EXHIBIT 99.12
CENDANT - SEQUOIA TO MLMI
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
FOR
MORTGAGE LOAN FLOW PURCHASE, SALE & SERVICING AGREEMENT
AND
ADDITIONAL COLLATERAL SERVICING AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated as of June
26, 2003 (the "Assignment"), is entered into among Sequoia Residential Funding,
Inc. (the "Assignor"), Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Assignee"),
and Cendant Mortgage Corporation ("Cendant") as the servicer (the "Servicer").
RECITALS
WHEREAS, RWT Holdings, Inc. ("RWT Holdings"), the Sellers (as defined
below) and the Servicer have entered into a certain Mortgage Loan Flow Purchase,
Sale & Servicing Agreement, dated as of August 1, 2002, with RWT Holdings as
purchaser, Cendant Mortgage Corporation as servicer and seller, Xxxxxx'x Gate
Residential Mortgage Trust (formerly known as Cendant Residential Mortgage
Trust) as seller, (Cendant and Xxxxxx'x Gate Residential Mortgage Trust,
together, the "Sellers"), and Redwood Trust, Inc., as guarantor, (as amended or
modified to the date hereof, the "Flow Purchase and Servicing Agreement"), and
the Servicer has agreed to service such mortgage loans (the "Mortgage Loans")
under the Flow Purchase and Servicing Agreement. In addition, certain of the
Mortgage Loans are subject to the Additional Collateral Servicing Agreement,
dated as of August 1, 2002 (the "Additional Collateral Agreement" and, together
with the Flow Purchase and Servicing Agreement, the "Agreements"), between RWT
Holdings and the Servicer and, notwithstanding anything to the contrary,
Servicer will service the Mortgage Loans that are subject to the Additional
Collateral Agreement under the Additional Collateral Agreement; and
WHEREAS, RWT Holdings has acquired certain Mortgage Loans separately
from Xxxxxxx Xxxxx Credit Corporation, and not from Cendant, (the "Specified
Mortgage Loans") which are listed on the mortgage loan schedule attached as
Exhibit I hereto (the "Specified Mortgage Loan Schedule") and Cendant has agreed
to service the Specified Mortgage Loans pursuant to the Agreements; and
WHEREAS, RWT Holdings has previously sold, assigned and transferred to
Assignor all of its right, title and interest in the Specified Mortgage Loans
listed on the Specified Mortgage Loan Schedule and its rights under the
Agreements with respect to the Specified Mortgage Loans; and
WHEREAS, the Assignor has agreed to sell, assign and transfer to
Assignee all of its right, title and interest in the Specified Mortgage Loans
and its rights under the Agreements with respect to the Specified Mortgage
Loans; and
WHEREAS, the parties hereto have agreed that the Specified Mortgage
Loans shall be subject to the terms of this Assignment.
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NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the parties agree as follows:
1. Assignment and Assumption.
(a) Effective on and as of the date hereof, the Assignor
hereby sells, assigns and transfers to the Assignee all of its right, title and
interest in the Specified Mortgage Loans and all of its rights and obligations
provided under the Agreements to the extent relating to the Specified Mortgage
Loans, the Assignee hereby accepts such assignment from the Assignor, and the
Servicer hereby acknowledges such assignment and assumption.
(b) Effective on and as of the date hereof, the Assignor
represents and warrants to the Assignee that the Assignor has not taken any
action that would serve to impair or encumber the Assignee's interest in the
Specified Mortgage Loans since the date of the Assignor's acquisition of the
Specified Mortgage Loans.
2. Assignor's Continuing Rights and Responsibilities.
Notwithstanding Sections 1 and 2 above, the parties hereto agree that
the Assignor rather than the Assignee shall have the ongoing rights and
responsibilities of the Purchaser under the following sections of the
Agreements:
Flow Purchase and Servicing Agreement:
Section Matter
------- ------
2.04, 3rd P. (a) Defective or Missing Documentation.
3.04(3),1st P. (b) Breach of Representation or Warranty.
5.01(3)(c) (c) Written Consent to Certain Servicing Actions.
5.14, 1st and (d) Sale of Specially Serviced Mortgage Loans and REO
2nd P. 's Properties.
5.15, 6th and (e) Realization Upon Specially Serviced Mortgage Loans
8th P. 's and REO Properties.
7.06 (f) Purchaser's Right to Examine Servicer Records.
9.01 penultimate (g) Indemnification; Third-Party Claims.
sentence
Additional Collateral Agreement:
Section Matter
------- ------
5(a) and (c) Surety Bond.
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In addition, the Servicer agrees to furnish to the Assignor as well as
the Assignee copies of reports, notices, statements and other communications
required to be delivered by the Servicer pursuant to any of the sections of the
Agreements referred to above and under the following sections, at the times
therein specified:
Flow Purchase and Servicing Agreement:
Section
-------
5.03 (a) Reports for Specially Serviced Mortgage Loans and
Foreclosure Sales.
5.13, 1st and 5th (b) Management of REO Properties.
P. 's
5.15, 2nd P. (c) Realization Upon Specially Serviced Mortgage Loans and REO
Properties.
6.02, 1st and (d) Reporting.
2nd P. 's
6.04 (e) Non-recoverable Advances.
6.05 (f) Itemization of Servicing Advances.
7.02, 1st and (g) Satisfaction of Mortgages and Release of Mortgage Files.
2nd 's
7.04 Annual Statement as to Compliance
7.05 Annual Independent Certified Public Accountants' Servicing Report
8.01, 1st and (h) The Servicer's Reporting Requirements.
2nd P. 's
8.02, 1st P. (i) Financial Statements.
9.01 (j) Indemnification; Third-Party Claims
Additional Collateral Agreement:
N/A.
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3. Amendment to the Agreements.
The Agreements are hereby amended as set forth in Appendix A hereto
with respect to the Specified Mortgage Loans.
4. Recognition of the Assignee.
From and after the date hereof, the Servicer shall recognize the
Assignee as the holder of the rights and benefits of the Purchaser with respect
to the Specified Mortgage Loans and the Servicer will service the Specified
Mortgage Loans for the Assignee as if the Assignee and the Servicer had entered
into separate servicing agreements for the servicing of the Specified Mortgage
Loans in the form of the Flow Purchase and Servicing Agreement and the
Additional Collateral Agreement with the Assignee as the Purchaser thereunder,
the terms of which Agreements are incorporated herein by reference. It is the
intention of the parties hereto that this Assignment will be a separate and
distinct agreement, and the entire agreement, between the parties hereto to the
extent of the Specified Mortgage Loans and shall be binding upon and for the
benefit of the respective successors and assigns of the parties hereto.
5. Representations and Warranties.
(a) The Assignee represents and warrants that it is a
sophisticated investor able to evaluate the risks and merits of the transactions
contemplated hereby, and that it has not relied in connection therewith upon any
statements or representations of the Servicer or the Assignor other than those
contained in the Agreements or this Assignment.
(b) Each of the parties hereto represents and warrants
that it is duly and legally authorized to enter into this Assignment.
(c) Each of the parties hereto represents and warrants
that this Assignment has been duly authorized, executed and delivered by it and
(assuming due authorization, execution and delivery thereof by each of the other
parties hereto) constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
6. Continuing Effect.
Except as contemplated hereby, the Agreements shall remain in full
force and effect in accordance with their terms.
7. Governing Law.
This Assignment and the rights and obligations hereunder shall be
governed by and construed in accordance with the internal laws of the State of
New York.
8. Notices.
Any notices or other communications permitted or required under the
Agreements to be made to the Assignor and Assignee shall be made in accordance
with the terms of the Agreements and shall be sent to the Assignor and Assignee
as follows:
4
Sequoia Residential Funding, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxx Xxxxxx, XX 00000
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as may hereafter be furnished by the Assignor or
Assignee to the other parties in accordance with the provisions of the
Agreements.
9. Counterparts.
This Assignment may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same instrument.
10. Definitions.
Any capitalized term used but not defined in this Assignment has the
same meaning as in the Agreements.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
the day and year first above written.
ASSIGNOR:
SEQUOIA RESIDENTIAL FUNDING, INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
ASSIGNEE:
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
SERVICER:
CENDANT MORTGAGE CORPORATION
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
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EXHIBIT I
[INTENTIONALLY OMITTED]
APPENDIX A
MODIFICATIONS TO THE FLOW PURCHASE AND SERVICING AGREEMENT
1. The definition of "Collection Account" is hereby revised to
read as follows:
"'Collection Account': The separate trust account or accounts
created and maintained pursuant to Section 5.04 which shall be entitled
'Xxxxx Fargo Bank Minnesota, National Association, as Trustee on behalf
of the holders of MLCC 2003-C Mortgage Pass-Through Certificates.'"
2. The definition of "Cut-off Date" is hereby revised to read as
follows:
"'Cut-off Date': June 1, 2003."
3. The definition of "Due Period" is hereby revised to read as
follows:
"'Due Period': With respect to each Remittance Date, the
period commencing on the second day of the month immediately preceding
the month of such Remittance Date and ending on the first day of the
month of such Remittance Date."
4. Section 5.01 is hereby amended by deleting the "and" at the
end of Section 5.01(e), deleting the period at the end of Section
5.01(f) and replacing it with "; and" and adding a new Section 5.01(g)
to read as follows:
"(g) notwithstanding anything to the contrary in this
Agreement, the Servicer shall not make or permit any modification, waiver or
amendment of any term of a Mortgage Loan that could cause any REMIC holding such
Mortgage Loan to fail to qualify as a REMIC or result in the imposition of any
tax under Section 860F(a) or Section 860G(d) of the Code on any REMIC holding
such Mortgage Loan."
MODIFICATIONS TO THE ADDITIONAL COLLATERAL AGREEMENT
1. A definition of "Collection Account" is added to read as follows:
"'Collection Account': The separate trust account or accounts
created and maintained pursuant to Section 5.04 of the Purchase and
Servicing Agreement which shall be entitled `Xxxxx Fargo Bank
Minnesota, National Association, as Trustee on behalf of the holders of
MLCC 2003-C Mortgage Pass-Through Certificates.'"
2. Section 7 is hereby revised by adding the following sentence at the end
of the paragraph:
"Notwithstanding the foregoing, the obligations and
responsibilities of the Servicer shall terminate upon any Event of
Default of the Seller/Servicer enumerated under Section 10.01 of the
Purchase and Servicing Agreement and the appointed successor servicer
shall succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Servicer under this Agreement."
