EXHIBIT 99.11
EXECUTION COPY
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RWT HOLDINGS, INC.
Purchaser
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK & TRUST CO.
Seller
MASTER MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 1, 2003
Conventional Fixed and Adjustable Rate Mortgage Loans
Flow Delivery Program
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TABLE OF CONTENTS
Page
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Section 1. Definitions........................................................ 1
Section 2. Purchase of Mortgage Loans......................................... 11
Section 3. Delivery Requirements.............................................. 12
Section 4. Examination of Mortgage Files...................................... 13
Section 5. Representations, Warranties and Agreements of Seller............... 14
Section 6. Representations, Warranties and Agreements of the Purchaser........ 23
Section 7. Servicing.......................................................... 24
Section 8. Intention of the Parties........................................... 24
Section 9. Costs.............................................................. 24
Section 10. Further Agreements of the Seller................................... 25
Section 11. Mandatory Delivery................................................. 25
Section 12. Termination........................................................ 25
Section 13. Severability Clause................................................ 25
Section 14. Waivers............................................................ 25
Section 15. Survival........................................................... 25
Section 16. Successor and Assigns; Assignment of Purchase Agreement............ 26
Section 17. Notices............................................................ 26
Section 18. Counterparts....................................................... 26
Section 19. Entire Agreement................................................... 26
Section 20. Governing Law and Amendments....................................... 26
Section 21. Exhibits........................................................... 26
Section 22. General Interpretive Principles.................................... 26
Section 23. Reproduction of Documents.......................................... 27
EXHIBITS AND SCHEDULES
SCHEDULE A FINAL MORTGAGE LOAN SCHEDULE
EXHIBIT 1 CONTENTS OF EACH MORTGAGE FILE
EXHIBIT 2 FORM OF CUSTODY AGREEMENT
EXHIBIT 3 UNDERWRITING GUIDE OF MLCC
EXHIBIT 4 FORM OF CERTIFICATE OF THE SELLER
EXHIBIT 5 FORM OF WARRANTY ▇▇▇▇ OF SALE
MORTGAGE LOAN PURCHASE AGREEMENT
This MASTER MORTGAGE LOAN PURCHASE AGREEMENT (the "Agreement"), dated
as of September 1, 2003, by and between RWT Holdings, Inc., having an office at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (the "Purchaser")
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank & Trust Co., having an office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller").
PRELIMINARY STATEMENT
The Seller desires to sell, from time to time, to the Purchaser, and
the Purchaser desires to purchase, from time to time, from the Seller, certain
conventional, fixed- and adjustable-rate, residential first mortgage loans (the
"Mortgage Loans") as described herein, and which shall be delivered in pools of
whole loans on various dates as provided herein (each a "Closing Date").
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Purchaser and the Seller agree
as follows:
Section 1. Definitions. For purposes of this Agreement, the
following capitalized terms shall have the respective meanings set forth below.
"Additional Collateral": (i) With respect to any Mortgage
100(sm) Loan, the marketable securities subject to a security interest pursuant
to the related Mortgage 100(sm) Pledge Agreement, or (ii) with respect to any
ParentPower(R) Mortgage Loan, the related ParentPower(R) Agreement.
"Additional Collateral Mortgage Loan": Each Mortgage Loan that
is either a Mortgage 100(sm) Loan or ParentPower(R) Mortgage Loan as to which
the Additional Collateral is still required to be provided.
"Additional Collateral Servicing Agreement": The Additional
Collateral Servicing Agreement, dated as of August 1, 2002, between the
Purchaser and Cendant.
"Adjustable Rate Mortgage Loan": A Mortgage Loan that provides
for the adjustment of the Mortgage Interest Rate payable with respect thereto in
accordance with the terms of the related Mortgage Note.
"Affiliate": With respect to any specified Person, any other
Person controlling, controlled by or under common control with such specified
Person.
"Agreement": This Master Mortgage Loan Purchase Agreement.
"Appraised Value": With respect to any Mortgage Loan, the
value of the related Mortgaged Property based upon the lesser of (i) the
appraisal made for the originator at the time of origination of the Mortgage
Loan, and (ii) if applicable, the sales price of the Mortgaged Property at such
time of origination.
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"Assignment": An assignment of the Mortgage, notice of
transfer or equivalent instrument, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect of record the sale
or transfer of the Mortgage Loan, which assignment, notice of transfer or
equivalent instrument may be in the form of one or more blanket assignments
covering Mortgages securing Mortgaged Properties located in the same county, if
permitted by applicable law and acceptable for recording by the applicable
recording office.
"Assumed Principal Balance": With respect to any Mortgage Loan
as of any date of determination (i) the outstanding principal balance as of the
Cut-off Date, after application of principal payments due on or before such date
whether or not received, minus (ii) all amounts previously distributed to the
Purchaser with respect to such Mortgage Loan representing (a) payments or other
recoveries of principal, or (b) advances of principal made pursuant to the
Servicing Agreements.
"Balloon Mortgage Loan": Any Mortgage Loan for which the
related Monthly Payments, other than the Monthly Payment due on the maturity
date thereof, are computed on the basis of a period to full amortization ending
on a date that is later than such maturity date.
"Business Day": Any day other than (i) a Saturday or Sunday,
or (ii) a day on which banking or savings associations in the State of New
Jersey are authorized or obligated by law or executive order to be closed.
"Cendant": Cendant Mortgage Corporation and its successors in
interest.
"Certificate of the Seller": A certificate signed (i) by the
Chairman of the Board or the Vice Chairman of the Board or the President or a
Vice President and (ii) by the Treasurer or the Secretary or one of the
Assistant Treasurers or Assistant Secretaries of the Seller, with the resolution
of the Board of Directors of the Seller, the certificate of incorporation of the
Seller and the by-laws of the Seller attached thereto, substantially in the form
attached hereto as Exhibit 4.
"Closing Date": For each Transaction, the date on which the
Seller actually sells to the Purchaser, and the Purchaser actually purchases
from the Seller, the Mortgage Loans listed on the Final Mortgage Loan Schedule
attached to the related Warranty ▇▇▇▇ of Sale.
"Closing Documents": (i) With respect to the Initial Closing
Date, the following documents:
(A) three counterparts of this Agreement;
(B) three counterparts of the Custodial Letter
Agreement;
(D) the Certificate of the Seller, dated as of
the Initial Closing Date;
(E) the Custodial Account Certification, dated
the Initial Closing Date; and
(F) the Escrow Account Certification, dated the
Initial Closing Date;
(ii) with respect to the Initial Closing Date and each subsequent Closing
Date, the following documents:
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(A) the Final Mortgage Loan Schedule for the
related Transaction;
(B) the Trust Receipt for the related
Transaction, dated the Closing Date, with only such
exceptions noted on Schedule B thereto as shall be
acceptable to the Purchaser;
(C) the Warranty ▇▇▇▇ of Sale with respect to
the Mortgage Loans for the related Transaction, dated
the Closing Date;
(D) Assignment of the Seller's interest under
the Surety Bond with respect to all Additional
Collateral Mortgage Loans sold on such Closing Date;
and
(E) Certificate of the Surety Bond Issuer
confirming the insurance of the Additional Collateral
Mortgage Loans sold on such Closing Date pursuant to
the provisions of the Surety Bond.
"Converted Mortgage Loan": A Convertible Mortgage Loan with
respect to which the related Mortgagor has exercised its option (i) to convert
the related Mortgage Note from a Mortgage Note with an adjustable interest rate
to a Mortgage Note with a fixed interest rate or (ii) to change the Index of the
related Mortgage Note as may be provided thereunder.
"Convertible Mortgage Loan": An Adjustable Rate Mortgage Loan
with a Mortgage Note that contains provisions permitting the Mortgagor
thereunder, at its option, (i) to convert such Mortgage Note from a Mortgage
Note with an adjustable interest rate to a Mortgage Note with a fixed interest
rate or (ii) to change the Index of such Mortgage Note.
"Correspondent Lender": A mortgage banking related entity
which originates Mortgage Loans in its own name, using its own funds, which
Mortgage Loans are purchased by MLCC under its Correspondent Lending Program.
