AMENDMENT NO. 1 TO POOLING AND SERVICING AGREEMENT Dated as of July 12, 2005 Among FIRST HORIZON ASSET SECURITIES INC. Depositor FIRST HORIZON HOME LOAN CORPORATION Master Servicer and THE BANK OF NEW YORK Trustee With respect to that certain POOLING...
AMENDMENT
NO. 1 TO
Dated
as
of July 12, 2005
Among
Depositor
FIRST
HORIZON HOME LOAN CORPORATION
Master
Servicer
and
THE
BANK
OF NEW YORK
Trustee
With
respect to that certain
Dated
as
of June 1, 2005
FIRST
HORIZON ALTERNATIVE MORTGAGE SECURITIES TRUST 2005-FA5
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2005-FA5
THIS
AMENDMENT NO. 1 TO POOLING AND SERVICING AGREEMENT dated as of July 12,
2005 (this “Amendment No. 1”), is executed among FIRST HORIZON ASSET
SECURITIES INC., a Delaware corporation, as depositor (the “Depositor”), FIRST
HORIZON HOME LOAN CORPORATION, a Kansas corporation, as master servicer (the
“Master Servicer”), and THE BANK OF NEW YORK, a banking corporation organized
under the laws of the State of New York, as trustee (the “Trustee”).
R E C I T A L S
:
A. The
Depositor, the Master Servicer and the Trustee are parties to that certain
Pooling and Servicing Agreement dated as of June 1, 2005 (the “Agreement”),
by and among the Depositor, the Master Servicer and the Trustee.
B. The
Depositor, the Master Servicer and the Trustee desire to amend the Agreement
to
describe the loss allocation provisions applicable to the Class III-A-1 and
Class III-A-2 Certificates and designate the Class III-A-1 and Class III-A-2
Certificates as “Super Senior Certificates” and “Senior Mezzanine Certificates,”
respectively.
C. The
amendments contemplated hereby are permitted under Section 11.1 of the
Agreement.
D. The
Trustee has received an Opinion of Counsel from Xxxxxxx Xxxxx LLP in
substantially the form attached hereto as Annex
A,
to the
effect that this Amendment No. 1 will not cause the imposition of any tax on
the
Certificateholders or any REMIC created under the Agreement or cause any REMIC
to fail to qualify as a REMIC at any time that any Certificates are
outstanding.
E. The
holder of the Class III-A-1 and Class III-A-2 Certificates has executed a
Consent of Certificateholders to Amendment No. 1 to Pooling and Servicing
Agreement in substantially the form attached hereto as Annex
B
to
consent to and adopt this Amendment No. 1.
W I T N E S E T H T H A T
ARTICLE
I
AMENDMENT
TO AGREEMENT
The
following defined terms under the Preliminary Statement of the Agreement are
hereby amended and restated in their entirety for all purposes of the Agreement
to read as follows:
|
Senior
Mezzanine
Certificates
|
The
Class I-A-7, Class I-A-8 and Class III-A-2
Certificates.
|
|
Super
Senior Certificates
|
The
Class I-A-4, Class I-A-6 and Class III-A-1
Certificates.
|
2
Section
4.4(c) of the Agreement is hereby amended and restated in its entirety for
all
purposes of the Agreement to read as follows:
|
(c)
|
Commencing
on the Cross-over Date, the applicable Non-PO Percentage of the principal
portion of any Realized Loss for a Mortgage Pool will be allocated
among
the outstanding classes of Senior Certificates of the related Certificate
Group entitled to principal distributions (other than (i) the Class
I-A-4
Certificates, as long as the Class I-A-8 Certificates are outstanding,
(ii) the Class I-A-6 Certificates, as long as the Class I-A-7 Certificates
are outstanding, (iii) the Class III-A-1 Certificates, as long as
the
Class III-A-2 Certificates are outstanding, (iv) the Notional Amount
Certificates, and (v) the Class PO Certificates), pro
rata,
based upon their Class Certificate
Balances.
