EXHIBIT 99.8
Execution Copy
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST
SERIES MLCC 2003-C
MORTGAGE PASS-THROUGH CERTIFICATES
MORTGAGE LOAN PURCHASE AGREEMENT
Among
RWT HOLDINGS, INC.,
SEQUOIA RESIDENTIAL FUNDING, INC.
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
dated as of June 1, 2003
TABLE OF CONTENTS
PAGE
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Section 1. Representations and Warranties of all Parties...................................... 1
Section 2. Additional Representations, Warranties and Agreements of RWT and Sequoia........... 1
Section 3. Conveyance of Mortgage Loans....................................................... 2
Section 4. Intention of Parties............................................................... 3
Section 5. Termination........................................................................ 4
Section 6. Miscellaneous...................................................................... 5
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MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (the "Agreement") is
made as of June 1, 2003, by and among RWT Holdings, Inc., a Delaware corporation
("RWT"), Sequoia Residential Funding, Inc., a Delaware corporation ("Sequoia"),
and Xxxxxxx Xxxxx Mortgage Investors, Inc. ("MLMI"), a Delaware corporation.
Section 1. Representations and Warranties of all
Parties. Sequoia, RWT and MLMI, each as to itself and not the other, hereby
represents, warrants and agrees that:
(a) Authorization. The execution, delivery and
performance of this Agreement by it are within its respective powers
and have been duly authorized by all necessary action on its part.
(b) No Conflict. The execution, delivery and performance
of this Agreement will not violate or conflict with (i) its charter or
bylaws, (ii) any resolution or other corporate action by it, (iii) any
decisions, statutes, ordinances, rulings, directions, rules,
regulations, orders, writs, decrees, injunctions, permits, certificates
or other requirements of any court or other governmental or public
authority in any way applicable to or binding upon it, and (iv) will
not result in or require the creation, except as provided in or
contemplated by this Agreement, of any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind upon the Mortgage Loans.
(c) Binding Obligation. This Agreement has been duly
executed by it and is its legally valid and binding obligation,
enforceable against it in accordance with this Agreement's terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity.
Section 2. Additional Representations, Warranties and
Agreements of RWT and Sequoia.
(a) RWT represents and warrants to, and agrees with,
Xxxxxxx and MLMI that (i) RWT has good and valid title to the mortgage
loans identified in Schedule A to the Trust Agreement (the "Mortgage
Loans") and holds the right, title and interest assigned to it in each
Mortgage 1004 Pledge Agreement and Parent Power(R) Agreement relating
to the Mortgage Loans, in each case free and clear of all liens,
mortgages, deeds of trust, pledges, security interests, charges,
encumbrances or other claims; and (ii) upon transfer to Sequoia,
Sequoia will receive good, valid and marketable title to all of the
Mortgage Loans and will receive all of RWT's right, title and interest
in each such Mortgage 1004 Agreement and Parent Power(R) Agreement, in
each case free and clear of any liens, mortgages, deeds of trust,
pledges, security interests, charges, encumbrances or other claims.
(b) Sequoia represents and warrants to, and agrees with,
MLMI that upon transfer of the Mortgage Loans from RWT to Sequoia, it
will have good and valid title to
the Mortgage Loans and will hold the right, title and interest assigned
to it in each Mortgage 1004 Pledge Agreement and Parent Power(R)
Agreement relating to the Mortgage Loans, in each case free and clear
of all liens, mortgages, deeds of trust, pledges, security interests,
charges, encumbrances or other claims, and, upon transfer to MLMI, MLMI
will receive good, valid and marketable title to all of the Mortgage
Loans and will receive all of Sequoia's right, title and interest in
each such Mortgage 1004 Pledge Agreement and Parent Power(R) Agreement,
in each case free and clear of any liens, mortgages, deeds of trust,
pledges, security interests, charges, encumbrances or other claims.
(c) RWT will make the representations and warranties as
to the Mortgage Loans that will be set forth as an Exhibit to the Trust
Agreement, for the benefit of Sequoia, MLMI, and the Trustee.
(d) RWT hereby agrees that it will comply with the
provisions of Section 2.01 of the Trust Agreement in respect of a
breach of any of the representations and warranties set forth in this
Section 2.
Section 3. Conveyance of Mortgage Loans. RWT,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to Sequoia, without recourse, all of
RWT's right, title and interest in and to (a) the Mortgage Loans, including the
related Mortgage Documents and all interest and principal received or receivable
by RWT on or with respect to the Mortgage Loans after the Cut-off Date and all
interest and principal payments on the Mortgage Loans received prior to the
Cut-off Date in respect of installments of interest and principal due
thereafter, but not including payments of interest and principal due and payable
on the Mortgage Loans on or before the Cut-off Date, and all other proceeds
received in respect of such Mortgage Loans, (b) RWT's rights under this
Agreement, the Servicing Agreement, the Mortgage Loan Purchase and Sale
Agreement, each as amended to date and modified by the related Acknowledgements,
(c) the pledge, control and guaranty agreements and the Limited Purpose Surety
Bond relating to the Additional Collateral Mortgage Loans, (d) the Insurance
Policies, (e) all cash, instruments or other property held or required to be
deposited in the Certificate Account or the Distribution Account, (f) property
that secured a Mortgage Loan that has become an REO Property and (g) all
proceeds of the conversion, voluntary or involuntary, of any of the foregoing
into cash or other liquid assets, including, without limitation, all Insurance
Proceeds, Liquidation Proceeds and condemnation awards. On or prior to the
Closing Date, RWT shall deliver to Sequoia or, at Sequoia's direction, to the
Trustee, the Mortgage File for each Mortgage Loan in the manner set forth in
Section 2.01 of the Trust Agreement. Such delivery of the Mortgage Files shall
be made against payment by Sequoia of the purchase price for the Mortgage Loans
and related assets, which shall be cash wired to RWT's account. The amount of
the cash payment by Xxxxxxx shall be set forth in writing in a separate letter.
Such conveyance of the Mortgage 1004 Pledge Agreements and Parent Power(R)
Agreements hereunder shall include all rights, powers and options (but none of
the obligations, if any) of RWT thereunder.
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Sequoia, concurrently with the execution and delivery hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys to MLMI,
without recourse, all of Sequoia's right, title and interest in and to (a) the
Mortgage Loans, including the related Mortgage Documents and all interest and
principal received or receivable by Sequoia on or with respect to the Mortgage
Loans after the Cut-Off Date and all interest and principal payments on the
Mortgage Loans received prior to the Cut-off Date in respect of installments of
interest and principal due thereafter, but not including payments of interest
and principal due and payable on the Mortgage Loans on or before the Cut-off
Date, and all other proceeds received in respect of such Mortgage Loans, (b)
Sequoia's rights under this Agreement, the Servicing Agreement, the Mortgage
Loan Purchase and Sale Agreement, each as amended to date and modified by the
related Acknowledgements, (c) the pledge, control and guaranty agreements and
the Limited Purpose Surety Bond relating to the Additional Collateral Mortgage
Loans, (d) the Insurance Policies, (e) all cash, instruments or other property
held or required to be deposited in the Certificate Account or the Distribution
Account, (f) property that secured a Mortgage Loan that has become an REO
Property and (g) all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing into cash or other liquid assets, including, without
limitation, all Insurance Proceeds, Liquidation Proceeds and condemnation
awards. On or prior to the Closing Date, Sequoia shall deliver, or cause to be
delivered, to the Trustee the Mortgage File for each Mortgage Loan in the manner
set forth in Section 2.01 of the Trust Agreement. Such delivery of the Mortgage
Files shall be made against delivery by MLMI of the purchase price for the
Mortgage Loans and related assets. The amount of the purchase price by MLMI
shall be set forth in writing in a separate letter.
Section 4. Intention of Parties. It is the express
intent of the parties hereto that (without addressing characterization for tax
purposes) the conveyance (i) of the Mortgage Loans by RWT to Sequoia and (ii) of
the Mortgage Loans by Sequoia to MLMI each be, and be construed as, an absolute
sale thereof. It is, further, not the intention of the parties that such
conveyances be deemed a pledge thereof. However, in the event that,
notwithstanding the intent of the parties, such assets are held to be the
property of the granting party, or if for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans, then (i)
this Agreement shall be deemed to be a security agreement within the meaning of
the Uniform Commercial Code of the State of New York and (ii) the conveyances
provided for in this Agreement shall be deemed to be an assignment and a grant
(i) by RWT to Sequoia or (ii) by Sequoia to MLMI, of a security interest in all
of the assets transferred, whether now owned or hereafter acquired.
RWT, Sequoia and MLMI shall, to the extent consistent with
this Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. RWT and Sequoia shall arrange for filing any Uniform
Commercial Code continuation statements in connection with any security interest
granted or assigned hereunder.
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Section 5. Termination. (a) MLMI may terminate this
Agreement, by notice to RWT, at any time at or prior to the Closing Date:
(i) if the Underwriting Agreement is terminated
by the Underwriters pursuant to the terms of the Underwriting Agreement
or if the Underwriters do not complete the transactions contemplated by
the Underwriting Agreement as the result of the failure of any
condition set forth therein or if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus or Prospectus Supplement, any
material adverse change in the financial condition, earnings, business
affairs or business prospects of RWT, whether or not arising in the
ordinary course of business, or
(ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case
the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Certificates or to enforce
contracts for the sale of the Certificates, or
(iii) if trading in any securities of RWT has been
suspended or limited by the Commission or the New York Stock Exchange,
or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the NASDAQ National Market System has been
suspended or limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of
said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other
governmental authority, or
(iv) if a banking moratorium has been declared by
either Federal or New York authorities, or
(v) if a change in control of RWT shall have
occurred other than in connection with and as a result of the issuance
and sale by RWT of registered, publicly offered common stock, or
(vi) if there is (x) a material breach by RWT of
any representation and warranty contained in this Agreement or (y) a
failure by RWT to make any payment payable by it under this Agreement
or (z) any other failure by RWT to observe and perform in any material
respect its material covenants, agreements and obligations with MLMI,
including without limitation those contained in this Agreement, and
MLMI has reason to believe in good faith that such failure may not have
been cured in all material respects at the expiration of 2 (two) days
following discovery thereof by RWT, or
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(vii) if RWT fails to provide written notification
to the Underwriters of any change in its loan origination, acquisition
or appraisal guidelines or practices, or RWT, without the prior consent
of the Underwriters (which shall not be unreasonably withheld), amends
in any material respect its loan origination, acquisition or appraisal
guidelines or practices.
(b) This Agreement shall terminate automatically without
any required notice or other action by any party hereto if the Closing
Date for the issuance of the Certificates has not occurred by July 15,
2003.
Section 6. Miscellaneous.
(a) Amendments, Etc. No rescission, modification,
amendment, supplement or change of this Agreement shall be valid or
effective unless in writing and signed by all of the parties to this
Agreement.
(b) Binding Upon Successors, Etc. This Agreement shall
bind and inure to the benefit of and be enforceable by RWT, Sequoia,
MLMI, and the respective successors and assigns thereof. The parties
hereto acknowledge that MLMI is acquiring the Mortgage Loans for the
purpose of selling, transferring, assigning, setting over and otherwise
conveying them to the Trustee, pursuant to the Trust Agreement for
inclusion in the Trust Fund. As an inducement to MLMI to purchase the
Mortgage Loans, RWT and Sequoia acknowledge and consent to the
assignment to the Trustee by MLMI of all of MLMI's rights against RWT
and Sequoia hereunder in respect of the Mortgage Loans sold to MLMI and
that the enforcement or exercise of any right or remedy against RWT and
Sequoia hereunder by the Trustee or to the extent permitted under the
Trust Agreement shall have the same force and effect as if enforced and
exercised by MLMI directly.
(c) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
(d) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(e) Headings. The headings of the several parts of this
Agreement are inserted for convenience of reference and are not
intended to be a part of or affect the meaning or interpretation of
this Agreement.
(f) Definitions. Capitalized terms not otherwise defined
herein have the meanings ascribed to such terms in the Trust Agreement
to be dated as of June 1, 2003 among MLMI, MLCC, Sequoia and Xxxxx
Fargo Bank Minnesota, National Association, as trustee (the "Trust
Agreement").
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(h) Nonpetition Covenant. Until one year plus one day
shall have elapsed since the termination of the Trust Agreement in
accordance with its terms, neither RWT nor any assignee of RWT or
Sequoia or MLMI shall petition or otherwise invoke the process of any
court or government authority for the purpose of commencing or
sustaining a case against Sequoia or MLMI under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of Sequoia or MLMI or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of Sequoia or
MLMI.
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IN WITNESS WHEREOF, each party has caused this Mortgage Loan
Purchase Agreement to be executed by its duly authorized officer or officers as
of the day and year first above written.
RWT HOLDINGS, INC.
By:___________________________________
Name:
Title:
SEQUOIA RESIDENTIAL FUNDING, INC.
By:___________________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By:___________________________________
Name:
Title:
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