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Exhibit 4.3
AMENDMENT NO.
1
TO THE
MORTGAGE LOAN PURCHASE
AND SERVICING AGREEMENT
Amendment No. 1, dated
as of August 23, 2006 (the “ Amendment ”),
to the Mortgage Loan Purchase and Servicing Agreement (the “
Agreement ”) dated as of May 10, 2005, by and
among Carmel Mountain Funding Trust (the “ Issuer
”), Accredited Home Lenders, Inc. (the “ Seller
” or “ Servicer ”) and Accredited Home
Lenders Holding Co. (the “ Performance Guarantor
”). Capitalized terms used and not defined herein shall have
the meaning set forth in the Amended and Restated Security
Agreement, dated as of August 23, 2006, by and between the
Issuer and Deutsche Bank Trust Company Americas, as the collateral
agent and Schedule I thereto.
WHEREAS the parties hereto
have entered into the Agreement;
WHEREAS the parties hereto
now wish to amend certain provisions in the Agreement pursuant to
Section 12.2 of the Agreement; and
WHEREAS the Issuer shall not
consent to this Amendment to the Agreement unless (a) it shall
have first received Rating Agency Confirmation with respect to this
Amendment and (b) any applicable requirements and conditions
set forth in the Agreement with respect to the adoption of
amendments thereto have been complied with.
NOW, THEREFORE, in
consideration of the promises and mutual agreements contained
herein, the parties hereto agree to amend the Agreement pursuant to
Section 12.2 of the Agreement and restate certain provisions
thereof as follows:
1. Amendments . Upon
the execution of this Amendment by each party hereto and effective
as of the date of this Amendment:
A. Sections 3.1(f), 3.1(j)
and 3.2(f) are revised as follows: references to “the Swap
Counterparty” will be changed to “each Swap
Counterparty”.
B. Section 3.1(h) will
be replaced in its entirety with the following:
(h) Selection Process
. Any Portfolio sold pursuant to a Transfer Supplement was selected
from mortgage loans originated by the Seller or an affiliate of the
Seller or acquired by the Seller from third parties and are
Mortgage Loans which satisfy the Eligibility Criteria (other than
the Eligibility Representations, which are the subject of the
representations set forth in Section 3.2 hereof),
Portfolio Criteria and Wet Funded Loan Limitation, and any
selection process employed by it was not made in a manner so as to
materially adversely affect the interests of the Issuer.
C. Section 4.2(e) of the
Agreement will be replaced in its entirety with the following
paragraph and paragraphs (e) through (i) will be added to
Section 4.2 as follows:
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(e) |
If the
Servicer arranges for the sale of Mortgage Loans by the Issuer
pursuant to this Agreement and the Sale Price of any Mortgage Loan
or Mortgage Loans is anticipated to be less than the Outstanding
Purchase Price of such Mortgage Loan or Mortgage Loans, the
Servicer shall give each Swap Counterparty written notice of the
anticipated Sale Price of such Mortgage Loan or Mortgage Loans in
advance of such sale. Such written notice shall also include a
summary description of the procedure used in the determination of
the Sale Price. Each Swap Counterparty shall have two
(2) Business Days from the receipt of such written notice to
dispute the Sale Price; provided , that no Swap Counterparty
shall dispute the Sale Price of any single Mortgage Loan if the
sale of such Mortgage Loan was pursuant to a sale agreement for a
pool of Mortgage Loans and the aggregate Sale Price for such pool
is equal to or greater than 102% of the aggregate Outstanding
Principal Balance for the Mortgage Loans in such pool;
provided , further , that the Servicer may request in
writing that each Swap Counterparty waive its right to dispute a
sale of a Mortgage Loan or Mortgage Loans; such request shall be
deemed to have been granted with respect to a Swap Counterparty if
(i) such Swap Counterparty shall not have responded by the
close of business San Diego time on the date such request was
received by such Swap Counterparty so long as such request was
received by 3:00 p.m. Eastern time on such date (otherwise such
request shall be deemed to have been received on the next following
Business Day) and (ii) (A) the Seller, as swap
counterparty under each of the Back-to-Back Swaps, shall have made
or shall make all payments, if any, to be made under the
Back-to-Back Swaps related to the sale of such Mortgage Loan or
Mortgage Loans prior to or concurrent with such sale and
(B) such payments under the Back-to-Back Swaps shall not be
subject to the limitations set forth in the provisos of the first
sentence of the Party B First Floating Rate Amount (as defined in
the Back-to-Back Swaps) or any similar limitation in any
replacement Back-to-Back Swap. If any Swap Counterparty disputes
the Sale Price, the Servicer and such Swap Counterparty shall use
their best efforts to resolve such dispute within two
(2) Business Days of receipt by the Servicer of notice of such
dispute. If such Swap Counterparty disputes the Sale Price of any
Mortgage Loan or Mortgage Loans and such dispute is not resolved,
then such Swap Counterparty, or its designee, shall be permitted to
submit a bid to purchase such Mortgage Loan or Mortgage Loans (the
“ Purchase Option ”) at a price at least equal
to 102% of the Sale Price (the “ Bid Price ”)
within three (3) Business Days of receipt by such Swap
Counterparty of the written notice of the Sale Price. If each Swap
Counterparty waives its right to dispute a sale of a Mortgage Loan
or Mortgage Loans, fails to dispute the Sale
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Price within two
(2) Business Days after receipt of notice of the Sale Price,
or fails (or such designee fails) to pay the Bid Price for such
Mortgage Loan or Mortgage Loans within three (3) Business Days
after receipt of notice of the Sale Price, the Servicer shall be
permitted to sell such Mortgage Loan or Mortgage Loans in
accordance with this Agreement. The Servicer shall be permitted to
sell such Mortgage Loans to the highest bidding Swap Counterparty.
To the extent that more than one Swap Counterparty has submitted
the highest bid, the Servicer shall be permitted to sell to such
Swap Counterparties as indicated by the Designated Swap
Counterparty pursuant to the letter agreement among the Swap
Counterparties.
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(f) |
If the Servicer arranges for the sale of Mortgage Loans by the
Issuer pursuant to this Agreement and (x) the aggregate Sale
Price of any portfolio of Mortgage Loans sold on any Business Day
to a particular buyer (including any Securitization Vehicle), as
set forth in the related Sale Notice, is less than ninety-one
percent (91%) of the aggregate Outstanding Purchase Price of
such Mortgage Loans or (y) a Termination Event has occurred
and is continuing and the sale of such Mortgage Loans would be for
a purchase price less than the aggregate Outstanding Purchase Price
of such Mortgage Loans, then each Swap Counterparty shall have an
option to submit a bid to purchase (a “ Purchase
Option ”) such Mortgage Loans on the related Sale Date
from the Issuer at a price equal to the Sale Price. Each Swap
Counterparty that elects to exercise its Purchase Option shall
submit a written notice (the “ Purchase Option Notice
”) to the Servicer no later than 9:30 am Eastern time on the
related Sale Date. The Servicer shall be permitted to sell such
Mortgage Loans to the highest bidding Swap Counterparty. To the
extent that more than one Swap Counterparty has submitted the
highest bid, the Servicer shall be permitted to sell to such Swap
Counterparties as indicated by the Designated Swap Counterparty
pursuant to the letter agreement among the Swap
Counterparties. |
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(g) |
If any Swap Counterparty notifies the Servicer in writing that
the current Fair Market Value, as determined by it in its sole
reasonable discretion, of the non-Delinquent and non-Defaulted
Mortgage Loans then owned by the Issuer, is less than ninety-six
percent (96%) of the aggregate Outstanding Purchase Price of
such Mortgage Loans, then the Servicer shall arrange for the sale
of individual Mortgage Loans or portfolios of Mortgage Loans
sufficient to cause the Fair Market Value of the non-Delinquent and
non-Defaulted Mortgage Loans owned by the Issuer to be greater than
or equal to ninety-six percent (96%) of the aggregate
Outstanding Purchase Price as determined by such Swap Counterparty
in its sole reasonable discretion. |
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If the Servicer fails to
arrange for the sale of Mortgage Loans in order to cause the Fair
Market Value of the non-Delinquent and non-Defaulted Mortgage Loans
owned by the Issuer to be greater than or equal to ninety-six
percent (96%) of the aggregate Outstanding Purchase Price, as
determined by such Swap Counterparty in its sole reasonable
discretion, on or before the 90th day following its receipt of
notice from such Swap Counterparty, then the Designated Swap
Counterparty shall have the sole and exclusive right, on behalf of
and for the benefit of the Issuer, to arrange for the sale of
individual Mortgage Loans or portfolios of Mortgage Loans
sufficient to cause the Fair Market Value of the non-Delinquent and
non-Defaulted Mortgage Loans owned by the Issuer to be greater than
or equal to ninety-six percent (96%) of the aggregate
Outstanding Purchase Price of the Mortgage Loans, as determined by
the notifying Swap Counterparty in its sole reasonable
discretion.
If, at any time following
such receipt of notice, if the then current Fair Market Value, as
determined by the Swap Counterparty delivering the additional
notice referred to in this sentence, of the non-Delinquent and
non-Defaulted Mortgage Loans then owned by the Issuer is less than
ninety-five percent (95%) of the aggregate Outstanding
Purchase Price of the non-Delinquent and non-Defaulted Mortgage
Loans owned by the Issuer, then any Swap Counterparty may deliver
an additional notice to such effect and on the 15th Business Day
after the delivery of such additional notice, the Designated Swap
Counterparty shall have the sole and exclusive right, on behalf of
and for the benefit of the Issuer, to arrange for the sale of
individual Mortgage Loans or portfolios of Mortgage Loans
sufficient to cause the Fair Market Value of the non-Delinquent and
non-Defaulted Mortgage Loans owned by the Issuer to be greater than
or equal to ninety-five percent (95%) of the aggregate
Outstanding Purchase Price of the Mortgage Loans, as determined by
the notifying Swap Counterparty in its sole reasonable
discretion.
In connection with the sales
contemplated by this paragraph (g), the Designated Swap
Counterparty shall use commercially reasonable efforts to maximize
the Sale Price of any Mortgage Loans that it arranges to sell on
behalf of the Issuer.
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(h) |
If the
Servicer arranges for a sale of a group of Mortgage Loans pursuant
to this Agreement and the Sale Price, as set forth in the related
Sale Notice to be received by the Issuer for the sale of such group
of Mortgage Loans is less than ninety-one percent (91%) of the
aggregate Outstanding Purchase Price of such group of
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