AMENDMENT NO. 1
Exhibit
99.16b
AMENDMENT
NO. 1
This
AMENDMENT NO. 1, dated as of December 1, 2006 (this
“Amendment”), to the Second Amended and Restated Mortgage Loan Purchase
and Warranties Agreement, dated as of June 1, 2006 (the
“Agreement”), is by and between XXXXXX XXXXXXX MORTGAGE CAPITAL INC., a
New York corporation, as purchaser, and QUICKEN LOANS, INC., a Michigan
corporation, as seller.
RECITALS
WHEREAS,
the parties hereto have entered into the Agreement;
WHEREAS,
the parties hereto desire to modify the 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. Capitalized terms used but not defined in this Amendment
having the meaning given to them in the Agreement.
2. Amendments.
The
Agreement is hereby amended by:
(a) deleting
the word “and” before clause (53) in the definition of “Mortgage Loan Schedule”
in Section 1 of the Agreement and adding the following new clauses (54) and
(55)
in such definition:
“(54)
a
code indicating if the Mortgage Loan is an Option ARM Mortgage Loan; and (55)
with respect to each Option ARM Mortgage Loan, (i) a detailed transaction
history indicating how all payments were applied; (ii) the total negative
amortization amount as of the related Closing Date; (iii) a complete history
of
all changes to the applicable Mortgage Interest Rate; and (iv) the interest
rate
used to determine the minimum monthly payment on such Option ARM Mortgage Loan;
provided however, items (i) and (iii) may be provided on the Transfer Date
if
they have not been provided on the Mortgage Loan Schedule.”
(b) adding
the following new defined term to Section 1 of the Agreement:
“Option
ARM Mortgage Loan: An Adjustable Rate Mortgage Loan that gives the related
Mortgagor the following different payment options each month for a certain
period of time: (i) a
minimum
monthly payment option, (ii) an interest-only payment option or (iii) a full
principal and interest payment option which amortizes over a period of 30 years
or less.”
(c) deleting
clause (t) of Subsection 9.02 of the Agreement and replacing it with the
following:
“(t) Origination;
Payment Terms. The Mortgage Loan was originated by a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to
Sections 203 and 211 of the National Housing Act, a savings and loan
association, a savings bank, a commercial bank, credit union, insurance company
or other similar institution which is supervised and examined by a federal
or
state authority. Principal payments (or payments, in the case of
Option ARM Mortgage Loans) on the Mortgage Loan commenced no more than seventy
days after funds were disbursed in connection with the Mortgage
Loan. The Mortgage Interest Rate as well as, in the case of an
Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the Periodic Rate
Cap
and the Periodic Rate Floor are as set forth on the related Mortgage Loan
Schedule. The Mortgage Interest Rate is adjusted with respect to
Adjustable Rate Mortgage Loans, on each Interest Rate Adjustment Date to equal
the Index plus the Gross Margin (rounded up or down to the nearest 0.125%),
subject to the Periodic Rate Cap. Unless specified on the related
Mortgage Loan Schedule as an Option ARM Mortgage Loan, an interest-only loan
or
a Balloon Mortgage Loan, the Mortgage Note is payable in equal monthly
installments of principal (except for Option ARM Mortgage Loans and Mortgage
Loans that provide for a fixed period of interest-only payments at the beginning
of their term) and interest, which installments of interest, with respect to
Adjustable Rate Mortgage Loans, are subject to change due to the adjustments
to
the Mortgage Interest Rate on each Interest Rate Adjustment Date, with interest
calculated and payable in arrears, sufficient to amortize the Mortgage Loan
fully by the stated maturity date, over an original term of not more than thirty
(30) years from commencement of amortization. With respect to any
Option ARM Mortgage Loan or Mortgage Loan that provides for a fixed period
of
interest-only payments at the beginning of its term, at the end of the option
period or such interest-only period, as applicable, the Monthly Payment will
be
recalculated so as to require Monthly Payments sufficient to amortize the
Mortgage Loan fully by its stated maturity date. Unless otherwise
specified on the related Mortgage Loan Schedule, the Mortgage Loan is payable
on
the first day of each month. The Mortgage Loan, by its original terms
or any modification thereof, does not provide for amortization
2
beyond
its scheduled maturity date. The Mortgage Loan does not require a
balloon payment on its stated maturity date;”
(d) deleting
the word “and” before clause (iii) of Subsection 9.02 of the Agreement and
adding new clauses (jjj) and (kkk) thereto:
“(jjj) No
Negative Amortization. No Mortgage Loan (other than an Option ARM
Mortgage Loan) is subject to negative amortization. No Option ARM
Mortgage Loan permits negative amortization in excess of 115% (110%, with
respect to each Option ARM Mortgage Loan secured by Mortgaged Property located
in the State of New York) of the original principal balance of such Option
ARM
Mortgage Loan; and
(kkk) Option
ARM Mortgage Loans. With respect to each Option ARM Mortgage
Loan, (1) the Seller (or the related 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,
and
(2) such related 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.”
3. Effects
of Amendment. The provisions of this Amendment shall apply to all
of the Mortgage Loans purchased pursuant to the Agreement from and after the
date of this Amendment.
4. Ratification
of Agreement. Except as modified and expressly amended by this
Amendment, 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.
5. Counterparts. This
Amendment may be executed by one or more of the parties hereto on any number
of
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
6. Governing
Law. THIS AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
[SIGNATURE
PAGE FOLLOWS]
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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.
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XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
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QUICKEN
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