AMENDMENT NUMBER TWO Master Mortgage Loan Purchase and Servicing Agreement dated as of September 1, 2006 by and between OPTEUM FINANCIAL SERVICES, LLC and CITIGROUP GLOBAL MARKETS REALTY CORP.
AMENDMENT
NUMBER TWO
dated
as
of September 1, 2006
by
and
between
OPTEUM
FINANCIAL SERVICES, LLC
and
CITIGROUP
GLOBAL MARKETS REALTY CORP.
This
AMENDMENT NUMBER TWO is made this 23rd day of April, 2007, by and between OPTEUM
FINANCIAL SERVICES, LLC, having an address at W. 000 Xxxxxxx Xxxx, Xxxxxxx,
Xxx
Xxxxxx 00000 (the “Seller”) and CITIGROUP GLOBAL MARKETS REALTY CORP. having an
address at 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000 (the “Purchaser”), to the Master Mortgage Loan Purchase and
Servicing Agreement, dated as of September 1, 2006, by and between the Purchaser
and the Seller (the “Agreement”).
RECITALS
WHEREAS,
the parties hereto desire to
amend the Agreement subject to the terms and conditions of this
Amendment.
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. Amendment. Effective
as of April 23, 2007, the Agreement is hereby amended as follows:
(a) The
definition of “Distribution Date” in Section 1 of the Agreement is hereby
deleted in its entirety and replaced with the following:
“Distribution
Date: The twentieth (20th) day of each month, commencing on the
twentieth day of the month next following the month in which the related Cut-off
Date occurs, or if such twentieth (20th) day is not a Business Day, the first
Business Day immediately preceding such twentieth (20th) day.”
(b) The
definition of “Monthly Advance” in Section 1 of the Agreement is hereby deleted
in its entirety and replaced with the following:
“Monthly
Advance: The aggregate of the advances made by the Seller on any
Distribution Date pursuant to Subsection 11.21 of Exhibit
8.”
(c) The
definition of “Prepayment Period” in Section 1 of the Agreement is hereby
deleted in its entirety and replaced with the following:
“Prepayment
Period: (i) With respect to any Principal Prepayment in full, the
period from the 14th day of
the month
prior to the month in which the related Distribution Date occurs to and
including the 13th day of
the month
in which such Distribution Date occurs and (ii) with respect to any partial
Principal Prepayment, the calendar prior to the month in which such Distribution
Date occurs.”
(d) Section
11.15 of the Agreement is hereby amended by adding a new paragraph (c) after
paragraph (b) to read in its entirety as follows:
“(c) (i)
Not later than the fifth (5th) Business
Day of
each month, the Seller shall furnish to the Purchaser or its designee a
preliminary monthly remittance advice, with a trial balance report attached
thereto, as to the remittance period ending on the last day of the preceding
month and (ii) two (2) Business Days following the end of each Prepayment
Period, the Seller shall furnish to the Purchaser or its designee a final
monthly remittance advice, with a trial balance report attached thereto with
respect to any Principal Prepayments in full that occur during the period from
the last day of the preceding month to and including the thirteenth (13th) of the,
current
month.”
(e) The
representation and warranty set forth in Section 7.02(vi) is hereby amended
to
read in its entirety as follows:
(vi) No
Defenses. The Mortgage Note and the Mortgage are not subject to
any right of rescission, set off, counterclaim or defense, including the defense
of usury, nor will the operation of any of the terms of the Mortgage Note and/or
the Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set
off, counterclaim or defense, including the defense of usury and no such right
of rescission, set off, counterclaim or defense has been asserted with respect
thereto, and there is no basis for the Mortgage Loan to be modified or reformed
without the consent of the Mortgagor under applicable law;
(f) The
representation and warranty set forth in Section 7.02(lx) is hereby amended
by
deleting the word “average” and replacing it with the word
“overage”.
SECTION
2. Defined
Terms. Any terms capitalized but not otherwise defined herein
shall have the respective meanings set forth in the Agreement.
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. This Amendment Number Two shall apply to all Mortgage Loans
subject to the Agreement notwithstanding that any such Mortgage Loans were
purchased prior to the date of this Amendment Number Two.
SECTION
4. Governing
Law. This Amendment Number Two shall be construed in accordance with the
laws of the State of New York and the obligations, rights, and remedies of
the
parties hereunder shall be determined in accordance with such laws without
regard to conflict of laws doctrine applied in such state (other than Section
5-1401 or 5-1402 of the New York General Obligations Law).
SECTION
5. Counterparts.
This Amendment Number Two may be executed by each of the parties hereto on
any
number of separate counterparts, each of which shall be an original and all
of
which taken together shall constitute one and the same instrument. An
executed counterpart signature page delivered by facsimile shall have the same
binding effect as an original signature page.
[SIGNATURE
PAGE TO FOLLOW]
IN
WITNESS WHEREOF, the Seller and the
Purchaser have caused this Amendment Number Two to be executed and delivered
by
their duly authorized officers as of the day and year first above
written.
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OPTEUM
FINANCIAL SERVICES, LLC
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(Seller)
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By:
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/s/ Authorized Signatory |
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Name:
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Title:
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CITIGROUP
GLOBAL MARKETS REALTY CORP.
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(Purchaser)
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By:
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/s/ Authorized Signatory |
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Name:
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Title:
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