AMENDMENT NO. 1
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0, dated as of June 1, 2006 (“Amendment”),
to
the Second Amended and Restated Master Mortgage Loan Purchase Agreement, dated
as of March 1, 2006, and as further amended, modified and supplemented from
time
to time (the “Purchase Agreement”),
between XXXXXXX XXXXX MORTGAGE COMPANY (the “Purchaser”)
and
INDYMAC BANK, F.S.B. (the “Seller”).
RECITALS
WHEREAS,
the parties hereto have entered into the Purchase Agreement;
WHEREAS,
the parties hereto desire to modify the Purchase Agreement as set forth in
this
Amendment;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Defined
Terms. Unless otherwise defined herein, terms defined in the Purchase Agreement
are used herein as therein defined.
2. Amendments.
(a) Amendment
of the Definition of High Cost Loan.
Section
1 of the Purchase Agreement is hereby amended by deleting the definition of
“High Cost Loan” therein in its entirety and replacing it with the following
definition:
“High
Cost Loan:
A
Mortgage Loan classified as (a) a “high cost” loan under the Home Ownership and
Equity Protection Act of 1994 (“HOEPA”), (b) with an “annual percentage rate” or
total “points and fees” payable by the related Mortgagor (as each such term is
calculated under HOEPA) that exceed the thresholds set forth by HOEPA and its
implementing regulations, including 12 C.F.R. § 226.32(a)(1)(i) and (ii), (c)
classified as a “high cost home,” “threshold,” “covered,” “high risk home,”
“predatory” or similar loan under any other applicable state, federal 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)
or
(d) a Mortgage Loan categorized as High Cost pursuant to Appendix E of Standard
& Poor’s Glossary. For avoidance of doubt, the parties agree that this
definition shall apply to any law regardless of whether such law is presently,
or in the future becomes, the subject of judicial review or
litigation.
(b) Amendment
of the Definition of Mortgage Loan Schedule.
Section
1 of the Purchase Agreement is hereby amended by adding the following as clause
(34) to the definition of “Mortgage Loan Schedule”:
“and
(34)
with respect to each Option ARM Mortgage Loan, (a) a detailed transaction
history indicating how all payments were applied, (b) the total negative
amortization amount as of the Closing Date and (c) all adjustable rate change
histories.”
(c) Amendment
of the Definition of Option Arm Mortgage Loan.
Section
1 of the Purchase Agreement is hereby amended by adding the definition of
“Option Arm Mortgage Loan” therein in its entirety:
“Option
ARM Mortgage Loan:
An
adjustable rate Mortgage Loan that gives the related Mortgagor three different
payment options each month, which include: (i) a minimum monthly payment option,
(ii) an interest-only payment option or (iii) a full principal and interest
option which amortizes over 30 years or less.”
(d) Amendment
of Compliance with Applicable Law Representation.
Subsection 3.02(g) of the Purchase Agreement is hereby amended by deleting
it in
its entirety and replacing it with the following:
“Compliance
with Applicable Laws.
Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, predatory, abusive and fair lending laws, equal credit
opportunity and disclosure laws or unfair and deceptive practices laws
applicable to the Mortgage Loan including, without limitation, any provisions
relating to prepayment penalties, have been complied with, the consummation
of
the transactions contemplated hereby will not involve the violation of any
such
laws or regulations, and the Seller shall maintain in its possession, available
for the Purchaser’s inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements. This representation and
warranty is a Deemed Material Breach Representation;”
(e) Amendment
of No Credit Insurance Policies.
Subsection 3.02(ss) of the Purchase Agreement is hereby amended by deleting
it
in its entirety and replacing it with the following:
“Single-premium
Credit Life Insurance Policy.
In
connection with the origination of any Mortgage Loan, no proceeds from any
Mortgage Loan were used to finance or acquire a single-premium credit life
insurance policy. No Mortgagor was required to purchase any single premium
credit insurance policy (e.g., life, disability, accident, unemployment or
property insurance product) or debt cancellation agreement as a condition of
obtaining the extension of credit. No Mortgagor obtained a prepaid single
premium credit insurance policy (e.g., life, disability, accident, unemployment
or property insurance policy) in connection with the origination of the Mortgage
Loan; no proceeds from any Mortgage Loan were used to purchase single premium
credit insurance policies or debt cancellation agreements as part of the
origination of, or as a condition to closing, such Mortgage Loan. This
representation and warranty is a Deemed Material Breach
Representation;”
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(f) Amendment
of Mortgage Loans with Prepayment Premiums Representation.
Subsection 3.02(tt) of the Purchase Agreement is hereby amended by deleting
it
in its entirety and replacing it with the following:
“Prepayment
Penalty.
The
Mortgage Loan is subject to a prepayment penalty as provided in the related
Mortgage Note except as set forth on the related Mortgage Loan Schedule. With
respect to each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and will be enforced by the Seller for the
benefit of the Purchaser, and each prepayment penalty is permitted pursuant
to
federal, state and local law. Each such prepayment penalty is in an amount
not
more than the maximum amount permitted under applicable law and no such
prepayment penalty may provide for a term in excess of five (5) years with
respect to Mortgage Loans originated prior to October, 1, 2002. With respect
to
Mortgage Loans originated on or after October 1, 2002, the duration of the
prepayment penalty period shall not exceed three (3) years from the date of
the
Mortgage Note unless the Mortgage Loan was modified to reduce the prepayment
penalty period to no more than three (3) years from the date of such Mortgage
Loan and the Mortgagor was notified in writing of such reduction in prepayment
penalty period. With respect to any Mortgage Loan that contains a provision
permitting imposition of a penalty upon a prepayment prior to maturity: (i)
the
Mortgage Loan provides some benefit to the Mortgagor (e.g., a rate or fee
reduction) in exchange for accepting such prepayment penalty, (ii) the Mortgage
Loan’s originator had a written policy of offering the Mortgagor or requiring
third-party brokers to offer the Mortgagor, the option of obtaining a mortgage
loan that did not require payment of such a penalty and (iii) the prepayment
penalty was adequately disclosed to the Mortgagor in the mortgage loan documents
pursuant to applicable state, local and federal law. This representation and
warranty is a Deemed Material Breach Representation;”
(g) Amendment
of Underwriting Methodology Representation.
Subsection 3.02(kkk) of the Purchase Agreement is hereby amended by deleting
it
in its entirety and replacing it with the following:
“Underwriting
Methodology.
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
does not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such extension of credit. The
methodology employed objective criteria that related such facts as, without
limitation, the Mortgagor’s credit history, income, assets or liabilities, to
the proposed mortgage payment and, based on such methodology, the Mortgage
Loan’s originator made a reasonable determination that at the time of
origination the Mortgagor had the ability to make timely payments on the
Mortgage Loan. Such underwriting methodology confirmed that at the time of
origination (application/approval) the Mortgagor had a reasonable ability to
make timely payments on the Mortgage Loan. This representation and warranty
is a
Deemed Material Breach Representation;”
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(h) Amendment
of Origination Practices Representation.
Subsection 3.02(ooo) of the Purchase Agreement is hereby amended by deleting
it
in its entirety and replacing it with the following:
“Origination
Practices.
The
Mortgagor was not 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 Mortgagor did not qualify taking into account such
facts as, without limitation, the Mortgage Loan’s requirements and the
Mortgagor’s credit history, income, assets and liabilities 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 Mortgagor 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 Mortgagor’s application
to such affiliate for underwriting consideration. For a Mortgagor who seeks
financing through a Mortgage Loan originator’s higher-priced subprime lending
channel, the Mortgagor was directed towards or offered the Mortgage Loan
originator’s standard mortgage line if the Mortgagor was able to qualify for one
of the standard products. This representation and warranty is a Deemed Material
Breach Representation;”
(i) Amendment
of Option Arm Mortgage Loans.
