Exhibit 10.2(A)
EXECUTION COPY
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MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
(AMENDED AND RESTATED)
AMONG
WASHINGTON MUTUAL BANK, XX
XXXXXXXXXX MUTUAL BANK FSB
WASHINGTON MUTUAL BANK
(SELLERS)
BANC OF AMERICA MORTGAGE CAPITAL CORPORATION
(PURCHASER)
AND
BANK OF AMERICA, N.A.
(AS SUCCESSOR IN INTEREST TO THE PURCHASER WITH RESPECT TO
CERTAIN MORTGAGE LOANS
PURCHASED PRIOR TO THE DATE HEREOF)
DATED AS OF JULY 1, 2003,
AMENDING AND RESTATING THE MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
DATED AS OF JANUARY 1, 2002
RESIDENTIAL FIRST LIEN MORTGAGE LOANS
FLOW DELIVERY PROGRAM
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TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINITIONS.......................................................... 2
ARTICLE 2. SALE AND CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF FILES;
PAYMENT OF PURCHASE PRICE; DELIVERY OF MORTGAGE LOAN DOCUMENTS;
RECORDATION OF ASSIGNMENTS OF MORTGAGE............................... 10
Section 2.1 Sale and Conveyance of Mortgage Loans; Possession
of Files.............................................. 10
Section 2.2 Delivery of Mortgage Loan Documents Regarding Mortgage
Loans; Recordation of Assignments of Mortgage......... 11
Section 2.3 Purchaser's Due Diligence Review...................... 14
ARTICLE 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLERS CONCERNING
MORTGAGE LOANS; REPURCHASE OF MORTGAGE LOANS......................... 14
Section 3.1 Individual Mortgage Loans............................. 14
Section 3.2 Seller Representations................................ 24
Section 3.3 Repurchase and Substitution........................... 25
ARTICLE 4. COVENANTS............................................................ 28
Section 4.1 Cooperation........................................... 28
Section 4.2 Representations, Warranties, Covenants and
Indemnities........................................... 29
Section 4.3 Delivery of Documents................................. 29
Section 4.4 Consents and Approvals................................ 29
Section 4.5 Confidentiality....................................... 29
Section 4.6 Servicing............................................. 30
ARTICLE 5. CONDITIONS TO PURCHASE............................................... 30
Section 5.1 Effective Date and Closing Date Documents............. 30
Section 5.2 Correctness of Representations and Warranties......... 30
Section 5.3 Compliance With Conditions............................ 30
Section 5.4 Costs................................................. 30
ARTICLE 6. PASS-THROUGH AND WHOLE LOAN TRANSFERS................................ 31
Section 6.1 Pass-Through Transfers or Whole Loan Transfers........ 31
Section 6.2 Designation of a Master Servicer...................... 33
ARTICLE 7. MISCELLANEOUS PROVISIONS............................................. 34
Section 7.1 Amendment............................................. 34
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Section 7.2 Recordation of Agreement.............................. 34
Section 7.3 Governing Law......................................... 34
Section 7.4 General Interpretive Principles....................... 34
Section 7.5 Reproduction of Documents............................. 35
Section 7.6 Notices............................................... 35
Section 7.7 Severability of Provisions............................ 36
Section 7.8 Exhibits.............................................. 37
Section 7.9 Counterparts; Successors and Assigns.................. 37
Section 7.10 Effect of Headings.................................... 37
Section 7.11 Other Agreements Superseded........................... 37
Section 7.12 Survival.............................................. 37
Section 7.13 Intention of the Parties.............................. 38
Section 7.14 Nonsolicitation....................................... 38
Section 7.15 Obligations of the Sellers............................ 39
Section 7.16 Attorneys' Fees....................................... 39
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EXHIBITS & SCHEDULES
Exhibit A-1 CONTENTS OF COLLATERAL FILE
Exhibit A-2 CONTENTS OF CREDIT FILE
Exhibit B TERM SHEET
SCHEDULE I TO TERM SHEET -- MORTGAGE LOAN SCHEDULE(S)
Exhibit C FORM OF ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
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MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
(AMENDED AND RESTATED)
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (AMENDED AND RESTATED) (this
"Agreement") dated as of July 1, 2003, which amends and restates the Mortgage
Loan Purchase and Sale Agreement, dated as of January 1, 2002, is among Banc of
America Mortgage Capital Corporation, a North Carolina corporation, as purchaser
(the "Purchaser"), Bank of America, N.A. ("BANA"), a national banking
association, as successor and assign of the Purchaser with respect to certain
mortgage loans sold to the Purchaser prior to the date hereof, and Washington
Mutual Bank, FA, a savings association organized under the laws of the United
States, Washington Mutual Bank fsb, a savings bank organized under the laws of
the United States, and Washington Mutual Bank, a Washington state chartered
stock savings bank, as sellers (each, "Seller" and, collectively, the
"Sellers").
PRELIMINARY STATEMENT
WHEREAS, in reliance upon the representations, warranties and covenants of
each Seller contained here, the Purchaser desires to purchase from each Seller,
from time to time, and each Seller desires to sell to the Purchaser, from time
to time, certain residential first lien mortgage loans, subject to the terms and
conditions of this Agreement, without recourse and exclusive of the related
servicing rights;
WHEREAS, the Purchaser and the Sellers desire to prescribe in this
Agreement the manner of sale by each Seller and purchase by the Purchaser of
such mortgage loans on or after the date hereof;
WHEREAS, pursuant to the Original Purchase Agreement, the Purchaser has
purchased from the Sellers, and the Sellers have sold to the Purchaser, without
recourse and on a servicing-retained basis, certain residential, first lien
mortgage loans prior to the date hereof;
WHEREAS, pursuant to various Assignment, Assumption and Recognition
Agreements executed from time to time prior to the date hereof, the Purchaser
has assigned its interest in such mortgage loans and the Original Purchase
Agreement as it relates to such mortgage loans to BANA;
WHEREAS, BANA and the Sellers desire to amend and restate in this Agreement
the terms of the sale by each Seller and purchase by the Purchaser of such
mortgage loans prior to the date hereof;
WHEREAS, the Purchaser and the Sellers desire that Washington Mutual Bank,
FA service all mortgage loans purchased by the Purchaser from the Sellers
before, on or after the date hereof in the manner described in a related
Servicing Agreement (Amended and Restated); and
WHEREAS, following its purchase of the mortgage loans from the Sellers, the
Purchaser may desire to sell some or all of the mortgage loans to one or more
purchasers as a whole loan transfer or a public or private mortgage-backed
securities transaction;
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NOW, THEREFORE, the Purchaser, BANA and the Sellers agree as follows:
ARTICLE 1.
DEFINITIONS
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Acceptable Servicing Procedures: The procedures, including prudent
collection and loan administration procedures, and the standard of care employed
by prudent mortgage servicers which service mortgage loans of the same type as
the Mortgage Loans in the jurisdictions in which the related Mortgaged
Properties are located. Such standard of care shall not be lower than that the
Servicer customarily employs and exercises in servicing and administering
similar mortgage loans for its own account and shall be in full compliance with
all federal, state and local laws, ordinances, rules and regulations.
Account: As defined in the Servicing Agreement.
Agreement: This Mortgage Loan Purchase and Sale Agreement (Amended and
Restated), including all exhibits, attachments and schedules hereto, and all
amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor thereto.
Appraised Value: With respect to any Mortgage Loan, the lesser of (i) the
value set forth on the appraisal made in connection with the origination of the
related Mortgage Loan as the value of the related Mortgaged Property, or (ii)
the purchase price paid for the Mortgaged Property, provided, however, that in
the case of a Mortgage Loan originated in connection with the refinance of a
mortgage loan, such value shall be based solely on the appraisal made in
connection with the origination of such Mortgage Loan and provided, further,
that in the case of a Streamlined Mortgage Loan, such value shall be based
solely on the appraisal made in connection with the origination of the mortgage
loan being refinanced.
ARM Loan: A Mortgage Loan as to which the related Mortgage Note provides
that the Mortgage Interest Rate may be adjusted periodically.
Assignment of Mortgage: An assignment of mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under and complying with
the laws of the jurisdiction wherein the related Mortgaged Property is located
to reflect of record the transfer of the Mortgage Loan to the assignee named
therein.
BANA: Bank of America, N.A., as successor in interest to the Purchaser with
respect to certain Mortgage Loans purchased prior to the date of this Agreement.
Breaching Seller: As defined in Section 3.3(b).
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Business Day: Any day other than (i) a Saturday or Sunday or (ii) a day on
which banking or savings and loan institutions in the States of Washington,
California or New York are authorized or obligated by law or executive order to
be closed.
Closing Date: With respect to any Loan Pool, the date on which the
Purchaser purchases the Mortgage Loans included in such Loan Pool.
Code: The Internal Revenue Code of 1986, as amended from time to time, or
any successor statute thereto.
Collateral Documents: With respect to any Mortgage Loan, the mortgage loan
documents pertaining to such Mortgage Loan which are specified in EXHIBIT A-1
attached hereto and any additional mortgage documents pertaining to such
Mortgage Loan required to be added to the related Collateral File pursuant to
the terms of this Agreement.
Collateral File: With respect to any Mortgage Loan, a file pertaining to
such Mortgage Loan that contains each of the related Collateral Documents.
Commitment Letter: With respect to each Loan Pool, a commitment letter
entered into between one or more Sellers and the Purchaser that provides for the
purchase of Mortgage Loans pursuant to the terms of this Agreement and sets
forth the purchase price for and certain other terms and conditions of the sale
and purchase of such Mortgage Loans.
Coop Ownership Interests: With respect to any Cooperative Loan, the
ownership interest in a single Cooperative Apartment, including (i) the shares
issued by the cooperative housing corporation, (ii) the leasehold interest in
the Cooperative Apartment and (iii) all attendant right, title and interest
thereto.
Cooperative Apartment: A dwelling unit in a multi-dwelling building owned
or leased by a cooperative housing corporation, which unit the Mortgagor has an
exclusive right to occupy pursuant to the terms of a proprietary lease in
accordance with the laws of the state in which the building is located.
Cooperative Loan: A Mortgage Loan evidenced by a Mortgage Note and secured
by a first lien against the Coop Ownership Interests in a Cooperative Apartment.
Credit File: With respect to any Mortgage Loan, a file pertaining to such
Mortgage Loan which contains the mortgage loan documents described on EXHIBIT
A-2 attached hereto together with the credit documentation relating to the
origination of such Mortgage Loan and copies of the Collateral Documents, which
file shall be retained by the Servicer and may be maintained on microfilm or any
other comparable medium
Custodial Agreement: That certain Custodial Agreement dated as of January
1, 2002, between the Purchaser as owner and Washington Mutual Bank fsb, as the
initial Custodian.
Custodian: With respect to the Mortgage Loans in any Loan Pool, the
custodian designated by the Purchaser or its successor in interest to act as the
initial custodian (as set forth in the related Commitment Letter) or any
successor custodian.
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Customer Information: All personal, nonpublic information about the
Mortgagors that is supplied on behalf of the Mortgagors and is maintained by a
party hereto.
Cut-off Date: As to each Mortgage Loan purchased on a particular Closing
Date, the cut-off date specified in the Commitment Letter relating to the
purchase and sale of the related Loan Pool.
Cut-off Date Principal Balance: As to each Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the close of business on the
applicable Cut-off Date, after deduction and application of all payments of
principal due on or before such Cut-off Date, whether or not received.
Deleted Mortgage Loan: A Mortgage Loan that is removed from a Loan Pool and
replaced with a Qualified Substitute Mortgage Loan as set forth in Section 3.3.
Disclosure Document: As defined in Section 6.1(d).
Due Date: With respect to any Mortgage Loan, the day of the month on which
Monthly Payments on such Mortgage Loan are due, exclusive of any days of grace,
which day shall be the first day of the month unless otherwise specified on the
related Mortgage Loan Schedule.
Due Period: The period beginning on the first day of any month and ending
on the last day of such month.
Effective Date: July 1, 2003, amending and restating a prior agreement
dated as of January 1, 2002.
Effective Date Documents:
(A) two fully-executed counterparts of this Agreement;
(B) two fully executed counterparts of the Servicing Agreement;
(C) with respect to each Closing Date, two fully-executed counterparts of
any contemporaneously executed Term Sheet, with the related Mortgage
Loan Schedule attached; and
(D) two fully executed counterparts of the Custodial Agreement (previously
delivered).
Escrow Account: As defined in the Servicing Agreement.
Escrow Holdback Mortgage Loan: A Mortgage Loan subject to an escrow
withhold agreement for the express purpose of completing designated improvements
on the Mortgaged Property.
Xxxxxx Xxx: Xxxxxx Xxx (formerly known as the Federal National Mortgage
Association) and any successor thereto.
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Xxxxxxx Mac: Xxxxxxx Mac (formerly known as The Federal Home Loan Mortgage
Corporation) and any successor thereto.
Gross Margin: With respect to any ARM Loan, the fixed percentage amount set
forth in the related Mortgage Note and described in the related Mortgage Loan
Schedule, which amount is added to the Index in accordance with the terms of the
related Mortgage Note to determine on each Interest Rate Adjustment Date the
Mortgage Interest Rate for such Mortgage Loan.
HUD: The United States Department of Housing and Urban Development, or any
successor thereto.
Indemnified Party: As defined in Section 6.1(d).
Index: With respect to any ARM Loan, the index set forth in each adjustable
rate Mortgage Note, which index is added to the Gross Margin to determine the
Mortgage Interest Rate on each Interest Rate Adjustment Date.
Initial Closing Date: January 28, 2002.
Initial Rate Cap: As to each ARM Loan, the maximum increase or decrease in
the Mortgage Interest Rate on the first Interest Rate Adjustment Date.
Interest Rate Adjustment Date: With respect to any ARM Loan, the date
specified in the related Mortgage Note as the date on which the Mortgage
Interest Rate for the related Mortgage Loan is subject to adjustment.
Interest Rate Decrease Maximum: With respect to any ARM Loan, the maximum
amount, if any, that the Mortgage Interest Rate can adjust downwards on any
Interest Rate Adjustment Date, determined in accordance with the related
Mortgage Note.
Interest Rate Increase Maximum: With respect to any ARM Loan, the maximum
amount, if any, that the Mortgage Interest Rate can adjust upwards on any
Interest Rate Adjustment Date, determined in accordance with the related
Mortgage Note.
Loan-to-Value Ratio: With respect to each Mortgage Loan, the original
principal balance of such Mortgage Loan divided by the Appraised Value of the
related Mortgaged Property.
Loan Pool: A pool of Mortgage Loans sold by one or more Sellers to the
Purchaser on any Closing Date pursuant to the terms of this Agreement and the
related Commitment Letter (which Mortgage Loans shall be identified on the
related Mortgage Loan Schedule delivered pursuant to this Agreement).
