AMENDMENT NUMBER FOUR to the PURCHASE, WARRANTIES AND SERVICING AGREEMENT Dated as of September 1, 2003 among EMC MORTGAGE CORPORATION, as Purchaser and FIRST TENNESSEE MORTGAGE SERVICES, INC. as Servicer, FIRST HORIZON HOME LOAN CORPORATION, as Seller
AMENDMENT
NUMBER FOUR
to
the
Dated
as
of September 1, 2003
among
EMC
MORTGAGE CORPORATION,
as
Purchaser
and
FIRST
TENNESSEE MORTGAGE SERVICES, INC.
as
Servicer,
FIRST
HORIZON HOME LOAN CORPORATION,
as
Seller
This
AMENDMENT NUMBER FOUR (this “Amendment”) is made and entered into this
22nd
day of
December, 2005, by and among EMC Mortgage Corporation, a Delaware corporation,
as purchaser (the “Purchaser”) and First Tennessee Mortgage Services, Inc., as
servicer (the “Servicer”) and First Horizon Home Loan Corporation (the “Seller”,
and together with the Servicer, the “Company”) in connection with the Purchase,
Warranties and Servicing Agreement, dated as of September 1, 2003, between
the
above mentioned parties (the “Agreement”).
RECITALS
WHEREAS,
the
parties hereto have entered into the Agreement;
WHEREAS,
the Agreement provides that the parties thereto may enter into an amendment
to
the Agreement;
WHEREAS,
the parties hereto desire to amend the Agreement as set forth in this Amendment;
and
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1. Capitalized
terms used herein and not defined herein shall have the meanings assigned to
such terms in the Agreement.
2. Article
I
of the Agreement is hereby amended effective as of the date hereof by adding
the
following definitions to Section 1.01:
Commission
or SEC:
The
Securities and Exchange Commission.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Pass-Through
Transfer:
Any
transaction involving either (1) a sale or other transfer of some or all of
the
Mortgage Loans directly or indirectly to an issuing entity in connection with
an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Qualified
Correspondent:
Any
Person from which the Company purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Company and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Company, in accordance with underwriting guidelines designated by the
Company (“Designated Guidelines”) or guidelines that do not vary materially from
such Designated Guidelines; (ii) such Mortgage Loans were in fact underwritten
as described in clause (i) above and were acquired by the Company within 180
days after origination; (iii) either (x) the Designated Guidelines were, at
the
time such Mortgage Loans were originated, used by the Company in origination
of
mortgage loans of the same type as the Mortgage Loans for the Company’s own
account or (y) the Designated Guidelines were, at the time such Mortgage Loans
were underwritten, designated by the Company on a consistent basis for use
by
lenders in originating mortgage loans to be purchased by the Company; and (iv)
the Company employed, at the time such Mortgage Loans were acquired by the
Company, pre-purchase or post-purchase quality assurance procedures (which
may
involve, among other things, review of a sample of mortgage loans purchased
during a particular time period or through particular channels) designed to
ensure that Persons from which it purchased mortgage loans properly applied
the
underwriting criteria designated by the Company.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as amended from time to time, and subject to such
clarification and interpretation as have been provided by the Commission in
the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission,
or
as may be provided by the Commission or its staff from time to
time.
Securities
Act:
The
Securities Act of 1933, as amended.
Servicing
Criteria:
As of
any date of determination, the “servicing criteria” set forth in Item 1122(d) of
Regulation AB, or any amendments thereto, a summary of the requirements of
which
as of the date hereof is attached hereto as Exhibit M for convenience of
reference only. In the event of a conflict or inconsistency between the terms
of
Exhibit M and the text of Item 1122(d) of Regulation AB, the text of Item
1122(d) of Regulation AB shall control.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Company or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Company under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Company.
3. Article
III of the Agreement is hereby amended effective as of the date hereof by
revising Section 3.01(n) as follows (new text underlined):
(n) Company
has delivered to the Purchaser financial statements of its parent, for its
last
two complete fiscal years. All such financial information fairly presents the
pertinent results of operations and financial position for the period identified
and has been prepared in accordance with GAAP consistently applied throughout
the periods involved, except as set forth in the notes thereto. There has been
no change in the servicing
policies and procedures,
business, operations, financial condition, properties or assets of the Company
since the date of the Company’s financial information that would have a material
adverse effect on its ability to perform its obligations under this
Agreement;
4. Article
III of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 3.01(p):
(p) As
of the
date of each Pass-Through Transfer, and except as has been otherwise disclosed
to the Purchaser: (1) no default or servicing related performance trigger has
occurred as to any other securitization due to any act or failure to act of
the
Company; (2) no material noncompliance with applicable servicing criteria as
to
any other securitization has been disclosed or reported by the Company; (3)
the
Company has not been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; (4) no material changes to the Company’s
servicing policies and procedures for similar loans has occurred in the
preceding three years; (5) there are no aspects of the Company’s financial
condition that could have a material adverse impact on the performance by the
Company of its obligations hereunder; (6) there are no legal proceedings
pending, or known to be contemplated by governmental authorities, against the
Company that could be material to investors in the securities issued in such
Pass-Through Transfer; and (7) there are no affiliations, relationships or
transactions relating to the Company of a type that are described under Item
1119 of Regulation AB.
5. Article
III of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 3.01(q):
(q) If
so
requested by the Purchaser or any Depositor on any date, the Company shall,
within five Business Days following such request, confirm in writing the
accuracy of the representations and warranties set forth in Section 3.01(p)
of
this Section or, if any such representation and warranty is not accurate as
of
the date of such request, provide reasonably adequate disclosure of the
pertinent facts, in writing, to the requesting party.
6. Article
III of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 3.01(r):
(r) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Company shall (or shall cause each Subservicer
and
Third-Party Originator to) (i) notify the Purchaser and any Depositor in writing
of (A) any material litigation or governmental proceedings pending against
the
Company, any Subservicer or any Third-Party Originator and (B) any affiliations
or relationships that develop following the closing date of a Pass-Through
Transfer between the Company, any Subservicer or any Third-Party Originator
and
any of the parties specified in clause (7) of paragraph (p) of this Section
(and
any other parties identified in writing by the requesting party) with respect
to
such Pass-Through Transfer, and (ii) provide to the Purchaser and any Depositor
a description of such proceedings, affiliations or relationships.
7. Article
III of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 3.01(s):
(s) As
a
condition to the succession to the Company or any Subservicer as servicer or
subservicer under this Agreement or any Reconstitution Agreement by any Person
(i) into which the Company or such Subservicer may be merged or consolidated,
or
(ii) which may be appointed as a successor to the Company or any Subservicer,
the Company shall provide to the Purchaser and any Depositor, at least [15]
calendar days prior to the effective date of such succession or appointment,
(x)
written notice to the Purchaser and any Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably satisfactory
to the Purchaser and such Depositor, all information reasonably requested by
the
Purchaser or any Depositor in order to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to any class of asset-backed
securities.
8. Article
IV of the Agreement is hereby amended effective as of the date hereof by
revising the first paragraph of Section 4.03 by adding the following after
the
first sentence:
In
determining the delinquency status of any Mortgage Loan, the Company will use
delinquency recognition policies as described to and approved by the Purchaser,
and shall revise these policies as requested by the Purchaser from time to
time.
9. Article
V
of the Agreement is hereby amended effective as of the date hereof by deleting
Section 5.02 in its entirety and replacing it with the following:
Section
5.02 Statements
to the Purchaser.
The
Company shall furnish to Purchaser an individual loan accounting report, as
of
the last Business Day of each month, in the Company's assigned loan number
order
to document Mortgage Loan payment activity on an individual Mortgage Loan basis.
With respect to each month, the corresponding individual loan accounting report
shall be received by the Purchaser no later than the fifth Business Day of
the
following month on a disk or tape or other computer-readable format in such
format as may be mutually agreed upon by both Purchaser and Company, and shall
contain the following:
(i) with
respect to each Mortgage Loan and each Monthly Payment, the amount of such
remittance allocable to principal (including a separate breakdown of any
Principal Prepayment, including the date of such prepayment, and any prepayment
penalties or premiums, along with a detailed report of interest on principal
prepayment amounts remitted in accordance with Section 4.04);
(ii) reserved;
(iii) reserved;
(iv) the
Stated Principal Balance of each Mortgage Loan and the aggregate Stated
Principal Balance of all Mortgage Loans as of the first day of the distribution
period and the last day of the distribution period;
(v) with
respect to each Mortgage Loan, the current Mortgage Interest Rate;
(vi) with
respect to each Mortgage Loan, the aggregate amount of any Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds and REO Disposition Proceeds
received during the prior distribution period;
(vii) reserved;
(viii) reserved;
(ix) the
number of Mortgage Loans as of the first day of the distribution period and
the
last day of the distribution period;
(x) with
respect to each Mortgage Loan, the Stated Principal Balance of each Mortgage
Loan (a) delinquent as grouped in the following intervals through final
liquidation of such Mortgage Loan: 30 to 59 days, 60 to 89 days, 90 days or
more; (b) as to which foreclosure has commenced; and (c) as to which REO
Property has been acquired;
(xi) with
respect to each Mortgage Loan, the amount and severity of any realized loss
following liquidation of such Mortgage Loan;
(xii) with
respect to each Mortgage Loan, and in the aggregate for all Mortgage Loans,
the
amount of any Monthly Advances made by the Company during the prior distribution
period;
(xiii) reserved;
(xiv) reserved;
(xv) reserved;
(xvi) with
respect to any Mortgage Loan, a description of any material modifications,
extensions or waivers to the terms, fees, penalties or payments of such Mortgage
Loan during the prior distribution period or that have cumulatively become
material over time;
(xvii) reserved;
(xviii) reserved;
(xix) with
respect to each Mortgage Loan, the Stated Principal Balance of any Mortgage
Loan
that has been repurchased by the Company in accordance with Section 3.03
herein;
(xx)
any
other information required by Purchaser or master servicer necessary for
compliance with Item 1121 of Regulation AB.
In
addition, the Company shall provide to the Purchaser such other information
known or available to the Company that is necessary in order to provide the
distribution and pool performance information as required under Item 1121 of
Regulation AB, as amended from time to time, as determined by the Purchaser
in
its sole reasonable discretion. The Company shall also provide a trial balance,
sorted in Purchaser's assigned loan number order, in the form of Exhibit E
hereto, and Exhibit F with respect to defaulted mortgage loans, with each such
report.
The
Company shall prepare and file any and all information statements or other
filings required to be delivered to any governmental taxing authority or to
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the Company shall provide
Purchaser with such information concerning the Mortgage Loans as is necessary
for Purchaser to prepare its federal income tax return as Purchaser may
reasonably request from time to time.
10. Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.04 in its entirety and replacing it with the
following:
Section
6.04 Annual
Statement as to Compliance; Annual Certification.
(a) The
Company will deliver to the Purchaser, to deliver to the Purchaser or its
designee on or before March 1 of each calendar year beginning in 2006, but
in no
event later than March 15th
of each
calendar year beginning in 2006, an Officers’ Certificate acceptable to the
Purchaser (an “Annual Statement of Compliance”) stating, as to each signatory
thereof, that (i) a review of the activities of the Company during the preceding
calendar year and of performance under this Agreement or other applicable
servicing agreement has been made under such officers’ supervision and (ii) to
the best of such officers’ knowledge, based on such review, the Company has
fulfilled all of its obligations under this Agreement or other applicable
servicing agreement in all material respects throughout such year, or, if there
has been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and status
of
cure provisions thereof. Such Annual Statement of Compliance shall contain
no
restrictions or limitations on its use. Copies of such statement shall be
provided by the Company to the Purchaser upon request and by the Purchaser
to
any Person identified as a prospective purchaser of the Mortgage Loans. In
the
event that the Company has delegated any servicing responsibilities with respect
to the Mortgage Loans to a Subservicer, the Company shall deliver an officer’s
certificate of the Subservicer as described above as to each Subservicer as
and
when required with respect to the Company.
(b) With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
by on or before March 1 of each calendar year beginning in 2006, but in no
event
later than March 15th
of each
calendar year beginning in 2006, an officer of the Company shall execute and
deliver an Officers’ Certificate (an “Annual Certification”) to the Purchaser,
any master servicer which is master servicing loans in connection with such
transaction (a “Master Servicer”) and any related depositor (a “Depositor”) for
the benefit of each such entity and such entity’s affiliates and the officers,
directors and agents of any such entity and such entity’s affiliates, in the
form attached hereto as Exhibit L. In the event that the Company has delegated
any servicing responsibilities with respect to the Mortgage Loans to a
Subservicer, the Company shall deliver an officers’ certificate of the
Subservicer as described above as to each Subservicer as and when required
with
respect to the Company.
Failure
of the Company to timely comply with this Section 6.04 shall be deemed an Event
of Default, automatically, without notice and without any cure period, and
Purchaser may, in addition to whatever rights the Purchaser may have under
Sections 3.03 and 8.01 and at law or equity or to damages, including injunctive
relief and specific performance, terminate all the rights and obligations of
the
Company under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Company for the same, as provided in Section
9.01. Such termination shall be considered with cause pursuant to Section 10.01
of this Agreement. This paragraph shall supercede any other provision in this
Agreement or any other agreement to the contrary.
11. Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.05 in its entirety and replacing it with the
following:
Section
6.05 Annual
Independent Certified Public Accountants' Servicing Report.
The
Company, at its expense and on or before March 1 of each calendar year beginning
in 2006, but in no event later than March 15th
of each
calendar year beginning in 2006, shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a report (a “USAP Report”) to the Purchaser acceptable to
the Purchaser to the effect that such firm has examined certain documents and
records relating to the Company's servicing of mortgage loans of the same type
as the Mortgage Loans pursuant to servicing agreements substantially similar
to
this Agreement, which agreements may include this Agreement, and that, on the
basis of such an examination, conducted substantially in the uniform single
audit program for mortgage bankers, such firm is of the opinion that the
Company's servicing has been conducted in compliance with the agreements
examined pursuant to this Section 6.05 during the preceding calendar year,
except for (i) such exceptions as such firm shall believe to be immaterial,
and
(ii) such other exceptions as shall be set forth in such USAP Report. Such
USAP
Report shall contain no restrictions or limitations on its use. Copies of such
USAP Report shall be provided by the Company to the Purchaser. In addition,
on
an annual basis, Company shall provide Purchaser with copies of its audited
financial statements.
In
the
event that the Company has delegated any servicing responsibilities with respect
to the Mortgage Loans to a Subservicer, the Company shall provide a USAP report
of the Subservicer as described above as to each Subservicer as and when
required with respect to the Company.
Notwithstanding
the foregoing, the Company’s obligation to deliver a USAP Report under this
Section, as to the Company or any Subservicer, as to any calendar year,
beginning with the report required in February 2007, shall be satisfied if
an
Assessment of Compliance and Attestation Report is delivered in compliance
with
Section 6.07 for such calendar year with respect to that entity.
Failure
of the Company to timely comply with this Section 6.05 shall be deemed an Event
of Default, automatically, without notice and without any cure period, and
Purchaser may, in addition to whatever rights the Purchaser may have under
Sections 3.03 and 8.01 and at law or equity or to damages, including injunctive
relief and specific performance, terminate all the rights and obligations of
the
Company under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Company for the same, as provided in Section
9.01. Such termination shall be considered with cause pursuant to Section 10.01
of this Agreement. This paragraph shall supercede any other provision in this
Agreement or any other agreement to the contrary.
12. Article
VI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 6.07:
Section
6.07 Assessment
of Compliance with Servicing Criteria.
On
and
after January 1, 2006, the Company shall service and administer, and shall
cause
each subservicer to servicer or administer, the Mortgage Loans in accordance
with all applicable requirements of the Servicing Criteria.
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
the Company shall deliver to the Purchaser or its designee on or before February
28 of each calendar year beginning in 2007, a report (an “Assessment of
Compliance”) reasonably satisfactory to the Purchaser regarding the Company’s
assessment of compliance with the Servicing Criteria during the preceding
calendar year as required by Rules 13a-18 and 15d-18 of the Exchange Act and
Item 1122 of Regulation AB, which as of the date hereof, require a report by
an
authorized officer of the Company that contains the following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Company;
(b) A
statement by such officer that such officer used the Servicing Criteria to
assess compliance with the Servicing Criteria applicable to the
Company;
(c) An
assessment by such officer of the Company’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Company, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Company’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Company, which statement shall be based on the activities it performs with
respect to asset-backed securities transactions taken as a whole involving
the
Company, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on a
certification substantially in the form of Exhibit O hereto delivered to the
Purchaser concurrently with the execution of this Agreement.
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
on or before February 28 of each calendar year beginning in 2007, the Company
shall furnish to the Purchaser or its designee a report (an “Attestation
Report”) by a registered public accounting firm that attests to, and reports on,
the Assessment of Compliance made by the Company, as required by Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122(b) of Regulation AB, which
Attestation Report must be made in accordance with standards for attestation
reports issued or adopted by the Public Company Accounting Oversight Board.
The
Company shall cause each Subservicer, and each Subcontractor determined by
the
Company pursuant to Section 11.19 to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Purchaser and any Depositor an assessment of compliance and accountants’
attestation as and when provided in Sections 6.07.
