Execution Copy
Execution Copy
AMENDMENT NO. 7
TO THE MASTER MORTGAGE LOAN PURCHASE AGREEMENT
DATED AS OF APRIL 1, 1998
BETWEEN
RWT HOLDINGS, INC.
AND
XXXXXXX XXXXX CREDIT CORPORATION
This Amendment to the Master Mortgage Loan Purchase Agreement, dated as
of April 1, 1998 (the "Original Purchase Agreement") between RWT Holdings, Inc.
("Purchaser") and Xxxxxxx Xxxxx Credit Corporation ("Seller"), is made this 22nd
day of December, 2003.
WHEREAS, Purchaser and Seller entered into the Original Purchase
Agreement for the purposes of establishing between them certain rights and
responsibilities as to the sale of certain residential mortgage loans (the
"Mortgage Loans") from time to time; and
WHEREAS, Purchaser and Seller entered into an amendment to the Original
Purchase Agreement dated as of December 14, 1999 (the "Amendment No. 1"); and
WHEREAS, Purchaser and Seller entered into a second amendment to the
Original Purchase Agreement dated as of September 1, 2002 (the "Amendment No.
2"); and
WHEREAS, Purchaser and Seller entered into a third amendment to the
Original Purchase Agreement dated as of June 26, 2003 (the "Amendment No. 3");
and
WHEREAS, Purchaser and Seller entered into a fourth amendment to the
Original Purchase Agreement dated as of July 29, 2003 (the "Amendment No. 4");
WHEREAS, Purchaser and Seller entered into a fifth amendment to the
Original Purchase Agreement dated as of August 28, 2003 (the "Amendment No. 5");
WHEREAS, Purchaser and Seller entered into a sixth amendment to the
Original Purchase Agreement dated as of September 25, 2003 (the "Amendment No.
6," and together with the Original Purchase Agreement, Amendment Xx. 0,
Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and Amendment
No. 6, the "Master Purchase Agreement"); and
WHEREAS, in connection with the issuance and sale of the Xxxxxxx Xxxxx
Mortgage Investors Trust Series MLCC 2003-H Mortgage Pass-Through Certificates
(the "MLCC 2003-H Transaction"), the Purchaser and Seller wish to further amend
the Master Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Purchaser and Seller agree as
follows:
The Master Purchase Agreement between Purchaser and Seller is hereby
amended as follows:
1. Solely in connection with the MLCC 2003-H Transaction, the
definition of "Additional Collateral" is amended to read:
"'Additional Collateral': (i) With respect to any Mortgage
100sm Loan purchased under the Master Purchase Agreement in
connection with the MLCC 2003-H Transaction, the marketable
securities subject to a security interest pursuant to the related
Mortgage 100sm Pledge Agreement, or (ii) with respect to any Parent
Power(R) Mortgage Loan purchased under the Master Purchase Agreement
in connection with the MLCC 2003-H Transaction, the related Parent
Power(R) Agreement."
2. Solely in connection with the MLCC 2003-H Transaction, the
definition of "Additional Collateral Mortgage Loan" is amended to read:
"'Additional Collateral Mortgage Loan': Each Mortgage Loan
purchased under the Master Purchase Agreement in connection with the
MLCC 2003-H Transaction, that is either a Mortgage 100sm Loan or
Parent Power(R) Mortgage Loan as to which the Additional Collateral
is still required to be provided. "
3. Section 7 is modified by adding the following paragraphs:
However, from and after the Closing Date (as defined in the
Trust Agreement dated December 1, 2003, by and between Xxxxxxx Xxxxx
Mortgage Investors, Inc. and Xxxxx Fargo Bank Minnesota, National
Association (the "Trust Agreement")), solely in connection with the
MLCC 2003-H Transaction, Purchaser and Seller hereby agree that each
Mortgage Loan purchased on such Closing Date under the Master
Purchase Agreement by Purchaser (the "MLCC 2003-H Mortgage Loans"),
will be serviced and administered not by Seller but by Cendant
Mortgage Corporation ("Cendant") pursuant to the terms of the
Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as of
August 1, 2002, between Purchaser and Cendant, as amended or
modified to the date hereof (the "Flow Purchase and Servicing
Agreement") and the Additional Collateral Servicing Agreement, dated
as of August 1, 2002, between Purchaser and Cendant, as amended or
modified to the date hereof (the "Additional Collateral Servicing
Agreement," and together with the Flow Purchase and Servicing
Agreement, the "Cendant Agreements"). Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Trust
Agreement.
From and after the date hereof (i) the Seller and Cendant shall
recognize Purchaser as the owner of the MLCC 2003-H Mortgage Loans
and (ii) Cendant will administer and service the MLCC 2003-H
Mortgage Loans in accordance with the Cendant Agreements as if the
MLCC 2003-H Mortgage Loans had been sold to the Purchaser by Cendant
pursuant to the Cendant Agreements. It is the intention of the
Purchaser, the Seller and Cendant that to the extent of the MLCC
2003-H Mortgage Loans purchased under the Master Purchase Agreement
in connection with the MLCC 2003-H Transaction and serviced pursuant
to the Cendant Agreements, the Cendant Agreements shall be binding
upon and for the benefit of the respective successors and
2
assigns of the parties hereto; provided, however, that, with
respect to the Additional Collateral Mortgage Loans:
(i) Seller, at its own cost and expense, shall administer the
Additional Collateral and the Control Agreement for the benefit of
Purchaser (i) in a prudent and non-negligent manner and in accordance
with the procedures it employs to administer Securities Accounts for
its own benefit (as the same may be amended from time to time); (ii) in
accordance with the terms of the related Pledge Agreements, the
applicable Mortgage Loan Documents and this Agreement; and (iii) in
accordance with applicable law;
(ii) Seller shall be released from its obligations to
administer the Additional Collateral, upon termination of the related
Pledge Agreement. Purchaser Acknowledges that it shall no longer be
afforded coverage under the terms and provisions of the Surety Bond as
to any particular Additional Collateral Mortgage Loan at such time as
Seller's obligation to administer such Additional Collateral Mortgage
Loan terminates pursuant to the terms of the related Pledge Agreement;
(iii) Seller may, without the consent of Purchaser, amend or
modify a Mortgage 100sm Pledge Agreement or a Parent Power(R) Agreement
in any nonmaterial respect to reflect administrative or account
changes; and
(iv) When a "Loss," as defined in the related Pledge
Agreement, is determined, the "cash collateral" necessary to satisfy
the Loss up to the Maximum Amount (as defined in the Pledge Agreement)
shall be sent to Cendant to apply in accordance with the Mortgage Loan
Documents and held in accordance with the Cendant Agreements.
4. With respect to the MLCC 2003-H Mortgage Loans only, Section 5(b)
is hereby deleted in its entirety and replaced by the following:
Seller hereby makes the representations and warranties to
Purchaser, as to each MLCC 2003-H Mortgage Loan, set forth in
Exhibit I hereto, as of the Closing Date or such other date as may
be referred to therein.
[remainder of page intentionally left blank]
3
IN WITNESS WHEREOF, Xxxxxxx Xxxxx Credit Corporation and RWT Holdings,
Inc. have caused this Amendment No. 7 to the Master Purchase Agreement to be
executed by their respective officers thereunto duly authorized this 22nd day of
December, 2003.
RWT HOLDINGS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXXXXX XXXXX CREDIT CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
The foregoing Agreement
is hereby confirmed and accepted by:
CENDANT MORTGAGE CORPORATION
By:
----------------------------------------
Name:
Title:
Address:
4
EXHIBIT I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
OF THE SELLER
The Seller hereby represents and warrants to the Purchaser, as to each
Mortgage Loan, as of the Closing Date as follows:
(a) The information set forth in the Mortgage Loan Schedule is true and correct
in all material respects as of the Cut-off Date;
(b) As of the related Closing Date, the Mortgage Loan is not delinquent in
payment more than 30 days and the Mortgage Loan has not been dishonored; there
are no material defaults under the terms of the Mortgage Loan; the Seller has
not advanced funds, or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount required by the
Mortgage Loan;
(c) To the best of the Seller's knowledge, with respect to those Mortgage Loans
as to which the Mortgagors are required to deposit funds into an escrow account
for payment of taxes, assessments, insurance premiums and similar items as they
become due, there are no delinquent taxes, ground rents, water charges, sewer
rents, assessments or other outstanding charges which constitute a lien on the
related Mortgaged Property, and all escrow deposits have been collected, are
under the control of the Servicer, and have been applied to the payment of such
items in a timely fashion, in accordance with such Mortgage. No escrow deposits
or escrow payments or other charges or payments due the Servicer have been
capitalized under the related Mortgage or Mortgage Note. With respect to those
Mortgage Loans for which escrow deposits are not required, to the best of the
Seller's knowledge, there are no delinquent taxes or other outstanding charges
affecting the related Mortgaged Property which constitute a lien on the related
Mortgaged Property;
(d) The terms of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by written instruments
contained in the Mortgage File, approved, if necessary, by the insurer under any
Primary Mortgage Insurance Policy and recorded in all places necessary to
maintain the first priority of the lien, the substance of which waiver,
alteration or modification is reflected on the Mortgage Loan Schedule. No
Mortgagor has been released, in whole or in part, except in connection with an
assumption agreement which assumption agreement is part of the Mortgage File and
the terms of which are reflected in the Mortgage Loan Schedule;
(e) Neither the Mortgage Note nor the Mortgage is subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury and to the best
of the Seller's knowledge, no such right of rescission, set-off, counterclaim or
defense has been asserted by any Person with respect thereto;
(f) All buildings upon the Mortgaged Property are required to be insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as
1
are customarily included in extended coverage in the area where the Mortgaged
Property is located, pursuant to standard hazard insurance policies in an amount
which is equal to the lesser of (A) the replacement cost of the improvements
securing such Mortgage Loan or (B) the principal balance owing on such Mortgage
Loan. To the best knowledge of the Seller, all such standard hazard policies are
in effect. On the date of origination, such standard hazard policies contained a
standard mortgagee clause naming the Seller or the originator of the Mortgage
Loan and their respective successors in interest as mortgagee and, to the best
knowledge of the Seller, such clause is still in effect and, to the best of the
Seller's knowledge, all premiums due thereon have been paid. If the Mortgaged
Property is located in an area identified by the Federal Emergency Management
Agency as having special flood hazards under the National Flood Insurance Act of
1994, as amended, such Mortgaged Property is covered by flood insurance in the
amount required under the National Flood Insurance Act of 1994. The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance at Mortgagor's
cost and expense, and on the Mortgagor's failure to do so, authorizes the holder
of the Mortgage to maintain such insurance at Mortgagor's cost and expense and
to seek reimbursement therefor from the Mortgagor;
(g) To the best of the Seller's knowledge, at the time of origination of such
Mortgage Loan and thereafter, all requirements of any federal, state or local
law including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity or
disclosure laws required to be complied with by the Seller as the originator of
the Mortgage Loan and applicable to the Mortgage Loan have been complied with in
all material respects;
(h) The Mortgage has not been satisfied as of the Closing Date, canceled or
subordinated, in whole, or rescinded, and the Mortgaged Property has not been
released from the lien of the Mortgage, in whole or in part (except for a
release that does not materially impair the security of the Mortgage Loan or a
release the effect of which is reflected in the Loan-to-Value Ratio for the
Mortgage Loan as set forth in the Mortgage Loan Schedule), nor to the best of
the Seller's knowledge has any instrument been executed that would effect any
such release, cancellation, subordination or rescission;
(i) Ownership of the Mortgaged Property is held in fee simple or a leasehold
estate. With respect to Mortgage Loans that are secured by a leasehold estate,
(i) the lease is valid, in full force and effect, and conforms to all of FNMA's
requirements for leasehold estates; (ii) all rents and other payments due under
the lease have been paid; (iii) the lessee is not in default under any provision
of the lease; (iv) the term of the lease exceeds the maturity date of the
related Mortgage Loan by at least five (5) years; and (v) the terms of the lease
provide a Mortgagee with an opportunity to cure any defaults. Except as
permitted by the fourth sentence of this paragraph (i), the Mortgage is a valid,
subsisting and enforceable first lien on the Mortgaged Property, including all
buildings on the Mortgaged Property and all installations and mechanical,
electrical, plumbing, heating and air conditioning systems affixed to such
buildings, and all additions, alterations and replacements made at any time with
respect to the foregoing securing the Mortgage Note's original principal
balance. The Mortgage and the Mortgage Note do not contain any evidence on their
face of any security interest or other interest or right thereto. Such lien is
free and clear of all adverse claims, liens and encumbrances having priority
over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet due and
payable, (2) covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording which are
acceptable to mortgage lending institutions generally, or which are specifically
referred to in the lender's title insurance policy delivered to the originator
of the Mortgage Loan and either (A) which are referred to or otherwise
considered in the appraisal made for the originator of the Mortgage Loan,
2
or (B) which do not in the aggregate adversely affect the appraised value of the
Mortgaged Property as set forth in such appraisal, and (3) other matters to
which like properties are commonly subject which do not in the aggregate
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting and enforceable first lien and first
priority security interest on the property described therein. With respect to
each Co-op Loan, the security instruments create a valid, enforceable and
subsisting first priority security interest in the Co-op Lease and Co-op Stock
securing the related Mortgage Note subject to only to (a) the lien of the
related cooperative for unpaid assessments representing the Mortgagor's pro rata
share of payments for a blanket mortgage, if any, current and future real
property taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject, and (b) other matters to which the
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided; provided, however, that the
related Co-op Loan may be subordinated or otherwise subject to the lien of a
Mortgage on the cooperative building;
(j) The Mortgage Note is not subject to a third party's security interest or
other rights or interest therein;
(k) The Mortgage Note and the related Mortgage are genuine and each is the
legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms subject to bankruptcy, insolvency and other laws of
general application affecting the rights of creditors. All parties to the
Mortgage Note and the Mortgage had the legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note and the Mortgage. The Mortgage
Note and the Mortgage have been duly and properly executed by such parties. The
proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder, and any and all requirements as to
completion of any on-site or off-site improvements and as to disbursements of
any escrow funds therefor have been complied with;
(l) Seller has good title to, and the full right to transfer and sell, the
Mortgage Loan free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest, including, to the best knowledge of the Seller, any
lien, claim or other interest arising by operation of law;
(m) To the best of the Seller's knowledge, each Mortgage Loan is covered by an
ALTA lender's title insurance policy or other generally acceptable form of
policy or insurance acceptable to FNMA or FHLMC, issued by a title insurer
acceptable to FNMA or FHLMC and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring (subject to the exceptions
contained in paragraph (ix)(1) (2) and (3) above) the Seller, its successors and
assigns, as to the first priority lien of the Mortgage in the original principal
amount of the Mortgage Loan. To the best of the Seller's knowledge, the Seller
is the sole insured of such lender's title insurance policy, such title
insurance policy has been duly and validly endorsed to the Purchaser or the
assignment to the Purchaser of the Seller's interest therein does not require
the consent of or notification to the insurer and such lender's title insurance
policy is in full force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement. To the best of
the Seller's knowledge, no claims have been made under such lender's title
insurance policy, and no prior holder of the related Mortgage has done, by act
or omission, anything which would impair the coverage of such lender's title
insurance policy;
(n) To the best of the Seller's knowledge, there is no default, breach,
violation or event of acceleration existing under the Mortgage or the related
Mortgage Note and no event which, with
3
the passage of time or with notice and the expiration of any grace or cure
period, would constitute a default, breach, violation or event permitting
acceleration, except for any Mortgage Loan payment which is not late by more
than 30 days, and the Seller has not waived any default, breach, violation or
event permitting acceleration;
(o) To the best of the Seller's knowledge, there are no mechanics' or similar
liens or claims which have been filed for work, labor or material (and, to the
best of the Seller's knowledge, no rights are outstanding that under law could
give rise to such lien) affecting the related Mortgaged Property which are or
may be liens prior to, or equal or coordinate with, the lien of the related
Mortgage;
(p) To the best of the Seller's knowledge, all improvements subject to the
Mortgage, lay wholly within the boundaries and building restriction lines of the
Mortgaged Property (and wholly within the project with respect to a condominium
unit) and no improvements on adjoining properties encroach upon the Mortgaged
Property except those which are insured against by the title insurance policy
referred to in paragraph (xiii) above and all improvements on the property
comply with all applicable zoning and subdivision laws and ordinances;
(q) To the best of the Seller's knowledge, each Mortgage Loan was originated by
the Seller or by a savings association, a savings bank, a commercial bank or
similar banking institution that is supervised and examined by a Federal or
state banking authority, a mortgagee approved by the Secretary of HUD pursuant
to Section 203 and 211 of the National Housing Act, or a FNMA- or FHLMC-approved
seller. To the best of the Seller's knowledge, each Mortgage Loan was
underwritten generally in accordance with the Underwriting Standards as in
effect at the time of origination. To the best of the Seller's knowledge, the
Mortgage contains the usual and customary provision of the Seller at the time of
origination for the acceleration of the payment of the unpaid principal balance
of the Mortgage Loan if the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder;
(r) The Mortgaged Property at origination or acquisition was and, to the best of
the Seller's knowledge, currently is free of material damage and waste and at
origination there was, and to the best of the Seller's knowledge there currently
is, no proceeding pending for the total or partial condemnation thereof;
(s) The related Mortgage contains customary and enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (1) in the case of a Mortgage designated as a deed
of trust, by trustee's sale or judicial foreclosure, and (2) otherwise by
judicial foreclosure. The Seller has no knowledge of any homestead or other
exemption available to the Mortgagor which would interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage;
(t) To the best of the Seller's knowledge, if the Mortgage constitutes a deed of
trust, a trustee, duly qualified if required under applicable law to act as
such, has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable to the trustee
under the deed of trust, except in connection with a trustee's sale or attempted
sale after default by the Mortgagor;
(u) With respect to each Mortgage Loan, there is an appraisal on a FNMA-approved
form (or a narrative residential appraisal) of the related Mortgaged Property
that conforms to the applicable requirements of the Financial Institutions
Reform Recovery and Enforcement Act and that was
4
signed prior to the approval of such Mortgage Loan application by a qualified
appraiser, appointed by the Seller or the originator of such Mortgage Loan, as
appropriate, who has no interest, direct or indirect, in the Mortgaged Property
or in any loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of such Mortgage Loan;
(v) No Mortgage Loan contains "subsidized buydown" or "graduated payment"
features;
(w) The Mortgaged Property is a single-family (one- to four-unit) dwelling
residence erected thereon, or an individual condominium unit in a condominium,
or a Co-operative Apartment or an individual unit in a planned unit development
or in a de minimis planned unit development as defined by FNMA. No such
residence is a mobile home or a manufactured dwelling which is not permanently
attached to the land;
(x) No Mortgage Loan provides for negative amortization;
(y) No Mortgage Loan had an original term in excess of thirty (30) years;
(z) [RESERVED]
(aa) Each Mortgage Loan is a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (without regard to Treasury Regulations Section
1.860G-2(f) or any similar rule that provides that a defective obligation is a
qualified mortgage for a temporary period);
(bb) No Mortgage Loan provides for interest other than at either (x) a single
fixed rate in effect throughout the term of the Mortgage Loan or (y) a single
"variable rate" (within the meaning of Treasury Regulations Section
1.860G-1(a)(3)) in effect throughout the term of the Mortgage Loan.
(cc) No Mortgage Loan is the subject of pending or final foreclosure
proceedings.
(dd) Based on delinquencies in payment on the Mortgage Loans, the Seller would
not initiate foreclosure proceedings with respect to any of the Mortgage Loans
prior to the next scheduled payment date on such Mortgage Loan.
(ee) Each Mortgage Note is comprised of one original promissory note and each
such promissory note constitutes an "instrument" for purposes of section
9-102(a)(65) of the UCC.
(ff) No Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994 ("HOEPA") and no Mortgage Loan is "high cost" as defined by any
applicable federal, state or local predatory or abusive lending law. Any breach
of this representation shall be deemed to materially and adversely affect the
value of the Mortgage Loan and shall require a repurchase of the affected
Mortgage Loan.
(gg) Each Mortgage Loan at the time it was made complied in all material
respects with applicable local, state and federal laws, including, but not
limited to, all applicable predatory or abusive lending laws.
5