"Correspondent Lending Program": Program whereby a
Correspondent Lender processes and closes a Mortgage Loan in its own name and
funds the Mortgage Loan from its own funds. All Mortgage Loans are underwritten
by personnel of MLCC, or in certain cases, the Correspondent Lender, in
accordance with MLCC's standard underwriting guidelines. MLCC or its agent
conducts a post-closing review on each Mortgage Loan prior to its purchase from
the Correspondent Lender.]
"Correspondent Mortgage Loan": A Mortgage Loan originated by a
Correspondent Lender.
"Custodial Account": The separate trust account or accounts
created and maintained pursuant to the Servicing Agreements.
"Custodian": The custodian under the Custody Agreement, or its
successor.
"Custody Agreement": That certain Custody Agreement dated as
of April 1, 1998, by and, among the RWT Holdings, Inc. as "Seller", ▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Capital, Inc. as "Purchaser" and Bankers Trust Company of
California, N.A. as "Custodian" for the retention of each Mortgage Note,
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Mortgage, Assignment and certain other portions of each Mortgage File attached
hereto as Exhibit 2 and including that certain letter agreement dated as of
April 1, 1998, by an among the "Seller", "Purchaser" and "Custodian",
substantially in the form attached to the Custody Agreement ("Custodial Letter
Agreement").
"Cut-off Date": With respect to each Mortgage Loan, the first
day of the month in which the related Closing Date occurs.
"Deleted Mortgage Loan": A Mortgage Loan replaced or to be
replaced by a Qualified Substitute Mortgage Loan.
"Due Date": The day of the month on which each Monthly Payment
is due on a Mortgage Loan, exclusive of any days of grace.
"Equity Refinanced Mortgage Loan": A Refinanced Mortgage Loan
in which the Mortgagor used less than the entire amount of the proceeds (net of
any closing costs, including discount and origination fees and prepaid items) to
refinance an existing mortgage loan and any junior lien that existed on the
related Mortgaged Property for at least one year prior to origination of the
Refinanced Mortgage Loan.
"FHLMC": The Federal Home Loan Mortgage Corporation or any
successor organization.
"Final Mortgage Loan Schedule": The list of Mortgage Loans for
a Transaction, which list shall set forth the following information with respect
to each Mortgage Loan:
(i) the loan number;
(ii) the Mortgagor's name;
(iii) the street address of the Mortgaged Property,
including city, state and zip code;
(iv) the Mortgage Interest Rate at origination;
(v) for each Adjustable Rate Mortgage Loan, the first
Interest Rate Adjustment Date and the first Payment Adjustment Date;
(vi) for each Adjustable Rate Mortgage Loan, the Gross
Margin;
(vii) for each Adjustable Rate Mortgage Loan, the Lifetime
Rate Cap;
(viii) for each Adjustable Rate Mortgage Loan, the Periodic
Rate Cap;
(ix) the original term to maturity;
(x) the original principal balance;
(xi) the first payment date;
(xii) the maturity date;
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(xiii) the Monthly Payment in effect as of the related
Cut-off Date;
(xiv) the principal balance as of the related Cut-off Date,
after giving effect to all payments of principal due on or before such
date, whether or not received;
(xv) the Loan-to-Value Ratio as of the date of
origination;
(xvi) a code indicating whether the Mortgaged Property is
occupied by owner;
(xvii) a code indicating the type of residential dwelling;
(xviii) a code indicating whether the Mortgage Loan is a
Refinanced Mortgage Loan and, if so, whether it is an Equity Refinanced
Mortgage Loan;
(xix) a code indicating whether the Mortgage Loan is
covered by a Primary Insurance Policy;
(xx) a code indicating whether the Mortgage Loan is a
Limited Documentation Mortgage Loan;
(xxi) a code indicating whether the Mortgage Loan is an
Additional Collateral Mortgage Loan;
(xxii) for each Adjustable Rate Mortgage Loan, a code
indicating the type of Index;
(xxiii) a code indicating whether the Mortgage Loan is a
Balloon Mortgage Loan; and
(xxiv) the Servicing Fee Rate applicable to such Mortgage
Loan, and if such Mortgage Loan is an Adjustable Rate Mortgage Loan
whose first Interest Rate Adjustment has not occurred, the Servicing
Fee Rate (if different) prior to the first Interest Rate Adjustment
Date.
Such schedule shall also set forth the weighted average of the amounts set forth
in (iv) and (xi) above and the total of the amounts described under (xiii) above
for all of the Mortgage Loans. Such list may be in the form of more than one
list, collectively setting forth all of the information required.
"Fixed Rate Mortgage Loan": A Mortgage Loan that provides for
a fixed Mortgage Interest Rate over the term of the related Mortgage Note.
"Flow Purchase and Servicing Agreement": The Mortgage Loan
Flow Purchase, Sale and Servicing Agreement, dated as of August 1, 2002, between
Purchaser and Cendant.
"FNMA": The Federal National Mortgage Association or any
successor organization.
"Gross Margin": With respect to each Adjustable Rate Mortgage
Loan, the fixed number of basis points set forth in the Final Mortgage Loan
Schedule that is added to the Index on each Interest Rate Adjustment Date in
accordance with the terms of the related Mortgage Note to determine the
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Mortgage Interest Rate for such Mortgage Loan, subject to any applicable
Periodic Rate Cap and Lifetime Rate Cap.
"Index": With respect to each Adjustable Rate Mortgage Loan
and each Interest Rate Adjustment Date, the index used to determine the Mortgage
Interest Rate on such Adjustable Rate Mortgage Loan, as specified in the related
Mortgage Note, which index may be (i) the average of the London Interbank
Offered Rates for one- or six-month U.S. dollar deposits, as published in the
"Money Rates" table of The Wall Street Journal or elsewhere (as specified in the
related Mortgage Note) on the date or dates specified in such Mortgage Note for
the determination of such rate (ii) the weekly average of the closing market bid
yields on actively traded U.S. Treasury securities adjusted to a constant
maturity of one year, (iii) the weekly average or the monthly average of weekly
average auction rates on U.S. Treasury bills with a maturity of six months, as
published by the Board of Governors of the Federal Reserve System in Federal
Reserve Statistical Release H.15. (519), (iv) the weekly average of the closing
market bid yields on U.S. Treasury securities adjusted to a constant maturity of
one (1) year, as published by the Board of Governors of the Federal Reserve
System in Federal Reserve Statistical Release H.15. (519), as available the
number of days prior to the Interest Rate Adjustment Date set forth in the
related Mortgage Note, (v) the weekly average of the closing market bid yields
on U.S. Treasury securities adjusted to a constant maturity of five (5) years,
as published by the Board of Governors of the Federal Reserve System in Federal
Reserve Statistical Release H.15. (519), as available the number of days prior
to the Interest Rate Adjustment Date set forth in the related Mortgage Note,
(vi) the prime rate specified in the related Mortgage Note, as published in the
"Money Rates" table of The Wall Street Journal, or elsewhere (as specified in
such Mortgage Note) and available the number of days prior to the Interest Rate
Adjustment Date set forth in the related Mortgage Note, (vii) the monthly
weighted average cost of funds of members of the Federal home Loan Bank of San
Francisco, (viii) such other standard for determining the change in the interest
rate as may be set forth in the related Mortgage Note, as such rate may be
available the number of days prior to the Interest Rate Adjustment Date set
forth in the related Mortgage Note, or (ix) if such index is not so published or
is otherwise unavailable, such comparable alternative index selected under the
Servicing Agreements in accordance with the terms of the Mortgage Notes and in
consultation with the Purchaser.
"Initial Closing Date": The first Closing Date to occur.
"Interest Rate Adjustment Date": With respect to each
Adjustable Rate Mortgage Loan, the date on which the Mortgage Interest Rate is
adjusted in accordance with the terms of the related Mortgage Note.
"Lifetime Rate Cap": With respect to each Adjustable Rate
Mortgage Loan, the maximum Mortgage Interest Rate that may be borne thereby, as
set forth in the related Mortgage Note.
"Limited Documentation Mortgage Loan": A Mortgage Loan that
was originated pursuant to a "limited documentation" or "easy qualifier"
underwriting program.
"Loan-to-Value Ratio" or "LTV": With respect to any Mortgage
Loan, as of any date on which a determination thereof is made, the ratio on such
date of the outstanding principal balance of such Mortgage Loan to the Appraised
Value of the related Mortgaged Property.
"MLBTC": ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank & Trust Co. and its successors in
interest.
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"MLCC": ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Corporation and its successors in
interest.
"Monthly Payment": The scheduled monthly payment of principal
and interest on a Mortgage Loan which is payable by a Mortgagor from time to
time under the related Mortgage Note on every Due Date.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first lien on real property securing the Mortgage Note.
"Mortgage 100(sm) Loan": A Mortgage Loan having at the time of
origination a Loan-to-Value Ratio generally in excess of MLCC's maximum
acceptable Loan-to-Value Ratio for such Mortgage Loan, which Mortgage Loan is
secured by additional collateral in the form of a security interest in
marketable securities having a market value, as of the date of such loan's
origination, of in most cases at least equal to the Original Additional
Collateral Requirement.
"Mortgage 100(sm) Pledge Agreement": With respect to each
Mortgage 100(sm) Loan, the Mortgage 100(sm) Pledge Agreement for Securities
Account between the Mortgagor under such Mortgage 100(sm) Loan and MLCC,
pursuant to which such Mortgagor granted a security interest in various
investment securities.
"Mortgage File": The mortgage documents, including but not
limited to all paper, computer generated and microfiche records, pertaining to a
particular Mortgage Loan which are specified in Exhibit 1 hereto and any
additional documents required to be added to the Mortgage File pursuant to the
Program Documents.
"Mortgage Interest Rate": The annual rate at which interest
accrues on any Mortgage Loan, net of any premium on any related Primary
Insurance Policy, and with respect to any Adjustable Rate Mortgage Loan, as such
annual rate may be adjusted on any Interest Rate Adjustment Date and subject to
the limitations on such interest rate imposed by the Periodic Rate Cap and the
Lifetime Rate Cap.
"Mortgage Loan": An individual Mortgage Loan which is the
subject of this Agreement. Each Mortgage Loan set forth on the mortgage loan
schedule attached to a Warranty ▇▇▇▇ of Sale initially will be subject to this
Agreement, commencing on the respective Closing Date for the related
Transaction.
"Mortgage Loan Documents": With respect to each Mortgage Loan,
the documents specified in Section 3(b) of this Agreement, which documents the
Seller shall deliver to the Custodian pursuant thereto.
"Mortgage Loan Payments": With respect to each Mortgage Loan,
(i) all scheduled principal due after the related Cut-off Date, (ii) all other
recoveries of principal collected after the related Cut-off Date, other than any
scheduled payments of principal due on or before the related Cut-off Date and
collected by the Seller after the related Cut-off Date, and (iii) all payments
of interest on the Mortgage Loans net of interest at the Servicing Fee Rate
minus that portion of any such payment that is allocable to the period prior to
the related Cut-off Date; provided, however, that payments of scheduled
principal and interest prepaid for a due date beyond the related Cut-off Date
shall not be applied to the principal balance as of the related Cut-off Date and
such prepaid amounts (minus interest at the Servicing Fee Rate) shall constitute
a part of the Mortgage Loan Payments, which prepaid amounts the Seller shall
deposit into the
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Custodial Account established for the benefit of the Purchaser for subsequent
remittance by the Seller to the Purchaser pursuant to the Servicing Agreements.
"Mortgage Note": The note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property": The underlying real property securing
repayment of a Mortgage Note, consisting of a fee simple or leasehold interest
in a single parcel of real property improved by a residential dwelling.
"Mortgagor": The obligor on a Mortgage Note.
"ParentPower(R) Agreement:" With respect to each
ParentPower(R) Mortgage Loan, a ParentPower(R) Guaranty and Security Agreement
for Securities Account or a ParentPower(R) Guaranty Agreement for Real Estate.
"ParentPower(R) Guaranty Agreement for Real Estate:" With
respect to a ParentPower(R) Mortgage Loan, an agreement between MLCC and a
guarantor on behalf of the Mortgagor under such ParentPower(R) Mortgage Loan
pursuant to which such guarantor guarantees the payment of certain losses under
such ParentPower(R) Mortgage Loan, authorizes MLCC to draw on a home equity
credit line to fund such guaranty and has secured such guaranty with a lien on
residential real estate of the guarantor. The required amount of the collateral
supporting such guaranty is at least equal to the Original Additional Collateral
Requirement for such ParentPower(R) Mortgage Loan. For purposes of this
definition, the ParentPower(R) Guaranty Agreement For Real Estate shall not
include the rights of the mortgagee under the Equity Access(R) Security
Instrument referred to therein, which rights have been retained by MLCC.
"ParentPower(R) Guaranty and Security Agreement for Securities
Account": With respect to a ParentPower(R) Mortgage Loan, an agreement between
MLCC and a guarantor on behalf of the Mortgagor under such ParentPower(R)
Mortgage Loan pursuant to which such guarantor guarantees the payment of certain
losses under such ParentPower(R) Mortgage Loan and has granted a security
interest to MLCC in certain marketable securities to collateralize such
guaranty. The required amount of such collateral is at least equal to the
Original Additional Collateral Requirement for such ParentPower(R) Mortgage
Loan.
"ParentPower(R) Mortgage Loan": A Mortgage Loan having at the
time of origination a Loan-to-Value Ratio generally in excess of MLCC's maximum
acceptable Loan-to-Value Ratio for such Mortgage Loan, which Mortgage Loan is
supported by a ParentPower(R) Agreement.
"Payment Adjustment Date": With respect to each Adjustable
Rate Mortgage Loan, the first Payment Adjustment Date, as set forth in the
Mortgage Loan Schedule and in the related Mortgage Note, and each anniversary
thereof, on which the amount of the Monthly Payment on an Adjustable Rate
Mortgage Loan may adjust.
"Periodic Rate Cap": With respect to each Adjustable Rate
Mortgage Loan as to which the related Mortgage Loan Schedule indicates the
existence of a Periodic Rate Cap, the provision of the related Mortgage Note
that provides for a maximum amount by which the Mortgage Interest Rate may
increase (or,
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if so indicated on such Mortgage Loan Schedule, decrease) on an Interest Rate
Adjustment Date above the Mortgage Interest Rate immediately prior to such
Interest Rate Adjustment Date.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preliminary Mortgage Loan Schedule": The initial list of
Mortgage Loans for a the proposed Transaction, which list shall set forth at
least the information with respect to each Mortgage Loan described in items (i),
(ii), (iv), (ix), (xii), (xiii), (xiv), (xvi), (xx), (xxi), (xxii) and (xxiii)
of the definition of "Final Mortgage Loan Schedule".
"Primary Insurance Policy": With respect to each Mortgage
Loan, the policy of primary mortgage insurance, if any, in effect as indicated
on the Mortgage Loan Schedule, or any replacement policy therefor obtained by
the Seller pursuant to the Master Servicing Agreement.
"Program Documents": With respect to each Transaction, the
related Purchase Price and Terms Letter, the related Warranty ▇▇▇▇ of Sale, the
Custody Agreement, the Servicing Agreements, this Agreement and each other
document or instrument executed or delivered by the Seller in connection with
any of the foregoing.
"Purchase Price": With respect to each Mortgage Loan listed on
the Final Mortgage Loan Schedule, the price paid on the related Closing Date by
the Purchaser to the Seller in exchange for the Mortgage Loan, which amount
shall equal the sum of (i) the Purchase Price Percentage multiplied by the
unpaid principal balance of the Mortgage Loan as of the Cut-off Date, after
application of scheduled payments of principal due on or before the Cut-off Date
whether or not collected, and (ii) accrued interest on the unpaid principal
balance of the Mortgage Loan at the interest rate on the Mortgage Loan net of
the applicable Servicing Fee Rate, from the Cut-off Date to the day prior to the
Closing Date, inclusive.
"Purchase Price and Terms Letter": With respect to each
Transaction, the letter agreement or agreements setting forth the general terms
and conditions of the Transaction to be consummated as provided herein, with a
copy of the Preliminary Mortgage Loan Schedule attached thereto identifying the
Mortgage Loans to be purchased on the respective Closing Date, by and between
the Seller and the Purchaser. The Purchase Price and Terms Letter shall set
forth, among other matters, (i) the approximate dollar amount of Mortgage Loans
for the related Transaction, (ii) the Cut-off Date, (iii) the Scheduled Closing
Date, (iv) the Purchase Price Percentage, (v) the Servicing Fee Rate, and (vi)
the characteristics, including the characteristics set forth in the Warranty
▇▇▇▇ of Sale, for the Mortgage Loans, both individually and in the aggregate.
All of the individual Purchase Price and Terms Letters shall collectively be
referred to as the "Purchase Price and Terms Letter".
"Purchase Price Percentage": With respect to each Mortgage
Loan, the percentage of par set forth in the related Purchase Price and Terms
Letter (subject to adjustment as provided therein) at which the Purchaser will
purchase the Mortgage Loan from the Seller on the Closing Date.
"Qualified Substitute Mortgage Loan": A mortgage loan
substituted by the Seller for a Deleted Mortgage Loan which must, on the date of
such substitution (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
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substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the outstanding principal balance
of the Deleted Mortgage Loan (the amount of any shortfall to be deposited into
the Custodial Account by the Seller in the month of substitution pursuant to
Section 4.04(vii)), (ii) have a Mortgage Interest Rate not less than, and not
more than 1% greater than the Mortgage Interest Rate of the Deleted Mortgage
Loan, (iii) have a remaining term to maturity not greater than (and not more
than one year less than) that of the Deleted Mortgage Loan, and (iv) comply with
each representation and warranty set forth in Section 5(b) of the Master
Mortgage Loan Purchase Agreement.
"Refinanced Mortgage Loan": A Mortgage Loan that was made to a
Mortgagor who owned the Mortgaged Property prior to the origination of such
Mortgage Loan and the proceeds of which (net of any closing costs, including
discount and origination fees and prepaid items) were used in whole or part to
satisfy an existing mortgage.
"Scheduled Closing Date": For each Transaction, the date set
forth on the Purchase Price and Terms Letter as the date on which the Seller and
the Purchaser anticipate that the Seller will sell to the Purchaser, and the
Purchaser will purchase from the Seller, the Mortgage Loans listed on the
related Final Mortgage Loan Schedule, or such other date or dates as are
mutually agreed upon by the parties.
"Servicing Agreements": The Additional Collateral Servicing
Agreement and the Flow Purchase and Servicing Agreement, referred to
collectively.
"Servicing Fee": With respect to any Mortgage Loan and any
Remittance Date, and subject to Section 6.03, a fee equal to the sum of (i) the
Servicing Fee Rate multiplied by the unpaid principal balance of the related
Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan, the
rate per annum set forth in the related Warranty ▇▇▇▇ of Sale as the "Servicing
Fee Rate".
"Subsequent Purchaser": Any Person that acquires an interest
in a Mortgage Loan from the Purchaser.
"Surety Bond": The limited purpose surety bond (Policy No.
AB0039BE), dated February 28, 1996 in respect of Mortgage Loans originated by
MLCC, issued by the Surety Bond Issuer for the benefit of certain beneficiaries,
but only to the extent that such surety bond covers any Additional Collateral
Mortgage Loan.
"Surety Bond Issuer": AMBAC Assurance Corporation (fka AMBAC
Indemnity Corporation) or any successor thereto.
"Transaction": The sale by the Seller to the Purchaser, and
the purchase by the Purchaser from the Seller, of one or more Mortgage Loans on
a Closing Date, as evidenced by the execution and delivery by the Seller to RWT
Holdings, Inc., as the initial Purchaser, of the Warranty ▇▇▇▇ of Sale.
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"Trust Receipt": For each Transaction, the Trust Receipt,
executed by the Custodian with respect to the Mortgage Loans for such
Transaction, substantially in the form of Exhibit One to the Custody Agreement.
"Underwriting Guide": The Underwriting Guide of MLCC attached
hereto as Exhibit 4, as revised from time to time.
"Warranty ▇▇▇▇ of Sale": The warranty ▇▇▇▇ of sale executed
and delivered by the Seller to the Purchaser on a Closing Date, evidencing the
sale of the related Mortgage Loans by the Seller to the Purchaser and setting
forth certain representations and warranties of the Seller with respect thereto,
in the form attached hereto as Exhibit 5.
Section 2. Purchase of Mortgage Loans.
(a) Sale and Conveyance of Mortgage Loans. From time to time, the
Seller may offer to sell to the Purchaser, and the Purchaser elect to purchase
from the Seller, Mortgage Loans in one or more Transactions pursuant to the
terms and conditions of the Program Documents. The agreement of the Seller to
sell to the Purchaser, and of the Purchaser to purchase from the Seller,
Mortgage Loans on a particular Closing Date shall be evidenced by the execution
of a Purchase Price and Terms Letter. The obligation of the Purchaser to
purchase any Mortgage Loan from the Seller on any particular Closing Date shall
be subject to the satisfaction of the conditions precedent to the Purchaser's
obligation to purchase set forth in Section 2(b). The sale of each Mortgage Loan
shall be reflected in the Seller's balance sheet and other financial statements
as a sale of assets by the Seller.
(b) Conditions of Closing. On each respective Closing Date (i) the
Seller will sell, transfer, assign, set over and convey to the Purchaser,
without recourse, all of the right, title and interest of the Seller in and to
the Mortgage Loans included in such Transaction, including all Mortgage Loan
Payments, and (ii) the Purchaser shall pay to the Seller, by wire transfer of
immediately available funds to the account of the Seller, the Purchase Price for
each Mortgage Loan included in such Transaction, subject to the satisfaction of
the following conditions precedent to the Purchaser's obligation to purchase the
Mortgage Loans:
(i) all of the representations and warranties of the
Seller under the Program Documents shall be true and correct as of the
Closing Date, and no event shall have occurred that, with notice or the
passage of time, would constitute a default under any Program Document,
including an Event of Default under the Servicing Agreements;
(ii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, the Closing Documents, in such
forms as are agreed upon and as are acceptable to the Purchaser, duly
executed by all signatories other than the Purchaser as required
pursuant to the respective terms thereof;
(iii) the Seller shall have delivered and released to the
Purchaser or the Custodian all documents required under the Program
Documents; and
11
(iv) the Seller shall have complied with all other terms
and conditions of this Agreement.
(c) Record Title and Possession of Mortgage Files. From and after
the sale of each Mortgage Loan, the contents of the related Mortgage File and
all rights, benefits, proceeds and obligations arising therefrom or in
connection therewith, are vested in the Purchaser. All rights arising out of
each Mortgage Loan including, but not limited to, all funds received on or in
connection with such Mortgage Loans and all records or documents with respect to
such Mortgage Loan prepared by or which come into the possession of the Seller
shall be received and held by the Seller in trust for the benefit of the
Purchaser as the owner of the Mortgage Loan. Any portion of the Mortgage File
held by the Seller for servicing purposes shall be appropriately marked to
clearly reflect the ownership of the Mortgage Loan by the Purchaser and the
Seller shall promptly release the portion of the Mortgage File to the Purchaser,
when the Seller's servicing needs no longer necessitate retaining such
documents.
Section 3. Delivery Requirements.
(a) Mortgage Loan Schedules. Prior to the date on which the Seller
and the Purchaser execute a Purchase Price and Terms Letter, the Seller shall
provide the Purchaser with the respective Preliminary Mortgage Loan Schedule.
Not less than one (1) Business Day prior to the Closing Date, the Seller either
(i) shall deliver the Final Mortgage Loan Schedule to the Purchaser or (ii)
shall deliver to the Purchaser all information with respect to the Mortgage
Loans to be sold to the Purchaser on such Closing Date that is necessary to
enable the Purchaser to prepare the Final Mortgage Loan Schedule, which
information shall be delivered on a computer diskette, on a machine-readable
tape or in such other format as the Purchaser may reasonably specify.
(b) Delivery of Mortgage Loan Documents. Not less than three (3)
Business days prior to the related Closing Date, the Seller shall, with respect
to each Mortgage Loan, deliver to the Custodian the following documents:
(i) The original Mortgage Note endorsed, "Pay to the
order of ___________, without recourse" and signed in the name of the
Seller by an authorized officer. The Mortgage Note shall include all
intervening endorsements showing a complete chain of title from the
originator to the Seller.
(ii) The original recorded Mortgage, with evidence of
recording thereon, or, if the original Mortgage has not yet been
returned from the recording office, a copy of the original Mortgage
certified by the Seller to be a true copy of the original of the
Mortgage which has been delivered for recording in the appropriate
recording office of the jurisdiction in which the Mortgaged Property is
located.
(iii) The original Assignment of each Mortgage, executed in
blank.
(iv) The original policy of title insurance (or a
preliminary title report if the original title insurance policy has not
been received from the title insurance company).
(v) Originals of any intervening assignments of the
Mortgage, with evidence of recording thereon or, if the original
intervening assignment has not yet been returned from the
12
recording office, a copy of such assignment certified by the Seller to
be a true copy of the original of the assignment which has been
delivered for recording in the appropriate recording office of the
jurisdiction in which the Mortgaged Property is located.
(vi) The original Primary Insurance Policy, if any.
(vii) Originals of all assumption and modification
agreements, if any.
(viii) An original assignment of the related Mortgage
100(sm) Pledge Agreement or Parent Power(R) Agreement, as the case may
be, with respect to each Mortgage Loan that is an Additional Collateral
Mortgage Loan, together with a copy of the related Mortgage 100(sm)
Pledge Agreement or Parent Power(R) Agreement, as the case may be.
(ix) With respect to each Additional Collateral Mortgage
Loan, a copy of the UCC-1 and an original form UCC-3, if applicable,
together with a copy of the applicable notice of assignment to and
acknowledgment by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.
If (a) the original Mortgage was not delivered pursuant to clause (ii)
above, (b) any intervening assignment was not delivered pursuant to clause (v)
above or (c) the original title insurance policy was not delivered pursuant to
clause (iv) above, the Seller shall use best reasonable efforts to promptly
secure the delivery of such originals and shall cause such originals to be
delivered to the Purchaser or the Custodian promptly upon receipt thereof. If
any such document is not so delivered to the Purchaser or the Custodian within
two hundred seventy (270) days following the Closing Date, the related Mortgage
Loan shall, upon the request of the Purchaser, be repurchased or substituted for
by the Seller at the price and in the manner specified in Section 5(c).
If the Purchaser finds any document or documents constituting a part of
a Mortgage File to be defective in any material respect, the Purchaser shall
promptly so notify the Seller. The Seller shall have a period of ninety (90)
days within which to correct or cure any such defect. The Seller hereby
covenants and agrees that, if any material defect cannot be corrected or cured,
the Seller will, not later than the expiration of the applicable cure period
described above, repurchase or substitute for the related Mortgage Loan at the
price and in the manner set forth in Section 5(c).
Section 4. Examination of Mortgage Files. Prior to the
respective Closing Date, the Seller, (a) shall deliver to the Custodian in
escrow, for examination, the Mortgage File pertaining to each Mortgage Loan or
(b) shall make the Mortgage File pertaining to each Mortgage Loan available to
the Purchaser for examination at the offices of the Seller, the Custodian or
such other location as the Seller and the Purchaser shall mutually designate.
Such examination may be made by the Purchaser of the related Mortgage Loan at
any time before the related Closing Date and may be made by the Purchaser or any
prospective Subsequent Purchaser of such Mortgage Loan at any time after such
Closing Date. If the Purchaser makes such examination prior to the Closing Date
and identifies any Mortgage Loan that does not conform to the terms of the
related Purchase Price and Terms Letter, such Mortgage Loan shall be deleted
from the Final Mortgage Loan Schedule and may be replaced by a substitute
Mortgage Loan that conforms to the terms of the Purchase Price and Terms Letter
and that is reasonably acceptable to the Purchaser. The Purchaser may, at its
option and without notice to Seller, purchase all or part of the Mortgage Loans
without conducting any partial or complete examination. The failure or omission
by the Purchaser or any Subsequent Purchaser of the Mortgage Loans to conduct
any partial or complete
13
examination of the Mortgage Files shall not affect the Purchaser's rights to
demand repurchase or other relief as provided under any Program Document.
Section 5. Representations, Warranties and Agreements of Seller.
(a) The Seller represents and warrants to the Purchaser that as of
the date hereof and as of each respective Closing Date (or as of such other date
or dates as may be expressly set forth below):
(i) The Seller is duly organized, validly existing and in
good standing as a bank under the laws of the State of New Jersey. The
Seller has full power and authority to own its properties and conduct
its business as presently conducted by it, and to enter into and
perform its obligations under the Program Documents, and to sell each
Mortgage Loan, and holds all licenses necessary to carry on its
business as now being conducted and is licensed in, qualified to
transact business in and is in good standing under the laws of each
state in which any Mortgaged Property is located if the laws of such
state require licensing or qualification in order to conduct business
of the type conducted by the Seller, and in any event the Seller was
and is in compliance with the laws of any such state to the extent
necessary to ensure the enforceability of each Mortgage Loan.
(ii) This Agreement has been duly authorized, executed and
delivered by the Seller, and each, assuming the due authorization,
execution and delivery thereof by the Purchaser and the enforceability
thereof against the Purchaser, constitutes the legal, valid and binding
agreement of the Seller, enforceable against the Seller in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, liquidation, moratorium, reorganization or
other similar laws affecting the rights of creditors generally or by
general principles of equity, regardless of whether enforcement is
sought in a proceeding in equity or at law.
(iii) As of the respective Closing Date, the Purchase Price
and Terms Letter has been duly authorized, executed and delivered by
the Seller, and each Purchase Price and Terms Letter, assuming the due
authorization, execution and delivery thereof by the Purchaser and the
enforceability thereof against the Purchaser, constitutes the legal,
valid and binding agreement of the Seller, enforceable against the
Seller in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, liquidation,
moratorium, reorganization or other similar laws affecting the rights
of creditors generally or by general principles of equity, regardless
of whether enforcement is sought in a proceeding in equity or at law.
(iv) As of the respective Closing Date, the Warranty ▇▇▇▇
of Sale has been duly authorized, executed and delivered by the Seller,
and the Warranty ▇▇▇▇ of Sale constitutes the legal, valid and binding
agreement of the Seller, enforceable against the Seller in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, liquidation, moratorium, reorganization or
other similar laws affecting the rights of creditors generally or by
general principles of equity, regardless of whether enforcement is
sought in a proceeding in equity or at law.
14
(v) The representations and warranties made by the Seller
under the Warranty ▇▇▇▇ of Sale are true and correct in all material
respects on the respective Closing Date.
(vi) Neither the delivery of the Mortgage Loans to the
Purchaser, nor the sale of the Mortgage Loans to the Purchaser, nor the
execution or delivery of the Program Documents, nor the consummation of
any of the Transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof, will result in the breach
of any term or provision of the charter documents of the Seller, or
conflict with, result in a material breach or violation or an
acceleration of or constitute a default under any material term of any
indenture or other agreement or instrument to which the Seller is a
party or by which the Seller is bound, or any statute, order or
regulation applicable to the Seller of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Seller.
(vii) There are no actions, proceedings or investigations
pending or, to the Seller's knowledge, threatened against the Seller
that, in the Seller's judgment, if determined adversely to the Seller,
would prevent the consummation of any of the Transactions or would
materially and adversely affect the interests of the Purchaser in any
of the Mortgage Loans, the validity or enforceability of any of the
Program Documents or the ability of the Seller to fulfill the terms of
any of the Program Documents.
(viii) The Mortgage Loans were originated by MLCC 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 the
Department of Housing and Urban Development pursuant to Section 203 and
211 of the National Housing Act or a FNMA- or FHLMC-approved seller.
(b) The Seller hereby represents and warrants to the Purchaser, as
to each Mortgage Loan as of each respective Closing Date or such other date as
may be specified below, that:
(i) The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the Cut-off
Date;
(ii) As of the 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;
(iii) 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
15
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;
(iv) 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;
(v) 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;
(vi) 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 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;
(vii) 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
16
as the originator of the Mortgage Loan and applicable to the Mortgage
Loan have been complied with in all material respects;
(viii) 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;
(ix) 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, 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
17
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;
(x) The Mortgage Note is not subject to a third party's
security interest or other rights or interest therein;
(xi) 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;
(xii) 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;
(xiii) 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;
(xiv) 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 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;
(xv) 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
18
related Mortgaged Property which are or may be liens prior to, or equal
or coordinate with, the lien of the related Mortgage;
(xvi) 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;
(xvii) 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;
(xviii) 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;
(xix) 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;
(xx) 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;
(xxi) With respect to each Mortgage Loan, there is either
(i) an automated property valuation report or (ii) 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 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
19
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;
(xxii) No Mortgage Loan contains "subsidized buydown" or
"graduated payment" features;
(xxiii) 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;
(xxiv) No Mortgage Loan provides for negative amortization;
(xxv) No Mortgage Loan had an original term in excess of
thirty (30) years;
(xxvi) [RESERVED]
(xxvii) 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);
(xxviii) 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.
(xxix) No Mortgage Loan is the subject of pending or final
foreclosure proceedings.
(xxx) 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.
(xxxi) 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.
(xxxii) 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.
(xxxiii) 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.
20
(c) It is understood and agreed that the representations and
warranties set forth in these Sections 5 (a) and 5 (b) shall survive the sale
and delivery of the Mortgage Loans to the Purchaser and shall inure to the
benefit of the Purchaser, notwithstanding any restrictive or qualified
endorsement on any Mortgage Note or Assignment or the examination of any
Mortgage File. It is further understood and agreed that with respect to the
representations and warranties contained in Section 5 which were made to the
best of Seller's knowledge after reasonable inquiry and investigation, if it is
discovered by the Seller or the Purchaser that the substance of such
representation or warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan, the Purchaser shall be
entitled to all the remedies to which it would be entitled for breach of
representation or warranty, including, without limitation, the repurchase
requirements contained herein, notwithstanding Seller's lack of knowledge with
respect to the inaccuracy at the time the representation or warranty was made.
Upon discovery by either Seller or the Purchaser of a breach of any of the
foregoing representations and warranties which materially and adversely affects
the interest of the Purchaser in one or more of Mortgage Loans, the party
discovering such breach shall give prompt written notice to the other.
Seller shall have ninety (90) days from the earlier of either discovery
by or notice to the Seller of any breach of a representation or warranty which
materially and adversely affects the value of a Mortgage Loan or the Mortgage
Loans or the interest of the Purchaser therein, to cure such breach in all
material respects and, if such breach cannot be cured the Seller shall, at the
Purchaser's option, repurchase such Mortgage Loan or Mortgage Loans at the
Repurchase Price as defined in the next sentence. The Repurchase Price is
defined as an amount equal to (i) the greater of (a) the unpaid principal
balance of such Mortgage Loan or (b) during the first three years after the
Closing Date, the product of (x) the Purchase Price Percentage as updated to
reflect the current maturity for such Mortgage Loan set forth in the related
Purchase Price and Terms Letter, and (y) the unpaid principal balance of such
Mortgage Loan, plus (ii) interest on such unpaid principal balance of such
Mortgage Loan at the Mortgage Loan Remittance Rate from the last date through
which interest has been paid and distributed to the Purchaser to the date of
repurchase, plus (iii) any unreimbursed Servicing Advances with respect to such
Mortgage Loan, plus (iv) any costs and damages incurred in connection with any
violation by any Mortgage Loan of any representation or warranty contained
herein, less (v) amounts received or advanced in respect of such repurchased
Mortgage Loan which are being held in the Custodial Account for distribution in
the month of repurchase. The rights of Purchaser under this paragraph shall
inure only to Purchaser and not to Purchaser's successors or assigns. Any such
repurchase shall be accomplished by deposit in the Custodial Account of the
amount of the repurchase price, after deducting therefrom any amounts received
in respect of such repurchased Mortgage Loan and being held in the Custodial
Account for future distribution in accordance with the Master Servicing
Agreement.
If the Seller is required to repurchase any Mortgage Loan pursuant to
the preceding paragraph on or prior to the one hundred and twentieth (120th) day
following the related Closing Date, the Seller may, at its option, substitute a
Qualified Substitute Mortgage Loan for such deficient Mortgage Loan within such
one hundred and twenty day (120) period, in lieu of repurchasing such deficient
Mortgage Loan. As to any Deleted Mortgage Loan for which the Seller substitutes
a Qualified Substitute Mortgage Loan or Loans, the Seller shall effect such
substitution by delivering to the Purchaser for such Qualified Substitute
Mortgage Loan or Loans the Mortgage Note, the Mortgage, the Assignment and such
other documents and agreements as are required by Section 3(b), with the
Mortgage Note endorsed as required by Section 3(b). No substitution will be made
in any calendar month after the Determination Date for such month. The Seller
shall deposit in the Custodial Account the Monthly Payment less the Servicing
Fee due on such Qualified Substitute Mortgage Loan or Loans in the month
following the date of such substitution. Monthly Payments
21
due with respect to Qualified Substitute Mortgage Loans in the month of
substitution will be retained by the Seller. For the month of substitution,
distribution to the Purchaser will include the Monthly Payment due on such
Deleted Mortgage Loan in the month of substitution, and the Seller shall
thereafter be entitled to retain all amounts subsequently received by the Seller
in respect of such Deleted Mortgage Loan. The Seller shall give written notice
to the Purchaser that such substitution has taken place and shall amend the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from
the terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan. Upon such substitution, such Qualified Substitute Mortgage Loan
or Loans shall be subject to the terms of this Agreement in all respects, and
the Seller shall be deemed to have made with respect to such Qualified
Substitute Mortgage Loan or Loans, as of the date of substitution, the
covenants, representations and warranties set forth in Sections 5(a) and 5(b)
hereof. The Purchaser shall promptly effect the reconveyance of such Deleted
Mortgage Loan to the Seller.
For any month in which the Seller substitutes one or more Qualified
Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller
will determine the amount (if any) by which the aggregate principal balance of
all such Qualified Substitute Mortgage Loans as of the date of substitution is
less than the aggregate outstanding principal balance of all such Deleted
Mortgage Loans (after application of scheduled principal payments due in the
month of substitution). The amount of such shortfall shall be distributed by the
Seller in the month of substitution pursuant to the Servicing Agreements.
Accordingly, on the date of such substitution, the Seller will deposit from its
own funds into the Custodial Account an amount equal to the amount of such
shortfall in accordance with the Servicing Agreements.
In addition to such cure, repurchase or substitution obligation, the
Seller shall indemnify the Purchaser and hold it harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the Seller's
representations and warranties contained in Sections 5(a) or (b) hereof. It is
understood and agreed that the obligations of the Seller set forth in this
Section 5(c) to cure a breach, or to repurchase or substitute a defective
Mortgage Loan and to indemnify the Purchaser as provided in this Section 5(c),
constitute the sole remedies of the Purchaser respecting a breach of the
foregoing representations and warranties.
(d) With respect to each Converted Mortgage Loan for which a fixed
rate conversion has occurred, the Seller shall repurchase such Mortgage Loan on
or before the first day of the month immediately following the date of such
conversion at a price equal to (i) the Assumed Principal Balance of the Mortgage
Loan plus (ii) accrued interest on such Assumed Principal Balance at the
Mortgage Loan Remittance Rate from the date to which interest has last been paid
and distributed to the Purchaser to the date of repurchase. Any such repurchase
shall be accomplished by deposit into the Custodial Account of the amount set
forth in the preceding sentence.
