EXHIBIT 99.7
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MORTGAGE LOAN PURCHASE AGREEMENT
by and between
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING INC.
(Purchaser)
and
WASHINGTON MUTUAL BANK
WASHINGTON MUTUAL BANK FSB
(Sellers)
Dated as of May 1, 2006
RESIDENTIAL FIRST LIEN MORTGAGE LOANS
SCHEDULE/SCHEDULE FLOW DELIVERY PROGRAM
WASHINGTON MUTUAL BANK, AS SERVICER
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS................................................... 1
ARTICLE 2. CONVEYANCE AND TRANSFER....................................... 12
Section 2.1 Conveyance and Transfer................................. 12
Section 2.2 Sale Date............................................... 12
Section 2.3 Due Diligence Examination............................... 14
ARTICLE 3. CONSIDERATION................................................. 14
Section 3.1 Purchase Price.......................................... 14
ARTICLE 4. REPRESENTATIONS AND WARRANTIES................................ 14
Section 4.1 Representations and Warranties of Sellers............... 14
Section 4.2 Remedies................................................ 24
Section 4.3 Representations and Warranties of Purchaser............. 25
ARTICLE 5. COVENANT NOT TO SOLICIT....................................... 26
ARTICLE 6. SERVICING THE MORTGAGE LOANS.................................. 27
ARTICLE 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.............. 27
Section 7.1 Correctness of Representations and Warranties........... 27
Section 7.2 Compliance With Conditions.............................. 27
Section 7.3 No Material Adverse Change.............................. 27
Section 7.4 No Actions.............................................. 27
ARTICLE 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS................ 27
Section 8.1 Correctness of Representations and Warranties........... 28
Section 8.2 Compliance with Conditions.............................. 28
Section 8.3 No Actions.............................................. 28
ARTICLE 9. RECONSTITUTIONS; REGULATIONS AB COMPLIANCE.................... 28
Section 9.1 Reconstitutions......................................... 28
Section 9.2 Reconstitution Agreements............................... 29
Section 9.3 Intent of the Parties; Reasonableness................... 29
Section 9.4 Information to be Provided by the Seller................ 30
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Section 9.5 Indemnification......................................... 32
ARTICLE 10. CLOSING DOCUMENTS............................................ 33
Section 10.1 Sale Date............................................... 33
ARTICLE 11. MISCELLANEOUS PROVISIONS..................................... 33
Section 11.1 Costs and Expenses...................................... 33
Section 11.2 Survival of Representations, Warranties and
Indemnifications..................................... 34
Section 11.3 Notices................................................. 34
Section 11.4 Waivers................................................. 35
Section 11.5 Entire Agreement; Amendment............................. 35
Section 11.6 Binding Effect.......................................... 35
Section 11.7 Headings................................................ 35
Section 11.8 Governing Law........................................... 35
Section 11.9 Incorporation of Exhibits............................... 36
Section 11.10 Counterparts............................................ 36
Section 11.11 Assignment.............................................. 36
Section 11.12 Merger or Consolidation of a Seller..................... 36
Section 11.13 Consideration........................................... 36
Section 11.14 Obligations of the Sellers.............................. 36
EXHIBIT A--Mortgage File
EXHIBIT B--Form of Memorandum of Sale
EXHIBIT C--Form of Security Release Certification
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MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement"), dated as of May
1, 2006, is by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING INC., as purchaser
("Purchaser"), and WASHINGTON MUTUAL BANK and WASHINGTON MUTUAL BANK fsb as
sellers (each a "Seller" and together, the "Sellers").
WITNESSETH:
WHEREAS, Sellers are in the business of dealing in residential first lien
mortgage loans; and
WHEREAS, in reliance upon the representations, warranties and covenants of
each Seller contained herein, the Purchaser desires to purchase from each
Seller, from time to time, and each Seller desires to sell to the Purchaser,
from time to time, certain residential first lien mortgage loans, subject to the
terms and conditions of this Agreement, without recourse and exclusive of the
related servicing rights; and
WHEREAS, Sellers and the Purchaser desire that Washington Mutual Bank
service the mortgage loans in the manner described in the Servicing Agreement;
and
WHEREAS, following its purchase of the mortgage loans from Sellers,
Purchaser may desire to sell some or all of the mortgage loans to one or more
purchasers pursuant to a Whole Loan Transfer or a Pass-Through Transfer.
NOW, THEREFORE, in consideration of the mutual covenants made herein and
for other good and valuable consideration the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
Adjustable Rate Mortgage Loan: A Mortgage Loan that bears a rate of
interest that changes in accordance with the terms of the related Mortgage Note.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, a date specified
in the related Mortgage Note as the date on which the Mortgage Interest Rate for
the related Mortgage Loan is subject to adjustment.
Agreement: This Mortgage Loan Purchase Agreement, including all exhibits,
attachments and schedules hereto, and all amendments hereof and supplements
hereto.
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ALTA: The American Land Title Association and any successor thereto.
Appraised Value: With respect to any Mortgage Loan that is not a
Streamlined Mortgage Loan, the lesser of (i) the value set forth on the
appraisal by an appraiser who met the minimum requirements of either the
Seller's Underwriting Guidelines or the Mortgage Loan originator's underwriting
guidelines at the time of origination made in connection with the origination of
the related Mortgage Loan as the value of the related Mortgaged Property, and
(ii) 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, such value shall be based solely on the appraisal made in
connection with the origination of such Mortgage Loan. With respect to any
Streamlined Mortgage Loan, the value set forth in the appraisal by an appraiser
who met the minimum requirements of either the Seller's Underwriting Guidelines
or the Mortgage Loan originator's underwriting guidelines at the time of
origination made in connection with the origination of the mortgage loan being
refinanced.
Assignment of Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument in recordable form sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect the
transfer of the Mortgage to the assignee named therein, which assignment, notice
of transfer or equivalent instrument may be in the form of one or more blanket
assignments covering Mortgages secured by Mortgaged Properties in the same
county or other recording jurisdiction, where permitted by law.
Assignment of Proprietary Lease: With respect to a Cooperative Loan, the
assignment of the related Cooperative Lease from the Mortgagor to the originator
of the Cooperative Loan.
Business Day: Any day other than (a) a Saturday or Sunday, (b) a day on
which banking institutions in the State of Illinois, Washington, California or
New York are authorized or obligated by law or by executive order to be closed.
Code: The Internal Revenue Code of 1986, as amended, from time to time, or
any successor statute thereto.
Commission: The United States Securities and Exchange Commission.
Commitment Letter: The commitment letter entered into between the Sellers
and the Purchaser that provides for the purchase of Mortgage Loans pursuant to
the terms of this Agreement and sets forth the purchase price for and certain
other terms and conditions of the sale and purchase of such Mortgage Loans.
Cooperative: A private, cooperative housing corporation organized under the
laws of, and headquartered in the state in which the related premises are
located, which owns or leases land and all or part of a building or buildings
located in any such state, 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 of a Cooperative Lease.
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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 Loans: Any of the Mortgage Loans made in respect of a
Cooperative Apartment, evidenced by a Mortgage Note and secured by (i) a
Security Agreement, (ii) the related Cooperative Stock Certificate, (iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing statements and
(v) a stock power (or other similar instrument), and ancillary thereto, a
recognition agreement between the Cooperative and the originator of the
Cooperative Loan, each of which was transferred and assigned to the Seller.
Cooperative Stock: With respect to a Cooperative Loan, the outstanding
shares of stock, partnership interest or other ownership instrument in a
Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan, the
stock certificate or other instrument evidencing the related Cooperative Stock.
Custodial Agreement: The agreement between the Purchaser and the Custodian,
pursuant to which the Custodian shall hold the Mortgage File documents for the
benefit of the Purchaser.
Custodian: ▇▇▇▇▇ Fargo Bank N.A., or its successor in interest or assigns.
Cut-Off Date: As to each Mortgage Loan purchased on a particular Sale Date,
the cut-off date specified in the Commitment Letter relating to the purchase and
sale of the related Loan Pool.
Cut-Off Date Principal Balance: As to each Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the close of business on the
Cut-Off Date, after giving effect to scheduled Monthly Payments due on or before
the Cut-Off Date, whether or not received.
Data Tape: With respect to the Mortgage Loans to be sold pursuant to this
Agreement, the data tape which shall be provided on the Sale Date and shall set
forth as to each applicable Mortgage Loan the following information:
(i) the Mortgagor's and co-mortgagor's name;
(ii) the street address of the Mortgaged Property;
(iii) a code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family dwelling, a PUD, a townhouse or a unit in a
high-rise or low-rise condominium project;
(iv) a code indicating the loan is a fixed rate mortgage loan;
(v) a code indicating the Mortgage Loan is a conventional Mortgage Loan;
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(vi) a code indicating the lien status of the Mortgage Loan;
(vii) the Loan-to-Value Ratio at origination;
(viii) the origination date of the Mortgage Loan;
(ix) the first Due Date of the Mortgage Loan;
(x) the amount of the Monthly Payment at origination;
(xi) the next Due Date of the Mortgage Loan;
(xii) the original principal amount of the Mortgage Loan;
(xiii) the Mortgage Loan purpose type;
(xiv) the occupancy status of the Mortgaged Property at the time of
origination;
(xv) the lower of the Mortgagor's and co-mortgagor's FICO score;
(xvi) a code indicating the mortgage insurance provider and percent of
coverage, if applicable;
(xvii) the mortgage insurance certificate number, if applicable;
(xviii) the loan documentation type;
(xix) Mortgagor social security number;
(xx) co-Mortgagor social security number;
(xxi) a code indicating whether the Mortgage Loan has a prepayment penalty;
(xxii) a code indicating the prepayment penalty term of the Mortgage Loan,
if any;
(xxiii) MIN, if applicable;
(xxiv) the number of units for all Mortgaged Properties;
(xxv) a code indicating the payment status of the Mortgage Loan (i.e..
bankruptcy, foreclosure, REO);
(xxvi) with respect to each Adjustable Rate Mortgage Loan, the Index and
payment and interest rate adjustment frequencies;
(xxvii) with respect to each Adjustable Rate Mortgage Loan, the initial
Adjustment Date;
(xxviii) with respect to each Adjustable Rate Mortgage Loan, the initial
payment adjustment date;
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(xxix) with respect to each Adjustable Rate Mortgage Loan, the next
Adjustment Date;
(xxx) with respect to each Adjustable Rate Mortgage Loan, the next payment
adjustment date;
(xxxi) with respect to each Adjustable Rate Mortgage Loan, the Margin;
(xxxii) with respect to each Adjustable Rate Mortgage Loan, the Minimum
Mortgage Interest Rate under the terms of the Mortgage Note;
(xxxiii) with respect to each Adjustable Rate Mortgage Loan, the Maximum
Mortgage Interest Rate under the terms of the Mortgage Note;
(xxxiv) with respect to each Adjustable Rate Mortgage Loan, the periodic
rate cap at the initial Adjustment Date;
(xxxv) with respect to each Adjustable Rate Mortgage Loan, the periodic
rate cap at all subsequent Adjustment Dates;
(xxxvi) with respect to each Adjustable Rate Mortgage Loan, the lifetime
rate cap;
(xxxvii) the rounding provisions under the terms of the Mortgage Note;
(xxxviii) the look back provisions (number of days) under the terms of the
Mortgage Note; and
(xxxix) the Seller.
