EXHIBIT 99.1
EXECUTION
AMENDMENT NO. 1
to
SEQUOIA MORTGAGE TRUST 8
POOLING AND SERVICING AGREEMENT
among
SEQUOIA RESIDENTIAL FUNDING, INC.
Depositor
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Master Servicer and Securities Administrator
and
HSBC BANK USA
Trustee
(Effective November 1, 2002)
This Amendment No. 1 to the Pooling and Servicing Agreement referred to
hereinbelow, dated and effective as of November 1, 2002, by and among Sequoia
Residential Funding, Inc., as Depositor, ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as Master Servicer and Securities Administrator, and HSBC Bank USA,
as Trustee, recites and provides as follows:
RECITALS
WHEREAS, in connection with the issuance of the Sequoia Mortgage Trust
8, Mortgage Pass-Through Certificates (the "Certificates"), Sequoia Residential
Funding, Inc., as Depositor, ▇▇▇▇▇ Fargo Bank Minnesota, National Association,
as Master Servicer and Securities Administrator, and HSBC Bank USA, as Trustee,
have entered into a Pooling and Servicing Agreement, dated as of July 1, 2002
(the "Pooling and Servicing Agreement"); and
WHEREAS, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee desire to amend the Pooling and Servicing
Agreement in order to conform the definition of "Senior Prepayment Percentage"
to the description thereof set forth in the Offering Document; and
WHEREAS, Section 11.03(a)(ii) of the Pooling and Servicing Agreement
provides that the Pooling and Servicing Agreement may be amended from time to
time by the Depositor, the Master Servicer, the Securities Administrator and the
Trustee, without the consent of the Holders to cause the provisions of the
Pooling and Servicing Agreement to conform to the statements made with respect
to the Certificates in the Offering Document, provided an Opinion of Counsel is
delivered to the Trustee, to the effect that such amendment does not adversely
affect the status of any REMIC created pursuant to the Pooling and Servicing
Agreement and that such amendment is permitted under Section 11.03(a) of the
Pooling and Servicing Agreement; and
WHEREAS, the Trustee has received the Opinion of Counsel required
pursuant to Section 11.03(a) in the form annexed as Exhibit A hereto;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, it is mutually covenanted and agreed as follows:
ARTICLE I
AMENDMENT TO THE POOLING AND SERVICING AGREEMENT
Section 1.01 Amendment to Definitions
The definition of "Senior Prepayment Percentage" in Section 1.01
(Definitions) of the Pooling and Servicing Agreement is hereby amended and
restated in its entirety to read as follows:
Senior Prepayment Percentage: With respect to any
Distribution Date and each Mortgage Pool, during the ten years
beginning on the first Distribution Date, 100%. Except as
provided herein, the Senior Prepayment Percentage for each
Mortgage Pool and any Distribution Date occurring on or after the
tenth anniversary of the first Distribution
Date shall be as follows: (i) from August 2012 through July 2013,
the related Senior Percentage plus 70% of the related Subordinate
Percentage for that Distribution Date; (ii) from August 2013
through July 2014, the related Senior Percentage plus 60% of the
related Subordinate Percentage for that Distribution Date; (iii)
from August 2014 through July 2015, the related Senior Percentage
plus 40% of the related Subordinate Percentage for that
Distribution Date; (iv) from August 2015 through July 2016, the
related Senior Percentage plus 20% of the related Subordinate
Percentage for that Distribution Date; and (v) from and after
August 2016, the related Senior Percentage for that Distribution
Date; provided, however, that there shall be no reduction in the
Senior Prepayment Percentage for a Mortgage Pool unless both Step
Down Conditions are satisfied; and provided, further, that if on
any such Distribution Date the Pro Rata Senior Percentage for a
Mortgage Pool exceeds the initial Pro Rata Senior Percentage for
such Mortgage Pool, the related Senior Prepayment Percentage for
that Distribution Date shall again equal 100%.
Notwithstanding the above, if on any Distribution Date the Two
Times Test is satisfied, the Senior Prepayment Percentage with respect
to any Mortgage Pool shall equal the related Senior Percentage for such
Distribution Date. In addition, if on any Distribution Date the
allocation to the Senior Certificates then entitled to distributions of
principal of full and partial principal prepayments and other amounts in
the percentage required above would reduce the sum of the Class
Principal Amounts of those Certificates to below zero, the related
Senior Prepayment Percentage for such Distribution Date shall be limited
to the percentage necessary to reduce such Class Principal Amounts to
zero.
ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01 Capitalized Terms.
For all purposes of this Amendment No. 1, except as otherwise provided
herein, terms used in capitalized form in this Amendment No. 1 and defined in
the Pooling and Servicing Agreement have the meanings specified in the Pooling
and Servicing Agreement.
Section 2.02 Continuing Effect.
Except as expressly amended by this Amendment No. 1, the Pooling and
Servicing Agreement shall remain in full force and effect in accordance with its
terms.
Section 2.03 References to Pooling and Servicing Agreement.
From and after the execution and delivery of this Amendment No. 1, all
references to the Pooling and Servicing Agreement in the Pooling and Servicing
Agreement, any Certificate or any other document executed or delivered in
connection therewith shall be deemed a reference to the Pooling and Servicing
Agreement as amended hereby, unless the context expressly requires otherwise.
Section 2.04 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Amendment No. 1 shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment No. 1 and
shall in no way affect the validity or enforceability of the other provisions of
this Amendment No. 1 or of the Certificates or the rights of the Holders
thereof.
