Exhibit 10.2(B)
EXECUTION COPY
REGULATION AB AMENDMENT TO SERVICING AGREEMENT
This REGULATION AB AMENDMENT TO SERVICING AGREEMENT dated as of January 1,
2006 (the "Amendment") between WASHINGTON MUTUAL BANK, a savings bank organized
under the laws of the United States (formerly known as Washington Mutual Bank,
FA), as servicer (the "Servicer"), and BANK OF AMERICA, NATIONAL ASSOCIATION, a
national banking association as owner (the "Owner"), is made with respect to the
Servicing Agreement dated as of July 1, 2003 (Amended and Restated), as amended
by the Master Assignment, Assumption and Recognition Agreement dated as of July
1, 2004 (the "Original Servicing Agreement") between the Servicer and the Owner.
Capitalized terms used in this Amendment without definition have the meanings
assigned to them in the Original Servicing Agreement.
The parties wish to amend the Original Servicing Agreement in order to
facilitate compliance by the Owner and its assignees with Regulation AB (as
defined below).
Accordingly, the parties agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1. DEFINITIONS
(a) Article 1 of the Original Servicing Agreement is amended by adding the
following definitions:
Commission: The United States Securities and Exchange Commission.
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Issuing Entity: The issuing entity, as such term is defined in
Regulation AB, with respect to any Securitization Transaction.
Master Servicer: With respect to any Securitization Transaction, the
"master servicer," if any, identified in the related transaction documents,
to the extent such master servicer is responsible for executing the
Sarbanes Certification (as defined in Section 8.7) or any other report
filed with the Commission under the Exchange Act.
Participating Entity: As defined in Section 8.7(a)(iii).
Permitted Reconstitution: As defined in Section 8.1(a).
Qualified Correspondent: Any Person from which a Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i)
such Mortgage Loans were originated pursuant to an agreement between a
Seller and such Person that contemplated that such Person would underwrite
mortgage loans from time to time, for sale to the Company, in accordance
with underwriting guidelines designated by a Seller ("Designated
Guidelines") or guidelines that do not vary materially from such Designated
Guidelines; (ii) such Mortgage Loans were in fact underwritten as described
in clause (i) above and were acquired by a Seller within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at the time
such Mortgage Loans were originated, used by a Seller in origination of
mortgage loans of the same type as the Mortgage Loans for such Seller's own
account or (y) the Designated Guidelines were, at the time such Mortgage
Loans were underwritten, designated by a Seller on a consistent basis for
use by lenders in originating mortgage loans to be purchased by such
Seller; and (iv) a Seller employed, at the time such Mortgage Loans were
acquired by such Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it
purchased mortgage loans properly applied the underwriting criteria
designated by such Seller.
Reconstitution: Any Securitization Transaction or Whole Loan Transfer.
Reconstitution Agreement: An agreement or agreements entered into by
the Servicer and the Owner and/or certain third parties, including a master
servicer, in connection with a Reconstitution with respect to any or all of
the Mortgage Loans serviced under this Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. Section 229.1100-229.1123, as such may be amended from time
to time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2) an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to
one or more portfolios of residential
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mortgage loans consisting, in whole or in part, of some or all of the
Mortgage Loans.
Servicer Information: The information provided by the Servicer, any
Subservicer or any Subcontractor pursuant to Section 8.5(a) and (b).
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d)
of Regulation AB, as such may be amended from time to time.
Sponsor: The sponsor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Static Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of
Mortgage Loans but performs one or more discrete functions identified in
Item 1122(d) of Regulation AB with respect to Mortgage Loans under the
direction or authority of the Servicer or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Servicer or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial
portion of the material servicing functions required to be performed by the
Servicer under this Agreement or any Reconstitution Agreement that are
identified in Item 1122(d) of Regulation AB.
Third-Party Originator: Each Person, other than a Seller or a
Qualified Correspondent, that originated a Mortgage Loan.
(b) Article 1 of the Original Servicing Agreement is amended by amending
and restating the following definitions in their entirety:
Disclosure Document: With respect to any Securitization Transaction, a
prospectus, prospectus supplement, private placement memorandum or offering
circular prepared in connection with such Securitization Transaction.
Portfolio Loans: As defined in Section 8.1(d).
Transferred Loans: As defined in Section 8.1(d).
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
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(c) Article 1 of the Original Servicing Agreement is amended by
deleting the following definitions: "Indemnified Party," "Pass-Through
Transfer" and "Servicer's Information."
(d) The following provisions of the Original Servicing Agreement shall
cease to be effective as of December 31, 2006: Sections 4.4 and 4.5 and the
related definitions of "Indemnitee" and "USAP" in Article 1..
(e) Article 8 of the Original Servicing Agreement is amended and
restated in its entirety to read as follows:
ARTICLE 8
RECONSTITUTIONS; REGULATION AB COMPLIANCE
SECTION 8.1 RECONSTITUTIONS; SERVICER'S PURCHASE RIGHT
(a) Upon 15 days prior written notice to the Servicer and subject
to the terms and conditions in Article 6 of the Purchase Agreement,
the Owner may, at its sole option, effect one or more Whole Loan
Transfers or Securitization Transactions with respect to some or all
of the Mortgage Loans (each, a "Permitted Reconstitution"). In
connection with any Permitted Reconstitution, the Owner, in its sole
discretion, may assign its rights under this Agreement with respect to
the Mortgage Loans subject to such Permitted Reconstitution, and the
Servicer shall service the affected Mortgage Loans as the servicer, or
as subservicer, if a master servicer is employed as provided in clause
(iii) of Section 8.2, on the terms and conditions set forth herein and
in any related Reconstitution Agreement.
(b) The Owner shall reimburse the Servicer for all reasonable
out-of-pocket expenses, including attorneys' fees, incurred by the
Servicer in connection with any Reconstitution.
(c) With respect to any Permitted Reconstitution, the Servicer
shall (i) provide the Owner with information and appropriate
verification of information in its possession or control as may
reasonably be necessary in order to effect such Reconstitution (and,
to the extent any such information is in the possession or control of
any third party, use commercially reasonable efforts to cause such
third party to provide such information) and (ii) cooperate with all
reasonable requests and due diligence procedures not otherwise
addressed herein. In addition, upon the request of the Owner, the
Servicer shall provide, (x) in connection with each Permitted
Reconstitution, an officer's certificate to the effect that the
representations and warranties made by the Servicer in Section 5.7 are
true and correct as of the date of such certificate, provided that
nothing has occurred during the period commencing on the applicable
Closing Date and ending on the date of such certificate which would
make such representations and warranties untrue and (y) in connection
with each Permitted Reconstitution in which twenty percent or more of
the mortgage loans in the related transaction or in any one loan group
in such transaction consists of Mortgage Loans, an opinion of counsel
as to
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the Servicer's corporate authority and the enforceability of the
related Reconstitution Agreement.