If
the
Company cannot deliver the related Assessment of Compliance or Attestation
Report by February 28th of such year, the Purchaser, at its sole option, may
permit a cure period for the Company to deliver such Assessment of Compliance
or
Attestation Report, but in no event later than March 10th of such
year.
Failure
of the Company to timely comply with this Section 6.07 shall be deemed an Event
of Default, automatically, without notice and without any cure period, and
Purchaser may, in addition to whatever rights the Purchaser may have under
Sections 3.03 and 8.01 and at law or equity or to damages, including injunctive
relief and specific performance, terminate all the rights and obligations of
the
Company under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Company for the same, as provided in Section
9.01. Such termination shall be considered with cause pursuant to Section 10.01
of this Agreement. This paragraph shall supercede any other provision in this
Agreement or any other agreement to the contrary.
13. Article
VI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 6.08:
Section
6.08 Intent
of the Parties; Reasonableness.
The
Purchaser and the Company acknowledge and agree that a purpose of Sections
3.01(p), 5.02, 6.04, 6.05, 6.07 and 11.18 of this Agreement is to facilitate
compliance by the Purchaser and any Depositor with the provisions of Regulation
AB and related rules and regulations of the Commission. Neither the Purchaser
nor any Depositor shall exercise its right to request delivery of information
or
other performance under these provisions other than in good faith, or for
purposes other than compliance with the Securities Act, the Exchange Act and
the
rules and regulations of the Commission thereunder. The Company acknowledges
that interpretations of the requirements of Regulation AB may change over time,
whether due to interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets, advice
of
counsel, or otherwise, and agrees to comply with requests made by the Purchaser
or any Depositor in good faith for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Pass-Through Transfer, the Company shall cooperate fully
with the Purchaser to deliver to the Purchaser (including any of its assignees
or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or any Depositor to permit the Purchaser or
such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Company, any Subservicer, any Third-Party Originator
and the Mortgage Loans, or the servicing of the Mortgage Loans, reasonably
believed by the Purchaser or any Depositor to be necessary in order to effect
such compliance.
14. Article
XI of the Agreement is hereby amended effective as of the date hereof by
restating Section 11.18 in its entirety as follows:
Section
11.18. Cooperation
of Company with a Reconstitution.
The
Company and the Purchaser agree that with respect to some or all of the Mortgage
Loans, on or after the related Closing Date, on one or more dates (each a
"Reconstitution Date") at the Purchaser's sole option and with Purchaser’s best
efforts to provide notice to the Company fifteen (15) days prior to the
Reconstitution Date, the Purchaser may effect one or more sales, but in no
event
greater than three (3) per pool of Mortgage Loans sold under the related Term
Sheet (each, a "Reconstitution") of some or all of the Mortgage Loans then
subject to this Agreement, without recourse, to:
(a) one
or
more third party purchasers in one or more in whole loan transfers (each, a
"Whole Loan Transfer"); or
(b) one
or
more trusts or other entities to be formed as part of one or more Pass-Through
Transfers.
The
Company agrees to execute in connection with any agreements among the Purchaser,
the Company, and any servicer in connection with a Whole Loan Transfer, an
Assignment, Assumption and Recognition Agreement substantially in the form
of
Exhibit D hereto, or, at Purchaser’s request, a seller's warranties and
servicing agreement or a participation and servicing agreement or similar
agreement in form and substance reasonably acceptable to the parties, and in
connection with a Pass-Through Transfer, a pooling and servicing agreement
in
form and substance reasonably acceptable to the parties, (collectively the
agreements referred to herein are designated, the “Reconstitution Agreements”).
It is understood that any such Reconstitution Agreements will not contain any
greater obligations on the part of Company than are contained in this Agreement.
Notwithstanding anything to the contrary in this Section 11.18, the Company
agrees that it is required to perform the obligations described in Exhibit
K
hereto.
With
respect to each Whole Loan Transfer and each Pass-Through Transfer entered
into
by the Purchaser, the Company agrees (1) to cooperate fully with the Purchaser
and any prospective purchaser with respect to all reasonable requests and due
diligence procedures; (2) to execute, deliver and perform all Reconstitution
Agreements required by the Purchaser; (3) to restate the representations and
warranties set forth in this Agreement as of the settlement or closing date
in
connection with such Reconstitution (each, a "Reconstitution Date").
In
addition, the Company shall provide to such servicer or issuer, as the case
may
be, and any other participants in such Reconstitution:
(i) any
and
all information and appropriate verification of information which may be
reasonably available to the Company, whether through letters of its auditors
and
counsel or otherwise, as the Purchaser or any such other participant shall
request upon reasonable demand;
(ii) such
additional representations, warranties, covenants, opinions of counsel, letters
from auditors, and certificates of public officials or officers of the Company
as are reasonably agreed upon by the Company and the Purchaser or any such
other
participant;
(iii) within
5
Business Days after request by the Purchaser, the information with respect
to
the Company (as originator) and each Third-Party Originator of the Mortgage
Loans as required under Item 1110(a) and (b) of Regulation AB, a summary of
the
requirements of which has of the date hereof is attached hereto as Exhibit
N for
convenience of reference only, as determined by Purchaser in its sole reasonable
discretion. If requested by the Purchaser, this will include information about
the applicable credit-granting or underwriting criteria;
(iv) within
5
Business Days after request by the Purchaser, to the extent that is required
Regulation AB, the Company shall provide, to the extent that is reasonably
available to the Company (and not otherwise available to the Purchaser) without
unreasonable burden, cost or expense (or, as applicable, cause each Third-Party
Originator to provide) Static Pool Information with respect to the mortgage
loans (of a similar type as the Mortgage Loans, as reasonably identified by
the
Purchaser as provided below) serviced by the Company or any Third-Party
Originator for a period of 120 days or more and originated by (i) the Company,
if the Company is an originator of Mortgage Loans (including as an acquirer
of
Mortgage Loans from a Qualified Correspondent), and/or (ii) each Third-Party
Originator in each case to the extent such mortgage loans were purchased from
the Company by the Purchaser. Such Static Pool Information shall be prepared
by
the Company (or Third-Party Originator) on the basis of its reasonable, good
faith interpretation of the requirements of Item 1105(a)(1)-(3) and (c) of
Regulation AB for such period of time the Company or Third-Party Origination
serviced such mortgage loans. To the extent that there is reasonably available
to the Company (or Third-Party Originator), without unreasonable effort or
expense Static Pool Information with respect to more than one mortgage loan
type, the Purchaser or any Depositor shall be entitled to specify whether some
or all of such information shall be provided pursuant to this paragraph. The
content of such Static Pool Information may be in the form customarily provided
by the Company, and need not be customized for the Purchaser or any Depositor.
Such Static Pool Information for each vintage origination year or prior
securitized pool, as applicable, shall be presented in increments no less
frequently than quarterly over the life of the mortgage loans included in the
vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of
the
prospectus or other offering document in which the Static Pool Information
is to
be included or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or the Depositor,
as
applicable. The
Purchaser agrees that it will cooperate with the Company and provide sufficient
and timely notice of any information requirement pertaining to a Securitization
Transaction. The Purchaser will make all reasonable efforts to contain
requests for information, reports or any other materials to items required
for
compliance with Regulation AB, and will refrain from requesting information
that
is not required for such compliance. The Purchaser further agrees to
provide the Company with Static Pool Information regarding the Mortgage Loans
to
the same extent that the Company is required to provide Static Pool Information
with respect to mortgage loans similar to the Mortgage Loans
hereunder. The
Company shall in good faith use its best efforts to supply the Static Pool
Information required hereunder; provided, however, that failure of the Company
to perform such obligations, after applying all good faith best efforts, shall
not result in a breach by the Company of the provisions of this
Agreement;
(v) within
5
Business Days after request by the Purchaser, information with respect to the
Company (as servicer) as required by Item 1108(b) and (c) of Regulation AB,
a
summary of the requirements of which as of the date hereof is attached hereto
as
Exhibit N for convenience of reference only, as determined by Purchaser in
its
sole reasonable discretion. In the event that the Company has delegated any
servicing responsibilities with respect to the Mortgage Loans to a Subservicer,
the Company shall provide the information required pursuant to this clause
with
respect to the Subservicer;
(vi) within
5
Business Days after request by the Purchaser,
(a)
information regarding any legal proceedings pending (or known to be
contemplated) against the Company (as originator and as servicer) and each
other
originator of the Mortgage Loans and each Subservicer as required by Item 1117
of Regulation AB, a summary of the requirements of which as of the date hereof
is attached hereto as Exhibit N for convenience of reference only, as determined
by Purchaser in its sole reasonable discretion,
(b)
information regarding affiliations with respect to the Company (as originator
and as servicer) and each other originator of the Mortgage Loans and each
Subservicer as required by Item 1119(a) of Regulation AB, a summary of the
requirements of which as of the date hereof is attached hereto as Exhibit N
for
convenience of reference only, as determined by Purchaser in its sole reasonable
discretion, and
(c)
information regarding relationships and transactions with respect to the Company
(as originator and as servicer) and each other originator of the Mortgage Loans
and each Subservicer as required by Item 1119(b) and (c) of Regulation AB,
a
summary of the requirements of which as of the date hereof is attached hereto
as
Exhibit N for convenience of reference only, as determined by Purchaser in
its
sole reasonable discretion; and
(vii) if
so
requested by the Purchaser, the Company shall provide (or, as applicable, cause
each Third-Party Originator to provide), at the expense of the Purchaser (to
the
extent of any additional incremental expense associated with delivery pursuant
to this Agreement), such statements and agreed-upon procedures letters of
certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Company’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, or to any financial information included in any
other disclosure provided under this Section 11.18, as the Purchaser or such
Depositor shall reasonably request. Such statements and letters shall be
addressed to and be for the benefit of such parties as the Purchaser or such
Depositor shall designate, which may include, by way of example, any Sponsor,
any Depositor and any broker dealer acting as underwriter, placement agent
or
initial purchaser with respect to a Pass-Through Transfer. Any such statement
or
letter may take the form of a standard, generally applicable document
accompanied by a reliance letter authorizing reliance by the addressees
designated by the Purchaser or such Depositor.
In
the
event of a conflict or inconsistency between the terms of Exhibit N and the
text
of the applicable Item of Regulation AB as cited above, the text of Regulation
AB, its adopting release and other public statements of the SEC shall
control.
The
Company shall indemnify the Purchaser, each affiliate of the Purchaser, and
each
of the following parties participating in a Pass-Through Transfer: each sponsor
and issuing entity; each Person responsible for the preparation, execution
or
filing of any report required to be filed with the Commission with respect
to
such Pass-Through Transfer, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Pass-Through Transfer; each broker dealer acting as underwriter, placement
agent
or initial purchaser, each Person who controls any of such parties or the
Depositor (within the meaning of Section 15 of the Securities Act and Section
20
of the Exchange Act); and the respective present and former directors, officers,
employees and agents of each of the foregoing and of the Depositor, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out
of
or based upon:
(i)(A)
any untrue statement of a material fact contained or alleged to be contained
in
any information, report, certification, accountants’ letter or other material
provided under this Section 11.18 by or on behalf of the Company, or provided
under this Section 11.18 by or on behalf of any Subservicer, Subcontractor
or
Third-Party Originator (collectively, the “Company Information”), or (B) the
omission or alleged omission to state in the Company Information a material
fact
required to be stated in the Company Information or necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading; provided, by way of clarification, that clause (B) of
this
paragraph shall be construed solely by reference to the Company Information
and
not to any other information communicated in connection with a sale or purchase
of securities, without regard to whether the Company Information or any portion
thereof is presented together with or separately from such other
information;
(ii)
any
failure by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Section 11.18,
including any failure by the Company to identify pursuant to Section 11.19
any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB; or
(iii)
any
breach by the Company of a representation or warranty set forth in Section
3.01
or in a writing furnished pursuant to Section 3.01(q) and made as of a date
prior to the closing date of the related Pass-Through Transfer, to the extent
that such breach is not cured by such closing date, or any breach by the Company
of a representation or warranty in a writing furnished pursuant to Section
3.01(q) to the extent made as of a date subsequent to such closing
date.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to, and serviced in accordance with the terms of, this Agreement and
the
related Term Sheet, and with respect thereto this Agreement and the related
Term
Sheet shall remain in full force and effect.
15. Article
XI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 11.19:
Section
11.19. Use
of
Subservicers and Subcontractors.
(a) The
Company shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Company as servicer under this Agreement
or any Reconstitution Agreement unless the Company complies with the provisions
of paragraph (b) of this Section. The Company shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Company as servicer under this Agreement or any
Reconstitution Agreement unless the Company complies with the provisions of
paragraph (d) of this Section.
(b) The
Company shall cause any Subservicer used by the Company (or by any Subservicer)
for the benefit of the Purchaser and any Depositor to comply with the provisions
of this Section and with Sections 3.01(p), 3.01(s), 6.04, 6.05, 6.07 and 11.18
of this Agreement to the same extent as if such Subservicer were the Company,
and to provide the information required with respect to such Subservicer under
Section 3.01(r) of this Agreement. The Company shall be responsible for
obtaining from each Subservicer and delivering to the Purchaser and any
Depositor any Annual Statement of Compliance required to be delivered by such
Subservicer under Section 6.04(a), any Assessment of Compliance and Attestation
Report required to be delivered by such Subservicer under Section 6.07 and
any
Annual Certification required under Section 6.04(b) as and when required to
be
delivered.
(c) The
Company shall promptly upon request provide to the Purchaser and any Depositor
(or any designee of the Depositor, such as a master servicer or administrator)
a
written description (in form and substance satisfactory to the Purchaser and
such Depositor) of the role and function of each Subcontractor utilized by
the
Company or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are “participating in
the servicing function” within the meaning of Item 1122 of Regulation AB, and
(iii) which elements of the Servicing Criteria will be addressed in assessments
of compliance provided by each Subcontractor identified pursuant to clause
(ii)
of this paragraph.
(d) As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Company shall cause any such Subcontractor used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 6.07 and 11.18 of this
Agreement to the same extent as if such Subcontractor were the Company. The
Company shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any Assessment of Compliance
and
Attestation Report required to be delivered by such Subcontractor under Section
6.07, in each case as and when required to be delivered.
16. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit L:
EXHIBIT
L
FORM
OF
COMPANY CERTIFICATION
I,
[identify certifying individual], certify to the [Trustee] [Seller] [Securities
Administrator] [Mortgage Loan Seller] [Purchaser] and [Master Servicer]
that:
1. Based
on
my knowledge, the information in the Annual Statement of Compliance, the [USAP
Report]* [Assessment of Compliance and Attestation Report]** and all servicing
reports, officer's certificates and other information provided by the Company
relating to the servicing of the Mortgage Loans taken as a whole, do not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading as of the date of this
certification;
2. Based
on
my knowledge, the information in these reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading as of the last day of the period
covered by such servicing reports.
3. Based
on
my knowledge, the servicing information required to be provided to the Master
Servicer under the Agreement is included in these reports.
4. I
am
responsible for reviewing the activities performed the Company under the
Agreement and based upon the review required under the Agreement, and except
as
disclosed in the Annual Statement of Compliance or the [USAP Report]*
[Assessment of Compliance and Attestation Report]**, the Company has fulfilled
its obligations under the Agreement.
5. [I
have
disclosed to the Master Servicer's certified public accountants all significant
deficiencies relating to the Company's compliance with the minimum servicing
standards in accordance with a review conduced in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set
forth
in the Agreement.]* [The Assessment of Compliance and Attestation Report of
the
Company have been delivered to the Purchaser as required under the Agreement.
Following is a list of all material instances of noncompliance described in
the
Attestation of Compliance and Attestation Report (if none, state
“none”):___________________________.]*
[COMPANY]
By:
Name:
Title:
Date:
|
*
|
To
be used if a USAP Report is being delivered under the
Agreement
|
|
**
|
To
be used if an Assessment of Compliance and Attestation Report is
being
delivered under the Agreement
|
17. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit M:
EXHIBIT
M
SUMMARY
OF REGULATION AB
SERVICING
CRITERIA
NOTE:
This Exhibit M is provided for convenience of reference only. In the event
of a
conflict or inconsistency between the terms of this Exhibit M and the text
of
Regulation AB, the text of Regulation AB, its adopting release and other public
statements of the SEC shall control.
Item
1122(d)
| (a) |
General
servicing considerations.
|
(1) Policies
and procedures are instituted to monitor any performance or other triggers
and
events of default in accordance with the transaction agreements.
(2) If
any
material servicing activities are outsourced to third parties, policies and
procedures are instituted to monitor the third party’s performance and
compliance with such servicing activities.
(3) Any
requirements in the transaction agreements to maintain a back-up servicer for
the mortgage loans are maintained.
(4) A
fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in
the
amount of coverage required by and otherwise in accordance with the terms of
the
transaction agreements.
| (b) |
Cash
collection and administration.
|
(1) Payments
on mortgage loans are deposited into the appropriate custodial bank accounts
and
related bank clearing accounts no more than two business days following receipt,
or such other number of days specified in the transaction
agreements.
(2) Disbursements
made via wire transfer on behalf of an obligor or
to an
investor are made only by authorized personnel.
(3) Advances
of funds or guarantees regarding collections, cash flows or distributions,
and
any interest or other fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
(4) The
related accounts for the transaction, such as cash reserve accounts or accounts
established as a form of overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the transaction
agreements.
(5) Each
custodial account is maintained at a federally insured depository institution
as
set forth in the transaction agreements. For purposes of this criterion,
“federally insured depository institution” with respect to a foreign financial
institution means a foreign financial institution that meets the requirements
of
Rule 13k-1(b)(1) of the Securities Exchange Act.
(6) Unissued
checks are safeguarded so as to prevent unauthorized access.
(7) Reconciliations
are prepared on a monthly basis for all asset-backed securities related bank
accounts, including custodial accounts and related bank clearing accounts.
These
reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and approved by someone
other than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are resolved within
90 calendar days of their original identification, or such other number of
days
specified in the transaction agreements.
| (c) |
Investor
remittances and reporting.
|
(1) Reports
to investors, including those to be filed with the Commission, are maintained
in
accordance with the transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared in accordance with
timeframes and other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in the transaction
agreements; (C) are filed with the Commission as required by its rules and
regulations; and (D) agree with investors’ or the trustee’s records as to the
total unpaid principal balance and number of mortgage loans serviced by the
Servicer.
(2) Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
(3) Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the transaction
agreements.
(4) Amounts
remitted to investors per the investor reports agree with cancelled checks,
or
other form of payment, or custodial bank statements.
| (d) |
Mortgage
Loan administration.
|
(1) Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
(2) Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
(3) Any
additions, removals or substitutions to the asset pool are made, reviewed and
approved in accordance with any conditions or requirements in the transaction
agreements.
(4) Payments
on mortgage loans, including any payoffs, made in accordance with the related
mortgage loan documents are posted to the Servicer’s obligor records maintained
no more than two business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to principal, interest
or
other items (e.g., escrow) in accordance with the related mortgage loan
documents.
(5) The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
(6) Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements and related mortgage
loan documents.
(7) Loss
mitigation or recovery actions (e.g., forbearance plans, modifications and
deeds
in lieu of foreclosure, foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
(8) Records
documenting collection efforts are maintained during the period a mortgage
loan
is delinquent in accordance with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity’s activities in monitoring
delinquent mortgage loans including, for example, phone calls, letters and
payment rescheduling plans in cases where delinquency is deemed temporary (e.g.,
illness or unemployment).
(9) Adjustments
to interest rates or rates of return for mortgage loans with variable rates
are
computed based on the related mortgage loan documents.
(10) Regarding
any funds held in trust for an obligor (such as escrow accounts): (A) such
funds
are analyzed, in accordance with the obligor’s mortgage loan documents, on at
least an annual basis, or such other period specified in the transaction
agreements; (B) interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state laws; and (C)
such
funds are returned to the obligor within 30 calendar days of full repayment
of
the related mortgage loans, or such other number of days specified in the
transaction agreements.
(11) Payments
made on behalf of an obligor (such as tax or insurance payments) are made on
or
before the related penalty or expiration dates, as indicated on the appropriate
bills or notices for such payments, provided that such support has been received
by the Servicer at least 30 calendar days prior to these dates, or such other
number of days specified in the transaction agreements.
(12) Any
late
payment penalties in connection with any payment to be made on behalf of an
obligor are paid from the Servicer’s funds and not charged to the obligor,
unless the late payment was due to the obligor’s error or omission.
(13) Disbursements
made on behalf of an obligor are posted within two business days to the
obligor’s records maintained by the Servicer, or such other number of days
specified in the transaction agreements.
(14) Delinquencies,
charge-offs and uncollectable accounts are recognized and recorded in accordance
with the transaction agreements.
(15) Any
external enhancement or other support, identified in Item 1114(a)(1) through
(3)
or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
18. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit N:
EXHIBIT
N
SUMMARY
OF APPLICABLE REGULATION AB REQUIREMENTS
NOTE:
This Exhibit N is provided for convenience of reference only. In the event
of a
conflict or inconsistency between the terms of this Exhibit N and the text
of
Regulation AB, the text of Regulation AB, its adopting release and other public
statements of the SEC shall control.
Item
1105(a)(1)-(3) and (c)
-Provide
static pool information with respect to mortgage loans that were originated
or
purchased by the Company and which are of the same type as the Mortgage
Loans.
-Provide
static pool information regarding delinquencies, cumulative losses and
prepayments for prior securitized pools of the Company.
-If
the
Company has less than 3 years experience securitizing assets of the same type
as
the Mortgage Loans, provide the static pool information by vintage origination
years regarding loans originated or purchased by the Company, instead of by
prior securitized pool. A vintage origination year represents mortgage loans
originated during the same year.
-Such
static pool information shall be for the prior five years, or for so long as
the
Company has been originating or purchasing (in the case of data by vintage
origination year) or securitizing (in the case of data by prior securitized
pools) such mortgage loans if for less than five years.
-The
static pool information for each vintage origination year or prior securitized
pool, as applicable, shall be presented in monthly increments over the life
of
the mortgage loans included in the vintage origination year or prior securitized
pool.
-Provide
summary information for the original characteristics of the prior securitized
pools or vintage origination years, as applicable and material, including:
number of pool assets, original pool balance, weighted average initial loan
balance, weighted average mortgage rate, weighted average and minimum and
maximum FICO, product type, loan purpose, weighted average and minimum and
maximum LTV, distribution of loans by mortgage rate, and geographic
concentrations of 5% or more.
