FIRST HORIZON ASSET SECURITIES INC. MORTGAGE PASS-THROUGH CERTIFICATES (Issuable in Series) UNDERWRITING AGREEMENT
MORTGAGE
PASS-THROUGH CERTIFICATES
(Issuable
in Series)
| Xxxxxx Brothers Inc. | |
| 000 Xxxxxxx Xxxxxx |
November
28, 0000
|
| 0xx Xxxxx | |
| Xxx Xxxx, Xxx Xxxx 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 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”) between 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 which 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 16 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. 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 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 (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) 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
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; and the detailed
description (each, a “Detailed Description”) filed in connection with any
Pre-Funding Arrangement referred to in 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
Prospectus states will be included in such Detailed Description; provided,
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 any 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; 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.
(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, 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 16 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. Offering
by the Underwriter.
It is
understood that the Underwriters propose to offer the Offered Certificates
of
the related Series for sale to the public as set forth in the related
Prospectus.
5. Agreements.
The
Company acknowledges and agrees with each Underwriter that:
(a) The
Company will cause the Prospectus as supplemented by a Prospectus Supplement
relating to the Offered 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 Offered
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 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 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 Offered Certificates
of
a Series that are delivered by any 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 such 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
Offered Certificates of a Series that is delivered by any 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 13a-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 such Underwriter. Each such
Current Report shall be incorporated by reference in the related Prospectus
and
the related Registration Statement.
(c) 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 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 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.
(e) 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.
(f) So
long
as the Offered Certificates of a Series are outstanding, the Company will
furnish to each Underwriter, upon request, copies of the annual independent
public accountants' servicing report furnished to the Trustee pursuant to
the
related 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 Underwriters'
due
diligence expenses, the Underwriters' counsel fees and the Underwriters'
own
expenses, which will be paid by the Underwriters), 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, (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 any preliminary prospectus and
preliminary prospectus supplement and of the Final 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
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.
(h) Notwithstanding
any preexisting relationship, advisory or otherwise, between the parties
or any
oral representations or assurances previously or subsequently made by the
underwriters, the Company acknowledges and agrees that in connection with
any
Certificate Offering: (i) there exists no fiduciary or agency relationship
between the Company, on the one hand, and the Underwriters, on the other;
(ii)
the relationship between the Company, on the one hand, and the Underwriters,
on
the other, is entirely and solely commercial, based on arms-length negotiations
and the Underwriters are not acting as advisors, expert or otherwise, to
the
Company; (iii) notwithstanding anything in this Agreement to the contrary,
you
acknowledge that the Underwriters may have financial interests in connection
with a Certificate Offering in addition to the difference between the price
to
the public and the purchase price paid to you by the Underwriters for the
shares
and the Underwriters have no obligation to disclose, or account to you for,
any
of such additional financial interests. The Company hereby waives and releases,
to the fullest extent permitted by law, any claims that the Company may have
against the Underwriters with respect to any breach or alleged breach of
fiduciary duty in connection with a Certificate Offering.
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.
(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 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;
(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;
(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
Offered 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 Offered Certificates) and “ERISA Considerations” (insofar as they
relate specifically to the purchase, ownership and disposition of such Offered
Certificates), to the extent that they constitute matters of law or legal
conclusions, provide a fair summary of such law or conclusions;
(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; and (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 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;
(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 (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.
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;
(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; 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 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 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, 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;
(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.
(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:
(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) Deloitte
& Touche LLP shall have furnished to you a letter addressed to the
Underwriters, 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.
(i) Deloitte
& Touche LLP shall have furnished to you a letter addressed to the
Underwriters, 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 Pool” 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. In addition, if applicable,
such accountants shall have furnished to you a letter addressed to the
Underwriters, dated as of the related Closing Date, which shall include a
statement or statements to the effect that based upon the assumptions and
methodology agreed to by the Company (and which is consistent with the manner
in
which any final PAC Balances, TAC Balances, Scheduled Balances, Maximum and
Minimum Scheduled Balances or any other scheduled balances are to be calculated
as set forth in the related Prospectus), all of which shall be described
by
reference in such letter, such accountants shall have verified the mathematical
accuracy of any final PAC Balances Table, TAC Balances Table, Scheduled Balances
Table, Maximum or Minimum Scheduled Balances Table or other scheduled balances
table attached as an exhibit to the related Pooling and Servicing Agreement.
(j) Deloitte
& Touche LLP shall have furnished to you (addressed to the Underwriters) and
the Company a letter or letters, dated as of the date of the related Terms
Agreement, in form and substance satisfactory to you and the Company, including,
without limitation, statements, if applicable, to the effect that:
(i) based
upon the assumptions and methodology set forth in the related Prospectus,
all of
which shall be described by reference in such letter, they recomputed the
percentages of initial principal balance outstanding as of each of the
Distribution Dates (as defined in such Prospectus) indicated and the weighted
average lives of each Class of Offered Certificates at each of the indicated
percentages of the applicable Prepayment Assumption, and they compared the
recomputed percentages and weighted average lives to the corresponding
percentages and weighted average lives set forth in the related tables and
found
them to be in agreement;
(ii) based
upon the assumptions and methodology set forth in such Prospectus, all of
which
shall be described by reference in such letter, they have verified the
mathematical accuracy of any Scheduled Final Distribution Dates for the Offered
Certificates, PAC Balances, TAC Balances, Scheduled Balances, Maximum and
Minimum Scheduled Balances or any other scheduled balances set forth in such
Prospectus for each indicated Distribution Date, and have verified the
mathematical accuracy of any initial Effective Ranges of any PAC Certificates,
Scheduled Certificates or other scheduled Certificates set forth in such
Prospectus; and
(iii) based
upon the assumptions and methodology set forth in such Prospectus, all of
which
shall be described by reference in such letter, they have verified the
mathematical accuracy of the pre-tax yields to maturity and, if applicable,
aggregate cash flows of any Class of Certificates for which such pre-tax
yields
and, if applicable, aggregate cash flows are set forth in such Prospectus
at the
indicated percentages of the Prepayment Assumption and, if applicable, at
the
indicated values of COFI, LIBOR or any other index, as applicable.
(k) The
Offered Certificates of the related Series shall have received the ratings
specified in the related Terms Agreement (the “Required Ratings”).
(l) 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.
(m) 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.
(n) 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.
7. Indemnification
and Contribution.
(a) The
Company and First Horizon Home Loan Corporation jointly and severally agree
to
indemnify and hold harmless each Underwriter and each person who controls
any
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
Offered 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
party 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 any 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 any 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 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 any Underwriter (or any person controlling such 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
such
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) Each
Underwriter severally 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 such 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 such 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 Underwriters may otherwise have. The Company acknowledges,
unless otherwise specified in writing by an 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 Offered
Certificates and the second sentence of the first paragraph and the first
sentence of the second paragraph in each case under the heading “Method of
Distribution” in such Prospectus Supplement as such statements relate to such
Offered Certificates constitute the only information furnished in writing
by or
on behalf of such 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 such Underwriter), and such
Underwriter confirms that such statements are correct.
(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, 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 any
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
such
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 such 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 such Underwriter is responsible
for that portion represented by the difference between the proceeds to the
Company in respect of the Offered Certificates appearing on the cover page
of
the Prospectus Supplement for the related Series and the total proceeds received
by such Underwriter from the sale of such Offered 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 such Underwriter be responsible under this subparagraph (i)
for
any amount in excess of such Underwriting Discount applicable to the Offered
Certificates purchased by such Underwriter pursuant to this Agreement and
the
related Terms Agreement; and
(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 such 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 such Underwriter be responsible under this subparagraph (ii)
for
any amount in excess of the Underwriting Discount applicable to the Offered
Certificates purchased by such 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 such 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
an
Underwriter within the meaning of either the Act or the Exchange Act shall
have
the same rights to contribution as such 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
Offered
Certificates of a Series is required to be filed by the Company with the
Commission pursuant to Section 5(b) hereof, each Underwriter shall deliver
to
the Company five complete copies of all materials provided by such Underwriter
to prospective investors in such Offered 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 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 Offered 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 any 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, such 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) Each
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) hereof,
in
form and substance satisfactory to the Company, stating in effect that they
have
verified the mathematical accuracy of any calculations performed by such
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 Offered Certificates, each Underwriter shall deliver to the Company
five
complete copies of all materials provided by such Underwriter to prospective
investors in the Offered 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.”)
(b) If,
at
any time when a prospectus relating to the Offered 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 an 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, such 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) Each
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) hereof, in form and substance
satisfactory to the Company, stating in effect that they have verified the
mathematical accuracy of any calculations performed by such Underwriter and
set
forth in such Collateral Term 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
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.
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 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.
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
any 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, Attention: Xxxxxx Xxxxx, with
a
copy to First Tennessee National Corporation, 000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Xx., Esq.
16. 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:
(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 16 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.
*
* *
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: Xxxxxx Xxxxx | ||
| Title: Vice President | ||
|
The
foregoing Agreement is
hereby
confirmed and accepted
as
of the date first above written.
|
||
| XXXXXX BROTHERS INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| FIRST HORIZON HOME LOAN CORPORATION | ||
| By: | ||
| Name: Xxxxx XxXxx | ||
| Title: Executive Vice President | ||
169366 First Horizon/Xxxxxx
Master
Underwriting Agreement
EXHIBIT
A
REMIC
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATES
SERIES
____-__
TERMS
AGREEMENT
dated
November [[28]],
2005
between
the Company and the Underwriter)
| First Horizon Asset Securities Inc. |
[
]
|
| 4000 Horizon Way |
[Date]
|
| Xxxxxx, Xxxxx 00000 |
Each
of
[ ]
(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-___). 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 conventional, fixed [fixed]
[adjustable] rate, fully amortizing one- to four-family residential mortgage
loans (the “Mortgage Loans”) having the following characteristics as of ________
1, 20___ (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
Offered Certificates shall be issued as follows:
(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
Certificate Balance
|
Interest
Rate
|
Class
Purchase Price
Percentage
|
(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
|
[Underwriter]
|
[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 Certificate 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
Offered 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.]
[The Trust Fund will be treated as a “grantor trust” for federal income tax
purposes.]
[Section
6. Additional
Expenses:]*
*
to be
inserted if applicable.
169366
First Horizon/Xxxxxx
Master
Underwriting Agreement
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,
|
||
| [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:
|
