Amendments to the Purchase Agreement The parties to this Assignment hereby agree to amend the Purchase Agreement as follows:
(a) The first sentence of Section 7.03(c) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “If so requested by the Purchaser, the Seller shall provide such information regarding the Seller, as servicer of the Mortgage Loans, and each Subservicer (each of the Seller and each Subservicer, for purposes of this paragraph, a “Servicer”), as is requested for the purpose of compliance with Items 1108, 1117 and 1119 of Regulation AB.
(b) Section 7.03(d) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “For the purpose of satisfying the reporting obligation under the Exchange Act with respect to any class of asset-backed securities, the Seller shall (or shall cause each Subservicer to) (i) promptly notify the Purchaser, any Master Servicer and any Depositor in writing of (A) any litigation or governmental proceedings pending against the Seller, any Subservicer or any Third-Party Originator that would be material to securityholders, (B) any affiliations or relationships that develop following the closing date of a Securitization Transaction between the Seller, any Subservicer and any of the parties specified in clause (D) of paragraph (a) of this Section (and any other parties identified in writing by the requesting party) with respect to such Securitization Transaction, (C) any Event of Default under the terms of this Agreement or any Reconstitution Agreement, (D) any merger, consolidation or sale of substantially all of the assets of the Seller and (E) the Seller’s entry into an agreement with a Subcontractor to perform or assist the Seller with the performance of any of the Seller’s obligations under this Agreement or any Reconstitution Agreement, and (ii) provide to the Purchaser and any Depositor a description of such proceedings, affiliations or relationships.”
(c) Section 7.03 (e) (ii) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “which may be appointed as a successor to the Seller or any Subservicer, the Seller shall provide to the Purchaser, and any Master Servicer at least fifteen (15) calendar days prior to the effective date of such succession or appointment,”
(d) Section 7.03 (f) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “In addition to such information as the Seller, as servicer, is obligated to provide pursuant to other provisions of this Agreement, not later than ten (10) days prior to the deadline for the filing of any distribution report on Form 10-D in respect of any Securitization Transaction that includes any of the Mortgage Loans serviced by the Seller or any Subservicer, the Seller or such Subservicer, as applicable, shall, to the extent the Seller or such Subservicer has knowledge, provide to the party responsible for filing such report (including, if applicable, the Master Servicer) notice of the occurrence of any of the following events along with all information, data, and materials related thereto as may be required to be included in the related distribution report on Form 10-D (as specified in the provisions of Regulation AB referenced below):
(i) any material modifications, extensions or waivers of pool asset terms, fees, penalties or payments during the distribution period or that have cumulatively become material over time (Item 1121(a)(11) of Regulation AB);
(ii) material breaches of pool asset representations or warranties or transaction covenants (Item 1121(a)(12) of Regulation AB); and
(iii) information regarding new asset-backed securities issuances backed by the same pool assets, any pool asset changes (such as, additions, substitutions or repurchases), and any material changes in origination, underwriting or other criteria for acquisition or selection of pool assets (Item 1121(a)(14) of Regulation AB).
(e) The following is inserted as 7.03 (g) of the Purchase Agreement: “The Seller shall provide to the Purchaser, any Master Servicer and any Depositor, evidence of the authorization of the person signing any certification or statement, copies or other evidence of Fidelity Bond Insurance and Errors and Omission Insurance policy, financial information and reports, and such other information related to the Seller or any Subservicer or the Seller or such Subservicer’s performance hereunder as may be reasonably requested by the Purchaser, any Master Servicer or any Depositor.”
(f) Section 7.04 of the Purchase Agreement is hereby amended and restated in its entirety as follows: “On or before March 1 of each calendar year, commencing in 2008, the Servicer shall deliver to the Owner, any Master Servicer and any Depositor a statement of compliance addressed to the Owner, such Master Servicer and such Depositor and signed by an authorized officer of the Servicer, to the effect that (i) a review of the Servicer’s activities during the immediately preceding calendar year (or applicable portion thereof) and of its performance under this Agreement and any applicable Reconstitution Agreement during such period has been made under such officer’s supervision, and (ii) to the best of such officers’ knowledge, based on such review, the Servicer has fulfilled all of its obligations under this Agreement and any applicable Reconstitution Agreement in all material respects throughout such calendar year (or applicable portion thereof) or, if there has been a failure to fulfill any such obligation in any material respect, specifically identifying each such failure known to such officer and the nature and the status thereof. In the event that the Servicer fails to timely comply with this Section 7.04, the Depositor shall use its commercially reasonable efforts to obtain written statements or assurances from the Commission, that such failure to provide the required statement of compliance on a timely basis, and a one time additional failure by the Servicer to comply with this Section 7.04, will not result in any adverse effect on the Depositor or its affiliates with respect to any Shelf Registration on Form S-3 of the Depositor or any of its affiliates. Any costs or expenses incurred by the Depositor or the Master Servicer in obtaining such statement or assurances from the Commission shall be reimbursed to the Depositor or the Master Servicer by the Servicer. In the event that the Depositor is unable to receive any such assurances from the Commission after the use of such commercially reasonable efforts of the related year, such failure by the Servicer to comply with this Section 7.04 shall be deemed an Event of Default, automatically at such time, without notice and without any cure period, and Depositor may, in addition to whatever rights the Depositor may have under Section 8 of the Purchase Agreement and at law or equity or to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement and in and to the Mortgage Loans and the proceeds thereof without compensating the Servicer for the same, as provided in Section 11 of the Purchase Agreement. Such termination shall be considered with cause pursuant to Section 11.01 of the Purchase Agreement. This paragraph shall supersede any other provision in this Agreement or any other agreement to the contrary.”
(g) Section 7.05(a)(i) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “deliver to the Purchaser and any Master Servicer a report (in form and substance reasonably satisfactory to the Purchaser and such Master Servicer) regarding the Seller’s assessment of compliance with the Servicing Criteria during the immediately preceding calendar year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed to the Purchaser and signed by an authorized officer of the Seller, and shall address each of the Servicing Criteria specified on a certification substantially in the form of Exhibit 12 hereto delivered to the Purchaser concurrently with the execution of this Agreement;”
(h) Section 7.05(a)(ii) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “deliver to the Purchaser and such Master Servicer a report of a registered public accounting firm reasonably acceptable to the Purchaser and any Master Servicer that attests to, and reports on, the assessment of compliance made by the Seller and delivered pursuant to the preceding paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the Exchange Act;”
(i) Section 7.05(a)(iii) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “cause each Subservicer, and each Subcontractor determined by the Seller pursuant to Subsection 7.06(b) to be “participating in the servicing function” within the meaning of Item 1122 of Regulation AB, to deliver to the Purchaser and any Master Servicer an assessment of compliance and accountants’ attestation as and when provided in paragraphs (a) and (b) of this Section; and”
(j) Section 7.05(a)(iv) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “deliver, and cause each Subservicer and Subcontractor described in clause (iii) above to deliver, to the Purchaser, the Master Servicer, any Depositor and any other Person that will be responsible for signing the certification (a “Sarbanes Certification”) required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed issuer with respect to a Securitization Transaction a certification, signed by an appropriate officer of the Servicer, in the form attached hereto as Exhibit 11. In addition to providing the Sarbanes Certification, the Servicer shall also cooperate with the Depositor and provide such additional information as the Depositor may reasonably request with respect thereto.”
(k) The first sentence of Section 7.06(a) is amended to add the Master Servicer as a party that the Seller need not seek consent from for the utilization of any Subservicer. The second sentence of Section 7.06(a) is amended to require the Seller to cause any Subservicer or Subcontractor to comply with all of the following Sections of the Purchase Agreement: Section 7.02, Section 7.03(c), (e), (f) and (g), Section 7.04, Section 7.05, Section 7.06(a) and Section 7.07.
(l) The first paragraph of Section 7.06(b) is hereby amended and restated in its entirety as follows: “It shall not be necessary for the Seller to seek the consent of the Purchaser or any Master Servicer to the utilization of any Subcontractor. The Seller shall promptly upon request provide to the Purchaser and any Master Servicer a written description (in form and substance satisfactory to the Purchaser and such Master Servicer) of the role and function of each Subcontractor utilized by the Seller 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.””
(m) The last sentence of the second paragraph of Section 7.06(b) is amended to require the Seller to cause any Subservicer or Subcontractor to provide any assessment of compliance and attestation but also any other certifications required to delivered under Section 7.05.
(n) Section 7.07(a) of the Purchase Agreement is hereby amended and restated in its entirety as follows: “The Seller shall indemnify the Purchaser, each affiliate of the Purchaser, and each of the following parties participating in a Securitization Transaction: each sponsor and issuing entity; each Person, including but not limited to, any Master Servicer, responsible for the preparation, execution or filing of any report required to be filed with the Commission with respect to such Securitization Transaction, 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 Securitization Transaction; each broker dealer acting as underwriter, placement agent or initial purchaser, each Person who controls any of such parties (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 (each, an “Indemnified Party”), 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:
(o) Section 7.07(a)(ii) of the Purchase Agreement is hereby amended and restated in its entirety as follows:
Asset Purchase Agreement (a) Within fifteen (15) business days following PCC's receipt of the Put Notice or FBC's receipt of the Call Notice, as the case may be, FBC and PCC shall enter into the Asset Purchase Agreement in the form of Exhibit A hereto (the "Asset Purchase Agreement"), it being understood that the only change to such form shall be changes, if any, in the information contained in the Schedules thereto and the addition, if any, of Schedules thereto that are reasonably required to reflect events occurring after the date hereof; provided, however, that PCC shall not be required to accept any such change or addition that could reasonably be expected to cause a material adverse change in, or have a material adverse effect on, (i) the Assets to be conveyed to PCC pursuant to the Asset Purchase Agreement, (ii) the conduct of the business or operations of the Station or (iii) the ability of FBC to consummate the transactions contemplated by the Asset Purchase Agreement in accordance with its terms; provided further, however, that PCC shall be required to accept any change or addition of the type described in the preceding proviso if such change or addition results from any action taken (or, if required, not taken) by PCC under the Time Brokerage Agreement. Upon the execution and delivery of the Asset Purchase Agreement, FBC and PCC shall perform their respective obligations thereunder, including, without limitation, filing and prosecuting an appropriate application for FCC consent to the assignment of the FCC Licenses from FBC to PCC (the "FCC Consent"). Except as expressly set forth in the Time Brokerage Agreement or the Asset Purchase Agreement, PCC shall not assume any obligations or liabilities of FBC under any contract, agreement, license, permit or other instrument or arrangement.
(b) Notwithstanding Section 3(a) of this Option Agreement, in the event that, at the time of the exercise of the Put Option or the Call Option, as the case may be, the only assets held by FBC are (i) the assets to be conveyed to PCC pursuant to the Asset Purchase Agreement and (ii) the certain similar assets to be sold to Buyer pursuant to a certain Option Agreement bearing even date herewith with respect to Seller's New Orleans Station (as identified in such Option Agreement, the "New Orleans Option"), FBC may, at its election, notify PCC in writing that the transactions contemplated by the Asset Purchase Agreement and the New Orleans Option shall each be reconstituted as a sale to PCC of all of the capital stock of FBC (the "Stock Purchase Election"); provided, however, that FBC shall have no right to exercise the Stock Purchase Election if (i) PCC is unable to treat such purchase of stock as a purchase of assets pursuant to Internal Revenue Code ss. 338(h)(10), or its successor, as the same may be amended from time to time, and (ii) PCC and FBC are unable to agree upon the terms and conditions of, and execute and deliver, a Stock Purchase Agreement within thirty (30) days following PCC's receipt from FBC of written notice of its election to exercise the Stock Purchase Election. If FBC exercises the Stock Purchase Election in accordance with the terms of this Section 3(b), FBC and PCC shall negotiate in good faith the terms of the Stock Purchase Agreement, it being understood that such Stock Purchase Agreement shall be substantially equivalent to the Asset Purchase Agreement except for such modifications and additions thereto that are required to conform the Asset Purchase Agreement to the form of agreement customarily used in connection with a sale of capital stock rather than assets, and it being further understood that neither FBC nor PCC shall be required to accept any term or provision in the Stock Purchase Agreement that would, or could reasonably be expected to, result in any increase or decrease in the consideration payable by PCC under the Asset Purchase Agreement or in the liabilities to be assumed by PCC under the Asset Purchase Agreement.
