Exhibit 1.1
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FIRST HORIZON ASSET SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
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[[UNDERWRITER] New York, New York
[[ADDRESS] [[DATE], 1999
[[ADDRESS]
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 (the "Underwriter") 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
Tennessee Bank National Association, as seller, FT Mortgage Companies, as master
servicer, and [ ], 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
with you (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. 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 Underwriter (the
"Offered Certificates"), 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 Underwriter from the
Company.
1. Representations and Warranties. The Company represents and warrants
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to and agrees with the Underwriter, as of the date of the related Terms
Agreement, that:
(a) The registration statement specified in the related Terms
Agreement, on Form S-3, including a prospectus, has been filed with
the Securities and Exchange Commission (the "Commission") for the
registration under the Securities Act of 1933, as amended (the "Act"),
of mortgage pass-through certificates issuable in series, which
registration statement has been declared effective by the Commission.
Such registration statement, as amended to the date of the related
Terms Agreement, including any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act which were filed
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the effective date of the Registration Statement,
is hereinafter called the "Registration Statement", and such
prospectus, as such prospectus is supplemented by a prospectus
supplement relating to the Offered Certificates of the related Series,
each in the form first filed after the date of the related Terms
Agreement pursuant to Rule 424(b) under the Act, including any
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act which were filed under the Exchange Act on or
before the date of such prospectus supplement (other than any such
incorporated documents that relate to Collateral Term Sheets (as
defined herein))(such prospectus supplement, including such
incorporated documents (other than those that relate to Collateral
Term Sheets), in the form first filed after the date of the related
Terms Agreement pursuant to Rule 424(b) is hereinafter called the
"Prospectus Supplement"), is hereinafter called the "Prospectus". Any
reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the
filing of any document under the Exchange Act after the effective date
of the Registration Statement or the issue date of the Prospectus or
Prospectus Supplement, as the case may be, deemed to be incorporated
therein by reference pursuant to Item 12 of Form S-3 under the Act.
(b) The related Registration Statement, at the time it became
effective, and the Prospectus contained therein, and any amendments
thereof and supplements thereto filed prior to the date of the related
Terms Agreement, conformed in all material respects to the
requirements of the Act and the rules and
regulations of the Commission thereunder; on the date of the related
Terms Agreement and on each Closing Date (as defined in Section 3
below), the related Registration Statement and the related Prospectus,
and any amendments thereof and supplements thereto, will conform in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder; such Registration Statement,
at the time it became effective, did not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; such Prospectus, on the date of any filing pursuant to
Rule 424(b) and on each Closing Date, will not include any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and the
detailed description (each, a "Detailed Description") filed in
connection with any Pre-Funding Arrangement referred to in such
Prospectus, on each closing date relating to the purchase of the
related Subsequent mortgage loans and the date of any filing thereof
under cover of Form 8-K, will not include any untrue statement of a
material fact or omit to state any information which such Prospectus
states will be included in such Detailed Description; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from (A) such Registration
Statement or such Prospectus (or any supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for use in the
preparation thereof or (B) any Current Report (as defined in Section
5(b) below), or in any amendment thereof or supplement thereto,
incorporated by reference in such Registration Statement or such
Prospectus (or any amendment thereof or supplement thereto).
(c) The Certificates of the related Series will conform to the
description thereof contained in the related Prospectus; 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 you as provided
herein and in the related Terms Agreement, will each be validly issued
and outstanding and entitled to the benefits of the related Pooling
and Servicing Agreement.
(d) Neither the issuance nor sale of the Certificates of the
related Series nor the consummation of any other of the transactions
herein contemplated, nor the fulfillment of the terms hereof or of the
related Terms Agreement, will conflict with any statute, order or
regulation applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Company or with any organizational document of the Company or any
instrument or any agreement under which the Company is bound or to
which it is a party.
(e) This Agreement and the related Terms Agreement have been
duly authorized, executed and delivered by the Company.
(f) At or prior to the related Closing Date, the Company will
have entered into the related Pooling and Servicing Agreement and,
assuming the due authorization, execution and delivery thereof by the
other parties thereto, such Pooling and Servicing Agreement (on such
Closing Date) will constitute the valid and binding agreement of the
Company enforceable in accordance with its terms, subject as to
enforceability, to bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights and to general principles of
equity (regardless of whether the enforceability of such Pooling and
Servicing Agreement is considered in a proceeding in equity or at
law).
2. Purchase and Sale. Subject to the execution of the Terms Agreement
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for a particular Certificate Offering and subject to the terms and conditions
and in reliance upon the representations and warranties set forth in this
Agreement and such Terms Agreement, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, all, but
not less than all, of the related Offered Certificates 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
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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 the Underwriter and the Company (such date and time being herein called
the "Closing Date"). Delivery of such Offered Certificates shall be made to the
Underwriter against payment by the Underwriter 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 the Underwriter may request not less than two full
business days in advance of each Closing Date.
The Company agrees to notify the Underwriter at least two business days
before each Closing Date of the exact principal balance evidenced by the Offered
Certificates and to have such Offered Certificates available for inspection,
checking and packaging in Dallas, Texas, no later than 12:00 noon on the
business day prior to such Closing Date.
4. Offering by the Underwriter. It is understood that the Underwriter
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proposes 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 the Underwriter that:
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(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 the Underwriter
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 the Underwriter (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 the Underwriter with a copy for
its review prior to filing and such Underwriter has 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 the Underwriter
to the Company pursuant to Section 8 to be filed with the Commission on a
Current Report on Form 8-K (each such filing of such materials, a "Current
Report") pursuant to Rule 13a-11 under the Exchange Act on the business day
immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the
Company by the Underwriter, and (ii) the date on which this Agreement is
executed and delivered. The Company will cause any Collateral Term Sheet
(as defined in Section 9 below) with respect to the Offered Certificates of
a Series that is delivered by the Underwriter to the Company in accordance
with the provisions of Section 9 to be filed with the Commission on a
Current Report pursuant to Rule 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 the Underwriter. Each such
Current Report shall be incorporated by reference in the related Prospectus
and the related Registration Statement.
(c) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, any
event occurs as a result of which the related Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in
light of the circumstances under which they were made not misleading, or if
it
shall be necessary at any time to amend or supplement the related
Prospectus to comply with the Act or the rules thereunder, the Company
promptly shall prepare and file with the Commission, subject to the
penultimate sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(d) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, as many signed copies of the related
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by the Underwriter or dealer may be required by
the Act, as many copies of the related Prospectus and any supplements
thereto as the Underwriter may reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such actions as may be reasonably requested by the
Underwriter 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 the 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 FT Mortgage Companies 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 Underwriter),
including and without limitation those related to: (i) the filing of the
Registration Statement with respect to the Certificates and all amendments
thereto, (ii) the printing or photocopying and delivery to the
Underwriters, in such quantities as you may reasonably request, of copies
of this Agreement and the Terms Agreement, (iii) the preparation,
registration, issuance and delivery to the Underwriters of the Certificates
underwritten pursuant to this Agreement, (iv) the fees and disbursements of
the Company's counsel and accountants, and of any counsel rendering a
closing opinion with respect to matters of local law, (v) the qualification
of the Certificates underwritten pursuant to this Agreement under
securities and Blue Sky laws and the determination of the eligibility of
the Certificates for investment, including filing fees in connection
therewith, (vi) the printing and delivery to the Underwriters, in such
quantities as they may reasonably request, of copies of the Registration
Statement with respect to the
Certificates underwritten pursuant to this Agreement and all amendments
thereto, of any preliminary prospectus and preliminary prospectus
supplement and of the Final Prospectus and all amendments and supplements
thereto and all documents incorporated therein (other than exhibits to any
Current Report), and of any Blue Sky Survey and Legal Investment Survey,
(vii) the printing or photocopying and delivery to the Underwriters, in
such quantities as you may reasonably request, of copies of the applicable
Pooling Agreement, (viii) the fees charged by investment rating agencies
requested by the Company to rate the Certificates underwritten pursuant to
this Agreement, (ix) the fees and expenses, if any, incurred in connection
with the listing of the Certificates underwritten pursuant to this
Agreement on any national securities exchange; and (x) the fees and
expenses of the Trustee and its counsel.
6. Conditions to the Obligations of the Underwriter. The obligations of
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the Underwriter 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 the Underwriter an opinion, 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 law of the State
of New York;
(ii) the related Pooling and Servicing Agreement has been duly
executed and delivered by the Company under the law of the State of
New York and is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms;
(iii) the Offered Certificates, when duly executed and
countersigned by the Trustee in accordance with the related Pooling
and Servicing Agreement, will be validly issued and outstanding and
entitled to the benefits of such Pooling and Servicing Agreement;
(iv) the related Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and the trust created thereunder is not required to be
registered under the Investment Company Act of 1940, as amended;
(v) such counsel confirms that the related Registration
Statement is effective under the Act and, to the best of such
counsel's knowledge, no stop order with respect thereto has been
issued, and no proceeding for that purpose has been instituted or
threatened by the Commission; such Registration Statement (except the
financial statements and schedules and other financial and statistical
data included therein and the documents incorporated by reference
therein, as to which such counsel need express no view), at the time
it became effective and the related Prospectus (except the financial
statements and schedules, the other financial and statistical data
included therein and the documents incorporated by reference therein),
as of the date of the Prospectus Supplement conformed in all material
respects to the requirements of the Act and the rules and regulations
thereunder; and no information has come to the attention of such
counsel that causes it to believe that (A) such Registration Statement
(except the financial statements and schedules and the other financial
and statistical data included therein and the documents incorporated
by reference therein, as to which such counsel need express no view)
at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (B) such Prospectus or any amendment or supplement
thereto (except the financial statements and schedules and the other
financial and statistical data included therein), as of the date of
the Prospectus Supplement, or at the related Closing Date, contained
or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(vi) the statements set forth under the heading "Description of
the Certificates" in the related Prospectus, insofar as such
statements purport to summarize certain provisions of the related
Pooling and Servicing Agreement and the related Offered Certificates,
provide a fair summary of such provisions;
(vii) the statements set forth in the related Prospectus under
the headings "Certain Legal Aspects of the Mortgage Loans", "Material
Federal Income Tax Consequences" (insofar as they relate specifically
to the purchase, ownership and disposition of the related Offered
Certificates) and "ERISA Considerations" (insofar as they relate
specifically to the purchase, ownership and disposition of such
Offered Certificates), to the extent that they constitute matters of
law or legal conclusions, provide a fair summary of such law or
conclusions;
(viii) assuming compliance with all provisions of the related
Pooling and Servicing Agreement, for federal income tax purposes, (A)
if any election is made to treat the assets of the Trust Fund as a
REMIC: the related Trust Fund (and any specified subgrouping therein)
will qualify as a REMIC pursuant to Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code"), each Class of
Certificates of the related Series, other than the related Residual
Class or Classes, will constitute a class of "regular interests" in
the related REMIC within the meaning of the Code, and each Class of
such Certificates specified in the related
Prospectus as a Class of Residual Certificates will constitute the
"residual interest" in the related REMIC within the meaning of the
Code; (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 law of
the State of New York and the federal law of the United States of America.
(c) ▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., counsel for the Company, shall have
furnished to the Underwriter an opinion, dated the related Closing Date, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power to own its properties, to conduct
its business as described in the related Prospectus and to enter into
and perform its obligations under this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement and the
Certificates of the related Series;
(ii) The Company has full power and authority to sell the
related Mortgage Loans as contemplated herein and in the related
Pooling and Servicing Agreement;
(iii) This Agreement, the related Terms Agreement and the
related Pooling and Servicing Agreement have been duly authorized,
executed and delivered by the Company under the law of the State of
Delaware;
(iv) The issuance and sale of the Offered Certificates have
been duly authorized by the Company;
(v) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated herein or in the related
Pooling and Servicing Agreement, except such as may be required under
the blue sky laws of any jurisdiction and such other approvals as have
been obtained;
(vi) Neither the issuance of the Certificates of the related
Series nor delivery of the related Offered Certificates, nor the
consummation of any other of the transactions contemplated in this
Agreement, the related Terms Agreement or the related Pooling and
Servicing Agreement, nor the fulfillment of the terms of the related
Certificates, the related Pooling and Servicing Agreement, this
Agreement or the related Terms Agreement will conflict with or violate
any term or provision of the articles of incorporation or by-laws of
the Company or any statute, order or regulation applicable to the
Company of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company and will not
conflict with, result in a breach or violation or the acceleration of
or constitute a default under the terms of any indenture or other
agreement or instrument known to such counsel to which the Company is
a party or by which it is bound; and
(vii) There are no actions, proceedings or investigations
pending or, to the best knowledge of such counsel, threatened before
any court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the related Terms Agreement, the related
Pooling and Servicing Agreement or the related Certificates, (ii)
seeking to prevent the issuance of the Certificates of the related
Series or the consummation by the Company of any of the transactions
contemplated by this Agreement, such Terms Agreement or such Pooling
and Servicing Agreement, or (iii) which might materially and adversely
affect the performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement, such Terms Agreement,
such Pooling and Servicing Agreement or the related Certificates.
In rendering his or her opinion such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Company or public officials. In addition, such
opinion may be qualified as an opinion only on the general corporation laws
of the State of Delaware.
(d) In-house counsel for FT Mortgage Companies (or its ultimate
parent) shall have furnished to the Underwriter an opinion, dated the
related Closing Date, to the effect that:
(i) FT Mortgage Companies 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) FT Mortgage Companies 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 FT Mortgage Companies under the law of the
State of Kansas;
(iv) The issuance and sale of the Offered Certificates have
been duly authorized by FT Mortgage Companies;
(v) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by FT
Mortgage Companies 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
FT Mortgage Companies or any statute, order or regulation applicable
to FT Mortgage Companies of any court, regulatory body, administrative
agency or governmental body having jurisdiction over FT Mortgage
Companies 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 FT Mortgage Companies is a party or by which it is bound, other
than such conflicts, breaches and violations or defaults which,
individually or on a cumulative basis, would not have a material
adverse effect on FT Mortgage Companies 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 FT Mortgage Companies 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 FT Mortgage Companies 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 FT Mortgage Companies or public officials. In
addition, such opinion may be qualified as an opinion only on the laws of
the State of Kansas and may assume that the applicable laws of Kansas are
identical to those of Tennessee.
(e) The General Counsel for First Tennessee Bank National Association
(the "Bank") (or its ultimate parent) shall have furnished to the
Underwriter an opinion, dated the related Closing Date, to the effect that:
(i) The Bank is a national banking association duly chartered
and validly existing under the laws of the United States, with the
requisite power to own its properties, to conduct its business as
described in the related Prospectus and to enter into and perform its
obligations under the Pooling and Servicing Agreement of the related
Series;
(ii) The Bank has full power and authority to sell the related
Mortgage Loans as contemplated in the related Pooling and Servicing
Agreement;
(iii) The related Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Bank under the laws of the
United States;
(iv) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Bank of the transactions contemplated in the related Pooling and
Servicing Agreement, except such approvals as have been obtained;
(vi) Neither the consummation of any of the transactions
contemplated in the related Pooling and Servicing Agreement, nor the
fulfillment of the terms of the related Pooling and Servicing
Agreement will conflict with or violate any term or provision of the
articles of association or by-laws of the Bank or any statute, order
or regulation applicable to the Bank of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Bank 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 Bank is a party or by which it is bound, other than such
conflicts, breaches and violations or defaults which, individually or
on a cumulative basis, would not have a material adverse effect on the
Bank and its subsidiaries, taken as a whole, or on the issuance and
sale of the Certificates or the consummation of the transactions
contemplated hereby; and
(vii) There are no actions, proceedings or investigations pending
or, to the best knowledge of such counsel, threatened before any
court, administrative agency or other tribunal (i) asserting the
invalidity of the related Pooling and Servicing Agreement, (ii)
seeking to prevent the consummation by the Bank of any of the
transactions contemplated by the Pooling and Servicing Agreement, or
(iii) which might materially and adversely affect the performance by
the Bank of its obligations under, or the validity or enforceability
of, the related Pooling and Servicing Agreement.
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 Bank or public officials. In addition, such
opinion may be qualified as an opinion only on the laws of the United
States.
(f) The Underwriter shall have received from ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Underwriter, such opinion or opinions, dated the related
Closing Date, with respect to the issuance and sale of the Certificates of
the related Series, the related Registration Statement, the related
Prospectus and such other related matters as the Underwriter may reasonably
require, and the Company shall have furnished to such counsel such
documents as the Underwriter may reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate
of the Company, signed by the President or any Vice President or the
principal financial or accounting officer of the Company, dated the related
Closing Date, to the effect that the signers of such certificate have
carefully examined the related Registration Statement (excluding any
Current Reports and any other documents incorporated by reference therein),
the related Prospectus, any Detailed Description (excluding any related
Current Report), this Agreement and the related Terms Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the related Closing Date with the same effect as if made on such
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date;
(ii) no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to their knowledge, threatened; and
(iii) nothing has come to their attention that would lead them to
believe that such Registration Statement (excluding any Current
Report) contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the related
Prospectus (excluding any related Current Report) contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the
circumstances under which they were made, not misleading, or that any
Detailed Description includes any untrue statement of a material fact
or omits to state any information which the Prospectus (or the related
Prospectus Supplement) states will be included in such Detailed
Description.
(h) [ ], counsel for the Trustee, shall have furnished
to the Underwriter an opinion, dated the related Closing Date, to the
effect that:
(i) the Trustee has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of [ ] 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 [ ] or
federal court or government agency or body is required on the part of
the Trustee for the consummation of the transactions contemplated in
the related Pooling and Servicing Agreement, except such as may be
required under any federal or state securities law; and
(v) the performance on the part of the Trustee of any of the
transactions contemplated in the related Pooling and Servicing
Agreement does not conflict with or result in a breach or violation of
any term or provision of, or constitute a default under, the Articles
of Organization, as amended, or By-Laws of the Trustee, or any [
] 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 the Underwriter such
opinions as to the treatment of the Trust Fund for purposes of [ ]
tax law as are reasonably satisfactory to the Underwriter.
(i) Deloitte & Touche LLP shall have furnished to the Underwriter a
letter, dated as of the date of the related Terms Agreement, in form and
substance satisfactory to the Underwriter, stating in effect that they have
performed certain specified procedures as a result of which they have
determined that such information as the Underwriter 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 FT Mortgage Companies) 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 FT Mortgage Companies, excluding any questions of legal
interpretation.
(j) Deloitte & Touche LLP shall have furnished to the Underwriter a
letter, dated as of the related Closing Date, in form and substance
satisfactory to the Underwriter, stating in effect that they have performed
certain specified procedures as a result of which they have determined that
such information as the Underwriter 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 the Underwriter a
letter, 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.
(k) Deloitte & Touche LLP shall have furnished to the Underwriter and
the Company a letter or letters, dated as of the date of the related Terms
Agreement, in form and substance satisfactory to the Underwriter 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.
(l) The Offered Certificates of the related Series shall have
received the ratings specified in the related Terms Agreement (the
"Required Ratings").
(m) Prior to the related Closing Date, the Company shall have
furnished to the Underwriter such further information, certificates and
documents as the Underwriter may reasonably request.
(n) If any Certificates of the related Series are to be sold to any
other underwriter and/or offered in reliance upon an exemption from the
registration requirements of the Act, the sale at or prior to the related
Closing Date of such Certificates to the purchaser thereof shall have
occurred.
(o) Subsequent to the date of the related Terms Agreement, there
shall not have been any change, or any development involving a prospective
change, in or affecting the business or properties of the Company which the
Underwriter concludes in its reasonable judgment, after consultation with
the Company, materially impairs the investment quality of the 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
Underwriter and its counsel, this Agreement (with respect to the related Offered
Certificates) and
the related Terms Agreement and all obligations of the Underwriter 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
Underwriter. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution.
--------------------------------
(a) The Company and FT Mortgage Companies jointly and severally agree
to indemnify and hold harmless the Underwriter and each person who controls
the Underwriter within the meaning of the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange
Act, or other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement relating to the 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 neither the Company nor FT Mortgage
Companies 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 FT Mortgage Companies, as the case may be, as
herein stated by or on behalf of the Underwriter specifically for use in
connection with the preparation thereof or (B) in any Current Report or any
amendment or supplement thereof, except to the extent that any untrue
statement or alleged untrue statement therein or omission therefrom results
(or is alleged to have resulted) directly from an error (a "Mortgage Pool
Error") in the information concerning the characteristics of the Mortgage
Loans furnished by the Company or FT Mortgage Companies, as the case may
be, to the Underwriter in writing or by electronic transmission that was
used in the preparation of either (x) any Computational Materials or ABS
Term Sheets (or amendments or supplements thereof) included in such Current
Report (or amendment or supplement thereof) or (y) any written or
electronic materials furnished to prospective investors on which the
Computational Materials or ABS Term Sheets (or amendments or supplements)
were based. This indemnity agreement will be in addition to any liability
which the Company and FT Mortgage Companies may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers, and each person or
entity (including each of its directors and officers) who controls the
Company within the meaning of the Act or the Exchange Act, to the same
extent as the foregoing indemnities from the Company and FT Mortgage
Companies to the Underwriter, but only with reference to (A) written
information furnished to the Company by or on behalf of the Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity with respect to the related Series, or (B) any
Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) furnished to the Company by the Underwriter pursuant to Section 8
or Section 9 and incorporated by reference in such Registration Statement
or the related Prospectus or any amendment or supplement thereof (except
that no such indemnity shall be available for any losses, claims, damages
or liabilities, or actions in respect thereof, resulting from any Mortgage
Pool Error). This indemnity agreement will be in addition to any liability
which the Underwriter may otherwise have. The Company acknowledges, unless
otherwise specified in writing by the Underwriter, that the statements set
forth in the first sentence of the penultimate paragraph, and in 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 under the heading "Method of Distribution"
in such Prospectus Supplement as such statements relate to such Offered
Certificates constitute the only information furnished in writing by or on
behalf of the Underwriter for inclusion in the related Prospectus (other
than any Computational Materials or ABS Term Sheets (or amendments or
supplements thereof) furnished to the Company by the Underwriter), and the
Underwriter confirms that such statements are correct.
(c) Promptly after receipt by an indemnified party under Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 7, except to the extent that the
omission to so notify the indemnifying party causes or exacerbates a loss.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such 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, FT Mortgage Companies
or the Underwriter, on grounds of policy or otherwise, or if the
indemnified party failed to give notice under paragraph (c) of this Section
7 in respect of a claim otherwise subject to indemnification in accordance
with paragraph (a) or (b) of this Section 7, the Company, FT Mortgage
Companies and the Underwriter shall contribute to the aggregate losses,
claims, damages and liabilities (including legal and other expenses
reasonably incurred in connection with investigating or defending same) to
which the Company, FT Mortgage Companies and the Underwriter may be
subject, as follows:
(i) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which do not arise out of or are not
based upon any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or
supplements thereof) or in any written or electronic materials
distributed to prospective investors on which the Computational
Materials are based, in such proportion so that the Underwriter is
responsible for that portion represented by the difference between the
proceeds to the Company in respect of the Offered Certificates
appearing on the cover page of the Prospectus Supplement for the
related Series and the total proceeds received by the Underwriter from
the sale of such Offered Certificates (the "Underwriting Discount"),
and the Company and FT Mortgage Companies are jointly and severally
responsible for the balance; provided, however, that in no case shall
the Underwriter be responsible under this subparagraph (i) for any
amount in excess of such Underwriting Discount applicable to the
Offered Certificates purchased by the 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 FT
Mortgage Companies, as the case may be, on the one hand and the
Underwriter on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations; provided, however, that in no case
shall the Underwriter be responsible under this subparagraph (ii) for
any amount in excess of the Underwriting Discount applicable to the
Offered Certificates. 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 FT Mortgage Companies, as the case may be, on the one hand or the
Underwriter on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
Notwithstanding anything to the contrary in this Section 7(d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each person
who controls the Underwriter within the meaning of either the Act or the
Exchange Act shall have the same rights to contribution as the Underwriter, and
each person who controls the Company or FT Mortgage Companies, 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 FT Mortgage Companies, as the case may be, shall have the same
rights to contribution as the Company or FT Mortgage Companies, 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, the
Underwriter shall deliver to the Company five complete copies of all
materials provided by the 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 the
Underwriter pursuant to this Section 8 or the omission to state therein a
material fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein or necessary to
make the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any Current Report relating to any
Computational Materials or Structural Term Sheets to comply with the Act or
the rules thereunder, the Underwriter will prepare and furnish to the
Company for filing with the Commission an amendment or supplement which
will correct such statement or omission or an amendment or supplement which
will effect such compliance.
(c) The Underwriter shall cause Deloitte & Touche 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 the Underwriter and set forth in such
Computational Materials or Structural Term Sheets, as applicable.
9. Collateral Term Sheets.
----------------------
(a) On the business day immediately following the date on which any
Collateral Term Sheet (as defined in the PSA Letter) was first delivered to
a prospective investor in such Offered Certificates, the Underwriter shall
deliver to the Company five complete copies of all materials provided by
the 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 the Underwriter pursuant to this Section
9 or the omission to state therein a material fact required, when
considered in conjunction with the related Prospectus and Prospectus
Supplement, to be stated therein
or necessary to make the statements therein, when read in conjunction with
the related Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any Current Report relating to
any Collateral Term Sheets to comply with the Act or the rules thereunder,
the Underwriter will prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment or supplement which will effect such compliance.
(c) The Underwriter shall cause Deloitte & Touche 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 the
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 the
absolute discretion of the Underwriter, 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 the reasonable judgment of the Underwriter, 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
FT Mortgage Companies, as the case may be) or its officers and of the
Underwriter set forth in or made pursuant to this Agreement and the related
Terms Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or the Company (or FT
Mortgage Companies, 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 the Underwriter shall be deemed a successor or
assign by reason of such purchase.
13. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS AGREEMENT WILL
--------------
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED THEREIN.
14. Miscellaneous. This Agreement, as supplemented by the related Terms
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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
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effective only on receipt, and, if sent to the Underwriter, 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.
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 the Underwriter.
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.
[UNDERWRITER]
By:________________________________
Name:___________________________
Title:__________________________
FT MORTGAGE COMPANIES
By:________________________________
Name:___________________________
Title:__________________________
EXHIBIT A
FIRST HORIZON ASSET SECURITIES INC.
REMIC MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
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(to Underwriting Agreement,
dated [ ], 1999
between the Company and the Underwriter)
First Horizon Asset Securities Inc. New York, New York
4000 Horizon Way [Date]
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[ ] (the "Underwriter") 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
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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: $[ ]
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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
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follows:
(a) Classes: The Offered Certificates shall be issued with the
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following Class designations, interest rates and principal balances,
subject in the aggregate to the variance referred to in Section 1(a)[and,
as to any particular Class, to an upward or downward variance of up to
[ ]%]:
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Principal Interest Class Purchase
Class Balance Rate Price Percentage
----- ------- ---- ----------------
(b) The Offered Certificates shall have such other characteristics
as described in the related Prospectus.
Section 3. Purchase Price: The Purchase Price for each Class of the
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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
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Required Ratings of at least [ ] from [ ].
Section 5. Tax Treatment: [One or more elections will be made to treat
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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.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Underwriter and the Company.
Very truly yours,
[UNDERWRITER]
By:__________________________
Name:_____________________
Title:____________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
FIRST HORIZON ASSET SECURITIES INC.
By:__________________________________
Name:_____________________________
Title:____________________________
FT MORTGAGE COMPANIES
By:__________________________________
Name:_____________________________
Title:____________________________
27