|
Section
4.4(d) of the Agreement is hereby amended and restated in its entirety for
all
purposes of the Agreement to read as follows:
|
(d)
|
After
the Cross-over Date, the principal portion of Realized Losses (other
than
Excess Losses) on the Mortgage Loans allocable to the Class I-A-4
Certificates will instead be borne first by the Class I-A-8 Certificates
until their Class Certificate Balance is reduced to zero (in addition
to
other Realized Losses allocated to the Class I-A-8 Certificates),
and not
by the Class I-A-4 Certificates, for so long as the Class Certificate
Balance of the Class I-A-8 Certificates is greater than zero. Also,
after
the Cross-over Date, the principal portion of Realized Losses (other
than
Excess Losses) on the Mortgage Loans allocable to the Class I-A-6
Certificates will instead be borne first by the Class I-A-7 Certificates
until their Class Certificate Balance is reduced to zero (in addition
to
other Realized Losses allocated to the Class I-A-7 Certificates),
and not
by the Class I-A-6 Certificates, for so long as the Class Certificate
Balance of the Class I-A-7 Certificates is greater than zero. In
addition,
after the Cross-over Date, the principal portion of Realized Losses
(other
than Excess Losses) on the Mortgage Loans allocable to the Class
III-A-1
Certificates will instead be borne first by the Class III-A-2 Certificates
until their Class Certificate Balance is reduced to zero (in addition
to
other Realized Losses allocated to the Class III-A-2 Certificates),
and
not by the Class III-A-1 Certificates, for so long as the Class
Certificate Balance of the Class III-A-2 Certificates is greater
than
zero.
|
ARTICLE
II
MISCELLANEOUS
SECTION
2.1
Ratification.
The
terms
and provisions set forth in this Amendment No. 1 shall modify and supersede
all inconsistent terms and provisions set forth in the Agreement, and, except
as
expressly modified and superseded by this Amendment No. 1, the terms and
provisions of the Agreement are ratified and confirmed and shall continue in
full force and effect. The Agreement as so modified by this Amendment No. 1
shall be read, taken and construed as one and the same instrument.
3
SECTION
2.2 Reference
to Agreement; Capitalized Terms.
The
Agreement and all other agreements, documents or instruments now or hereafter
executed and delivered pursuant to the terms hereof or pursuant to the terms
of
the Agreement as amended hereby, are hereby amended so that any reference in
such agreements, documents, or instruments to the Agreement shall mean a
reference to the Agreement as amended hereby. All other initially capitalized
terms used and not otherwise defined herein shall have the meaning assigned
to
such terms in the Agreement.
SECTION
2.3 Successors
and Assigns.
This
Amendment No. 1 is binding upon and shall inure to the benefit of the Depositor,
the Master Servicer and the Trustee and their respective successors and
assigns.
SECTION
2.4 Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION
2.5 Counterparts.
This
Amendment No. 1 may be executed in one or more counterparts, each of which
when
so executed shall be an original, but such counterparts when taken together
shall constitute one and the same instrument.
SECTION
2.6 Subordination of the Certificates.
For
federal income tax purposes, the subordination of the Class III-A-2 Certificates
to the Class III-A-1 Certificates as provided in Section 4.4(d) of the
Agreement, as hereby amended, will be treated as a limited recourse guarantee
running from the Class III-A-2 Certificates for the benefit of the Class III-A-1
Certificates.
SECTION
2.7 Trustee.
The
Trustee is entering into this Amendment No. 1 at the request and direction
of
the Depositor and the Master Servicer. This Amendment No. 1 is not intended
to
benefit or adversely affect the Trustee. The Trustee does not pass upon the
benefit or adverse affect of this Amendment No. 1 on any other party to the
Agreement or Certificateholders and this Amendment No. 1 is entered into by
the
Trustee subject to the terms of Section 11.1 of the Agreement.
4
SECTION
2.8 Effective
Date.
This
Amendment No. 1 shall be effective as of June 30, 2005.
IN
WITNESS WHEREOF, the Depositor, the Trustee and the Master Servicer have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
as
Depositor
By: /s/
Xxxxxx Xxxxx
Xxxxxx
Xxxxx
Vice
President
THE
BANK
OF NEW YORK,
not
in
its individual capacity, but solely as Trustee
By: /s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx,
Vice
President
FIRST
HORIZON HOME LOAN CORPORATION,
as
Master
Servicer
By:
/s/
Xxxxxx Xxxxx
Xxxxxx
Xxxxx
Vice
President
5
ANNEX
A
(begins
on next page)
ANNEX
B
(begins
on next page)