Master Servicer: As defined in Section 6.2.
Maturity Date: With respect to each Mortgage Loan, the maturity date of the
related Mortgage Note, as specified therein.
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Maximum Mortgage Interest Rate: With respect to any ARM Loan, the maximum
rate of interest that may be charged pursuant to the related Mortgage Note.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and any successor thereto.
MERS Loan: Any Mortgage Loan registered on the MERS(R) System and for which
MERS is listed as the record mortgagee or beneficiary on the related Mortgage or
assignment thereof.
MERS(R) System: The system of electronically recording transfers of
Mortgages maintained by MERS.
MIN: The mortgage identification number issued to each MERS Loan.
Minimum Mortgage Interest Rate: With respect to any ARM Loan, the minimum
rate of interest, if any, that may be charged pursuant to the related Mortgage
Note.
MOM Loan: A Mortgage Loan that was registered on the MERS(R) System at the
time of origination thereof and for which MERS appears as the record mortgagee
or beneficiary on the related Mortgage.
Monthly Payment: The scheduled monthly payment of principal and interest on
a Mortgage Loan which is payable by a Mortgagor from time to time under the
related Mortgage Note.
Mortgage: The mortgage, deed of trust, or other instrument creating a first
lien on or first priority ownership interest in real property or, in the case of
a Cooperative Loan, the security agreement or other instrument creating a first
lien on the related Coop Ownership Interests, in each case, including any
riders, addenda, assumption agreements, or modifications relating thereto.
Mortgage Interest Rate: With respect to each Mortgage Loan, the annual rate
at which interest accrues on such Mortgage Loan; and, as to each Mortgage Loan,
as of the related Closing Date, the interest rate set forth in the related
Mortgage Loan Schedule.
Mortgage Loan: An individual mortgage loan that is sold pursuant and
subject to this Agreement, each such mortgage loan being identified on the
related Mortgage Loan Schedule. The term Mortgage Loan includes a Cooperative
Loan.
Mortgage Loan Schedule: With respect to the Mortgage Loans included in a
Loan Pool to be sold pursuant to this Agreement on any Closing Date, the
schedule or schedules of Mortgage Loans agreed to by the parties that describes
such Mortgage Loans, which schedule shall set forth at least the following
information with respect to each Mortgage Loan to the extent applicable: (1) the
Mortgage Loan identifying number, (2) xxx xxxxxx xxxxxxx, xxxx, xxxxx and zip
code of the Mortgaged Property, (3) the Mortgage Interest Rate as of the
applicable Cut-off Date, (4) the Net Rate as of the applicable Cut-off Date, (5)
the amount of the Monthly Payment as of the applicable Cut-off Date, (6) with
respect to each ARM Loan, (A) the Index,
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(B) the Gross Margin, (C) the Maximum Mortgage Interest Rate, (D) the Minimum
Mortgage Interest Rate, (E) the first Interest Rate Adjustment Date after
origination, (F) the first Interest Rate Adjustment Date immediately following
the Closing Date for such Mortgage Loan, (G) the Initial Rate Cap and (H) the
periodic rate cap, (7) the scheduled or stated Maturity Date, (8) the Cut-off
Date Principal Balance of the Mortgage Loan, (9) the Loan-to-Value Ratio at
origination, (10) the Mortgagor's first and last name, (11) a code indicating
the occupancy status of the Mortgaged Property (i.e., owner-occupied, non-owner,
second home), (12) the type of residential dwelling constituting the Mortgaged
Property, (13) the original months to maturity, (14) the original date of the
Mortgage Loan and the remaining months to maturity from the Cut-off Date based
on the original amortization schedule, (15) the date on which the first Monthly
Payment was due on the Mortgage Loan, (16) the amount of the Monthly Payment at
origination, (17) the last Due Date on which a Monthly Payment was actually
applied to the Unpaid Principal Balance, (18) the original principal amount of
the Mortgage Loan, (19) a code indicating the purpose of the loan (i.e.,
purchase financing, rate/term refinancing, cash-out refinancing), (20) the
Mortgage Interest Rate at origination, (21) a code indicating whether the
Mortgage Loan is an ARM Loan or a fixed rate Mortgage Loan, (22) a Primary
Mortgage Insurance Policy insurer code, percent and policy number (if
applicable), (23) the Appraised Value of the Mortgaged Property, (24) the sale
price of the Mortgaged Property, if applicable, (25) a code indicating if the
Mortgage Loan is subject to a prepayment fee, (26) the Servicing Fee Rate, (27)
a code indicating the negative amortization percentage, if applicable, (28) if
the Due Date is other than the first day of the month, the Due Date, (29) a code
indicating the document type (e.g., full, alt, etc.), (30) a credit score or
mortgage score, (31) the Mortgagor's social security number, (32) the Seller,
(33) a code indicating if the Mortgage Loan is a MERS Loan, (34) with respect to
each MERS Loan, the MIN, and (35) a code indicating the form of ownership (i.e.
fee simple, leasehold or co-op). "Mortgage Loan Schedule" is the collective
reference to each of the Mortgage Loan Schedules delivered by the Seller to the
Purchaser pursuant to this Agreement.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage, including any riders or addenda thereto.
Mortgaged Property: The property securing a Mortgage Note pursuant to the
related Mortgage or, in the case of a Cooperative Loan the related Coop
Ownership Interests.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Rate: With respect to each Mortgage Loan, the annual rate at which
interest thereon shall be remitted to the Purchaser (in each case computed on
the basis of a 360-day year consisting of twelve 30-day months), which shall be
equal to the Mortgage Interest Rate less the Servicing Fee Rate.
Original Purchase Agreement: That certain Mortgage Loan Purchase and Sale
Agreement, dated as of January 1, 2002, among Washington Mutual Bank, FA,
Washington Mutual Bank fsb and Washington Mutual Bank, each as a seller, and
Banc of America Mortgage Capital Corporation, as purchaser.
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Original Servicing Agreement: That certain Servicing Agreement, dated as of
January 1, 2002, between Washington Mutual Bank, FA, as servicer, and Banc of
America Mortgage Capital Corporation, as owner.
Pass-Through Transfer: The sale or transfer of some or all of the Mortgage
Loans by the Purchaser to a trust to be formed as part of a publicly issued or
privately placed mortgage backed securities transaction.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Primary Mortgage Insurance Policy: With respect to each Mortgage Loan, the
policy of primary mortgage insurance (including all endorsements thereto) issued
with respect to such Mortgage Loan, if any, or any replacement policy.
Purchase Price: For each Mortgage Loan purchased hereunder, an amount equal
to the product of the Cut-off Date Principal Balance of such Mortgage Loan,
multiplied by the Purchase Price Percentage.
Purchase Price Percentage: For each Mortgage Loan included in a Loan Pool,
the percentage of par set forth in the related Commitment Letter that is used to
calculate the Purchase Price of each Mortgage Loan in such Loan Pool, subject to
any adjustments specified in the related Commitment Letter.
Purchaser: Banc of America Mortgage Capital Corporation, a North Carolina
corporation, and all successors in interest pursuant to Sections 6.1, 6.2 and
7.9 hereof.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to be
substituted by a Breaching Seller for a Deleted Mortgage Loan, which must have
the following qualities on the date of substitution, (i) have an outstanding
principal balance, after deduction of all scheduled payments due in the month of
substitution, not in excess of the outstanding principal balance of the Deleted
Mortgage Loan (the amount of any shortfall shall be deposited in the Account by
such Breaching Seller out of its own funds without right of reimbursement as
provided in Section 3.3(e)), (ii) have a current Mortgage Interest Rate not less
than and not more than 1% greater than the current Mortgage Interest Rate of the
Deleted Mortgage Loan, (iii) have a remaining term to maturity not greater than
and not more than one year less than that of the Deleted Mortgage Loan, (iv)
have a Net Rate not less than, and not more than 1% greater than the Net Rate of
the Deleted Mortgage Loan, (v) be of the same type as the Deleted Mortgage Loan
(i.e., if the Deleted Mortgage Loan is a fixed rate Mortgage Loan, the
substituted loan shall be a fixed rate Mortgage Loan, and if the Deleted
Mortgage Loan is an ARM Loan, the substituted loan shall be an ARM Loan which is
the same ARM type and with the same Mortgage Interest Rate caps, Index and Gross
Margin as the Deleted Mortgage Loan), and (vi) comply with each representation
and warranty respecting individual Mortgage Loans set forth in Section 3.1
hereof, provided, that for purposes of applying such representations and
warranties to each such Qualified Substitute Mortgage Loan, references in such
Sections to the related Closing Date shall be deemed to be references to the
date of substitution of such Qualified Substitute Mortgage
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Loan. If one or more Mortgage Loans are substituted for one or more Deleted
Mortgage Loans pursuant to Section 3.3, the amounts described in clause (i)
hereof shall be determined on the basis of the aggregate principal balances; the
Mortgage Interest Rate, the term to maturity and the Net Rate described in
clauses (ii)-(iv) hereof shall be determined on the basis of weighted average
Mortgage Interest Rates, original terms to maturity and Net Rates, respectively.
Repurchase Price: With respect to any Mortgage Loan, unless otherwise
specified in the related Commitment Letter, an amount equal to the sum of (a)
(i) if such repurchase occurs during the first twelve months following the
related Closing Date, (A) the Unpaid Principal Balance of such Mortgage Loan,
multiplied by (B) the Purchase Price Percentage, and (ii) if such repurchase
occurs after the first twelve months following the related Closing Date or after
such Mortgage Loan has been subject to a Pass-Through Transfer, the Unpaid
Principal Balance of such Mortgage Loan, and (b) 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 Purchaser to and including
the last day of the month in which such repurchase occurs and (c) with regard to
any Mortgage Loans subject to a Pass-Through Transfer, any costs and damages
actually incurred and paid by or on behalf of the related trust in connection
with any violation by such Mortgage Loan of the representation and warranty set
forth in 3.1(jj).
Seller: As the context requires, any of Washington Mutual Bank, FA,
Washington Mutual Bank fsb and/or Washington Mutual Bank, and their respective
assigns and successors in interest.
Seller's Information: As defined in Section 6.1(d).
Servicer: Washington Mutual Bank, FA, in its capacity as Servicer under the
Servicing Agreement, and any permitted successor to or assignee of any servicing
rights or obligations under the Servicing Agreement.
Servicing Agreement: That certain Servicing Agreement (Amended and
Restated) of even date herewith between the Purchaser as owner, the Servicer and
Bank of America, N.A. as successor to the Purchaser with respect to certain
Mortgage Loans.
Servicing Cut-off Date: As to each Mortgage Loan purchased on a Closing
Date, the last day of the Due Period in which such Closing Date occurs.
Servicing Fee: As defined in the Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, the annual rate at
which the Servicing Fee will be calculated, which annual rate is set forth in
the related Commitment Letter In the event that the Index and Gross Margin of an
ARM Loan are adjusted pursuant to the terms of the related Mortgage Note, the
Servicing Fee Rate for such ARM Loan shall be the annual rate of the Servicing
Fee in effect immediately prior to such adjustment.
Streamlined Mortgage Loan: A Mortgage Loan originated in connection with
the refinance of a mortgage loan pursuant to the related Seller's streamlined
loan documentation program then in effect.
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Subsequent Transfer Settlement Date: As defined in Section 6.1(a).
Term Sheet: A term sheet with respect to the Mortgage Loans purchased on a
Closing Date, in the form attached hereto as EXHIBIT B.
Unpaid Principal Balance: With respect to each Mortgage Loan that is not a
Qualified Substitute Mortgage Loan, as of any date of determination, (i) the
Cut-off Date Principal Balance, minus (ii) the principal portion of all payments
made by or on behalf of the Mortgagor after such Cut-off Date and received by
the Purchaser. With respect to each Mortgage Loan that is a Qualified Substitute
Mortgage Loan, as of any date of determination, (i) the outstanding principal
balance of such Mortgage Loan as of the close of business on the date of
substitution, after deduction and application of the principal portion of all
payments due on or before such date of substitution whether or not received,
minus (ii) the principal portion of all payments made by or on behalf of the
Mortgagor after such date of substitution and received by the Purchaser.
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage
Loans by the Purchaser to a third party, which sale or transfer is not a
Pass-Through Transfer.
ARTICLE 2.
SALE AND CONVEYANCE OF MORTGAGE LOANS;
POSSESSION OF FILES;
PAYMENT OF PURCHASE PRICE;
DELIVERY OF MORTGAGE LOAN DOCUMENTS;
RECORDATION OF ASSIGNMENTS OF MORTGAGE
SECTION 2.1 SALE AND CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF FILES
(a) On each Closing Date for any Loan Pool, upon the receipt of the
requisite consideration, the applicable Seller or Sellers shall deliver a Term
Sheet with respect to the Loan Pool. By such delivery, each Seller shall sell,
transfer, assign, set over, and convey to the Purchaser, without recourse, but
subject to the representations, warranties, terms and provisions of this
Agreement, all the right, title, and interest of the Seller in and to the
Mortgage Loans included in such Loan Pool, exclusive of the related servicing
rights.
(b) Pursuant to Section 2.2, the applicable Seller or Sellers will
deliver to the Custodian the documents comprising the Collateral File with
respect to each related Mortgage Loan included in a Loan Pool to be purchased by
the Purchaser. Such documents shall, prior to payment for the related Mortgage
Loan pursuant to Section 2.1(c) below, be held by the Custodian as custodian for
the applicable Seller or Sellers. The documents comprising each Collateral File
that are not required to be delivered to the Custodian pursuant to Section
2.2(a) and the documents comprising each Credit File shall, subject to payment
for the related Mortgage Loan pursuant to Section 2.1(c) below, be held in trust
by the Servicer for the benefit of the Purchaser as the owner thereof. The
Servicer's possession of such documents so held is at the will of the Purchaser,
and such holding and possession is in trust for the Purchaser as the owner
thereof and only for the purpose of servicing the Mortgage Loans. Upon payment
for the
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related Mortgage Loan pursuant to Section 2.1(c) below, the beneficial ownership
of each Mortgage Note, each Mortgage, and each of the other documents comprising
the Collateral File and the Credit File with respect to such Mortgage Loan is
and shall be vested in the Purchaser, and the ownership of all records and
documents with respect to such Mortgage Loan prepared by or which come into the
possession of the applicable Seller or Sellers or any agent or designee thereof
shall immediately vest in the Purchaser and shall be delivered to the Custodian
(in the case of the Collateral Documents) or the Servicer (in the case of the
Credit Files or any other documents) to hold the same in a custodial capacity
for Purchaser.
(c) In full consideration for the sale of each of the Mortgage Loans
pursuant to Section 2.1(a) hereof, and upon the terms and conditions of this
Agreement, on the related Closing Date the Purchaser shall pay to the applicable
Seller or Sellers by wire transfer of immediately available funds (i) the
applicable Purchase Price for each Mortgage Loan purchased on such Closing Date,
plus (ii) the amount of interest (computed, as to each Mortgage Loan, at the Net
Rate) that has accrued on the Cut-off Date Principal Balance of such Mortgage
Loans from the Cut-off Date to but not including the Closing Date.
(d) As of each Closing Date, the Purchaser shall own and be entitled
to receive with respect to each Mortgage Loan purchased on such Closing Date all
Monthly Payments and all other recoveries of principal and interest (computed,
as to each Mortgage Loan, at the Net Rate) due after the applicable Cut-off
Date, subject to the rights of the Servicer under the Servicing Agreement to
reimbursement for certain costs, expenses and advances incurred or made pursuant
thereto. All such amounts that are collected after the applicable Cut-off Date
through and including the related Closing Date shall be held and remitted by the
Servicer in accordance with the terms of the Servicing Agreement.
(e) On or before the Closing Date for any Loan Pool, the applicable
Seller or Sellers shall deliver to the Purchaser with the Term Sheet the related
Mortgage Loan Schedule, which shall be in hard copy or "read-only" electronic
format (as reasonably acceptable to such Seller and the Purchaser).
SECTION 2.2 DELIVERY OF MORTGAGE LOAN DOCUMENTS REGARDING MORTGAGE LOANS;
RECORDATION OF ASSIGNMENTS OF MORTGAGE
(a) Each Seller shall deliver or cause to be delivered to the
Custodian, with respect to each Mortgage Loan sold by such Seller hereunder, on
or before the date specified in the related Commitment Letter, each of the
following items or documents with respect to each such Mortgage Loan, all at
such Seller's expense:
(i) With respect to each Mortgage Loan (other than a Cooperative
Loan):
(A) (1) the original Mortgage Note, endorsed (on the
Mortgage Note or an allonge attached thereto) "Pay to the order of _____________
_______________________, without recourse," (or as otherwise specified in the
related Commitment Letter), and signed by facsimile signature in the name of
such Seller by an authorized officer, with all intervening
11
endorsements showing a complete, valid and proper chain of title from the
originator of such Mortgage Loan to such Seller;
(2) or a certified copy of the Mortgage Note (endorsed
as provided above) together with a lost note affidavit, providing
indemnification to the holder thereof for any losses incurred due to the fact
that the original Mortgage Note is missing.
(B) the original Mortgage, with evidence of recording
thereon, (and, in the case of a MOM Loan, with evidence of the MIN); provided
that (i) if the original Mortgage has been delivered for recording to the
appropriate public recording office of the jurisdiction in which the Mortgaged
Property is located but has not yet been returned to such Seller by such
recording office, such Seller shall, no later than 225 days following the
related Closing Date, deliver to the Custodian the original of such Mortgage,
with evidence of recording thereon, and (ii) if such Mortgage has been lost or
if such public recording office retains the original recorded Mortgage, such
Seller may deliver or cause to be delivered to the Custodian a photocopy of such
Mortgage certified by such public recording office to be a true and complete
copy of the original recorded Mortgage;
(C) unless such Mortgage Loan is a MERS Loan, the original
Assignment of Mortgage, from such Seller signed by original signature of an
authorized officer, in blank (or as otherwise specified in the related
Commitment Letter), which assignment shall be in form and substance acceptable
for recording (except for the insertion of the name of the assignee and the
recording information);
(D) unless such Mortgage Loan is a MOM Loan, originals of
all intervening Assignments of Mortgage, with evidence of recording thereon,
showing a complete chain of title from the originator to such Seller (or in the
case of a MERS Loan other than a MOM Loan, showing a complete chain of title
from the originator to MERS); provided that (i) if any original intervening
Assignment of Mortgage has been delivered for recording to the appropriate
public recording office of the jurisdiction in which the Mortgaged Property is
located but has not yet been returned to such Seller by such recording office,
such Seller shall, no later than 225 days following the related Closing Date,
deliver to the Custodian the original of such intervening Assignment of
Mortgage, with evidence of recording thereon, and (ii) if such intervening
Assignment of Mortgage has been lost or if such public recording office retains
the original recorded intervening Assignment of Mortgage, such Seller may
deliver or cause to be delivered to the Custodian a photocopy of such
intervening Assignment of Mortgage certified by such public recording office to
be a true and complete copy of the original recorded intervening Assignment of
Mortgage; and
(E) originals of all assumption and modification agreements,
if any, unless such originals are permanently retained by the applicable
recording office (in which event such Seller shall deliver to the Custodian a
photocopy of each such original, certified by the applicable public recording
office to be a true and complete copy of the original), and an endorsement to
the original policy of title insurance extending coverage to the date and time
of the recording of any such modification or assumption.
(ii) With respect to each Cooperative Loan, as applicable and as
12
required by the applicable laws of the state in which the related Cooperative
Agreement is located, copies of: (A) the proprietary lease, (B) the security
agreement, (C) the assignment of the proprietary lease, with all intervening
assignments showing a complete chain of title and an assignment thereof by such
Seller, (D) the original stock certificate evidencing the ownership of the
Cooperative Apartment endorsed or accompanied by a stock power relating to such
stock certificate executed in blank, (E) a recognition agreement in form
approved by Seller's underwriting guidelines, in substantially the same form as
the standard "AZTECH" form, (F) copies of the financing statement filed by the
applicable Seller as secured party and, if applicable, a filed UCC-3 assignment
of the subject security interest showing a complete chain of title, together
with an executed UCC-3 Assignment of such security interest by the Seller in a
form sufficient for filing, and (G) such other documents as are necessary for
the perfection of a lien against the related Coop Ownership Interests under
applicable law.
(b) In connection with the transfer of any MERS Loan pursuant to
Section 2.1 hereof, the Servicer shall cause the MERS(R) System to indicate that
such MERS Loan has been assigned to the Purchaser. The Purchaser may, in its
discretion, direct the Servicer to deliver for recording to the appropriate
public recording office of the jurisdiction in which the Mortgaged Property is
located, and cause to be duly recorded, any or all of the original Assignments
of Mortgage referred to in Section 2.2(a)(i)(C). The Purchaser shall pay all
recording fees relating to the recordation of the Assignments of Mortgage from
its own funds. If any such Assignment of Mortgage is returned unrecorded to a
Seller because of any defect therein, such Seller shall cause such defect to be
cured and such Assignment of Mortgage to be recorded in accordance with this
Section 2.2 within 30 days after the date on which the rejected document was
received by such Seller from the public recording office.
(c) Whenever a certified copy of a document certified by a Seller is
required to be delivered to the Purchaser pursuant to this Section 2.2, the
following form of certification is permitted: "Certified true, correct and
complete copy of the original. [Name of Seller], By _________________, Its
_________________."
(d) Promptly following receipt thereof, but in no event later than 225
days after the related Closing Date, such Seller shall deliver to the Custodian
the following documents with respect to each Mortgage Loan included in the Loan
Pool purchased on such Closing Date to the extent not previously delivered to
the Custodian: (i) the original Mortgage, with evidence of recording thereon,
and (ii) unless such Mortgage Loan is a MOM Loan, all original intervening
Assignments of Mortgage, with evidence of recording thereon. If any original
Mortgage or intervening Assignment of Mortgage has been delivered for recording
to the appropriate public recording office of the jurisdiction in which the
related Mortgaged Property is located and such recording office retains such
original document, or if an original Mortgage or intervening Assignment of
Mortgage has been lost, then Seller shall deliver to the Custodian in lieu of
such original document a photocopy certified by such recording office to be a
true and correct copy of such original. In the event that a Seller does not
comply with the delivery requirements set forth in this Section 2.2, the related
Mortgage Loan shall, upon the request of the Purchaser, be repurchased by such
Seller at the Repurchase Price and in the manner specified in Section 3.3(b).
Notwithstanding the foregoing, a Seller shall not be deemed to be in breach of
this Agreement if such Seller fails to deliver to the Custodian within the time
period specified above any of the documents described in this Section 2.2(d) and
provides evidence to the
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Custodian that such failure is due solely to the failure of the applicable
recorder's office to return a Collateral Document that was properly submitted
for recordation. Such Seller shall use reasonable efforts to obtain such
original recorded document or copy of the original showing recording information
certified by the appropriate recording office to be a true and complete copy of
the recorded original as soon as practicable.
(e) If requested by the Purchaser, the Servicer shall, at Purchaser's
sole expense, create an imaged copy on CD ROM of the documents contained in the
Credit File of any Mortgage Loan and deliver, or cause to be delivered, each
such imaged copy to the Custodian or the Purchaser.
SECTION 2.3 PURCHASER'S DUE DILIGENCE REVIEW
With respect to each Loan Pool, the Purchaser shall be entitled to conduct
a due diligence review in order to ensure that the Mortgage Loans included in
such Loan Pool meet the requirements set forth in the related Commitment Letter
and this Agreement. Such due diligence review shall be conducted in accordance
with the timetable and any additional terms and conditions set forth in the
related Commitment Letter. The Purchaser's due diligence review shall not result
in a waiver of or impair or diminish the rights of the Purchaser under this
Agreement with respect to a breach of representations or warranties of the
applicable Seller or Sellers.
ARTICLE 3.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE SELLERS CONCERNING MORTGAGE LOANS;
REPURCHASE OF MORTGAGE LOANS
SECTION 3.1 INDIVIDUAL MORTGAGE LOANS
Each of the Sellers hereby, severally and not jointly, represents and
warrants to and covenants to and agrees with the Purchaser that, as to each
Mortgage Loan sold by such Seller hereunder, as of the related Closing Date:
(a) The information with respect to such Mortgage Loan set forth on
the related Mortgage Loan Schedule has all relevant data fields completed and
otherwise is true and correct in all material respects.
(b) The Mortgage and the Mortgage Note is not assigned or pledged to
any Person and, immediately prior to the transfer thereof to the Purchaser
pursuant to Section 2.1, the Seller had good and marketable title thereto. The
Seller is the sole owner and holder of such Mortgage Loan free and clear of any
and all liens, claims, encumbrances, participation interests, equities, pledges,
charges, or security interests of any nature and has full right and authority,
subject to no interest or participation of, or agreement with, any other party,
to sell and assign such Mortgage Loan pursuant to this Agreement. Upon the
transfer thereof to the Purchaser pursuant to Section 2.1, the Seller will have
taken all actions necessary on its part to be taken so that the Purchaser will
have good indefeasible title to, and will be sole owner of, the Mortgage and the
Mortgage Note, free and clear of any and all liens, claims, encumbrances,
participation
14
interests, equities, pledges, charges, or security interests of any nature.
(c) With respect to each Mortgage Loan (other than a Cooperative
Loan), (i) the Mortgage is a valid, subsisting and enforceable first lien on the
Mortgaged Property, including all buildings, fixtures, installations and
improvements to the Mortgaged Property, and the Mortgaged Property is free and
clear of all encumbrances and liens having parity with or priority over the
first lien of the Mortgage except for (A) the lien of current real property
taxes and assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements, mineral right reservations and other
matters of public record as of the date of recording of such Mortgage, such
exceptions generally being acceptable under prudent mortgage lending standards
and specifically reflected in the appraisal made in connection with the
origination of such Mortgage Loan or specifically referred to in the mortgagee's
policy of title insurance and (C) other matters to which like properties are
commonly subject that do not materially interfere with the value (as determined
by the Appraised Value), use, enjoyment or marketability of the Mortgaged
Property and (ii) there are no security agreements, pledged accounts, chattel
mortgages, or equivalent documents related to the Mortgage.
(d) The terms of the Mortgage and the Mortgage Note have not been
impaired, waived, altered, or modified in any respect, except by a written
instrument which has been recorded, if necessary, to protect the interest of the
Purchaser, each of which is a part of the Collateral File and which has been
delivered to the Custodian. The substance of any such alteration or modification
is reflected on the related Mortgage Loan Schedule.
(e) No instrument of release, waiver, alteration, or modification has
been executed in connection with such Mortgage Loan, and no Mortgagor has been
released, in whole or in part, except in connection with an assumption
agreement, which is part of the Collateral File and has been delivered to the
Custodian, and the terms of which are reflected in the related Mortgage Loan
Schedule.
(f) There is no default, breach, violation, or event of acceleration
existing under the Mortgage or the Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute such a default, breach, violation, or event of acceleration,
and neither the Seller, nor to the best of the Seller's knowledge, any prior
seller or servicer, has waived any such default, breach, violation, or event of
acceleration. All taxes, governmental assessments (including assessments payable
in future installments), insurance premiums, leasehold payments, or ground rents
which previously became due and owing in respect of or affecting the related
Mortgaged Property have been paid, or an escrow of funds has been established
for the items identified in the related Mortgage Loan Schedule in an amount
sufficient to pay for every such item which remains unpaid and which has been
assessed but is not yet due and payable. The Seller has not advanced funds, or
induced, solicited, or knowingly received any advance of funds by a party other
than the Mortgagor, directly or indirectly, for the payment of any amount
required by the Mortgage or the Mortgage Note. No foreclosure action has been
commenced with respect to such Mortgage Loan.
(g) The Mortgaged Property is free of material damage or waste and in
good repair. There is no proceeding pending or, to the best of the Seller's
knowledge, threatened for the total or partial condemnation of the Mortgaged
Property and no notice of any such pending or
15
threatened proceeding has been received so as to adversely impair the value or
marketability of the Mortgaged Property.
(h) There are no mechanics' or similar liens or claims which have been
filed for work, labor, or material (and no rights are outstanding that under law
could give rise to such lien) which are, or may be, liens prior or equal to the
lien of the related Mortgage, which are not insured against by the related
mortgagee's policy of title insurance.
(i) Unless such Mortgage Loan is an Escrow Holdback Mortgage Loan, all
of the improvements which were included for the purpose of determining the
Appraised Value of the Mortgaged Property were completed at the time that such
Mortgage Loan was originated and lie wholly within the boundaries and building
restriction lines of such Mortgaged Property. No improvements on adjoining
properties encroach upon the Mortgaged Property. No improvement located on or
being part of the Mortgaged Property is in violation of any applicable zoning
law or regulation, subdivision law or ordinance.
(j) The Seller is (or, if the Seller did not originate the Mortgage
Loan, the originator, during the period in which it held and disposed of such
interest, was): (i) in compliance with any and all applicable licensing
requirements of the laws of the state wherein the Mortgaged Property is located
and (ii)(A) organized under the laws of such state, (B) qualified to do business
in such state, (C) a federal savings and loan association or national bank
having principal offices in such state, (D) not doing business in such state, or
(E) not required to qualify to do business in such state.
(k) No Monthly Payment with respect to such Mortgage Loan is
delinquent as of the related Closing Date. For purposes of the prior sentence,
"delinquent" means that a scheduled Monthly Payment was not received by the time
the next Monthly Payment was due and such scheduled Monthly Payment remains
unpaid. All payments required to be made under the related Mortgage and Mortgage
Note through and including the related Cut-off Date, have been made. Unless
otherwise stated in the Commitment Letter, not more than one payment required to
be made under the related Mortgage and Mortgage Note has been late and has
remained unpaid through its next Due Date (excluding any applicable grace
period) during the period specified in the related Commitment Letter, and if no
such period is specified, during the twelve months immediately preceding the
related Cut-off Date.
(l) There are no custodial agreements in effect adversely affecting
the right or ability of the Seller to make the deliveries specified in Section
2.2(a) or Section 2.2(d). Each of the documents with respect to such Mortgage
Loan specified in Section 2.2(a), in Exhibit A-1 hereto or in the Collateral
File, is genuine, true and correct and has not been altered or modified in any
way except as noted in the Collateral File, and each is duly executed and in due
and proper form. Each of the documents with respect to such Mortgage Loan
specified in Exhibit A-2 hereto or in the Credit File is genuine, true and
correct and has not been altered or modified in any way except as noted in the
Credit File and as reflected on the related Mortgage Loan Schedule.
(m) The Mortgage Note and the Mortgage are genuine, and each is the
legal, valid and binding obligation of the maker thereof and each party assuming
liability therefor,
16
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other similar
laws affecting the enforcement of creditors' rights generally and except that
the equitable remedy of specific performance and other equitable remedies are
subject to the discretion of the courts. All parties to the Mortgage Note and
the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage
and convey the estate therein purported to be conveyed, and the Mortgage Note
and the Mortgage have been duly and properly executed by such parties or
pursuant to a valid power-of-attorney that has been recorded with the Mortgage.
(n) The transfer of the Mortgage Note and the Mortgage as and in the
manner contemplated by this Agreement is sufficient fully to transfer to the
Purchaser all right, title and interest of the Seller thereto as note holder and
mortgagee or trust deed beneficiary. The Mortgage has been duly assigned and the
Mortgage Note has been duly endorsed as provided in Section 2.2(a). The
Assignment of Mortgage delivered to the Purchaser pursuant to Section
2.2(a)(i)(C) is in recordable form except for the insertion of the name of the
assignee and recording information and is acceptable for recording under the
laws of the applicable jurisdiction.
(o) Any and all requirements of any federal, state, or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity, or disclosure
laws applicable to such Mortgage Loan have been complied with. The consummation
of the transactions contemplated by this Agreement will not cause the violation
of any such laws. The Seller shall maintain in its possession evidence of
compliance with all such requirements and shall deliver such evidence to the
Purchaser's regulator upon demand, subject to the Seller's reasonable steps to
protect proprietary business information and to comply with all applicable laws.
(p) Unless such Mortgage Loan is an Escrow Holdback Mortgage Loan, the
proceeds of such Mortgage Loan have been fully disbursed. There is no
requirement for, and the Seller shall not make any, future advances under the
terms of the Mortgage Loan. Any future advances made prior to the applicable
Cut-off Date have been consolidated with the principal balance secured by the
Mortgage, and such principal balance, as consolidated, bears a single interest
rate and single repayment term reflected on the related Mortgage Loan Schedule.
Unless such Mortgage Loan is subject to negative amortization, the Unpaid
Principal Balance as of the applicable Cut-off Date does not exceed the original
principal amount of such Mortgage Loan. Unless such Mortgage Loan is an Escrow
Holdback Mortgage Loan, any and all requirements as to completion of any on-site
or off-site improvements and as to disbursements of any escrow funds therefor
have been complied with, and certificates of completion with respect thereto are
contained in the related Credit File. All costs, fees and expenses incurred in
making, or closing or recording such Mortgage Loan have been paid or will be
paid in the ordinary course of business.
(q) Such Mortgage Loan (unless it is a Cooperative Loan) is covered by
an ALTA mortgage title insurance policy acceptable to Seller, with, in the case
of an ARM Loan, an adjustable rate mortgage endorsement, substantially in the
form of ALTA Form 6.1 or 6.2, or such other generally used and acceptable form
of policy and applicable endorsements acceptable under the Seller's underwriting
guidelines. Each such policy affirmatively insures ingress and
17
egress and insures against encroachments by or upon the Mortgaged Property. Each
such policy was issued on the date of the origination of each related Mortgaged
Loan by a title insurer acceptable under Seller's underwriting guidelines and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, insuring the Seller, and its successors and assigns, as to the first
priority lien of the Mortgage in the original principal amount of such Mortgage
Loan. Each such policy has been duly and validly endorsed to the Purchaser or
the assignment to the Purchaser of the Seller's interest does not require the
consent of or notification to the insurer, and such mortgage title insurance
policy is in full force and effect. Where required by law or regulation, the
Mortgagor has been given the opportunity to choose the carrier of the required
mortgage title insurance. No claims have been made under such policy and the
Seller has taken no action that would impair the enforceability of such policy.
(r) All buildings and other improvements upon the Mortgaged Property
are insured against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located,
pursuant to insurance policies conforming to the requirements of Section 2.10 of
the Servicing Agreement and issued by an insurer acceptable under Seller's
underwriting guidelines. If the Mortgaged Property is in an area then identified
on a flood hazard boundary map or flood insurance rate map issued by the Federal
Emergency Management Agency as having special flood hazards (and such flood
insurance is available), a flood insurance policy is in effect meeting the
requirements of the current guidelines of the Federal Insurance Administration
with an insurance carrier acceptable to Seller. Each individual insurance policy
has been validly issued and is in full force and effect. The Seller has caused
to be performed all acts required to preserve the rights and interests of the
Purchaser in all insurance policies required by this Agreement, including,
without limitation, notification of insurers, and assignment of policies or
interests therein. Each individual insurance policy contains a standard
mortgagee clause naming the Seller, and its successors and assigns, as mortgagee
and loss payee. All premiums due thereon have been paid. The Mortgage obligates
the Mortgagor to maintain all such insurance at the Mortgagor's cost and
expense, and upon the Mortgagor's failure to do so, authorizes the servicer or
the owner of the Mortgage to obtain and maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor. No claims have been made under such policies since origination of the
Mortgage Loan, and the Seller has taken no action that would impair the coverage
of any such insurance policy, the benefits of any endorsement or the validity,
binding effect and enforceability of the foregoing.
(s) There is no valid offset, defense, counterclaim or right of
rescission as to the related Mortgage Note or Mortgage, including the obligation
of the Mortgagor to pay the unpaid principal of or interest on such Mortgage
Note. The operation of any of the terms of such Mortgage Note or Mortgage, or
the exercise of any right thereunder, will not render either the Mortgage Note
or the Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, recoupment, counterclaim or defense, including, without
limitation, the defense of usury, and no such right of rescission, set-off,
recoupment, counterclaim or defense has been asserted with respect thereto. Such
Mortgage Loan is not subject to any pending bankruptcy, insolvency,
reorganization or moratorium. If such Mortgage Loan is an ARM Loan, all the
applicable terms of the Mortgage Note pertaining to adjustments of the Mortgage
Interest Rate and the Monthly Payments and payment adjustments in connection
therewith are enforceable and will not affect the priority of the Mortgage lien.
If such Mortgage Loan is an
18
ARM Loan, the related Mortgage Note has been timely and appropriately adjusted,
if such adjustment is required, and the respective Mortgagor timely and
appropriately advised. All such adjustments have been made in compliance with
applicable law and in accordance with the terms of the Mortgage Loan documents.
(t) Such Mortgage Loan was originated by (i) the Seller, (ii) a
savings and loan association, savings bank, commercial bank, credit union,
insurance company or similar institution that is supervised and examined by a
Federal or state authority or (iii) a mortgage banker approved by the Secretary
of HUD.
(u) Principal payments on such Mortgage Loan commenced or are required
to commence no more than two months after funds were disbursed in connection
with such Mortgage Loan. Unless such Mortgage Loan is subject to negative
amortization as indicated on the related Mortgage Loan Schedule, the Mortgage
Note requires a Monthly Payment which is sufficient to fully amortize the
original principal balance over the remaining term thereof and to pay interest
at the Mortgage Interest Rate.
(v) Such Mortgage Loan is a residential mortgage loan having an
original term to maturity as set forth on the related Mortgage Loan Schedule,
and if no such term is specified in the related Mortgage Loan Schedule, the term
to maturity does not exceed forty years, with interest payable in arrears on the
first day of each month (or such other day of the month as may be noted on the
related Mortgage Loan Schedule). On the related Closing Date, and if such
Mortgage Loan is an ARM Loan, until the next Interest Rate Adjustment Date, the
Mortgage Interest Rate is as set forth on the related Mortgage Loan Schedule. If
such Mortgage Loan is an ARM Loan, the Mortgage Interest Rate is subject to
adjustment periodically on each Interest Rate Adjustment Date to a new Mortgage
Interest Rate (rounded as provided in the related Mortgage Note) equal to the
then current Index plus the Gross Margin as specified on the related Mortgage
Note, subject to the Maximum Mortgage Interest Rate, the Minimum Mortgage
Interest Rate, the Interest Rate Increase Maximum and the Interest Rate Decrease
Maximum, in each case if and to the extent specified in the related Mortgage
Loan Schedule.
(w) The Mortgage Note is not and has not been secured by any
collateral, pledged account or other security, except the lien of the Mortgage.
(x) The Mortgage contains customary and enforceable provisions which
render the rights and remedies of the Purchaser thereof adequate for the
realization against the Mortgaged Property of the benefits of the security,
including (i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial foreclosure. There is no
homestead, dower, curtesy or other exemption or right available to the Mortgagor
or any other Person which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the Mortgage. The
Mortgage or Mortgage Note contains a provision that is, to the extent not
prohibited by federal or state law, enforceable and that provides for the
acceleration of the payment of the unpaid principal balance of the Mortgage Loan
in the event that the Mortgaged Property is sold or transferred without the
prior written consent of the mortgagee thereunder. The Mortgagor has not
notified the Seller and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Soldiers and Sailors Civil Relief Act of
1940, as amended, or any similar state law.
19
(y) If the Mortgage constitutes a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in such Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor.
(z) The Mortgaged Property consists of (x) a single parcel of real
property separately assessed for tax purposes, upon which is erected a detached
or an attached one-to-four-family residence, an individual condominium or an
individual unit in a planned unit development or (y) in the case of a
Cooperative Loan, the related Coop Ownership Interests, in each case that is in
compliance with Seller's applicable requirements. Such Mortgaged Property is not
(i) a property held in trust (other than a revocable inter vivos trust that is
in compliance with Xxxxxx Mae's requirements applicable to Seller, or, if the
Mortgaged Property is located in Illinois, an Illinois land trust), (ii) a
mobile home or manufactured home, or (iii) a recreational vehicle. Such Mortgage
Loan is not considered an agricultural loan. The related Mortgaged Property does
not consist of a log home, earthen home, underground home or a home which is
situated on more than twenty acres of property. To the best of the Seller's
knowledge, no portion of the related Mortgaged Property is being used for
commercial purposes.
(aa) The Loan-to-Value Ratio of such Mortgage Loan at the time of
origination was not greater than the Loan-to-Value Ratio set forth in the
related Mortgage Loan Schedule, and if no such percentage is specified, not
greater than 95%. If such Mortgage Loan had at the time of origination a
Loan-to-Value Ratio in excess of 80%, such Mortgage Loan is subject to a Primary
Mortgage Insurance Policy. All provisions of such Primary Mortgage Insurance
Policy have been and are being complied with, such policy is in full force and
effect, and all premiums due thereunder have been paid. No Mortgage Loan
requires payment of such premiums, in whole or in part, by the Purchaser. No
action has been taken and no event has occurred that has, or will result in the
exclusion from, denial of, or defense to coverage. Any Mortgage Loan subject to
a Primary Mortgage Insurance Policy obligates the Mortgagor to maintain the
Primary Mortgage Insurance Policy and to pay all related premiums and charges.
The mortgage interest rate for the Mortgage Loan as set forth on the Mortgage
Loan Schedule is net of any such insurance premium. None of the Mortgage Loans
are covered by a "lender-paid" Primary Mortgage Insurance Policy.
(bb) Such Mortgage Loan was underwritten generally in accordance with
the underwriting guidelines of the Seller in effect at the time such Mortgage
Loan was originated, which underwriting guidelines have been provided to the
Purchaser.
(cc) There exist no deficiencies in excess of $1000 with respect to
escrow deposits and payments, if such are required, for which customary
arrangements for repayment thereof have not been made or which the Seller
expects not to be cured, and no escrow deposits or payments of other charges or
payments due the Seller have been capitalized under the Mortgage or the Mortgage
Note.
(dd) Such Mortgage Loan does not have a shared appreciation feature or
other contingent interest feature, and such Mortgage Loan does not involve
buydowns, balloons, timeshares or graduated payments. If such Mortgage Loan is
an ARM Loan, it is not convertible
20
to a Mortgage Loan with a fixed Mortgage Interest Rate, unless otherwise
indicated in the related Mortgage Loan Schedule.
(ee) No tape, diskette, form, report or other document furnished or to
be furnished by Seller pursuant to this Agreement or in connection with the
transactions contemplated by this Agreement contains any statement that is
inaccurate in any material respect.
(ff) The origination, servicing and collection practices used with
respect to such Mortgage Loan (including without limitation, the establishment,
maintenance and servicing of the Escrow Accounts, if any), have been in all
material respects in accordance with applicable laws and regulations, the terms
of the Mortgage Loan documents, and Acceptable Servicing Procedures. With
respect to Escrow Accounts and escrow payments that the Seller is entitled to
collect, there are no deficiencies for which customary arrangements for
repayment have not been made. All escrow payments have been collected in all
material respects in compliance with applicable law, Acceptable Servicing
Procedures and the provisions of the Mortgage Loan documents. If such Mortgage
Loan is the subject of an escrow, escrow of funds is not prohibited by
applicable law and has been established in an amount sufficient to pay for every
escrowed item that remains unpaid and has been assessed but is not yet due and
payable. Any Escrow Account interest required to be paid pursuant to applicable
law has been properly paid and credited.
(gg) If such Mortgage Loan is an ARM Loan, the Mortgagor has received
and has executed, where applicable, prior to origination of the Mortgage Loan,
any disclosure and rescission materials required by applicable law with respect
to the making of the Mortgage Loan.
(hh) All amounts received with respect to such Mortgage Loan after the
applicable Cut-off Date and required to be remitted to the Purchaser are being
and shall be held by the Seller or Servicer in trust for the Purchaser and shall
be remitted to the Purchaser in accordance with the Servicing Agreement.
