FIRST AMENDMENT TO MORTGAGE LOAN PURCHASE AGREEMENT
EXECUTION
VERSION
FIRST
AMENDMENT TO MORTGAGE LOAN PURCHASE AGREEMENT
This
First Amendment to Mortgage Loan Purchase Agreement (the “Amendment”)
is
made and entered into as of October 1, 2004 by and among Xxxxxxx Xxxxx
Mortgage Company, a New York limited partnership, as purchaser (the
“Purchaser”),
and
Washington Mutual Bank, FA, a savings association organized under the laws
of
the United States, Washington Mutual Bank fsb, a savings bank organized under
the laws of the United States and Washington Mutual Bank, a Washington state
chartered stock savings bank, as sellers (each, a “Seller”
and,
collectively, the “Sellers”).
RECITALS
WHEREAS,
pursuant to the terms and conditions of the that certain Mortgage Loan Purchase
Agreement by and among the Purchaser and the Sellers, dated as of
December 1, 2003 (the “Purchase
Agreement”),
the
Purchaser has agreed to purchase from time to time, and the Sellers have
agreed
to sell from time to time, certain residential, first-lien Mortgage Loans
(as
defined in the Purchase Agreement); and
WHEREAS,
the
Purchaser and the Sellers desire to amend the Purchase Agreement with respect
to
the terms applicable to Mortgage Loans purchased on or after the date of
this
Amendment;
NOW,
THEREFORE,
and in
consideration of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
AGREEMENT
1. Amendment
to Article I.
The
definitions of “Indemnified
Party”
and
“Repurchase
Price”
in
Article I of the Purchase Agreement are hereby amended to read in their entirety
as follows:
“Indemnified
Party:
As
defined in Exhibit C
attached
hereto.”
“Repurchase
Price:
With
respect to any Mortgage Loan,
unless
otherwise specified in the related Commitment Letter, an amount equal to
the sum
of (a) (i) if such repurchase occurs during the first twelve months following
the related Closing Date, (A) the Unpaid Principal Balance of such Mortgage
Loan, multiplied by (B) the Purchase Price Percentage, and (ii) if such
repurchase occurs after the first twelve months following the related Closing
Date or after such Mortgage Loan has been subject to a Pass-Through Transfer,
the Unpaid Principal Balance of such Mortgage Loan, plus (b) the amount of
interest on such Unpaid Principal Balance at the applicable Net Rate, from
the
date to which interest has last been paid and distributed to the Purchaser,
to
and including the last
day
of the month in which such repurchase occurs, plus (c) any costs and
damages (including, without limitation, late fees) actually incurred and
paid by
or on behalf of the trust in the applicable Pass-Through Transfer in connection
with the fact that such Mortgage Loan at the time it was made failed to comply
in all material respects with applicable federal, state or local predatory
and
abusive lending laws, to the extent such costs and damages result from a
breach
by the Seller of the representation and warranty set forth in
Section 3.1(gg).
2. Amendment
to Section 3.1(q).
The
third sentence of Section 3.1(q) of the Purchase Agreement is hereby
amended to read in its entirety as follows:
Each
such
policy was issued on the date of the origination of such Mortgage Loan by
a
title insurer acceptable under Seller’s underwriting guidelines and qualified to
do business in the jurisdiction where the Mortgaged Property is located,
insuring the Seller, and its successors and assigns, as to the first priority
lien of the Mortgage in the original principal amount of such Mortgage Loan,
plus, in the case of a Mortgage Loan that is subject to negative amortization,
the amount of any such negative amortization.
3. References
to Soldiers and Sailors Civil Relief Act of 1940.
Each
reference to “Soldiers and Sailors Civil Relief Act of 1940” in the Purchase
Agreement shall mean and be a reference to the Servicemembers Civil Relief
Act.
4. Amendment
to Section 7.6(iii).
Section 7.6(iii) of the Purchase Agreement is hereby amended to read in its
entirety as follows:
“(iii)
in
the case of the Purchaser:
Xxxxxxx
Sachs Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxx Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
With
a
copies to:
Legal
Department
Xxxxxxx
Sachs Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
and
Xxxxxxx
Xxxxx Mortgage Company
000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx
Xx.
Xxxxxxxxxx, XX 00000
Attention:
Xxxxxxx Xxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
2
or
such
other address as may hereafter be furnished to each of the Sellers and the
Servicer in writing by the Purchaser.
Notwithstanding
the foregoing, any demand, notice, consent, waiver or communication may be
given
by any other means if the parties hereto agree to such alternative means
in
writing.”
5. Miscellaneous.
(a) On
and
after the date of this Amendment, each reference in the Purchase Agreement
to
“this Agreement,” “hereunder,” “hereof,” “herein” or words of like import, shall
mean and be a reference to the Purchase Agreement, as amended by this
Amendment.
(b) Except
as
specifically amended above, the Purchase Agreement is and shall continue
to be
in full force and effect and is hereby ratified and confirmed in all respects.
In the event of a conflict between the terms of this Amendment and the terms
of
the Purchase Agreement, the terms of this Amendment shall control.
(c) This
Amendment may be executed in any number of counterparts and by different
parties
in separate counterparts, each of which taken together shall constitute one
and
the same original.
(d) This
Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York (including
Section 5-1401 of the New York General Obligations Law) and the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws without giving effect to conflict of laws principles
other than Section 5-1401 of the New York General Obligations
Law.
<Signature
Page Follows>
3
This
First Amendment to Mortgage Loan Purchase Agreement is AGREED AND ACCEPTED
AS OF
OCTOBER ___, 2004.
WASHINGTON
MUTUAL BANK, FA
a
federally chartered savings association
By:
Name:
Title:
WASHINGTON
MUTUAL BANK fsb
a
federal
savings bank
By:
Name:
Title:
WASHINGTON
MUTUAL BANK
a
Washington state chartered stock savings bank
By:
Name:
Title:
XXXXXXX
XXXXX MORTGAGE COMPANY
a
New
York limited partnership
|
By:
|
Xxxxxxx
Sachs Real Estate Funding Corp.,
|
General
Partner
By:
Name:
Title:
