EXHIBIT 99.13
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 July
29, 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: Paragraph
Flow Purchase and Servicing Agreement:
Section Matter
------- ------
2.04, 3rd Paragraph (a) Defective or Missing Documentation.
3.04(3), 1st Paragraph (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 Paragraphs Properties.
5.15, 6th and (e) Realization Upon Specially Serviced Mortgage Loans
8th Paragraph s and REO Properties.
7.06 (f) Purchaser's Right to Examine Servicer Records.
9.01 penultimate
sentence (g) Indemnification; Third-Party Claims.
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.
Paragraph's
5.15, 2nd Paragraph (c) Realization Upon Specially Serviced Mortgage Loans and REO
Properties.
6.02, 1st and
2nd Paragraphs (d) Reporting.
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 Paragraphs
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 Paragraph's
8.02, 1st Paragraph (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:
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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-D Mortgage Pass-Through Certificates.'"
2. The definition of "Cut-off Date" is hereby revised to read as follows:
"'Cut-off Date': July 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-D Mortgage Pass-Through
Certificates.'"
2. The following definitions are added to read as follows:
"'MERS': Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware or any successor
thereto."
"'MERS Mortgage Loan': Any Mortgage Loan registered with MERS on the MERS
System."
"'MERS System': The system of recording transfers of mortgages
electronically maintained by MERS."
3. Section 2.05 is hereby revised by adding the following sentence at the end
of the Second paragraph:
"In connection with the servicing of the Mortgage Loans that are
registered with MERS, the Seller shall cooperate with such assignees or
designees in causing MERS to revise its records to reflect the transfer of
servicing of such MERS Mortgage Loans to such assignees or designees as
necessary under MERS' rules and regulations."
4. 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."
5. The first sentence of Item 4 of Schedule B-1 is hereby deleted and
replaced by the following:
"Unless the Mortgage Loan is registered on the MERS System, the original
Assignment of Mortgage, for each Mortgage Loan, in form and substance acceptable
for recording."