(d) If, at any time, either (i) the aggregate Unpaid Principal
Balance of any pool of Mortgage Loans that are transferred pursuant to
a Whole Loan Transfer ("Transferred Loans") is less than or equal to
one percent (1%) of the Unpaid Principal Balance of such Transferred
Loans on the date of such Whole Loan Transfer, or (ii) the aggregate
Unpaid Principal Balance of any Mortgage Loans serviced hereunder and
retained by the Owner ("Portfolio Loans") is less than or equal to one
percent (1%) of the Unpaid Principal Balance of such Portfolio Loans
on the date of purchase from the applicable Seller, the Servicer may
elect, in its sole discretion, to purchase such Transferred Loans or
Portfolio Loans, as the case may be. The purchase price of Mortgage
Loans purchased by the Servicer pursuant to this Section 8.1(d) shall
equal the aggregate Unpaid Principal Balance of such Mortgage Loans,
plus the amount of interest on such Unpaid Principal Balance at the
applicable Net Rate from the date to which interest has last been paid
and distributed to the Owner to, and including, the last day of the
month in which such purchase occurs; provided that the Servicer may
exercise this purchase right only if the fair market value of the
relevant Mortgage Loans is greater than or equal to the Unpaid
Principal Balance of such Mortgage Loans at the time of purchase.
SECTION 8.2 RECONSTITUTION AGREEMENTS
In connection with each Permitted Reconstitution, the Servicer
shall:
(a) execute and deliver a Reconstitution Agreement
containing terms and conditions that are consistent with the terms and
conditions set forth herein and in the Purchase Agreement and, in the
case of a Securitization Transaction, that are customary for publicly
offered or privately placed, rated or unrated securities backed by
mortgage loans similar to the Mortgage Loans included in such
Securitization Transaction, provided that (i) any servicing reporting
requirements must be consistent with the standard practices of the
Servicer; and (ii) such Reconstitution Agreement does not expand in
any material respect any of the obligations, duties or liabilities of
the Servicer under this Agreement or result in any increased cost to
the Servicer;
(b) with respect to any Securitization Transaction in which
twenty percent or more of the mortgage loans in the entire related
transaction consist of Mortgage Loans, (i) execute and deliver a
pooling and servicing agreement that meets the requirements of clause
(a) above, provided that each of the parties to such pooling and
servicing agreement negotiates in good faith any terms or conditions
in such pooling and servicing agreement not specifically referenced or
provided for under this Agreement or the Purchase Agreement; and (ii)
provide the Owner with opinions of counsel as to the Servicer's
corporate authority and the enforceability of the pooling and
servicing agreement against
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the Servicer and certificates from public officials, each as the
Servicer shall reasonably determine to be necessary to effect such
Securitization Transaction; and
(c) in the event the Owner or its assignee elects to appoint
and designate a master servicer of Mortgage Loans pursuant to a
Reconstitution Agreement, (i) the Servicer shall service the Mortgage
Loans, and remit and report to the master servicer, in accordance with
the terms of this Agreement and the related Reconstitution Agreement;
(ii) the master servicer shall have the right as designee of the Owner
to enforce the covenants and conditions set forth in, and to give any
waivers or consents required or allowed under, this Agreement on
behalf of the Owner; and (iii) the Servicer shall follow and shall be
entitled to rely on the instructions and any waiver or consents of the
master servicer under this Agreement as if such instructions were the
instructions of the Owner.
SECTION 8.3 INTENT OF THE PARTIES; REASONABLENESS
The Owner and the Servicer acknowledge and agree that the purpose
of Sections 8.4, 8.5, 8.6, 8.7, 8.8 and 8.9 is to facilitate
compliance by the Owner and any Depositor with the provisions of
Regulation AB and related rules and regulations of the Commission.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act,
the Company acknowledges that investors in privately offered
securities may require that the Purchaser and any Depositor provide
comparable disclosure in unregistered offerings. References in this
Agreement to compliance with Regulation AB include provision of
comparable disclosure in private offerings.
Neither the Owner nor any Depositor shall exercise its right to
request delivery of information or other performance under these
provisions other than in good faith, or for purposes other than
compliance with the Securities Act, the Exchange Act and the rules and
regulations of the Commission thereunder (or the provision in a
private offering of disclosure comparable to that required under the
Securities Act). The Servicer acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities markets,
advice of counsel, or otherwise, and agrees to comply with requests
made by the Owner, the Master Servicer or any Depositor in good faith
for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. Each party agrees that it
shall cooperate in good faith to amend this Amendment and/or the
Original Servicing Agreement in light of any changes in the
interpretations of the requirements of Regulation AB over time,
whether due to interpretive guidance provided by the Commission or its
staff, consensus among participants in the asset-backed securities
markets, advice of counsel, or otherwise. In connection with any
Securitization Transaction, the Servicer shall cooperate fully with
the Owner and
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the Master Servicer to deliver to the Owner (including any of its
assignees or designees), the Master Servicer and any Depositor, any
and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Owner,
the Master Servicer or any Depositor to permit the Owner, the Master
Servicer or such Depositor to comply with the provisions of Regulation
AB, together with such disclosures relating to the Servicer, any
Subservicer, any Third-Party Originator and the Mortgage Loans, or the
servicing of the Mortgage Loans, reasonably believed by the Owner or
any Depositor to be necessary in order to effect such compliance.
The Owner (including any of its assignees or designees) shall
cooperate with the Company by providing timely notice of requests for
information under these provisions and by reasonably limiting such
requests to information required, in the Owner's reasonable judgment,
to comply with Regulation AB.
SECTION 8.4 ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE
SERVICER
(a) The Servicer shall be deemed to represent to the Owner and to
any Depositor, as of the date on which information is first provided
to the Owner or such Depositor under Section 8.5 for a Permitted
Reconstitution that, except as disclosed in writing to the Owner or
such Depositor, as applicable, prior to such date: (i) the Servicer is
not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to
any other securitization due to any act or failure to act of the
Servicer; (ii) the Servicer has not been terminated as servicer in a
residential mortgage loan securitization, either due to a servicing
default or to application of a servicing performance test or trigger;
(iii) no material noncompliance with the applicable servicing criteria
with respect to other securitizations of residential mortgage loans
involving the Servicer as servicer has been disclosed or reported by
the Servicer; (iv) no material changes to the Servicer's policies or
procedures with respect to the servicing function it will perform
under this Agreement and any Reconstitution Agreement for mortgage
loans of a type similar to the Mortgage Loans have occurred during the
three-year period immediately preceding the related Securitization
Transaction; (v) there are no aspects of the Servicer's financial
condition that could have a material adverse effect on the performance
by the Servicer of its servicing obligations under this Agreement or
any Reconstitution Agreement; (vi) there are no material legal or
governmental proceedings pending (or known to be contemplated) against
the Servicer, any Subservicer or any Third-Party Originator; and (vii)
there are no affiliations, relationships or transactions relating to
the Servicer, any Subservicer or any Third-Party Originator with
respect to any Securitization Transaction and any party thereto
identified by the related Depositor of a type described in Item 1119
of Regulation AB (other than the affiliation between the Servicer and
the Sellers).
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(b) If so requested by the Owner, the Master Servicer or any
Depositor on any date following the date on which information is first
provided to the Owner or any Depositor under Section 8.5, the Servicer
shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth
in Section 8.4(a) or, if any such representation and warranty is not
accurate as of the date of such request, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting
party.
SECTION 8.5 INFORMATION TO BE PROVIDED BY THE SERVICER
In connection with any Securitization Transaction that is a
Permitted Reconstitution, the Servicer shall (x) within five Business
Days following request by the Owner or any Depositor, provide to the
Owner and such Depositor (or, as applicable, cause each Subservicer to
provide), in writing and in form and substance reasonably satisfactory
to the Owner and such Depositor, the information and materials
specified in Sections 8.5(a) and (d), and (y) as promptly as
practicable following notice to or discovery by the Servicer, provide
to the Owner and any Depositor (in writing and in form and substance
reasonably satisfactory to the Owner and such Depositor) the
information specified in Section 8.5(b).
(a) If so requested by the Owner or any Depositor, the Servicer
shall provide such information regarding the Servicer, as servicer of
the Mortgage Loans, and, as applicable, each Subservicer, as is
requested for the purpose of compliance with Item 1108 of Regulation
AB. Such information shall include, at a minimum:
(i) the Servicer's and each Subservicer's form of
organization;
(ii) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Servicer
and each Subservicer;
(iii) a description of any affiliation or relationship
between the Servicer and each Subservicer and any of the following
parties to a Securitization Transaction, as such parties are
identified to the Servicer by the Owner or any Depositor in writing
not less than five (5) Business Days in advance of such Securitization
Transaction:
(A) the Sponsor;
(B) the Depositor;
(C) the Issuing entity;
(D) any servicer;
(E) any trustee;
(F) any originator;
(G) any significant obligor;
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(H) any enhancement or support provider; and
(I) any other material transaction party.
(iv) a description of how long the Servicer and each
Subservicer have been servicing residential mortgage loans; a general
discussion of the Servicer's and each Subservicer's experience in
servicing assets of any type as well as a more detailed discussion of
the Servicer's and each Subservicer's experience in, and procedures
for, the servicing function it will perform under this Agreement and
any Reconstitution Agreement; information regarding the size,
composition and growth of the Servicer's and each Subservicer's
portfolio of residential mortgage loans of a type similar to the
Mortgage Loans and information on factors related to the Servicer and
each Subservicer that may be material, in the good faith judgment of
the Owner or any Depositor, to any analysis of the servicing of the
Mortgage Loans or the related asset-backed securities, as applicable,
including, without limitation:
(A) whether any prior securitizations of mortgage loans
of a type similar to the Mortgage Loans involving the Servicer or any
Subservicer have defaulted or experienced an early amortization or
other performance triggering event because of servicing during the
three-year period immediately preceding the related Securitization
Transaction;
(B) the extent of outsourcing the Servicer and each
Subservicer utilizes;
(C) whether there has been previous disclosure of
material noncompliance with the applicable servicing criteria with
respect to other securitizations of residential mortgage loans
involving the Servicer or any Subservicer during the three-year period
immediately preceding the related Securitization Transaction;
(D) whether the Servicer or any Subservicer has been
terminated as servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a servicing
performance test or trigger; and
(E) such other information as the Owner or any
Depositor may reasonably request for the purpose of compliance with
Item 1108(b)(2) of Regulation AB;
(v) a description of any material changes during the
three-year period immediately preceding the related Securitization
Transaction to the Servicer's and each Subservicer's policies or
procedures with respect to the servicing function it will perform
under this Agreement and any Reconstitution Agreement for mortgage
loans of a type similar to the Mortgage Loans;
(vi) information regarding the Servicer's and each
Subservicer's financial condition, to the extent that there is a
material risk that an
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adverse financial event or circumstance involving the Servicer or
Subservicer could have a material adverse effect on the performance by
the Servicer or Subservicer of its servicing obligations under this
Agreement or any Reconstitution Agreement;
(vii) information regarding advances made by the Servicer
and each Subservicer on the Mortgage Loans and the Servicer's and
Subservicer's overall servicing portfolio of residential mortgage
loans for the three-year period immediately preceding the related
Securitization Transaction, which may be limited to a statement by an
authorized officer of the Servicer or Subservicer to the effect that
the Servicer or Subservicer has made all advances required to be made
on residential mortgage loans serviced by it during such period, or,
if such statement would not be accurate, information regarding the
percentage and type of advances not made as required, and the reasons
for such failure to advance;
(viii) a description of the Servicer's and each
Subservicer's processes and procedures designed to address any special
or unique factors involved in servicing loans of a similar type as the
Mortgage Loans;
(vii) a description of the Servicer's and each Subservicer's
processes for handling delinquencies, losses, bankruptcies and
recoveries, such as through liquidation of mortgaged properties, sale
of defaulted mortgage loans or workouts; and
(viii) information as to how the Servicer and each
Subservicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring,
partial payments considered current or other practices with respect to
delinquency and loss experience.
(b) For the purpose of satisfying the Purchaser's or any
Depositor's reporting obligation under the Exchange Act with respect
to any class of asset-backed securities, the Servicer shall (or shall
cause each Subservicer to) (i) notify the Owner, the Master Servicer
and any Depositor in writing of (A) any material litigation or
governmental proceedings pending against the Servicer or any
Subservicer and (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the
Servicer or any Subservicer and any of the parties specified in clause
(ii) of this Section 8.5(b) (and any other parties identified in
writing by the requesting party) with respect to such Securitization
Transaction, (C) the Servicer's failure be an approved servicer of
mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac, in good standing and
(D) the Servicer's entry into an agreement with a Subservicer to
perform or assist in the performance of any of the Servicer's
obligations under the Agreement or any Reconstitution Agreement and
(ii) provide to the Owner and any Depositor a description of such
proceedings, affiliations or relationships.
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(c) As a condition to the succession to the Servicer or any
Subservicer as servicer or subservicer under this Agreement or any
Reconstitution Agreement by any Person (i) into which the Servicer or
such Subservicer may be merged or consolidated, or (ii) which may be
appointed as a successor to the Servicer or any Subservicer, the
Servicer shall provide to the Owner, the Master Servicer, and any
Depositor, at least 15 calendar days prior to the effective date of
such succession or appointment, (x) written notice to the Owner and
any Depositor of such succession or appointment and (y) in writing and
in form and substance reasonably satisfactory to the Owner and such
Depositor, all information reasonably requested by the Owner or any
Depositor in order to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to any class of asset-backed securities.
(d) In addition to such information as the Servicer is
obligated to provide pursuant to other provisions of this Agreement:
(i) The Servicer or any Subservicer shall, to the
extent the Servicer or such Subservicer has knowledge thereof, provide
to the party responsible for filing distribution reports on Form 10-D
in respect of any Securitization Transaction that includes any of the
Mortgage Loans serviced by the Servicer or such Subservicer notice of
the occurrence of any of the following events along with all
information as may be required to be included in the related
distribution report on From 10-D (as specified in the provisions of
Regulation AB referred to below):
(A) any material modifications, extensions or
waivers of pool asset terms, fees, penalties or payments during the
distribution period or that have cumulatively become material over
time (Item 1121(a)(11) of Regulation AB);
(B) material breaches of pool asset
representations or warranties or transaction covenants (Item
1121(a)(12) of Regulation AB); and
(C) any repurchases of Mortgage Loans (Item
1121(a)(14) of Regulation AB).
The foregoing information shall be provided in such
form as may be mutually agreed by the Servicer and the Master
Servicer.
(ii) Upon request of the Depositor or Master Servicer,
the Servicer shall provide to the Purchaser, the Master Servicer and
any Depositor, (A) evidence of the authorization of the person signing
any certification or statement and (B) to supplement the publicly
available financial statements of the Servicer, such financial
information and other information related to the Servicer or any
Subservicer or to the Servicer's or such Subservicer's performance
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hereunder that can be provided without violation of any applicable law
and is reasonably available to the Servicer without unreasonable
effort or expense.
SECTION 8.6. SERVICER COMPLIANCE STATEMENT
On or before March 10 of each calendar year, commencing in 2007,
the Servicer shall deliver to the Owner, the Master Servicer and any
Depositor a statement of compliance addressed to the Owner, the Master
Servicer and such Depositor and signed by an authorized officer of the
Servicer, to the effect that (i) a review of the Servicer's activities
during the immediately preceding calendar year (or applicable portion
thereof) and of its performance under this Agreement and any
applicable Reconstitution Agreement during such period has been made
under such officer's supervision, and (ii) to the best of such
officers' knowledge, based on such review, the Servicer has fulfilled
all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout such
calendar year (or applicable portion thereof) or, if there has been a
failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and
the nature and the status thereof.
SECTION 8.7 REPORT ON ASSESSMENT OF COMPLIANCE AND ATTESTATION
(a) On or before March 10 of each calendar year, commencing in
2007, the Servicer shall:
(i) deliver to the Owner, the Master Servicer and any
Depositor a report (in form and substance reasonably satisfactory to
the Owner, the Master Servicer and such Depositor) regarding the
Servicer's assessment of compliance with the Servicing Criteria during
the immediately preceding calendar year, as required under Rules
13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB.
Such report shall be addressed to the Owner, the Master Servicer and
such Depositor and signed by an authorized officer of the Servicer,
and shall address each of the "Applicable Servicing Criteria"
specified on EXHIBIT F hereto;
(ii) deliver to the Owner, the Master Servicer and any
Depositor a report of a registered public accounting firm reasonably
acceptable to the Owner, the Master Servicer and such Depositor that
attests to, and reports on, the assessment of compliance made by the
Servicer and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g)
of Regulation S-X under the Securities Act and the Exchange Act;
(iii) cause each Subservicer and each Subcontractor
determined by the Servicer pursuant to Section 8.8(b) to be
"participating in the servicing function" within the meaning of Item
1122 of Regulation AB (each such
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Subcontractor, a "Participating Entity"), to deliver to the Owner,
Master Servicer and any Depositor an assessment of compliance and
accountants' attestation as and when provided in paragraphs (i) and
(ii) of this Section 8.7(a); and
(iv) deliver, and cause each Subservicer and each
Participating Entity to deliver, to the Purchaser, any Depositor, the
Master Servicer and any other Person that will be responsible for
signing the certification (a "Sarbanes Certification") required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an
asset-backed issuer with respect to a Securitization Transaction a
certification, signed by the appropriate officer of such Person, in
the form attached hereto as EXHIBIT E.
The Servicer acknowledges that the parties identified in clause (iv)
above may rely on the certification provided by the Servicer pursuant
to such clause in signing a Sarbanes Certification and filing such
with the Commission. Neither the Owner nor any Depositor will require
delivery of a certification under clause (iv) above unless a Depositor
is required under the Exchange Act to file an annual report on Form
10-K with respect to an issuing entity whose asset pool includes
Mortgage Loans.
(b) Each assessment of compliance provided by a Subservicer
pursuant to Section 8.7(a)(iii) shall address each of the Servicing
Criteria specified on a certification substantially in the form of
EXHIBIT F hereto delivered to the Owner on or prior to the date on
which such Subservicer is appointed. An assessment of compliance
provided by a Subcontractor pursuant to Section 8.7(a)(iii) need not
address any elements of the Servicing Criteria other than those
specified by the Servicer pursuant to Section 8.8(b).
SECTION 8.8 USE OF SUBSERVICERS AND SUBCONTRACTORS
The Servicer shall not hire or otherwise utilize the services of
any Subservicer to fulfill any of the obligations of the Servicer as
servicer under this Agreement or any Reconstitution Agreement unless
the Servicer complies with the provisions of paragraph (a) of this
Section 8.8. The Servicer shall not hire or otherwise utilize the
services of any Subcontractor, and shall not permit any Subservicer to
hire or otherwise utilize the services of any Subcontractor, to
fulfill any of the obligations of the Servicer as servicer under this
Agreement or any Reconstitution Agreement unless the Servicer complies
with the provisions of paragraph (b) of this Section 8.8.
(a) It shall not be necessary for the Servicer to seek the
consent of the Owner, the Master Servicer or any Depositor to the
utilization of any Subservicer. The Servicer shall cause any
Subservicer used by the Servicer (or by any Subservicer) for the
benefit of the Owner and any Depositor to comply with the provisions
of this Section 8.8(a) and with Sections 8.4, 8.5(a), (b), (c) and
(d), 8.6,
13
8.7 and 8.9 of this Agreement to the same extent as if such
Subservicer were the Servicer, and to provide the information required
with respect to such Subservicer under Section 8.5(b) of this
Agreement. The Servicer shall be responsible for obtaining from each
Subservicer and delivering to the Owner and any Depositor any servicer
compliance statement required to be delivered by such Subservicer
under Section 8.6, any assessment of compliance and attestation
required to be delivered by such Subservicer under Section 8.7 and any
certification required to be delivered to the Person that will be
responsible for signing the Sarbanes Certification under Section 8.7
as and when required to be delivered.
(b) It shall not be necessary for the Servicer to seek the
consent of the Owner, the Master Servicer or any Depositor to the
utilization of any Subcontractor. The Servicer shall promptly upon
request provide to the Owner, the Master Servicer and any Depositor
(or any designee of the Depositor, such as an administrator) a written
description (in form and substance satisfactory to the Owner, the
Master Servicer and such Depositor) of the role and function of each
Subcontractor utilized by the Servicer or any Subservicer, specifying
(i) the identity of each such Subcontractor, (ii) which (if any) of
such Subcontractors are Participating Entities, and (iii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to
clause (B) of this paragraph.
As a condition to the utilization of any Subcontractor determined
to be "participating in the servicing function" within the meaning of
Item 1122 of Regulation AB, the Servicer shall cause any such
Subcontractor used by the Servicer (or by any Subservicer) for the
benefit of the Owner and any Depositor to comply with the provisions
of Sections 8.7 and 8.9 of this Agreement to the same extent as if
such Subcontractor were the Servicer. The Servicer shall be
responsible for obtaining from each Subcontractor and delivering to
the Owner and any Depositor any assessment of compliance and
attestation and the other certifications required to be delivered by
such Subservicer and such Subcontractor under Section 8.7, in each
case as and when required to be delivered.
SECTION 8.9 INDEMNIFICATION; REMEDIES
(a) With respect to any Securitization Transaction for which
Servicer Information is included in a related Disclosure Document, the
Servicer, on the one hand, and the Owner, the Depositor and any broker
dealer acting as underwriter, placement agent or initial purchaser, on
the other hand, shall execute and deliver an Indemnification Agreement
in substantially the form attached as EXHIBIT G hereto, pursuant to
which each such party shall indemnify the other party or parties and
their respective affiliates and each Person who controls any of such
parties (within the meaning of Section 15 of the Securities Act) and
their respective present and former directors, officers and employees
for the matters set forth in such Indemnification Agreement.
14
(b) The Servicer shall indemnify and hold harmless each of the
Owner, the Master Servicer, each Person, if any, who "controls" the
Owner or the Master Servicer within the meaning of the Securities Act
of 1933, as amended, and their respective officers, directors and
employees (collectively, the "Indemnitees") against any and all
losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, fees and expenses that such Indemnitee
may sustain in direct connection with, or arising out of, third party
claims based on, (i) the failure of the Servicer to deliver or cause
to be delivered when required any information, report, certification,
accountants' letter or other material when and as required pursuant to
Section 8.6 or Section 8.7 or any failure by the Servicer to identify
pursuant to Section 8.8(b) any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB,
(ii) any material misstatement or omission in any Sarbanes
Certification made in reliance on any material misstatement or
omission contained in any officer's certificate provided pursuant to
Section 8.6 or Section 8.7(a)(iv), (iii) any material misstatement or
omission contained in the assessment of compliance delivered in
accordance with Section 8.7(a)(i) or (iv) any material misstatement or
omission contained in any information provided by the Servicer, any
Subservicer or any Subcontractor pursuant to Section 8.4(b) or Section
8.5(b) or (d). If the indemnification provided for herein is
unavailable or insufficient to hold harmless any Indemnitee, then the
Servicer agrees that it shall contribute to the amount paid or payable
by the Indemnitee as a result of the losses, claims, damages or
liabilities of the Indemnitee arising out of clauses (i), (ii) or
(iii) of the preceding sentence in such proportion as is appropriate
to reflect the relative fault of the Indemnitee on the one hand and
the Servicer on the other.
For purposes of this Section 8.9(b), "third party claims" shall
include claims brought against an Indemnitee by any agent or affiliate
of such Indemnitee where such claims arise out of, or are based on,
(A) the failure of the Servicer to deliver or cause to be delivered
when required any information, report, certification, accountants'
letter or other material when and as required pursuant to Section 8.6
or Section 8.7 or any failure by the Servicer to identify pursuant to
Section 8.8(b) any Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, (B) any
material misstatement or omission in any Sarbanes Certification made
in reliance on any material misstatement or omission contained in any
officer's certificate provided pursuant to Section 8.6 or Section
8.7(a)(iv), (C) any material misstatement or omission contained in the
assessment of compliance delivered in accordance with Section
8.7(a)(i) or (D) any material misstatement or omission contained in
any information provided by the Servicer, any Subservicer or any
Subcontractor pursuant to Section 8.4(b) or Section 8.5(b) or (d).
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Servicer
agrees that it shall contribute to the amount paid or payable by such
Indemnified Party as a result of any claims, losses, damages or
liabilities incurred by such Indemnified Party in
15
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Servicer on the other.
In the case of any failure of performance described in clause (i) of
this Section 8.9(b), the Servicer shall promptly reimburse the Owner, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with respect to such Securitization Transaction, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction, for all costs
reasonably incurred by each such party in order to obtain the information,
report, certification, accountants' letter or other material not delivered
as required by the Servicer, any Subservicer or Subcontractor.
This indemnification shall survive the termination of this Agreement
or the termination of any party to this Agreement.
(c) (i) Any failure by the Servicer, any Subservicer or Subcontractor
to deliver any information, report, certification, accountants' letter or
other material when and as required under this Article, or any breach by
the Servicer of a representation or warranty set forth in Section 8.4(a) or
in a writing furnished pursuant to Section 8.4(b) and made as of a date
prior to the closing date of the related Securitization Transaction, to the
extent that such failure or breach is not cured by such closing date, or
any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to Section 8.4(b) to the extent made as of a date
subsequent to such closing date, shall, except as provided in clause (ii)
of this Section 8.9(c), immediately and automatically, without notice or
grace period, constitute an Event of Default with respect to the Servicer
under this Agreement and any applicable Reconstitution Agreement, and shall
entitle the Owner or Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Servicer as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement to the contrary) of any compensation to the
Servicer (and, if the Company is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer reasonably
acceptable to any Master Servicer for such Securitization Transaction);
provided that to the extent that any provision of this Agreement and/or any
applicable Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the Servicer as
servicer, such provision shall be given effect.
(ii) Any failure by the Servicer, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Section 8.6 or 8.7,
including (except as provided below) any failure by the Servicer to
identify pursuant to Section 8.8(b) any Subcontractor "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB, which
continues
16
unremedied for five calendar days after the date on which such information,
report, certification or accountants' letter was required shall constitute
an Event of Default with respect to the Servicer under this Agreement and
any applicable Reconstitution Agreement, and shall entitle the Owner or
Depositor, as applicable, in its sole discretion, upon notice to the
Servicer as provided in Section 6.1, to terminate the rights and
obligations of the Servicer as servicer under this Agreement and/or any
applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the
Servicer; provided that to the extent that any provision of this Agreement
and/or any applicable Reconstitution Agreement expressly provides for the
survival of certain rights or obligations following termination of the
Servicer as servicer, such provision shall be given effect. Notwithstanding
the foregoing, in the event that the Servicer (or any applicable
Subservicer or Subcontractor) delivers any missing information, report,
certification or accountants' letter, following the expiration of the five
calendar day cure period provided in the preceding sentence, and the Master
Servicer or Depositor, as the case may be, despite such late delivery,
files the related annual report on Form 10-K on time without having to file
a Form 12b-25 related to a notification of an inability to make a timely
Exchange Act report filing and the Servicer indemnifies and promptly
reimburses the Master Servicer and Depositor pursuant to Section 8.9(b) for
all costs and expenses incurred as a result of such delay, any notice given
by the Master Servicer declaring an Event of Default shall be automatically
revoked and the delay in providing the missing information, report,
certification or accountants' letter shall cease to constitute an Event of
Default.
Neither the Owner nor any Depositor shall be entitled to terminate the
rights and obligations of the Servicer pursuant to this subparagraph
(c)(ii) if a failure of the Servicer to identify a Subcontractor
"participating in the servicing function" within the meaning of Item 1122
of Regulation AB was attributable solely to the role or functions of such
Subcontractor with respect to mortgage loans other than the Mortgage Loans.
(iii) The Servicer shall promptly reimburse the Owner (or any
designee of the Owner, such as a master servicer) and any Depositor, as
applicable, for all reasonable expenses incurred by the Owner (or such
designee) or such Depositor as such are incurred, in connection with the
termination of the Servicer as servicer and the transfer of servicing of
the Mortgage Loans to a successor servicer. The provisions of this
paragraph shall not limit whatever rights the Owner or any Depositor may
have under other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at law, such as
an action for damages, specific performance or injunctive relief.
SECTION 8.10 THIRD PARTY BENEFICIARY
For purposes of Sections 8.3, 8.4(b), 8.5(b), (c) and (d), 8.6, 8.7,
8.8 and 8.9 and any related provisions, the Master Servicer shall be
considered a third-party beneficiary of this Agreement, entitled to all the
rights and benefits of the foregoing provisions as if it were a direct
party to this Agreement.
17
(f) The Original Servicing Agreement is amended by substituting EXHIBIT E
attached hereto for EXHIBIT E to the Original Servicing Agreement.
(g) The Original Servicing Agreement is amended by adding the following
exhibits:
EXHIBIT F Servicing Criteria
EXHIBIT G Form of Indemnification Agreement
ARTICLE II
MISCELLANEOUS
SECTION 2.1 CONDITIONS TO EFFECTIVENESS
This Amendment shall be effective upon the execution and delivery by both
parties of this Amendment.
SECTION 2.2 REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT AND THE
SERVICING AGREEMENT
Each reference in the Servicing Agreement to "this Agreement" or otherwise
to the Servicing Agreement shall hereafter be deemed to refer to the Servicing
Agreement as amended hereby. Each reference to the Servicing Agreement in the
Purchase Agreement or in any other document or agreement executed in connection
therewith or with the Servicing Agreement shall hereafter be deemed to refer to
the Servicing Agreement as amended hereby. The Owner and the Servicer hereby
agree that the provisions of this Amendment shall be applicable to all Mortgage
Loans being serviced hereunder and included in a Securitization Transaction
closing on or after January 1, 2006, regardless whether the Mortgage Loans were
purchased by the Owner prior to the date hereof.
SECTION 2.3 RATIFICATION
The Servicing Agreement, as amended by this Amendment, is hereby ratified
and confirmed and shall continue unimpaired and in full force and effect in
accordance with the provisions thereof, as amended or modified on or prior to
the date hereof and as hereby amended.
SECTION 2.4 APPLICABLE LAW
This Amendment shall be governed by and construed in accordance with the
laws of the State of New York (including Section 5-1401 of the New York General
Obligations Law) and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws without giving effect
to conflict of laws principles other than Section 5-1401 of the New York General
Obligations Law.
18
SECTION 2.5 SEVERABILITY
Any provision of this Amendment which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Amendment and without affecting the validity or
enforceability of such or any other provision in any other jurisdiction.
SECTION 2.6 COUNTERPARTS
This Amendment may be executed simultaneously in counterparts, each of
which shall be deemed an original, and it shall not be necessary in making proof
of this Amendment to produce or account for more than one such counterpart for
each party hereto.
[Signature page follows]
19
The Servicer and the Owner have caused this Regulation AB Amendment to
Servicing Agreement to be executed as of the date set forth above.
SERVICER:
WASHINGTON MUTUAL BANK
a federally chartered savings bank
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Senior Vice President
OWNER:
BANK OF AMERICA, NATIONAL ASSOCIATION
a national banking association
By: /s/ Xxxxx X. Good
Name: Xxxxx X. Good
Title: Vice President
[Signature Page to Regulation AB Amendment to Servicing Agreement]
EXHIBIT E
FORM OF ANNUAL CERTIFICATION
Re: The [_______] agreement dated as of [__], 200[_] (the "Agreement"),
among [IDENTIFY PARTIES]
I, ________________________________, the _____________________ of Washington
Mutual Bank, certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with the
knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"); the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"); the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"); and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Company during 200[_] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee] pursuant to the Agreement. (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Company Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator]
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement; and
(5) The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by each Participating
Entity pursuant to the Agreement, have been provided to the [Depositor]
[Master Servicer]. Any material instances of noncompliance described in
such reports have been disclosed to the
E-1
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the Servicing Criteria has been disclosed in such reports.
Date: __________________________________
By:
------------------------------------
Name:
Title:
E-2
EXHIBIT F
SERVICING CRITERIA
The assessment of compliance to be delivered by [the Company] [Name of
Subservicer] shall address, at a minimum, the criteria identified as below as
"Applicable Servicing Criteria";
---------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
---------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any X
performance or other triggers and events of default in
accordance with the transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third X
parties, policies and procedures are instituted to monitor
the third party's performance and compliance with such
servicing activities.
---------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
---------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect X
on the party participating in the servicing function
throughout the reporting period in the amount of coverage
required by and otherwise in accordance with the terms of the
transaction agreements.
---------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
---------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate X
custodial bank accounts and related bank clearing accounts
no more than two business days following receipt, or such
other number of days specified in the transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor X
or to an investor are made only by authorized personnel.
---------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash X
flows or distributions, and any interest or other fees
charged for such advances, are made, reviewed and approved as
specified in the transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash X
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the
transaction agreements.
---------------------------------------------------------------------------------------------
F-1
---------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured X
depository institution as set forth in the transaction
agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
---------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized X
access.
---------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date,
or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than
the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items
are resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
---------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
---------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the X
Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the
transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction
agreements; (C) are filed with the Commission as required by
its rules and regulations; and (D) agree with investors' or
the trustee's records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
---------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in X
accordance with timeframes, distribution priority and other
terms set forth in the transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other X number of days specified in the transaction
agreements.
---------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree X
with cancelled checks, or other form of payment, or
custodial bank statements.
---------------------------------------------------------------------------------------------
F-2
---------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
---------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as X
required by the transaction agreements or related mortgage
loan documents.
---------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements
---------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool X
are made, reviewed and approved in accordance with any
conditions or requirements in the transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in X
accordance with the related mortgage loan documents are
posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number of
days specified in the transaction agreements, and allocated
to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
---------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree X
with the Servicer's records with respect to an obligor's
unpaid principal balance.
---------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's X
mortgage loans (e.g., loan modifications or re-agings) are
made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool
asset documents.
---------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, X
modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are initiated,
conducted and concluded in accordance with the timeframes or
other requirements established by the transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during X
the period a mortgage loan is delinquent in accordance with
the transaction agreements. Such records are maintained on at
least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling plans
in cases where delinquency is deemed temporary (e.g., illness
or unemployment).
---------------------------------------------------------------------------------------------
F-3
---------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
---------------------------------------------------------------------------------------------
REFERENCE CRITERIA
---------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage X
loans with variable rates are computed based on the related
mortgage loan documents.
---------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as X
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid,
or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds
are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number
of days specified in the transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or X
insurance payments) are made on or before the related penalty
or expiration dates, as indicated on the appropriate bills
or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior
to these dates, or such other number of days specified in the
transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to X
be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
---------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within X
two business days to the obligor's records maintained by
the servicer, or such other number of days specified in the
transaction agreements.
---------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are X
recognized and recorded in accordance with the transaction
agreements.
---------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
---------------------------------------------------------------------------------------------
F-4
[WASHINGTON MUTUAL BANK]
[NAME OF SUBSERVICER]
Date: __________________________________
By:
------------------------------------
Name:
Title:
F-5
EXHIBIT G
FORM OF INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT (the "Agreement"), dated as of _______, 200_,
among Washington Mutual Bank as servicer (the "Servicer") and as seller (a
"Seller"), [Washington Mutual Bank fsb, as a seller (a "Seller" and together,
the "Sellers"),] _____________ as underwriters (each an "Underwriter and
together, the "Underwriters"), _________, as Owner (the "Owner"), and
_______________, as depositor (the "Depositor").
SECTION 1. DEFINED TERMS.
Unless the context clearly requires otherwise, all capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Pooling Agreement. For purposes of this Agreement, the following terms shall
have the following meanings:
"Agreement" shall mean this Indemnification Agreement, as amended,
supplemented or otherwise modified from time to time.
"1933 Act" shall mean the Securities Act of 1933, including, unless the
context otherwise requires, the rules and regulations thereunder, as amended
from time to time.
"Controlling Person" shall mean any Person who controls a party to this
Agreement within the meaning of Section 15 of the 1933 Act or Section 20 of the
Exchange Act.