Depositor: The depositor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Disclosure Document: With respect to any Securitization Transaction, a
prospectus, prospectus supplement, private placement memorandum or offering
circular prepared in connection with such Securitization Transaction.
Document Exceptions: The schedule, if any, attached to a Memorandum of Sale
that sets forth the exceptions to the Mortgage File with respect to one or more
Mortgage Loans on the related Mortgage Loan Schedule.
Due Date: With respect to any Mortgage Loan, the day of the month on which
the Monthly Payment on such Mortgage Loan are due, exclusive of any days of
grace, which day shall be the first day of each calendar month.
Exception Schedule: The schedule, if any, attached to a Memorandum of Sale
that sets forth exceptions to the representations and warranties set forth in
Section 4.1 with respect to one or more Mortgage Loans on the related Mortgage
Loan Schedule.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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FHLMC: ▇▇▇▇▇▇▇ Mac, or its successor-in-interest.
FHLMC Selling Guide: The FHLMC Selling Guide as in effect from time to
time, subject to such waivers, variances and modifications as have been and may
be agreed to between FHLMC and the Sellers.
FNMA: ▇▇▇▇▇▇ Mae, or its successor-in-interest.
FNMA Selling Guide: The ▇▇▇▇▇▇ ▇▇▇ Selling Guide as in effect from time to
time, subject to such waivers, variances and modifications as have been and may
be agreed to between FNMA and the Sellers.
FNMA Servicing Guide: The ▇▇▇▇▇▇ Mae Servicing Guide as in effect from time
to time, subject to such waivers, variances and modifications as have been and
may be agreed to between FNMA and the Servicer.
HUD: The United States Department of Housing and Urban Development, or any
successor thereto.
Index: With respect to any Adjustable Rate Mortgage Loan, the index set
forth in each adjustable rate Mortgage Note, which index is added to the Margin
to determine the Mortgage Interest Rate on each Adjustment Date.
Issuing Entity: The issuing entity, as such term is defined in Regulation
AB, with respect to any Securitization Transaction.
Insurers: Private mortgage guaranty insurers which are (a) licensed to
transact a mortgage guaranty insurance business in the states where Mortgaged
Properties for which they have written Primary Mortgage Insurance Policies are
located and (b) approved by FHLMC or FNMA.
Loan Pool: A pool of Mortgage Loans sold by one Seller or both Sellers to
the Purchaser on any Sale Date pursuant to the terms of this Agreement and the
related Commitment Letter (which Mortgage Loans shall be identified on the
related Mortgage Loan Schedule delivered pursuant to this Agreement).
Loan-to-Value Ratio: With respect to each Mortgage Loan, the original
principal balance of a Mortgage Loan divided by the Original Value.
Margin: For each Adjustable Rate Mortgage Loan, the applicable fixed per
annum percentage rate specified in the applicable Mortgage Note and designated
as such in the Mortgage Loan Schedule or Data Tape, which, when added to the
applicable Index, determines the Mortgage Interest Rate, subject to the
restrictions provided by the Mortgage Note.
Maximum Mortgage Interest Rate: With respect to any Adjustable Rate
Mortgage Loan, the maximum rate of interest that may be charged pursuant to the
related Mortgage Note.
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Memorandum of Sale: A memorandum of sale entered into between the Sellers
and the Purchaser that provides for the purchase of Mortgage Loans pursuant to
the terms of this Agreement, in the form attached hereto as Exhibit B, and sets
forth certain terms and conditions for the sale and purchase of such Mortgage
Loans.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and any successor thereto.
MERS Loan: Any Mortgage Loan registered on the MERS system and for which
MERS is listed as the record mortgagee or beneficiary on the related Mortgage or
assignment thereof.
MERS System: The system of electronically recording transfers of Mortgages
contained by MERS.
MIN: The mortgage identification number issued to each MERS Loan.
Minimum Mortgage Interest Rate: With respect to any Adjustable Rate
Mortgage Loan, the minimum rate of interest, if any, that may be charged
pursuant to the related Mortgage Note.
MOM Loan: A Mortgage Loan that was registered on the MERS System at the
time of origination thereof and for which MERS appears as the record mortgagee
or beneficiary on the related Mortgage.
Monthly Payment: The scheduled monthly payment of principal and interest on
a Mortgage Loan which is payable by a Mortgagor from time to time under the
related Mortgage Note and due on the applicable Due Date.
Mortgage: The mortgage, deed of trust or other security instrument
evidencing the creation of a first lien security interest in a fee simple estate
in real property securing repayment of the Mortgage Note, or, in the case of a
Cooperative Loan, the security agreement or other instrument creating a first
lien on the related Cooperative Shares.
Mortgage File: The mortgage documents pertaining to a particular Mortgage
Loan as set forth on Exhibit A.
Mortgage Interest Rate: The annual rate of interest on a Mortgage Note.
Mortgage Loan: A first lien residential mortgage loan sold by the
applicable Seller or Sellers to Purchaser pursuant to the terms and conditions
of this Agreement, each such mortgage loan being identified on the related
Mortgage Loan Schedule. The term Mortgage Loan includes a Cooperative Loan.
Mortgage Loan Schedule: With respect to the Mortgage Loans in a Loan Pool
sold pursuant to this Agreement, the schedule of Mortgage Loans which shall be
attached to the Memorandum of Sale and shall set forth as to each applicable
Mortgage Loan the following information, to the extent applicable:
(i) the Seller's Mortgage Loan identifying number;
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(ii) the city, state and zip code of the Mortgaged Property;
(iii) the original months to maturity from the Cut-Off Date, based on the
original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual amortization
schedule;
(iv) with respect to Adjustable Rate Mortgage Loans:
(a) the Margin, and
(b) the Mortgage Interest Rate, periodic cap, lifetime floor and
lifetime ceiling and, if applicable, the negative amortization
cap;
(v) the Mortgage Interest Rate of the Mortgage Loan as of the Cut-Off
Date;
(vi) the stated maturity date of the Mortgage Loan;
(vii) the amount of the Monthly Payment as of the Cut-Off Date;
(viii) the last Due Date on which a Monthly Payment was actually applied to
the Stated Principal Balance;
(ix) the scheduled principal balance of the Mortgage Loan as of the close
of business on the Cut-Off Date, after deduction of payments of
principal due on or before the Cut-Off Date whether or not collected,
if applicable;
(x) a Primary Mortgage Insurance Policy Insurer code (if applicable);
(xi) the property value of the Mortgaged Property;
(xii) the Mortgage Interest Rate under the terms of the Mortgage Note; and
(xiii) the Servicing Fee applicable to such Mortgage Loan.
With respect to the Mortgage Loans in the aggregate, the Mortgage Loan
Schedule shall set forth the following information, as of the Cut-Off Date: (1)
the number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average mortgage interest rate
of the Mortgage Loans; and (4) the weighted average maturity of the Mortgage
Loans.
Mortgage Note: The note or other instrument evidencing the Mortgagor's
obligation to repay the amount of the Mortgage Loan, executed by the Mortgagor
or its authorized agent.
Mortgaged Property: The real property, together with improvements thereto,
securing the Mortgage Note pursuant to the related Mortgage Loan, or, in the
case of a Cooperative Loan, the items described under the definition of
"Cooperative Loan", none of which is a mobile home or manufactured housing.
Mortgagor: The obligor(s) on a Mortgage Note.
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Original Value: With respect to any Mortgage Loan other than a Mortgage
Loan originated for the purpose of refinancing an existing mortgage debt, the
lesser of (a) the Appraised Value of the Mortgaged Property at the time the
Mortgage Loan was originated or (b) the purchase price paid for the Mortgaged
Property by the Mortgagor: With respect to a Mortgage Loan originated for the
purpose of refinancing existing mortgage debt, the Original Value shall be equal
to the Appraised Value of the Mortgaged Property at the time the Mortgage Loan
was originated.
Permitted Reconstitution: A Whole Loan Transfer or Securitization
Transaction that complies with the provisions of Section 9.1(a).
Person: Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Portfolio Loans: The meaning as set forth in Section 9.1(d) herein.
Primary Mortgage Insurance Policy: With respect to each Mortgage Loan, a
policy of primary mortgage insurance (including all endorsements thereto) issued
with respect to such Mortgage Loan, which complies with substantially all of the
requirements established by FNMA or FHLMC for such policies.
Purchase Price: For each Mortgage Loan purchased hereunder, an amount equal
to the product of the applicable Purchase Price Percentage and the Cut-Off Date
Principal Balance of such Mortgage Loan.
Purchase Price Percentage: For each Mortgage Loan, the percentage of par
set forth in the related Memorandum of Sale that is used to calculate the
Purchase Price of each Mortgage Loan.
Purchaser: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending Inc., a Delaware corporation, or
its successors in interest or assigns.
Qualified Correspondent: Any Person from which the Seller purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite mortgage loans
from time to time, for sale to the Seller, in accordance with underwriting
guidelines designated by the Seller ("Designated Guidelines") or guidelines that
do not vary materially from such Designated Guidelines; (ii) such Mortgage Loans
were in fact underwritten as described in clause (i) above and were acquired by
the Seller within 180 days after origination; (iii) either (x) the Designated
Guidelines were, at the time such Mortgage Loans were originated, used by the
Seller in origination of mortgage loans of the same type as the Mortgage Loans
for the Seller's own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
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channels) designed to ensure that Persons from which it purchased mortgage loans
properly applied the underwriting criteria designated by the Seller.
Qualified Insurer: An insurer acceptable under the applicable Seller's
underwriting guidelines or the originator's underwriting guidelines or
acceptable under the FNMA Selling Guide or the FHLMC Selling Guide.
Reconstitution: Any Securitization Transaction or Whole Loan Transfer.
Reconstitution Agreement: An agreement or agreements entered into by the
Seller and the Purchaser and/or certain third parties, including a master
servicer, in connection with a Reconstitution with respect to any or all of the
Mortgage Loans serviced under this Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. Sections 229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
REMIC: A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to a
REMIC, which appear at section 860A through 860G of Subchapter M of Chapter 1,
Subtitle A of the Code, and related provisions, and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Required Notice: With respect to any Reconstitution, 15 days' prior written
notice (i) accompanied by loan-level data with respect to the Mortgage Loans
intended for inclusion in such Reconstitution and (ii) specifying the percentage
of mortgage loans in the entire related transaction that consist of Mortgage
Loans.
Sale Date: With respect to any Loan Pool, the date on which the Purchaser
purchases the Mortgage Loans included in such Loan Pool.
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.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a sale or
other transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all of
the Mortgage Loans.
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Seller: As the context requires, Washington Mutual Bank and/or Washington
Mutual Bank fsb and their respective assigns and successors in interest.
Seller Information: The information provided by the Seller pursuant to
Sections 9.4(a) and (b).
Seller's Underwriting Guidelines: The underwriting guidelines of the
applicable Seller.
Servicer: Washington Mutual Bank, a savings bank organized under the laws
of the United States, or its permitted successor in interest, or any successor
to the Servicer under the Servicing Agreement appointed as therein provided.
Servicing Agreement: That certain Servicing Agreement by and between
Purchaser and Servicer dated as of November 1, 2005, as amended by the
Regulation AB Amendment to Servicing Agreement, dated as of November 1, 2005.
Servicing Cut-Off Date: As to each Mortgage Loan purchased on a Sale Date,
the last day of the calendar month in which the Sale Date occurs.
Servicing Fee: The meaning as set forth in the Servicing Agreement.
Sponsor: The sponsor, as such term is defined in Regulation AB, with
respect to any Securitization Transaction.
Static Pool Information: Static pool information as described in Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Streamlined Mortgage Loan: A Mortgage Loan originated in connection with
the refinance of a mortgage loan pursuant to the related Seller's streamlined
loan documentation program then in effect.
Subsequent Transfer Settlement Date: As defined in Section 9.1.
Third-Party Originator: Each Person, other than a Qualified Correspondent,
from which the Seller acquired Mortgage Loans.
Unpaid Principal Balance: With respect to each Mortgage Loan, as of any
date of determination, (i) the Cut-Off Date Principal Balance, minus (ii) the
principal portion of all payments made by or on behalf of the Mortgagor after
such Cut-Off Date and received by the Purchaser.
Wire Instructions: Bank Name: Washington Mutual Bank, ABA/Routing #:
▇▇▇▇▇▇▇▇▇, Account Name: Washington Mutual Mortgage Securities Corp., Account #:
205659331, Ref: as provided in the Memorandum of Sale, or such other
instructions as provided in any Memorandum of Sale.
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage
Loans, other than a Securitization Transaction.
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ARTICLE 2.
CONVEYANCE AND TRANSFER
SECTION 2.1 CONVEYANCE AND TRANSFER
On each Sale Date, subject to the terms and conditions of this Agreement,
the applicable Seller or Sellers shall sell, transfer, assign and deliver to
Purchaser, without recourse and Purchaser shall purchase, all right, title and
interest in and to the Mortgage Loans, exclusive of the related servicing
rights.
As of each Sale Date, the Purchaser shall own and be entitled to receive
with respect to each Mortgage Loan purchased on such Sale Date all Monthly
Payments and all other recoveries of principal and interest due after the
applicable Cut-Off Date, subject to the rights of the Servicer in accordance
with the terms of the Servicing Agreement to the Servicing Fees and
reimbursement for certain costs, expenses, and advances incurred or made
pursuant thereto. All such amounts that are collected after the applicable
Cut-Off Date through and including the related Sale Date, shall be held and
remitted by the Servicer, in accordance with the terms of the Servicing
Agreement.
SECTION 2.2 SALE DATE
(a) At least three Business Day's prior to each Sale Date (unless otherwise
agreed to in the Commitment Letter), the applicable Seller or Sellers shall
deliver or cause to be delivered to the Custodian the Mortgage File related to
each Mortgage Loan to be purchased by the Purchaser. Prior to the payment for
the related Mortgage Loan, such documents shall be held by the Custodian as
custodian for such Seller. Upon payment for the related Mortgage Loans pursuant
to Section 3.1 below, the beneficial ownership of each Mortgage File with
respect to such Mortgage Loan is and shall be vested in the Purchaser. Such
Seller shall, in connection with such delivery:
(i) with respect to each Mortgage Loan:
(a) cause the related Mortgage Note to be endorsed "Pay to the
order of __________________________, without recourse"; and
(b) assign in blank the related Mortgage by an Assignment of
Mortgage signed by such Seller or the originator of the Mortgage
Loan, in either case showing a complete chain of title from such
Seller or such originator and in form and substance acceptable
for recording (except with respect to Assignments of Mortgage in
blank which shall be acceptable for recording upon insertion of
the assignee's name).
(b) Pursuant to the Custodial Agreement, the Custodian shall certify its
receipt of all documents constituting the Mortgage File for the Sale Date,
pursuant to an initial custody receipt and initial certification of the
Custodian and subject to the exception report attached to such certification or
subsequent certifications delivered under the Custodial Agreement. The Custodian
shall deliver such initial certification on or prior to the Sale Date.
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(c) The Purchaser shall notify the applicable Seller or Sellers and the
Custodian if any document or documents constituting a part of the Mortgage File
are defective or missing in any material respect and if such omission or defect
materially and adversely affect the interests of the Purchaser in the Mortgage
Loan. Such Seller shall correct or cure such omission or defect within 60 days
from the date such Seller was notified of such omission or defect and, if such
Seller does not correct or cure such omission or defect within such period, then
such Seller shall purchase such Mortgage Loan from the Purchaser within 10 days
after the expiration of such 60-day period by depositing in immediately
available funds the repurchase price for such Mortgage Loan to the account
designated by the Purchaser, calculated and payable in the manner set forth in
Section 4.2; provided, however, that the foregoing repurchase obligation shall
not apply in the event such Seller cannot deliver such items due to a delay
caused by the recording office in the applicable jurisdiction. The Purchaser
shall be responsible for the ongoing fees and expenses of the Custodian so long
as the Custodian is ▇▇▇▇▇ Fargo Bank N.A.
(d) If any original Mortgage or intervening Assignment of Mortgage has been
delivered for recording to the appropriate public recording office of the
jurisdiction in which the related Mortgaged Property is located and such
recording office retains such original document, or if an original Mortgage or
intervening Assignment of Mortgage has been lost, then the applicable Seller
shall deliver to the Custodian in lieu of such original document a photocopy
certified by such recording office to be a true and correct copy of such
original. If such Seller does not deliver an original Mortgage or Assignment of
Mortgage within one hundred and eighty (180) days after the Sale Date due solely
to the failure of the applicable recorder's office to return such document, the
Purchaser may extend the 180-day period by ninety (90) or more days upon receipt
by the Purchaser of an Officer's Certificate from such Seller accompanied by
evidence that the Seller is diligently proceeding to obtain and deliver any such
documents. In the event that such Seller does not comply with the delivery
requirements set forth in this Section 2.2, the related Mortgage Loan shall,
upon the request of the Purchaser, be repurchased by the Seller at the
repurchase price and in the manner specified in this Section 2.2.
Notwithstanding the foregoing, such Seller shall not be deemed to be in breach
of this Agreement if such Seller fails to deliver to the Custodian within the
time period specified in this Agreement any of the documents described in this
Section 2.2 and provides evidence to the Custodian that such failure is due
solely to the failure of the applicable recorder's office to return a Mortgage
Loan document that was properly submitted for recordation. Such Seller shall use
reasonable efforts to obtain such original recorded document or copy of the
original showing recording information certified by the appropriate recording
office to be a true and complete copy of the recorded original as soon as
practicable.
(e) The Servicer shall forward to the Purchaser or its designees, any
original documents evidencing an assumption, modification or consolidation or
extension of any Mortgage Loan purchased by the Purchaser that is entered into
after the Sale Date.
(f) Whenever a certified copy of a Mortgage Loan document certified by a
Seller is required to be delivered to the Purchaser, the following form of
certification is permitted: "Certified true, correct and complete copy of the
original. [Name of Seller], By _________________, Its _________________."
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(g) The Custodian shall issue its initial certification with respect to the
Mortgage Loans on or prior to the Sale Date. Purchaser shall have no obligation
to purchase any Mortgage Loans on the Sale Date for which the Custodian has
indicated in its initial certification that there are material defects or
omissions in the Mortgage File; provided, that once the Purchaser has paid to
the Seller the Purchase Price for each Mortgage Loan pursuant to Section 3.1
herein, Seller shall have all rights to cure and correct any such defects or
omissions as provided in Section 2.2(c) above.
