Exhibit 1.1
EXECUTION
FIRST HORIZON ASSET SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
----------------------
Bear, ▇▇▇▇▇▇▇ & Co., Inc. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ January 24, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 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 ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ 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 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) 1 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 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
2
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.
3
(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 ▇▇▇▇▇▇▇ & ▇▇▇▇▇,
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
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 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
5
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 L.L.P. 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
6
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.
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) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P, 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;
7
(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
8
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 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) ▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., 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;
9
(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
10
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,
11
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 ▇▇▇▇▇ & ▇▇▇▇ 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;
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.
(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,
13
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) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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.
14
(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.
15
(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
16
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
17
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 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
18
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.
19
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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated, and ▇▇▇▇▇▇
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 "▇▇▇▇▇▇ 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
20
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 L.L.P. 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 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 L.L.P. 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 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
21
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., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇▇▇▇▇▇, with a copy to First Tennessee National Corporation, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
22
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.
* * *
23
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: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
BEAR, ▇▇▇▇▇▇▇ & CO., INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name:
Title:
FIRST HORIZON HOME LOAN CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name:
Title:
24
EXHIBIT A
FIRST HORIZON ASSET SECURITIES INC.
REMIC MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
---------------
(to Underwriting Agreement,
dated [ ], 2001
between the Company and the Underwriter)
First Horizon Asset Securities Inc. [ ]
4000 Horizon Way [Date]
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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 rate, fully amortizing one- to four-
family residential mortgage loans (the "Mortgage Loans") having the following
characteristics as of ________ __, ____ (the "Cut-off Date"):
(a) Aggregate Principal Amount of the Mortgage Pool: $[ ]
-----------------------------------------------
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 [ ]%]:
A-1
Principal Interest Class Purchase
Class Balance Rate 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 Certificates 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 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.
A-2
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,
CO-MANAGER:
[UNDERWRITER]
By:_____________________________________
Name:
Title:
CO-MANAGER:
[UNDERWRITER]
By:_____________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
FIRST HORIZON ASSET SECURITIES INC.
By:_____________________________________
Name:
Title:
FIRST HORIZON HOME LOAN CORPORATION
By:_____________________________________
Name:
Title:
A-3