AMENDMENT NO. 1 TO PURCHASE,
WARRANTIES
AND SERVICING
AGREEMENT
THIS AMENDMENT
NO. 1, effective as of May 14, 2004, amends the Purchase,
Warranties and Servicing Agreement among EMC Mortgage Corporation
(the “Purchaser”), First Tennessee Mortgage Services,
Inc., as servicer (the “Servicer”) and First Horizon
Home Loan Corporation (the “Seller”, and together with
the Servicer, the “Company”), previously entered into
as of September 1, 2003 (the “Agreement”).
RECITALS
WHEREAS, the
Company sells to the Purchaser, and the Purchaser purchases from
the Company, from time to time, pursuant to the Agreement, certain
conventional residential Mortgage Loans on a servicing retained
basis; and
WHEREAS, in
connection with future sales of Mortgage Loans to the Purchaser,
the Company and the Purchaser wish to amend the Agreement as set
forth below.
NOW, THEREFORE,
in consideration of the premises and the mutual covenants
hereinafter set forth and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Purchaser and the Company agree to amend the Agreement as
follows:
1.
Section 3.02(h) of the Agreement
shall be deleted in its entirety and replaced with the
following:
(h)
Each Mortgage Loan complies with,
and the Company has complied with, applicable local, state and
federal laws, regulations and other requirements including, without
limitation, usury, equal credit opportunity, real estate settlement
procedures, the Federal Truth-In-Lending Act, disclosure laws and
all applicable predatory and abusive lending laws and consummation
of the transactions contemplated hereby, including without
limitation, the receipt of interest by the owner of such Mortgage
Loan, will not involve the violation of any such laws, rules or
regulations. None of the Mortgage Loans are (a) Mortgage Loans
subject to 12 CFR Part 226.31, 12 CFR Part 226.32 or 226.34 of
Regulation Z, the regulation implementing TILA, which implements
the Home Ownership and Equity Protection Act of 1994, as amended,
or (b) except as may be provided in subparagraph (c) below,
classified and/or defined, as a “high cost”,
“threshold”, “predatory” “high risk
home loan” or “covered” loan (or a similarly
classified loan using different terminology under a law imposing
additional legal liability for mortgage loans having high interest
rates, points and or/fees) under any other applicable state,
federal or local law including, but not limited to, the States of
Georgia, New York, North Carolina, Arkansas, Kentucky or New Mexico
or (c) Mortgage Loans subject to the New Jersey Home Ownership
Security Act of 2002 (the “Act”), unless such Mortgage
Loan is a (1) “Home Loan” as defined in the Act that is
a first lien Mortgage Loan, which is not a “High Cost Home
Loan” as defined in the Act or (2) “Covered Home
Loan” as defined in the Act that is a first lien purchase
money Mortgage Loan, which is not a High Cost Home Loan under the
Act. In addition to and notwithstanding anything to the contrary
herein, no Mortgage Loan for which the Mortgaged Property is
located in New Jersey is a Home Loan as defined in the Act that was
made, arranged, or assigned by a person selling either a
manufactured home or home improvements to the Mortgaged Property or
was made by an originator to whom the Mortgagor was referred by any
such seller. Each Mortgage Loan is being (and has been) serviced in
accordance with Accepted Servicing Practices and applicable state
and federal laws, including, without limitation, the Federal
Truth-In-Lending Act and other consumer protection laws, real
estate settlement procedures, usury, equal credit opportunity and
disclosure laws. Company shall maintain in its possession,
available for the Purchaser’s inspection, as appropriate, and
shall deliver to the Purchaser or its designee upon demand,
evidence of compliance with all such requirements.
2.
The following representations and
warranties shall be added to Section 3.02 of the
Agreement:
(yy)
There is no Mortgage Loan that was
originated on or after October 1, 2002 and before March 7, 2003,
which is secured by property located in the State of
Georgia.
(zz)
No proceeds from any Mortgage Loan
were used to finance single premium credit insurance
policies.
(aaa)
No borrower was encouraged or
required to select a Mortgage Loan product offered by the Mortgage
Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, unless at the time of the Mortgage
Loan’s origination, such borrower did not qualify taking into
account credit history and debt-to-income ratios for a lower-cost
credit product then offered by the Mortgage Loan’s originator
or any affiliate of the Mortgage Loan’s originator. If, at
the time of loan application, the borrower may have qualified for a
lower-cost credit product then offered by any mortgage lending
affiliate of the Mortgage Loan’s originator, the Mortgage
Loan’s originator referred the borrower’s application
to such affiliate for underwriting consideration.
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