Exhibit 10.15


 


FIRST
AMENDMENT TO

MORTGAGE LOAN REPURCHASE AGREEMENT


 


This First Amendment to
Mortgage Loan Repurchase Agreement (“Amendment”) is dated as of March 28,
2006, by and between SIRVA MORTGAGE, INC.,
an Ohio corporation f/k/a Cooperative Mortgage Services, Inc. (“Seller”),
and WASHINGTON MUTUAL BANK, a federal association, f.k.a. WASHINGTON MUTUAL
BANK, a federal association (“Washington Mutual”).


 


BACKGROUND


 


A.                                   Seller
and Washington Mutual are parties to a certain Mortgage Loan Repurchase Agreement
dated as of May 27, 2005 (as amended or modified from time to time, the “Flex
Agreement”) and related agreements, instruments and documents (collectively,
with the Flex Agreement, the “Existing Purchase Documents”). Capitalized terms
used but not otherwise defined in this Amendment shall have the meanings
respectively ascribed to them in the Flex Agreement.


 


B.                                     Seller
has requested that Washington Mutual amend the Flex Agreement in certain
respects, all on the terms and conditions set forth herein.


 


NOW, THEREFORE, the parties
hereto, intending to be legally bound, hereby promise and agree as follows:


 


Section 1.                                          Amendments.


 


(a)                                         The following
definition set forth in Section 1 (Definitions) of the Flex
Agreement is hereby amended and restated as follows:


 


“Defective
Mortgage Loan” means a Mortgage Loan (i) that does not conform to
any one or more of the representations or warranties made by Seller pursuant to
Section 11, (ii) that is sold in a transaction in which any one or
more of the representations and warranties of Seller contained in Section 12
are not true, correct and complete on the Acquisition Date, (iii) that is
subject to a Takeout Commitment with respect to which Seller is in default, (iv) that
is delivered to the Takeout Investor for examination and purchase but has not
been purchased upon expiration of thirty (30) days from the date the Mortgage
Loan was delivered to the Takeout Investor or is rejected or excluded for any
reason (other than default by MBF) from the related Takeout Commitment by the
Takeout Investor, (v) that is not purchased by the Takeout Investor in
compliance with the Takeout Commitment and this


 

















 


Agreement at or prior to the
expiration or termination of the Takeout Commitment for any reason (other than
default by MBF), or (vi) is not repurchased by Seller in compliance with
the provisions of Section 7.


 


(b)                                 The following
definition set forth in Annex 1, Section 2 of the Flex Agreement is
hereby amended and restated as follows:


 


Minimum Adjusted Tangible Net Worth:
The amount referenced in Section 13.12 of the Agreement is Eight Million
Five Hundred Thousand and No/100 Dollars ($8,500,000.00).


 


(c)                                  Annex 1 of the
Flex Agreement is hereby amended by the addition of the following Section 7:


 


7.                                       Representations
and Warranties Concerning Mortgage Loans. Without limiting or modifying
anything contained in Section 11 of the Agreement and in addition to each
of the representations and warranties set forth in Annex 2
concerning each Mortgage Loan then sold to MBF (as such representations and
warranties may be modified by another Annex) and each representation and
warranty concerning the Mortgage Loan set forth in another applicable Annex,
Seller also makes the following additional representation and warranty: The
principal amount of the Mortgage Loan is not in excess of $1,500,000.00 on the
Acquisition Date for such Mortgage Loan.


 


(d)                                 Annex 3 (Mortgage
Loans Subject to CL Commitments) of the Flex Agreement is hereby deleted in
its entirety and replaced by Annex 3 attached hereto.


 


(e)                                  The following
introductions to the following paragraphs respectively set forth in Annexes 4
and 5 of the Flex Agreement are hereby amended and restated to read as follows:


 


7.                                       Notwithstanding
anything to the contrary in Section 11 of the Agreement, with respect to a
Type 1 Nonconforming Loan, Seller only makes each of the following
representations and warranties set forth in Annex 2: 1-10
(inclusive), 11 (if such Mortgaged Property is occupied by the Mortgagor),
12-38 (inclusive), 41, and 43-end (inclusive). In addition, Seller also makes
each of the additional representations and warranties with respect to each Type
1 Nonconforming Loan set forth below:


 


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7.                                       Notwithstanding
anything to the contrary in Section 11 of the Agreement, with respect to a
Type 2 Nonconforming Loan, Seller only makes each of the following
representations and warranties set forth in Annex 2: 1-10
(inclusive), 11 (if such Mortgaged Property is occupied by the Mortgagor),
12-38 (inclusive), 41, and 43-end (inclusive). In addition, Seller also makes
each of the additional representations and warranties with respect to each Type
2 Nonconforming Loan set forth below:


 


(f)                                    The following
definition set forth in Annex 7, Section 1 of the Flex Agreement is
hereby amended and restated as follows:


 


“Undesignated
Loan” means a Mortgage Loan (i) that is not a Type 1
Nonconforming Loan, a Type 2 Nonconforming Loan, Type 3 Nonconforming Loan, or
a Type 4 Nonconforming Loan, and (ii) that is not subject to or covered by
a Takeout Commitment on the applicable Acquisition Date.


 


(g)                                 The Flex Agreement is
hereby amended by the addition of new Annex 9 (Provisions Relating to
Type 4 Nonconforming Mortgage Loans), attached hereto and incorporated
hereby for all intents and purposes.


 


Section 2.                                          Effectiveness
Conditions. This Amendment shall be effective upon the completion of the
following conditions precedent (all agreements, documents and instruments to be
in form and substance satisfactory to Washington Mutual and Washington
Mutual’s counsel):


 


(a)                                         Execution and
delivery by Seller of this Amendment to Washington Mutual; and


 


(b)                                        Execution
and/or delivery of all other agreements, instruments and documents requested by
Washington Mutual to effectuate and implement the terms hereof and the Existing
Purchase Documents.


 


Section 3.                                          Representations
and Warranties. Seller and Guarantor represent and warrant to Washington
Mutual that:


 


(a)                                         All warranties
and representations made to Washington Mutual under the Flex Agreement and the
Existing Purchase Documents are true and correct as to the date hereof.


 


(b)                                        The execution
and delivery by Seller of this Amendment and the performance by Seller of the
transactions herein contemplated (i) are and will be within such party’s
powers, (ii) have been authorized by all necessary organizational action,
and (iii) are not and will not be in contravention of any order of any
court or other agency of government, of law or any other indenture, agreement
or undertaking to which Seller is a


 


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party or by which the property of Seller is bound, or be in conflict
with, result in a breach of, or constitute (with due notice and/or lapse of
time) a default under any such indenture, agreement or undertaking or result in
the imposition of any lien, charge or encumbrance of any nature on any of the
properties of Seller.


 


(c)                                  This Amendment and
any assignment, instrument, document, or agreement executed and delivered in
connection herewith, will be valid, binding, and enforceable in accordance with
its respective terms.


 


(d)                                 No Event of Default or
Default has occurred under the Flex Agreement or any of the other Existing Purchase
Documents.


 


Section 4.                                          Ratification
of Existing Purchase Documents. Except as expressly set forth herein, all
of the terms and conditions of the Flex Agreement and Existing Purchase
Documents are hereby ratified and confirmed and continue unchanged and in full
force and effect. All references to the Flex Agreement shall mean the Flex
Agreement as modified by this Amendment.


 


Section 5.                                          Governing
Law. This Amendment, and all matters arising out of or related to this
Amendment, shall be governed by, construed and enforced in accordance with the
laws of the State of Texas, excluding its conflict of laws rules.


 


Section 6.                                          Counterparts.
This Amendment may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, and such counterparts
together shall constitute one and the same respective agreement. Signature by
facsimile shall also bind the parties hereto.


 


[Signatures Appear on Following
Page]


 


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Executed to be effective as the
date and year first written above.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  SIRVA
  MORTGAGE, INC., an Ohio corporation,

  f/k/a Cooperative Mortgage Services, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul E. Klemme

  
	
   

  	
  Name:

  	
  Paul E. Klemme

  
	
   

  	
  Title:

  	
  President

  



 


First Amendment to Mortgage Loan
Purchase and Sale Agreement


Signature Page


 

















 


	
   

  	
  WASHINGTON MUTUAL:

  
	
   

  	
   

  
	
   

  	
  WASHINGTON MUTUAL BANK,

  
	
   

  	
  a federal association, f/k/a.