SECTION 2.3 DUE DILIGENCE EXAMINATION
Prior to the fifth Business Day preceding the Sale Date, Purchaser shall
have the right, during Seller's regular business hours and without interrupting
Seller's operations, to review the Mortgage Files, including all credit and
underwriting information, for the purpose of determining that the Mortgage Loans
meet the requirements set forth in the related Memorandum of Sale and this
Agreement.
ARTICLE 3.
CONSIDERATION
SECTION 3.1 PURCHASE PRICE
On the Sale Date, Purchaser shall pay the applicable Seller or Sellers, by
wire transfer of immediately available funds in accordance with the Wire
Instructions, the sum of (i) the applicable Purchase Price for each Mortgage
Loan purchased on the Sale Date and (ii) the accrued interest on the Cut-Off
Date Principal Balance of the Mortgage Loans, from the Cut-Off Date through the
day prior to the Sale Date at the weighted average (by principal balance) of the
Mortgage Interest Rates borne by such Mortgage Loans as set forth in the
Memorandum of Sale less the related Servicing Fees.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF SELLERS
Each of the Sellers hereby, severally and not jointly, represents,
warrants and covenants to the Purchaser as to such Seller as of each Sale Date
on which such Seller sells Mortgage Loans hereunder, and with respect to the
Mortgage Loans sold by such Seller, as of the related Sale Date:
(a) Organization. If the Seller is Washington Mutual Bank, the Seller
is a federally chartered savings bank, duly organized, validly existing and in
good standing under the laws of the United States. If the Seller is Washington
Mutual Bank fsb, the Seller is a savings bank, duly organized, validly existing
and in good standing under the laws of the United States.
(b) Authority and Capacity. Seller has all requisite corporate power,
authority and capacity to enter into this Agreement and to perform the
obligations required of it hereunder.
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This Agreement has been duly authorized, validly executed and delivered by
Seller and (assuming the due authorization and execution of this Agreement by
Purchaser) constitutes a valid and legally binding agreement of Seller
enforceable in accordance with its terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, receivership, conservatorship,
moratorium, reorganization, arrangement and other similar laws of general
applicability relating to or affecting creditor's rights and (ii) general
principles of equity, whether such enforcement is sought in a proceeding in
equity or at law.
(c) No Conflict. The consummation of the transactions contemplated
herein, including the transfer and assignment of the Mortgage Loans to the
Purchaser, shall not (i) conflict with or result in the breach of any term or
provision of the charter or by-laws of Seller, (ii) conflict with or result in
the breach of 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 is a party or by which it is
bound, or (iii) result in the violation of any law, statute, order, judgment,
governmental rule, decree or regulation applicable to Seller or any of its
properties.
(d) No Proceeding. There is no action, suit, proceeding or
investigation pending or, to Seller's knowledge, threatened, that, if determined
adversely to Seller, would materially and adversely affect the sale of the
Mortgage Loans by Seller pursuant to this Agreement on the Sale Date, or the
execution, delivery or enforceability of this Agreement, or the ability of
Seller to perform its obligations hereunder.
(e) No Consent. No consent, approval, authorization or order of any
court, regulatory body or governmental agency or body is required for the
transfer of legal title to the Mortgage Loans to the Purchaser or the execution,
delivery and performance by Seller of this Agreement, except for any
recordations of Assignment of Mortgages to or for the benefit of the Purchaser
pursuant to this Agreement.
(f) Ordinary Course of Business. The consummation of the transactions
contemplated by this Agreement are in the ordinary course of business of the
Seller;
(g) Performance. The Seller does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(h) No Commissions. The Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to any commission
or compensation payable by the Purchaser in connection with the sale of the
Mortgage Loans.
(i) Mortgage Loan Representations. Each of the Sellers hereby,
severally and not jointly, represents and warrants to and covenants to and
agrees with the Purchaser that, as to each Mortgage Loan sold by such Seller
hereunder, as of the related Sale Date:
(i) The information set forth in the Mortgage Loan Schedule and
the Data Tape with respect to the Mortgage Loans is true and correct in all
material respects at the date or dates respecting which such information is
furnished;
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(ii) With respect to each Mortgage Loan other than a Cooperative
Loan, the Mortgage is a valid and enforceable (subject to clause (xv) below)
first lien on an estate in fee simple 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, mineral right
reservations and other matters of public record as of the date of recording such
Mortgage, such exceptions generally being acceptable to mortgage lending
institutions 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 and generally being acceptable to
mortgage lending institutions; and (d) other matters to which like properties
are commonly subject that do not materially interfere with the benefits of the
security intended to be provided by the Mortgage;
(iii) Immediately prior to the transfer of the Mortgage Loan to
the Purchaser pursuant to Section 2.1, Seller had good title to, and was the
sole owner of, such Mortgage Loan free and clear of any encumbrance or lien.
Upon the transfer of the Mortgage Loans to the Purchaser pursuant to Section
2.1, the Purchaser shall have good title to, and will be the sole legal owner
of, such Mortgage Loan, free and clear of any encumbrance or lien (other than
any lien under this Agreement);
(iv) As of the day prior to the Cut-Off Date, all payments due on
such Mortgage Loan had been made and no Mortgage Loan has been more than 30 days
delinquent more than one time during the twelve (12) months immediately
preceding the related Cut-Off Date and any such delinquency lasted for no more
than 30 days;
(v) There is no late assessment for delinquent taxes outstanding
against any Mortgaged Property;
(vi) There is no valid offset, defense or counterclaim as to the
related Mortgage Note, including the obligation of the Mortgagor to pay the
unpaid principal or interest on such Mortgage Note. The operation of any of the
terms of such Mortgage Note or Mortgage, or the exercise of any right
thereunder, shall not render either the Mortgage Note or Mortgage unenforceable,
in whole or in part, or subject to any right of rescission, set-off, recoupment,
counterclaim or defense and no such right of rescission, set-off, recoupment,
counterclaim or defense has been asserted with respect thereto;
(vii) The Mortgaged Property is free of any material damage and
in good repair, ordinary wear and tear excepted and there is no proceeding
pending or, to the best of the Seller's knowledge, threatened for the total or
partial condemnation of the Mortgaged Property;
(viii) Such Mortgage Loan was originated by (i) a savings and
loan association, savings bank, credit union, insurance company, or similar
institution which is supervised and examined by a federal or state authority or
(ii) by a mortgagee approved by the Secretary of HUD pursuant to Section 203 or
211 of the National Housing Act;
(ix) Such Mortgage Loan (unless it is a Cooperative Loan) is
covered by an ALTA form or CLTA form of mortgage title insurance policy or other
form of policy of
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insurance which, as of the origination date of such Mortgage Loan, was
acceptable to FNMA or FHLMC, and 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 acceptable to FNMA or FHLMC and 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. Where
required by law or regulation, the Mortgagor has been given the opportunity to
choose the carrier of the required mortgage title insurance. Such policy is in
full force and effect and no claims have been made under such policy. Each prior
holder of the related Mortgage, including the Seller, has taken no action that
would impair the enforceability of such policy;
(x) If such Mortgage Loan had at the time of origination a
Loan-to-Value Ratio in excess of 80%, unless otherwise specified in the
Memorandum of Sale, such Mortgage Loan was covered by a Primary Mortgage
Insurance Policy and such policy or guaranty is valid and remains in full force
and effect. No action has been taken and no event has occurred that has resulted
or will result in the exclusion from, denial of, or defense to coverage under
any Primary Mortgage Insurance Policy. The Seller has taken no action that would
impair the enforceability of such policy. None of the Mortgage Loans are covered
by a "lender-paid" Primary Mortgage Insurance Policy;
(xi) All policies of insurance required by the Agreement (except
for the Mortgage Loans referred to in clause (x) above as not having Primary
Mortgage Insurance Policies) have been validly issued and remain in full force
and effect, including any such policies covering Seller;
(xii) Each insurer issuing a Primary Mortgage Insurance Policy is
a Qualified Insurer;
(xiii) Such Mortgage was documented by mortgage instruments which
were acceptable to FNMA or FHLMC at the time of origination, or by other
instruments approved by Seller;
(xiv) The Mortgaged Property securing such Mortgage is improved
with a one- to four-family dwelling unit, or a duplex, condominium project,
townhouse, a planned unit development or a de minimis planned unit development;
(xv) Each of the Mortgage and Mortgage Note is the legal, valid
and binding obligation of the maker thereof, enforceable in accordance with its
terms, except only as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the enforcement of
creditors' rights generally and except that the equitable remedy of specific
performance and other equitable remedies are subject to the discretion of the
courts;
(xvi) As of the date of origination, as to Mortgaged Properties
which are units in condominiums or planned unit developments, all of such units
met FNMA or FHLMC
17
requirements, are located in a condominium or planned unit development projects
which have received FNMA or FHLMC approval, or are approvable by FNMA or FHLMC;
(xvii) Prior to origination or refinancing, an appraisal of such
Mortgaged Property was made by an appraiser on a form satisfactory to FNMA or
FHLMC;
(xviii) The Mortgage Loan was underwritten generally in
accordance with the Seller's Underwriting Guidelines or the applicable
underwriting standards of the originator of such Mortgage Loan, as applicable,
in effect at the time such Mortgage Loan was originated;
(xix) Except as otherwise set forth in the Memorandum of Sale,
all of the Mortgage Loans have "due-on-sale" clauses; by the terms of the
Mortgage Notes, however, the due on sale provisions may not be exercised at the
time of a transfer if prohibited by law;
(xx) With respect to any Mortgage Loan as to which a lost note
affidavit has been delivered to the Purchaser certifying that the original
Mortgage Note was permanently lost or destroyed and has not been replaced, if
such Mortgage Loan is subsequently in default, the enforcement of such Mortgage
Loan or of the related Mortgage by or on behalf of the Purchaser will not be
materially adversely affected by the absence of the original Mortgage Note;
(xxi) Such Mortgage Loan constitutes a qualified mortgage under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1);
(xxii) 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, recording and predatory and abusive
lending laws;
(xxiii) No misrepresentation or fraud has taken place on the part
of the Seller, the Mortgagor or any third party originator of such Mortgage Loan
or to the Seller's knowledge, any other Person, including without limitation any
appraiser, any builder or developer, or any other party involved in the
origination of such Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan;
(xxiv) No Mortgage Loan is subject to the Home Ownership and
Equity Protection Act of 1994, is a "high cost" or a "predatory" loan as defined
under any state, local law, regulation or ordinance 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. With respect to each
Mortgage Loan, neither the related Mortgage nor the related Mortgage Note
requires the Mortgagor to submit to arbitration to resolve any dispute arising
out of or relating in any way to the Mortgage Loan transaction;
(xxv) The Mortgaged Property is in material compliance with all
applicable environmental laws pertaining to environmental hazards including,
without limitation, asbestos, and neither the Seller nor, to the Seller's
knowledge, the related Mortgagor, has received any notice of any violation or
potential violation of such law;
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(xxvi) The terms of the Mortgage Note and the Mortgage have not
been impaired, waived, altered or modified in any respect, except by a written
instrument, recorded if necessary to protect the interest of the Purchaser; the
substance of any such waiver, alteration or modification is reflected on the
related Mortgage Loan Schedule or the Data Tape. No Mortgagor has been released,
in whole or in part, except in connection with an assumption agreement or
modification agreement that is part of the Mortgage File;
(xxvii) All buildings upon the Mortgaged Property are insured by
an insurer acceptable under either the Mortgage Loan originator's underwriting
guidelines or the Seller's Underwriting Guidelines at the time of origination
against loss by fire, hazards of extended coverage and such other hazards as are
customary in the area where the Mortgaged Property is located, pursuant to
insurance policies conforming to the requirements of the Servicing Agreement. If
the Mortgaged Property is in an area that, at the time of origination of the
related Mortgage Loan, was identified on a flood hazard boundary map or flood
insurance rate map issued by the Federal Emergency Management Agency as having
special flood hazards and such flood insurance is available, a flood insurance
policy by an insurer acceptable under either the Mortgage Loan originator's
underwriting guidelines or the Seller's Underwriting Guidelines at the time of
origination is in effect meeting the requirements of the current guidelines of
the Federal Insurance Administration with an insurance carrier acceptable to the
Seller. Each individual insurance policy has been validly issued and is in full
force and effect. The Seller has caused to be performed all acts required to
preserve the rights and interests of the Purchaser in all insurance policies
required by this Agreement, including, without limitation, notification of
insurers, and assignment of policies or interests therein. Each individual
insurance policy contains a standard mortgagee clause naming the Seller, and its
successors and assigns, as mortgagee and loss payee. All premiums due thereon
have been paid. The Mortgage obligates the Mortgagor to maintain all such
insurance at the Mortgagor's cost and expense, and upon the Mortgagor's failure
to do so, authorizes the servicer or the owner of the Mortgage to obtain and
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefore from the Mortgagor. Where required by state law or
regulation, with respect to any Mortgage Loan other than a Cooperative Loan, the
Mortgagor has been given an opportunity to choose the carrier of the required
hazard insurance, provided that the policy is not a "master" or "blanket" hazard
insurance policy covering the common facilities of a planned unit development.
No claims have been made under such policies since origination of the Mortgage
Loan, and neither the Seller nor any Servicer has taken action and has actual
knowledge of the Mortgagor's having taken any action that would impair the
coverage of any such insurance policy, the benefits of any endorsement or the
validity, binding effect and enforceability of the foregoing;
(xxviii) All parties to the Mortgage Note and the Mortgage had
legal capacity to enter into the Mortgage Note and the Mortgage and to convey
the estate therein purported to be conveyed, and the Mortgage Note and the
Mortgage have been duly and properly executed by such parties or pursuant to a
valid power-of-attorney that has been recorded with the Mortgage. The Mortgagor
is a natural person;
(xxix) Except with respect to completion escrows expressly set
forth in the Memorandum of Sale, the proceeds of the Mortgage Loan have been
fully disbursed and there is no obligation for the mortgagee to advance
additional funds thereunder and, except as set
19
forth in the Memorandum of Sale, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any escrow funds
therefor have been complied with. All costs, fees and expenses incurred in
making or closing the Mortgage Loan and the recording of the Mortgage have been
paid or shall be paid in the ordinary course of business and the Mortgagor is
not entitled to a refund of any amounts paid or due to the Mortgagee pursuant to
the Mortgage Note or the Mortgage;
(xxx) The Seller is (or, if the Seller did not originate the
Mortgage Loan, the originator, during the period in which it held and disposed
of such Mortgage Loan, was) in compliance with any and all applicable licensing
requirements of the laws of the state wherein the Mortgaged Property is located
or is not required to qualify to do business in such state;
(xxxi) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and the Seller has not waived any default, breach, violation or
event of acceleration which are not insured against by the related Mortgagor's
policy of title insurance. No foreclosure action has been commenced with respect
to such Mortgage Loan;
(xxxii) There are no mechanics' or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding that
under law could give rise to such lien) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with, the lien of the
related Mortgage which are not insured against by the related mortgagee's policy
of title insurance;
(xxxiii) All of the improvements which were included for the
purpose of determining the Appraised Value of the related Mortgaged Property lie
wholly within the boundaries and building restriction lines of the Mortgaged
Property. No improvements on adjoining properties encroach upon the Mortgaged
Property except those that are insured against by title insurance policies. No
improvement located on or being part of the Mortgaged Property is in violation
of any applicable zoning law or regulation;
(xxxiv) Principal payments on such Mortgage Loan commenced or are
required to commence no more than two months after funds were disbursed in
connection with such Mortgage Loan. Interest is payable in arrears on the first
day of each month, or such other day of the month as may be noted on the related
Mortgage Loan Schedule or the Data Tape. If such Mortgage Loan is an Adjustable
Rate Mortgage Loan, the Mortgage Interest Rate is subject to adjustment
periodically on each interest rate adjustment date to a new Mortgage Interest
Rate (rounded as provided in the related Mortgage Note). The Mortgage Note
requires a Monthly Payment which is sufficient to fully amortize the original
principal balance over the remaining term thereof and to pay interest at the
Mortgage Interest Rate. If such Mortgage Loan is an Adjustable Rate Mortgage
Loan, it is not convertible to a Mortgage Loan with a fixed Mortgage Interest
Rate, unless otherwise indicated in the Mortgage Loan Schedule or the Data Tape.
The Mortgage Note does not permit negative amortization;
(xxxv) The origination and collection practices used with respect
to such Mortgage Loan have been, in all material respects, in accordance with
applicable laws and
20
regulations, the terms of the Mortgage Loan documents and the customary mortgage
servicing practices of prudent mortgage servicing institutions that service
mortgage loans of the same type and quality as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located. With respect to
escrow deposits, all such amounts are in the possession of, or under the control
of, the Servicer. All escrow payments have been collected in all material
respects in compliance with applicable law, customary mortgage servicing
practices of prudent mortgage servicing institutions that service mortgage loans
of the same type and quality as such Mortgage Loan in the jurisdiction where the
related Mortgaged Property is located and the provisions of the Mortgage Loan
documents. If such Mortgage Loan is the subject of an escrow, escrow of funds is
not prohibited by applicable law and has been established in an amount
sufficient to pay for every escrowed item that remains unpaid and has been
assessed but is not yet due and payable. Any interest required to be paid on
such escrow deposits to the Mortgagor pursuant to applicable law has been
properly paid and credited;
(xxxvi) With respect to each Mortgage Loan other than a
Cooperative Loan, the Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security,
including, (a) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (b) otherwise by judicial foreclosure. There is no homestead
or other exemption available to the related Mortgagor which would interfere with
the right to sell the Mortgaged Property at a trustee's sale or the right to
foreclose the Mortgage. The Mortgagor has not notified the Seller and the Seller
has no knowledge of any relief requested or allowed to the Mortgagor under the
Servicemembers Civil Relief Act;
(xxxvii) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage on the Mortgaged
Property;
(xxxviii) If the Mortgage constitutes a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by the Purchaser to the trustee under the
deed of trust, except in connection with a trustee's sale after default by the
Mortgagor;
(xxxix) Such Mortgage Loan does not have a shared appreciation
feature or other contingent interest feature, and such Mortgage Loan does not
involve buydowns, balloons or graduated payments;
(xl) No Mortgage Loan was made for the purpose of construction or
rehabilitation of a Mortgaged Property;
(xli) The Seller has no knowledge of any circumstances or
condition existing as of the Sale Date with respect to the Mortgage, the
Mortgaged Property, the Mortgagor or the Mortgagor's credit standing that can
reasonably be expected to cause the Mortgage Loan to be an unacceptable
investment as of the Sale Date;
(xlii) At origination, and to the Seller's knowledge, as of the
Sale Date, the Mortgaged Property is lawfully occupied under applicable law; at
the time of origination of
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such Mortgage Loan, all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy, were made or obtained from the appropriate
authorities;
(xliii) Any Assignment of Mortgage delivered to the Purchaser
pursuant to Section 2.2(a) is in recordable form, except for the insertion of
the name of the assignee and recording information, and is acceptable for
recording under the laws of the applicable jurisdiction;
(xliv) Any future advances made prior to the Cut-off Date have
been consolidated with the principal balance secured by the Mortgage, and such
principal balance, as consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first lien priority by a title insurance
policy, an endorsement to the policy insuring the mortgagee's consolidated
interest or by other title evidence acceptable under either the Seller's
Underwriting Guidelines or the Mortgage Loan originator's underwriting
guidelines. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(xlv) Interest on each Mortgage Loan is calculated on the basis
of a 360-day year consisting of twelve 30-day months;
(xlvi) With respect to each Cooperative Loan, the Seller
represents and warrants:
(1) The security instruments create a valid, enforceable and
subsisting first priority security interest in the related cooperative shares
securing the related cooperative note, subject only to (x) the lien of the
related cooperative for unpaid assessments representing the Mortgagor's pro rata
share of payments for a blanket mortgage, if any, current and future real
property taxes, insurance premiums, maintenance fees and other assessments to
which like collateral is commonly subject and (y) other matters to which like
collateral is commonly subject and which do not materially interfere with the
benefits of the security intended to be provided; provided, however, that the
related proprietary lease for the Cooperative Apartment may be subordinated or
otherwise subject to the lien of a mortgage on the cooperative building;
(2) There is no proceeding pending or threatened for the
total or partial condemnation of the building owned by the applicable
Cooperative;
(3) The Cooperative has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of its
formation. The Cooperative has requisite power and authority to (i) own its
properties, and (ii) transact the business in which it is now engaged;
(4) A search for filings of financing statements has been
made by a party competent to make the same, which party is acceptable to the
Seller in accordance with the Seller's Underwriting Guidelines and is qualified
to do business in the jurisdiction
22
where the cooperative unit is located; and such search did not disclose any lien
or security interest that would materially and adversely affect the Cooperative
Loan;
(5) The related cooperative corporation that owns title to
the related Cooperative Apartment is a "cooperative housing corporation" within
the meaning of Section 216 of the Code and is in compliance with applicable laws
that, if not complied with, would have a material adverse effect on the
Mortgaged Property;
(6) (i) the term of the related proprietary lease is longer
than the terms of the Cooperative Loan, (ii) there is no provision in such
proprietary lease which requires the Mortgagor to offer for sale the cooperative
shares owned by such Mortgagor first to the Cooperative, and (iii) there is no
prohibition against pledging the shares of the cooperative corporation or
assigning the cooperative lease.
(xlvii) Except as set forth in the Memorandum of Sale, no
Mortgage Loan is a simple interest Mortgage Loan;
(xlviii) Each Mortgage Loan has been serviced in all material
respects in compliance with all applicable laws, rules and regulations and those
mortgage servicing practices (including collection procedures) of prudent
mortgage services which service mortgage loans of the same type as such Mortgage
Loan in the jurisdiction where the related Mortgaged Property is located;
(xlix) No Mortgagor was required to purchase single premium
credit life insurance in connection with the origination of the Mortgage Loan;
(l) With respect to any Mortgage Loan as to which a certified
copy of the Mortgage Note accompanied by a lost note affidavit has been
delivered to the Purchaser, if such Mortgage Loan is subsequently in default,
the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf
of the Purchaser will not be materially adversely affected by the absence of the
original Mortgage Note (or portion thereof, as applicable);
(li) With respect to each Mortgage Loan, the related Mortgagor
has made all scheduled escrow deposits and payments, if such are required, or
customary arrangements for repayment of such escrow deposits and payments
thereof have been made, which the Seller expects will cure any deficiencies;
provided, that there may be deficiencies of up to $1,000 in the escrow deposits
resulting from increased tax assessments for which the scheduled escrow payments
have not yet been adjusted;
(lii) The Mortgage Loans were selected from among the outstanding
mortgage loans of the same type in the Seller's portfolio at the Sale Date and
such selection was not made in a manner so as to affect adversely the interests
of the Purchaser;
(liii) No Mortgage Loan is secured in whole or in part by the
interest of the Mortgagor as a lessee under a ground lease of the related
Mortgaged Property;
(liv) No Mortgage Loan is subject to nullification pursuant to
Executive Order 13224 (the "Executive Order") or the regulations promulgated by
the Office of Foreign
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Assets Control of the United States Department of the Treasury (the "OFAC
Regulations") or in violation of the Executive Order or the OFAC Regulations,
and no Mortgagor is subject to the provisions of such Executive Order or the
OFAC Regulations nor listed as a "blocked person" for purposes of the OFAC
Regulations; and
(lv) Such Mortgage Loan is not a "High Cost Loan" or "Covered
Loan" (as such terms are defined in the Standard & Poor's LEVELS(R) Glossary in
effect on the related Closing Date applicable portions of which are attached to
the related Memorandum of Sale as Exhibit D), to the extent applicable to the
originating lender under the governing state or local law or regulation and, if
such Mortgage Loan was originated on or after October 1, 2002 and before March
7, 2003, such Mortgage Loan is not governed by the Georgia Fair Lending Act.
SECTION 4.2 REMEDIES
It is understood and agreed that the representations and warranties set
forth in Section 4.1 shall survive the sale of the Mortgage Loans to Purchaser
and shall inure to the benefit of Purchaser notwithstanding any examination of
any Mortgage File or other documents relating to the Mortgage Loans by
Purchaser.
Upon discovery by either a Seller (the "Breaching Seller") or Purchaser of
a breach of any of the representations and warranties set forth in Section 4.1,
the party discovering such breach shall give prompt written notice to the other.
Within 60 days after the earlier of discovery or its receipt of notice of any
breach of a representation or warranty set forth in Section 4.1 above relating
to a particular Mortgage Loan which materially and adversely affects the value
of the Mortgage Loan or Purchaser's interest therein, the Breaching Seller shall
cure such breach in all material respects. If the Breaching Seller fails to cure
such breach in all material respects within the cure period, at Purchaser's
option, the Breaching Seller shall repurchase the Mortgage Loan for an amount
equal to (i) the Unpaid Principal Balance of the Mortgage Loan plus (ii)
interest on such Unpaid Principal Balance at the applicable Mortgage Interest
Rate (less the related Servicing Fee) from the date to which interest has last
been paid by the Mortgagor to and including the last day of the month in which
such repurchase occurs plus (iii) with respect to any Mortgage Loan subject to a
Securitization Transaction, any costs or damages (in excess of the amounts to be
paid pursuant to clauses (i) and (ii) above) incurred by the related trust 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 the Breaching Seller pursuant to Section
4.1(i)(xxiv) of this Agreement. Any such repurchase shall be accomplished by the
deposit by the Breaching Seller in the account designated by Purchaser of the
amount of the repurchase price in immediately available funds. Within five (5)
Business Days after the Breaching Seller's deposit of the repurchase amount,
Purchaser shall cause the Custodian to endorse the applicable Mortgage Notes and
assign the applicable Mortgages to the Breaching Seller and promptly deliver
such instruments, together with all related Mortgage Loan documents, to the
Breaching Seller and shall take all other steps necessary to effect the
reconveyance of any repurchased Mortgage Loan to the Breaching Seller. If the
Breaching Seller repurchases any MERS Loan, the Servicer shall be authorized to
(i) cause the MERS System to reflect such repurchase or (ii) cause MERS to
remove the repurchased Mortgage Loan from registration on the MERS System and
execute and deliver an Assignment of Mortgage to reflect the transfer of such
Mortgage Loan to the Breaching Seller or its designee.
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Seller shall indemnify and hold harmless Purchaser, and will reimburse
Purchaser, for, all losses, liabilities, damages, penalties, fines, forfeitures,
deficiencies, claims, judgments or other costs or expenses incurred by
Purchaser, to the extent that such loss, liability, damage, penalty, fine,
forfeiture, deficiency, claim, judgment or other expense results from a claim by
a third party based on a breach of any representation or warranty made by Seller
as set forth in Section 4.1(i) above; provided, however, in no event shall the
Seller have any liability for any indirect, special or consequential losses,
liabilities, damages, penalties, fines, forfeitures, deficiencies, claims,
judgments or other costs or expenses incurred by Purchaser (or its successors or
assigns).
Promptly after receipt by Purchaser of notice of the commencement of any
action, Purchaser shall, if a claim in respect thereof is to be made against
Seller under this Agreement, notify Seller of the commencement thereof; but the
omission so to notify Seller will not relieve Seller of any liability that it
may have to Purchaser otherwise than under this Agreement. In case any such
action is brought against Purchaser, and it notifies Seller of the commencement
thereof, Seller shall be entitled to participate at its own expense in the
defense, or, if Seller so elects, to assume the defense of any suit against
Purchaser by a third party resulting from a breach of the representations and
warranties made by Seller in this Section 4.2. If Seller elects to assume the
defense of any such suit, such defense shall be conducted by counsel chosen by
Seller. In the event Seller elects to assume the defense of any such suit and
retain such counsel, Purchaser may retain additional counsel but shall bear the
fees and expenses of such counsel. In no event shall Seller, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one counsel for Purchaser. All such fees and
expenses shall be reimbursed as they are incurred.
Seller shall not be required to indemnify any person for any settlement of
any claim effected without Seller's consent, which consent shall not be
unreasonably withheld. Seller shall not, without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld, effect any
settlement of any pending or threatened proceeding to which Purchaser is a party
and indemnity is sought hereunder by Purchaser unless such settlement includes
an unconditional release of Purchaser from all liability on claims that are the
subject matter of such proceeding.
SECTION 4.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents, warrants and covenants to each Seller that as of each
Sale Date:
(a) Organization. The Purchaser is a New Jersey corporation, duly
organized, validly existing and in good standing under the laws of the state of
its jurisdiction and is licensed, qualified and in good standing in each state
where a Mortgaged Property is located if the laws of such state require
licensing or qualification in order for the Purchaser to purchase and hold the
Mortgage Loans and otherwise perform its obligations under this Agreement.
(b) Authority and Capacity. Purchaser has all requisite corporate
power, authority and capacity to enter into this Agreement and to perform the
obligations required of it hereunder. This Agreement has been duly authorized,
validly executed and delivered by Purchaser and (assuming the due authorization
and execution of this Agreement by Seller) constitutes a valid and legally
binding agreement of Purchaser enforceable in accordance with its
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terms, except as such enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization and similar laws, and by equitable principles
affecting the enforceability of the rights of creditors. No consent, approval,
authorization or order of any court, regulatory body or governmental agency or
body is required for the execution, delivery and performance by Purchaser of, or
compliance by the Purchaser with this Agreement, the purchase of the Mortgage
Loans or the consummation of the transactions contemplated by this Agreement.
(c) No Conflict. Neither the execution and delivery of this Agreement
by Purchaser, nor the consummation by Purchaser of the transactions hereby
contemplated, nor compliance with the provisions hereof by Purchaser will
conflict with or result in a breach of, or constitute a default under, any of
the provisions of Purchaser's certificate of incorporation or by-laws, or any
statute, governmental rule or regulation, or any judgment, decree or order
binding on Purchaser or any of its properties, or any of the provisions of any
contract or other instrument to which Purchaser is a party or by which it is
bound.
(d) Compliance with Laws. There is no action, suit, proceeding or
investigation pending, or to Purchaser's knowledge, threatened against Purchaser
before, any court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, (ii) seeking to prevent the consummation of any of
the transactions contemplated hereby or (iii) which might materially and
adversely affect the performance by Purchaser of its obligations under, or the
validity or enforceability of, this Agreement.
(e) Financial Standing. Purchaser has the financial capacity to
complete the transactions contemplated herein.
ARTICLE 5.
COVENANT NOT TO SOLICIT
Each Seller covenants and agrees that it shall not take any action to
solicit the refinancing of any Mortgage Loan following the date hereof or
provide information to any other entity to solicit the refinancing of any
Mortgage Loan; provided that, the foregoing shall not preclude such Seller or
any of its affiliates from (a) engaging in general solicitations to its customer
base, including by mass mailing or as part of monthly or periodic statements
mailed to its borrowers or to holders of deposit or other accounts, (b) engaging
in solicitations to the general public, including without limitation by mass
mailing, newspaper, radio, television or other media which are not specifically
directed toward the Mortgagors, (c) engaging in solicitations of optional
insurance or other bank products (not including mortgage loans) (d) refinancing
the Mortgage Loan of any Mortgagor who, without solicitation, contacts a Seller
to request the refinancing of the related Mortgage Loan, or (e) engaging in any
action to solicit the refinancing of any Mortgage Loan to the extent such action
would be permitted under the FNMA Selling Guide or the FNMA Servicing Guide.
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ARTICLE 6.
SERVICING THE MORTGAGE LOANS
Servicer shall service the Mortgage Loans on behalf of Purchaser pursuant
to the terms of the Servicing Agreement.
ARTICLE 7.
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser under this Agreement with respect to any Sale
Date are subject to the satisfaction of the following conditions:
SECTION 7.1 CORRECTNESS OF REPRESENTATIONS AND WARRANTIES
The representations and warranties made by the applicable Seller or Sellers
in this Agreement with respect to the Mortgage Loans to be purchased by the
Purchaser on a Sale Date are true and correct in all material respects on the
Sale Date.
SECTION 7.2 COMPLIANCE WITH CONDITIONS
All of the material terms, covenants and conditions of this Agreement
required to be complied with and performed by a Seller at or prior to a Sale
Date with respect to the Mortgage Loans in the related Loan Pool shall have been
duly complied with and performed in all material respects.
SECTION 7.3 NO MATERIAL ADVERSE CHANGE
On the Sale Date, there shall not have been any change in the Mortgage
Loans in the related Loan Pool that will materially and adversely affect the
consummation of the transactions contemplated hereby.
SECTION 7.4 NO ACTIONS
On the Sale Date, there shall not have been commenced or threatened any
action, suit or proceeding that will materially and adversely affect the
Mortgage Loans in the related Loan Pool or the consummation of the transactions
contemplated hereby.
ARTICLE 8.
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS
The obligations of the applicable Seller or Sellers under this Agreement
are subject to the satisfaction of the following conditions:
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SECTION 8.1 CORRECTNESS OF REPRESENTATIONS AND WARRANTIES
The representations and warranties made by Purchaser in this Agreement are
true and correct in all material respects on the Sale Date.
SECTION 8.2 COMPLIANCE WITH CONDITIONS
All of the material terms, covenants and conditions of this Agreement
required to be complied with and performed by Purchaser at or prior to the Sale
Date shall have been duly complied with and performed in all material respects.
SECTION 8.3 NO ACTIONS
On the Sale Date, there shall not have been commenced or threatened any
action, suit or proceeding that will materially and adversely affect the
consummation of the transactions contemplated hereby.
ARTICLE 9.
RECONSTITUTIONS; REGULATIONS AB COMPLIANCE
SECTION 9.1 RECONSTITUTIONS
(a) Upon Required Notice to the Seller, the Purchaser, at its sole
option, may effect one or more Reconstitutions with respect to some or all of
the Mortgage Loans sold pursuant to this Agreement, retaining the Servicer as
servicer or subservicer, if a master servicer is employed; provided, however,
that no Reconstitution may be made by the Purchaser or any of its permitted
assignees with respect to Mortgage Loans in any Loan Pool if as a result
thereof: (i) more than three (3) investors would own Mortgage Loans in such Loan
Pool at any one time; provided, that the Purchaser's completion of a Clean-Up
Transfer (as defined below) shall not be counted for purposes of this subclause
(i), (ii) the Purchaser or its designee shall fail to use commercially
reasonable efforts to provide the Seller or the Servicer with initial drafts of
all documents for which the Seller and Servicer are requested to become a party
in connection with such Reconstitution at least 10 days prior to the related
settlement date (the "Subsequent Transfer Settlement Date"), (iii) the Purchaser
or its designee shall fail to use commercially reasonable efforts to provide the
Seller or the Servicer with a final list of the Mortgage Loans subject to such
Reconstitution at least 2 Business Days prior to the related Subsequent Transfer
Settlement Date, (iv) any Mortgage Loan is subject to more than one
Reconstitution in any given calendar month, (v) the related Subsequent Transfer
Settlement Date occurs on or prior to the related Servicing Cut-off Date or (ii)
any single investor would own Mortgage Loans having an aggregate unpaid
principal balance immediately following such Reconstitution of less than
$5,000,000; provided, that the Purchaser may complete one Reconstitution of less
than $5,000,000 (a "Clean-Up Transfer").
(b) The Purchaser shall promptly notify the Seller if the percentage
of Mortgage Loans in the entire related transaction increases above the
percentage specified in the Required Notice.
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(c) The Seller shall reasonably cooperate with Purchaser in connection
with each Reconstitution permitted under this Article 9.
(d) The Purchaser shall reimburse the Seller for all reasonable
out-of-pocket expenses, including attorneys' fees, incurred by the Seller in
connection with any Reconstitution.
(e) If at any time, the aggregate Unpaid Principal Balance of any
Mortgage Loans serviced under the Servicing Agreement and retained by the
Purchaser ("Portfolio Loans") is less than one or equal to one percent (1%) of
the Unpaid Principal Balance of such Portfolio Loans as of the related Closing
Date, the Seller or its designee may elect, in its sole discretion, to purchase
such Portfolio Loans. The purchase price of Mortgage Loans purchased by the
Seller or its designee pursuant to this Section 9.1(d) shall equal the lesser of
(i) the aggregate fair market value of such Mortgage Loans at the time of
purchase by the Seller or its designee and (ii) the aggregate Unpaid Principal
Balance of such Mortgage Loans, plus the amount of interest on such Unpaid
Principal Balance of such Mortgage Loans, at the applicable Net Rate (as defined
in the Servicing Agreement) from the date to which interest has last been paid
and distributed to the Purchaser under the Servicing Agreement to, and
including, the last day of the month in which such purchase occurs.
SECTION 9.2 RECONSTITUTION AGREEMENTS
In connection with each Permitted Reconstitution, the Seller shall execute
and deliver a Reconstitution Agreement containing terms and conditions that are
consistent with the terms and conditions set forth herein and, in the case of a
Securitization Transaction, that are customary for publicly offered or privately
placed, rated or unrated securities backed by mortgage loans similar to the
Mortgage Loans included in such Securitization Transaction.
SECTION 9.3 INTENT OF THE PARTIES; REASONABLENESS
The Purchaser and the Seller acknowledge and agree that the purpose of
Sections 9.4 and 9.5 is to facilitate compliance by the Purchaser and any
Depositor with the provisions of Regulation AB and related rules and regulations
of the Commission. Although Regulation AB is applicable by its terms only to
offerings of asset-backed securities that are registered under the Securities
Act, the Seller acknowledges that investors in privately offered securities may
require that the Purchaser and any Depositor provide comparable disclosure in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
Neither the Purchaser nor any Depositor shall exercise its right to request
delivery of information or other performance under these provisions other than
in good faith, or for purposes other than compliance with the Securities Act,
the Exchange Act and the rules and regulations of the Commission thereunder (or
the provision in a private offering of disclosure comparable to that required
under the Securities Act). The Seller acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed
29
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Purchaser or any Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations of
Regulation AB. Each party agrees that it shall cooperate in good faith to amend
this Amendment and/or the Original Purchase Agreement in light of any changes in
the interpretations of the requirements of Regulation AB over time, whether due
to interpretive guidance provided by the Commission or its staff, consensus
among participants in the asset-backed securities markets, advice of counsel, or
otherwise. In connection with any Securitization Transaction, the Seller shall
cooperate fully with the Purchaser to deliver to the Purchaser (including any of
its assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary in the good faith
determination of the Purchaser or such Depositor to permit the Purchaser or such
Depositor to comply with the provisions of Regulation AB, together with such
disclosures relating to the Seller, any Third-Party Originator and the Mortgage
Loans, reasonably believed by the Purchaser or such Depositor to be necessary in
order to effect such compliance.
The Purchaser (including any of its assignees or designees) shall cooperate
with the Seller by providing timely notice of requests for information under
these provisions and by reasonably limiting such requests to information
required, in the Purchaser's reasonable judgment, to comply with Regulation AB.
SECTION 9.4 INFORMATION TO BE PROVIDED BY THE SELLER
In connection with any Securitization Transaction, the Seller shall (i)
within five Business Days following request by the Purchaser or any Depositor,
provide to the Purchaser and such Depositor (or, as applicable, cause each
Third-Party Originator to provide), in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, the information and
materials specified in paragraphs (a) and (b) of this Section 9.4, and (ii) as
promptly as practicable following notice to or discovery by the Seller, provide
to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (c) of this Section.