"Disclosure Document" shall mean, the Prospectus Supplement, dated
________, 200_, and the related Prospectus, dated __________, 200_, in respect
of the Securities, and any amendment or supplement thereto, and [identify any
other disclosure document in respect of the Securities].
"Exchange Act" shall mean the Securities Exchange Act of 1934, including,
unless the context otherwise requires, the rules and regulations thereunder, as
amended from time to time.
"Indemnified Party" shall mean, a party to this Agreement (in its own right
and on behalf of its related Controlling Persons) entitled to indemnification
under the terms of this Agreement.
"Indemnifying Party" shall mean a party to this Agreement obligated to
indemnify an Indemnified Party under the terms of this Agreement.
"Losses" shall mean (a) any losses, claims, damages or liabilities incurred
by an Indemnified Party and (b) any out-of-pocket costs or expenses reasonably
incurred by an Indemnified Party, including the reasonable fees and expenses of
its counsel and any other reasonable and necessary costs and expenses incurred
in connection with investigating or defending any claim, action or other
proceeding as to which such party is entitled to indemnification or contribution
hereunder.
"Mortgage Loans" shall mean those Mortgage Loans sold by a Servicer to the
Owner and included in the securitization relating to the issuance of the
Securities.
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"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or subdivision thereof.
"Pooling Agreement" shall mean that certain Pooling and Servicing Agreement
relating to the Securities, dated as of __________, 200_, among
_________________.
"Qualified Correspondent": shall mean any Person from which a Seller
purchased Mortgage Loans, provided that the following conditions are satisfied:
(i) such Mortgage Loans were originated pursuant to an agreement between a
Seller and such Person that contemplated that such Person would underwrite
mortgage loans from time to time, for sale to the Company, in accordance with
underwriting guidelines designated by a Seller ("Designated Guidelines") or
guidelines that do not vary materially from such Designated Guidelines; (ii)
such Mortgage Loans were in fact underwritten as described in clause (i) above
and were acquired by a Seller within 180 days after origination; (iii) either
(x) the Designated Guidelines were, at the time such Mortgage Loans were
originated, used by a Seller in origination of mortgage loans of the same type
as the Mortgage Loans for such Seller's own account or (y) the Designated
Guidelines were, at the time such Mortgage Loans were underwritten, designated
by a Seller on a consistent basis for use by lenders in originating mortgage
loans to be purchased by such Seller; and (iv) a Seller employed, at the time
such Mortgage Loans were acquired by such Seller, pre-purchase or post-purchase
quality assurance procedures (which may involve, among other things, review of a
sample of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by such
Seller.
"Securities" shall mean the ____________________.
"Seller" as the context requires, shall mean Washington Mutual Bank, a
federally chartered savings association and/or Washington Mutual Bank fsb, a
federally chartered savings association.
"Servicer" shall mean Washington Mutual Bank, a federally chartered savings
association.
"Seller Information" shall mean the information provided by or on behalf of
the Seller or any Third-Party Originator and contained on EXHIBIT A-1 attached
hereto.
"Servicer Information" shall mean the information provided by or on behalf
of the Servicer, any Subservicer or any Subcontractor and contained on EXHIBIT
A-2 attached hereto.
"Third-Party Originator": shall mean each Person, other than the Seller or
a Qualified Correspondent, that originated a Mortgage Loan.
"Underwriter Information": shall mean the information furnished by any
broker-dealer acting as underwriter, placement agent or initial purchaser
specifically for use in the Disclosure Document.
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SECTION 2. INDEMNIFICATION AND CONTRIBUTION
(a) The Servicer, agrees, upon the terms and subject to the conditions
provided herein, to indemnify and hold harmless each of (i) the Owner, (ii) the
Depositor, (iii) any broker-dealer acting as underwriter, placement agent or
initial purchaser (each an "Underwriter" and collectively the "Underwriters")
and (iv) each Controlling Person, if any, who controls the Owner, the Depositor
or the Underwriter ((i) through (iv) collectively, the "Owner Indemnified
Parties") against any Losses to which such Owner Indemnified Party may become
subject, under the 1933 Act or otherwise, insofar as such Losses arise out of or
are based upon (a) any untrue statement or alleged untrue statement of a
material fact contained in the Disclosure Document relating to the Securities or
(b) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (as of the date
thereof), in each case to the extent and only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the Servicer Information furnished by
the Servicer specifically for use in the Disclosure Document. The Servicer's
liability under this Agreement shall be in addition to any other liability the
Servicer may otherwise have.
(b) Each of the Sellers, severally and not jointly, agrees, upon the terms
and subject to the conditions provided herein, to indemnify and hold harmless
each Owner Indemnified Party against any Losses to which such Owner Indemnified
Party may become subject, under the 1933 Act or otherwise, insofar as such
Losses arise out of or are based upon (a) any untrue statement or alleged untrue
statement of a material fact contained in the Disclosure Document relating to
the Securities or (b) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (as of the date thereof), in each case to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with the Seller
Information furnished by the Seller specifically for use in the Disclosure
Document. The Seller's liability under this Agreement shall be in addition to
any other liability the Seller may otherwise have.
(c) Each Owner and Depositor, jointly and severally, agree, upon the terms
and subject to the conditions provided herein, to indemnify and hold harmless
each of (i) the Servicer, (ii) the Seller and (iii) each Controlling Person, if
any who controls the Servicer ((i) and (ii) collectively, the "Washington Mutual
Indemnified Parties") against any Losses to which such Washington Mutual
Indemnified Party may become subject, under the 1933 Act or otherwise, insofar
as such Losses arise out of or are based upon (a) any untrue statement or
alleged untrue statement of a material fact contained in the Disclosure Document
relating to the Securities or (b) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (as of the date thereof), except to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission
relates to the Underwriter Information, the Servicer Information or the Seller
Information. Each Owner's or Depositor's liability under this Agreement shall be
in addition to any other liability the Owner or Depositor may otherwise have.
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(d) Each Underwriter, severally and not jointly, agrees, upon the terms and
subject to the conditions provided herein, to indemnify and hold harmless each
Washington Mutual Indemnified Party, against any Losses to which such Washington
Mutual Indemnified Party may become subject, under the 1933 Act or otherwise,
insofar as such Losses arise out of or are based upon (a) any untrue statement
or alleged untrue statement of a material fact contained in the Disclosure
Document relating to the Securities or (b) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading (as of the date thereof), in each case to the extent and
only to the extent, that such untrue statement or alleged untrue statement or
such omission or alleged omission was made in reliance upon and in conformity
with the Underwriter Information. Each Underwriter's liability under this
Agreement shall be in addition to any other liability the Underwriter may
otherwise have.
(e) With respect to each claim for indemnification made hereunder, the
Indemnified Party shall notify the Indemnifying Party in writing, giving notice
of the nature of the claim, within a reasonable time after service of a summons
or other first legal process that shall have been served upon such Indemnified
Party, but failure to notify the Indemnifying Party of any such claim shall not
relieve the Indemnifying Party from any liability which it may have to the
Indemnified Party (i) on account of the indemnity contained in this Agreement,
except to the extent that the Indemnifying Party has been materially prejudiced
by such failure, or (ii) otherwise than on account of the indemnity contained in
this Agreement.
(f) The Indemnifying Party will be entitled to participate at its own
expense in the defense or, if the Indemnifying Party so elects, to assume the
defense of any suit brought to enforce any such liability, but if the
Indemnifying Party elects to assume the defense, such defense shall be conducted
by counsel reasonably satisfactory to the Indemnified Party. In the event the
Indemnifying Party elects to assume the defense of any such suit and retain such
counsel, the Indemnified Party or persons, defendant or defendants in the suit,
may retain additional counsel but shall bear the fees and expenses of such
counsel unless: (1) the Indemnifying Party shall have agreed to the retention of
such counsel at the expense of the Indemnifying Party; or (2) the named parties
to any such proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party, and the Indemnified Party
reasonably determines that representation of both by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one counsel (separate from its own counsel) for
the Indemnified Party.
(g) The Indemnifying Party shall not be liable to indemnify any Person for
any settlement of any claim effected without the Indemnifying Party's written
consent or if there be a final judgment for the plaintiff in any such action,
the Indemnifying Party agrees to indemnify and hold harmless any Indemnified
Party from and against any Loss by reason of such settlement or judgment. The
Indemnifying Party shall not, without the prior written consent of an
Indemnified Party, which consent will not be unreasonably withheld, effect any
settlement of any pending or threatened proceeding in respect of which such
Indemnified Party is or could have been a party and indemnity is or could have
been sought hereunder by such Indemnified Party unless such settlement (i)
includes an unconditional release of such Indemnified Party from all
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liability on any claims that are the subject of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or failure to
act by or on behalf of an Indemnified Party.
(h) If the indemnification provided for in this Agreement is determined to
be insufficient or unavailable to an Indemnified Party in respect of any Losses,
then each Indemnifying Party, in lieu of indemnifying the Indemnified Party,
shall contribute to the Losses incurred by the Indemnified Party in such
proportion as is appropriate equally to reflect (1) the relative fault and
benefits of (a) the Indemnifying Party on the one hand and (b) the Indemnified
Party on the other hand, in connection with the statements or omissions which
resulted in such Losses (or actions in respect thereof) as well as (2) any other
relevant equitable considerations. The relative fault of each Indemnifying
Party, on the one hand, and of each Indemnified Party, on the other, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact or the omission or alleged omission to state a
material fact relates to information supplied by, or action within the control
of, such Indemnifying Party or such Indemnified Party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Indemnifying Party and the Indemnified Party
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above.
(i) No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
(j) Upon the incurrence of any Losses for which a Person is entitled to
contribution hereunder, the contributor shall reimburse such Person entitled to
contribution promptly upon establishment by the Person entitled to contribution
to the contributor of the Losses incurred.
SECTION 3. NOTICES.
All demands, notices and other communications to be given hereunder shall be in
writing (except as otherwise specifically provided herein) and shall be mailed
by registered mail or personally delivered and telecopied to the recipient as
follows:
TO THE SELLERS:
Washington Mutual Bank
0000 Xxxxx Xxxxxx, XXX0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile (000) 000-0000
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To THE SERVICER:
Washington Mutual Bank
0000 Xxxxxxx Xxx. (Mail Stop N080108
Xxxxxxxxxx, XX 00000
Attention: Vice President of Investor Reporting
Facsimile: (000) 000-0000
TO THE OWNER:
----------------------
----------------------
----------------------
Attention:
Facsimile:
TO THE DEPOSITOR:
----------------------
----------------------
----------------------
Attention:
Facsimile:
TO THE UNDERWRITER:
----------------------
----------------------
----------------------
Attention:
Facsimile:
A party may specify an additional or different address or addresses by writing
mailed or delivered to the other parties as aforesaid. All such notices and
other communications shall be effective upon receipt.
SECTION 4. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York (without giving effect to
the conflict of laws provisions thereof, other than Sections 5-1401 and 5-1402
of the New York General Obligations Law).
(b) Assignments. This Agreement may not be assigned by any party
without the express written consent of each other party. Any assignment made in
violation of this Agreement shall be null and void.
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(c) Amendments. Amendments of this Agreement shall be in writing
signed by each party hereto.
(d) Survival, Etc. The indemnity and contribution agreements contained
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Indemnified
Party, (ii) the issuance of the Securities or (iii) any termination of this
Agreement.
(e) Counterparts. This Agreement may be executed in counterparts by
the parties to this Agreement, and all such counterparts shall constitute one
and the same instrument.
(f) Severability. In the event that any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
the parties hereto agree that such holding shall not invalidate or render
unenforceable any other provision hereof. The parties hereto further agree that
the holding by any court of competent jurisdiction that any remedy pursued by
any party hereto is unavailable or unenforceable shall not affect in any way the
ability of such party to pursue any other remedy available to it.
(g) Headings. The headings of Sections contained in this Agreement are
provided for convenience only. They form no part of this Agreement and shall not
affect its construction or interpretation. Unless otherwise indicated, all
references to Sections in this Agreement refer to the corresponding Sections of
this Agreement.
(h) Trial by Jury Waived. Each party hereby waives, to the fullest
extent permitted by law, any right to a trial by jury in respect of any
litigation arising directly or indirectly out of, under or in connection with
this Agreement or any of the transactions contemplated thereunder. Each party
hereto (A) certifies that no representative, agent or attorney of any party
hereto has represented, expressly or otherwise, that it would not, in the event
of litigation, seek to enforce the foregoing waiver and (B) acknowledges that it
has been induced to enter into this Agreement by, among other things, this
waiver.
(i) Limited Liability. No recourse under this Agreement shall be had
against, and no personal liability shall attach to, any officer, employee,
director, affiliate or shareholder of any party hereto, as such, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise in respect hereof, it being expressly agreed and
understood that this Agreement is solely a corporate obligation of each party
hereto, and that any and all personal liability, either at common law or in
equity, or by statute or constitution, of every such officer, employee,
director, affiliate or shareholder for breaches of any party hereto of any
obligations hereunder is hereby expressly waived as a condition of and in
consideration for the execution and delivery of this Agreement.
(j) The Controlling Person of any Indemnified Party shall be an
intended third-party beneficiary of this Agreement; provided, however, that any
Controlling Person shall appoint its related Indemnified Party as its exclusive
agent for, on behalf of, and in the name of such Controlling Person, to exercise
any and all rights of such Controlling Person under this Agreement, without
prejudice to the right of any Controlling Party to retain additional counsel at
its own expense, as provided in this Agreement. In no event, however, will an
Indemnifying Party be required to bear the expense of such additional counsel on
the grounds that
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representation of both the Indemnified Party and its related Controlling Person
by the same counsel would be inappropriate due to actual or potential differing
interests between them.
(k) Entire Agreement. This Agreement sets forth the entire agreement
between the parties with respect to the subject matter hereof and supersedes and
replaces any agreement or understanding that may have existed between the
parties prior to the date hereof in respect of such subject matter.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Please signify your acceptance of this Agreement by signing below and
returning to the undersigned. This Agreement shall be effective as of the date
first stated above upon delivery of written acceptance by all parties hereto.
WASHINGTON MUTUAL BANK
a federally chartered savings bank
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WASHINGTON MUTUAL BANK FSB
a federally chartered savings bank
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[PURCHASER]
a
----------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[DEPOSITOR]
a
----------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
[UNDERWRITER]
a
----------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Exhibit A-1 to Indemnification Agreement
SELLER INFORMATION
Exhibit A-2 to Indemnification Agreement
SERVICER INFORMATION
