SEQUOIA MORTGAGE TRUST 2010-H1 MORTGAGE PASS-THROUGH CERTIFICATES MORTGAGE LOAN PURCHASE AND SALE AGREEMENT Between RWT HOLDINGS, INC. and SEQUOIA RESIDENTIAL FUNDING, INC. dated as of April 28, 2010
MORTGAGE
PASS-THROUGH CERTIFICATES
Between
RWT
HOLDINGS, INC.
and
SEQUOIA
RESIDENTIAL FUNDING, INC.
dated as
of April 28, 2010
TABLE OF
CONTENTS
PAGE
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Section
1.
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Representations
and Warranties of RWT and Sequoia
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1
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Section
2.
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Additional
Representations, Warranties and Agreements of RWT
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1
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Section
3.
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Conveyance
of Mortgage Loans
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2
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Section
4.
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Intention
of Parties
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3
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Section
5.
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Termination
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3
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Section
6.
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Miscellaneous
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4
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Schedule
A.
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Mortgage
Loan Schedule
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5
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This
Mortgage Loan Purchase and Sale Agreement (the “Agreement”) is made as of April
28, 2010, by and between RWT Holdings, Inc., a Delaware corporation (“RWT”), and
Sequoia Residential Funding, Inc., a Delaware corporation
(“Sequoia”).
WHEREAS,
the parties hereto desire to provide for the purchase and sale of the Mortgage
Loans on the date hereof (the “Closing Date”) in accordance with the terms and
conditions set forth in this Agreement.
NOW,
THEREFORE, the parties in consideration of good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound, hereby agree as follows:
Section
1. Representations and
Warranties of RWT and Sequoia. RWT and Sequoia, each as to
itself and not the other, hereby represents, warrants and agrees for the benefit
of the other party that:
(a) Authorization. The
execution, delivery and performance of this Agreement by it are within its
respective powers and have been duly authorized by all necessary action on its
part.
(b) No
Conflict. The execution, delivery and performance of this
Agreement will not violate or conflict with (i) its charter or bylaws, (ii) any
resolution or other corporate action by it, or (iii) any decisions, statutes,
ordinances, rulings, directions, rules, regulations, orders, writs, decrees,
injunctions, permits, certificates or other requirements of any court or other
governmental or public authority in any way applicable to or binding upon it,
and will not result in or require the creation, except as provided in or
contemplated by this Agreement, of any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind upon the Mortgage
Loans.
(c) Binding
Obligation. This Agreement has been duly executed by it and is
its legally valid and binding obligation, enforceable against it in accordance
with this Agreement’s terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally, and by general principles of equity.
Section
2. Additional
Representations, Warranties and Agreements of RWT.
(a) Title and Mortgage Loan
Schedule. RWT represents and warrants to, and agrees with,
▇▇▇▇▇▇▇ that (i) on the Closing Date, RWT will have good, valid and marketable
title to the mortgage loans identified on Schedule A hereto (the “Mortgage
Loans”), in each case free and clear of all liens, mortgages, deeds of trust,
pledges, security interests, charges, encumbrances or other claims; (ii) upon
transfer to Sequoia, Sequoia will receive good, valid and marketable title to
all of the Mortgage Loans, in each case free and clear of any liens, mortgages,
deeds of trust, pledges, security interests, charges, encumbrances or other
claims; and (iii) as to each Mortgage Loan, as of the date on which RWT
purchased such Mortgage Loan from CitiMortgage, Inc., as originator, the
information set forth in the Mortgage Loan Schedule (as defined in the Pooling
Agreement) in the fields identified as "Document Type," "Monthly Income" and
"Assets Verified" is complete, true and correct in all material
respects.
(b) Additional Representation
Regarding Encumbrances. RWT represents and warrants to, and
agrees with, ▇▇▇▇▇▇▇ that, as of the Closing Date and as to each Mortgage
Loan: The lien of the Mortgage 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 and which do not 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 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.
(c) Security Interest
Matters. RWT hereby represents and warrants for the benefit of
Sequoia and the Trustee (as defined in the Pooling Agreement, dated as of April
1, 2010 (as in effect on the date of execution hereof, the “Pooling Agreement”)
by and between Sequoia, as depositor, and ▇▇▇▇▇ Fargo Bank, N.A., as trustee)
(as assignee of Sequoia): (i) this Agreement creates a valid and
continuing security interest (as defined in the applicable UCC) in the Mortgage
Loans in favor of Sequoia, which security interest is prior to all other Liens,
and is enforceable as such as against creditors of and purchasers from RWT; (ii)
the Mortgage Notes constitute “instruments” within the meaning of the applicable
UCC; (iii) RWT, immediately prior to its transfer of Mortgage Loans under this
Agreement, will own and have good, valid and marketable title to the Mortgage
Loans free and clear of any Lien, claim or encumbrance of any Person; (iv) RWT
has received all consents and approvals required by the terms of the Mortgage
Loans to the sale of the Mortgage Loans hereunder to Sequoia; (v) all original
executed copies of each Mortgage Note that constitute or evidence the Mortgage
Loans have been delivered to the Custodian (as assignee of Sequoia); (vi) RWT
has received a written acknowledgment from the Custodian that such Custodian is
holding the Mortgage Notes that constitute or evidence the Mortgage Loans solely
on behalf and for the benefit of Sequoia or its assignee; (vii) other than the
security interest granted to Sequoia pursuant to this Agreement and security
interests granted to lenders which will be automatically released on the Closing
Date, RWT has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Mortgage Loans; RWT has not authorized the filing
of and is not aware of any financing statements against it that include a
description of collateral covering the Mortgage Loans other than any financing
statement relating to the security interest granted to Sequoia hereunder or that
will be automatically released upon the sales to Sequoia; (viii) RWT is not
aware of any judgment or tax lien filing against itself; and (ix) none of the
Mortgage Notes that constitute or evidence the Mortgage Loans have any marks or
notations indicating that they have been pledged, assigned or otherwise conveyed
to any Person other than Sequoia.
2
(d) Repurchase
Obligation. In the event of a breach of any of the
representations and warranties of RWT specified in this Section 2 that
materially adversely affects the value of a Mortgage Loan or the interest
therein of the Certificateholders (as assignees of Sequoia), RWT will repurchase
such Mortgage Loan pursuant to Section 2.04 of the Pooling
Agreement.
Section
3. Conveyance of Mortgage
Loans.
(a) Mortgage
Loans. In return for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, RWT, concurrently with
the execution and delivery hereof, hereby sells, transfers, assigns, sets over
and otherwise conveys to Sequoia, without recourse, all of RWT’s right, title
and interest in and to the Mortgage Loans, including the related Mortgage
Documents and all interest and principal received or receivable by RWT on or
with respect to the Mortgage Loans after April 1, 2010 (the “Cut-off Date”) and
all interest and principal payments on the Mortgage Loans received prior to the
Cut-off Date in respect of installments of interest and principal due
thereafter, but not including payments of interest and principal due and payable
on the Mortgage Loans on or before the Cut-off Date, all insurance policies with
respect to the Mortgage Loans, and all proceeds of the foregoing.
Sequoia shall pay the purchase price
for the Mortgage Loans by delivering to RWT on the Closing Date (i) cash in an
amount mutually agreed upon by RWT and Sequoia, (ii) 100 percent of the Class
LT-R and Class R Certificates, and (iii) $11,200,000 in initial certificate
principal amount of the Class A-1 Certificates.
On or prior to the Closing Date, RWT
shall deliver or cause to be delivered to Sequoia or, at Sequoia’s direction, to
the Custodian, the Trustee’s Mortgage File for each Mortgage Loan in the manner
set forth in Article 3 of the Custodial Agreement as in effect on the date of
execution hereof, by and among ▇▇▇▇▇ Fargo Bank, N.A., as trustee and as
custodian, Sequoia, as depositor and RWT, as seller.
(b) Limited
Remedies. Sequoia acknowledges and agrees that it shall have
no recourse to RWT with respect to any Defective Mortgage Loan (as defined in
the Pooling Agreement) except as provided in Section 2(d) and that Sequoia’s
remedies with respect to any other Defective Mortgage Loans shall be exercised
with respect to the originator of such Defective Mortgage Loan as set forth in
the Assignment, Assumption and Recognition Agreement dated the date hereof by
and among RWT, Sequoia, ▇▇▇▇▇ Fargo Bank, N.A., as trustee, and CitiMortgage,
Inc., as originator and servicer.
Section
4. Intention of
Parties. The conveyance of the Mortgage Loans and all other
property hereunder by RWT as contemplated hereby is absolute and is intended by
the parties to constitute a sale of the Mortgage Loans and such other property
by RWT to Sequoia. It is, further, not intended that such conveyance
be the grant of a security interest to secure a loan or other
obligation. However, in the event that, notwithstanding the intent of
the parties, the Mortgage Loans and the other property described in Section 3(a)
are held to be the property of RWT, or if for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans and such
other property, then this Agreement shall constitute a security agreement, and
the conveyance provided for in Section 3(a) shall be deemed to be a grant by RWT
to Sequoia of, and RWT hereby grants to Sequoia, to secure all of RWT’s
obligations hereunder, a security interest in all of RWT’s right, title and
interest, whether now owned or hereafter acquired, in and to (i) the Mortgage
Loans, including the related Mortgage Documents and all interest and principal
received or receivable by RWT on or with respect to the Mortgage Loans after the
Cut-off Date and all interest and principal payments on the Mortgage Loans
received prior to the Cut-off Date in respect of installments of interest and
principal due thereafter, but not including payments of interest and principal
due and payable on the Mortgage Loans on or before the Cut-off Date, and all
other proceeds received in respect of such Mortgage Loans, (ii) with respect to
the Mortgage Loans, to the extent set forth in the Acknowledgement, RWT’s rights
and obligations under the Servicing Agreement and all of RWT’s rights under the
Mortgage Loan Purchase and Sale Agreement, (iii) all of RWT’s rights under any
Insurance Policies related to the Mortgage Loans, (iv) RWT’s security interest
in any collateral pledged to secure the Mortgage Loans, including the Mortgaged
Properties, and (v) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing into cash or other liquid assets, including, without
limitation, all Insurance Proceeds, Liquidation Proceeds and condemnation
awards.
3
RWT and
Sequoia shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. RWT
shall arrange for filing any Uniform Commercial Code financing statements and
continuation statements in connection with such security interest.
Section
5. Termination.
Notwithstanding
any termination of this Agreement or the completion of all sales contemplated
hereby, the representations, warranties and agreements in Sections 1 and 2
hereof shall survive and remain in full force and effect.
Section
6. Miscellaneous.
(a) Amendments,
Etc. No rescission, modification, amendment, supplement or
change of this Agreement shall be valid or effective unless in writing and
signed by all of the parties to this Agreement. No amendment of this
Agreement may modify or waive the representations, warranties and agreements set
forth in Sections 1 and 2 hereof.
4
(b) Binding Upon Successors,
Etc. This Agreement shall bind and inure to the benefit of and
be enforceable by RWT and Sequoia, and the respective successors and assigns
thereof. The parties hereto acknowledge that Sequoia is acquiring the
Mortgage Loans for the purpose of pledging, transferring, assigning, setting
over and otherwise conveying them to the Trustee, pursuant to the Pooling
Agreement for inclusion in the Trust Fund. RWT acknowledges and
consents to the assignment to the Trustee by ▇▇▇▇▇▇▇ of all of Sequoia's rights
against RWT hereunder in respect of the Mortgage Loans sold to Sequoia and that
the enforcement or exercise of any right or remedy against RWT hereunder by the
Trustee or to the extent permitted under the Pooling Agreement shall have the
same force and effect as if enforced and exercised by ▇▇▇▇▇▇▇
directly.
(c) Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
(d) Governing
Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed, interpreted and enforced in accordance with the laws of the State of
New York notwithstanding any law, rule, regulation, or other conflict-of-law
provisions to the contrary.
(e) Headings. The
headings of the several parts of this Agreement are inserted for convenience of
reference and are not intended to be a part of or affect the meaning or
interpretation of this Agreement.
(f) Definitions. Capitalized
terms not otherwise defined herein have the meanings ascribed to such terms in
the Pooling Agreement as in effect on the date of execution hereof.
(g) Nonpetition
Covenant. Until one year plus one day shall have elapsed since
the termination of the Pooling Agreement in accordance with its terms, RWT shall
not petition or otherwise invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against Sequoia
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of Sequoia or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of Sequoia.
[remainder
of page intentionally left blank]
5
IN
WITNESS WHEREOF, each party has caused this Mortgage Loan Purchase and Sale
Agreement to be executed by its duly authorized officer or officers as of the
day and year first above written.
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RWT
HOLDINGS, INC.
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By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
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Title:
Authorized
Officer
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SEQUOIA
RESIDENTIAL FUNDING, INC.
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By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
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Title:
Authorized
Officer
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6
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE