First Amendment to Mortgage Origination Agreement - Home Plus Home Loan Program - Arizona

This printable "First Amendment to Mortgage Origination Agreement - Home Plus Home Loan Program" is a document issued by the Arizona Department of Housing specifically for Arizona residents.

Download a PDF of the latest edition of the form down below or find it through the department's forms library.

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#373695736v5
ARIZONA INDUSTRIAL DEVELOPMENT AUTHORITY
HOME PLUS HOME LOAN PROGRAM
FIRST AMENDMENT TO MORTGAGE ORIGINATION AGREEMENT
(relating to addition of P2P Down Payment Assistance)
This First Amendment to the Mortgage Origination Agreement (this “Amendment”) amends the
Mortgage Origination Agreement (revised and updated as of April 11, 2018) (the “Original Agreement”)
entered into by and between the Arizona Industrial Development Authority (the “Authority”) and the
Lender executing this Amendment.
The Lender previously executed the Original Agreement in
connection with the Authority’s “Home Plus” Mortgage Loan Program (and any other program sponsored
by the Authority and covered by the Original Agreement (collectively, the “Program”). Capitalized terms
used herein and not otherwise defined have the meaning set forth in the Original Agreement.
WHEREAS, the Authority and the Lender wish to amend the Original Agreement in order to
make available an additional source of down payment and closing cost assistance to qualified borrowers
under the Program; and;
WHEREAS, the Authority has entered into a Down Payment Assistance Program Service
Agreement with the Arizona Home Foreclosure Prevention Funding Corporation (the “Corporation”), and
the Corporation’s administrator, the Arizona Department of Housing (“ADOH”), pursuant to which down
payment and closing cost assistance from the Corporation’s “Pathway to Purchase” program (“P2P Down
Payment Assistance”) will be offered to qualified borrowers (as an alternative to the Down Payment
Assistance offered under the Home Plus Program) within the Program Area (or designated areas therein)
(the “P2P DPA Program”); and
WHEREAS, the P2P Down Payment Assistance will be funded in conjunction with a first-lien
mortgage loan made by the Lender under the Home Plus Program, and the P2P Down Payment
Assistance will be funded by a second-lien mortgage loan to qualified borrowers made in accordance with
the guidelines established by ADOH for the P2P DPA Program (the “P2P DPA Program Guidelines”);
and
WHEREAS, ADOH will administer and operate the P2P DPA Program and the Lender will be
required to comply with the P2P DPA Program Guidelines and work directly with ADOH in order to
access the P2P Down Payment Assistance; and
WHEREAS, the P2P DPA Program will be available only with respect to Conventional Mortgage
Loans that will be pooled into FHLMC Certificates (subject to change in the sole discretion of the
Authority).
NOW, THEREFORE, in consideration of the promises set forth herein, the parties mutually agree
as follows:
Section 1. Addition of P2P Down Payment Assistance to Home Plus Program. P2P Down
Payment Assistance shall be made available to qualified borrowers of first-lien mortgage loans originated
under the Home Plus Program, subject to satisfaction of all the terms and conditions to the provision of
P2P Down Payment Assistance as set forth in the P2P DPA Program Guidelines. The P2P Down
Payment Assistance will be (i) available in the Program Area established for the Home Plus Program,
subject to modification in the sole discretion of the Authority, and (ii) available only with respect to
#373695736v5
ARIZONA INDUSTRIAL DEVELOPMENT AUTHORITY
HOME PLUS HOME LOAN PROGRAM
FIRST AMENDMENT TO MORTGAGE ORIGINATION AGREEMENT
(relating to addition of P2P Down Payment Assistance)
This First Amendment to the Mortgage Origination Agreement (this “Amendment”) amends the
Mortgage Origination Agreement (revised and updated as of April 11, 2018) (the “Original Agreement”)
entered into by and between the Arizona Industrial Development Authority (the “Authority”) and the
Lender executing this Amendment.
The Lender previously executed the Original Agreement in
connection with the Authority’s “Home Plus” Mortgage Loan Program (and any other program sponsored
by the Authority and covered by the Original Agreement (collectively, the “Program”). Capitalized terms
used herein and not otherwise defined have the meaning set forth in the Original Agreement.
