter's own
expenses, which will be paid by the Underwriter), 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 Underwriter, 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 Underwriter of the
Certificates, (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 under securities
and Blue Sky laws and the determination of the eligibility of the Certificates
for investment, including filing fees in connection therewith, (vi) the printing
and delivery to the Underwriter, in such quantities as you may reasonably
request, of copies of the Registration Statement with respect to the
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Certificates and all amendments thereto, of any preliminary prospectus and
preliminary prospectus supplement and of the Prospectus and all amendments and
supplements thereto and all documents incorporated therein (other than exhibits
to any Current Report), and of any Blue Sky Survey and Legal Investment Survey,
(vii) the printing or photocopying and delivery to the Underwriter, in such
quantities as you may reasonably request, of copies of the applicable Pooling
and Servicing Agreement, (viii) the fees charged by investment rating agencies
requested by the Company to rate the Certificates, (ix) the fees and expenses,
if any, incurred in connection with the listing of the Certificates on any
national securities exchange, and (x) the fees and expenses of the Trustee and
its respective counsel.
6. Conditions to the Obligations of the Underwriter. The obligations of
the Underwriter to purchase the 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.
(b) The Underwriter shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact or omits to state a fact which, in the opinion of Sidley Xxxxxx Xxxxx
& Xxxx LLP, counsel for the Underwriter, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) Xxxxxxx Xxxxx LLP, counsel for the Company, shall have furnished
to you an opinion addressed to the Underwriter, 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 under the laws of the State of New York
and is a legal, valid and binding agreement of the Company enforceable against
the Company in accordance with its terms;
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(iii) the 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;
(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 and 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 therein and the documents
incorporated by reference therein, as to which such counsel need express no
view) at the time it became effective, 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
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) 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 Certificates, provide a fair summary of such
provisions;
(vii) 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 Certificates) and "ERISA
Considerations" (insofar as they relate specifically to the purchase, ownership
and disposition of such Certificates), to the extent that they constitute
matters of law or legal conclusions, provide a fair summary of such law or
conclusions;
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(viii) 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; (B) if no such REMIC election is made: the Trust Fund
will be treated as a "grantor trust"; and
(ix) assuming that some or all of the 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 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 Transaction Agreements. 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.
(d) Xxxxxxx Xxxxx LLP, counsel for the Company, shall have furnished
to you an opinion addressed to the Underwriter, 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;
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(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 Certificates have been duly
authorized by the Company;
(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 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 (i) asserting the invalidity of this
Agreement, the related Terms Agreement, the related Pooling and Servicing
Agreement or the related Certificates, (ii) 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 (iii) 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.
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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 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.
(e) In-house counsel for First Horizon Home Loan Corporation (or its
ultimate parent) shall have furnished to you an opinion addressed to the
Underwriter, dated the related Closing Date, to the effect that:
(i) First Horizon Home Loan Corporation has been duly
organized and is validly existing as a banking association in good standing
under the laws of the United States, 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) 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 laws of the Unites
States;
(iv) The issuance and sale of the 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 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
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(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 (i) asserting the invalidity of this
Agreement, the related Terms Agreement, the related Pooling and Servicing
Agreement or the related Certificates, (ii) 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 (iii) 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.
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 laws of the United States without regard to the
interpretational case law thereof.
(f) You shall have received from Sidley Xxxxxx Xxxxx & Xxxx LLP,
counsel for the Underwriter, 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 Underwriter may reasonably require, and the Company
shall have furnished to such counsel such documents as the Underwriter may
reasonably request for the purpose of enabling you to pass upon such matters.
(g) The Company shall have furnished to you a certificate of the
Company, 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 Current Reports and any other
documents incorporated by reference therein), the related Prospectus, any
Detailed Description (excluding any related Current Report), 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;
12
(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 (excluding any Current Report)
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 (excluding any related Current
Report) 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.
(h) Counsel for the Trustee shall have furnished to you an opinion
addressed to the Underwriter, dated the related Closing Date, to the effect
that:
(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.
13
In addition, such counsel shall furnish to you such opinions as to the
treatment of the Trust for purposes of New York tax law as are reasonably
satisfactory to the Underwriter.
(i) The Underwriter shall have received the favorable opinion dated
the Closing Date, of the General Counsel or an Assistant General Counsel of the
Insurer, if any, in form and scope satisfactory to counsel for the Underwriter,
to the effect that:
(i) The Insurer is duly organized, validly existing as a stock
insurance corporation, and in good standing under the laws of its jurisdiction
of organization;
(ii) The Insurer has the corporate power to execute and
deliver, and to take all action required of it under the Insurance Agreement and
the Policy;
(iii) The execution, delivery and performance by the Insurer
of the Insurance Agreement, the Indemnification Agreement and the Policy do not
require the consent or approval of, the giving of notice to, the prior
registration with, or the taking of any other action in respect of any state or
other governmental agency or authority which has not previously been obtained or
effected;
(iv) The Insurance Agreement, the Indemnification Agreement
and the Policy have been duly authorized, executed and delivered by the Insurer
and constitute the legal, valid and binding agreement of the Insurer,
enforceable against the Insurer in accordance with their respective terms
subject, as to enforcement, to (x) bankruptcy, reorganization, insolvency,
moratorium and other similar laws relating to or affecting the enforcement of
creditors' rights generally, including, without limitation, laws relating to
fraudulent transfers or conveyances, preferential transfers and equitable
subordination, presently or from time to time in effect, and general principles
of equity (regardless of whether such enforcement is considered in a proceeding
in equity or at law), as such laws may be applied in any such proceeding with
respect to the Insurer, (y) the qualification that the remedy of specific
performance and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings with
respect thereto may be brought, and (z) the qualification that the
enforceability of rights to indemnification under the Indemnification Agreement
may be subject to limitations of public policy under applicable securities laws;
(v) The Policy is not required to be registered under the Act;
and
(vi) The information in the Prospectus concerning the Insurer
and the Policy does not contain any untrue statement of a material fact and does
not omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
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(j) Deloitte & Touche LLP shall have furnished to you a letter
addressed to the Underwriter, dated as of the date of the related Terms
Agreement, in form and substance satisfactory to you, stating in effect that
they have performed certain specified procedures as a result of which they have
determined that such information as you may reasonably request of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of First
Horizon Home Loan Corporation) set forth in the related Prospectus Supplement
under the caption "Servicing of Mortgage Loans--Foreclosure, Delinquency and
Loss Experience" agrees with the accounting records of First Horizon Home Loan
Corporation, excluding any questions of legal interpretation.
(k) Deloitte & Touche LLP shall have furnished to you a letter
addressed to the Underwriter, dated as of the related Closing Date, in form and
substance satisfactory to you, stating in effect that they have performed
certain specified procedures as a result of which they have determined that such
information as you may reasonably request of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company and which
is obtained from an analysis of a sample of the Mortgage Loans included in the
related pool) set forth in the related Prospectus Supplement under the caption
"The Mortgage Loans" and in any Detailed Description relating to such Prospectus
Supplement is mutually consistent and agrees with the accounting records of the
Company and, where applicable, the related mortgage loan files of the Company,
excluding any questions of legal interpretation.
(l) The Certificates of the related Series shall have received the
ratings specified in the related Terms Agreement (the "Required Ratings").
(m) Prior to the related Closing Date, the Company shall have
furnished to the Underwriter such further information, certificates and
documents as the Underwriter may reasonably request.
(n) 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.
(o) 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
Underwriter concludes in its reasonable judgment, after consultation with the
Company, materially impairs the investment quality of the Certificates of the
related Series so as to make it impractical or inadvisable to proceed with the
public offering or the delivery of such Certificates as contemplated by the
related Prospectus.
15
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects with respect to the particular 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
Underwriter and its counsel, this Agreement (with respect to the related
Certificates) and the related Terms Agreement and all obligations of the
Underwriter hereunder (with respect to the related Certificates) and thereunder
may be canceled at, or at any time prior to, the related Closing Date by the
Underwriter. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution.
(a) The Company and First Horizon Home Loan Corporation jointly and
severally agree to indemnify and hold harmless the Underwriter and each person
who controls the Underwriter within the meaning of the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act, or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement relating to
the Certificates of the applicable Series as it became effective or in any
amendment or supplement thereof, or in such Registration Statement or the
related Prospectus, or in any amendment thereof, or in any Detailed Description
referred to in such Prospectus (or the related Prospectus Supplement) or arise
out of or are based upon 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, and agree to reimburse each such indemnified xxxxx for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) 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 or omission or alleged omission made
therein (A) in reliance upon and in conformity with written information
furnished to the Company or First Horizon Home Loan Corporation, as the case may
be, as herein stated by or on behalf of the Underwriter specifically for use in
connection with the preparation thereof or (B) in any Current Report or any
amendment or supplement thereof, except to the extent that any untrue statement
or alleged untrue statement therein or omission therefrom results (or is alleged
to have resulted) directly from an error (a "Mortgage Pool Error") in the
information concerning the characteristics of the Mortgage Loans furnished by
the Company or First Horizon Home Loan Corporation, as the case may be, to the
Underwriter in writing or by electronic transmission that was used in the
preparation of either (x) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such Current Report (or amendment
or supplement thereof) or (y) any written or electronic materials furnished to
prospective investors on which the Computational Materials or ABS Term Sheets
(or amendments or supplements) were based and (ii) such indemnity with respect
16
to any Corrected Statement (as defined below) in such Registration Statement or
the related Prospectus (or any amendment or supplement thereto) shall not inure
to the benefit of the Underwriter (or any person controlling the Underwriter)
from whom the person asserting any loss, claim, damage or liability purchased
the Certificates of the related Series that are the subject thereof if such
person did not receive a copy of an amendment or supplement to such Registration
Statement or the related Prospectus at or prior to the confirmation of the sale
of such Certificates and the untrue statement or omission of a material fact
contained in such Registration Statement or the related Prospectus (or any
amendment or supplement thereto) was corrected (a "Corrected Statement") in such
other amendment or supplement and such amendment or supplement was furnished by
the Company or First Horizon Home Loan Corporation, as the case may be, to the
Underwriter prior to the delivery of such confirmation. This indemnity agreement
will be in addition to any liability which the Company and First Horizon Home
Loan Corporation may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers, and each person or entity
(including each of its directors and officers) who controls the Company within
the meaning of the Act or the Exchange Act, to the same extent as the foregoing
indemnities from the Company and First Horizon Home Loan Corporation to the
Underwriter, but only with reference to (A) written information furnished to the
Company by or on behalf of the Underwriter specifically for use in the
preparation of the documents referred to in the foregoing indemnity with respect
to the related Series, or (B) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) furnished to the Company by the Underwriter
pursuant to Section 8 or Section 9 and incorporated by reference in such
Registration Statement or the related Prospectus or any amendment or supplement
thereof (except that no such indemnity shall be available for any losses,
claims, damages or liabilities, or actions in respect thereof, resulting from
any Mortgage Pool Error). This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have. The Company acknowledges,
unless otherwise specified in writing by the Underwriter, that the statements
set forth in the first sentence of the last paragraph appearing on the cover
page of the related Prospectus Supplement as such statements relate to such
Certificates and the first sentence of the third paragraph and the first
sentence of the seventh paragraph in each case under the heading "Underwriting"
in such Prospectus Supplement as such statements relate to such Certificates
constitute the only information furnished in writing by or on behalf of the
Underwriter for inclusion in the related Prospectus (other than any
Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) furnished to the Company by the Underwriter), and the Underwriter
confirms that such statements are correct.
(c) Promptly after receipt by an indemnified party under 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
17
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, 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 paragraph (a) or (b) of
this Section 7 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company, First Horizon Home Loan Corporation
or the Underwriter, on grounds of policy or otherwise, or if the indemnified
party failed to give notice under paragraph (c) of this Section 7 in respect of
a claim otherwise subject to indemnification in accordance with paragraph (a) or
(b) of this Section 7, the Company, First Horizon Home Loan Corporation and the
Underwriter shall contribute to the aggregate losses, claims, damages and
liabilities (including legal and other expenses reasonably incurred in
connection with investigating or defending same) to which the Company, First
Horizon Home Loan Corporation and the Underwriter may be subject, as follows:
(i) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which do not arise out of or are not based upon
any untrue statement or omission of a material fact in any Computational
Materials or ABS Term Sheets (or any amendments or supplements thereof) or in
any written or electronic materials distributed to prospective investors on
which the Computational Materials are based, in such proportion so that the
Underwriter is responsible for that portion represented by the difference
between the proceeds to the Company in respect of the Certificates appearing on
the cover page of the Prospectus Supplement for the related Series and the total
proceeds received by the Underwriter from the sale of such Certificates (the
"Underwriting Discount"), and the Company and First Horizon Home Loan
Corporation are jointly and severally responsible for the balance; provided,
however, that in no case shall the Underwriter be responsible under this
subparagraph (i) for any amount in excess of such Underwriting Discount
applicable to the Certificates purchased by the Underwriter pursuant to this
Agreement and the related Terms Agreement; and
18
(ii) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which arise out of or are based upon
any untrue statement or omission of a material fact in any Computational
Materials or ABS Term Sheets (or any amendments or supplements thereof) or in
any written or electronic materials distributed to prospective investors on
which the Computational Materials are based, in such proportion as is
appropriate to reflect the relative fault of the Company or First Horizon Home
Loan Corporation, as the case may be, on the one hand and the Underwriter on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations; provided, however, that in no
case shall the Underwriter be responsible under this subparagraph (ii) for any
amount in excess of the Underwriting Discount applicable to the Certificates
purchased by the Underwriter pursuant to this Agreement and the related Terms
Agreement. The relative fault 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 in such Computational
Materials or ABS Term Sheets (or any amendments or supplements thereof or such
written or electronic materials) results from information prepared by the
Company or First Horizon Home Loan Corporation, as the case may be, on the one
hand or the Underwriter on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
Notwithstanding anything to the contrary in this Section 7(d), 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. For purposes of this Section 7, each person
who controls the Underwriter within the meaning of either the Act or the
Exchange Act shall have the same rights to contribution as the Underwriter, and
each person who controls the Company or First Horizon Home Loan Corporation, as
the case may be, within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company or First Horizon Home Loan Corporation, as the case may
be, shall have the same rights to contribution as the Company or First Horizon
Home Loan Corporation, as the case may be, subject in each case to the
immediately preceding sentence of this paragraph (d).
8. Computational Materials and Structural Term Sheets.
(a) On the business day before the date on which the Current Report
relating to the Certificates of a Series is required to be filed by the Company
with the Commission pursuant to Section 5(b) hereof, the Underwriter shall
deliver to the Company five complete copies of all materials provided by the
Underwriter to prospective investors in such Certificates that constitute (i)
"Computational Materials" within the meaning of the no-action letter dated May
20, 1994, issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated,
and Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994, issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx Letters"), the filing of
19
which material is a condition of the relief granted in such letter (such
materials being the "Computational Materials"), and (ii) "Structural Term
Sheets" within the meaning of the no-action letter dated February 17, 1995,
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter"), the filing of which material is a
condition of the relief granted in such letter (such materials being the
"Structural Term Sheets"). Each delivery of Computational Materials and
Structural Term Sheets to the Company pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel for the Company
on behalf of the Company at the address specified in Section 3 hereof and one
copy of such materials to the Company.
(b) If, at any time when a Prospectus relating to the Certificates
of a Series is required to be delivered under the Act, it shall be necessary to
amend or supplement the related Prospectus as a result of an untrue statement of
a material fact contained in any Computational Materials or Structural Term
Sheets provided by the Underwriter pursuant to this Section 8 or the omission to
state therein a material fact required, when considered in conjunction with the
related Prospectus and Prospectus Supplement, to be stated therein or necessary
to make the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any Current Report relating to any
Computational Materials or Structural Term Sheets to comply with the Act or the
rules thereunder, the Underwriter shall prepare and furnish to the Company for
filing with the Commission an amendment or supplement which will correct such
statement or omission or an amendment or supplement which will effect such
compliance.
(c) The Underwriter shall cause Deloitte & Touche LLP to furnish to
the Company a letter, dated as of the date on which you deliver any
Computational Materials or Structural Term Sheets to the Company pursuant to
Section 8(a), in form and substance satisfactory to the Company, stating in
effect that they have verified the mathematical accuracy of any calculations
performed by the Underwriter and set forth in such Computational Materials or
Structural Term Sheets, as applicable.
9. Collateral Term Sheets.
(a) On the business day immediately following the date on which any
Collateral Term Sheet (as defined in the PSA Letter) was first delivered to a
prospective investor in such Certificates, the Underwriter shall deliver to the
Company five complete copies of all materials provided by the Underwriter to
prospective investors in the Certificates that constitute "Collateral Term
Sheets." Each delivery of a Collateral Term Sheet to the Company pursuant to
this paragraph (a) shall be effected by delivering four copies of such materials
to counsel for the Company on behalf of the Company at the address specified in
Section 3 hereof and one copy of such materials to the Company. (Collateral Term
Sheets and Structural Term Sheets are, together, referred, to herein as "ABS
Term Sheets.")
20
(b) If, at any time when a prospectus relating to the Certificates
of a Series is required to be delivered under the Act, it shall be necessary to
amend or supplement the related Prospectus as a result of an untrue statement of
a material fact contained in any Collateral Term Sheets provided by the
Underwriter pursuant to this Section 9 or the omission to state therein a
material fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein or necessary to make
the statements therein, when read in conjunction with the related Prospectus and
Prospectus Supplement, not misleading, or if it shall be necessary to amend or
supplement any Current Report relating to any Collateral Term Sheets to comply
with the Act or the rules thereunder, the Underwriter shall prepare and furnish
to the Company for filing with the Commission an amendment or supplement which
will correct such statement or omission or an amendment or supplement which will
effect such compliance.
(c) The Underwriter shall cause Deloitte & Touche LLP to furnish to
the Company a letter, dated as of the date on which you deliver any Collateral
Term Sheets to the Company pursuant to Section 9(a), in form and substance
satisfactory to the Company, stating in effect that they have verified the
mathematical accuracy of any calculations performed by the Underwriter and set
forth in such Collateral Terns Sheets, as applicable.
10. 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 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 Certificates.
11. 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
the 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 the 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 Certificates. The provisions of
Section 7 hereof shall survive the termination or cancellation of this Agreement
and the related Terms Agreement.
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12. 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 the Underwriter shall be deemed a successor or
assign by reason of such purchase.
13. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS AGREEMENT WILL 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.
14. 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.
15. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be delivered to it at 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, with a
copy to First Horizon National Corporation, 000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Xx., Esq.
* * *
22
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
between the Company and you.
Very truly yours,
FIRST HORIZON ASSET SECURITIES INC.
By:________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
FIRST HORIZON HOME LOAN CORPORATION
By:____________________________
Name:
Title
FTN FINANCIAL CAPITAL MARKETS,
By:____________________________
Name:
Title
23
EXHIBIT A
FIRST HORIZON ASSET SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES
SERIES ___ - ___
TERMS AGREEMENT
(to Underwriting Agreement,
dated [[________ ___, 200__]]
between the Company and the Underwriter)
First Horizon Asset Securities Inc. [ ]
4000 Horizon Way [Date]
Xxxxxx, Xxxxx 00000
[ ] (the "Underwriter") agrees, subject to the terms and provisions herein
and of the captioned Underwriting Agreement (the "Underwriting Agreement"), to
purchase the respective principal balances such Classes of Series ______-______
Certificates specified in Section 2(a) hereof (the "Certificates"). This letter
supplements and modifies the Underwriting Agreement solely as it relates to the
purchase and sale of the Certificates described below. The Series ______-______
Certificates are registered with the Securities and Exchange Commission by means
of an effective Registration Statement (No. 333-_______). Capitalized terms used
and not defined herein have the meanings given them in the Underwriting
Agreement.
Section 1. The Mortgage Pool: The Series ______-______ Certificates shall
evidence the entire beneficial ownership interest in a mortgage pool (the
"Mortgage Pool") of closed-end, fixed-rate, second lien home equity loans (the
"Mortgage Loans") having the following characteristics as of _______________
____, ______ (the "Cut-off Date"):
(a) Aggregate Principal Amount of the Mortgage Pool: $[ ] 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 shall be between _____
and _____ years.
Section 2. The Certificates. The Certificates shall be issued as follows:
(a) Classes: The 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 [ ]%]:
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Principal Interest Class Purchase
Class Balance Rate Price Percentage
(b) The Certificates shall have such other characteristics as described
in the related Prospectus.
Section 3. Purchase Price: The Purchase Price for each Class of the
Certificates shall be the Class Purchase Price Percentage therefor (as set forth
in Section 2(a) above) of the initial Class Certificate Principal Balance
thereof plus accrued interest at the rate of [ ]% per annum from and including
the Cut-off Date up to, but not including, __________ ____, ______ (the "Closing
Date").
Section 4. Required Ratings: The Certificates shall have received Required
Ratings of at least [ ] from [ ].
Section 5. Tax Treatment: [One or more elections will be made to treat the
assets of the Trust Fund as a REMIC.]
Section 6. Additional Expenses:]*
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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
between the Underwriters and the Company.
Very truly yours,
FTN FINANCIAL CAPITAL MARKETS
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:
--------
* to be inserted if applicable.
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