AMENDMENT NO. 1 TO AMENDED AND RESTATED FLOW SELLER’S WARRANTIES AND SERVICING AGREEMENT
AMENDMENT
NO. 1
TO
AMENDED
AND RESTATED FLOW SELLER’S WARRANTIES
AND
SERVICING AGREEMENT
THIS
AMENDMENT NO. 1, made as of July 1, 2006 (“Amendment No. 1”), by and between
Xxxxxxx Xxxxx Mortgage Company, as purchaser (the “Purchaser”) and SunTrust
Mortgage, Inc., as seller and servicer (the “Company”).
RECITALS
WHEREAS,
Purchaser and Company previously executed the Amended and Restated Flow Seller’s
Warranties and Servicing Agreement for various residential first-lien mortgage
loans, dated and effective as of December 1, 2005 (the “Agreement”);
and
WHEREAS,
Purchaser and Company desire to make certain further modifications and
amendments to the Agreement as described herein;
NOW,
THEREFORE, in consideration of the mutual promises and covenants hereinafter
set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Section
1. Recitals.
Purchaser and Company agree that the foregoing recitals are true and correct
and
are incorporated herein by reference.
Section
2. Definitions.
(a) Capitalized
terms used herein and not otherwise defined shall have the meanings assigned
in
the Agreement. Capitalized terms used in the Agreement whose definitions are
modified in this Amendment No. 1 shall, for all purposes of the Agreement,
be
deemed to have such modified definitions.
(b) The
first
phrase of the definition of “Mortgage Loan Schedule” (“A schedule of Mortgage
Loans annexed hereto as Exhibit A, such schedule setting forth the following
information with respect to each Mortgage Loan”) is hereby deleted and replaced
with the following:
“The
schedule of Mortgage Loans, with respect to each pool of Mortgage Loans,
attached as Exhibit A to the related Assignment and Conveyance, setting forth
certain information with respect to each Mortgage Loan in such pool of Mortgage
Loans, which shall include the following information and any additional
information which shall be submitted from time to time as agreed to by the
parties (and which, as of the time of submission will be deemed to be part
of
the Mortgage Loan Schedule):”
Section
3. Representations
and Warranties.
Section
3.2 of the Agreement is hereby modified as follows:
(a) Subparagraph
(ix) is hereby modified by deleting the penultimate sentence therein and
replacing it as follows:
“Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state and federal laws, including, but not limited to, all
applicable predatory, abusive and fair lending laws.”
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(b)
Subparagraph (xxxix) is hereby modified by adding the following:
“No
Mortgage Loan is a “high cost home,” “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 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);”
(c) Subparagraph
(xli) is hereby added in its entirety as follows:
“Eligible
Products. With
respect to each Mortgage Loan, the related 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 for the Mortgage Loan originator’s lower cost products, taking
into account such facts as, without limitation, the Mortgage Loan’s requirements
and the borrower’s credit history, income,
assets and liabilities
and
debt-to-income ratios;”
(d) Subparagraph
(li) is hereby deleted and replaced in its entirety as follows:
“Underwriting
Methodology.
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
did not rely solely 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; and the Mortgagor’s income, assets
and liabilities to the proposed mortgage payment and, based on such underwriting
methodology, the Mortgage Loan’s originator made a reasonable determination that
at the time of origination (application/approval) the Mortgagor had a reasonable
ability to make timely payments on the Mortgage Loan;”
Section
4. Expenses.
Each
party hereto shall pay its own expenses in connection with this Amendment No.
1.
Section
5. Controlling
Law.
This
Amendment No. 1 shall be governed and construed in accordance with the laws
of
the State of New York applicable to agreements made and entirely performed
therein.
Section
6. Interpretation.
The
provisions of the Agreement shall be read so as to give effect to the provisions
of this Amendment No. 1.
Section
7. Counterparts.
This
Amendment No. 1 may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
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Section
8. Ratification
and Confirmation.
As
amended by this Amendment No. 1, the Agreement is hereby in all respects
ratified and confirmed, and the Agreement as amended by this Amendment No.
1
shall be read, taken and construed as one and the same instrument.
IN
WITNESS WHEREOF, Purchaser and Company have caused their names to be signed
hereto by their respective officers thereunto duly authorized, all as of the
date first above written.
XXXXXXX
SACHS MORTGAGE COMPANY, a
New
York limited partnership
By:
Xxxxxxx Xxxxx Real Estate Funding Corp., a New
York
corporation, its General Partner
By: __________________________________
Name:
__________________________________
Title:
___________________________________
SUNTRUST
MORTGAGE, INC.,
By: __________________________________
Name:
__________________________________
Title:
___________________________________