WHEREAS, the Authority and the Lender wish to amend the Original Agreement in order to
make available an additional source of down payment and closing cost assistance to qualified borrowers
under the Program; and;
WHEREAS, the Authority has entered into a Down Payment Assistance Program Service
Agreement with the Arizona Home Foreclosure Prevention Funding Corporation (the “Corporation”), and
the Corporation’s administrator, the Arizona Department of Housing (“ADOH”), pursuant to which down
payment and closing cost assistance from the Corporation’s “Pathway to Purchase” program (“P2P Down
Payment Assistance”) will be offered to qualified borrowers (as an alternative to the Down Payment
Assistance offered under the Home Plus Program) within the Program Area (or designated areas therein)
(the “P2P DPA Program”); and
WHEREAS, the P2P Down Payment Assistance will be funded in conjunction with a first-lien
mortgage loan made by the Lender under the Home Plus Program, and the P2P Down Payment
Assistance will be funded by a second-lien mortgage loan to qualified borrowers made in accordance with
the guidelines established by ADOH for the P2P DPA Program (the “P2P DPA Program Guidelines”);
and
WHEREAS, ADOH will administer and operate the P2P DPA Program and the Lender will be
required to comply with the P2P DPA Program Guidelines and work directly with ADOH in order to
access the P2P Down Payment Assistance; and
WHEREAS, the P2P DPA Program will be available only with respect to Conventional Mortgage
Loans that will be pooled into FHLMC Certificates (subject to change in the sole discretion of the
Authority).
NOW, THEREFORE, in consideration of the promises set forth herein, the parties mutually agree
as follows:
Section 1. Addition of P2P Down Payment Assistance to Home Plus Program. P2P Down
Payment Assistance shall be made available to qualified borrowers of first-lien mortgage loans originated
under the Home Plus Program, subject to satisfaction of all the terms and conditions to the provision of
P2P Down Payment Assistance as set forth in the P2P DPA Program Guidelines. The P2P Down
Payment Assistance will be (i) available in the Program Area established for the Home Plus Program,
subject to modification in the sole discretion of the Authority, and (ii) available only with respect to
Conventional Mortgage Loans that will be pooled by the Servicer into FHLMC Certificates, subject to
modification in the sole discretion of the Authority.
Section 2. Limited Liability. The provisions of Sections 24 and 25 of the Original Agreement
relating to limited liability shall apply for purposes of this First Amendment and shall be deemed
amended to include references to the funding of P2P Down Payment Assistance through the P2P DPA
Program.
Section 3. Indemnity. The Lender shall pay, defend, protect, indemnify and hold the Authority,
and ADOH and the Corporation, and their respective directors, officers, employees, counsel, advisors and
agents (each, an “Indemnified Party”) harmless for, from and against any and all liabilities directly or
indirectly arising from or relating to any failure on the part of the Lender to perform its services, duties
and obligations under the terms and provisions of this Amendment or any other Program Document.
Any party entitled to indemnification hereunder shall notify the Lender of the existence of any
claim, demand or other matter to which the Lender’s indemnification obligation applies, and shall give
the Lender a reasonable opportunity to defend the same at its own expense and with counsel satisfactory
to the Indemnified Party, provided that the Indemnified Party shall at all times also have the right to
participate fully in the defense. If the Indemnified Party is advised in an opinion of counsel that there
may be legal defenses available to it which are different from or in addition to those available to the
Lender or if the Lender shall, after receiving notice of the Lender’s indemnification obligation and within
a period of time necessary to preserve any and all defenses to any claim asserted, fails to assume the
defense or to employ counsel for that purpose satisfactory to the Indemnified Party, the Indemnified Party
shall have the right, but not the obligation, to undertake the defense of, and to compromise or settle the
claim or other matter on behalf of, and at the risk and expense of, the Lender. The Lender shall be
responsible for the costs and expenses of the Indemnified Party, including counsel fees and expenses, in
conducting its defense.
The Indemnified Parties (other than the Authority) shall be third party beneficiaries of this
Amendment and the Program Documents for purposes of this Section 3. The provisions of this Section 3
shall be in addition to all liability which the Lender may otherwise have under the Program or any
Program Document and shall survive any termination of this Amendment and any other Program
Document.
Section 4. No Indemnity by Authority, ADOH or Corporation. No provision of the Original
Agreement or this Amendment shall result in any indemnification of the Lender by the Authority, ADOH
or the Corporation.