(ii) The appraisal report with respect to the Mortgaged Property
contained in the Credit File was signed by a qualified appraiser, who met the
requirements of the Seller's appraisal policies and procedures, who had no
interest, direct or indirect, in the Mortgaged Property or in any loan made on
the security thereof, and whose compensation is not affected by the approval or
disapproval of such application and who otherwise meets the requirements of
Seller. Such appraisal was made in accordance with the relevant provisions of
the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as in
effect on the date such Mortgage Loan was originated.
(jj) No Mortgage Loan is classified as a "high cost" or a "predatory"
loan as defined under the Home Ownership and Equity Protection Act of 1994, as
amended, or under any state, federal or local law, regulation or ordinance
applicable to the originating lender.
(kk) Unless otherwise stated in the related Mortgage Loan Schedule, if
such Mortgage Loan is an ARM Loan, it does not have an interest rate step-down
feature or similar feature that would result in a downwards adjustment to the
Mortgage Interest Rate, the Gross Margin or the Index as a result of the related
Mortgagor's payment method or payment history
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(e.g., no downwards adjustment in return for allowing the automatic withdrawal
of funds from the related Mortgagor's bank account to make the Monthly Payments
on such Mortgage Loan, or for making payments when due on such Mortgage Loan).
(ll) No misrepresentation or fraud has taken place on the part of the
Seller, the Mortgagor or any third party originator of such Mortgage Loan, or to
the Seller's knowledge, any other Person, including without limitation any
appraiser, any builder or developer, or any other party involved in the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan.
(mm) To the best of the Seller's knowledge, the Mortgaged Property is
lawfully occupied under applicable law. At the time of origination of such
Mortgage Loan, all inspections, licenses and certificates required to be made or
issued with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including but not limited to
certificates of occupancy, were made or obtained from the appropriate
authorities.
(nn) The Seller has no knowledge of any circumstances or condition
existing as of the related Closing Date with respect to the Mortgage, the
Mortgaged Property, the Mortgagor or the Mortgagor's credit standing that can
reasonably be expected to cause the Mortgage Loan to be an unacceptable
investment as of such Closing Date.
(oo) To the best of the Seller's knowledge, the Mortgaged Property is
in material compliance with all applicable environmental laws pertaining to
environmental hazards including, without limitation, asbestos, and neither the
Seller nor, to the Seller's knowledge, the related Mortgagor, has received any
notice of any violation or potential violation of such law.
(pp) Such Mortgage Loan was selected from among the outstanding
mortgage loans of the same type in the Seller's portfolio on the related Closing
Date and such selection was not made in a manner so as to affect adversely the
interests of the Purchaser.
(qq) Interest on each Mortgage Loan is calculated on the basis of a
360-day year consisting of twelve 30-day months.
(rr) If such Mortgage Loan is a Cooperative Loan, the security
instruments create a valid, enforceable and subsisting first priority security
interest in the related cooperative shares securing the related cooperative
note, subject only to (x) the lien of the related cooperative for unpaid
assessments representing the Mortgagor's pro rata share of payments for a
blanket mortgage, if any, current and future real property taxes, insurance
premiums, maintenance fees and other assessments to which like collateral is
commonly subject, and (y) other matters to which like collateral is commonly
subject and which do not materially interfere with the benefits of the security
intended to be provided; provided, however, that the related proprietary lease
for the Cooperative Apartment may be subordinated or otherwise subject to the
lien of a mortgage on the cooperative building.
(ss) If such Mortgage Loan is a Cooperative Loan, a search for filings
of financing statements has been made by a party competent to make the same,
which party is acceptable to Seller in accordance with its underwriting
guidelines and is qualified to do business
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in the jurisdiction where the cooperative unit is located; and such search has
not found anything which would materially and adversely affect the Cooperative
Loan.
(tt) If such Mortgage Loan is a Cooperative Loan, the related
cooperative corporation that owns title to the related cooperative apartment
building is a "cooperative housing corporation" within the meaning of Section
216 of the Code, and is in material compliance with applicable laws which, if
not complied with, could have a material adverse effect on the Mortgaged
Property
(uu) If such Mortgage Loan is a Cooperative Loan: (i) the terms of the
related proprietary lease or occupancy agreement is longer than the terms of the
Cooperative Loan, (ii) there is no provision in such proprietary lease or
occupancy agreement which requires the Mortgagor to offer for sale the
cooperative shares owned by such Mortgagor first to the Cooperative, and (iii)
there is no prohibition against pledging the shares of the cooperative
corporation or assigning the cooperative lease.
(vv) Each Mortgage Loan is a "qualified mortgage" within Section
860G(a)(3) of the Code.
(ww) If the Mortgage Loan is secured by a long-term residential lease:
(i) Any reference to the lease includes, as necessary, the lease
together with any related consents which have been obtained and which remain in
force.
(ii) The Mortgagor is the owner of a valid and subsisting
interest as tenant under the lease.
(iii) The terms of the lease permit the mortgaging of the
leasehold estate, the assignment of the lease and the acquisition by the holder
of the Mortgage of the rights of the lessee upon foreclosure or assignment in
lieu of foreclosure, or provide the holder of the Mortgage with substantially
similar protections.
(iv) The terms of the lease do not allow its termination upon the
lessee's default without the holder of the Mortgage being entitled to receive
written notice of such default and opportunity to cure the default.
(v) The terms of the lease do not allow the termination of the
lease in the event of damage or destruction as long as the Mortgage is in
existence.
(vi) The terms of the lease do not prohibit the holder of the
Mortgage from being insured (or receiving proceeds of insurance) under the
hazard insurance policy or policies relating to the Mortgaged Property.
(vii) The terms of the lease do not permit any increase in the
rent other than pre-established increases set forth in the lease.
(viii) The original term of the lease is not less than the term
of the related Mortgage.
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(ix) The Mortgaged Property is located in a jurisdiction in which
the use of leasehold estates in transferring ownership in
residential properties is a common practice.
SECTION 3.2 SELLER REPRESENTATIONS
Each of the Sellers hereby, severally and not jointly, represents and
warrants to the Purchaser as to such Seller as of the Initial Closing Date and
each Closing Date on which such Seller sells Mortgage Loans hereunder, and with
respect to the Mortgage Loans sold by such Seller, as of the related Closing
Date:
(a) If the Seller is Washington Mutual Bank, FA, the Seller is a
federally chartered savings association, duly organized, validly existing and in
good standing under the laws of the United States. If the Seller is Washington
Mutual Bank fsb, the Seller is a savings bank, duly organized, validly existing
and in good standing under the laws of the United States. If the Seller is
Washington Mutual Bank, the Seller is a Washington state chartered stock savings
bank, duly organized, validly existing and in good standing under the laws of
the State of Washington.
(b) The Seller has all licenses necessary to carry on its business as
now being conducted and is licensed, qualified and in good standing in the
states where the Mortgaged Properties are located if the laws of such states
require licensing or qualification in order to conduct business of the type
conducted by the Seller and to the extent necessary to ensure the enforceability
of each Mortgage Loan. The Seller has the corporate power and authority to hold
each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and
deliver this Agreement, the Term Sheet and all documents and instruments
executed and delivered pursuant hereto and to perform its obligations in
accordance therewith. The execution, delivery and performance of this Agreement
by the Seller and the consummation of the transactions contemplated hereby,
including, without limitation, the repurchase obligations hereinafter contained,
have been duly and validly authorized. This Agreement, the Term Sheet and all
other documents and instruments contemplated hereby, in each case assuming due
authorization, execution and delivery by the Purchaser, evidence the valid,
binding and enforceable obligations of the Seller, subject as to enforcement,
(i) to bankruptcy, insolvency, receivership, conservatorship, reorganization,
arrangement, moratorium, and other laws of general applicability relating to or
affecting creditor's rights, and (ii) to general principles of equity, whether
such enforcement is sought in a proceeding in equity or at law. All requisite
corporate action has been taken by the Seller to make this Agreement valid and
binding upon the Seller in accordance with its terms.
(c) No consent, approval, authorization, or order of any court or
governmental agency or body relating to the transactions contemplated by this
Agreement and the transfer of legal title to the Mortgage Loans to the
Purchaser, is required as to the Seller or, if required, such consent, approval,
authorization, or order has been or will, prior to the Effective Date, be
obtained, except for any recordations of Assignments of the Mortgages to or for
the benefit of the Purchaser pursuant to this Agreement.
(d) The consummation of the transactions contemplated by this
Agreement, including without limitation the transfer and assignment of the
Mortgage Loans to or for the
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benefit of the Purchaser pursuant to this Agreement and the fulfillment of or
compliance with the terms and conditions of this Agreement, are in the ordinary
course of business of the Seller and will not (i) result in the breach of any
term or provision of the charter or by-laws of the Seller, (ii) result in the
breach of any term or provision of, or conflict with or constitute a default
under, or result in the acceleration of any obligation under, any material
agreement, indenture, loan or credit agreement or other instrument to which the
Seller or its property is subject or (iii) result in the violation of any law,
rule, regulation, order, judgment, or decree to which the Seller or its property
is subject.
(e) There is no action, suit, proceeding or investigation pending or,
to the best of the Seller's knowledge, threatened against the Seller which,
either in any one instance or in the aggregate, is likely (in the Seller's
judgment) to result, in any material impairment of the right or ability of the
Seller to carry on its business substantially as now conducted, or which would
draw into question the validity of this Agreement or the Mortgage Loans, or of
any action taken or to be taken in connection with the obligations of the Seller
contemplated herein or therein, or which would be likely to impair materially
the ability of the Seller to perform its obligations hereunder or thereunder.
(f) The Servicer is an approved servicer of residential mortgage loans
for Xxxxxx Xxx and Xxxxxxx Mac, in good standing, with such facilities,
procedures and personnel necessary for the sound servicing of such mortgage
loans. No event has occurred, including but not limited to, a change in
insurance coverage, which would make Servicer unable to comply with eligibility
requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx
Mac.
(g) The Seller is a HUD approved mortgagee pursuant to Section 203 of
the National Housing Act. No event has occurred, including but not limited to a
change in insurance coverage, which would make the Seller unable to comply with
HUD eligibility requirements or which would require notification to HUD.
SECTION 3.3 REPURCHASE AND SUBSTITUTION
(a) It is understood and agreed that the representations and
warranties set forth in Sections 3.1 and 3.2 shall survive the sale of Mortgage
Loans by each Seller to the Purchaser and shall inure to the benefit of the
Purchaser, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or Assignment of Mortgage or the examination of any Collateral
File or Credit File.
(b) Upon discovery by a Seller (the "Breaching Seller") or the
Purchaser of a breach of any of the representations and warranties set forth in
Sections 3.1 or 3.2 made by the Breaching Seller that materially and adversely
affects the value of any Mortgage Loan or the interest of the Purchaser in any
Mortgage Loan sold by the Breaching Seller hereunder (or, in the case of the
representations and warranties set forth in Section 3.2, the value of the
Mortgage Loans or the interest of the Purchaser in the Mortgage Loans sold by
the Breaching Seller hereunder), the party discovering such breach shall give
prompt written notice to the other. The Breaching Seller shall use its best
efforts to promptly cure in all material respects any such breach or defect
within 90 days of the earlier of either discovery by or notice to the Breaching
25
Seller of such breach or defect, and, if such breach or defect cannot be or is
not cured within such 90-day period, the Breaching Seller shall, at the option
of the Purchaser, in the case of a breach of a representation and warranty set
forth in Section 3.1, repurchase the affected Mortgage Loan(s), and, in the case
of a breach of a representation and warranty set forth in Section 3.2,
repurchase either (1) all of the Mortgage Loans or (2) such of the Mortgage
Loans selected by the Purchaser so that, after such repurchase, such breach or
defect is cured in all material respects. Notwithstanding the foregoing, upon
discovery of a breach of any representation or warranty which would cause a
Mortgage Loan to be other than a "qualified mortgage" within Section 860G(a)(3)
of the Code, the Breaching Seller shall either cure or repurchase the affected
Mortgage Loan within 75 days. Any such repurchase shall be at a price equal to
the applicable Repurchase Price, shall occur on the next Monthly Remittance Date
(as defined in the Servicing Agreement) and shall be accomplished by deposit in
the Account of the amount of the Repurchase Price pursuant to Section 2.4(c) of
the Servicing Agreement. Notwithstanding the foregoing, if the Breaching Seller
discovers or receives notice of any such breach or defect, and if the affected
Mortgage Loan has not been subject to a Pass-Through Transfer, the Breaching
Seller may remove any such Mortgage Loan (a "Deleted Mortgage Loan"), rather
than repurchase any such Mortgage Loan as provided above, and substitute in its
place a Qualified Substitute Mortgage Loan(s). If the Breaching Seller has no
Qualified Substitute Mortgage Loan(s), then the Breaching Seller shall
repurchase the Mortgage Loan or Mortgage Loans, as the case may be, in the
manner provided in this Section 3.3(b).
(c) For each of the Qualified Substitute Mortgage Loans substituted
for a Deleted Mortgage Loan, the Breaching Seller shall deliver to the Custodian
the documents specified in Section 2.2(a), with the Mortgage Note endorsed as
required by Section 2.2(a) and, where applicable, original documents having
evidence of recording thereon. The Breaching Seller shall also take such actions
with respect to the documents pertaining to each such Qualified Substitute
Mortgage Loan as are required to be taken pursuant to Section 2.2(d) with
respect to the Mortgage Loans originally subject to this Agreement. For purposes
of applying the requirements of Section 2.2(d) to any Qualified Substitute
Mortgage Loan, references in such Section to the related Closing Date shall be
deemed to be references to the applicable date of substitution of such Qualified
Substitute Mortgage Loan. The Breaching Seller shall deposit in the Account the
Monthly Payment due on each Qualified Substitute Mortgage Loan in the month
following the date of such substitution (with the interest portion thereof
adjusted to the applicable Net Rate), and the Monthly Payment due with respect
to such Qualified Substitute Mortgage Loan in the month of substitution shall be
retained by the Breaching Seller. For the month of substitution, distributions
to the Purchaser shall include the Monthly Payment due on such Deleted Mortgage
Loan in the month of substitution, and the Breaching Seller shall thereafter be
entitled to retain all amounts subsequently received by the Breaching Seller in
respect of such Deleted Mortgage Loan. The Breaching Seller shall amend the
related Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage
Loan from the terms of this Agreement and the substitution of the Qualified
Substitute Mortgage Loan(s) and shall give written notice to the Purchaser that
such substitution has taken place, which notice shall have attached thereto a
copy of such amended Mortgage Loan Schedule in hard copy or "read-only"
electronic format (as reasonably acceptable to such Breaching Seller and the
Purchaser). Upon such substitution, each such Qualified Substitute Mortgage Loan
shall be subject to the terms of this Agreement in all respects, and the
Breaching Seller shall make and shall be deemed to have made, with respect to
such Qualified Substitute Mortgage Loan(s), as of the date of substitution,
26
the representations and warranties set forth in Sections 3.1 and 3.2 (and, for
purposes of applying such representations and warranties to each such Qualified
Substitute Mortgage Loan, references in such Sections to the related Closing
Date shall be deemed to be references to such date of substitution of such
Qualified Substitute Mortgage Loan).
(d) The Purchaser shall immediately take all steps necessary to effect
the reconveyance of any repurchased Mortgage Loan or Deleted Mortgage Loan,
including all documentation with respect thereto, to the Breaching Seller. The
Breaching Seller shall pay all costs and expenses incurred in connection with
the repurchase of any Mortgage Loan and the substitution for any Deleted
Mortgage Loan. If, in accordance with Section 3.3(b), a Breaching Seller
repurchases any MERS Loan or substitutes a Qualified Substitute Mortgage Loan
for any MERS Loan, the Servicer shall be authorized to (i) cause the MERS(R)
System to reflect such repurchase or substitution, as the case may be, or (ii)
cause MERS to remove the repurchased or replaced Mortgage Loan from registration
on the MERS(R) System and execute and deliver an Assignment of Mortgage to
reflect the transfer of such Mortgage Loan to the Breaching Seller or its
designee. The Breaching Seller shall bear any and all fees of MERS relating to
the actions authorized under this Section 3.3(d).
(e) For any month in which a Breaching Seller substitutes one or more
Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, such
Breaching Seller shall determine the amount, if any, by which the aggregate
outstanding principal balance of all such Qualified Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Unpaid Principal Balance
of all such Deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall shall
be distributed by the Breaching Seller on the Monthly Remittance Date (as
defined in the Servicing Agreement) following the date of the substitution
pursuant to Section 3.1 of the Servicing Agreement. Accordingly, pursuant to
Section 2.4(c) of the Servicing Agreement, the Breaching Seller shall deposit
from its own funds (and without any right of reimbursement therefor) into the
Account an amount equal to the amount of such shortfall.
(f) It is understood and agreed that the obligations of a Breaching
Seller set forth in this Section 3.3 constitute the sole remedies available to
the Purchaser respecting a breach of the representations and warranties by such
Breaching Seller set forth in Section 3.1 and Section 3.2.
(g) Any cause of action against a Breaching Seller relating to or
arising out of the breach of any representation and warranty made by such
Breaching Seller in Sections 3.1 and 3.2 shall accrue as to any Mortgage Loan
only upon (i) discovery of such breach by the Purchaser or notice thereof by
such Breaching Seller to the Purchaser, (ii) failure by such Breaching Seller to
cure such breach or repurchase or substitute a Qualified Substitute Mortgage
Loan(s) for such Mortgage Loan as specified above and (iii) demand upon such
Breaching Seller by the Purchaser for all amounts payable in respect of such
Mortgage Loan.
(h) In addition to the repurchase obligations set forth above in this
Section 3.3, each Seller shall also be required to repurchase, in the manner
provided in Section 3.3(b) but without any right of such Seller to cure, any
Mortgage Loan sold by such Seller hereunder that is paid in full on or prior to
the related Cut-off Date. Any such Mortgage
27
Loan will be repurchased by such Seller at the Repurchase Price.
(i) In addition to such cure, repurchase and substitution obligation,
each Seller shall indemnify the Purchaser and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses resulting from
the defense of any claim against the Purchaser by a third party resulting from a
breach of the representations and warranties made by such Seller in this Article
3 ; provided, that in no case is any Seller to be liable with respect to any
claims made against the Purchaser unless the Purchaser shall have notified said
Seller 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 the Purchaser, but failure to notify said Seller of any such
claim shall not relieve said Seller from any liability which it may have to the
Purchaser otherwise than on account of this indemnity.
Each relevant Seller shall be entitled to participate at its own expense in
the defense, or, if said Seller so elects, to assume the defense of any suit
brought to enforce any such liability, but, if said Seller elects to assume the
defense, such defense shall be conducted by counsel chosen by it. In the event
said Seller elects to assume the defense of any such suit and retain such
counsel, the Purchaser may retain additional counsel but shall bear the fees and
expenses of such counsel unless (i) said Seller and the Purchaser shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both said Seller
and the Purchaser and representation of both said Seller and the Purchaser by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that said Seller 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 based on this
indemnification and that all such fees and expenses shall be reimbursed as they
are incurred.
No relevant Seller shall be liable to indemnify any person for any
settlement of any claim effected without said Seller's consent, which consent
shall not be unreasonably withheld. Said Seller shall not, without the prior
written consent of the Purchaser, which consent shall not be unreasonably
withheld, effect any settlement of any pending or threatened proceeding in
respect of which the Purchaser is or could have been a party and indemnity is or
could have been sought hereunder by the Purchaser unless such settlement
includes an unconditional release of such the Purchaser from all liability on
claims that are the subject matter of such proceeding.
ARTICLE 4.
COVENANTS
SECTION 4.1 COOPERATION
Each of the Sellers and the Purchaser shall cooperate fully with each other
and their respective counsel and other representatives and advisors in
connection with the steps required to be taken as part of their respective
obligations under this Agreement.
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SECTION 4.2 REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITIES
Each representation, warranty, covenant and indemnity made by a Seller in
this Agreement as of each Closing Date shall survive the execution of this
Agreement and the expiration or termination of this Agreement.
SECTION 4.3 DELIVERY OF DOCUMENTS
On the dates specified herein, each party shall deliver to the appropriate
persons specified herein all documents and instruments provided for hereunder.
SECTION 4.4 CONSENTS AND APPROVALS
Each Seller shall obtain, at its sole cost and expense, prior to each
Closing Date, all consents and approvals required by law or pursuant to contract
to consummate the transactions contemplated hereby. All such consents will be
obtained without any cost or expense to the Purchaser and will be obtained
without any modification in the terms of any of the agreements relating to the
Mortgage Loans or the imposition of any provisions or conditions on the
Purchaser.
SECTION 4.5 CONFIDENTIALITY
(a) Each party understands that Customer Information and certain other
information that has been furnished and shall be furnished in connection with
the transactions contemplated under this Agreement is confidential and
proprietary, and each party agrees that, with respect to such information that
is marked or identified as confidential or proprietary, or required by
applicable law (including, without limitation, the Xxxxx-Xxxxx-Xxxxxx Act and
the regulations promulgated thereunder) to be kept confidential, such party
shall maintain the confidentiality of such information and shall not, without
the written consent of the party furnishing such information, disclose it to
third parties or use it except in connection with the transactions contemplated
by this Agreement and as permitted by applicable law or as permitted in Section
4.5(b) below. The parties agree that the following items, except as provided in
Section 4.5(b) below, shall be deemed confidential for purposes of this Section
4.5: (a) each completed Term Sheet and (b) each Commitment Letter. The parties
agree that the following items shall not be deemed confidential for purposes of
this Section 4.5, unless otherwise required by applicable law: (i) this
Agreement (except as provided above), (ii) each Mortgage Loan Schedule, (iii)
the underwriting guidelines of each Seller, (iv) information generally known in
the industry concerning a party, (v) information disclosed to the receiving
party by a third party and (vi) information that is required to be disclosed by
law, or regulatory or judicial process. These restrictions shall survive
termination of this Agreement.
(b) Notwithstanding any other provision of this Agreement (including
the confidentiality provision in Section 4.5(a)), each Seller, the Purchaser and
the Servicer (and each employee, representative or other agent of any of the
foregoing) may disclose to any and all persons, without limitation of any kind,
the "tax treatment" and "tax structure" (as those terms are defined in Treasury
Regulations Section 1.6011-4(c)) of all transactions covered by this Agreement
and all materials of any kind (including opinions or other tax analyses) that
are provided to any of the foregoing parties relating to such tax treatment and
tax structure.
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SECTION 4.6 SERVICING
Commencing on each Closing Date, the Mortgage Loans purchased by the
Purchaser on such Closing Date shall be serviced by the Servicer on behalf of
the Purchaser pursuant to the Servicing Agreement. Each of Washington Mutual
Bank and Washington Mutual Bank fsb, for purposes of the servicing of all
Mortgage Loans sold by it hereunder, hereby appoints Washington Mutual Bank, FA
as its agent and subservicer for purposes of acting as Servicer and servicing
such Mortgage Loans on behalf of the Purchaser pursuant to the Servicing
Agreement.
ARTICLE 5.
CONDITIONS TO PURCHASE
The obligations of the Purchaser to purchase any Mortgage Loans on any
Closing Date are subject to the satisfaction, as applicable, prior to or on the
Initial Closing Date and on such Closing Date (or on such other date as
expressly provided for herein) of the following conditions, any of which may be
waived in writing by Purchaser:
SECTION 5.1 EFFECTIVE DATE AND CLOSING DATE DOCUMENTS
On the Effective Date, the Purchaser shall have received the Effective Date
Documents duly executed by all signatories thereto. At each subsequent Closing
Date, the Purchaser and the applicable Sellers each will furnish to the other a
fully executed counterpart of the Term Sheet and the initial certification from
Custodian regarding its receipt of the Collateral Files for the related Mortgage
Loans.
SECTION 5.2 CORRECTNESS OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the applicable Seller or
Sellers under this Agreement shall be true and correct as of such Closing Date
(except as otherwise expressly provided for herein), and no event shall have
occurred which, with notice or the passage of time, would constitute a default
under this Agreement.
SECTION 5.3 COMPLIANCE WITH CONDITIONS
All other terms and conditions of this Agreement to be performed by the
applicable Seller or Sellers on or prior to such Closing Date (or such other
date as expressly provided for herein) shall have been duly complied with and
performed in all respects.
SECTION 5.4 COSTS
Except as otherwise provided in Section 2.2(b), each Seller shall pay all
costs, fees and expenses incurred in connection with the transfer and delivery
of the Mortgage Loans sold by such Seller under this Agreement for Seller's
accountants, attorneys and other service providers.
30
ARTICLE 6.
PASS-THROUGH AND WHOLE LOAN TRANSFERS
SECTION 6.1 PASS-THROUGH TRANSFERS OR WHOLE LOAN TRANSFERS
(a) Upon 15 days' prior written notice of intent to the applicable
Seller(s) and the Servicer, the Purchaser may, at its sole option, effect one or
more Whole Loan Transfers or Pass-Through Transfers with respect to some or all
of the Mortgage Loans in a Loan Pool purchased on any Closing Date, retaining
the Servicer as the servicer or subservicer if a Master Servicer is employed as
provided in Section 6.2; provided, however, that neither the Purchaser nor any
of its permitted assignees may effect a Whole Loan Transfer or a Pass-Through
Transfer with respect to Mortgage Loans in any Loan Pool if: (i) more than three
investors would own Mortgage Loans in such Loan Pool at any one time (unless
otherwise stated in the related Commitment Letter), (ii) any single third party
investor would own Mortgage Loans from such Loan Pool having an aggregate Unpaid
Principal Balance immediately after such Whole Loan Transfer or Pass-Through
Transfer 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
Whole Loan Transfer or Pass-Through Transfer at least 10 days prior to the
related settlement date (the "Subsequent Transfer Settlement Date"), (iv) a
final list of the Mortgage Loans subject to such Whole Loan Transfer or
Pass-Through Transfer 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 Whole Loan Transfer or Pass-Through Transfer in any
given Due Period, unless both the Purchaser and the initial transferee from the
Purchaser each give appropriate notice pursuant to this section, or (vi) the
related Subsequent Transfer Settlement Date occurs on or prior to the related
Servicing Cut-off Date.
(b) Purchaser shall reimburse each Seller for all reasonable
out-of-pocket expenses, including attorneys' fees, incurred by such Seller in
connection with each Whole Loan Transfer or Pass-Through Transfer.
(c) In connection with each Whole Loan Transfer or Pass-Through
Transfer permitted under this Section 6.1, 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 Whole Loan Transfer or Pass-Through Transfer (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
Whole Loan Transfer or Pass-Through Transfer permitted hereunder, 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 Closing Date and ending on the date of such certificate which would
make such representations and warranties untrue.
31
(d) With respect to any Whole Loan Transfer or Pass-Through Transfer
permitted under this Section 6.1 in which a prospectus, prospectus supplement or
other document purporting to disclose information related to certain Mortgage
Loans or the servicing thereof (a "Disclosure Document") is prepared in
connection therewith, and in which a substantial portion of the mortgage loans
in the related transaction consist of Mortgage Loans, each of the Sellers, as
applicable, shall:
(i) provide for inclusion as part of such Disclosure Document (A)
the regulatory status of such Seller and its affiliates, (B) an update of the
characteristics set forth on the Mortgage Loan Schedule for the applicable
Mortgage Loans sold by such Seller, (C) the origination and underwriting
criteria related to the applicable Mortgage Loans sold by such Seller, (D)
delinquency and foreclosure information of the type typically provided by such
Seller in connection with mortgage loans originated by such Seller and
securitized by third parties (the information referred to in this sentence, in
the form provided to Purchaser, being "Seller's Information") and (E) other
information typically provided by such Seller in connection with mortgage loans
originated by such Seller and securitized by third parties in public, rated
transactions for the issuance of mortgage pass-through certificate; and
(ii) severally and not jointly, (A) indemnify and hold harmless
the transferee under any permitted Pass-Through Transfer, the Purchaser and each
Person, if any, who "controls" such transferee, if any, or the Purchaser within
the meaning of the Securities Act of 1933, as amended (an "Indemnified Party"),
against any losses, claims, damages or liabilities to which such Indemnified
Party may become subject, under the Securities Act of 1933, as amended, or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement of any
material fact contained in Seller's Information provided by such Seller and
included in a Disclosure Document, and (B) reimburse each Indemnified Party for
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such loss, claim, damage,
liability or action.
(e) With respect to any Pass-Through Transfer permitted under this
Section 6.1 in which twenty percent or more of the mortgage loans in the related
transaction consist of Mortgage Loans, each of the applicable Sellers shall:
(i) execute and deliver a pooling and servicing agreement
containing terms and conditions that are consistent with the terms and
conditions set forth herein and in the Servicing Agreement and that are
customary for public, rated transactions for the issuance of pass-through
certificates backed by mortgage loans similar to the Mortgage Loans included in
such Pass-Through Transfer, provided, that (A) any servicing reporting
requirements must be consistent with the standard practices of Washington Mutual
Bank, FA and (B) 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 Servicing Agreement; and
(ii) provide Purchaser with opinions of counsel as to such
Seller's corporate authority and the enforceability of the pooling and servicing
agreement against such Seller, audit letters addressing the delinquency and
foreclosure statistics of Washington Mutual
32
Bank, FA and certificates from public officials, each as such Seller shall
reasonably determine to be necessary to effect such Pass-Through Transfer.
(f) With respect to any Whole Loan Transfer or Pass-Through Transfer
in which a Disclosure Document is prepared in connection therewith, the
Purchaser shall:
(i) provide each Seller with all drafts of the Seller's
Information when produced and revise the Seller's Information in accordance with
such Seller's reasonable comments to correct any information therein at the
Purchaser's cost; and
(ii) (A) indemnify and hold harmless each of the Sellers against
any losses, claims, damages or liabilities to which such Seller may become
subject, under the Securities Act of 1933, as amended, or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) (x)
arise out of or are based upon any untrue statement of any material fact
contained in such Disclosure Document (other than an untrue statement of
material fact contained in the Seller's Information), or (y) arise out of or are
based upon the omission to state in such Disclosure Document 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
(unless the material fact omitted would constitute Seller's Information) and (B)
reimburse each Seller for any legal or other expenses reasonably incurred by
such Seller in connection with investigating or defending any such loss, claim,
damage, liability or action.
SECTION 6.2 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 Whole Loan Transfer or
Pass-Through Transfer permitted under Section 6.1. Upon such appointment, the
Sellers shall correspond and communicate solely with the Master Servicer, as if
the 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.
33
ARTICLE 7.
MISCELLANEOUS PROVISIONS
SECTION 7.1 AMENDMENT
This Agreement may be amended from time to time by the Sellers and the
Purchaser solely by written agreement signed by the Sellers and the Purchaser.
SECTION 7.2 RECORDATION OF AGREEMENT
(a) To the extent necessary under applicable law to protect the
interests of the Purchaser, this Agreement or a memorandum thereof is subject to
recordation in all appropriate public offices for real property records in all
the counties and other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected by the Sellers at the
Purchaser's expense upon direction of the Purchaser.
(b) Each Seller agrees to execute or cause to be executed such
documents and take or cause to be taken such actions as may be necessary to
effect the intent of this Agreement, including without limitation the execution
and delivery of instruments of further assurance and the execution and delivery
of such other documents, and the taking of such other actions as may be
reasonably requested by the Purchaser.
SECTION 7.3 GOVERNING LAW
This Agreement 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. Each of the Sellers and the Purchaser hereby knowingly,
voluntarily and intentionally waives any and all rights it may have to a trial
by jury in respect of any litigation based on, or arising out of, under, or in
connection with, this Agreement, or any other documents and instruments executed
in connection herewith, or any course of conduct, course of dealing, statements
(whether oral or written), or actions of each of the Sellers or the Purchaser.
This provision is a material inducement for each of the Sellers and the
Purchaser to enter into this Agreement.
SECTION 7.4 GENERAL INTERPRETIVE PRINCIPLES
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender;
34
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs, and other subdivisions
of this Agreement;
(iv) a reference to a subsection without further reference to a
Section is a reference to such subsection as contained in the same Section in
which the reference appears, and this Rule shall also apply to Paragraphs and
other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(vi) the term "include" or "including" shall mean without
limitation by reason of enumeration.
SECTION 7.5 REPRODUCTION OF DOCUMENTS
This Agreement and all documents relating hereto, including (i) consents,
waivers, and modifications which may hereafter be executed, (ii) the Effective
Date Documents, all Commitment Letters, Term Sheets and Mortgage Loan Schedules
and (iii) financial statements, certificates, and other information previously
or hereafter furnished, may be reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic, or other similar process. The
parties agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile, or
further reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION 7.6 NOTICES
All demands, notices, consents, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered, sent by facsimile, mailed by registered mail, postage prepaid or
delivered by a nationally recognized overnight courier, to
(i) in the case of the Sellers:
Washington Mutual Bank, XX
Xxxxxxxxxx Mutual Bank fsb
Washington Mutual Bank
0000 Xxxxx Xxxxxx, XXX0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
35
(ii) in the case of the Servicer:
Washington Mutual Bank, FA
19850 Xxxxxxx St.
N070205
Xxxxxxxxxx, XX 00000
Attention: Vice President of Investor Reporting
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as may hereafter be furnished to the Purchaser in writing
by a Seller or the Servicer, and
(iii) in the case of the Purchaser:
Banc of America Mortgage Capital Corporation
Hearst Tower
NC 1-027-21-04
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as may hereafter be furnished to each of the Sellers and
the Servicer in writing by the Purchaser.
Notwithstanding the foregoing, any demand, notice, consent, waiver or
communication may be given by any other means agreed to by the parties.
SECTION 7.7 SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions, or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions, or terms shall be deemed severable from the
remaining covenants, agreements, provisions, or terms of this Agreement and
shall in no way affect the validity or enforceability of the other covenants,
agreements, provisions, or terms of this Agreement or the rights of the parties
hereunder. If the invalidity of any part, provision, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall
36
negotiate in good faith to develop a structure the economic effect of which is
as nearly as possible the same as the economic effect of this Agreement without
regard to such invalidity.
SECTION 7.8 EXHIBITS
The exhibits to this Agreement and each of the Commitment Letters are
hereby incorporated and made a part hereof and are an integral part of this
Agreement. If any provision of this Agreement conflicts with any provision of
any Commitment Letter, the provisions of this Agreement shall control.
SECTION 7.9 COUNTERPARTS; SUCCESSORS AND ASSIGNS
This Agreement may be executed in one or more counterparts, and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. This Agreement shall inure to the benefit
of and be binding upon the Sellers and the Purchaser. Notwithstanding the
foregoing, (a) none of the Sellers shall assign its rights and obligations under
this Agreement without the prior written consent of the Purchaser, which consent
shall not be unreasonably withheld or delayed and (b) the Purchaser may not
assign its rights and obligations under this Agreement except (i) as provided in
Section 6.1(a) and Section 6.2, (ii) with the prior written consent of the
applicable Seller or Sellers, which consent shall not be unreasonably withheld
or delayed (in which case all references to the Purchaser herein shall be deemed
to include such assignee or designee), or (iii) subject to the provisions of
Section 6.1(a), the Purchaser shall have the right to assign its interest under
this Agreement with respect to some or all of the Mortgage Loans to an affiliate
of the Purchaser by executing an Assignment, Assumption and Recognition
Agreement, substantially in the form of EXHIBIT C, and the assignee shall accede
to the rights and obligations hereunder of the Purchaser with respect to such
Mortgage Loans. All references to the Purchaser in this Agreement shall be
deemed to include its assignee.
SECTION 7.10 EFFECT OF HEADINGS
The headings in this Agreement are for purposes of reference only and shall
not limit or otherwise affect the meaning hereof.
SECTION 7.11 OTHER AGREEMENTS SUPERSEDED
This Agreement supersedes all prior agreements and understandings (other
than the Commitment Letters) relating to the subject matter hereof.
SECTION 7.12 SURVIVAL
The representations, warranties, indemnities, covenants and agreements of
the parties provided in this Agreement and the parties' obligations hereunder
shall survive the execution and delivery and the termination or expiration of
this Agreement.
37
SECTION 7.13 INTENTION OF THE PARTIES
It is the intention of the parties that the Purchaser is purchasing, and
each Seller is selling Mortgage Loans and not a debt instrument of such Seller
or other security. Accordingly, the parties hereto each intend to treat each of
the transactions hereunder for federal income tax purposes as a sale by each
Seller, as applicable, and a purchase by the Purchaser, of Mortgage Loans. The
Purchaser shall have the right to review the Mortgage Loans and the related
Credit Files to determine the characteristics of the Mortgage Loans which shall
affect the federal income tax consequences of owning the Mortgage Loans, and the
applicable Seller or Sellers shall cooperate with all reasonable requests made
by the Purchaser in the course of such review.
SECTION 7.14 NONSOLICITATION
Each Seller covenants and agrees that it will not take any action
personally, by telephone, by mail or otherwise, to solicit the prepayment of the
Mortgage Loans by the Mortgagors, in whole or in part following the date hereof.
Notwithstanding the foregoing, no Seller shall be prohibited from:
(i) advertising its availability for handling refinancing of
mortgage loans if the Mortgage Loans are not specifically targeted;
(ii) promoting terms available for refinancing by sending letters
or promotional material to the mortgagors of all the mortgage loans that such
Seller or its affiliates owns or services;
(iii) promoting terms available for refinancing by sending
letters or promotional material to the mortgagors of all the mortgage loans of a
specific type (e.g., conventional fixed-rate or conventional adjustable-rate)
that such Seller or its affiliates owns or services;
(iv) promoting terms available for refinancing by sending letters
or promotional material to the mortgagors of all the mortgage loans that fall
within specific interest rate ranges that such Seller or its affiliates owns or
services;
(v) providing payoff information or otherwise cooperating with
individual Mortgagors who contact such Seller about prepaying any Mortgage Loan;
or
(vi) advising individual Mortgagors who contact such Seller about
prepaying any Mortgage Loan of refinancing terms or streamlined origination
arrangements that are available.
In no event shall any Seller treat mortgage loans that it holds in its own
portfolio and the Mortgage Loans as separate classes of mortgages for purposes
of advertising the availability of refinancing terms.
38
SECTION 7.15 OBLIGATIONS OF THE SELLERS
The obligations and liability of each of the Sellers under this Agreement
are several, and no Seller shall be responsible for the obligations of any other
Seller under this Agreement. Each representation, warranty, indemnity and
covenant made by one Seller under the Agreement is made by, or on behalf of, and
with respect to, that Seller only and not any other Seller.
SECTION 7.16 ATTORNEYS' FEES
If either party retains an attorney to enforce any of the provisions of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees from the other party, including, without limitation, fees incurred in
arbitration and in trial and appellate courts, fees incurred without suit, and
all arbitration, court and accounting costs.
[Signatures follow]
39
TO WITNESS THIS, the Sellers and the Purchaser have caused their names to
be signed to this Mortgage Loan Purchase and Sale Agreement (Amended and
Restated) by their duly authorized respective officers as of the day and year
first above written.
WASHINGTON MUTUAL BANK, FA
a federally chartered savings association
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
WASHINGTON MUTUAL BANK FSB
a federal savings bank
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
WASHINGTON MUTUAL BANK
a Washington state chartered stock savings bank
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
BANC OF AMERICA MORTGAGE CAPITAL CORPORATION
a North Carolina corporation
By: /s/ Xxxxx X. Good
Name: Xxxxx X. Good
Title: Vice President
A-1-1
By executing this Mortgage Loan Purchase and Sale Agreement (Amended and
Restated), the party below agrees and acknowledges that this Agreement shall
replace in its entirety the Original Purchase Agreement as it relates to the
Mortgage Loans sold pursuant the Term Sheets executed prior to the date hereof
and on or after the date hereof, and any future reference to the Original
Purchase Agreement will mean this Mortgage Loan Purchase and Sale Agreement
(Amended and Restated).
BANK OF AMERICA, N.A.
a national banking association, as successor to
the Purchaser with respect to certain
Mortgage Loans
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
X-0-0
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF KING )
This instrument was acknowledged before me on ______________________,
200___, by _____________________ as _________________________ of Washington
Mutual Bank, FA.
________________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
Washington, residing at ________________
My commission expires
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
This instrument was acknowledged before me on ______________________,
200___, by _____________________ as _________________________ of Washington
Mutual Bank fsb.
________________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
Washington, residing at ________________
My commission expires
X-0-0
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF KING )
This instrument was acknowledged before me on ______________________,
200___, by _____________________ as _________________________ of Washington
Mutual Bank.
________________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
Washington, residing at ________________
My commission expires
X-0-0
XXXXX XX XXXXX XXXXXXXX )
) ss.
COUNTY OF MECKLENBURG )
This instrument was acknowledged before me on ______________________,
200___, by _____________________ as _________________________ of Banc of America
Mortgage Capital Corporation.
________________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
____________, residing at ______________
My commission expires
X-0-0
XXXXX XX XXXXX XXXXXXXX )
) ss.
COUNTY OF MECKLENBURG )
This instrument was acknowledged before me on ______________________, 2003,
by _____________________ as _________________________ of Bank of America, N.A.
________________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
_________, residing at _________________
My commission expires
X-0-0
XXXXXXX X-0
CONTENTS OF COLLATERAL FILE
With respect to each Mortgage Loan, the Collateral File shall include each
of the following items unless otherwise agreed by the applicable Seller and the
Purchaser:
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
1. (i) The original Mortgage Note, endorsed (on the Mortgage Note or
an allonge attached thereto) "Pay to the order of
_______________________, without recourse," (or as otherwise
specified in the related Commitment Letter), and signed by
facsimile signature in the name of such Seller by an authorized
officer, with all intervening endorsements showing a complete,
valid and proper chain of title from the originator of such
Mortgage Loan to such Seller;
(ii) or a certified copy of the Mortgage Note (endorsed as
provided above) together with a lost note affidavit, providing
indemnification to the holder thereof for any losses incurred due
to the fact that the original Mortgage Note is missing.
2. The original Mortgage, with evidence of recording thereon (and,
in the case of a MOM Loan, with evidence of the MIN), or if such
Mortgage has been lost or if such public recording office retains
the original recorded Mortgage, a photocopy of such Mortgage
certified by such public recording office to be a true and
complete copy of the original recorded Mortgage.
3. Unless such Mortgage Loan is a MERS Loan, the original Assignment
of Mortgage, from the Seller signed by original signature of an
authorized officer, in blank (or as otherwise specified in the
related Commitment Letter), which assignment shall be in form and
substance acceptable for recording (except for the insertion of
the name of the assignee and recording information).
4. Unless such Mortgage Loan is a MOM Loan, originals of all
intervening Assignments of Mortgage, with evidence of recording
thereon, showing a complete chain of title from the originator to
the Seller (or in the case of a MERS Loan other than a MOM Loan
showing a complete chain of title from the originator to MERS),
or if any such original intervening Assignment of Mortgage is
permanently retained by the applicable recording office, or if
such original Assignment of Mortgage has been lost, a photocopy
of each such original, certified by the applicable public
recording office to be a true and complete copy of the original.
5. Originals of all assumption and modification agreements, if any,
unless such originals are permanently retained by the applicable
recording office (in which event the Collateral File shall
contain a photocopy of each such
A-1-1
original, certified by the applicable public recording office to
be a true and complete copy of the original) and an endorsement
to the original policy of title insurance extending coverage to
the date and time of the recording of any such modification or
assumption.
B. With respect to each Cooperative Loan, as applicable, copies of (1) the
proprietary lease; (2) the security agreement; (3) the assignment of the
proprietary lease, with all intervening assignments showing a complete chain of
title and an assignment thereof by such Seller; (4) the original stock
certificate evidencing the ownership of the Cooperative Apartment, endorsed or
accompanied by a stock power relating to such stock certificate executed in
blank; (5) a recognition agreement in form approved by Seller's underwriting
guidelines, in substantially the same form as the standard "AZTECH" form; (6)
copies of the financing statement filed by the applicable Seller as secured
party and, if applicable, a filed UCC-3 assignment of the subject security
interest showing a complete chain of title, together with an executed UCC-3
Assignment of such security interest by the Seller in a form sufficient for
filing; and (7) such other documents as are necessary for the perfection of a
lien against the related Coop Ownership Interests under applicable law.
X-0-0
XXXXXXX X-0
CONTENTS OF CREDIT FILE
With respect to each Mortgage Loan, unless otherwise agreed by the
applicable Seller and the Purchaser, the Credit File shall include each of the
following items:
1. Copy of survey of the Mortgaged Property, if available.
2. Copy of each instrument necessary to complete identification of
any exception set forth in the exception Schedule in the title
policy, i.e., map or plat, restrictions, easements, sewer
agreements, home association declarations, etc.
3. Evidence of a hazard insurance policy and, if required by law, a
flood insurance policy, with extended coverage of the hazard
insurance policy. (Note: Evidence will be maintained by the
Seller in electronic form, not in the Credit File. The Seller
shall produce a paper copy of such evidence upon request by the
Purchaser.)
4. Mortgage Loan closing statement (Form HUD-1) and any other
truth-in-lending or real estate settlement procedure forms
required by law.
5. Residential loan application.
6. Verification of employment and income if required pursuant to
Seller's underwriting criteria.
7. Verification of acceptable evidence of source and amount of down
payment (to the extent required under Seller's underwriting
guidelines).
8. Credit report on the Mortgagor.
9. Residential appraisal report.
10. Photograph of the property.
11. Executed disclosure statement.
12. Tax receipts, insurance premium receipts, ledger sheets, payment
records, insurance claim files and correspondence,
correspondence, current and historical computerized data files,
underwriting standards used for origination, and all other papers
and records developed or originated by the Seller or others
required to document the Mortgage Loan or to service the Mortgage
Loan.
13. A certified copy or an imaged copy on CD ROM of the policy of
title insurance.
A-2-1
14. A certified copy or an imaged copy on CD ROM of the executed
Power of Attorney, if any.
15. A certified copy or an imaged copy on CD ROM of the original
Primary Mortgage Insurance Policy, if any.
A-2-2
EXHIBIT B
TERM SHEET
(WASHINGTON MUTUAL--
BANC OF AMERICA MORTGAGE CAPITAL CORPORATION)
This TERM SHEET (the "Term Sheet") is dated __________, 200_ by WASHINGTON
MUTUAL BANK, FA, a savings association organized under the laws of the United
States, WASHINGTON MUTUAL BANK fsb, a savings bank organized under the laws of
the United States, and WASHINGTON MUTUAL BANK, a Washington state chartered
stock savings bank, as sellers (each, "Seller" and, collectively, the "Sellers")
and BANC OF AMERICA MORTGAGE CAPITAL CORPORATION, a North Carolina corporation
(the "Purchaser").
This Term Sheet is made pursuant to the terms and conditions of the
Mortgage Loan Purchase and Sale Agreement (Amended and Restated) (the
"Agreement"), dated as of July 1, 2003, which amended and restated a prior
agreement dated as of January 1, 2002, among Sellers and the Purchaser, the
provisions of which are incorporated here, as such terms may be modified or
supplemented here. All capitalized terms shall have the meanings ascribed to
them in the Agreement, unless otherwise defined here.
The Purchaser hereby purchases from Sellers and each Seller hereby sells to
the Purchaser, severally and not jointly, all of Seller's right, title and
interest in and to the Mortgage Loans described on the Mortgage Loan Schedule
attached as Schedule I, in accordance with the terms of the Agreement, as such
terms may be supplemented or modified by this Term Sheet. From this date
forward, Washington Mutual Bank, FA, shall service the Mortgage Loans for the
benefit of the Purchaser and all subsequent transferees of the Mortgage Loans in
accordance with the terms of the Servicing Agreement (Amended and Restated),
dated as of July 1, 2003, which amended and restated a prior agreement, dated as
of January 1, 2002, between Washington Mutual Bank, FA, as servicer, and
Purchaser.
1. DEFINITIONS
For purposes of the Mortgage Loans to be sold pursuant to this Term Sheet,
the following terms shall have the following meanings:
Aggregate Principal Balance
(as of the Cut-Off Date): _______________________________
Closing Date: _______________________________
Custodian: _______________________________
Cut-off Date: _______________________________
Initial Weighted Average
Mortgage Loan Net Rate: _______________________________
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Mortgage Loan Type: _______________________________
Purchase Price Percentage: _______________________________
Servicing Fee Rate: _______________________________
2. ADDITIONAL CLOSING CONDITIONS:
a. The maximum number of permitted investors in the Mortgage Loans at any
one time shall be four.
b. In addition to the foregoing and to the conditions specified in the
Agreement, the obligation of each of the Sellers and the Purchaser is
subject to the fulfillment, on or prior to the relevant Closing Date,
of the following additional conditions:
No more than one percent (1%) of the Aggregate Principal Balance of
the Mortgage Loans shall be subject to lost note affidavits.
3. ADDITIONAL LOAN DOCUMENTS:
a. In addition to the contents of the Mortgage File specified in the
Agreement, the following documents shall be delivered with respect to
the Mortgage Loans:
None.
4. ADDITIONS TO OR MODIFICATIONS OF REPRESENTATIONS AND WARRANTIES:
a. In addition to the representations and warranties set forth in the
Agreement, as of the date hereof, each of the Sellers makes the
following additional representations and warranties with respect to
the Mortgage Loans:
No Mortgage Loan, which is secured by real property located in the
State of Georgia, was originated between October 1, 2002 and March 6,
2003 (inclusive of those dates).
b. Notwithstanding anything to the contrary set forth in the Agreement,
with respect to each Mortgage Loan to be sold on the Closing Date or
with respect to each of the Sellers, the representations and
warranties set forth in Section 3.1 and Section 3.2 of the Agreement
shall be modified to read as follows:
No change.
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c. Except as modified here, Sections 3.1 and 3.2 of the Agreement remain
in full force and effect as of the date of this Term Sheet.
5. TAX TREATMENT AND TAX STRUCTURE
Notwithstanding any other provision of this Term Sheet or the
Agreement (including any confidentiality provision) or the terms of any
confidentiality provisions in any other agreements between the parties
relevant to the Mortgage Loans, each Seller, the Purchaser and the Servicer
(and each employee, representative or other agent of any of the foregoing)
may disclose to any and all persons, without limitation of any kind, (i)
the "tax treatment" and "tax structure" (as those terms are defined in
Treasury Regulations Section 1.6011-4(c)) of all transactions covered by
this Term Sheet, the Agreement or any other agreements between the parties
relevant to the Mortgage Loans and (ii) all materials of any kind
(including opinions or other tax analyses) that are provided to any of the
foregoing parties relating to such tax treatment and tax structure.
[Signatures follow]
B-3
TO WITNESS THIS, the parties have caused their names to be signed by their
respective duly authorized officers as of the date first written above.
WASHINGTON MUTUAL BANK, FA
a federally chartered savings
association
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WASHINGTON MUTUAL BANK FSB
a federal savings bank
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WASHINGTON MUTUAL BANK
a Washington state chartered stock
savings bank
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANC OF AMERICA MORTGAGE CAPITAL
CORPORATION
a North Carolina corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
B-4
TERM SHEET SCHEDULE I
MORTGAGE LOAN SCHEDULE(S) *
* To be attached as diskette in "read-only" format.
B-5
EXHIBIT C
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT dated __________, 200_,
among Banc of America Mortgage Capital Corporation, ("Assignor"), Bank of
America, N.A., ("Assignee") and Washington Mutual Bank (a "Seller"), Washington
Mutual Bank fsb (a "Seller" and the "Custodian"), Washington Mutual Bank, FA (a
"Seller" and the "Servicer", and together with the other Sellers, the
"Sellers"):
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. With respect to the Mortgage Loans listed on Exhibit A hereto (the
"Mortgage Loans"), the Assignor hereby grants, transfers and assigns to Assignee
all of the right, title and interest of Assignor, as Purchaser, in, to and under
that certain (i) Mortgage Loan Purchase and Sale Agreement (Amended and
Restated) (the "Purchase Agreement"), dated as of July 1, 2003, which amended
and restated an agreement dated as of January 1, 2002, and the related Term
Sheet (the "Term Sheet") dated ______________ ____, 200____, each by and among
the Assignor and the Sellers, (ii) the Mortgage Loans delivered by the Sellers
to the Assignor under the Purchase Agreement and the Term Sheet, (iii) the
Servicing Agreement (Amended and Restated) (the "Servicing Agreement") dated as
of July 1, 2003, which amended and restated an agreement, dated as of January 1,
2002, by and between the Assignor and the Servicer, and (iv) the Custodial
Agreement (the "Custodial Agreement" and together with the Purchase Agreement,
the Term Sheet and the Servicing Agreement, the "Agreements"), dated as of
January 1, 2002, by and between the Assignor and Washington Mutual Bank fsb, as
initial Custodian.
2. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to the Sellers with
respect to the Agreements or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreements or the Mortgage
Loans, including without limitation the transfer of the servicing obligations
under the Servicing Agreement. The Assignor has no knowledge of, and has not
received notice of, any waivers under or amendments or other modifications of,
or assignments of rights or obligations under, the Agreements or the Mortgage
Loans; and
C-1
d. Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action which would
constitute a distribution of the Mortgage Loans under the Securities Act of 1933
(the "Securities Act") or which would render the disposition of the Mortgage
Loans a violation of Section 5 of the Securities Act or require registration
pursuant thereto.
3. That Assignee warrants and represents to, and covenants with, the
Assignor and the Sellers that:
a. The Assignee agrees to be bound, as Purchaser, by all of the terms,
covenants and conditions of the Agreements and from and after the date hereof,
the Assignee assumes for the benefit of each of the Sellers and the Assignor all
of the Assignor's obligations as purchaser or owner thereunder;
b. The Assignee understands that the Mortgage Loans have not been
registered under the Securities Act or the securities laws of any state;
c. The purchase price being paid by the Assignee for the Mortgage
Loans is in excess of $250,000.00 and will be paid by cash remittance of the
full purchase price within 60 days of the sale;
d. The Assignee is acquiring the Mortgage Loans for investment for its
own account only and not for any other person. In this connection, neither the
Assignee nor any person authorized to act therefor has offered to sell the
Mortgage Loans by means of any general advertising or general solicitation
within the meaning of Rule 502(c) Regulation D promulgated under the Securities
Act;
e. The Assignee considers itself a substantial sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
f. The Assignee has been furnished with all information regarding the
Mortgage Loans that it has requested from the Assignor or the Sellers;
g. Neither the Assignee nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security to, or solicited
any offer to buy or accepted a transfer, pledge or other disposition of the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security with, any
person in any manner which would constitute a distribution of the Mortgage Loans
under the
C-2
Securities Act or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize any person
to act, in such manner with respect to the Mortgage Loans; and
h. Either (1) the Assignee is not an employee benefit plan ("Plan")
within the meaning of section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or a plan ("Plan") within the meaning of
section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and the
Assignee is not directly or indirectly purchasing the Mortgage Loans on behalf
of, investment manager of, as named fiduciary of, as trustee of, or with assets
of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not result
in a prohibited transaction under section 406 of ERISA or section 4975 of the
Code.
i. The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and the Purchase Agreement is:
Bank of America, N.A.
c/o Bank of America Mortgage
Master Servicing Department
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxx.xxxxxxxxx@xxxxxxxxxxxxx.xxx
The Assignee's wire transfer instructions for purposes of all remittances
and payments related to the Mortgage Loans and the Purchase Agreement is:
For the account of Bank of America, N.A.
ABA#: 000000000
A/C#: 000682260734
A/C Name: Bank of America ITF Clearing for SBO
Investors and Various Mortgagors
Taxpayer ID#: 00-0000000
4. Accuracy of the Agreements.
Each of the Sellers and the Assignor represents and warrants to the
Assignee that (i) attached hereto as Exhibit B is a true, accurate and complete
copy of each of the Agreements, the terms of which are incorporated herein by
reference, (ii) the Agreements have not been amended or modified in any respect,
except as set forth in this Agreement, and (iii) no notice of termination has
been given to the Servicer under the Servicing Agreement. The Servicer
represents and warrants that from the date of the Term Sheet through the date
hereof the Servicer has serviced the Mortgage Loans in accordance with the terms
of the Servicing Agreement.
5. Recognition of Assignee.
C-3
From and after the date hereof, each of the Sellers shall note the transfer
of the Mortgage Loans to the Assignee in its books and records, each of the
Sellers shall recognize the Assignee as the owner of the Mortgage Loans and the
Servicer shall service the Mortgage Loans for the benefit of the Assignee
pursuant to the Servicing Agreement. It is the intention of the Assignor, each
of the Sellers and the Assignee that the Agreements shall be binding upon and
inure to the benefit of each of the Sellers and the Assignee and their
respective successors and assigns. To the extent that any representations or
warranties have been included solely in a relevant Term Sheet or any terms
purporting to amend the underlying Purchase Agreement have been included in the
Term Sheet, and upon request by the Assignee in either case, each of the Sellers
shall confirm the terms of any such representation, warranty or amendment by
separate attachment to this Assignment, Assumption and Recognition Agreement.
6. Several Obligations of Sellers.
The obligations and liability of each of the Sellers under this Assignment,
Assumption and Recognition Agreement and under the Agreements are several, and
no Seller shall be responsible for the obligations of any other Seller under
this Assignment, Assumption and Recognition Agreement or the Agreements. Each
representation, warranty, indemnity and covenant made by one Seller under this
Assignment, Assumption and Recognition Agreement or any of the Agreements is
made by, or on behalf of, and with respect to, that Seller only, and not any
other Seller.
[Signatures Follow]
C-4
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Recognition Agreement be executed by their duly authorized officers as of the
date first above written.
BANC OF AMERICA MORTGAGE BANK OF AMERICA, N.A.
CAPITAL CORPORATION Assignee
Assignor
By: By:
--------------------------------- ---------------------------------
Name: Name:
-------------------------------
Its: Its:
--------------------------------
WASHINGTON MUTUAL BANK
Seller
By:
---------------------------------
Name:
Its:
WASHINGTON MUTUAL BANK FSB
Seller and Custodian
By:
---------------------------------
Name:
Its:
WASHINGTON MUTUAL BANK, FA
Seller and Servicer
By:
---------------------------------
Name:
Its:
C-5
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT EXHIBIT A
MORTGAGE LOAN SCHEDULE(S)*
* To be attached as diskette in "read-only" format.
C-6
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT EXHIBIT B
EXECUTION COPIES OF
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
(AMENDED AND RESTATED),
TERM SHEET,
SERVICING AGREEMENT (AMENDED AND RESTATED)
AND
CUSTODIAL AGREEMENT
C-7