With respect to each Converted Mortgage Loan for which an Index
conversion has occurred, the Seller shall substitute a loan that meets the
definition of a Qualified Substitute Mortgage Loan in all respects (except for
provision (iii) of such definition) within a period of ninety (90) days
following the date of such conversion.
(e) Seller hereby agrees that it will not take any action to
solicit the prepayment of any Mortgage Loan sold to Purchaser under the terms of
this Agreement. The preceding statement shall not preclude Seller from engaging
in general advertising or from servicing the refinance needs of a
22
Mortgagor who, without solicitation in violation of this Section 5(e), contacts
Seller in connection with the refinance of such Mortgagor's Mortgage Loan.
(f) If the related Mortgagor is 30 days or more delinquent with
respect to the Mortgage Loan's first Monthly Payment and remains so for 60 days
either (i) from origination of said Mortgage Loan, or (ii) after the Closing
Date, the Seller shall, at the Purchaser's option, repurchase such Mortgage Loan
from the Purchaser in accordance with Section 5 hereof.
Section 6. Representations, Warranties and Agreements of the
Purchaser.
(a) The Purchaser, without conceding that any Mortgage Loans are
securities, hereby makes the following representations, warranties and
agreements, which shall have been deemed to have been made as of the respective
Closing Date:
(i) The Purchaser is acquiring the Mortgage Loans for its
own account only and not for any other Person.
(ii) The Purchaser considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Mortgage Loans.
(iii) The Purchaser has been furnished with all information
regarding the Mortgage Loans which it has requested.
(iv) Neither the Purchaser nor anyone acting on its behalf
has offered, transferred, pledged, sold or otherwise disposed of any
Mortgage Loan, any interest in any Mortgage Loan or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of any Mortgage Loan, any interest in any Mortgage
Loan or any other similar security from, or otherwise approached or
negotiated with respect to any Mortgage Loan, any interest in any
Mortgage Loan or any other similar security with, any person in any
manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action that
would constitute a distribution of the Mortgage Loans under the
Securities Act of 1933, as amended (the "Securities Act"), or that
would render the disposition of any Mortgage Loan a violation of
Section 5 of the Securities Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize
any person to act, in such manner with respect to the Mortgage Loans.
(b) The Purchaser represents and warrants to the Seller that as of
the date hereof, as of the date of each respective Purchase Price and Terms
Letter and as of each respective Closing Date (or as of such other date or dates
as may be expressly set forth below):
(i) The Purchaser is duly organized, validly existing and
in good standing as a corporation under the laws of the Maryland. The
Purchaser has full power and authority (corporate and otherwise) to
enter into and perform its obligations under the Program Documents.
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(ii) This Agreement, the Servicing Agreements and the
Custodial Letter Agreement each has been duly authorized, executed and
delivered by the Purchaser, and each constitutes the legal, valid and
binding agreement of the Purchaser, enforceable against the Purchaser
in accordance with its terms.
(iii) As of the date of the respective Purchase Price and
Terms Letter and as of the respective Closing Date, the Purchase Price
and Terms Letter has been duly authorized, executed and delivered by
the Purchaser, and the Purchase Price and Terms Letter constitutes the
legal, valid and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms.
(iv) Neither the delivery of the Purchase Price to the
Seller, nor the purchase of the Mortgage Loans by the Purchaser, nor
the execution or delivery of the Program Documents, nor the
consummation of any of the Transactions herein or therein contemplated,
nor the fulfillment of the terms hereof or thereof, will result in the
breach of any term or provision of the charter or by-laws of the
Purchaser, or conflict with, result in a breach, violation or
acceleration of or constitute a default under a material term of any
indenture or other agreement or instrument to which the Purchaser is a
party or by which the Purchaser is bound, or any statute, order or
regulation of any court, regulatory body, administrative agency,
governmental body or arbitrator.
(v) There are no actions, proceedings or investigations
pending or, to the Purchaser's knowledge, threatened against the
Purchaser that, either in any one instance or in the aggregate, could
draw into question the validity of any of the Program Documents or
prevent the consummation of any of the Transactions.
(vi) No consent, approval, authorization or order of any
court, regulatory body, administrative agency, governmental body or
arbitrator is required for the execution or delivery by the Purchaser
of any of the Program Documents, the performance by the Purchaser of
its obligations hereunder or the consummation by the Purchaser of any
of the Transactions.
(vii) The Purchaser has not dealt with any broker,
investment banker, agent or other Person, except the Seller, who may be
entitled to any commission or compensation in connection with the
purchase of the Mortgage Loans.
Section 7. Servicing. From and after each Closing Date, the
Purchaser will cause each Mortgage Loan purchased on such Closing Date to be
serviced and administered pursuant to the terms of the Servicing Agreements and
such Mortgage Loan will be deemed to be added to the "Mortgage Loan Schedule"
under each Servicing Agreement.
Section 8. Intention of the Parties. With respect to each
Transaction, it is the intention of the parties that the Purchaser is
purchasing, and the Seller is selling, interests in the Mortgage Loans and not a
debt instrument of the Seller or any other security. Accordingly, the parties
each intend to treat each Transaction for federal income tax purposes as a sale
by the Seller, and a purchase by the Purchaser, of the related Mortgage Loans.
Section 9. Costs. The Seller shall pay any commissions due its
salesmen and the legal fees and expenses of its attorneys and those expenses
incurred in connection with the transfer and delivery of
24
the Mortgage Loans, including without limitation recording fees, fees for title
policy endorsements and continuations. The fees and expenses of the Custodian
and the Purchaser's brokers' and attorney's fees, shall be paid by the
Purchaser.
Section 10. Further Agreements of the Seller. The Seller and the
Purchaser each agree to execute and deliver to the other such reasonable and
appropriate additional documents, instruments or agreements, and to take such
actions, as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section 11. Mandatory Delivery. The sale and delivery on the
related Closing Date of the Mortgage Loans described on the related Final
Mortgage Loan Schedule is mandatory from and after the date of the execution of
the related Purchase Price and Terms Letter, it being specifically understood
and agreed that each Mortgage Loan is unique and identifiable on the date of
such Purchase Price and Terms Letter and that an award of money damages would be
insufficient to compensate the Purchaser for the losses and damages incurred by
the Purchaser (including damages to prospective Subsequent Purchasers of the
Mortgage Loans) in the event of the Seller's failure to deliver (i) each of the
related Mortgage Loans or (ii) one or more substitute Mortgage Loans delivered
pursuant to Section 4 or (iii) one or more Mortgage Loans otherwise acceptable
to the Purchaser on or before the related Closing Date. All rights and remedies
of the Purchaser under this Agreement are distinct from, and cumulative with,
any other rights or remedies under this Agreement or afforded by law or equity
and all such rights and remedies may be exercised concurrently, independently or
successively..
Section 12. Termination. Either the Seller or the Purchaser may
terminate this Agreement as to future Transactions upon notice to the other
party, but no such termination shall affect any Transaction previously
consummated or the rights and obligations of the Seller and the Purchaser with
respect thereto under the Program Documents.
Section 13. Severability Clause. Any part, provision,
representation or warranty of this Agreement that is prohibited or that is held
to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation or warranty of this Agreement that
is prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof. If the invalidity of any
part, provision, representation or warranty of this Agreement shall deprive any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to develop a structure the economic
effect of which is nearly as possible the same as the economic effect of this
Agreement without regard to such invalidity.
Section 14. Waivers. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification is sought to be
enforced.
Section 15. Survival. The Seller agrees that the representations,
warranties and agreements made by the Seller herein and in any certificate or
other instrument delivered pursuant hereto shall be
25
deemed to be relied upon by the Purchaser, notwithstanding any investigation
heretofore or hereafter made by the Purchaser or on the Purchaser's behalf.
Section 16. Successor and Assigns; Assignment of Purchase
Agreement. This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and the respective successors and
assigns of the Seller and the Purchaser. This Agreement cannot be assigned,
pledged or hypothecated by the Purchaser or the Seller to a third party without
the consent of the other party to this Agreement.