Section 5. Availability of Funds. Every payment obligation of the Corporation or ADOH, or the
Authority, if any, under this Amendment is conditioned upon the availability of funds appropriated,
allocated and or otherwise available for the payment of such obligation. If funds are not appropriated,
allocated and available or if the appropriate is changed by the Arizona legislature, or due to any federal,
state or other law, regulation, notice or ruling, or by any action of the federal government or the State of
Arizona, or any agency, resulting in funds no longer being available for the continuance of this
Agreement, this Agreement may be terminated by ADOH, the Corporation, or the Authority or any other
agency of the State of Arizona at the end of the period for which funds are available. No liability shall
accrue to the Authority, the Corporation or ADOH, or any other agency of the State of Arizona in the
event this Section 5 exercised, and the Authority, the Corporation, ADOH or any other agency of the
State of Arizona shall not be obligated or liable for any future payments or for any damages as a result of
termination under this Section 5.
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Section 6. Right to Enforce; Third Party Beneficiaries. Under the Service Agreement, the
Authority has assigned to the Corporation and ADOH its rights and remedies under this Amendment and
the Original Agreement to bring claims and take other permitted actions, and seek remedies, against the
Lender for its failure to meet its obligations under this Amendment relating to the P2P Program, and the
Lender by its execution of this Amendment expressly agrees to and acknowledges such assignment, and
further acknowledges and agrees that ADOH and the Corporation are third party beneficiaries of this
Amendment and the Original Agreement for such purposes.
Section 7. Record Retention. Pursuant to A.R.S. §§ 35-214 and 35-215, the Lender shall retain all
records relating to this Amendment for a period of five years after termination of the Original Agreement.
All records relating to the P2P DPA Program shall be subject to inspection and audit by the State of
Arizona at reasonable times. Upon request, the Lender shall produce such records (including original
records if requested) at the offices of the Authority.
Section 8. Notice of A.R.S. § 38-511 Cancellation. Notice is hereby given of the provisions of
A.R.S. § 38-511, as amended. By this reference, the provisions of said statute are incorporated herein to
the extent of their applicability to contracts of the nature of this Amendment under the law of the State.
Section 9. Non-Discrimination. The Lender shall comply with Executive Order 2009-9, which
mandates that all persons, regardless of race, color, religion, sex, age, or national origin shall have equal
access to employment opportunities, and all other applicable state and Federal employment laws, rules,
and regulations, including the Americans with Disabilities Act. Contractor shall take affirmative action to
ensure that applicants for employment and employees are not discriminated against due to race, creed,
color, religion, sex, national origin or disability.
Section 10. E-Verify; Compliance requirements for A.R.S. § 41-4401 (Immigration Laws and E-
Verify Requirement).
(a)
The Lender warrants compliance with all Federal immigration laws and regulations
relating to employees and warrants its compliance with Section A.R.S. § 23-214, Subsection A. (That
subsection reads in part: “After December 31, 2007, every employer, after hiring an employee, shall
verify the employment eligibility of the employee through the e-verify program.”)
(b)
A breach of a warranty regarding compliance with immigration laws and regulations shall
be deemed a material breach of this Amendment and the Lender may be subject to penalties up to and
including termination of the Agreement.
(c)
The Authority retains the legal right to inspect the papers of the Lender (including any
Lender subcontractor employee) or any Lender to ensure that the Lender or subcontractor is complying
with the warranty under Section 9(a).
Section 11. Overcharges.
The Lender assigns to the Authority any claim for overcharges
resulting from antitrust violations to the extent that such violations concern materials or services supplied
by third parties to Contractor toward fulfillment of the Agreement.
Section 12. Dispute Resolution. At the request of the Authority, ADOH or the Corporation, the
parties to the Agreement will resolve all disputes arising out of or relating to this Amendment through
arbitration, after exhausting applicable administrative review, to the extent required by A.R.S. § 12-1518
except as may be required by other applicable statutes.
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Section 13. No Boycott. The Lender represents and warrants it is not engaged in a boycott of
Israel as defined by A.R.S. § 35-393.01.
Section 14. Counterparts. This Amendment may be executed in counterparts by the parties
hereto, and each such counterpart and/or copy shall be considered an original and all such counterparts
shall constitute one and the same instrument.
Section 15. Terms of Original Agreement Remain in Effect. All provisions of the Original
Agreement shall remain in full force and effect and shall continue to apply unless amended by this
Amendment. Any reference in the Original Agreement to the “Agreement” includes a reference to the
Original Agreement as modified by this Amendment.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
4
THlS AMENDMENT has been executed below by an authorized representative of the Authority
and an authorized representative of the Lender, respectively.
Signature:
Name:
Title:
Lender Name [Printed]:
Designated Representative Signature:
Designated Representative Name [Print]:
Title of Designated Representative [Print]:
Email:

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