EXECUTION
VERSION
AMENDMENT NO.
1
TO FLOW MORTGAGE LOAN
PURCHASE AND WARRANTIES AGREEMENT
Amendment No. 1, dated as of August 1, 2006
(the “ Amendment ”), by and between GOLDMAN
SACHS MORTGAGE COMPANY (the “ Purchaser ”) and
BANK OF AMERICA, NATIONAL ASSOCIATION (the “ Seller
”).
RECITALS
The Seller and the Purchaser are parties to that
certain Amended and Restated Flow Mortgage Loan Sale and Servicing
Agreement, dated as of July 1, 2005, (the “ Existing
Purchase Agreement ”; as amended by this Amendment, the
“ Purchase Agreement ”). Capitalized terms used
but not otherwise defined herein shall have the meanings given to
them in the Existing Purchase Agreement.
The Seller and the Purchaser have agreed,
subject to the terms and conditions of this Amendment, that the
Existing Purchase Agreement be amended to reflect certain agreed
upon revisions to the terms of the Existing Purchase
Agreement.
Accordingly, the Seller and the Purchaser hereby
agree, in consideration of the mutual promises and mutual
obligations set forth herein, that the Existing Purchase Agreement
is hereby amended as follows:
SECTION 1. Section 1 of the existing Purchase Agreement is
hereby amended by adding the following definitions:
Covered Loan : A Mortgage Loan categorized as Covered
pursuant to Appendix E of Standard & Poor’s
Glossary.
Deemed Material Breach Representation
: Each representation and warranty
identified as such in Subsection 7.01.
High Cost Loan : A Mortgage Loan (a) covered by the Home
Ownership and Equity Protection Act of 1994 (“HOEPA”),
(b) with an “annual percentage rate” or total
“points and fees” payable by the related Mortgagor (as
each such term is calculated under HOEPA) that exceed the
thresholds set forth by HOEPA and its implementing regulations,
including 12 C.F.R. § 226.32(a)(1)(i) and (ii), (c) classified
as a “high cost home,” “threshold,”
“covered,” “high risk home,”
“predatory” or similar loan under any other 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) or (d) a
Mortgage Loan categorized as High Cost pursuant to Appendix E of
Standard & Poor’s Glossary. For avoidance of doubt, the
parties agree that this definition shall apply to any law
regardless of whether such law is presently, or in the future
becomes, the subject of judicial review or litigation.
Prepayment Charge : 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.
SECTION 2. Section 7.01 of the existing Purchase Agreement
is hereby amended by:
(a) deleting the existing subsection (g) in its
entirety and replacing it with the following language:
(g)
Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer
credit protection, predatory, abusive and fair lending laws, equal
credit opportunity and disclosure laws or unfair and deceptive
practices laws applicable to the Mortgage Loan including, without
limitation, any provisions relating to prepayment penalties, have
been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws
or regulations, and the Seller shall maintain in its possession,
available for the Purchaser’s inspection, and shall deliver
to the Purchaser upon demand, evidence of compliance with all such
requirements. This representation and warranty is a Deemed Material
Breach Representation;
(b) deleting the existing subsection (zz) in its
entirety and replacing it with the following language:
(zz)
No Mortgage Loan is a High Cost
Loan or Covered Loan, as applicable,. No Mortgage Loan is covered
by the Home Ownership and Equity Protection Act of 1994 and no
Mortgage Loan is in violation of any comparable state or local law.
The Mortgaged Property is not located in a jurisdiction where a
breach of this representation with respect to the related Mortgage
Loan may result in additional assignee liability to the Purchaser,
as determined by Purchaser in its reasonable discretion. No
predatory or deceptive lending practices, including, without
limitation, the extension of credit without regard to the ability
of the Mortgagor to repay and the extension of credit which has no
apparent benefit to the Mortgagor, were employed in the origination
of the Mortgage Loan. Each Mortgage Loan is in compliance with the
anti-predatory lending eligibility for purchase requirements of
Fannie Mae’s Selling Guide. This representation and warranty
is a Deemed Material Breach Representation;
(c) deleting the existing subsection (bbb) in its
entirety and replacing it with the following language:
(bbb)
In connection with the origination
of any Mortgage Loan, no proceeds from any Mortgage Loan were used
to finance or acquire a single-premium credit life insurance
policy. No Mortgagor was required to purchase any single premium
credit insurance policy (e.g., life, disability, accident,
unemployment or property insurance product) or debt cancellation
agreement as a condition of obtaining the extension of credit. No
Mortgagor obtained a prepaid single premium credit insurance policy
(e.g., life, disability, accident, unemployment or property
insurance policy) in connection with the origination of the
Mortgage Loan; no proceeds from any Mortgage Loan were used to
purchase single premium credit insurance policies or debt
cancellation agreements as part of the origination of, or as a
condition to closing, such Mortgage Loan. This representation and
warranty is a Deemed Material Breach Representation;
(d) deleting the existing subsection (ccc) in its
entirety and replacing it with the following language:
(ccc)
The Mortgage Loan is subject to a
Prepayment Charge as provided in the related Mortgage Note except
as set forth on the related Mortgage Loan Schedule. With respect to
each Mortgage Loan that has a Prepayment Charge feature, each such
Prepayment Charge is enforceable and will be enforced by the Seller
for the benefit of the Purchaser, and each Prepayment Charge is
permitted pursuant to federal, state and local law. Each such
Prepayment Charge is in an amount not more than the maximum amount
permitted under applicable law and no such Prepayment Charge may
provide for a term in excess of five (5) years with respect to
Mortgage Loans originated prior to October, 1, 2002. With respect
to Mortgage Loans originated on or after October 1, 2002, the
duration of the Prepayment Charge period shall not exceed three (3)
years from the date of the Mor