AMENDMENT NO. 1
EXECUTION
COPY
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0, dated as of August 1, 2006 (“Amendment”),
to
the Second Amended and Restated Mortgage Loan Flow Purchase, Sale &
Servicing Agreement, dated as of May 1, 2006, and as further amended, modified
and supplemented from time to time (the “Purchase
Agreement”),
between XXXXXXX
XXXXX MORTGAGE COMPANY
(the
“Purchaser”)
and
PHH
MORTGAGE CORPORATION
(formerly known as CENDANT
MORTGAGE CORPORATION)
and
XXXXXX’X GATE RESIDENTIAL MORTGAGE TRUST (formerly known as CENDANT
RESIDENTIAL MORTGAGE TRUST)
(the
“Sellers”).
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) Section
1
of the Purchase Agreement is hereby amended by adding the following language
into the definition of “Mortgage Loan” following the words “Disposition
Proceeds” and prior to the words “and other proceeds relating
thereto”:
“Prepayment
Penalties,”
(b) Section
1
of the Purchase Agreement is hereby amended by deleting the definition of “Due
Period” therein in its entirety and replacing it with the following
definition:
““Due
Period”:
With
respect to each Remittance Date, the period commencing on the first day of
the
month immediately preceding the month of such Remittance Date and ending on
the
last day of such month.”
(c) Section
1
of the Purchase Agreement is hereby amended by deleting the definition of
“Mortgage Loan Schedule” therein in its entirety and replacing it with the
following definition:
““Mortgage
Loan Schedule”:
The
list of Mortgage Loans identified on each Funding Date that sets forth certain
information with respect to each Mortgage Loan, which must include at a minimum
the information specified on Schedule
A
hereto
(as amended from time to time to reflect the addition of any Qualified
Substitute Mortgage Loans). A Mortgage Loan Schedule will be prepared for each
Funding Date.”
(d) Section
1
of the Purchase Agreement is hereby amended by adding the following definition
of “Prepayment Penalty” after the definition of “Prepaid Monthly Payment” and
prior to the definition of “Prepayment Period”:
““Prepayment
Penalty”:
With
respect to each Mortgage Loan, the fee, if any, payable upon the prepayment,
in
whole or in part, of such Mortgage Loan, as set forth in the related Mortgage
Note.”
(e) The
first
sentence of the last paragraph of Section 2.01 of the Purchase Agreement is
modified by adding the following language after the words “Cut-off Date” and
prior to the words “and all payments of interest”:
“all
Prepayment Penalties collected after the related Cut-off Date”
(f) Clause
(13) of Section 3.03 of the Purchase Agreement is hereby amended by adding
the
following language after the words “enforceable in accordance with its terms”
and prior to the words “except as such enforcement may be limited by
bankruptcy”:
“(including,
without limitation, any provisions therein relating to Prepayment
Penalties)”
(g) Clause
(3)(c) of Section 5.01 of the Purchase Agreement is hereby amended by adding
the
following language after the words “the Purchaser’s written consent” and prior
to the words “prior to the Servicer taking any of the following actions:”:
“prior
to
any Reconstitution and”
(h) Clause
(6) of Section 5.05 of the Purchase Agreement is hereby amended by deleting
the
following language after the words “Remittance Date)” and prior to the words “;
provided that no such amounts shall be payable as servicing compensation”:
“and
(b)
any prepayment penalties or premiums relating to any Principal
Prepayments”
(i) The
first
sentence of the eighth paragraph of Section 5.15 of the Purchase Agreement
is
hereby amended by adding the following language after the words “the Servicer
shall request the approval of the Purchaser” and prior to the words “in
accordance with Section 5.01(3) (c)”:
“prior
to
any Reconstitution”
2
(j) The
Purchase Agreement is hereby amended by adding Schedule A. Schedule A will
include at a minimum the following: (1) the Seller’s Mortgage Loan
identifying number; (2) the Mortgagor’s name; (3) the social security
number of the Mortgagor; (4) a code indicating whether the Mortgagor’s race
and/or ethnicity is (i) native American or Alaskan native,
(ii) Asian/Pacific islander, (iii) African American, (iv) white,
(v) Hispanic or Latino, (vi) other minority, (vii) not provided
by the Mortgagor, (viii) not applicable (if the Mortgagor is an entity) and
(ix) unknown or missing; (5) the street address of the Mortgaged
Property including the city, state and zip code; (6) a code indicating
whether the Mortgagor is self-employed; (7) a code indicating whether the
Mortgaged Property is owner-occupied, investment property or a second home;
(8) a code indicating the number and type of residential units constituting
the Mortgaged Property (e.g. single family residence, two-family residence,
three-family residence, four-family residence, multifamily residence,
condominium, manufactured housing, mixed-use property, raw land and other
non-residential properties, planned unit development or cooperative stock in
a
cooperative housing corporation); (9) the original months to maturity or
the remaining months to maturity from the related Cut-off Date, in any case
based on the original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual amortization schedule;
(10) the Loan-to-Value Ratio at origination; (11) the Mortgage
Interest Rate as of the related Cut-off Date; (12) the date on which the
