Exhibit 10.3(C)
EXECUTION COPY
REGULATION AB AMENDMENT TO
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This REGULATION AB AMENDMENT TO MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
dated as of January 1, 2006 (the "Amendment") among WASHINGTON MUTUAL BANK, a
savings bank organized under the laws of the United States (formerly known as
Washington Mutual Bank, FA and successor to Washington Mutual Bank, a Washington
state chartered stock savings bank), as a seller, WASHINGTON MUTUAL BANK fsb, a
savings bank organized under the laws of the United States, as a seller
(collectively, the "Sellers" and, each individually, a "Seller"), and BANK OF
AMERICA, NATIONAL ASSOCIATION, a national banking association, as purchaser (the
"Purchaser"), is made with respect to the Mortgage Loan Purchase and Sale
Agreement (Amended and Restated) dated as of July 1, 2003, as amended by the
Master Assignment, Assumption and Recognition Agreement dated as of July 1, 2004
(the "Original Purchase Agreement") among the Sellers and the Purchaser.
Capitalized terms used in this Amendment without definition have the meanings
assigned to them in the Original Purchase Agreement.
The parties wish to amend the Original Purchase Agreement in order to
facilitate compliance by the Purchaser 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 Purchase 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.
Permitted Reconstitution: A Whole Loan Transfer or Securitization
Transaction that complies with the provisions of Section 6.1(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 such
Seller and such Person that contemplated that such Person would underwrite
mortgage loans from time to time, for sale to such Seller, in accordance
with underwriting guidelines designated by such 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 such Seller within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at the time
such Mortgage Loans were originated, used by such 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 such Seller on a consistent basis
for use by lenders in originating mortgage loans to be purchased by such
Seller; and (iv) such 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
one or both of the Sellers, as applicable, and the Purchaser 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. Sections 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.
2
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 mortgage loans consisting, in whole
or in part, of some or all of the Mortgage Loans.
Seller Information: The information provided by a Seller pursuant to
Section 6.4(a) and (b) with respect to such Seller.
Servicing Agreement: That certain Servicing Agreement (Amended and
Restated) dated as of July 1, 2003 between Washington Mutual Bank (formerly
known as Washington Mutual Bank, FA), as servicer, and the Purchaser, as
owner, as amended.
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.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, from which a Seller acquired Mortgage Loans.
(b) Article 1 of the Original Purchase 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.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
(c) Article 1 of the Original Purchase Agreement is amended by deleting the
following definitions: "Pass-Through Transfer" and "Seller's Information."
(d) Article 6 of the Original Purchase Agreement is amended and restated in
its entirety to read as follows:
3
ARTICLE
RECONSTITUTIONS; REGULATION AB COMPLIANCE
SECTION 6.1 RECONSTITUTIONS
(a) Upon 15 days' prior written notice to the applicable Seller(s) and
the Servicer, the Purchaser 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 purchased on any Closing Date, retaining the
Servicer as servicer or subservicer, if a master servicer is employed;
provided, however, that neither the Purchaser nor any of its permitted
assignees may effect a Reconstitution with respect to Mortgage Loans in any
Loan Pool if as a result thereof: (i) more than three (3) investors would
own Mortgage Loans in such Loan Pool at any one time (unless otherwise
stated in the related Commitment Letter), (ii) any single investor would
own Mortgage Loans from such Loan Pool having an aggregate Unpaid Principal
Balance immediately after such Reconstitution of less than $5,000,000,
(iii) the applicable Seller(s) and the Servicer are not provided with
initial drafts of all documents for which such Sellers and Servicer are
requested to become a party in connection with such Reconstitution at least
10 days prior to the related settlement date (the "Subsequent Transfer
Settlement Date"), (iv) a final list of the Mortgage Loans intended to be
subject to such Reconstitution is not provided to the Servicer at least 2
Business Days prior to the related Subsequent Transfer Settlement Date, (v)
any Mortgage Loan is subject to more than one Reconstitution in any given
Due Period, unless the Purchaser and the initial transferee from the
Purchaser each give appropriate notice pursuant to this section or (vii)
the related Subsequent Transfer Settlement Date occurs on or prior to the
related Servicing Cut-off Date.
(b) The Purchaser shall reimburse the applicable Seller(s) for all
reasonable out-of-pocket expenses, including attorneys' fees, incurred by
the Seller(s) in connection with any Reconstitution.
(c) In connection with each Permitted Reconstitution, each of the
Sellers, as applicable, shall: (i) provide the Purchaser with information
and appropriate verification of information in its possession or control as
may reasonably be necessary in order to effect such Permitted
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, in connection with each Permitted
Reconstitution, upon the request of Purchaser, the applicable Seller shall
provide an officer's certificate to the effect that the representations and
warranties made by such Seller in Section 3.2 are true and correct as of
the date of such certificate, provided that nothing has occurred during the
period commencing on the applicable
4
Closing Date and ending on the date of such certificate which would make
such representations and warranties untrue.
SECTION 6.2 RECONSTITUTION AGREEMENTS
In connection with each Permitted Reconstitution, the applicable
Seller(s) shall execute and deliver a Reconstitution Agreement containing
terms and conditions that are consistent with the terms and conditions set
forth herein 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.
SECTION 6.3 INTENT OF THE PARTIES; REASONABLENESS
The Purchaser and each Seller acknowledge and agree that the purpose
of Sections 6.4, 6.5 and 6.6 is to facilitate compliance by the Purchaser
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 Sellers acknowledge 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 Purchaser 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). Each Seller
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 Purchaser 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 Purchase
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, each Seller
shall cooperate fully with the Purchaser to deliver to the Purchaser
(including any of its assignees or designees) and any Depositor, any and
5
all statements, reports, certifications, records and any other information
necessary in the good faith determination of the Purchaser or any Depositor
to permit the Purchaser or such Depositor to comply with the provisions of
Regulation AB, together with such disclosures relating to such Seller, any
Third-Party Originator and the Mortgage Loans, reasonably believed by the
Purchaser or any Depositor to be necessary in order to effect such
compliance.
The Purchaser (including any of its assignees or designees) shall
cooperate with the applicable Seller(s) by providing timely notice of
requests for information under these provisions and by reasonably limiting
such requests to information required, in the Purchaser's reasonable
judgment, to comply with Regulation AB.
SECTION 6.4 INFORMATION TO BE PROVIDED BY THE SELLERS
In connection with any Securitization Transaction, each Seller shall
(i) within five Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause each Third-Party Originator to provide), in writing and in form and
substance reasonably satisfactory to the Purchaser and such Depositor, the
information and materials specified in paragraphs (a) and (b) of this
Section 6.4, and (ii) as promptly as practicable following notice to or
discovery by such Seller, provide to the Purchaser and any Depositor (in
writing and in form and substance reasonably satisfactory to the Purchaser
and such Depositor) the information specified in paragraph (c) of this
Section.
(a) If so requested by the Purchaser or any Depositor, each Seller
shall provide such information regarding (i) such Seller, as originator of
the Mortgage Loans (including as an acquirer of Mortgage Loans from a
Qualified Correspondent), or (ii) each Third-Party Originator, as is
requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117 and 1119 of Regulation AB. Such information shall include, at a
minimum:
(i) the originator's form of organization;
(ii) a description of the originator's origination program and
how long the originator has been engaged in originating residential
mortgage loans, which description shall include a discussion of the
originator's experience in originating mortgage loans of a similar type as
the Mortgage Loans; information regarding the size and composition of the
originator's origination portfolio; and information that may be material,
in the good faith judgment of the Purchaser or any Depositor, to an
analysis of the performance of the Mortgage Loans, including the
6
originators' credit-granting or underwriting criteria for mortgage loans of
similar type(s) as the Mortgage Loans and such other information as the
Purchaser or any Depositor may reasonably request for the purpose of
compliance with Item 1110(b)(2) of Regulation AB;
(iii) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against such Seller and
each Third-Party Originator; and
(iv) a description of any affiliation or relationship between
such Seller, each Third-Party Originator and any of the following parties
to a Securitization Transaction, as such parties are identified to such
Seller by the Purchaser or any Depositor in writing not less than five
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;
(H) any enhancement or support provider; and
(I) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor, each Seller
shall provide (or, as applicable, cause each Third-Party Originator to
provide) Static Pool Information with respect to the mortgage loans (of a
similar type as the Mortgage Loans, as reasonably identified by the
Purchaser as provided below) originated by (i) such Seller, if such Seller
is an originator of Mortgage Loans (including as an acquirer of Mortgage
Loans from a Qualified Correspondent) and/or (ii) each Third Party
Originator. Such Static Pool Information shall be prepared by a Seller (or
Third Party Originator) on the basis of its reasonable, good faith
interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation AB.
To the extent that there is reasonably available to a Seller (or Third
Party Originator) Static Pool Information with respect to more than one
mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant
to this paragraph. The content of such Static Pool Information may be in
the form customarily provided by a Seller, and need not be customized for
the Purchaser or any Depositor. Such Static Pool Information for each
vintage origination year or prior securitized pool, as applicable, shall be
presented in increments no less frequently than quarterly over the life of
the mortgage loans included in the vintage origination year or prior
securitized pool. The most recent periodic
7
increment must be as of a date no later than 135 days prior to the date of
the prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The Static Pool
Information shall be provided in an electronic format that provides a
permanent record of the information provided, such as a portable document
format (pdf) file, or other such electronic format reasonably required by
the Purchaser or the Depositor, as applicable.
Promptly following notice or discovery of a material error in Static
Pool Information provided by a Seller pursuant to the immediately preceding
paragraph (including an omission to include therein information required to
be provided pursuant to such paragraph), such Seller shall provide (or, as
applicable, cause any Third Party Originator to provide) corrected Static
Pool Information to the Purchaser or any Depositor, as applicable, in the
same format in which Static Pool Information was previously provided to
such party by such Seller (or Third Party Originator).
If so requested by the Purchaser or any Depositor, each Seller shall
provide (or, as applicable, cause each Third Party Originator to provide),
at the expense of the requesting party, (to the extent of any additional
incremental expense associated with delivery pursuant to this Agreement)
such agreed-upon procedures letters or comparable statements of certified
public accountants reasonably acceptable to the Purchaser or Depositor, as
applicable, pertaining to Static Pool Information relating to prior
securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to each of such
Seller's or Third-Party Originator's originations or purchases, to calendar
months commencing prior to January 1, 2006, as the Purchaser or such
Depositor shall reasonably request. Such statements and letters shall be
addressed to and be for the benefit of such parties as the Purchaser or
such Depositor shall designate, which may include, by way of example, any
Sponsor, any Depositor and any broker dealer acting as underwriter,
placement agent or initial purchaser with respect to a Securitization
Transaction. Any such statement or letter may take the form of a standard,
generally applicable document accompanied by a reliance letter authorizing
reliance by the addressees designated by the Purchaser or such Depositor.
(c) 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, each Seller shall (or shall cause each Third-Party
Originator to) (i) notify the Purchaser and any Depositor in writing of (A)
any material litigation or governmental proceedings pending against such
Seller or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between such Seller or any Third-Party
8
Originator and any of the parties specified in clause (iv) of Section
6.4(a) (and any other parties identified in writing by the requesting
party) with respect to such Securitization Transaction, and (ii) provide to
the Purchaser and any Depositor a description of such proceedings,
affiliations or relationships.
SECTION 6.5 INDEMNIFICATION
(a) With respect to any Securitization Transaction for which Seller's
Information is included in a related Disclosure Document, the applicable
Seller(s), on the one hand, and the Purchaser, 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 to the Servicing Agreement,
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.
(b) Each Seller shall indemnify the Purchaser, the Depositor, each
Sponsor, each Issuing Entity 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 and
each Person who controls any of such parties (within the meaning of Section
20 of the Exchange Act) and their respective present and former directors,
officers and employees, and shall hold each of them harmless from and
against any losses damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon any
untrue statement of a material fact contained in any information delivered
in written or electronic form by such Seller pursuant to Section 6.4(c).
SECTION 6.6 DESIGNATION OF A MASTER SERVICER
Notwithstanding anything to the contrary contained in this Agreement,
but subject to the terms of the Servicing Agreement, the Purchaser shall
have the right, in its sole discretion, upon 30 days' prior written notice
to the Sellers, to appoint and designate a master servicer (the "Master
Servicer"), as master servicer of any Mortgage Loans subject to a Permitted
Reconstitution. Upon such appointment, the Sellers shall correspond and
communicate solely with the Master Servicer, as if the
9
Master Servicer were the "Purchaser" hereunder. Furthermore, the Master
Servicer shall have all rights as designee of the Purchaser to enforce the
representations and warranties, and all other covenants and conditions set
forth in this Agreement, and the Sellers shall follow and shall be entitled
to rely on the instructions of the Master Servicer under this Agreement as
if such instructions were the instructions of the Purchaser. The Master
Servicer shall have the right to give any waivers or consents required or
allowed under this Agreement on behalf of the Purchaser, and the Sellers
shall have the right to rely on all such waivers and consents. The Master
Servicer shall be empowered to enter into and execute and deliver any
amendments or modifications to this Agreement as the Purchaser's designee
hereunder, and such amendments or modifications shall be binding upon the
Purchaser as if the Purchaser had executed and delivered the same.
(e) The Purchaser and Sellers agree that, notwithstanding anything in the
Original Purchase Agreement to the contrary, no Seller shall be entitled to
substitute a Qualified Substitute Mortgage Loan for a Deleted Mortgage Loan
pursuant to Section 3.3 of the Original Purchase 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 Purchase Agreement to "this Agreement" or otherwise
to the Purchase Agreement shall hereafter be deemed to refer to the Purchase
Agreement as amended hereby. Each reference to the Purchase Agreement in the
Servicing 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 Purchase Agreement as amended hereby. The Purchaser and the Sellers hereby
agree that the provisions of this Amendment shall be applicable to all Mortgage
Loans being serviced under the Servicing Agreement and included in a
Securitization Transaction closing on or after January 1, 2006, regardless
whether the Mortgage Loans were purchased by the Purchaser prior to the date
hereof.
10
SECTION 2.3 RATIFICATION
The Purchase 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.
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]
11
The Sellers and the Purchaser have caused this Regulation AB Amendment to
Purchase Agreement to be executed as of the date set forth above.
SELLERS:
WASHINGTON MUTUAL BANK
a federally chartered savings bank
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Senior Vice President
WASHINGTON MUTUAL BANK FSB
a federally chartered savings bank
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Senior Vice President
PURCHASER:
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 Mortgage Loan Purchase
and Sale Agreement]