  
	
   

  	
  WASHINGTON MUTUAL BANK, FA,

  
	
   

  	
  a federal association

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ben R.
  Culver

  
	
   

  	
  Name:

  	
  Ben R.
  Culver

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


First Amendment to Mortgage Loan
Purchase and Sale Agreement


Signature Page


 

















 


Annex 3


 


Mortgage Loans Subject to CL Commitments


 


1.                                       Additional
Definitions. In addition to the definitions set forth in Section 1 of
the Agreement, the following definitions apply:


 


“AOT
Commitment” means a CL Commitment issued by CL under its Assignment
of Trade (AOT) commitment option program, which is part of the CL Program.


 


“CL Commitment”
means any irrevocable commitment issued by CL pursuant to CL Program to acquire
one or more Mortgage Loans on or before a specified delivery date.


 


“CL Funding”
means, with respect to a Mortgage Loan subject to a CL Commitment, the
completion of the transactions required to be completed on the CL Funding Date.


 


“CL Funding Advice”
means the Takeout Funding Advice prepared by CL and delivered to Seller on or
before the CL Funding Date itemizing, for a particular Mortgage Loan, the net
amount payable by CL.


 


“CL Funding Date”
means the date on which CL acquires ownership of a Mortgage Loan from Seller
pursuant to the terms of the CL Commitment.


 


2.                                       Modified
or Clarified Definitions. The definitions set forth in Section 1 of
the Agreement are clarified or modified, as applicable, as follows:


 


“Credit File”: In the case of a Mortgage Loan
originated for sale to CL under the CL Program, the “Credit File” shall contain
all of the records required to be included in the “Credit File” or “credit
package” described in Chapter 400 and other portions of the Seller Guide.


 


“Scheduled Repurchase
Date”: For a Mortgage Loan that is subject to a CL
Commitment, the “Scheduled Repurchase Date” shall be the same date as the CL
Funding Date.


 


“Takeout Commitment”:
A CL Commitment is one form of a Takeout Commitment.


 


“Takeout Funding”:
A CL Funding is one form of Takeout Funding.


 


“Takeout Funding Advice”:
A CL Funding Advice is one form of a Takeout Funding Advice.


 


“Takeout Guidelines”:  In the case of the CL Program, the Takeout
Guidelines include (but are not limited to) the Seller Guide.


 


“Takeout Investor”:
In addition to the to the investors listed on Exhibit I, “Takeout
Investor” includes CL.


 


3.                                       Seller’s
Continuing Duties. Without limiting the generality of Section 6 of the
Agreement, Seller shall obtain and timely deliver to CL the additional
documents required under the AOT Commitment option program for each purchased
Mortgage Loan for which an AOT Commitment had been issued.


 


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4.                                       Second
Closing. In the case of a Mortgage Loan originated for sale to CL under the
CL Program which MBF has purchased under the Agreement on a servicing-retained
basis, if Seller has designated CL to receive the documents and rights conveyed
by MBF pursuant to subsection 7.3(b) of the Agreement, then the
retention by MBF of the Mortgage Note pursuant to Section 7.1 of the
Agreement and delivery of documents and conveyance of rights by MBF to CL as
designee of Seller under subsection 7.3(b) of the Agreement shall be
considered the conveyance of the Mortgage Note, such other documents and rights
to CL by Seller for the purpose of establishing Seller’s obligations to
complete certain post-sale obligations (and the time periods therefor described
in the CL Program). For example, Seller’s obligation under the CL Program to
deliver to CL all final closing documents in connection with a Mortgage Loan
within the time period described in the Seller Guide shall be measured from the
Repurchase Date. On and after the Repurchase Date, CL shall have all rights,
privileges and remedies with respect to a Mortgage Loan purchased under the
Agreement as it has for Mortgage Loans purchased directly from Seller under the
CL Program, including the post-sale remedies described in Chapter 600 of the
Seller Guide, and CL shall manage the ownership and servicing of Mortgage Loans
purchased under the Agreement as it does all Mortgage Loans purchased directly
by it in the first instance under the CL Program.


 


5.                                       Note
Shipment. Notwithstanding Section 7.1 of the Agreement, if the
Mortgage Loan is subject to a CL Commitment, the parties agree that MBF shall
retain the Mortgage Note for the benefit of CL.


 


6.                                       Early
Repurchases. Notwithstanding clause (iii) of Section 8.2(a) of
the Agreement, the refusal of CL to honor its Takeout Commitment and complete
the purchase of a Mortgage Loan shall not give MBF the right to require the
early repurchase of the Mortgage Loan as provided in Section 8.2(a) of
the Agreement; provided, however, that if CL has rejected a
Mortgage Loan, for any reason, then MBF shall have the right to require the
early repurchase of the Mortgage Loan pursuant to Section 8.2(a) of
the Agreement. In addition to its obligations under Section 8.2(b) of
the Agreement, upon receipt of the provisional Repurchase Price from Seller,
MBF shall deliver, or cause to be delivered, to Seller all documents for the
Mortgage Loan previously delivered to CL.


 


7.                                       CL
Program Obligations. On or after the CL Funding Date for a Mortgage Loan
originated for sale to CL under the CL Program but purchased under the
Agreement, Seller shall have such continuing repurchase obligations for such
Mortgage Loan as are provided in the CL Program and all purchase and sale
agreements entered thereunder, and nothing in the Agreement shall relieve
Seller of its duties and obligations under the CL Program (or similar program)
during the Post-Origination Period.


 


8.                                       Additional
Representations and Warranties Concerning Seller. Seller represents and
warrants as of the Effective Date and as of each Acquisition Date as follows:
Seller meets all of the eligibility requirements set forth in the Seller Guide
for participation in the CL Program and is currently approved by CL to
participate in the CL Program.


 


9.                                       Additional
Representations and Warranties Concerning Mortgage Loans. With respect to a
Mortgage Loan for which a CL Commitment has been issued under the CL Program,
in addition to each of the representations and warranties set forth in Annex 2,
Seller makes each of the additional Seller representations and warranties about
the Mortgage Loan contained in the Seller Guide, which are hereby incorporated
by this reference.


 


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Annex 9


 


Provisions Relating to Type 4 Nonconforming Loans


 


1.                                       Additional
Definitions. In addition to the definitions set forth in Section 1 of
the Agreement, the following definitions apply:


 


“Type 4
Nonconforming Loan” means a Mortgage Loan about which not all of the
representations and warranties set forth in Annex 2 are true and
correct but about which all of the representations and warranties in Section 7
of Annex 9 are true and correct.


 


“Type 4
Nonconforming Loan Sublimit” means $40,000,000.00 at any one time.


 


“1NC4 Loan”
means a Type 4 Nonconforming Loan that is a first lien Mortgage Loan.


 


“2NC4 Loan”
means a Type 4 Nonconforming Loan that is a second lien Mortgage Loan.


 


“1NC4
Sub-sublimit” means $0.00 at any one time.


 


“2NC4
Sub-sublimit” means $40,000,000.00 at any one time.


 


2.                                       Modified
or Clarified Definitions. The definitions set forth in Section 1 of
the Agreement are clarified or modified, as applicable, as follows:


 


“Acquisition Price”: For a 2NC4 Loan, the “Acquisition
Price” means an amount equal to ninety-six percent (96%) of the lesser of (a) the
Par Value of such 2NC4 Loan and (b) the Market Value of such 2NC4 Loan.


 


“Investment Return Rate”: For a 2NC4 Loan only, the “Investment
Return Rate” means the LIBOR Rate plus 300 basis points (3.00%) per annum.


 


“Maximum Takeout
Commitment Expiration Date”: For a 2NC4 Loan only, the
“Maximum Takeout Commitment Expiration Date” means the date that is ninety (90)
days after the Acquisition Date for such a Mortgage Loan.