first Monthly Payment was due on the Mortgage Loan and, if such date is not
consistent with the Due Date currently in effect, the Due Date; (13) the
stated maturity date; (14) the amount of the Monthly Payment as of the
related Cut-off Date; (15) the actual interest paid through date of the
Mortgage Loan as of the Closing Date; (16) the schedule of the payment
delinquencies in the prior 12 months; (17) the original principal
amount of the Mortgage Loan; (18) the principal balance of the Mortgage
Loan as of the close of business on the related Cut-off Date, after deduction
of
payments of principal due and collected on or before the related Cut-off Date;
(19) whether the Mortgage Loan has Monthly Payments that are interest-only
for a period of time, and the interest-only period, if applicable;
(20) with respect to each Mortgage Loan with a second lien behind it, the
combined loan-to-value of the Mortgage Loan at origination;
(21) [reserved]; (22) with respect to Adjustable Rate Mortgage Loans,
the Interest Rate Adjustment Date; (23) with respect to Adjustable Rate
Mortgage Loans, the Gross Margin; (24) with respect to Adjustable Rate
Mortgage Loans, the Lifetime Rate Cap under the terms of the Mortgage Note;
(25) with respect to Adjustable Rate Mortgage Loans, a code indicating the
type of Index, including the methodology for rounding (e.g. rounded upward,
if
necessary, to the nearest ten thousandth (.0001)) and the applicable time
frame for determining the Index; (26) the product type of Mortgage Loan
(i.e., Fixed Rate, Adjustable Rate); (27) a code indicating the purpose of
the loan (i.e., purchase, Rate/Term Refinance or Cash-Out Refinance);
(28) a code indicating the documentation style (i.e. no documents, full,
alternative, reduced, no income/no asset, stated income, no ration, reduced
or
NIV); (29) asset verification (Y/N); (30) the loan credit
classification (as described in the Underwriting Guidelines); (31) whether
such Mortgage Loan provides for a Prepayment Penalty; (32) the Prepayment
Penalty period of such Mortgage Loan, if applicable; (33) a description of
the Prepayment Penalty, if applicable; (34) the Mortgage Interest Rate as
of origination; (35) the credit risk score (FICO score); (36) the date
of origination; (37) with respect to Adjustable Rate Mortgage Loans, the
Mortgage Interest Rate adjustment period; (38) with respect to Adjustable
Rate Mortgage Loans, the Mortgage Interest Rate adjustment percentage;
(39) with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest
Rate floor; (40) the Mortgage Interest Rate calculation method (i.e.,
30/360, simple interest, other); (41) with respect to Adjustable Rate
Mortgage Loans, the Periodic Rate Cap as of the first Interest Rate Adjustment
Date; (42) with respect to each Adjustable Rate Mortgage Loan, a code
indicating whether the Mortgage Loan provides for negative amortization;
(43) a code indicating whether the Mortgage Loan has negative amortization
and the maximum of such negative amortization; (44) a code indicating
whether the Mortgage Loan is a Balloon Mortgage Loan; (45) a code
indicating whether the Mortgage Loan by
its
original terms or any modifications thereof provides for amortization beyond
its
scheduled maturity date;
(46) the original Monthly Payment due; (47) the Appraised Value;
(48) appraisal type; (49) a code indicating whether the Mortgage Loan
is covered by a PMI Policy and, if so, identifying the PMI Policy provider;
(50) the certificate number of the PMI Policy, if applicable; (51) the
amount of coverage of the PMI Policy, if applicable; (52) with respect to
the related Mortgagor, the debt-to-income ratio; (53) sales price;
(54) automated valuation model (AVM); (55) a code indicating whether
the Mortgage Loan is a MERS Designated Mortgage Loan and the MERS Identification
Number, if applicable; and (56) the DU or LP number, if applicable. With
respect to the Mortgage Loans in the aggregate, the related Mortgage Loan
Schedule shall set forth the following information, as of the related Cut-off
Date: (1) the number of Mortgage Loans; (2) the current aggregate
outstanding principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; (4) the weighted
average maturity of the Mortgage Loans; (5) the average principal balance
of the Mortgage Loans; (6) the applicable Cut-off Date; and (7) the
applicable Closing Date.
3. Except
as
expressly amended and modified by this Amendment, the Purchase Agreement shall
continue to be, and shall remain, in full force and effect in accordance with
its terms.
3
4. This
Amendment may be executed in one or more counterparts and by different parties
hereto on separate counterparts, each of which, when so executed, shall
constitute one and the same agreement.
5. Governing
Law. THIS
AMENDMENT SHALL BE GOVERNED BY NEW YORK LAW WITHOUT REFERENCE TO CHOICE OF
LAW
DOCTRINE.
[SIGNATURE
PAGES FOLLOW]
4
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.
SELLERS:
PHH
MORTGAGE CORPORATION (formerly
known
as
CENDANT MORTGAGE
CORPORATION)
By:
Name:
Crissy Judge
Title:
Assistant Vice
President
XXXXXX’X
GATE RESIDENTIAL
MORTGAGE
TRUST (formerly known as
CENDANT
RESIDENTIAL MORTGAGE
TRUST)
By: PHH
Mortgage Corporation, as Administrator
By:
Name:
Crissy Judge
Title:
Assistant Vice
President
PURCHASER:
XXXXXXX
SACHS MORTGAGE COMPANY, a
New
York
limited partnership, as Purchaser
By: XXXXXXX
XXXXX REAL ESTATE
FUNDING
CORP., a New York
corporation,
its General Partner
By:
Name:
Title:
