REGULATION AB AMENDMENT TO MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
EXECUTION
VERSION
REGULATION
AB AMENDMENT TO MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This
REGULATION AB AMENDMENT TO MORTGAGE LOAN PURCHASE AND SALE AGREEMENT dated
as of
April 1, 2006 (the "Amendment") between WASHINGTON MUTUAL BANK, (formerly
known
as Washington Mutual Bank, FA), a savings bank organized under the laws of
the
United States and WASHINGTON MUTUAL BANK, FSB, a savings bank organized under
the laws of the United States (each, "Seller"
and,
collectively, the "Sellers"),
and
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY, a
New
York limited partnership, as purchaser (the "Purchaser"),
is
made with respect to the Mortgage Loan Purchase and Sale Agreement dated
as of
December 1, 2003, as amended by the First Amendment to Mortgage Loan Purchase
Agreement dated as of October 1, 2004 (as so amended, the "Original Purchase
Agreement") among the Sellers, Washington Mutual Bank and the Purchaser.
Capitalized terms used in this Amendment without definition have the meanings
assigned to them in the Original Purchase Agreement.
The
parties wish to amend the Original Purchase Agreement in order to facilitate
compliance by the Purchaser and its assignees with Regulation AB (as defined
below).
Accordingly,
the parties agree as follows:
ARTICLE
I
AMENDMENTS
Section
1.1. Definitions
(a) Article
1
of the Original Purchase Agreement is amended by adding the following
definitions in the proper alphabetical sequence:
Commission:
The
United States Securities and Exchange Commission.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Issuing
Entity:
The
issuing entity, as such term is defined in Regulation AB, with respect to
any
Securitization Transaction.
Permitted
Reconstitution:
A Whole
Loan Transfer or Securitization Transaction that complies with the provisions
of
Section 6.1(a).
Qualified
Correspondent:
Any
Person from which the Sellers purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the applicable Seller(s) and such Person
that
contemplated that such Person would underwrite mortgage loans from time to
time,
for sale to the applicable Seller(s), in accordance with underwriting guidelines
designated by the Seller(s) (“Designated
Guidelines”)
or
guidelines that do not vary materially from such Designated Guidelines; (ii)
such Mortgage Loans were in fact underwritten as described in clause (i)
above
and were acquired by the applicable Seller(s) within 180 days after origination;
(iii) either (x) the Designated Guidelines were, at the time such Mortgage
Loans
were originated, used by the applicable Seller(s) in origination of mortgage
loans of the same type as the Mortgage Loans for the Seller's own account
or (y)
the Designated Guidelines were, at the time such Mortgage Loans were
underwritten, designated by the Seller(s) on a consistent basis for use by
lenders in originating mortgage loans to be purchased by the applicable
Seller(s); and (iv) the applicable Seller(s) employed, at the time such Mortgage
Loans were acquired by the Seller, pre-purchase or post-purchase quality
assurance procedures (which may involve, among other things, review of a
sample
of mortgage loans purchased during a particular time period or through
particular channels) designed to ensure that Persons from which it purchased
mortgage loans properly applied the underwriting criteria designated by the
Seller(s).
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreement:
An
agreement or agreements entered into by the Sellers and the Purchaser and/or
certain third parties, including a master servicer, in connection with a
Reconstitution with respect to any or all of the Mortgage Loans serviced
under
this Agreement.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(January 7, 2005)) or by the staff of the Commission, or as may be provided
by
the Commission or its staff from time to time.
Required
Notice:
With
respect to any Reconstitution, 15 days' prior written notice, in each case,
(i)
accompanied by loan-level data with respect to the Mortgage Loans intended
for
inclusion in such Reconstitution and (ii) specifying the percentage of mortgage
loans in the entire related transaction that consist of Mortgage
Loans.
2
Securities
Act:
The Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
Seller
Information:
The
information provided by each of the Sellers pursuant to Sections 6.4(a) and
(b).
Sponsor:
The
sponsor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of Regulation
AB.
Third-Party
Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Sellers.
(b) Article
1
of the Original Purchase Agreement is amended by amending and restating the
following definitions in their entirety:
Disclosure
Document:
With
respect to any Securitization Transaction, a prospectus, prospectus supplement,
private placement memorandum, offering circular or other disclosure document
prepared in connection with such Securitization Transaction.
Master
Servicer:
As
defined in Section 6.1(d).
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 Securitization
Transaction, the Unpaid Principal Balance of such Mortgage Loan, plus (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, plus (c) any costs and
damages (including, without limitation, late fees) actually incurred and
paid by
or on behalf of the trust in the applicable Securitization Transaction in
connection with the fact that such Mortgage Loan at the time it was made
failed
to comply in all material respects with applicable federal, state or local
predatory and abusive lending laws, to the extent such costs and damages
result
from a breach by the Seller of the representation and warranty set forth
in
Section 3.1(gg).
3
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
(c) Article
1
of the Original Purchase Agreement is amended by deleting the following
definitions: “Indemnified Party,” "Pass-Through Transfer" and "Seller's
Information."
(d) The
penultimate sentence of Section 3.3(b) of the Original Purchase Agreement
is
amended by replacing the reference therein to "Pass-Through Transfer" with
“Securitization Transaction”.
(e) Article
6
of the Original Purchase Agreement is amended and restated in its entirety
to
read as follows:
ARTICLE
RECONSTITUTIONS;
REGULATION AB COMPLIANCE
Section
6.1 Reconstitutions
(a) Upon
Required Notice to the applicable Seller(s), the Purchaser may, at its sole
option, effect one or more Reconstitutions with respect to some or all of
the
Mortgage Loans purchased on any Closing Date, retaining the Servicer as servicer
or subservicer, if a master servicer is employed; provided, however, that
no
Reconstitution may be made by the Purchaser or any of its permitted assignees
with respect to Mortgage Loans in any Loan Pool if as a result thereof: (i)
more
than three (3) investors (other than the Purchaser) would own Mortgage Loans
in
such Loan Pool at any one time (unless otherwise stated in the related
Commitment Letter), (ii) any single investor (other than the Purchaser) would
own Mortgage Loans from such Loan Pool having an aggregate Unpaid Principal
Balance immediately after such Reconstitution of less than $5,000,000 (unless
mutually agreed upon otherwise by the parties thereto), (iii) the applicable
Seller(s) and the Servicer are not provided with initial drafts of all documents
for which the applicable Seller(s) and Servicer are requested to become a
party
in connection with such Reconstitution at least 10 days prior to the related
settlement date (the “Subsequent
Transfer Settlement Date”),
(iv)
a final list of the Mortgage Loans intended to be subject to such Reconstitution
is not provided to the Servicer at least 2 Business Days prior to the related
Subsequent Transfer Settlement Date (unless mutually agreed upon otherwise
by
the parties thereto), (v) any Mortgage Loan is subject to more than one
Reconstitution in any given Due Period, or (vi) the related Subsequent Transfer
Settlement Date occurs on or prior to the related Servicing Cut-off Date.
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(b) The
Purchaser shall promptly notify the applicable Seller(s) if the percentage
of
Mortgage Loans in the entire related transaction increases above the percentage
specified in the Required Notice.
(c) The
Purchaser shall reimburse the applicable Seller(s) for all reasonable
out-of-pocket expenses, including attorneys’ fees, incurred by the Seller(s) in
connection with any Reconstitution.
(d) Notwithstanding
anything to the contrary contained in this Agreement, but subject to the
terms
of the Servicing Agreement, the Purchaser shall have the right, in its sole
discretion, upon 30 days’ prior written notice to the Sellers, to appoint and
designate a master servicer (the “Master
Servicer”),
as
master servicer of any Mortgage Loans subject to a Permitted Reconstitution.
Upon such appointment, the Sellers shall correspond and communicate solely
with
the Master Servicer, as if the 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.
Section
6.2 Reconstitution
Agreements
(a) In
connection with each Permitted Reconstitution, each of the Sellers, as
applicable, shall:
(i) provide
the Purchaser with information and appropriate verification of information
in
its possession or control as may reasonably be necessary in order to effect
such
Reconstitution (and, to the extent any such information is in the possession
or
control of any third party, use commercially reasonable efforts to cause
such
third party to provide such information); and
5
(ii) cooperate
with all reasonable requests and due diligence procedures not otherwise
addressed herein.
(b) With
respect to any Securitization Transaction that is a Permitted Reconstitution
in
which all or substantially all 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 Securitization Transaction, provided,
that
(A) any servicing reporting requirements must be consistent with the standard
practices of Washington Mutual Bank 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;
(ii) provide
the Purchaser with opinions of counsel as to such Seller’s corporate authority
and the enforceability of the pooling and servicing agreement against such
Seller and certificates from public officials, each as such Seller shall
reasonably determine to be necessary to effect such Securitization Transaction;
and
(iii) upon
the
reasonable request of the Purchaser, execute and deliver a Reconstitution
Agreement pursuant to which such Seller shall make the representations and
warranties set forth on Exhibit D
with
respect to the applicable Mortgage Loans, effective as of the date of such
Reconstitution Agreement, provided that (A) the related Mortgage Loans have
been
transferred by the Purchaser to a third party within six months of the related
Closing Date, (B) the representations and warranties made in such Reconstitution
Agreement shall supercede and replace all representations and warranties
made in
Section 3.1 hereof with respect to such Mortgage Loans and (C) in no event
shall any Seller be obligated to make any representation or warranty regarding
any Mortgage Loan that is untrue.
Section
6.3 Intent
of the Parties; Reasonableness
The
Purchaser and the Sellers acknowledge and agree that the purpose of Sections
6.4
and 6.5 is to facilitate compliance by the Purchaser and any Depositor with
the
provisions of Regulation AB and related rules and regulations of the Commission.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act, the
Sellers acknowledge that investors in privately offered securities may require
that the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private
offerings.
6
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required
under
the Securities Act). The Sellers acknowledge that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise,
and
agree to comply with requests made by the Purchaser or any Depositor in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Sellers shall cooperate fully with
the
Purchaser to deliver to the Purchaser (including any of its assignees or
designees) and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser or such Depositor to permit the Purchaser or such Depositor
to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Sellers, any Third-Party Originator and the Mortgage Loans,
reasonably believed by the Purchaser or such Depositor to be necessary in
order
to effect such compliance.
The
Purchaser (including any of its assignees or designees) shall cooperate with
the
Sellers by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser's reasonable judgment, to comply with Regulation AB.
Section
6.4 Additional
Representations and Warranties of the Sellers
(a) Each
Seller, severally and not jointly, shall be deemed to represent to the Purchaser
and to any Depositor, as of the date on which information is first provided
by
such Seller to the Purchaser or such Depositor under Section 6.5(a) for a
Permitted Reconstitution that, except as disclosed in writing to the Purchaser
or such Depositor, as applicable: (i)
there are no material
legal or governmental proceedings pending (or known to be contemplated) against
the Seller or any Third-Party Originator;
and (ii) there are no affiliations, relationships or transactions relating
to
the Seller
or
any Third-Party Originator with
respect to any Securitization Transaction and any party thereto identified
by
the related Depositor of a type described in Item 1119 of Regulation AB (other
than the affiliation between Washington Mutual Bank and Washington Mutual
Bank
fsb, which is a wholly-owned subsidiary of Washington Mutual Bank).
7
(b) If
so
requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or such Depositor under
Section 6.5, the applicable Seller shall, within five Business Days following
such request, confirm in writing the accuracy of the representations and
warranties set forth in Section 6.4(a) or, if any such representation and
warranty is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting
party.
Section
6.5 Information
to be Provided by the Sellers
In
connection with any Securitization Transaction, each of the Sellers as
applicable shall (i) within five Business Days following request by the
Purchaser or any Depositor, provide to the Purchaser and such Depositor (or,
as
applicable, cause each Third-Party Originator to provide), in writing and
in
form and substance reasonably satisfactory to the Purchaser and such Depositor,
the information and materials specified in paragraphs (a) and (b) of this
Section 6.5, and (ii) as promptly as practicable following notice to or
discovery by the applicable Seller(s), provide to the Purchaser and any
Depositor (in writing and in form and substance reasonably satisfactory to
the
Purchaser and such Depositor) the information specified in paragraph (c)
of this
Section.
(a) If
so
requested by the Purchaser or any Depositor, the applicable Seller(s) shall
provide such information regarding (i) the Seller, as originator of the Mortgage
Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, as is requested for
the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(i) the
originator’s form of organization;
(ii) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originator’s credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information
as the
Purchaser or such Depositor may reasonably request for the purpose of compliance
with Item 1110(b)(2) of Regulation AB;
8
(iii) a
description of any material legal or governmental proceedings pending (or
known
to be contemplated) against the applicable Seller(s) and each Third-Party
Originator; and
(iv) a
description of any affiliation or relationship between the applicable Seller(s)
each Third-Party Originator and any of the following parties to a Securitization
Transaction, as such parties are identified to the applicable Seller(s) by
the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
(A) the
Sponsor;
(B) the
Depositor;
(C) the
Issuing Entity;
(D) any
servicer;
(E) any
trustee;
(F) any
originator;
(G) any
significant obligor;
(H) any
enhancement or support provider; and
(I) any
other
material transaction party.
(b) If
so
requested by the Purchaser or any Depositor, the applicable Seller(s) shall
provide (or, as applicable, cause each Third-Party Originator to provide)
Static
Pool Information with respect to the mortgage loans (of a similar type as
the
Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the applicable Seller(s), if the Seller is an originator
of
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent) and/or (ii) each Third Party Originator. Such Static Pool
Information shall be prepared by the applicable Seller(s) (or Third Party
Originator) on the basis of its reasonable, good faith interpretation of
the
requirements of Item 1105(a)(1)-(3) of Regulation AB. To the extent that
there
is reasonably available to the applicable Seller(s) (or Third Party Originator)
Static Pool Information with respect to more than one mortgage loan type,
the
Purchaser or any Depositor shall be entitled to specify whether some or all
of
such information shall be provided pursuant to this paragraph. The content
of
such Static Pool Information may be in the form customarily provided by the
applicable Seller(s), and need not be customized for the Purchaser or any
Depositor. Such Static Pool Information for each vintage origination year
or
prior securitized pool, as applicable, shall be presented in increments no
less
frequently than quarterly over the life of the mortgage loans included in
the
vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of
the
prospectus or other offering document in which the Static Pool Information
is to
be included or incorporated by reference. The Static Pool Information shall
be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or such Depositor,
as applicable.
9
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the applicable Seller(s) shall provide (or, as applicable, cause
any
Third Party Originator to provide) corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by the applicable
Seller(s) (or Third Party Originator).
If
so
requested by the Purchaser or any Depositor, the applicable Seller(s) shall
provide (or, as applicable, cause each Third Party Originator to provide),
at
the expense of the requesting party (to the extent of any additional incremental
expense associated with delivery pursuant to this Agreement), such agreed-upon
procedures letters of certified public accountants reasonably acceptable
to the
Purchaser or such Depositor, as applicable, pertaining to Static Pool
Information relating to prior securitized pools for securitizations closed
on or
after January 1, 2006 or, in the case of Static Pool Information with respect
to
each of the applicable Seller's or Third-Party Originator's originations
or
purchases, to calendar months commencing prior to January 1, 2006, as the
Purchaser or such Depositor shall reasonably request. Such statements and
letters shall be addressed to and be for the benefit of such parties as the
Purchaser or such Depositor shall designate, which may include, by way of
example, any Sponsor, any Depositor and any broker dealer acting as underwriter,
placement agent or initial purchaser with respect to a Securitization
Transaction. Any such statement or letter may take the form of a standard,
generally applicable document accompanied by a reliance letter authorizing
reliance by the addressees designated by the Purchaser or such
Depositor.
(c) For
the
purpose of satisfying the Purchaser’s or any Depositor’s reporting obligation
under the Exchange Act with respect to any class of asset-backed securities,
the
applicable Seller(s) shall (or shall cause each Third-Party Originator to)
(i)
notify the Purchaser and such Depositor in writing of (A) any material
litigation or governmental proceedings pending against the Seller or any
Third-Party Originator and (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the Seller
or
any Third-Party Originator and any of the parties specified in clause (iv)
of
Section 6.5(a) (and any other parties identified in writing by the requesting
party) with respect to such Securitization Transaction, and (ii) provide
to the
Purchaser and such Depositor a description of such proceedings, affiliations
or
relationships.
10
Section
6.6 Indemnification
(a) With
respect to any Securitization Transaction for which any Seller Information
is
included in a related Disclosure Document, the applicable Seller(s), on the
one
hand, and the Purchaser and the Depositor, on the other hand, shall execute
and
deliver an Indemnification Agreement in substantially the form attached as
Exhibit
G to
the
Servicing Agreement.
(b) The
applicable Seller(s) shall indemnify the Purchaser, each affiliate of the
Purchaser, the Depositor, each Sponsor, each Issuing Entity and each Person
responsible for the preparation, execution or filing of any report required
to
be filed with the Commission with respect to such Securitization Transaction,
or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction, each
broker-dealer acting as an underwriter, placement agent or initial purchaser
and
each Person who controls any of such parties or the Depositor (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act),
and the respective present and former directors, officers, employees and
agents
of each of the foregoing and of the Depositor, and shall hold each of them
harmless from and against any losses damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any other costs,
fees
and expenses that any of them may sustain arising out of or based
upon:
(i) (A)
any
untrue statement of a material fact contained in any information delivered
in
written or electronic form (x) by the applicable Seller(s) pursuant to Section
6.5(c) or (y) by the applicable Seller(s) pursuant to Section 6.5(a) or 6.5(b)
for inclusion in a Disclosure Document and identified as “Seller Information”
for that purpose, or
(B)
the
omission or alleged omission to state (x) in any information, report,
certification or other material provided in written or electronic form by
or on
behalf of the applicable Seller(s) pursuant to Section 6.5(c) or (y) in any
information provided by the applicable Seller(s) pursuant to Section 6.5(a)
or
6.5(b) for inclusion in a Disclosure Document and identified as “Seller
Information” for that purpose; or
11
(ii)
any
breach by the applicable Seller of a representation or warranty as set forth
in
Section 6.4(a) or in a writing furnished pursuant to Section 6.4(b) and made
as
of a date prior to the closing date of the related Securitization Transaction,
to the extent that such breach is not cured by such closing date, or any
breach
by the applicable Seller of a representation or warranty in a writing furnished
pursuant to Section 6.4(b) to the extent made as of a date subsequent to
such
closing date.
(f) Paragraph
2(a) of Exhibit B to the Original Purchase Agreement is amended by replacing
the
references therein to "Pass-Through Transfer" with “Securitization
Transaction”.
(g) Exhibit
C
to the Original Purchase Agreement is hereby deleted in its
entirety.
ARTICLE
II
MISCELLANEOUS
Section
2.1 Conditions
to Effectiveness
This
Amendment shall be effective upon the execution and delivery by both parties
of
this Amendment.
Section
2.2 Reference
to and Effect on the Purchase Agreement and the Servicing
Agreement
Each
reference in the Purchase Agreement to "this Agreement" or otherwise to the
Purchase Agreement shall hereafter be deemed to refer to the Purchase Agreement
as amended hereby. Each reference to the Purchase Agreement in the Servicing
Agreement or in any other document or agreement executed in connection therewith
or with the Servicing Agreement shall hereafter be deemed to refer to the
Purchase Agreement as amended hereby.
Section
2.3 Ratification
The
Purchase Agreement, as amended by this Amendment, is hereby ratified and
confirmed and shall continue unimpaired and in full force and effect in
accordance with the provisions thereof, as amended or modified on or prior
to
the date hereof and as hereby amended.
12
Section
2.4 Applicable
Law
This
Amendment shall be governed by and construed in accordance with the laws
of the
State of New York (including Section 5-1401 of the New York General
Obligations Law) and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws without giving
effect
to conflict of laws principles other than Section 5-1401 of the New York
General Obligations Law.
Section
2.5 Severability
Any
provision of this Amendment which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions of this Amendment and without affecting the validity or
enforceability of such or any other provision in any other
jurisdiction.
Section
2.6 Counterparts
This
Amendment may be executed simultaneously in counterparts, each of which shall
be
deemed an original, and it shall not be necessary in making proof of this
Amendment to produce or account for more than one such counterpart for each
party hereto.
[Signature
page follows]
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TO
WITNESS THIS, the Sellers and the Purchaser have caused this Regulation AB
Amendment to Purchase Agreement to be executed as of the date set forth
above.
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SELLERS:
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WASHINGTON
MUTUAL BANK
a
savings association organized under the laws of the United
States
By:
Name:
Title:
WASHINGTON
MUTUAL BANK, fsb
a
savings association organized under the laws of the United
States
By:
Name:
Title:
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PURCHASER:
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▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY
a
New York limited partnership
By:
▇▇▇▇▇▇▇ Sachs Real Estate Funding Corp., General Partner
Name:
Title:
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