Section 2.05 Counterparts.
This Amendment No. 1 may be executed in one or more counterparts, each
of which shall be deemed to be an original, and all of which together, shall
constitute one and the same instrument.
Section 2.06 Binding Nature of Amendment No. 1; Assignment.
This Amendment No. 1 shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
Section 2.07 Headings Not To Affect Interpretation.
The headings contained in this Amendment No. 1 are for convenience of
reference only, and they shall not be used in the interpretation hereof.
Section 2.08 Effectiveness.
This Amendment No. 1 shall become effective as of the date first written
above.
Section 2.09 Governing Law.
THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
* * * * *
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Securities
Administrator and the Trustee have caused their names to be signed hereto by
their respective officers hereunto duly authorized as of the day and year first
above written.
SEQUOIA RESIDENTIAL FUNDING, INC., as
Depositor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as
Master Servicer and Securities Administrator
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
HSBC BANK USA, as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF OPINION OF COUNSEL
DELIVERED PURSUANT TO SECTION 11.03
OF THE POOLING AND SERVICING AGREEMENT
November 15, 2002
HSBC Bank USA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Sequoia 8
Re: Amendment No. 1 to Pooling and Servicing Agreement
Ladies and Gentlemen:
You have requested our opinion in connection with the execution of
Amendment No. 1, dated as of November 1, 2002, to the Pooling and Servicing
Agreement (the "Original Agreement") dated as of July 1, 2002 ("Amendment No.
1"), among Sequoia Residential Funding, Inc., in its capacity as depositor (the
"Depositor"), ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as master
servicer and securities administrator, and HSBC Bank USA, as trustee (the
"Trustee").
Section 11.03(a)(ii) of the Original Agreement provides that the
agreement may be amended from time to time by the parties thereto without notice
to or consent of any Holder "to cause the provisions [t]herein to conform to or
be consistent with . . . the statements made with respect to the Certificates
.. . . in any Offering Document," provided that such amendment does not adversely
affect the status of any REMIC created pursuant to the Original Agreement.
Section 11.03(a) provides further that, prior to entering into any such
amendment, the Trustee may require an Opinion of Counsel to the effect that such
amendment is permitted under such Section.
We have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such instruments, certificates,
records and other documents, and have made such examination of law, as we have
deemed necessary or appropriate for the purpose of this opinion. In our
examination, we have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the
HSBC Bank USA
November 15, 2002
Page 2
conformity to original documents of all documents submitted to us as certified
or photostatic copies or by facsimile or other means of electronic transmission,
and the authenticity of the originals of such latter documents. As to facts
relevant to the opinions expressed herein and the other statements made herein,
we have relied without independent investigation upon certificates and oral or
written statements and representations of officers and other representatives of
the Depositor and others. We have assumed that there is not and will not be at
any time any agreement among the parties to Amendment No. 1 that modifies or
otherwise supplements the agreements of those parties as expressed in the
Original Agreement and Amendment No. 1.
Capitalized terms used and not defined herein have the meanings assigned
to them in the Original Agreement.
Based upon the foregoing, we are of the opinion that:
(i) The execution of Amendment No. 1 by the Trustee is
permitted under Section 11.03(a) of the Original Agreement; and
(ii) For Federal income tax purposes, the amendment of the
Original Agreement by Amendment No. 1 will not cause the imposition of
any tax on any REMIC created pursuant to the Original Agreement, or
cause any REMIC created under the Original Agreement to fail to qualify
as a REMIC within the meaning of Section 860D of the Code at any time
the Certificates are outstanding.
The foregoing opinions and other statements are subject to the following
qualifications, exceptions, assumptions and limitations:
A. Members of our firm are admitted to the bar of the State of New
York and the foregoing opinions are limited to matters arising
under the federal laws of the United States of America and the
laws of the State of New York. We express no opinion as to the
laws, rules or regulations of any other jurisdiction, or as to
the municipal laws or the laws, rules or regulations of any local
agencies or governmental authorities of or within the State of
New York, or in each case as to any matters arising thereunder or
relating thereto.
B. With respect to the Original Agreement, Amendment No. 1 and any
other instrument or agreement (each, an "Agreement") executed or
to be executed by any party (each, a "Party"), we have assumed,
to the extent relevant to the opinions set forth herein, that (i)
such Party (if not a natural person) has been duly organized and
is validly existing and in good standing under the laws of the
jurisdiction of its organization and has full right, power and
authority to execute, deliver and perform its obligations under
each Agreement to which it is a party and (ii) each Agreement has
been duly authorized (if applicable), executed and delivered by,
and is a valid, binding and enforceable agreement or obligation,
as the case may be, of such Party.
HSBC Bank USA
November 15, 2002
Page 3
C. In rendering the opinion set forth in subparagraph (ii) above, we
have relied on the Internal Revenue Code of 1986, as amended,
U.S. Department of Treasury regulations issued pursuant thereto
in temporary or final form, and various judicial and
administrative precedents, any or all of which are subject to
change, which change may be retroactively effective. We undertake
no obligation to update this opinion in the event of any such
changes.
This letter is solely for your benefit in connection with the
transaction described in the first paragraph above and may not be quoted or
relied upon by, nor may copies be delivered to, any other person, nor may this
letter be relied upon by you for any other purpose, without our prior written
consent.
Very truly yours,
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP