Exhibit 10.6(A)
EXECUTION COPY
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MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
(AMENDED AND RESTATED)
AMONG
WASHINGTON MUTUAL BANK, FA
WASHINGTON 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
----
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
i
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
ii
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
iii
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;
1
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).
2
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.
3
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.
Fannie Mae: Fannie Mae (formerly known as the Federal National
Mortgage
Association) and any successor thereto.
4
Freddie Mac: Freddie 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.
5
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) the street address, city,
state 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,
6
(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.
7
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
8
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.
9
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
10
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
13
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, c
