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:
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(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 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 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.
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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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