Exhibit 99.9
As of June 18, 2001
Cendant Mortgage Corporation
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
AMENDMENT NUMBER 1 TO THE
MORTGAGE LOAN FLOW PURCHASE, SALE & SERVICING AGREEMENT
DATED AND EFFECTIVE MAY 29, 2001
This is Amendment Number 1 dated as of June 18, 2001 ("Amendment Number
1") by and between Xxxxxx Brothers Bank, FSB (the "Purchaser") and Cendant
Mortgage Corporation ("Seller") to that certain Mortgage Loan Flow Purchase,
Sale & Servicing Agreement dated as of May 29, 2001 (the "Agreement").
WITNESSETH
WHEREAS, heretofore the Purchaser and the Seller executed the Agreement
for the purpose of the Seller selling and the Purchaser purchasing on a flow
basis, certain fixed rate and adjustable rate conventional first lien
residential mortgage loans (the "Mortgage Loans");
WHEREAS, the Purchaser and the Seller wish to amend the Agreement in
order to further clarify the characteristics of the Mortgage Loans being sold by
the Seller and purchased by the Purchaser;
NOW THEREFORE, in consideration of the mutual promises and mutual
obligations set forth herein, the Purchaser and the Seller agree as follows:
1. All capitalized terms used herein and not defined herein shall
have the respective meanings assigned to them in the Agreement or
Amendment Number 1, as the case may be.
2. The Agreement shall be amended by adding the following language to
Section 1.01.
"Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such
Mortgage Loan in the jurisdiction where the related Mortgaged
Property, or, with respect to a Cooperative Loan, where the
related Cooperative Project, is located.
"Cooperative Corporation": The cooperative apartment corporation
that holds legal title to a Cooperative Project and grants
occupancy rights to units therein to stockholders through
Proprietary Leases or similar arrangements.
"Cooperative Loan": A Mortgage Loan identified as such on the
applicable Mortgage Loan Schedule that is secured by a first lien
on and a perfected security interest in Cooperative Shares and the
related Proprietary Lease granting exclusive rights to occupy the
related Cooperative Unit in the building owned by the related
Cooperative Corporation.
"Cooperative Project": All real property owned by a Cooperative
Corporation including the land, separate dwelling units and all
common elements.
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"Cooperative Shares": The shares of stock issued by a
Cooperative Corporation and allocated to a Cooperative Unit and
represented by a stock certificate.
"Cooperative Unit": Means a specific unit in a Cooperative
Project.
"Pledge Instruments": With respect to each Cooperative Loan,
the Stock Power, Assignment of Proprietary Lease, Assignment of
Mortgage Note and the Acceptance of Assignment and Assumption of
Lease Agreement.
"Proprietary Lease": A lease on (or occupancy agreement with
respect to) a Cooperative Unit evidencing the possessory interest
of the owner of the Cooperative Shares in such Cooperative Unit.
"Relocation Loans": Mortgage loans made to employees of
corporations who have a substantial portion of the costs related
to the mortgage loan reimbursed by their employer. Some of the
expenses eligible for consideration include closing costs and
discount points or real estate commissions. Because mortgagors of
Relocation Loans generally are more likely to be transferred by
their employers than mortgagors in general, Relocation Loans are
generally believed to prepay faster than other loans with similar
characteristics that are not Relocation Loans.
3. The definition of "Mortgaged Property" in Section 1.01 is hereby
amended and restated in its entirety to read as follows:
"Mortgaged Property": With respect to a Mortgage Loan, the
underlying real property securing repayment of a Mortgage Note,
consisting of a fee simple estate, or with respect to a
Cooperative Loan, the Cooperative Shares and the Proprietary
Lease.
4. The definition of "Mortgage" in Section 1.01 is hereby amended and
restated in its entirety to read as follows:
"Mortgage": The mortgage, deed of trust, Pledge Instrument or
other instrument securing a Mortgage Note, which creates a first
lien on an unsubordinated estate in fee simple in real property
securing the Mortgage Note, or in the case of each Cooperative
Loan creates a first priority security interest on the Cooperative
Shares and Proprietary Lease securing the Mortgage Note.
5. The Agreement shall be amended by adding the following language to
Schedule B-1 in the referenced sections. Such additional language
relates to the delivery requirements for Cooperative Loans and
reads as follows:
(ii) With respect to each Cooperative Loan, the original Pledge
Instrument. Such new sentence shall be added immediately
following the last sentence of this section.
(iii) With respect to each Cooperative Loan, Assignment of
Pledge Instrument. Such new sentence shall be added
immediately following the last sentence of this section.
(vii) With respect to each Cooperative Loan, intervening
assignments of the Pledge Instrument. Such new sentence
shall be added immediately following the last sentence of
this section.
(viii) With respect to each Cooperative Loan: (a) the
Cooperative Shares, (b) a stock power executed in blank
by the Person in whose name the Cooperative Shares are
issued, (c) the proprietary lease or occupancy agreement,
accompanied by an assignment in blank of such proprietary
lease, if available, (d) a recognition agreement executed
by the Cooperative Corporation, which requires the
Cooperative Corporation to recognize the rights of the
lender and its successors in interest and assigns, under
the Cooperative Loan, accompanied by an assignment of
such recognition agreement in blank, (e) UCC-1 financing
statements with recording information thereon from the
appropriate state and county recording offices if
necessary to perfect the security interest of the
Cooperative Loan under the Uniform Commercial Code in the
state in which the Cooperative Project is located,
accompanied by UCC-3 financing statements executed in
blank for recordation of the change in the secured party
thereunder and (f)any guarantees, if applicable.
6. The Agreement shall be amended by adding the following language to
the referenced representations and warranties in Section 3.03 and
restated in its entirety to read as follows:
(20) Location of Improvements; No Encroachments. As of the date of
origination of such Mortgage Loan, all improvements that were
considered in determining the Appraised Value of the related Mortgaged
Property lay
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wholly within the boundaries and building restriction lines of such
Mortgaged Property or, with respect to each Cooperative Loan, the
Cooperative Unit and no improvements on adjoining properties encroach
upon such Mortgaged Property or, with respect to each Cooperative Loan,
the Cooperative Unit except as permitted under the terms of the FNMA
Guide and the FHLMC Selling Guide; no improvement located on or part of
any Mortgaged Property or, with respect to each Cooperative Loan, the
Cooperative Unit is in violation of any applicable zoning law or
regulation, and all inspections, licenses and certificates required to
be made or issued with respect to all occupied portions of such
Mortgaged Property, and with respect to the use and occupancy of the
same, including certificates of occupancy, have been made or obtained
from the appropriate authorities;
(24) Mortgaged Property Undamaged; No Condemnation. As of the Funding Date,
the related Mortgaged Property or the Cooperative Project, as
applicable, is free of material damage and waste and there is no
proceeding pending for the total or partial condemnation thereof;
(27) Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property or the Cooperative Unit, as applicable, on forms and
with riders approved by FNMA and FHLMC, signed prior to the approval of
such Mortgage Loan application by an appraiser, duly appointed by the
originator of such Mortgage Loan, whose compensation is not affected by
the approval or disapproval of such Mortgage Loan and who met the
minimum qualifications of FNMA and FHLMC for appraisers;
(30) Occupancy. As of the date of origination of such Mortgage Loan, the
related Mortgaged Property or Cooperative Unit, as applicable, is
lawfully occupied under applicable law;
(35) Acceptable Investment. To the best of Seller's knowledge, there is no
circumstance or condition with respect to the related Mortgage File,
Mortgage, Mortgaged Property or Cooperative Unit, as applicable,
Mortgagor or Mortgagor's credit standing, including but not limited to
`limited income documentation programs' whereby the lending decision is
based upon factors other than the Mortgagor's income, that can
reasonably be expected to cause private institutional investors to
regard such Mortgage Loan as an unacceptable investment, cause such
Mortgage Loan to become delinquent, or adversely affect the value or
marketability of such Mortgage Loan;
7. The Agreement shall be amended by adding the following representations
and warranties to Section 3.03:
(36) Location and Type of Mortgaged Property. The Mortgaged Property or,
with respect to each Cooperative Loan, Cooperative Unit is located in
the state identified in the related Mortgage Loan Schedule and consists
of real property with a detached single family residence erected
thereon, or a two-to four-family dwelling, or an individual condominium
unit in a low-rise condominium project, or a Cooperative Unit, or an
individual unit in a planned unit development, provided, however, that
any condominium unit or planned unit development shall conform with
the applicable Xxxxxx Xxx requirements regarding such dwellings and
that no residence or dwelling is a mobile home. No portion of the
Mortgaged Property or, with respect to each Cooperative Loan, the
Cooperative Unit is used for commercial purposes.
(37) Environment Matters. To the best of the Seller's knowledge, the
Mortgaged Property or the Cooperative Unit, as applicable, is free from
any and all toxic or hazardous substances and there exists no violation
of any local, state or federal environmental law, rule or regulation.
There is no pending action or proceeding directly involving any
Mortgaged Property or Cooperative Unit, as applicable, of which the
Seller is aware in which compliance with any environmental law, rule or
regulation is an issue; and to the best of the Seller's knowledge,
nothing further remains to be done to satisfy in full all requirements
of each such law, rule or regulation consisting a prerequisite to use
and enjoyment of said property.
(38) Cooperative Loans. With respect to each Cooperative Loan the Seller
represents and warrants:
A. The Cooperative Loan is secured by a valid, subsisting,
enforceable and perfected first lien on the corporation stock,
shares or membership certificate issued to the related
Mortgagor with respect to such Cooperative Loan.The lien of the
Pledge Instrument is subject only to the Cooperative
Corporation's lien against such corporation stock, shares or
membership certificate for unpaid assessments of the Cooperative
Corporation to the extent required by applicable law. Any
security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Cooperative Loan
establishes and creates a valid, subsisting and enforceable first
lien and first priority security interest on the property
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described therein and the Seller has full right to sell and
assign the same to the Purchaser. The Cooperative Unit was not,
as of the date of origination of the Cooperative Loan, subject to
a mortgage, deed of trust, deed to secure debt or other security
instrument creating a lien subordinate to the lien of the Pledge
Instrument.
B. There is no proceeding pending or threatened for the total or
partial condemnation of the building owned by the applicable
Cooperative Corporation (the "Underlying Mortgaged Property").
The Underlying Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other
casualty so as to affect adversely the value of the Underlying
Mortgaged Property as security for the mortgage loan on such
Underlying Mortgaged Property (the "Cooperative Mortgage") or
the use for which the premises were intended.
C. There is no default, breach, violation or event of acceleration
existing under the Cooperative Mortgage or the mortgage note
related thereto and no event which, with the passage of time or
with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of
acceleration.
D. The Cooperative Corporation has been duly organized and is
validly existing and in good standing under the laws of the
jurisdiction of its formation. The Cooperative Corporation has
requisite power and authority to (i) own its properties, and (ii)
transact the business in which it is now engaged. The Cooperative
Corporation possesses all rights, licenses, permits and
authorizations, governmental or otherwise, necessary to entitle
it to own its properties and to transact the businesses in which
is now engaged.
E. The Cooperative Corporation complies in all material respects
with all applicable legal requirements. The Cooperative
Corporation is not in default or violation of any order, writ,
injunction, decree or demand of any governmental authority, the
violation of which might materially adversely affect the
condition (financial or otherwise) or business of the Cooperative
Corporation.
F. The Seller has delivered to the Purchaser or its designee each of
the following documents (collectively, the "Cooperative Loan
Documents"): (i) the Cooperative Loan Note, duly endorsed in
accordance with the endorsement requirements for Mortgage Notes
set forth in this Agreement, (ii) the Pledge Instrument,
accompanied by an Assignment of Pledge Instrument, in recordable
form, (iii) the corporation stock, shares or membership
certificate accompanied by a stock power which authorizes the
lender to transfer shares in the event of a default under the
Cooperative Loan Documents, (iv) the proprietary lease or
occupancy agreement, accompanied by an assignment in blank of
such proprietary lease, if available, (v) a recognition agreement
executed by the Cooperative Corporation, which requires the
Cooperative Corporation to recognize the rights of the lender and
its successors in interest and assigns, under the Cooperative
Loan, accompanied by an assignment of such recognition agreement
in blank, (vi) UCC-1 financing statements with recording
information thereon from the appropriate state and county
recording offices if necessary to perfect the security interest
of the Cooperative Loan under the Uniform Commercial Code in the
state in which the Cooperative Project is located, accompanied by
UCC-3 financing statements executed in blank for recordation of
the change in the secured party thereunder and (vii) any
guarantees, if applicable.
8. All further references to the Agreement shall include Amendment Number
1 as set forth herein.
9. All other terms, conditions and provisions of the Agreement are hereby
and shall remain in force and effect as written.
10. This Amendment Number 1 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.
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Kindly acknowledge your acceptance to the terms of this Amendment Number 1 by
signing and returning the enclosed to Xxxxx Xxxxxx by June 27, 2001.
Very truly yours,
XXXXXX BROTHERS BANK, FSB
By:
Name:
Title:
ACCEPTED AND AGREED:
CENDANT MORTGAGE CORPORATION
By:
Name:
Title:
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