 


3.                                       Purchase
and Sale. The following sentence is added to Section 2 of the
Agreement:


 


In no event
shall MBF be required to purchase any Type 4 Nonconforming Loan if the
Acquisition Price of such Type 4 Nonconforming Loan, when combined with the
aggregate Acquisition Price of all Type 4 Nonconforming Loans then held by MBF
(and then serviced by Seller or a Successor Servicer), is in excess of the Type
4 Nonconforming Loan Sublimit. In no event shall MBF be required to purchase
any 1NC4 Loan if the Acquisition Price of such 1NC4 Loan, when combined with
the aggregate Acquisition Price of all 1NC4 Loans then held by MBF (and then
serviced by Seller or a Successor Servicer), is in excess of the 1NC4
Sub-sublimit. In no event shall MBF be required to


 


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purchase any
2NC4 Loan if the Acquisition Price of such 2NC4 Loan, when combined with the
aggregate Acquisition Price of all 2NC4 Loans then held by MBF (and then serviced
by Seller or a Successor Servicer), is in excess of the 2NC4 Loan Sub-sublimit.


 


4.                                       Seller’s
Repurchase Obligations. The following sentence is added to the end of subsection 8.2(a) of
the Agreement:


 


In the case of
a Type 4 Nonconforming Loan, if Seller fails to obtain a Takeout Commitment for
such Type 4 Nonconforming Loan, or fails to provide to MBF a true and correct
photocopy of it or information about it required by Section 13.20, within
ninety (90) days after the Acquisition Date, MBF may notify Seller, and
notify Seller, and Seller shall promptly repurchase such Mortgage Loan at the
Repurchase Price on the date of repurchase.


 


5.                                       Additional
Seller’s Covenants. Section 13 of the Agreement is amended by the
addition of the following Section 13.20:


 


13.20                     Takeout
Commitment—Type 4. Seller shall make a commercially reasonable effort to
obtain a Takeout Commitment for each Type 4 Nonconforming Loan, and Seller
shall provide to MBF a true and correct photocopy of it or information about it
(in such format and by such media as MBF may from time to time determine)
as soon as practicable after Seller has obtained the Takeout Commitment. MBF
acknowledges that a Takeout Commitment for a Type 4 Nonconforming Loan may take
the form of a bulk trade commitment concerning a number of Type 4
Nonconforming Loans and certain other loans.


 


6.                                       Representations
and Warranties Concerning Type 4 Nonconforming Loans. Notwithstanding
anything to the contrary in Section 11 of the Agreement, with respect to a
Type 4 Nonconforming Loan, Seller only makes each of the following
representations and warranties set forth in Annex 2: 1-10
(inclusive), 11 (if such Mortgaged Property is occupied by the Mortgagor),
12-38 (inclusive), 41, and 43-end (inclusive). In addition, Seller also makes
each of the additional representations and warranties with respect to each Type
4 Nonconforming Loan set forth below:


 


(1)                                  Second
Lien Loan. The Mortgage is a second lien on the Mortgaged Property.


 


(2)                                  FICO
Scores. At the time of origination the Mortgagor had a score on the FICO
scale of at least 620.


 


(3)                                  Loan-to-Value
Ratio. The loan-to-value ratio of the first lien mortgage loan and the
Mortgage Loan combined is not in excess of 100%.


 


(4)                                  Debt
Service-to-Income Ratio. At the time of origination of the Mortgage Loan,
the ratio of the scheduled aggregate annual principal payment on the Mortgage
Loan to the annual income of the Mortgagor was not in excess of 50%.


 


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(5)                                  Mississippi
Loans. The Mortgaged Property is not located in the State of Mississippi.


 


(6)                                  Documentation.
The Mortgage Loan was documented in compliance with Seller’s full or stated
documentation program.


 


(7)                                  Purpose.
The Mortgage Loan was used to purchase a home for a relocating executive or
officer.


 


(8)                                  No
Mobile Home/Manufactured Housing Loans. The Mortgage Loan is not secured by
a mobile home or by manufactured housing.


 


(9)                                  No
Negative Amortization. The Mortgage Loan does not provide for negative
amortization or for the potential for negative amortization.


 


(10)                            Loan
Size Limit. The principal amount of the Mortgage Loan is not in excess of
$500,000 on the Acquisition Date for such Mortgage Loan.


 


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