Section 17. Notices. Any notices or other communications
permitted or required hereunder shall be in writing and shall be deemed
conclusively to have been duly given if personally delivered, sent by overnight
courier, or mailed by registered mail, postage prepaid, and return receipt
requested, or transmitted by telex or telegraph and confirmed by a similar
mailed writing, or otherwise if received, if to the Purchaser, addressed to the
Purchaser at RWT Holdings, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or to such other address as
the Purchaser may designate in writing to the Seller, and if to the Seller,
addressed to the Seller at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel, with a copy to the President, at the same address,
or to such other address as the Seller may have designated in writing to the
Purchaser.
Section 18. Counterparts. This Agreement may be executed in
several counterparts, each of which shall constitute an original, but all of
which together shall constitute one instrument notwithstanding that all parties
are not signatories to the same counterparts.
Section 19. Entire Agreement. This Agreement constitutes the
entire agreement and understanding of the parties with respect to the matters
and transactions contemplated by this Agreement and supersedes any prior
agreement and understandings with respect to those matters and transactions;
provided, however, that this Agreement shall not be deemed to supersede any
other Program Document or any agreement, instrument or other document executed
in connection therewith.
Section 20. Governing Law and Amendments. This Agreement is to be
governed by, and construed in accordance with, the laws of the State of [New
York]. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement of the change, waiver, discharge or
termination is sought.
Section 21. Exhibits. The exhibits to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
Section 22. General Interpretive Principles. For purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(i) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as
the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles;
26
(iii) references herein to "Articles", "Sections",
"Subsections", "Paragraphs", and other subdivisions without reference
to a document are to designated Articles, Sections, Subsections,
Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference
to a Section is a reference to such Subsection as contained in the same
Section in which the reference appears, and this rule shall also apply
to Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular provision; and
(vi) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 23. Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, (b) documents received by any
party at the closing, and (c) financial statements, certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
27
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK & TRUST CO. and RWT HOLDINGS,
INC. have caused this Master Mortgage Loan Purchase Agreement to be executed by
their respective officers thereunto duly authorized as of the 1st day of
September, 2003.
RWT HOLDINGS, INC.
By:_________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK & TRUST CO.
By:_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, III
Title: President and CEO
EXHIBIT 1
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items:
1. The documents specified in Section 3(b) of the
Agreement.
2. Copy of survey of the Mortgaged Property, if any.
3. Copy of each instrument necessary to complete
identification of any exception set forth in the exception schedule in the title
policy, i.e., map or plat, restrictions, easements, sewer agreements, homes
association declarations, etc.
4. Original hazard insurance policy and, if required by
law, flood insurance policy, with extended coverage of the hazard insurance
policy.
5. Mortgage Loan closing statement.
6. Mortgage Loan application.
7. Verification of employment and income.
8. Verification of acceptable evidence of source and
amount of downpayment.
9. Credit report on the Mortgagor.
10. Appraisal report.
11. Photograph of the Mortgaged Property.
12. Executed disclosure statement.
13. Tax receipts, insurance premium receipts, ledger
sheets, payment records, insurance claim files and correspondence,
correspondence, current and historical computerized data files, underwriting
standards used for origination and all other papers and records developed or
originated by the Seller or others, required to document the Mortgage Loan or to
service the Mortgage Loan.
EXHIBIT 2
FORM OF CUSTODIAL AGREEMENT
[INTENTIONALLY OMITTED]
EXHIBIT 3
UNDERWRITING GUIDE OF MLCC
[INTENTIONALLY OMITTED]
EXHIBIT 4
FORM OF CERTIFICATE OF THE SELLER
I, _______________________, hereby certify that I am the duly elected
_______________ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank & Trust Co., a bank organized under the
laws of __________________ (the "Seller") and further as follows:
1. Attached hereto as Exhibit A is a true and
correct copy of the [organization certificate] of the Seller which is in full
force and effect on the date hereof. There has been no amendments or
modifications to the certificate of incorporation since _______________.
Attached hereto as Exhibit B is a true and correct copy of the by-laws of the
Seller which are in full force and effect on the date hereof. There have been no
amendments or modifications of the by-laws since ______________. No event has
occurred since _____________ that has affected the good standing of the Seller
under the laws of _______________________.
2. Each Person who, as an officer or
representative of the Seller, signed (a) the Master Mortgage Loan Purchase
Agreement, dated as of September 1, 2003 between RWT Holdings, Inc. (the
"Purchaser") and the Seller (the "Master Mortgage Loan Purchase Agreement"), (b)
any Warranty ▇▇▇▇ of Sale executed by the Seller, (c) any of the Assignments (as
defined in the Master Mortgage Loan Purchase Agreement) or (d) any other
document delivered prior hereto or on the date hereof in connection with the
purchase described in the Master Mortgage Loan Purchase Agreement, was, at the
respective times of such signing and delivery, and is now duly elected or
appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents are their genuine
signatures.
3. The sale of the Mortgage Loans and the
transactions contemplated by the Master Mortgage Loan Purchase Agreement are in
the ordinary course of the Seller's business.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Seller as of the 1st day of September, 2003.
[Seal] By: _____________________________
Name:
Title:
I, ___________________, the ____________ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank & Trust
Co. (the "Seller"), hereby certify that __________________ is the duly elected,
qualified and acting ____________ of the Seller and that the signature appearing
above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto assigned my name as of the 1st day
of September, 2003.
By: _____________________________
Name:
Title:
EXHIBIT 5
FORM OF WARRANTY ▇▇▇▇ OF SALE
On this ____ day of ___________, 20___, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank & Trust Co.
(the "Seller") does hereby sell, transfer, assign, set over and convey to RWT
Holdings, Inc. (the "Purchaser"), without recourse, all of the right, title and
interest of the Seller in and to each Mortgage Loan set forth on the Mortgage
Loan Schedule attached hereto as Schedule I, including all interest and
principal received by the Seller on or with respect to each such Mortgage Loan
after the Cut-off Date (other than payments of principal and interest due on
such Mortgage Loan on or before the Cut-off Date), any related Mortgage 100sm
Pledge Agreement or ParentPower(R) Agreement and the related Mortgage Files.
The Seller hereby further represents to the Purchaser that, with
respect to each of such Mortgage Loans as of the Closing Date:
(i) If such Mortgage Loan is an Adjustable Rate
Mortgage Loan, on each Interest Rate Adjustment Date, the Mortgage Interest Rate
will be adjusted to equal the sum of the Index, plus the applicable Gross
Margin, rounded [up] to the nearest ______%. The Mortgage Interest Rate adjusts
every _____ (___) months over the term of the Mortgage Loan, and the first
Interest Rate Adjustment Date is _____ (___) months after the date of
origination of the Mortgage Loan.
(ii) [The related Mortgage Note requires a
Monthly Payment that is sufficient [(a) during the period prior to the first
Adjustment Date,] to fully amortize the original principal balance over the
original term thereof and to pay interest at the related Mortgage Interest Rate
[and (b) during the succeeding period following each Payment Adjustment Date, to
fully amortize the outstanding principal balance as of the first day of such
period over the then remaining term of such Mortgage Note and to pay interest at
the related Mortgage Interest Rate].] [The Monthly Payment is adjusted
semiannually on the relevant Payment Adjustment Date so that the Monthly Payment
is sufficient, during the first ten years of the term of the Mortgage Loan, to
pay only the interest due thereon and, thereafter, to fully amortize, without
balloon payments, the original principal balance over its remaining term to
stated maturity and to pay interest at the related Mortgage Interest Rate in
effect on such Payment Adjustment Date]. No Mortgage Loan provides for negative
amortization.
(iii) Each Mortgage Loan is directly secured by a
first lien on a single parcel of real property improved by a one- to four-family
dwelling.
All capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Mortgage Loan Purchase
Agreement. This Warranty ▇▇▇▇ of Sale shall be governed by, and construed in
accordance with, the laws of the State of New York.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK & TRUST CO.
By: _____________________________
Name:
Title: