EXECUTION
FIRST HORIZON ASSET SECURITIES
INC.
MORTGAGE PASS-THROUGH
CERTIFICATES
(Issuable in Series)
UNDERWRITING
AGREEMENT
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HSBC Securities
(USA) Inc.
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New York, New York
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452 Fifth
Avenue
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September 26, 2006
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New York, New
York 10018
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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 seller and master servicer, and The Bank of
New York, as trustee (the “Trustee”). Capitalized terms
used but not defined herein shall have the meanings given to them
in the related Pooling and Servicing Agreement.
The Certificates issued under each Pooling and
Servicing Agreement will represent the entire beneficial ownership
interest in a trust fund (the “Trust Fund”) established
by such Pooling and Servicing Agreement. The assets of each Trust
Fund will consist primarily of (i) one or more pools of
conventional, fixed or adjustable rate, first lien, fully
amortizing, one- to four-family residential mortgage loans (the
“Mortgage Loans”) having the original terms to maturity
specified in the related Terms Agreement referred to hereinbelow,
(ii) mortgage pass-through securities issued or guaranteed by
Ginnie Mae, Fannie Mae or Freddie Mac, or (iii) private
mortgage-backed securities backed by first lien mortgage loans
secured by one- to four-family residential properties or
participations therein. If so specified in the related Terms
Agreement, one or more elections may be made to treat the assets of
each Trust Fund as a real estate mortgage investment conduit (each,
a “REMIC”) for federal income tax purposes.
Whenever the Company determines to make an
offering of Certificates (each, a “Certificate
Offering”) pursuant to this underwriting agreement ( the
“Agreement”) through you, it will enter into an
agreement (the “Terms Agreement”) providing for the
sale of specified Classes of Offered Certificates (as defined
below) to, and the purchase and public offering thereof by, you and
such other underwriters, if any, selected by you as have authorized
you to enter into such Terms Agreement on their behalf (the
underwriters in any such Terms Agreement being referred to herein
as “Underwriters,” which term shall include you whether
acting alone in the sale of any Series of Certificates or as a
member of an underwriting syndicate). Each such Certificate
Offering 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 14 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 (the
“Base Prospectus”), as such Base 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 (such prospectus supplement, including
such incorporated documents and any information that is deemed
retroactively to be a part of the Registration Statement pursuant
to Rule 430A under the Act, in the form first filed after the date
of the related Terms Agreement pursuant to Rule 424(b) and that
discloses the public offering price and other final terms of the
Offered Certificates, 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 Base 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 date of the Base Prospectus or the 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 at each Time of Sale, 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 hereof), 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 (including for
these purposes any portion of the Applicable Static Pool
Information (as defined in Section 8(b)(i)) deemed not part of the
Registration Statement on account of Item 1105(d) of Regulation AB
under the Act), at the time it became effective and at each Time of
Sale, 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, in light of the
circumstances under which they were made, not misleading; such
Prospectus (including for these purposes any portion of the
Applicable Static Pool Information (as defined in Section 8(b)(i))
deemed not part of such Prospectus on account of Item 1105(d) of
Regulation AB under the Act), on the date of any filing pursuant to
Rule 424(b) and on the related 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
any 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 any Underwriter Information.
Unless otherwise specified in the related Terms Agreement,
“Underwriter Information” shall mean any information
contained in or omitted from the portions of such Prospectus (or
any amendment or supplement thereto) set forth in the first
sentence of the last paragraph of the cover page thereof and the
second sentence of the first paragraph and the first sentence of
the second paragraph, in each case, under the caption
“Underwriting” therein. In addition, the related
Initial Issuer Free Writing Prospectus (as defined in Section
8(b)(i), as amended or supplemented by any Corrected Issuer Free
Writing Prospectus (as defined in Section 8(l)(i)), will not
contain any untrue statement of a material fact or omit 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, in either case at the Time of Sale (as defined in
Section 8(f)) to the applicable investor; provided
however , that no representation is made as to the effect of
the omission from any Issuer Free Writing Prospectus of any
information of the type specified in Exhibit B hereto as
“Supplemental Information”.
(c) (i) At the time of the filing of the
Registration Statement and (ii) at the date of the Terms Agreement,
the Company was not and is not an “ineligible issuer,”
as defined in Rule 405 under the Act, including (x) the Company or
any other subsidiary in the preceding three years not having been
convicted of a felony or misdemeanor or having been made the
subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company in the preceding three
years not having been the subject of a bankruptcy petition or
insolvency or similar proceeding, not having had a registration
statement be the subject of a proceeding under Section 8 of the Act
and not being the subject of a proceeding under Section 8A of the
Act, all as described in Rule 405.
(d) Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Offered Certificates or until any
earlier date that the Company notified or notifies the Underwriter
as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information then contained in the Registration Statement.
If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or
would conflict with the information then contained in the
Registration Statement or included or would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at that subsequent time,
not misleading, (i) the Company has promptly notified or will
promptly notify the Underwriter and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information
furnished to the Company by any Underwriter specifically for use in
the preparation thereof.
(e) The Offered 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.
(f) Neither the issuance nor sale of the Offered
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.
(g) This Agreement and the related Terms Agreement
have been duly authorized, executed and delivered by the
Company.
(h) 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 14 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
Andrews Kurth LLP, Dallas, Texas, at 10:00 A.M., Dallas time, on
the Closing Date specified in the related Terms Agreement, which
date and time may be postponed by agreement between you and the
Company (such date and time being herein called the “Closing
Date”). Delivery of such Offered Certificates shall be made
to you for the respective accounts of the Underwriters against
payment of the Purchase Price thereof to or upon the order of the
Company by wire transfer in federal or other immediately available
funds or by check payable in federal funds, as the Company shall
specify no later than five full business days prior to such Closing
Date. Unless delivery is made through the facilities of The
Depository Trust Company, the Offered Certificates shall be
registered in such names and in such authorized denominations as
you may request not less than two full business days in advance of
each Closing Date.
The Company agrees to notify you at least two
business days before each Closing Date of the exact principal
balance evidenced by the Offered Certificates and to have such
Offered Certificates available for inspection, checking and
packaging in Dallas, Texas, no later than 12:00 noon on the
business day prior to such Closing Date.
4.
Offerings by the
Underwriters . It is
understood that each Underwriter proposes to offer and/or solicit
offers for the Certificates to be purchased by it for sale to the
public as set forth in the related Prospectus and each Underwriter
agrees that all such offers, solicitations and sales by it shall be
made in compliance with all applicable laws and regulations. In
connection with such offering(s), each Underwriter agrees to
provide the Company with information related to the offer and sale
of the Certificates that is reasonably requested by the Company,
from time to time (but not in excess of three years from the
applicable closing date), and necessary for the Company to comply
with its tax reporting obligations, including, without limitation,
the issue price of the Certificates.
Each Underwriter agrees that it will not sell or
transfer any Certificate or interest therein in the initial sale or
transfer of such Certificate by such Underwriter in an amount less
than the minimum denomination for such Certificate set forth in the
related Prospectus Supplement.
Each Underwriter further agrees that (i) if the
Prospectus is not delivered to an investor with the confirmation in
reliance on Rule 172, it will include in every confirmation sent
out the notice required by Rule 173 informing the investor that the
sale was made pursuant to the Registration Statement and that the
investor may request a copy of the Prospectus from such
Underwriter; (ii) if a paper copy of the Prospectus is requested by
an investor who receives a confirmation, such Underwriter shall
deliver a paper copy of such Prospectus to such investor without
charge; (iii) if an electronic copy of the Prospectus is delivered
by an Underwriter for any purpose, such copy shall be the same
electronic file containing the Prospectus in the identical form
transmitted electronically to such Underwriter by or on behalf of
the Company specifically for use by such Underwriter pursuant to
this Section 4; for example, if the Prospectus is delivered to an
Underwriter by or on behalf of the Company in a single electronic
file in portable document format (pdf), then such Underwriter will
deliver the electronic copy of the Prospectus in the same single
electronic file in pdf. Each Underwriter further agrees that (i) if
it delivers to an investor a pdf version of the Prospectus, upon
such Underwriter’s receipt of a request from the investor
within the period for which delivery of the Prospectus is required,
such Underwriter will promptly deliver or cause to be delivered to
the investor, without charge, a paper copy of the Prospectus and
(ii) it will provide to the Company any Underwriter Free Writing
Prospectuses, or portions thereof, which the Company is required to
file with the Commission in electronic format and will use
reasonable efforts to provide to the Company such Underwriter Free
Writing Prospectuses, or portions thereof, in either Microsoft
Word® or Microsoft Excel® format and not in a pdf, except
to the extent that the Company, in its sole discretion, waives such
requirement.
5.
Agreements
. The Company agrees with each
Underwriter that:
(a) The Company has caused or will cause the
Prospectus relating to the Offered Certificates to be filed
pursuant to Rule 424 under the Act and will promptly advise you
when such Prospectus 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 the Prospectus
has been filed, (ii) of any request by the Commission for any
amendment of such Registration Statement or the 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) 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 commercially reasonable efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) 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 notify the Underwriters of such event and
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.
(c) 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.
(d) 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.
(e) 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.
(f) 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, 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, and any
Blue Sky Survey and Legal Investment Survey, (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 the final Prospectus and all
amendments and supplements thereto and all documents incorporated
therein and for expenses incurred for preparing, printing and
distributing any Issuer Free Writing Prospectus to investors or
prospective investors, (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. It is understood that, except as provided in Section 7 or
Section 8(t) hereof or in the applicable Terms Agreement, each
Underwriter will pay all of its own expenses in connection with the
transactions contemplated by this Agreement, including (i) the fees
of any counsel to such Underwriter, (ii) any due diligence expenses
incurred by such Underwriter, (iii) any transfer taxes on resale of
any of the Certificates by it, (iv) any advertising expenses
connected with any offers that it may make, (v) any expenses
incurred in connection with the preparation and delivery of any
Underwriter Free Writing Prospectus and the filing of any such
Underwriter Free Writing Prospectus, if required to be filed by the
Underwriter with the Commission, and (vi) the expenses of Deloitte
& Touche LLP under Section 8(r) hereof.
(g) The Company will (i) prepare and file all
operative documents with respect to the Offered Certificates that
are required to be filed under Regulation AB, including those
relating to any credit enhancement and derivatives, on a Form 8-K
no later than 15 days after the related Closing Date, (ii) prepare
and file the report required by Item 6.05 of Form 8-K within four
business dates after the Closing Date if any material pool
characteristic in the final pool at the Closing Date varies by more
than 5% from the description in the Prospectus, (iii) comply with
required Form 8-K reporting requirements with respect to any
prefunding account and (iv) if static pool information required
with respect to the Offered Certificates is delivered via website,
comply with Regulation AB in all respects, including the
requirement to maintain the information and keep records for five
years. The Underwriter will provide commercially reasonable
assistance to the Company in connection with the calculation of the
significance percentage of any credit enhancement, derivative
instrument or other support mechanism (to be calculated over the
expected life of such credit enhancement, derivative instrument or
other support mechanism) with respect to the Offered Certificates
for purposes of Items 1114 and 1115 of Regulation AB under the
Act.
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 by the Commission.
(b) Andrews Kurth LLP, counsel for the Company,
shall have furnished to you an opinion addressed to the
Underwriters, dated the related Closing Date, to the effect
that:
(i) this Agreement and the related Terms Agreement
have been duly executed and delivered by the Company under the laws
of the State of New York;
(ii) the related Pooling and Servicing Agreement has
been duly executed and delivered by the Company under the laws of
the State of New York and is a legal, valid and binding agreement
of the Company enforceable against the Company in accordance with
its terms;
(iii) the Offered Certificates, when duly executed and
countersigned by the Trustee in accordance with the related Pooling
and Servicing Agreement, will be validly issued and outstanding and
entitled to the benefits of such Pooling and Servicing
Agreement;
(iv) the related Pooling and Servicing Agreement is
not required to be qualified under the Trust Indenture Act of 1939,
as amended, and the trust created thereunder is not required to be
registered under the Investment Company Act of 1940, as
amended;
(v) such counsel confirms that the related
Registration Statement is effective under the Act and, to the best
of such counsel’s knowledge, no stop order with respect
thereto has been issued, and no proceeding for that purpose has
been instituted or threatened by the Commission; such Registration
Statement (except the financial statements and schedules and other
financial and statistical data included therein and the documents
incorporated by reference therein, as to which such counsel need
express no view), at the time it became effective, 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 or incorporated by reference 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 or incorporated by reference 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) Each Prospectus, as of the date thereof (with
the exception of any information incorporated by reference therein
and any numerical, financial, statistical and quantitative data
included therein, as to which such counsel need express no view),
appeared on its face to be appropriately responsive in all material
respects to the requirements of the Act, and the rules and
regulations thereunder applicable thereto as of the relevant
date;
(vii) 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;
(viii) 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;
(ix) assuming compliance with all provisions of the
related Pooling and Servicing Agreement, for federal income tax
purposes, (A) if any election is made to treat the assets of the
Trust Fund as a REMIC: the related Trust Fund (and any specified
subgrouping therein) will qualify as a REMIC pursuant to Section
860D of the Internal Revenue Code of 1986, as amended (the
“Code”), each Class of Certificates of the related
Series, other than the related Residual Class or Classes, will
constitute a class of “regular interests” in the
related REMIC within the meaning of the Code, and each Class of
such Certificates specified in the related Prospectus as a Class of
Residual Certificates will constitute the “residual
interest” in the related REMIC within the meaning of the
Code; and (B) if no such REMIC election is made: the Trust Fund
will be treated as a “grantor trust”; and
(x) 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) Andrews Kurth LLP, counsel for the Company,
shall have furnished to you an opinion addressed to the
Underwriters, dated the related Closing Date, to the effect
that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware, with corporate power to own its
properties, to conduct its business as described in the related
Prospectus and to enter into and perform its obligations under this
Agreement, the related Terms Agreement, the related Pooling and
Servicing Agreement and the Certificates of the related
Series;
(ii) the Company has full power and authority to sell
the related Mortgage Loans as contemplated herein and in the
related Pooling and Servicing Agreement;
(iii) this Agreement, the related Terms Agreement and
the related Pooling and Servicing Agreement have been duly
authorized, executed and delivered by the Company under the laws of
the State of Delaware; each of the related Mortgage Loan Purchase
Agreement and Pooling and Servicing Agreement constitutes the
legal, valid and binding agreement of each of the Company and First
Horizon Home Loan Corporation, enforceable against each of the
Company and First Horizon Home Loan Corporation in accordance with
its terms;
(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 (A) asserting the invalidity of this Agreement, the
related Terms Agreement, the related Pooling and Servicing
Agreement or the related Certificates, (B) 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 (C) which might materially and adversely
affect the performance by the Company of its obligations under, or
the validity or enforceability of, this Agreement, such Terms
Agreement, such Pooling and Servicing Agreement or the related
Certificates.
In rendering his or her opinion such counsel may
rely as to matters of fact, to the extent deemed proper and as
stated therein, on certificates of responsible officers of the
Company or public officials. In addition, such opinion may be
qualified as an opinion only on the general corporation laws of the
State of Delaware.
(d) In-house counsel for First Horizon Home Loan
Corporation (or its ultimate parent) shall have furnished to you an
opinion addressed to the Underwriters, dated the related Closing
Date, to the effect that:
(i) First Horizon Home Loan Corporation has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Kansas, with corporate
power to own its properties, to conduct its business as described
in the related Prospectus and to enter into and perform its
obligations under this Agreement, the related Terms Agreement, the
related Pooling and Servicing Agreement and the Certificates of the
related Series;
(ii) First Horizon Home Loan Corporation has full
power and authority to sell and master service the related Mortgage
Loans as contemplated herein and in the related Pooling and
Servicing Agreement;
(iii) this Agreement, the related Terms Agreement and
the related Pooling and Servicing Agreement have been duly
authorized, executed and delivered by First Horizon Home Loan
Corporation under the law of the State of Kansas;
(iv) the issuance and sale of the Offered
Certificates have been duly authorized by First Horizon Home Loan
Corporation;
(v) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by First Horizon Home Loan Corporation of the
transactions contemplated herein or in the related Pooling and
Servicing Agreement, except such as may be required under the blue
sky laws of any jurisdiction and such other approvals as have been
obtained;
(vi) neither the issuance of the Certificates of the
related Series nor delivery of the related Offered Certificates,
nor the consummation of any other of the transactions contemplated
in this Agreement, the related Terms Agreement or the related
Pooling and Servicing Agreement, nor the fulfillment of the terms
of the related Certificates, the related Pooling and Servicing
Agreement, this Agreement or the related Terms Agreement will
conflict with or violate any term or provision of the articles of
incorporation or by-laws of First Horizon Home Loan Corporation or
any statute, order or regulation applicable to First Horizon Home
Loan Corporation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over First Horizon
Home Loan Corporation and will not conflict with, result in a
breach or violation or the acceleration of or constitute a default
under the terms of any indenture or other agreement or instrument
known to such counsel to which First Horizon Home Loan Corporation
is a party or by which it is bound, other than such conflicts,
breaches and violations or defaults which, individually or on a
cumulative basis, would not have a material adverse effect on First
Horizon Home Loan Corporation and its subsidiaries, taken as a
whole, or on the issuance and sale of the Certificates or the
consummation of the transactions contemplated hereby;
and
(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 (A) asserting the invalidity of this Agreement, the
related Terms Agreement, the related Pooling and Servicing
Agreement or the related Certificates, (B) 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 (C) 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 McKee Nelson 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
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