Item
1108(b) and (c)
Provide
the following information with respect to each servicer that will service,
including interim service, 20% or more of the mortgage loans in any loan group
in the securitization issued in the Pass-Through Transfer:
-a
description of the Company’s form of organization;
-a
description of how long the Company has been servicing residential mortgage
loans; a general discussion of the Company’s experience in servicing assets of
any type as well as a more detailed discussion of the Company’s experience in,
and procedures for the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Company’s portfolio of mortgage loans of the type similar to
the Mortgage Loans and information on factors related to the Company that may
be
material to any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including whether any default or
servicing related performance trigger has occurred as to any other
securitization due to any act or failure to act of the Company, whether any
material noncompliance with applicable servicing criteria as to any other
securitization has been disclosed or reported by the Company, and the extent
of
outsourcing the Company uses;
-a
description of any material changes to the Company’s policies or procedures in
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of the type similar to the Mortgage
Loans during the past three years;
-information
regarding the Company’s financial condition to the extent that there is a
material risk that the effect on one or more aspects of servicing resulting
from
such financial condition could have a material impact on the performance of
the
securities issued in the Pass-Through Transfer, or on servicing of mortgage
loans of the same asset type as the Mortgage Loans;
-any
special or unique factors involved in servicing loans of the same type as the
Mortgage Loans, and the Company’s processes and procedures designed to address
such factors;
-statistical
information regarding principal and interest advances made by the Company on
the
Mortgage Loans and the Company’s overall servicing portfolio for the past three
years; and
-the
Company’s process for handling delinquencies, losses, bankruptcies and
recoveries, such as through liquidation of REO Properties, foreclosure, sale
of
the Mortgage Loans or workouts.
Item
1110(a)
-Identify
any originator or group of affiliated originators that originated, or is
expected to originate, 10% or more of the mortgage loans in any loan group
in
the securitization issued in the Pass-Through Transfer.
Item
1110(b)
Provide
the following information with respect to any originator or group of affiliated
originators that originated, or is expected to originate, 20% or more of the
mortgage loans in any loan group in the securitization issued in the
Pass-Through Transfer:
-the
Company’s form of organization; and
-a
description of the Company’s origination program and how long the Company has
been engaged in originating residential mortgage loans, which description must
include a discussion of the Company’s experience in originating mortgage loans
of the same type as the Mortgage Loans and information regarding the size and
composition of the Company’s origination portfolio as well as information that
may be material to an analysis of the performance of the Mortgage Loans, such
as
the Company’s credit-granting or underwriting criteria for mortgage loans of the
same type as the Mortgage Loans.
Item
1117
-describe
any legal proceedings pending against the Company or against any of its
property, including any proceedings known to be contemplated by governmental
authorities, that may be material to the holders of the securities issued in
the
Pass-Through Transfer.
Item
1119(a)
-describe
any affiliations of the Company, each other originator of the Mortgage Loans
and
each Subservicer with the sponsor, depositor, issuing entity, trustee, any
originator, any other servicer, any significant obligor, enhancement or support
provider or any other material parties related to the Pass-Through
Transfer.
Item
1119(b)
-describe
any business relationship, agreement, arrangement, transaction or understanding
entered into outside of the ordinary course of business or on terms other than
those obtained in an arm’s length transaction with an unrelated third party,
apart from the Pass-Through Transfer, between the Company, each other originator
of the Mortgage Loans and each Subservicer, or their respective affiliates,
and
the sponsor, depositor or issuing entity or their respective affiliates, that
exists currently or has existed during the past two years, that may be material
to the understanding of an investor in the securities issued in the Pass-Through
Transfer.
Item
1119(c)
-describe
any business relationship, agreement, arrangement, transaction or understanding
involving or relating to the Mortgage Loans or the Pass-Through Transfer,
including the material terms and approximate dollar amount involved, between
the
Company, each other originator of the Mortgage Loans and each Subservicer,
or
their respective affiliates and the sponsor, depositor or issuing entity or
their respective affiliates, that exists currently or has existed during the
past two years.
19. The
Agreement is hereby amended effective as of the date hereof by adding the
following new Exhibit O:
EXHIBIT
O
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
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Servicing
Criteria
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Applicable
Servicing Criteria
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Reference
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Criteria
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General
Servicing Considerations
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1122(d)(1)(i)
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Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
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1122(d)(1)(ii)
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If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
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1122(d)(1)(iii)
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Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
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1122(d)(1)(iv)
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A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
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Cash
Collection and Administration
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1122(d)(2)(i)
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Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
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1122(d)(2)(ii)
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Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
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1122(d)(2)(iii)
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Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
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1122(d)(2)(iv)
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The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
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1122(d)(2)(v)
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Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
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1122(d)(2)(vi)
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Unissued
checks are safeguarded so as to prevent unauthorized
access.
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1122(d)(2)(vii)
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Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
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Investor
Remittances and Reporting
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1122(d)(3)(i)
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Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
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1122(d)(3)(ii)
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Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
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1122(d)(3)(iii)
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Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
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1122(d)(3)(iv)
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Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
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Pool
Asset Administration
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1122(d)(4)(i)
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Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
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1122(d)(4)(ii)
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Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
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1122(d)(4)(iii)
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Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
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1122(d)(4)(iv)
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Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
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1122(d)(4)(v)
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The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
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1122(d)(4)(vi)
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Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
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1122(d)(4)(vii)
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Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
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1122(d)(4)(viii)
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Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
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1122(d)(4)(ix)
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Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
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1122(d)(4)(x)
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Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
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1122(d)(4)(xi)
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Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
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1122(d)(4)(xii)
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Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
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1122(d)(4)(xiii)
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Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
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1122(d)(4)(xiv)
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Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
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1122(d)(4)(xv)
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Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
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[NAME
OF
COMPANY] [NAME OF SUBSERVICER]
Date: _________________________
By: _________________________
Name:
Title:
20. Except
as
amended above, the Agreement shall continue to be in full force and effect
in
accordance with its terms.
21. This
Amendment may be executed by one or more of the parties hereto on any number
of
separate counterparts and of said counterparts taken together shall be deemed
to
constitute one and the same instrument.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the following parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day
and
year first above written.
EMC
MORTGAGE CORPORATION,
as
Purchaser
By:
_______________________
Name:
Title:
FIRST
HORIZON HOME LOAN CORPORATION
Seller
By:
_______________________
Name:
Title:
FIRST
TENNESSEE MORTGAGE SERVICES, INC.
Servicer
By:
_______________________
Name:
Title: