AMENDMENT NUMBER ONE to the MORTGAGE LOAN PURCHASE AGREEMENT dated as of April 28, 2006 by and between ACE SECURITIES CORP. and DB STRUCTURED PRODUCTS, INC.
EXHIBIT
4.1
______________________________________
AMENDMENT
NUMBER ONE
to
the
dated
as
of April 28, 2006
by
and
between
ACE
SECURITIES CORP.
and
DB
STRUCTURED PRODUCTS, INC.
______________________________________
THIS
AMENDMENT NUMBER ONE (this “Amendment Number One”) is made this 19th
day of
December, 2006, by and between ACE SECURITIES CORP. (the “Purchaser”) and DB
STRUCTURED PRODUCTS, INC. (the “Seller”),
to the Mortgage Loan Purchase Agreement, dated as of April 28, 2006, by and
between the Purchaser and the Seller (the “Agreement”).
W
I T N E
S S E T H
WHEREAS,
the Purchaser and the Seller desire to amend the Agreement, subject to the
terms
hereof, to modify the Agreement as specified herein; and
WHEREAS,
the Purchaser and the Seller each have agreed to execute and deliver this
Amendment Number One on the terms and conditions set forth herein.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and of the mutual covenants herein contained,
the
parties hereto hereby agree as follows:
SECTION
1. Defined
Terms.
For
purposes of this Amendment Number One, unless the context clearly requires
otherwise, all capitalized terms which are used but not otherwise defined herein
shall have the respective meanings assigned to such terms in the
Agreement.
SECTION
2. The
Amendments.
(a) Section
6(xl) of the Agreement is hereby amended by deleting it in its entirety and
replacing it with the following (with the added text underlined for ease of
review):
(xl) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act of
1994
(“HOEPA”)
or any
comparable law and no Mortgage Loan is classified and/or defined as “high cost”,
“covered” (excluding home loans defined as “covered home loans” in the New
Jersey Home Ownership Security Act of 2002 that were originated between November
26, 2003 and July 7, 2004) “high risk home” or “predatory” loan under any other
federal, state or local law (or a similarly classified loan using different
terminology under a law imposing heightened regulatory scrutiny or additional
legal liability for residential mortgage loans having high interest rates,
points and/or fees). No
Group I Mortgage Loan has an “annual percentage rate” or “total points and fees”
payable by the Mortgagor (as each such term is defined under HOEPA) that equal
or exceed the applicable thresholds defined under HOEPA (Section 32 of
Regulation Z, 12 C.F.R. Section 226.32(a)(1)(i) and (ii));
6
(b) Section
6
of the Agreement is hereby amended by: (i) deleting the word “and” at the end of
subpart (lxxii) thereof and (ii) inserting the following new subpart at the
end
of subpart (lxxiii) thereof:
;
and
(lxxiv) With respect to any Group I Mortgage Loan for which the date of the
related mortgage note is more than 1 year before the Closing Date,
(i) The
Seller represents that it currently operates or actively participates in an
on-going and active program or business (A) to originate mortgages, and/or
(B)
to make periodic purchases of mortgage loans from originators or other sellers,
and/or (C) to issue and/or purchase securities or bonds supported by the
mortgages, with a portion of the proceeds generated by such program or business
being used to purchase or originate mortgages made to borrowers who
are:
(a)
low-income families (families with incomes of 80% or less of area median income)
living in low-income areas (a census tract or block numbering area in which
the
median income does not exceed 80 percent of the area median income)
and/or
(b)
very
low-income families (families with incomes of 60% or less of area median
income), and
(ii)
The
Seller agrees that Xxxxxxx Mac for a period of two (2) years following the
date
of this Agreement may contact the Seller to confirm that it continues to operate
or actively participate in the mortgage program or business and to obtain other
nonproprietary information about the Seller’s activities that may assist Xxxxxxx
Mac in completing its regulatory reporting requirements. The Seller will make
reasonable efforts to provide such information to Xxxxxxx Mac.
SECTION
3. Limited
Effect.
Except as amended hereby, the Agreement shall continue in full force and effect
in accordance with its terms. Reference to this Amendment need not be made
in
the Agreement or any other instrument or document executed in connection
therewith, or in any certificate, letter or communication issued or made
pursuant to, or with respect to, the Agreement, any reference in any of such
items to the Agreement being sufficient to refer to the Agreement as amended
hereby. Except
as
modified and expressly amended by this Amendment Number One, the Agreement
is in
all respects ratified and confirmed, and all the terms, provisions and
conditions thereof shall be and remain in full force and effect.
7
SECTION
4. Governing
Law.
This
Amendment Number One shall be construed in accordance with the substantive
laws
of the State of New York (without regard to conflict of law principles other
than Section 5-1401 of the New York General Obligations Law which shall govern)
and the obligations, rights and remedies of the parties hereto shall be
determined in accordance with such laws.
SECTION
5. Severability
of Provisions.
If any
one or more of the provisions or terms of this Amendment Number One shall be
for
any reason whatsoever held invalid, then such provisions or terms shall be
deemed severable from the remaining provisions or terms of this Amendment Number
One and shall in no way affect the validity or enforceability of the other
provisions or terms of this Amendment Number One.
SECTION
6. Section
Headings.
The
section headings herein are for convenience of reference only, and shall not
limit or otherwise affect the meaning hereof.
SECTION
7. Counterparts.
This
Amendment Number One may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
[signature
page follows]
8
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
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ACE
SECURITIES CORP.,
as
Purchaser
By:
/s/
Xxxxxx
Xxxxxxxxxx
Name:
Xxxxxx Xxxxxxxxxx
Title:
Vice President
By:
/s/
Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Vice President
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DB
STRUCTURED PRODUCTS, INC.,
as
Seller
By:
/s/
Xxxxx
Xxxxxxxxx
Name:
Xxxxx Xxxxxxxxx
Title:
Director
By:
/s/
Xxxxx X.
Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Director
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