Exhibit 4.7
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MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
Between
Washington Mutual Mortgage Securities Corp.
(Seller)
and
WaMu Asset Acceptance Corp.
(Purchaser)
Dated as of December 28, 2005
Residential First Lien Mortgage Loans
Flow Delivery Program
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS................................................... 1
ARTICLE 2. SALE AND CONVEYANCE OF MORTGAGE LOANS; PAYMENT OF PURCHASE
PRICE; DELIVERY OF MORTGAGE FILES;.................................... 9
Section 2.1. Sale and Conveyance of Mortgage Loans; Payment of
Purchase Price........................................ 9
Section 2.2. Delivery of Mortgage Files............................ 9
Section 2.3. Recordation of Mortgages and Assignments of
Mortgages............................................. 10
Section 2.4. Repurchases of and Substitutions for Defective
Mortgage Loans........................................ 10
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE SELLER CONCERNING THE
MORTGAGE LOANS; REPURCHASE OR SUBSTITUTION OF MORTGAGE LOANS.......... 12
Section 3.1. Seller Representations and Warranties Concerning the
Mortgage Loans........................................ 12
Section 3.2. Additional Seller Representations and Warranties...... 16
Section 3.3. Repurchases and Substitutions in the Event of Breach
of Seller Representations and Warranties.............. 18
ARTICLE 4. COVENANTS..................................................... 19
Section 4.1. Cooperation........................................... 19
Section 4.2. Representations, Warranties, Covenants and
Indemnities........................................... 19
Section 4.3. Delivery of Documents................................. 19
Section 4.4. Consents and Approvals................................ 19
Section 4.5. Confidentiality....................................... 20
ARTICLE 5. CONDITIONS TO PURCHASE........................................ 20
Section 5.1. Required Documents.................................... 20
Section 5.2. Correctness of Representations and Warranties......... 20
Section 5.3. Compliance With Conditions............................ 20
Section 5.4. Costs................................................. 21
ARTICLE 6. SALE PURSUANT TO POOLING AND SERVICING AGREEMENT.............. 21
Section 6.1. Seller's Consent to Assignment........................ 21
Section 6.2. Indemnification....................................... 21
ARTICLE 7. MISCELLANEOUS PROVISIONS...................................... 22
Section 7.1. Amendment............................................. 22
Section 7.2. Recordation of Agreement.............................. 22
Section 7.3. Governing Law......................................... 23
Section 7.4. General Interpretive Principles....................... 23
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Section 7.5. Notices............................................... 23
Section 7.6. Severability of Provisions............................ 24
Section 7.7. Exhibits.............................................. 24
Section 7.8. Counterparts; Successors and Assigns.................. 24
Section 7.9. Effect of Headings.................................... 25
Section 7.10. Other Agreements Superseded........................... 25
Section 7.11. Intention of the Parties.............................. 25
Section 7.12. Nonsolicitation....................................... 25
Section 7.13. Attorneys' Fees....................................... 26
Section 7.14. Security Interest..................................... 26
Section 7.15. Covenant Not to Place Purchaser or Trust Into
Bankruptcy............................................ 27
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EXHIBITS
Exhibit A CONTENTS OF MORTGAGE FILE
Exhibit B TERM SHEET
Exhibit C CONFIDENTIAL PRICING SUPPLEMENT
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Exhibit 4.7
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT dated as of December 28,
2005 is among WaMu Asset Acceptance Corp., a Delaware corporation, as purchaser,
and Washington Mutual Mortgage Securities Corp., a Delaware corporation, as
seller.
PRELIMINARY STATEMENT
WHEREAS, in reliance upon the representations, warranties and covenants of
the Seller contained here, the Purchaser desires to purchase from the Seller,
from time to time, and the 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;
WHEREAS, the Purchaser and the Seller desire to prescribe in this Agreement
the manner of sale by the Seller and purchase by the Purchaser of such mortgage
loans; and
WHEREAS, following each purchase of mortgage loans from the Seller, the
Purchaser intends to effect a Sale (as defined below) with respect to those
mortgage loans pursuant to a Pooling and Servicing Agreement (as defined below).
NOW, THEREFORE, the Purchaser and the Seller agree as follows:
ARTICLE 1.
DEFINITIONS
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Agreement: This Mortgage Loan Purchase and Sale Agreement, including all
exhibits, attachments and schedules hereto, and all amendments hereof and
supplements hereto.
Appraised Value: With respect to any (i) Mortgage Loan that is not a
Streamlined Mortgage Loan or ROV Mortgage Loan, the lesser of (a) the value set
forth on the appraisal made in connection with the origination of such Mortgage
Loan as the value of the related Mortgaged Property and (b) the purchase price
paid for the Mortgaged Property; provided, however, that if such Mortgage Loan
was originated in connection with the refinance of a mortgage loan, the
Appraised Value shall be the value set forth on the appraisal made in connection
with the origination of such Mortgage Loan as the value of the related Mortgaged
Property; (ii) ROV Mortgage Loan, the lesser of (a) the value set forth on the
residential appraisal review made in connection with the origination of such
Mortgage Loan as the value of the related Mortgaged Property and (b) the
purchase price paid for the Mortgaged Property; provided,
however, that if such ROV Mortgage Loan was originated in connection with the
refinance of a mortgage loan, the Appraised Value shall be the value set forth
on the residential appraisal review made in connection with the origination of
such ROV Mortgage Loan as the value of the related Mortgaged Property; and (iii)
Streamlined Mortgage Loan, the value set forth in 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 Proprietary Lease: With respect to a Cooperative Loan, the
assignment or mortgage of the related Cooperative Lease by the Mortgagor to the
originator of the Cooperative Loan.
Buydown Agreement: An agreement between a Person and a Mortgagor pursuant
to which such Person has provided a Buydown Fund.
Buydown Fund: A fund provided by the originator of a Mortgage Loan or
another Person with respect to a Buydown Loan which provides an amount
sufficient to subsidize regularly scheduled principal and interest payments due
on such Buydown Loan for a period.
Buydown Loan: A Mortgage Loan for which the Mortgage Interest Rate has been
subsidized through a Buydown Fund provided at the time of origination of such
Mortgage Loan.
Certificates: As defined in the applicable Term Sheet.
Closing Date: With respect to any Mortgage Loan, the meaning set forth in
the applicable Term Sheet.
Closing Date Loan-to-Value Ratio: With respect to any Mortgage Loan, the
Cut-Off Date Principal Balance of such Mortgage Loan divided by the value of the
related Mortgaged Property as of the related Closing Date.
Code: The Internal Revenue Code of 1986, as amended from time to time, or
any successor statute thereto.
Confidential Pricing Supplement: A Confidential Pricing Supplement with
respect to the Mortgage Loans purchased by the Purchaser from the Seller on a
Closing Date, in substantially the form attached as Exhibit C hereto.
Cooperative: A private cooperative housing corporation which owns or leases
land and all or part of a building or buildings, including apartments, spaces
used for commercial purposes and common areas therein, and whose board of
directors authorizes, among other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building owned
or leased by a Cooperative, which unit the Mortgagor has an exclusive right to
occupy pursuant to the terms
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of a proprietary lease or occupancy agreement in accordance with the laws of the
state in which the building is located.
Cooperative Lease: With respect to a Cooperative Loan, the proprietary
lease or occupancy agreement with respect to the Cooperative Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock, which lease or
agreement confers an exclusive right to the holder of such Cooperative Stock to
occupy such apartment.
Cooperative Loan: A Mortgage Loan made in respect of a Cooperative
Apartment, evidenced by a Mortgage Note and secured by the related Cooperative
Stock and the related Cooperative Lease, together with (i) the related Security
Agreement, (ii) the related Cooperative Stock Certificate, (iii) the related
assignment or mortgage of the Cooperative Lease, (iv) the related financing
statements, (v) the related stock power or other similar instrument and (vi) the
related Recognition Agreement.
Cooperative Stock: With respect to a Cooperative Loan, the stock,
partnership interest or other ownership instrument in the related Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
Current Loan-to-Value Ratio: As used in Section 2.4(b), the Principal
Balance of a Mortgage Loan as of the applicable date of substitution divided by
the Appraised Value; and as used in Section 3.1, the Cut-Off Date Principal
Balance of a Mortgage Loan divided by the Appraised Value.
Curtailment: Any payment of principal on a Mortgage Loan, made by or on
behalf of the related Mortgagor, other than a Monthly Payment (including a
Monthly Payment received prior to its scheduled Due Date, which is intended to
be applied on its scheduled Due Date) or a Payoff, which is applied to reduce
the outstanding principal balance of the Mortgage Loan.
Custodian: As defined in the related Term Sheet.
Cut-Off Date: As to each Mortgage Loan, the first day of the month in which
the applicable Closing Date occurs.
Cut-Off Date Principal Balance: As to each Mortgage Loan, the principal
balance of such Mortgage Loan remaining to be paid 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.
Destroyed Mortgage Note: A Mortgage Note the original of which (or a
portion of the original of which) was permanently lost or destroyed and has not
been replaced.
Disclosure Documents: As defined in Section 6.2(a).
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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.
▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association and any successor
thereto.
FHA: The Federal Housing Administration, or any successor thereto.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation and any successor
thereto.
High Cost/Covered Loan: As defined in the related Term Sheet.
Index: With respect to any ARM Loan, the index set forth in the related
Mortgage Note, which index is added to the Margin to determine the Mortgage
Interest Rate on each date on which the Mortgage Interest Rate is subject to
adjustment.
Initial Interest Rate Adjustment Date: With respect to any ARM Loan, the
initial Due Date on which an adjustment to the Mortgage Interest Rate of such
ARM Loan becomes effective.
Margin: With respect to any ARM Loan, the applicable fixed per annum
percentage rate specified in the applicable Mortgage Note and designated as such
in the related Mortgage Loan Schedule.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, or any successor thereto.
MERS Loan: Any Mortgage Loan registered on the MERS(R) System for which
MERS appears as the mortgagee of record on the related Mortgage or on an
assignment thereof.
MERS(R) System: The system of electronically recording transfers of
Mortgages maintained by MERS.
MIN: The Mortgage Identification Number for a MERS Loan.
MOM Loan: A MERS Loan that was registered on the MERS(R) System at the time
of origination thereof and for which MERS appears as the mortgagee of record on
the related Mortgage.
Monthly Payment: With respect to any Mortgage Loan, the scheduled monthly
payment of principal and/or interest on such Mortgage Loan which is due on the
related Due Date for such Mortgage Loan.
Mortgage: The mortgage, deed of trust, or other instrument securing a
Mortgage Note.
Mortgage File: With respect to any Mortgage Loan, the documents or
instruments with respect to such Mortgage Loan described in Exhibit A hereto.
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Mortgage Interest Rate: With respect to any Mortgage Loan, the per annum
rate at which interest accrues on such Mortgage Loan pursuant to the terms of
the related Mortgage Note.
Mortgage Loan: Each mortgage loan and cooperative loan (if any), including
each Substitute Mortgage Loan, listed on the Mortgage Loan Schedule to a Term
Sheet. With respect to each Mortgage Loan that is a Cooperative Loan, "Mortgage
Loan" shall include, but not be limited to, the Mortgage Note and the related
Security Agreement, Assignment of Proprietary Lease, Recognition Agreement,
Cooperative Stock Certificate and Cooperative Lease and, with respect to each
Mortgage Loan other than a Cooperative Loan, "Mortgage Loan" shall include, but
not be limited to, the Mortgage Note and the related Mortgage.
Mortgage Loan Schedule: The Schedule of Mortgage Loans (which may consist
of one or more separate schedules) attached as Schedule I to a Term Sheet. The
Mortgage Loan Schedule shall set forth at least the following information with
respect to each Mortgage Loan listed therein to the extent applicable: (i) its
loan number, (ii) the city, state and zip code of the Mortgaged Property, (iii)
the Appraised Value of the property subject to the Mortgage, (iv) the Cut-Off
Date Principal Balance, (v) (a) in the case of each Mortgage Loan that is not an
ARM Loan, the Mortgage Interest Rate of the Mortgage Note and (b) in the case of
each ARM Loan, the Mortgage Interest Rate, as of the Cut-Off Date, of the
Mortgage Note and the Rate Ceiling, Rate Floor, Periodic Cap, Index and Margin,
as applicable, of the Mortgage Note, (vi) whether a Primary Insurance Policy is
in effect as of the Cut-Off Date, (vii) the maturity of the Mortgage Note and
(viii) the Servicing Fee Rate.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
Mortgaged Property: With respect to any Mortgage Loan, other than a
Cooperative Loan, the real property, together with improvements thereto, and,
with respect to any Cooperative Loan, the related Cooperative Stock and
Cooperative Lease, securing the indebtedness of the Mortgagor under the related
Mortgage Note.
Mortgagor: The obligor(s) on a Mortgage Note.
Net Rate: With respect to each Mortgage Loan, the Mortgage Interest Rate
less the Servicing Fee Rate.
Original Loan-to-Value Ratio: The original principal amount of a Mortgage
Loan divided by the Appraised Value.
Payoff: Any payment of principal on a Mortgage Loan made by or on behalf of
the related Mortgagor equal to the entire outstanding principal balance of such
Mortgage Loan, if received in advance of the last scheduled Due Date for such
Mortgage Loan and accompanied by an amount of interest equal to accrued unpaid
interest on the Mortgage Loan to the date of such payment in full.
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Periodic Cap: With respect to any ARM Loan, any applicable limit on
adjustment of the Mortgage Interest Rate for each date of adjustment specified
in the applicable Mortgage Note and designated as such in the related Mortgage
Loan Schedule.
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof, or any
other entity or organization, whether or not a legal entity.
Pooling and Servicing Agreement: As defined in the applicable Term Sheet,
as such Pooling and Servicing Agreement is in effect on its date of execution.
Primary Insurance Policy: With respect to any Mortgage Loan, a primary
policy of mortgage guaranty insurance, if any, on such Mortgage Loan.
Principal Balance: With respect to any Mortgage Loan (including any
Substitute Mortgage Loan), as of any date of determination, the scheduled
principal balance of such Mortgage Loan under the terms of the related Mortgage
Note as of such date, reduced by any Curtailments received with respect to such
Mortgage Loan prior to the calendar month of determination and by any Payoff
received on or before the 14th day of the calendar month of determination, and
without adjustment solely by reason of any bankruptcy or similar proceeding or
any moratorium or similar waiver or grace period.
Purchase Price: For each Mortgage Loan, an amount equal to the sum of (i)
the product of the Cut-Off Date Principal Balance of such Mortgage Loan,
multiplied by the related Purchase Price Percentage, and (ii) the amount of
interest (computed at the Net Rate) that has accrued on the Cut-Off Date
Principal Balance of such Mortgage Loan from the related Cut-Off Date to but not
including the related Closing Date.
Purchase Price Percentage: For each Mortgage Loan, as defined in the
related Confidential Pricing Supplement.
Purchaser: WaMu Asset Acceptance Corp., a Delaware corporation, and all
successors in interest pursuant to Sections 6.1 and 7.8 hereof.
Rate Ceiling: With respect to any ARM Loan, the maximum per annum Mortgage
Interest Rate permitted under the related Mortgage Note.
Rate Floor: With respect to any ARM Loan, the minimum per annum Mortgage
Interest Rate, if any, permitted under the related Mortgage Note.
Rating Agencies: Each nationally recognized statistical rating organization
that has rated the related Certificates at the request of the Purchaser.
Reacquired Mortgage Loan: A Mortgage Loan for which another Mortgage Loan
is substituted pursuant to and in accordance with the provisions of Section 2.4
or 3.3.
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Recognition Agreement: With respect to a Cooperative Loan, the recognition
agreement between the Cooperative and the originator of such Cooperative Loan.
Recording Documents: With respect to each Mortgage Loan, the original
recorded Mortgage relating to such Mortgage Loan and any intervening assignment
thereof required to be included in the Mortgage File with evidence of recording
thereon (or a copy of such original Mortgage or intervening assignment certified
by the applicable recording office) (which may be in electronic form).
Repurchase Price: With respect to any Mortgage Loan to be repurchased by
the Seller pursuant to Section 2.4 or 3.3, an amount equal to the sum of (i) the
Principal Balance thereof as of the date of repurchase, (ii) one month's
interest at the applicable Net Rate on an amount equal to the sum of (A) such
Principal Balance and (B) the aggregate amount of all principal due but unpaid
under the terms of the related Mortgage Note to the extent not covered by an
advance by the Servicer pursuant to the related Pooling and Servicing Agreement,
(iii) the aggregate amount of all principal and interest due but unpaid under
the terms of the related Mortgage Note (whether or not covered by an advance by
the Servicer pursuant to the related Pooling and Servicing Agreement), (iv) the
aggregate amount of all unreimbursed advances of reimbursable expenses made by
the Servicer with respect to such Mortgage Loan pursuant to the related Pooling
and Servicing Agreement and (v) all costs and damages incurred by the Purchaser
or its transferee in connection with any violation by such Mortgage Loan of any
predatory and abusive lending laws, to the extent such costs and damages result
from a breach of the representation and warranty made by such Seller pursuant to
Section 3.1(vii); provided, however, that to the extent that such costs and
damages constitute a set-off against the principal balance of the Mortgage Loan,
such costs and damages will not be paid pursuant to this clause (v), and the
amount paid pursuant to clause (i) above will be calculated without regard to
such set-off.
ROV Mortgage Loan: A Mortgage Loan with respect to which the value set
forth on the appraisal has been appealed and, as a result, an internal valuation
has been conducted and included in a residential appraisal review contained in
the related credit file.
Sale: The sale of Mortgage Loans by the Purchaser to a Trust pursuant to a
Pooling and Servicing Agreement.
Security Agreement: With respect to a Cooperative Loan, the agreement or
mortgage creating a security interest in favor of the originator of the
Cooperative Loan in the related Cooperative Stock.
Seller: Washington Mutual Mortgage Securities Corp., and its assigns and
successors in interest.
Seller Officer's Certificate: A certificate signed by the Chairman of the
Board, the President, any Vice President or the Treasurer of the Seller.
Seller's Information: As defined in Section 6.2(a).
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Servicer: As defined in the related Pooling and Servicing Agreement.
Servicing Fee Rate: With respect to each Mortgage Loan, the percentage set
forth as such for such Mortgage Loan in the Mortgage Loan Schedule.
Streamlined Mortgage Loan: A Mortgage Loan originated in connection with
the refinance of a mortgage loan pursuant to the streamlined loan documentation
program then in effect of the originator of such Mortgage Loan.
Substitute Mortgage Loan: A Mortgage Loan that is substituted for another
Mortgage Loan pursuant to and in accordance with the provisions of Section 2.4
or 3.3.
Substitution Price: With respect to all Reacquired Mortgage Loans for which
Substitute Mortgage Loans are substituted by the Seller on a specific date
pursuant to Section 2.4 or 3.3, an amount equal to the sum of (i) the excess, if
any, of the aggregate Principal Balance of the Reacquired Mortgage Loans over
the aggregate Principal Balance of the Substitute Mortgage Loans, in each case,
as of the date of substitution, (ii) one month's interest at the weighted
average Net Rate for the Reacquired Mortgage Loans on an amount equal to the sum
of (A) the excess amount described in clause (i) above and (B) the aggregate
amount of all principal due but unpaid on the Reacquired Mortgage Loans under
the terms of the related Mortgage Notes to the extent not covered by an advance
by the Servicer pursuant to the related Pooling and Servicing Agreement, (iii)
the aggregate amount of all principal and interest due but unpaid on the
Reacquired Mortgage Loans under the terms of the related Mortgage Notes (whether
or not covered by an advance by the Servicer pursuant to the related Pooling and
Servicing Agreement), (iv) the aggregate amount of all unreimbursed advances of
reimbursable expenses made by the Servicer with respect to such Reacquired
Mortgage Loans pursuant to the related Pooling and Servicing Agreement and (v)
the aggregate amount of all costs and damages incurred by the Purchaser or its
transferee in connection with any violations by such Reacquired Mortgage Loans
of any predatory and abusive lending laws, to the extent such costs and damages
result from a breach of the representation and warranty made by such Seller
pursuant to Section 3.1(vii); provided, however, that to the extent that such
costs and damages constitute a set-off against the principal balance of the
related Reacquired Mortgage Loan, such costs and damages will not be paid
pursuant to this clause (v), and the amount paid pursuant to clause (i) above
will be calculated without regard to such set-off.
Term Sheet: A term sheet with respect to the Mortgage Loans purchased by
the Purchaser from the Seller on a Closing Date, in substantially the form
attached hereto as Exhibit B.
Trust: The trust created in connection with the related Pooling and
Servicing Agreement.
Trustee: As defined in the related Pooling and Servicing Agreement.
Underwriting Standards: For each Mortgage Loan, the published underwriting
standards of the Seller, or, if such Mortgage Loan was underwritten pursuant to
underwriting standards
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other than the published underwriting standards of the Seller, then such other
underwriting standards.
VA: The Department of Veterans Affairs (formerly known as the Veterans
Administration) and any successor thereto.
ARTICLE 2.
SALE AND CONVEYANCE OF MORTGAGE LOANS;
PAYMENT OF PURCHASE PRICE;
DELIVERY OF MORTGAGE FILES;
Section 2.1. Sale and Conveyance of Mortgage Loans; Payment of Purchase
Price
(a) On each Closing Date, upon the receipt of the applicable Purchase
Price, the Seller shall deliver to the Purchaser a Term Sheet and a Confidential
Pricing Supplement. As set forth in such Term Sheet, the Seller sells,
transfers, assigns, sets over, and conveys to the Purchaser, without recourse,
but subject to the representations, warranties, terms and provisions of this
Agreement and such Term Sheet, all the right, title, and interest of the Seller
in and to the Mortgage Loans described in the Mortgage Loan Schedule attached to
such Term Sheet.
(b) In payment of the purchase price for each of the Mortgage Loans
pursuant to Section 2.1(a) and the applicable Term Sheet, and upon the terms and
conditions of this Agreement, on the related Closing Date the Purchaser shall
pay to the Seller by wire transfer of immediately available funds the applicable
Purchase Price for each Mortgage Loan purchased on such Closing Date.
(c) 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 due after the applicable Cut-Off Date, and all other payments
and recoveries of principal and interest received on or after such Cut-Off Date,
other than payments that were due on or prior to such Cut-Off Date.
(d) On or before each Closing Date, the Seller shall deliver to the
Purchaser with the related Term Sheet the related Mortgage Loan Schedule, which
shall be in hard copy or "read-only" electronic format (as reasonably acceptable
to the Seller and the Purchaser).
Section 2.2. Delivery of Mortgage Files
The Seller shall deliver or cause to be delivered to the Purchaser or its
designee (which may be a Custodian), with respect to each Mortgage Loan sold by
the Seller hereunder, on or before the related Closing Date, at the Seller's
expense, each of the items or documents with respect to such Mortgage Loan
required to be included in the Mortgage File pursuant to the definition thereof.
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Section 2.3. Recordation of Mortgages and Assignments of Mortgages
With respect to each Mortgage Loan (other than any Mortgage Loan for which
a Payoff has been made after the related Cut-Off Date and prior to the related
Closing Date), in instances where, due to a delay on the part of the recording
office, any Recording Documents are not included in the Mortgage File delivered
to the Purchaser or its designee on or before the related Closing Date, the
Seller shall transmit the Recording Documents to the Purchaser or its designee
within 270 days after the related Closing Date. In instances where, due to a
delay on the part of the recording office where any such Recording Documents
have been delivered for recordation, the Recording Documents cannot be delivered
to the Purchaser or its designee within 270 days after such Closing Date, the
Seller shall deliver to the Purchaser or its designee within such time period a
Seller Officer's Certificate stating the date by which the Seller expects to
receive such Recording Documents from the applicable recording office. In the
event that Recording Documents have still not been received by the Seller and
delivered to the Purchaser or its designee by the date specified in its previous
Seller Officer's Certificate delivered to the Purchaser or its designee, the
Seller shall deliver to the Purchaser or its designee by such date an additional
Seller Officer's Certificate stating a revised date by which the Seller expects
to receive the applicable Recording Documents. This procedure shall be repeated
until the Recording Documents have been received by the Seller and delivered to
the Purchaser or its designee.
Section 2.4. Repurchases of and Substitutions for Defective Mortgage Loans
(a) Upon receipt of notice from the Purchaser that any document,
required to be included (pursuant to the definition of "Mortgage File") in the
Mortgage File delivered to the Purchaser or its designee with respect to a
Mortgage Loan sold by the Seller hereunder, was not included therein or has not
been executed, the Seller shall correct or cure such defect within 60 days from
the date the Seller receives notice thereof or, if such defect cannot be
corrected or cured within such 60-day period, the Seller shall, not later than
the expiration of such 60-day period, either (a) repurchase such Mortgage Loan
from the Purchaser or its transferee at the Repurchase Price or (b) within the
three-month period commencing on the related Closing Date (or within the
two-year period commencing on such Closing Date if the related Mortgage Loan is
a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), substitute for such Mortgage
Loan one or more Substitute Mortgage Loans each of which is a "qualified
replacement mortgage" (as defined in the Code); provided, however, that in the
event that such defect consists solely of the failure of the Seller to deliver
any Recording Document with respect to such Mortgage Loan, due to a delay on the
part of the recording office, then the Seller shall not be required to
repurchase or substitute for such Mortgage Loan. If such defect would cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
then notwithstanding the previous sentence, the repurchase or substitution must
occur within the sooner of (i) 90 days from the date the defect was discovered
by the Seller, the Purchaser or any other party to the related Pooling and
Servicing Agreement or (ii) in the case of substitution, two years from the
related Closing Date.
(b) Any number of Substitute Mortgage Loans may be substituted for any
number of Reacquired Mortgage Loans, subject to the limitations described in the
next sentence. With
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respect to the Mortgage Loans substituted on any date, (i) the aggregate
Principal Balance of the Substitute Mortgage Loans shall not exceed the
aggregate Principal Balance of the Reacquired Mortgage Loans, (ii) each
Substitute Mortgage Loan shall mature no later than, and not more than two years
earlier than, the weighted average date of maturity of the Reacquired Mortgage
Loans, (iii) each Substitute Mortgage Loan shall have a Current Loan-to-Value
Ratio equal to or less than the weighted average Current Loan-to-Value Ratio of
the Reacquired Mortgage Loans, (iv) each Substitute Mortgage Loan shall have a
Mortgage Interest Rate on the date of substitution equal to or no more than 1
percentage point greater than the weighted average Mortgage Interest Rate of the
Reacquired Mortgage Loans, (v) if the Reacquired Mortgage Loans do not provide
for any payments of principal during an initial period, each Substitute Mortgage
Loan also shall not provide for payments of principal during such initial period
and (vi) if the Reacquired Mortgage Loans are ARM Loans, then each Substitute
Mortgage Loan shall (1) if applicable, have an Initial Interest Rate Adjustment
Date occurring on approximately the same date as, but not earlier than, the
weighted average Initial Interest Rate Adjustment Date of the Reacquired
Mortgage Loans and interest rate adjustments thereafter at the same frequency as
the Reacquired Mortgage Loans, (2) if applicable, have a Margin, Rate Ceiling
and Rate Floor equal to or greater than the weighted average Margin, Rate
Ceiling and Rate Floor of the Reacquired Mortgage Loans, (3) have the same terms
(other than the terms referenced in clauses (1) and (2) above) for adjusting the
Mortgage Interest Rate as the Reacquired Mortgage Loans and (4) if applicable,
have the same terms for adjusting the amount of the minimum monthly payment as
the Reacquired Mortgage Loans. Furthermore, the Seller shall be deemed to have
made as of the date of substitution the representations and warranties set forth
in Section 3.1 as to such Substitute Mortgage Loan (except that references to
"Closing Date" and "Cut-Off Date" in such Section 3.1 shall be deemed to be
references to the date of substitution). In addition, a Substitute Mortgage Loan
shall not be a High Cost Loan or Covered Loan (as such terms are defined in the
Standard & Poor's LEVELS(R) Glossary in effect on the date of substitution, with
such exceptions thereto as the Purchaser and Standard & Poor's Ratings Services
may reasonably agree). A Substitute Mortgage Loan may be substituted for a
defective Mortgage Loan that is itself a Substitute Mortgage Loan.
(c) In connection with the substitution of one or more Substitute
Mortgage Loans for one or more Reacquired Mortgage Loans on any date, the Seller
shall pay to the Purchaser the Substitution Price for such Reacquired Mortgage
Loans.
(d) Concurrently with each such substitution, the Seller shall deliver
to and deposit with, or cause to be delivered to and deposited with, the
Purchaser or its designee the Mortgage File for each Substitute Mortgage Loan.
Upon such substitution, the Substitute Mortgage Loan shall be subject to the
terms of this Agreement, to the extent applicable (including, without
limitation, the Seller's obligations with respect to the Substitute Mortgage
Loan pursuant to this Section 2.4 and Sections 2.3 and 3.3). The Seller and the
Purchaser shall amend the Mortgage Loan Schedule in a timely fashion to delete
all repurchased Mortgage Loans and Reacquired Mortgage Loans and add all
Substitute Mortgage Loans.
(e) The Seller shall pay any Repurchase Price or Substitution Price by
such method as is specified by the Purchaser in writing.
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(f) With respect to each repurchased Mortgage Loan or Reacquired
Mortgage Loan, the Seller shall own and be entitled to receive all scheduled
payments due after the date of repurchase or substitution, as applicable, any
Curtailments received in or after the calendar month of repurchase or
substitution, as applicable, and any Payoff received after the 14th day of the
calendar month of repurchase or substitution, as applicable; and with respect to
each Substitute Mortgage Loan, the Seller shall own and be entitled to receive
all payments due under the related Mortgage Note on or before the date of
substitution. Any such payments received by the Purchaser or its transferee
shall promptly be remitted by the Purchaser to the Seller. With respect to each
Substitute Mortgage Loan, the Purchaser shall own and be entitled to receive all
scheduled payments due after the date of substitution, any Curtailments received
in or after the calendar month of substitution, and any Payoff received after
the 14th day of the calendar month of substitution. Any such payments received
by the Seller shall promptly be remitted by the Seller to the Purchaser or its
transferee.
(g) Upon receipt by the Purchaser of the Repurchase Price or the
Substitution Price, as applicable, and (in the case of a substitution for a
Mortgage Loan pursuant to this Section 2.4 or Section 3.3) upon receipt by the
Purchaser of such instruments of transfer or assignment, in each case without
recourse, as shall be necessary to vest in the Purchaser title to any Substitute
Mortgage Loan, the Purchaser shall release to the Seller the Mortgage File for
the repurchased Mortgage Loan or the Reacquired Mortgage Loan, as applicable,
and shall execute and deliver such instruments of transfer or assignment, in
each case without recourse, as shall be necessary to vest in the Seller title to
such Mortgage Loan.
(h) The Seller shall pay all costs and expenses incurred in connection
with any repurchase or substitution by the Seller made pursuant to this Section
2.4 or Section 3.3.
(i) It is understood and agreed that the obligations of the Seller set
forth in this Section 2.4 constitute the sole remedies available to the
Purchaser or its transferee respecting the Seller's failure to include in the
Mortgage File for a Mortgage Loan sold by the Seller the documents required to
be included therein.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF
THE SELLER CONCERNING THE MORTGAGE LOANS;
REPURCHASE OR SUBSTITUTION OF MORTGAGE LOANS
Section 3.1. Seller Representations and Warranties Concerning the Mortgage
Loans
The Seller hereby represents and warrants to and covenants to and agrees
with the Purchaser that, as to each Mortgage Loan sold by the Seller hereunder,
as of the related Cut-Off Date unless otherwise indicated, subject in all cases
(including, without limitation, clauses (iv), (xi) and (xviii)) to such
exceptions, if any, as are set forth on Schedule III to the related Term Sheet:
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(i) The information set forth in the Mortgage Loan Schedule delivered
on the Closing Date was true and correct in all material respects at the
date or dates respecting which such information is furnished;
(ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan
that is not a Cooperative Loan is a valid and enforceable (except as such
enforceability may be limited by laws affecting the enforcement of
creditors' rights generally and principles of equity) first lien on an
unencumbered estate in fee simple or (if the related Mortgage Loan is
secured by the interest of the Mortgagor as a lessee under a ground lease)
leasehold estate in the related Mortgaged Property subject only to (a)
liens for current real property taxes and special assessments; (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording such Mortgage, such
exceptions appearing of record being acceptable to mortgage lending
institutions generally or specifically reflected in the appraisal obtained
in connection with the origination of the Mortgage Loan; (c) exceptions set
forth in the title insurance policy relating to such Mortgage, such
exceptions being acceptable to mortgage lending institutions generally; and
(d) other matters to which like properties are commonly subject which do
not materially interfere with the benefits of the security intended to be
provided by the Mortgage;
(iii) Immediately upon the transfer and assignment contemplated
herein, the Purchaser shall have good title to, and will be the sole legal
owner of, each Mortgage Loan, free and clear of any encumbrance or lien
(other than any lien under this Agreement);
(iv) Except as set forth on Schedule III to the Term Sheet, if
applicable, as of the day prior to the Cut-Off Date, all payments due on
each Mortgage Loan had been made and no Mortgage Loan had been delinquent
(i.e., was more than 30 days past due) more than once in the preceding 12
months and any such delinquency lasted for no more than 30 days;
(v) As of the Closing Date, there is no offset, defense or
counterclaim to any Mortgage Note, including the obligation of the
Mortgagor to pay the unpaid principal or interest on such Mortgage Note,
except to the extent that the Buydown Agreement for a Buydown Loan forgives
certain indebtedness of a Mortgagor;
(vi) As of the Closing Date, each Mortgaged Property is free of damage
and in good repair, ordinary wear and tear excepted;
(vii) Each Mortgage Loan at the time it was made complied with all
applicable local, state and federal laws, including, without limitation,
usury, equal credit opportunity, disclosure and recording laws, and
predatory and abusive lending laws applicable to the originating lender;
(viii) Each Mortgage Loan was originated by (a) the Seller, (b) a
savings association, savings bank, bank, credit union, insurance company or
similar institution
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which is supervised and examined by a federal or state authority or (c) a
mortgagee approved by the FHA;
(ix) As of the Closing Date, each Mortgage Loan that is not a
Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title
insurance policy, or other form of policy of insurance acceptable to ▇▇▇▇▇▇
▇▇▇ or ▇▇▇▇▇▇▇ Mac as of the origination date of such Mortgage Loan, which
has been issued by, and is the valid and binding obligation of, a title
insurer which, as of the origination date of such Mortgage Loan, was
qualified to do business in the state in which the related Mortgaged
Property is located. Such policy insures the originator of the Mortgage
Loan and its successors and assigns as to the first priority lien of the
Mortgage in the original principal amount of the Mortgage Loan subject to
the exceptions set forth in such policy. Such policy is in full force and
effect and inures to the benefit of the Purchaser upon the consummation of
the transactions contemplated by this Agreement and no claims have been
made under such policy, and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which would
impair the coverage of such policy;
(x) Except as set forth on Schedule III to the Term Sheet, if
applicable, each Mortgage Loan with both (a) an Original Loan-to-Value
Ratio and (b) a Current Loan-to-Value Ratio in excess of 80% was covered,
as of the Cut-Off Date, by a Primary Insurance Policy or an FHA insurance
policy or a VA guaranty, and such policy or guaranty is valid and remains
in full force and effect;
(xi) The Mortgage Note related to (a) each Mortgage Loan (other than a
Cooperative Loan) requires the related Mortgagor to maintain a policy of
hazard insurance, with extended coverage in an amount which is not less
than the original principal balance of such Mortgage Loan, except in cases
in which such original principal balance exceeds the value of the
improvements to the Mortgaged Property, and (b) each Mortgage Loan (other
than a Cooperative Loan) with respect to which any part of any improvement
to the related Mortgaged Property is located in a federally designated
special flood hazard area and in a community which participates in the
National Flood Insurance Program at the time of origination of such
Mortgage Loan, requires the related Mortgagor to maintain a policy of flood
insurance;
(xii) As of the Closing Date, all taxes, governmental assessments,
insurance premiums, leasehold payments or ground rents that have become due
and payable with respect to each Mortgaged Property have been paid or an
escrow of funds sufficient to pay them has been established;
(xiii) As of the Closing Date, each insurer issuing a Primary
Insurance Policy holds a rating acceptable to the Rating Agencies;
(xiv) Each Mortgage (exclusive of any riders thereto) was documented
by appropriate ▇▇▇▇▇▇ Mae/▇▇▇▇▇▇▇ Mac mortgage instruments in effect at the
time of origination, or other instruments approved by the Seller;
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(xv) As of the Closing Date, the Mortgaged Property securing each
Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is
improved with a one- to four-family dwelling unit, including units in a
duplex, triplex, fourplex, condominium project, townhouse, a planned unit
development or a de minimis planned unit development;
(xvi) As of the Closing Date, each Mortgage and Mortgage Note is the
legal, valid and binding obligation of the maker thereof and is enforceable
in accordance with its terms, except only as such enforceability may be
limited by laws affecting the enforcement of creditors' rights generally
and principles of equity;
(xvii) As of the date of origination, as to Mortgaged Properties which
are units in condominiums or planned unit developments, all of such units
met the applicable Underwriting Standards, are located in a condominium or
planned unit development projects which have received ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac approval, or are approvable by ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac or have
otherwise been approved by the Seller;
(xviii) Except as set forth on Schedule III to the Term Sheet, if
applicable, no Mortgage Loan is a Buydown Loan;
(xix) Prior to origination or refinancing, an appraisal of each
Mortgaged Property was made by an appraiser on a form satisfactory to
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(xx) The Mortgage Loans have been underwritten substantially in
accordance with the applicable Underwriting Standards;
(xxi) All of the Mortgage Loans have due-on-sale clauses; however, the
due on sale provisions may not be exercised at the time of a transfer if
prohibited by law or the terms of the related Mortgage Note;
(xxii) The Seller used no adverse selection procedures in selecting
the Mortgage Loans from among the outstanding mortgage loans of the same
type originated or purchased by it which were available for sale to the
Purchaser and as to which the representations and warranties in this
Section 3.1 could be made;
(xxiii) If such Mortgage Loan is a Cooperative Loan, the Cooperative
Stock that is pledged as security for the Cooperative Loan is held by a
person as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the Code);
(xxiv) If such Mortgage Loan is a Cooperative Loan, it is secured by a
valid, subsisting and enforceable (except as such enforceability may be
limited by laws affecting the enforcement of creditors' rights generally
and principles of equity) perfected first lien and security interest in the
related Cooperative Stock, subject only to (a) liens of the Cooperative for
unpaid assessments representing the Mortgagor's pro rata share of the
Cooperative's payments for its blanket mortgage, current and future real
property taxes,
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insurance premiums, maintenance fees and other assessments to which like
collateral is commonly subject, and (b) other matters to which like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Security Agreement;
(xxv) With respect to any Mortgage Loan as to which an affidavit has
been delivered by the Seller to the Purchaser or its assignee certifying
that the original Mortgage Note is a Destroyed Mortgage Note, if such
Mortgage Loan is subsequently in default, the enforcement of such Mortgage
Loan or of the related Mortgage will not be materially adversely affected
by the absence of the original Mortgage Note (or portion thereof, as
applicable);
(xxvi) Each Mortgage Loan constitutes a "qualified mortgage" under
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the
provisions of Treasury Regulation Section 1.860G-2(a)(3) or 1.860G-2(f)(2)
or any other provision that would allow a Mortgage Loan to be treated as a
"qualified mortgage" notwithstanding its failure to meet the requirements
of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9);
(xxvii) No Mortgage Loan is a High Cost/Covered Loan, and no Mortgage
Loan originated during the period of October 1, 2002 through March 6, 2003
is governed by the Georgia Fair Lending Act;
(xxviii) No Mortgage Loan is subject to the Home Ownership and Equity
Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost"
loan or a "predatory" loan as defined under any state or local law or
regulation applicable to the originator of such Mortgage Loan or which
would result in liability to the purchaser or assignee of such Mortgage
Loan under any predatory or abusive lending law, or, without limiting the
generality of the foregoing, is a "covered" loan under the laws of the
states of California, Colorado or Ohio; and
(xxix) No Mortgage Loan has a Closing Date Loan-to-Value Ratio greater
than 100%.
Section 3.2. Additional Seller Representations and Warranties
The Seller hereby represents and warrants to the Purchaser as of each
Closing Date on which the Seller sells Mortgage Loans hereunder, and with
respect to such Mortgage Loans, as of such Closing Date:
(i) The Seller is a corporation, duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(ii) The Seller has all licenses necessary to carry on its business as
now being conducted and is licensed, qualified and in good standing in the
states where the
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Mortgaged Properties are located if the laws of such states require
licensing or qualification in order to conduct business of the type
conducted by the Seller and to the extent necessary to ensure the
enforceability of each Mortgage Loan. The Seller has the corporate power
and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to
enter into, execute and deliver this Agreement, the Term Sheet, the
Confidential Pricing Supplement and all documents and instruments executed
and delivered pursuant hereto and to perform its obligations in accordance
therewith. The execution, delivery and performance of this Agreement by the
Seller and the consummation of the transactions contemplated hereby,
including, without limitation, the repurchase obligations herein contained,
have been duly and validly authorized. This Agreement, the Term Sheet, the
Confidential Pricing Supplement and all other documents and instruments
contemplated hereby to which the Seller is a party, in each case assuming
due authorization, execution and delivery by the Purchaser, evidence the
valid, binding and enforceable obligations of the Seller, subject as to
enforceability, (i) to bankruptcy, insolvency, receivership,
conservatorship, reorganization, arrangement, moratorium, and other laws of
general applicability relating to or affecting creditor's rights, and (ii)
to general principles of equity, whether such enforcement is sought in a
proceeding in equity or at law. All requisite corporate action has been
taken by the Seller to make this Agreement valid and binding upon the
Seller in accordance with its terms.
(iii) No consent, approval, authorization, or order of any court or
governmental agency or body relating to the transactions contemplated by
this Agreement and the transfer of legal title to the Mortgage Loans to the
Purchaser, is required as to the Seller or, if required, such consent,
approval, authorization, or order has been or will, prior to the applicable
Closing Date, be obtained, except for any recordation of Mortgages or
assignments of Mortgages or filing of UCC financing statements or
amendments thereto to or for the benefit of the Purchaser pursuant to this
Agreement.
(iv) The consummation of the transactions contemplated by this
Agreement, including without limitation the transfer and assignment of the
Mortgage Loans to the Purchaser pursuant to this Agreement and the
fulfillment of or compliance with the terms and conditions of this
Agreement, are in the ordinary course of business of the Seller and will
not (i) result in the breach of any term or provision of the certificate of
incorporation or by-laws of the Seller, (ii) result in the breach of any
term or provision of, or conflict with or constitute a default under, or
result in the acceleration of any obligation under, any material agreement,
indenture, loan or credit agreement or other instrument to which the Seller
or its property is subject or (iii) result in the violation of any law,
rule, regulation, order, judgment, or decree to which the Seller or its
property is subject.
(v) There is no action, suit, proceeding or investigation pending or,
to the best of the Seller's knowledge, threatened, against the Seller
which, either in any one instance or in the aggregate, is likely, in the
Seller's judgment, to result, in any material impairment of the right or
ability of the Seller to carry on its business substantially as now
conducted, or which would draw into question the validity of this Agreement
or the Mortgage Loans, or of any action taken or to be taken in connection
with the obligations
17
of the Seller contemplated herein or therein, or which would be likely to
impair materially the ability of the Seller to perform its obligations
hereunder or thereunder.
(vi) The Seller is a U.S. Department of Housing and Urban Development
("HUD") approved mortgagee pursuant to Section 203 of the National Housing
Act of 1934, as amended. No event has occurred, including but not limited
to a change in insurance coverage, which would make the Seller unable to
comply with HUD eligibility requirements or which would require
notification to HUD.
(vii) The Seller is not in violation of, and the execution and
delivery of this Agreement by the Seller and its performance and compliance
with the terms of this Agreement will not constitute a violation with
respect to, any order or decree of any court or any order or regulation of
any federal, state, municipal or governmental agency having jurisdiction
over the Seller or its assets, which violation might have consequences that
would materially and adversely affect the condition, financial or
otherwise, or the operations, of the Seller or its assets or might have
consequences that would materially and adversely affect the performance of
its obligations and duties hereunder.
(viii) Upon payment of the Purchase Price by the Purchaser, in the
event that the Seller retains record title to a Mortgage, the Seller shall
retain such record title to such Mortgage solely in trust for the Purchaser
as owner thereof.
Section 3.3. Repurchases and Substitutions in the Event of Breach of Seller
Representations and Warranties
(a) It is understood and agreed that the representations and
warranties set forth in Sections 3.1 and 3.2 shall survive the sale of Mortgage
Loans by the Seller to the Purchaser and shall inure to the benefit of the
Purchaser, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or assignment of Mortgage.
(b) Upon discovery by the Seller or the Purchaser of a breach of any
of the representations and warranties set forth in Section 3.1 (in the case of a
breach of the representation set forth in clause (xxix) of Section 3.1, as based
on a determination of the applicable Closing Date Loan-to-Value Ratio using such
evidence as is reasonably designed to approximate the value of the applicable
Mortgaged Property as of the related Closing Date) that materially and adversely
affects the value of any Mortgage Loan or the interests of the Purchaser in such
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other. Any breach of the representation set forth in clause
(xxvii) or clause (xxviii) of Section 3.1 shall be deemed to materially and
adversely affect the value of the related Mortgage Loan or the interests of the
Purchaser in the related Mortgage Loan. Within 90 days of its discovery of
breach or its receipt of notice of breach from the Purchaser, the Seller shall
repurchase from the Purchaser or its transferee the affected Mortgage Loan or
Mortgage Loans or any property acquired in respect thereof, or substitute one or
more Substitute Mortgage Loans therefor, unless it has cured such breach in all
material respects. Any such repurchase or substitution shall be made in the
manner and within the time limits set forth in Section 2.4. If such breach would
18
cause the Mortgage Loan to be other than a "qualified mortgage" (as defined in
the Code), then notwithstanding the previous sentence, the repurchase or
substitution must occur within the sooner of (i) 90 days from the date the
defect was discovered by the Seller, the Purchaser or any other party to the
related Pooling and Servicing Agreement or (ii) in the case of substitution, two
years from the related Closing Date.
(c) It is understood and agreed that the obligations of the Seller set
forth in this Section 3.3 constitute the sole remedies available to the
Purchaser or its transferee respecting a breach of the representations and
warranties by the Seller set forth in Section 3.1.
(d) In addition to such cure, repurchase or substitution obligation,
the Seller shall indemnify the Purchaser and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and other costs and expenses resulting from
the defense of any claim against the Purchaser by a third party resulting from a
breach of the representations and warranties made by the Seller in this Article
3.
ARTICLE 4.
COVENANTS
Section 4.1. Cooperation
Each of the Seller and the Purchaser shall cooperate fully with each other
and their respective counsel and other representatives and advisors in
connection with the steps required to be taken as part of their respective
obligations under this Agreement.
Section 4.2. Representations, Warranties, Covenants and Indemnities
Each representation, warranty, covenant and indemnity made by the Seller in
this Agreement as of each Closing Date shall survive the termination of this
Agreement.
Section 4.3. Delivery of Documents
On the dates specified herein, each party shall deliver to the appropriate
persons specified herein all documents and instruments provided for hereunder.
Section 4.4. Consents and Approvals
The Seller shall obtain, at its sole cost and expense, prior to each
Closing Date, all consents and approvals required by law or pursuant to contract
to consummate the transactions contemplated hereby. All such consents will be
obtained without any cost or expense to the Purchaser and will be obtained
without any modification in the terms of any of the agreements relating to the
Mortgage Loans or the imposition of any provisions or conditions on the
Purchaser.
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Section 4.5. Confidentiality
Each party understands that certain information which has been furnished
and will be furnished in connection with this transaction is confidential and
proprietary, and each party agrees that, with respect to such information that
is marked or identified as confidential or proprietary, such party will maintain
the confidentiality of such information and will not without the consent of the
party furnishing such information disclose it to others or use it except in
connection with the transactions contemplated by this Agreement. The parties
agree that the completed Confidential Pricing Supplement is confidential, and
that the Term Sheet, this Agreement and their other exhibits, including the
Mortgage Loan Schedule, and the underwriting guidelines of the Seller are not
confidential. Information also shall not be deemed confidential or proprietary
for these purposes if the information is generally known in the industry
concerning a party, if it has been disclosed to the other party by a third
party, or if it is required to be disclosed by law or by regulatory or judicial
process.
ARTICLE 5.
CONDITIONS TO PURCHASE
The obligations of the Purchaser to purchase any Mortgage Loans on any
Closing Date are subject to the satisfaction, as applicable, prior to or on such
Closing Date (or on such other date as expressly provided for herein) of the
following conditions, any of which may be waived in writing by Purchaser:
Section 5.1. Required Documents
On or before the Closing Date for the initial purchase of Mortgage Loans
hereunder, each party hereto shall have received fully executed counterpart
originals of this Agreement. On each Closing Date, the Purchaser and the Seller
shall furnish to the other party fully executed counterpart originals of the
relevant Term Sheet and Confidential Pricing Supplement.
Section 5.2. Correctness of Representations and Warranties
All of the representations and warranties of the Seller under this
Agreement shall be true and correct as of such Closing Date (except as otherwise
expressly provided for herein), and no event shall have occurred which, with
notice or the passage of time, would constitute a default under this Agreement.
Section 5.3. Compliance With Conditions
All other terms and conditions of this Agreement to be performed by the
Seller on or prior to such Closing Date (or such other date as expressly
provided for herein) shall have been duly complied with and performed in all
respects.
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Section 5.4. Costs
The Seller shall pay all costs, fees and expenses incurred in connection
with the transfer and delivery of the Mortgage Loans sold by the Seller under
this Agreement for the Seller's accountants, attorneys and other service
providers. In addition, with respect to each Pooling and Servicing Agreement,
the Seller shall (a) reimburse the Purchaser for all reasonable expenses
incurred by the Purchaser in connection with the issuance of the related
Certificates and (b) pay to the Purchaser a securitization fee, to be agreed
upon separately.
ARTICLE 6.
SALE PURSUANT TO POOLING AND SERVICING AGREEMENT
Section 6.1. Seller's Consent to Assignment
The Seller hereby consents to the assignment by the Purchaser to a Trust,
pursuant to a Pooling and Servicing Agreement, of all of the Purchaser's rights
under (i) this Agreement, to the extent that this Agreement relates to Mortgage
Loans transferred by the Purchaser to such Trust, and (ii) the Term Sheet with
respect to such Mortgage Loans. The Seller agrees that its obligations hereunder
and under the related Term Sheet may be enforced by the Trustee or the Servicer
for such Trust.
Section 6.2. Indemnification
(a) The Seller (i) agrees to indemnify and hold harmless the Purchaser
and the related Trust (each, an "Indemnified Party"), against any losses,
claims, damages or liabilities to which such Indemnified Party may become
subject, under the Securities Act of 1933, as amended, or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement of any material fact
contained in the information provided by the Seller to the Purchaser with
respect to the Seller's origination and underwriting criteria, the regulatory
status of the Seller and its affiliates (other than the Purchaser and the
Trust), and the characteristics of the Mortgage Loans sold by the Seller on the
related Closing Date (such information, the "Seller's Information") and included
in the prospectus or the prospectus supplement or other disclosure document
prepared in connection with the related Sale (collectively, the "Disclosure
Documents") and (ii) will reimburse each Indemnified Party for any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such loss, claim, damage, liability or action.
(b) The Purchaser (i) will indemnify and hold harmless the Seller
against any losses, claims, damages or liabilities to which the Seller may
become subject, under the Securities Act of 1933, as amended, or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (x) arise out of or are based upon any untrue statement of any material
fact contained in any Disclosure Document (other than an untrue statement of
material fact contained in the Seller's Information) or (y) arise out of or are
based upon the omission to state in any Disclosure Document a material fact
required to be stated therein or
21
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (unless such omission also
constitutes an omission to state in the Seller's Information a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading) and
(ii) will reimburse the Seller for any legal or other expenses reasonably
incurred by the Seller in connection with investigating or defending any such
loss, claim, damage, liability or action.
(c) In connection with each Sale, (i) the Seller agrees to execute an
agreement pursuant to which the Seller will agree to indemnify each underwriter
engaged in connection with such Sale against any losses, claims, damages or
liabilities to which such underwriter may become subject, under the Securities
Act of 1933, as amended, or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement of any material fact contained in the Seller's Information
and included in any Disclosure Document, and (ii) the Purchaser agrees to make
reasonable efforts to obtain indemnification satisfactory to the Seller with
respect to any information provided by parties other than the Purchaser or an
affiliate of the Purchaser and included in any Disclosure Document.
ARTICLE 7.
MISCELLANEOUS PROVISIONS
Section 7.1. Amendment
This Agreement may be amended from time to time by the Seller and the
Purchaser solely by written agreement signed by the Seller and the Purchaser. If
any provision of this Agreement or of a Confidential Pricing Supplement
conflicts with any provision of a Term Sheet, the provision of such Term Sheet
shall control. If any provision of this Agreement conflicts with any provision
of a Confidential Pricing Supplement, the provision of this Agreement shall
control.
Section 7.2. Recordation of Agreement
(a) To the extent necessary under applicable law to protect the
interests of the Purchaser, this Agreement or a memorandum thereof is subject to
recordation in all appropriate public offices for real property records in all
the counties and other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected by the Seller at the
Purchaser's expense upon direction of the Purchaser.
(b) The Seller agrees to execute or cause to be executed such
documents and take or cause to be taken such actions as may be necessary to
effect the intent of this Agreement, including without limitation the execution
and delivery of instruments of further assurance and the execution and delivery
of such other documents, and the taking of such other actions, as may be
reasonably requested by the Purchaser.
22
Section 7.3. Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without reference to the choice of law doctrine
of such state (other than Section 5-1401 of the General Obligations Law).
Section 7.4. General Interpretive Principles
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs," and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs, and other subdivisions
of this Agreement;
(iv) a reference to a subsection without further reference to a
Section is a reference to such subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(v) the words "herein," "hereof," "hereunder," and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(vi) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 7.5. Notices
All demands, notices, consents, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered, sent by telecopy, mailed by certified mail, return receipt requested
and postage prepaid, or delivered by a nationally recognized overnight courier,
to
(i) in the case of the Seller:
Washington Mutual Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
23
or such other address as may hereafter be furnished to the Purchaser in writing
by the Seller, and
(ii) in the case of the Purchaser:
WaMu Asset Acceptance Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser.
Notwithstanding the foregoing, any demand, notice, consent, waiver or
communication may be given by any other means agreed to by the parties.
Section 7.6. Severability of Provisions
If any one or more of the covenants, agreements, provisions, or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions, or terms shall be deemed severable from the
remaining covenants, agreements, provisions, or terms of this Agreement and
shall in no way affect the validity or enforceability of the other covenants,
agreements, provisions, or terms of this Agreement or the rights of the parties
hereunder. If the invalidity of any part, provision, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is as nearly as possible the
same as the economic effect of this Agreement without regard to such invalidity.
Section 7.7. Exhibits
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 7.8. Counterparts; Successors and Assigns
This Agreement may be executed in one or more counterparts, and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. This Agreement shall inure to the benefit
of and be binding upon the Seller and the Purchaser. Notwithstanding the
foregoing, (a) the Seller shall not assign its rights and obligations under this
Agreement without the prior written consent of the Purchaser, which consent
shall not be unreasonably withheld or delayed, and (b) the Purchaser may not
assign its rights and obligations under this Agreement except (i) as provided in
Section 6.1 or (ii) with the prior written consent of the Seller, which consent
shall not be unreasonably withheld or delayed (in which case all references to
the Purchaser herein shall be deemed to include such assignee).
24
Section 7.9. Effect of Headings
The headings in this Agreement are for purposes of reference only and shall
not limit or otherwise affect the meaning hereof.
Section 7.10. Other Agreements Superseded
This Agreement supersedes all prior agreements and understandings relating
to the subject matter hereof.
Section 7.11. Intention of the Parties
It is the intention of the parties that the Purchaser is purchasing, and
the Seller is selling, Mortgage Loans and not a debt instrument of the Seller or
other security. Accordingly, the parties hereto each intend to treat each of the
transactions hereunder for federal income tax purposes as a sale by the Seller,
and a purchase by the Purchaser, of Mortgage Loans. The Purchaser shall have the
right to review the Mortgage Loans to determine the characteristics of the
Mortgage Loans which shall affect the federal income tax consequences of owning
the Mortgage Loans, and the Seller shall cooperate with all reasonable requests
made by the Purchaser in the course of such review.
Section 7.12. Nonsolicitation
The Seller covenants and agrees that it will not take any action
personally, by telephone, by mail or otherwise, to solicit the prepayment of any
Mortgage Loans by the related Mortgagors, in whole or in part following the
Closing Date with respect to such Mortgage Loans. Notwithstanding the foregoing,
the Seller shall not be prohibited from:
(i) advertising its availability for handling refinancing of
mortgage loans if the Mortgage Loans are not specifically targeted;
(ii) promoting terms available for refinancing by sending letters
or promotional material to the mortgagors of all the mortgage loans that the
Seller or its affiliates owns or services;
(iii) promoting terms available for refinancing by sending
letters or promotional material to the mortgagors of all the mortgage loans of a
specific type (e.g., conventional fixed-rate or conventional adjustable-rate)
that the Seller or its affiliates owns or services;
(iv) promoting terms available for refinancing by sending letters
or promotional material to the mortgagors of all the mortgage loans that fall
within specific interest rate ranges that the Seller or its affiliates owns or
services;
25
(v) providing payoff information or otherwise cooperating with
individual Mortgagors who contact the Seller about prepaying any Mortgage Loan;
or
(vi) advising individual Mortgagors who contact the Seller about
prepaying any Mortgage Loan of refinancing terms or streamlined origination
arrangements that are available.
In no event shall the Seller treat mortgage loans that it holds in its own
portfolio and the Mortgage Loans as separate classes of mortgages for purposes
of advertising the availability of refinancing terms.
Section 7.13. Attorneys' Fees
If either party retains an attorney to enforce any of the provisions of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees from the other party, including, without limitation, fees incurred in
arbitration and in trial and appellate courts, fees incurred without suit, and
all arbitration, court and accounting costs.
Section 7.14. Security Interest
(a) The parties hereto intend that each transfer of a Mortgage Loan
pursuant to this Agreement and the applicable Term Sheet constitute a sale by
the Seller to the Purchaser of such Mortgage Loan, including for accounting
purposes, and not a secured borrowing. It is, further, not the intention of the
parties that any such transfer be deemed the grant of a security interest in any
Mortgage Loan by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, any Mortgage Loan is held to be the property of the Seller, or
if for any other reason this Agreement is held or deemed to create a security
interest in any Mortgage Loan, then (a) this Agreement shall constitute a
security agreement; and (b) the transfer provided for in this Agreement and the
applicable Term Sheet shall be deemed to be a grant by the Seller to the
Purchaser of, and the Seller hereby grants to the Purchaser, to secure all of
the Seller's obligations hereunder, a security interest in all of the Seller's
right, title, and interest, whether now owned or hereafter acquired, in, to and
under: (i) the Mortgage Loans listed on the Mortgage Loan Schedule to each Term
Sheet; (ii) all accounts, chattel paper, deposit accounts, documents, general
intangibles, goods, instruments, investment property, letter-of-credit rights,
letters of credit, money, and oil, gas, and other minerals, consisting of,
arising from, or relating to, any of the foregoing; and (iii) all proceeds of
the foregoing. The Purchaser shall have all of the rights of a secured party
under the applicable Uniform Commercial Code.
(b) The Seller shall take or cause to be taken such actions and
execute such documents, including without limitation the filing of any financing
statements, continuation statements, and amendments to financing statements, as
are necessary to perfect the Purchaser's interests in each Mortgage Loan. The
Seller shall file such financing statements, continuation statements, and
amendments on a timely basis.
26
(c) No later than ten (10) days following each Closing Date, the
Seller shall file in the applicable jurisdictions such UCC financing statements
covering the Mortgage Loans sold by the Seller on such Closing Date as are
necessary to perfect the Purchaser's interests in such Mortgage Loans.
Section 7.15. Covenant Not to Place Purchaser or Trust Into Bankruptcy
The Seller covenants that it shall not, until at least one year and one day
after all securities issued by any Trust to which the Purchaser has transferred
Mortgage Loans have been paid in full, take any action to file an involuntary
bankruptcy petition against the Purchaser or any Trust.
[Signature pages follow]
27
TO WITNESS THIS, the Seller and the Purchaser have caused their names to be
signed to this Mortgage Loan Purchase and Sale Agreement by their duly
authorized respective officers as of the date first above written.
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Senior Vice President
------------------------------------
WaMu ASSET ACCEPTANCE CORP.
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Title: EVP
------------------------------------
EXHIBIT A
CONTENTS OF MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall consist of the
following documents or instruments:
(X) with respect to each Mortgage Loan that is not a Cooperative Loan:
(i) The original Mortgage Note (1) endorsed (A) in blank, without
recourse, (B) to the applicable Trustee, as Trustee, without recourse, (C)
to the applicable Trust, without recourse, (D) to the applicable custodian,
without recourse, (E) to the Seller, or (F) if such Mortgage Loan has been
transferred to the Seller by Washington Mutual Bank or Washington Mutual
Bank fsb, by Washington Mutual Bank or Washington Mutual Bank fsb, as
applicable, and all intervening endorsements evidencing a complete chain of
endorsements from the originator to the endorser last endorsing the
Mortgage Note, or (2) if such Mortgage Loan has been transferred to the
Seller by Washington Mutual Bank or Washington Mutual Bank fsb, naming
Washington Mutual Bank or Washington Mutual Bank fsb, a applicable, as
payee, or, in the event of any Destroyed Mortgage Note, a copy or a
duplicate original of the Mortgage Note, together with an original lost
note affidavit from the originator of the Mortgage Loan, Washington Mutual
Bank, Washington Mutual Bank fsb, or the Seller stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy of the
Mortgage Note;
(ii) The Buydown Agreement, if applicable;
(iii) (1) (x) the original recorded Mortgage with evidence of
recording thereon for the jurisdiction in which the Mortgaged Property is
located (which original recorded Mortgage, in the case of a MOM Loan, shall
set forth the MIN and shall indicate that the Mortgage Loan is a MOM Loan),
(y) unless the Mortgage Loan is a MERS Loan or, if such Mortgage Loan has
been transferred to the Seller by Washington Mutual Bank or Washington
Mutual Bank fsb, the mortgagee named in such Mortgage is Washington Mutual
Bank or Washington Mutual Bank fsb, as applicable, an original assignment
of the Mortgage duly executed and acknowledged in recordable form (A) in
blank, (B) to the applicable Trustee, as Trustee, (C) to the applicable
Trust, (D) to the applicable custodian, (E) to the Seller, or (F) if such
Mortgage Loan has been transferred to the Seller by Washington Mutual Bank
or Washington Mutual Bank fsb, to Washington Mutual Bank or Washington
Mutual Bank fsb, as applicable, and (z) unless the Mortgage Loan is a MOM
Loan or if such Mortgage Loan has been transferred to the Seller by
Washington Mutual Bank or Washington Mutual Bank fsb, the mortgagee named
in such Mortgage is Washington Mutual Bank or Washington Mutual Bank fsb,
as applicable, recorded originals of all intervening assignments evidencing
a complete chain of assignment from the originator to MERS or the party
executing the assignment described in clause (y), as applicable; or
A-1
(2) (x) a copy (which may be in electronic form) of the Mortgage
(which Mortgage, in the case of a MOM Loan, shall set forth the MIN
and shall indicate that the Mortgage Loan is a MOM Loan) which
represents a true and correct reproduction of the original Mortgage
and which has either been certified (i) on the face thereof by the
public recording office in the appropriate jurisdiction in which the
Mortgaged Property is located, or (ii) by the originator, Washington
Mutual Bank, Washington Mutual Bank fsb, the Seller or the escrow or
title company which provided closing services in connection with such
Mortgage Loan as a true and correct copy of the original of which has
been sent for recordation, (y) unless the Mortgage Loan is a MERS Loan
or, if such Mortgage Loan has been transferred to the Seller by
Washington Mutual Bank or Washington Mutual Bank fsb, the mortgagee
named in such Mortgage is Washington Mutual Bank or Washington Mutual
Bank fsb, as applicable, an original assignment of the Mortgage duly
executed and acknowledged in recordable form (A) in blank, (B) to the
applicable Trustee, as Trustee, (C) to the applicable Trust, (D) to
the applicable custodian, (E) to the Seller, or (F) if such Mortgage
Loan has been transferred to the Seller by Washington Mutual Bank or
Washington Mutual Bank fsb, to Washington Mutual Bank or Washington
Mutual Bank fsb, as applicable, and (z) unless the Mortgage Loan is a
MOM Loan or if such Mortgage Loan has been transferred to the Seller
by Washington Mutual Bank or Washington Mutual Bank fsb, the mortgagee
named in such Mortgage is Washington Mutual Bank or Washington Mutual
Bank fsb, as applicable, true and correct copies, certified by the
applicable county recorder or by the originator, Washington Mutual
Bank, Washington Mutual Bank fsb, or the Seller as described above, of
all intervening assignments evidencing a complete chain of assignment
from the originator to MERS or the party executing the assignment
described in clause (y), as applicable;
(iv) For any Mortgage Loan that has been modified or amended, the
original instrument or instruments effecting such modification or
amendment;
and (Y) with respect to each Cooperative Loan:
(i) the original Mortgage Note (1) endorsed (A) in blank, without
recourse, (B) to the applicable Trustee, as Trustee, without recourse, (C)
to the applicable Trust, without recourse, (D) to the applicable custodian,
without recourse, (E) to the Seller, or (F) if such Mortgage Loan has been
transferred to the Seller by Washington Mutual Bank or Washington Mutual
Bank fsb, by Washington Mutual Bank or Washington Mutual Bank fsb, as
applicable, and all intervening endorsements evidencing a complete chain of
endorsements from the originator to the endorser last endorsing the
Mortgage Note, or (2) if such Mortgage Loan has been transferred to the
Seller by Washington Mutual Bank or Washington Mutual Bank fsb, naming
Washington Mutual Bank or Washington Mutual Bank fsb, a applicable, as
payee, or, in the event of any Destroyed Mortgage Note, a copy or a
duplicate original of the Mortgage Note, together with an original lost
note affidavit from the originator of the Cooperative Loan, Washington
Mutual Bank, Washington
A-2
Mutual Bank fsb, or the Seller, as applicable, stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy of the
Mortgage Note;
(ii) A counterpart of the Cooperative Lease and the Assignment of
Proprietary Lease;
(iii) The Cooperative Stock Certificate, together with an undated
stock power or other similar instrument executed in blank;
(iv) The Recognition Agreement;
(v) The Security Agreement;
(vi) Copies of the original UCC financing statement, and any
continuation statements or amendments thereof, each with evidence of
recording thereof, perfecting the security interest granted under the
Security Agreement and the Assignment of Proprietary Lease;
(vii) Unless the Cooperative Loan has been transferred to the Seller
by Washington Mutual Bank or Washington Mutual Bank fsb, and Washington
Mutual Bank or Washington Mutual Bank fsb, as applicable, was the
originator of the Cooperative Loan, copies of the filed UCC assignments or
amendments of the UCC financing statements described in clause (vi) above
showing an unbroken chain of assignments from the originator to the
applicable Trust, the applicable Trustee, the applicable custodian, the
Seller, or if the Cooperative Loan has been transferred to the Seller by
Washington Mutual Bank or Washington Mutual Bank fsb, to Washington Mutual
Bank or Washington Mutual Bank fsb, as applicable, each with evidence of
recording thereof;
(viii) Unless the Cooperative Loan has been transferred to the Seller
by Washington Mutual Bank or Washington Mutual Bank fsb, and Washington
Mutual Bank or Washington Mutual Bank fsb, as applicable, was the
originator of the Cooperative Loan, executed assignments of the interest of
the originator in the Security Agreement, the Assignment of Proprietary
Lease and the Recognition Agreement, showing an unbroken chain of
assignments from the originator to the applicable Trust, the applicable
Trustee, the applicable custodian, the Seller, or if the Cooperative Loan
has been transferred to the Seller by Washington Mutual Bank or Washington
Mutual Bank fsb, to Washington Mutual Bank or Washington Mutual Bank fsb,
as applicable; and
(ix) For any Cooperative Loan that has been modified or amended, the
original instrument or instruments effecting such modification or
amendment.
A-3
EXHIBIT B
TERM SHEET
This Term Sheet (this "Term Sheet") is dated _____, by Washington Mutual
Mortgage Securities Corp., a Delaware corporation, as seller (the "Seller"), and
WaMu Asset Acceptance Corp., a Delaware corporation, as purchaser (the
"Purchaser").
This Term Sheet is entered into pursuant to the terms and conditions of the
Mortgage Loan Purchase and Sale Agreement (the "MLPA"), dated as of December 28,
2005, between the Seller and the Purchaser. All capitalized terms shall have the
meanings ascribed to them in the MLPA, unless otherwise defined herein or in the
Confidential Pricing Supplement. In the event of any inconsistency between this
Term Sheet and either the MLPA or the Confidential Pricing Supplement, the terms
of this Term Sheet shall govern; and in the event of any inconsistency between
the MLPA and the Confidential Pricing Supplement, the terms of the MLPA shall
govern.
The Purchaser hereby purchases from the Seller, and the Seller hereby sells
to the Purchaser, all of the Seller's right, title and interest in and to the
mortgage loans described on the Mortgage Loan Schedule attached hereto as
Schedule I (the "Mortgage Loans") in accordance with the terms of the MLPA, as
supplemented and amended by this Term Sheet and the Confidential Pricing
Supplement.
1. DEFINITIONS
For purposes of this Term Sheet, the following terms shall have the
following meanings:
Aggregate Cut-Off Date Principal
Balance of the Mortgage Loans: ________________________________________
Certificates: Washington Mutual Mortgage Pass-Through
Certificates, [INSERT Series name]
Closing Date: ________________________________________
Custodian: ________________________________________
Cut-Off Date: ________________________________________
High Cost/Covered Loan: A High Cost Loan or a Covered Loan, as
such terms are defined in the Standard &
Poor's LEVELS(R) Glossary in effect on
the Closing Date, which is Version
[___], applicable portions of which are
attached hereto as Schedule II
B-1
Mortgage Loan Type: ________________________________________
Pooling and Servicing Agreement: The Pooling and Servicing Agreement,
dated as of ______, among the Purchaser,
Washington Mutual Bank, as Servicer,
______, as Trustee, and ______, as
Delaware Trustee
Servicing Fee Rate: [___% for each Mortgage Loan] [A range
between ___% and ___%, as set forth for
each Mortgage Loan in the Mortgage Loan
Schedule, with a weighted average of
___%]
Weighted Average Net Rate of the
Mortgage Loans: ________________________________________
2. Amendments to MLPA
a. Notwithstanding anything to the contrary set forth in the MLPA, with
respect to the Mortgage Loans, the representations and warranties set forth
in Section 3.1 and Section 3.2 of the MLPA shall be subject to the
exceptions, if any, set forth on Schedule III to this Term Sheet.
b. Each of the following representations and warranties with respect to the
Mortgage Loans set forth in the indicated clauses of Section 3.1 or Section
3.2 of the MLPA is hereby deleted in its entirety:
[________] [No deletions.]
c. The MLPA is hereby amended to add the following additional
representations and warranties with respect to the Mortgage Loans:
[________] [No additional representations and warranties.]
d. The following additional amendments are hereby made to the MLPA with
respect to the Mortgage Loans:
[________] [No additional amendments.]
e. Except as modified here, the MLPA remains in full force and effect.
[signatures follow]
B-2
TO WITNESS THIS, the parties have caused their names to be signed by their
respective duly authorized officers as of the date first written above.
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
a Delaware corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
WaMu ASSET ACCEPTANCE CORP.
a Delaware corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
-----------------------------------
Acknowledgement of Trader:
This Term Sheet accurately reflects
the terms and conditions of the
sale of the mortgage loans from:
______ WMMSC
to the Purchaser.
-----------------------------------
[Signature page to Term Sheet for Washington Mutual Mortgage Securities Corp.
for [INSERT Series Name]]
SCHEDULE I
MORTGAGE LOAN SCHEDULE OF WASHINGTON MUTUAL MORTGAGE SECURITIES CORP. *
* To be attached as hard copy or as diskette in "read-only" format.
SCHEDULE II
ANTI-PREDATORY LENDING CATEGORIZATION
[INSERT applicable portions of the Standard & Poor's Levels(R) Glossary in
effect on the Closing Date, similar to the following:]
I. High-Cost Loan Categorization
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection High Cost Home Loan
Act, Ark. Code ▇▇▇. Sections
▇▇-▇▇-▇▇▇ et seq.
Effective July 16, 2003
------------------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Covered Loan
Mun. Code Sections 757.01
et seq.
Effective June 2, 2003
------------------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Covered Loan
Colo. Stat. ▇▇▇. Sections
5-3.5-101 et seq.
Effective for covered loans
offered or entered into on or
after January 1, 2003. Other
provisions of the Act took
effect on June 7, 2002
------------------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn.
Gen. Stat. Sections 36a-746
et seq.
Effective October 1, 2001
------------------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Covered Loan
Code Sections 26-1151.01
et seq.
Effective for loans closed on
or after January 28, 2003
------------------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. High Cost Home Loan
▇▇▇. Sections 494.0078 et seq.
Effective October 2, 2002
------------------------------------------------------------------------------------------
Georgia (Oct 1, 2002 - Georgia Fair Lending Act, Ga. High Cost Home Loan
Mar 6, 2003) Code ▇▇▇. Sections 7-6A-1
et seq.
Effective October 1, 2002 -
March 6, 2003
------------------------------------------------------------------------------------------
Georgia as amended (Mar ▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇. High Cost Home Loan
2003 - current) Code ▇▇▇. Sections 7-6A-1
et seq.
Effective for loans closed on
or after March 7, 2003
------------------------------------------------------------------------------------------
B-II-1
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity High Cost Loan
Protection Act of 1994, 15
U.S.C. Section 1639, 12 C.F.R.
Sections 226.32 and 226.34
Effective October 1, 1995,
amendments October 1, 2002
------------------------------------------------------------------------------------------
Indiana Indiana Home Loan Practices High Cost Home Loan
Act, Ind. Code ▇▇▇. Sections
24-9-1-1 et seq.
Effective for loans originated
on or after January 1, 2005.
------------------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. High Risk Home Loan
Comp. Stat. tit. 815, Sections
137/5 et seq.
Effective January 1, 2004
(prior to this date,
regulations under Residential
Mortgage License Act effective
from May 14, 2001)
------------------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. High Loan to Value Consumer
Stat. ▇▇▇. Sections 16a-1-101 Loan (id. Section 16a-3-207)
et seq. and;
Sections 16a-1-301 and High APR Consumer Loan (id.
16a-3-207 became effective Section 16a-3-308a)
April 14, 1999; Section
16a-3-308a became effective
July 1, 1999
------------------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 287 - High Cost High Cost Home Loan
Home Loan Act, Ky. Rev. Stat.
Sections 360.100 et seq.
Effective June 24, 2003
------------------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. High Rate High Fee Mortgage
Stat. tit. 9-A, Sections 8-101
et seq.
Effective September 29, 1995
and as amended from time to
time
------------------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 High Cost Home Loan
C.M.R. Sections 32.00 et seq.
and 209 C.M.R. Sections 40.01
et seq.
Effective March 22, 2001 and
amended from time to time
------------------------------------------------------------------------------------------
Nevada Assembly ▇▇▇▇ No. 284, Nev. Home Loan
Rev. Stat. Sections 598D.010
et seq.
Effective October 1, 2003
------------------------------------------------------------------------------------------
B-II-2
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership High Cost Home Loan
Security Act of 2002, N.J.
Rev. Stat. Sections 46:10B-22
et seq.
Effective for loans closed on
or after November 27, 2003
------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. High Cost Home Loan
Rev. Stat. Sections 58-21A-1
et seq.
Effective as of January 1,
2004; Revised as of February
26, 2004
------------------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications
made on or after April 1, 2003
------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations High Cost Home Loan
on High Cost Home Loans, N.C.
Gen. Stat. Sections 24-1.1E
et seq.
Effective July 1, 2000;
amended October 1, 2003
(adding open-end lines of
credit)
------------------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code),
Ohio Rev. Code ▇▇▇. Sections
1349.25 et seq.
Effective May 24, 2002
------------------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified Subsection 10 Mortgage
in various sections of Title
14A)
Effective July 1, 2000;
amended effective January 1,
2004
------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C.
Code ▇▇▇. Sections 37-23-10
et seq.
Effective for loans taken on
or after January 1, 2004
------------------------------------------------------------------------------------------
West Virginia West Virginia Residential West Virginia Mortgage Loan
Mortgage Lender, Broker and Act Loan
Servicer Act, W. Va. Code ▇▇▇.
Sections 31-17-1 et seq.
Effective June 5, 2002
------------------------------------------------------------------------------------------
B-II-3
II. Covered Loan Categorization
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------------------------------------------------------------------------------
Georgia (Oct 1, 2002 - Georgia Fair Lending Act, Ga. Covered Loan
Mar 6, 2003) Code ▇▇▇. Sections 7-6A-1
et seq.
Effective October 1, 2002 -
March 6, 2003
------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Covered Home Loan
Security Act of 2002, N.J.
Rev. Stat. Sections 46:10B-22
et seq.
Effective November 27, 2003 -
July 5, 2004
------------------------------------------------------------------------------------------
B-II-4
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES OF
THE SELLER CONCERNING THE MORTGAGE LOANS
The representations and warranties made, pursuant to Section 3.1 of the
MLPA, by Washington Mutual Mortgage Securities Corp. with respect to the
Mortgage Loans to be sold by it on the Closing Date are subject to the following
exceptions:
[None.]
[INSERT applicable exceptions]
1. Section 3.1(iv) - As of the Cut-Off Date, ___ Mortgage Loans with the
following loan numbers were delinquent between __ and __ days:
Loan Numbers: ____.
2. Section 3.1(iv) - As of the Cut-Off Date, ___ Mortgage Loans with the
following loan number were delinquent more than once in the preceding 12
months between:
Loan Numbers: ____.
3. Section 3.1(x) - ___ Mortgage Loans with the following loan numbers had
both (i) an Original Loan-to-Value Ratio and (ii) a Current Loan-to-Value
Ratio in excess of 80% and were not covered by a Primary Insurance Policy
or an FHA insurance policy or a VA guaranty:
Loan Numbers: ____.
4. Section 3.1(xviii) - ___ Mortgage Loans with the following loan numbers are
Buydown Loans:
Loan Numbers: ____.
5. Section 3.1(____) - [other exceptions]:
Loan Numbers: ____.
EXHIBIT C
CONFIDENTIAL PRICING SUPPLEMENT
This Confidential Pricing Supplement (this "Confidential Pricing
Supplement") is dated _____, by Washington Mutual Mortgage Securities Corp., a
Delaware corporation, as seller (the "Seller"), and WaMu Asset Acceptance Corp.,
a Delaware corporation, as purchaser (the "Purchaser").
This Confidential Pricing Supplement is entered into pursuant to the terms
and conditions of the Mortgage Loan Purchase and Sale Agreement (the "MLPA"),
dated as of December 28, 2005, between the Seller and the Purchaser, as
supplemented and amended by the Term Sheet (the "Term Sheet"), dated the date
hereof, between the Seller and the Purchaser and relating to [INSERT Series
Name]. All capitalized terms shall have the meanings ascribed to them in the
MLPA, unless otherwise defined herein or in the Term Sheet. In the event of any
inconsistency between the MLPA and this Confidential Pricing Supplement, the
terms of the MLPA shall govern; and in the event of any inconsistency between
the Term Sheet and either this Confidential Pricing Supplement or the MLPA, the
terms of the Term Sheet shall govern.
For purposes of this Confidential Pricing Supplement and the sale by the
Seller to the Purchaser of the Mortgage Loans described on the Mortgage Loan
Schedule attached as Schedule I to the Term Sheet, the Purchase Price Percentage
shall be: ______________.
[signatures follow]
C-1
TO WITNESS THIS, the parties have caused their names to be signed by their
respective duly authorized officers as of the date first written above.
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
a Delaware corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
WaMu ASSET ACCEPTANCE CORP.
a Delaware corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
------------------------------------
Acknowledgement of Trader:
This Confidential Pricing Supplement
accurately reflects the terms and
conditions of the sale of the
mortgage loans from:
______ WMMSC
to the Purchaser.
------------------------------------
[Signature page to Confidential Pricing Supplement for Washington Mutual
Mortgage Securities Corp. for [INSERT Series Name] ]