Subsection 3.02(ppp) of the Purchase Agreement is hereby amended by adding
the
following in its entirety:
“Option
Arm Mortgage Loans.
With
respect to each Option ARM Mortgage Loan, (a) the Seller (or a servicer on
its
behalf) either did not provide different payment options after a “teaser period”
or, if different payment options were provided, applied each payment received
under the Option ARM Mortgage Loan correctly in accordance with Accepted
Servicing Practices, (b) unless otherwise set forth on the Mortgage Loan
Schedule, the Option ARM Mortgage Loan has no negative amortization as of the
Closing Date and (c) such Option ARM Mortgage Loans were serviced in accordance
with Accepted Servicing Practices and all payment histories are set forth on
the
Mortgage Loan Schedule that would be required to service the Option ARM Mortgage
Loans after the Closing Date in accordance with Accepted Servicing
Practices.”
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(j) Amendment
of Manufactured Housing Representation.
Subsection 3.02(qqq) of the Purchase Agreement is hereby amended by adding
the
following in its entirety:
“Manufactured
Housing.
With
respect to any Mortgage Loan secured by a Mortgaged Property improved by
manufactured housing, (i) the related manufactured housing unit is permanently
affixed to the land, (ii) the related manufactured housing unit and the related
land are subject to a Mortgage properly filed in the appropriate public
recording office and naming the Seller as mortgagee, (iii) the related Mortgaged
Property is not located in the state of New Jersey and (iv) as of the
origination date of the related Mortgage Loan, the related manufactured housing
unit that secures such Mortgage Loan either: (x) was the principal residence
of
the Mortgagor or (y) was classified as real property under applicable state
law.
This representation and warranty is a Deemed Material Breach
Representation;”
(k) Amendment
of Second Lien Mortgage Loan Representation.
Subsection 3.02(rrr) of the Purchase Agreement is hereby amended by adding
the
following in its entirety:
“Second
Lien Mortgage Loans.
With
respect to each Second Lien Mortgage Loan:
a. No
Negative Amortization of Related First Lien Loan.
The
related first lien loan does not permit negative amortization;
b. Request
for Notice; No Consent Required.
Where
required or customary in the jurisdiction in which the Mortgaged Property is
located, the original lender has filed for record a request for notice of any
action by the related senior lienholder, and the Seller has notified such senior
lienholder in writing of the existence of the Second Lien Mortgage Loan and
requested notification of any action to be taken against the Mortgagor by such
senior lienholder. Either (a) no consent for the Second Lien Mortgage Loan
is
required by the holder of the related first lien loan or (b) such consent has
been obtained and is contained in the related Mortgage File;
c. No
Default Under First Lien.
To the
best of Seller’s knowledge, the related first lien loan is in full force and
effect, and there is no default lien, breach, violation or event which would
permit acceleration existing under such first lien mortgage or mortgage note,
and no event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach, violation
or
event which would permit acceleration under such first lien loan;
d. Right
to Cure First Lien.
The
related first lien mortgage contains a provision which provides for giving
notice of default or breach to the mortgagee under the Mortgage Loan and allows
such mortgagee to cure any default under the related first lien mortgage;
and
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e. Principal
Residence.
The
related Mortgaged Property is the Mortgagor’s principal residence.
This
representation and warranty is a Deemed Material and Adverse
Representation.”
3. Governing
Law. THIS
AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW WITHOUT REFERENCE TO CHOICE OF
LAW
DOCTRINE.
[SIGNATURE
PAGES FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
SELLER:
INDYMAC
BANK, F.S.B.
By:
__________________________
Name:
Title:
PURCHASER:
XXXXXXX
XXXXX MORTGAGE COMPANY, a
New
York limited partnership, as Purchaser
By: XXXXXXX
SACHS REAL ESTATE FUNDING CORP., a New York corporation, its General
Partner
By:
__________________________
Name:
Title: