FIRST HORIZON ASSET SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
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Deutsche Bank Securities Inc. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ January 27, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
First Horizon Asset Securities Inc., a corporation organized
and existing under the laws of the State of Delaware (the
"Company"), may offer for sale to you and to each of the other
several underwriters, if any, participating in an underwriting
syndicate managed by you, from time to time its Mortgage Pass-
Through Certificates evidencing interests in pools of mortgage
loans (the "Certificates"). The Certificates may be issued in
various series, and within each series, in one or more classes,
in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class").
Each Series of the Certificates will be issued under a separate
Pooling and Servicing Agreement (each, a "Pooling and Servicing
Agreement") to be dated as of the respective cut-off date (each,
a "Cut-off Date") among the Company, as depositor, First Horizon
Home Loan Corporation, as 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 ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ 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) to, and the purchase and
public offering thereof by, you and such other underwriters, if
any, selected by you as have authorized you to enter into such
Terms Agreement on their behalf (the underwriters in any such
Terms Agreement being referred to herein as
"Underwriters," which term shall include you whether acting alone
in the sale of any Series of Certificates or as a member of the
underwriting syndicate). Each such Certificate Offering that the
Company elects to make pursuant to this Agreement shall be
governed by this Agreement, as supplemented by the related Terms
Agreement. Each Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, shall specify, among other things,
the Classes of Certificates to be purchased by the 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
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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.
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(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
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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.
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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.
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(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
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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) ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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;
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(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
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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) ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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;
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(ii) The Company has full power and authority to
sell the related Mortgage Loans as contemplated herein
and in the related Pooling and Servicing Agreement;
(iii) This Agreement, the related Terms Agreement
and the related Pooling and Servicing Agreement have
been duly authorized, executed and delivered by the
Company under the laws of the State of Delaware;
(iv) The issuance and sale of the 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.
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In rendering his or her opinion such counsel may rely
as to matters of fact, to the extent deemed proper and as
stated therein, on certificates of responsible officers of
the Company or public officials. In addition, such opinion
may be qualified as an opinion only on the general
corporation laws of the State of Delaware.
(d) Special or 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) KPMG 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, but not jointly,
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
-17-
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 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 LLP
to furnish to the Company a letter, dated as of the date on
which you deliver any Computational Materials or Structural
Term Sheets to the Company pursuant to Section 8(a), in form
and substance satisfactory to the Company, stating in effect
that they have verified the mathematical accuracy of any
calculations performed by 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), 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.
-21-
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., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, 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:________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
DEUTSCHE BANK SECURITIES INC.
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
FIRST HORIZON HOME LOAN CORPORATION
By:__________________________
Name:
Title:
-24-
EXHIBIT A
FIRST HORIZON ASSET SECURITIES INC.
REMIC MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
(to Underwriting Agreement,
dated [ ], 200[ ]
between the Company and the Underwriter)
First Horizon Asset Securities Inc.[ ]
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ [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