(a) If so requested by the Purchaser or any Depositor, the Seller
shall provide such information regarding (i) the Seller, as originator of the
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), or (ii) each Third-Party Originator, as is requested for the
purpose of compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information shall include, at a minimum:
(i) the originator's form of organization;
(ii) a description of the originator's origination program and
how long the originator has been engaged in originating residential mortgage
loans, which description shall include a discussion of the originator's
experience in originating mortgage loans of a similar type as the Mortgage
Loans; information regarding the size and composition of the originator's
origination portfolio; and information that may be material, in the good faith
judgment of the Purchaser or any Depositor, to an analysis of the performance of
the Mortgage Loans, including the originator's credit-granting or underwriting
criteria for mortgage loans of similar type(s) as the Mortgage Loans and such
other information as the Purchaser or such
30
Depositor may reasonably request for the purpose of compliance with Item
1110(b)(2) of Regulation AB;
(iii) a description of any material legal or governmental
proceedings pending (or known to be contemplated) against the Seller and each
Third-Party Originator; and
(iv) a description of any affiliation or relationship between the
Seller each Third-Party Originator and any of the following parties to a
Securitization Transaction, as such parties are identified to the Seller by the
Purchaser or any Depositor in writing not less than five Business Days in
advance of such Securitization Transaction:
(A) the Sponsor;
(B) the Depositor;
(C) the Issuing Entity;
(D) any servicer;
(E) any trustee;
(F) any originator;
(G) any significant obligor;
(H) any enhancement or support provider; and
(I) any other material transaction party.
(b) If so requested by the Purchaser or any Depositor, the Seller
shall provide (or, as applicable, cause each Third-Party Originator to provide)
Static Pool Information with respect to the mortgage loans (of a similar type as
the Mortgage Loans, as reasonably identified by the Purchaser as provided below)
originated by (i) the Seller, if the Seller is an originator of Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent)
and/or (ii) each Third Party Originator. Such Static Pool Information shall be
prepared by the Seller (or Third Party Originator) on the basis of its
reasonable, good faith interpretation of the requirements of Item 1105(a)(1)-(3)
of Regulation AB. To the extent that there is reasonably available to the Seller
(or Third Party Originator) Static Pool Information with respect to more than
one mortgage loan type, the Purchaser or any Depositor shall be entitled to
specify whether some or all of such information shall be provided pursuant to
this paragraph. The content of such Static Pool Information may be in the form
customarily provided by the Seller, and need not be customized for the Purchaser
or any Depositor. Such Static Pool Information for each vintage origination year
or prior securitized pool, as applicable, shall be presented in increments no
less frequently than quarterly over the life of the mortgage loans included in
the vintage origination year or prior securitized pool. The most recent periodic
increment must be as of a date no later than 135 days prior to the date of the
prospectus or other offering document in which the Static Pool Information is to
be included or incorporated by reference. The Static Pool Information shall be
provided in an electronic format that provides a permanent record of the
information provided, such as a portable document format (pdf) file, or other
such electronic format reasonably required by the Purchaser or such Depositor,
as applicable.
Promptly following notice or discovery of a material error in Static Pool
Information provided pursuant to the immediately preceding paragraph (including
an omission to include
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therein information required to be provided pursuant to such paragraph), the
Seller shall provide (or, as applicable, cause any Third Party Originator to
provide) corrected Static Pool Information to the Purchaser or any Depositor, as
applicable, in the same format in which Static Pool Information was previously
provided to such party by the Seller (or Third Party Originator).
If so requested by the Purchaser or any Depositor, the Seller shall provide
(or, as applicable, cause each Third Party Originator to provide), at the
expense of the requesting party, such agreed-upon procedures letters of
certified public accountants reasonably acceptable to the Purchaser or such
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Seller's or
Third-Party Originator's originations or purchases, to calendar months
commencing prior to January 1, 2006, as the Purchaser or such Depositor shall
reasonably request. Such statements and letters shall be addressed to and be for
the benefit of such parties as the Purchaser or such Depositor shall designate,
which may include, by way of example, any Sponsor, any Depositor and any broker
dealer acting as underwriter, placement agent or initial purchaser with respect
to a Securitization Transaction. Any such statement or letter may take the form
of a standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) For the purpose of satisfying the Purchaser's or any Depositor's
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause each Third-Party
Originator to) (i) notify the Purchaser and such Depositor in writing of (A) any
material litigation or governmental proceedings pending against the Seller or
any Third-Party Originator and (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction between the
Seller or any Third-Party Originator and any of the parties specified in clause
(iv) of Section 9.4(a) (and any other parties identified in writing by the
requesting party) with respect to such Securitization Transaction, and (ii)
provide to the Purchaser and such Depositor a description of such proceedings,
affiliations or relationships.
SECTION 9.5 INDEMNIFICATION
(a) With respect to any Securitization Transaction for which any
Seller Information is included in a related Disclosure Document, the Seller, on
the one hand, and the Purchaser and the Depositor, on the other hand, shall
execute and deliver an Indemnification Agreement in substantially the form
attached as EXHIBIT I to the Servicing Agreement, pursuant to which each such
party shall indemnify the other party or parties and each Person who controls
any of such parties (within the meaning of Section 15 of the Securities Act) for
the matters set forth in such Indemnification Agreement.
(b) The Seller shall indemnify the Purchaser, the Depositor, each
Sponsor, each Issuing Entity and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction and each Person who controls any of such
parties (within the meaning of Section 20 of the Exchange Act), and shall hold
each of
32
them harmless from and against any losses damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any other
costs, fees and expenses that any of them may sustain arising out of or based
upon any untrue statement of a material fact contained in any information
delivered in written or electronic form by the Seller pursuant to Section
9.4(c).
ARTICLE 10.
CLOSING DOCUMENTS
SECTION 10.1 SALE DATE
On or before each Sale Date, the applicable Seller or Sellers shall submit
to the Purchaser fully executed originals of the following documents:
1. this Agreement, in four counterparts;
2. the Memorandum of Sale and related exhibits, substantially in the form
of Exhibit B hereto;
3. a Security Release Certification executed by any Person, as requested
by the Purchaser, if any of the Mortgage Loans has at any time been
subject to any security interest, pledge or hypothecation for the
benefit of such Person, substantially in the form of Exhibit C hereto;
4. the Commitment Letter;
5. an officer's certificate of the applicable Seller or Sellers,
including all attachments thereto, reasonably satisfactory to the
Purchaser;
On or before the Sale Date, the Custodian shall submit to the Purchaser an
initial certification with respect to the related Mortgage Loans.
ARTICLE 11.
MISCELLANEOUS PROVISIONS
SECTION 11.1 COSTS AND EXPENSES
With respect to the Mortgage Loans sold by Sellers, except as otherwise
provided herein, all costs and expenses incurred in connection with the
transactions contemplated hereby shall be paid by such Seller including, without
limitation, the costs of shipping the Mortgage Files to the Custodian, any
recording or filing fees, transfer fees, and all other costs associated with the
preparation and filing of assignments or any other transfer or conveyance
documents; provided, that the Purchaser acknowledges and agrees that all costs
associated with the filing of assignments or any other transfer or conveyance
documents (the "Recording Costs") have been paid by such Seller on the Sale Date
and no further Recording Costs shall be payable by such Seller after the Sale
Date. Notwithstanding the foregoing, Purchaser shall pay all expenses incurred
by Purchaser incurred in the performance of its "due diligence" activities,
review of the
33
Mortgage Loan documents and the preparation of this Agreement, including, but
not limited to, any legal fees and expenses incurred by its own attorneys in
connection with the foregoing.
SECTION 11.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS
The representations, warranties, indemnities, covenants and agreements of
the parties provided in this Agreement and the parties' obligations hereunder
shall survive the execution and delivery and the termination and expiration of
this Agreement.
SECTION 11.3 NOTICES
All demands, notices, consents, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given upon receipt if
personally delivered, sent by facsimile, mailed by registered mail, postage
prepaid or delivered by a nationally recognized overnight courier:
(a) If to the Purchaser, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending Inc.
4 World Financial ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Sellers, to:
Washington Mutual Bank
Washington Mutual Bank fsb
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Washington Mutual Legal Department
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ 1706
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: WMMSC
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as Purchaser or Seller shall have specified in writing
to the other.
34
Notwithstanding the foregoing, any demand, notice, consent, waiver or
communication may be given by any other means if the parties hereto agree to
such alternative means in writing.
SECTION 11.4 WAIVERS
Either Purchaser or a Seller may, by written notice to the other:
(a) Extend the time for the performance of any of the obligations or
other transactions of the other party; or
(b) Waive compliance with any of the terms, conditions or covenants
required to be complied with by the other party hereunder.
The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other subsequent
breach.
SECTION 11.5 ENTIRE AGREEMENT; AMENDMENT
This Agreement, together with the Memorandum of Sale, constitutes the
entire agreement between the parties with respect to the sale of the Mortgage
Loans and supersedes all prior agreements with respect thereto. If any provision
of the Memorandum of Sale conflicts with any provision of this Agreement, the
Memorandum of Sale shall control. This Agreement may be amended but only in
writing signed by the party against whom such amendment is sought to be
enforced.
SECTION 11.6 BINDING EFFECT
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their successors and assigns. Nothing in this Agreement,
express or implied, is intended to confer on any person other than the parties
hereto and their successors and assigns, any rights, obligations, remedies or
liabilities.
SECTION 11.7 HEADINGS
The headings in this Agreement are for reference purposes only and shall
not limit or otherwise affect the meaning hereof.
SECTION 11.8 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York (including Section 5-1401 of the New York General
Obligations Law) except to the extent preempted by federal law, and the
obligations, rights, and remedies of the parties hereunder shall be determined
in accordance with such laws without giving effect to conflict of laws
principles other than Section 5-1401 of the New York General Obligations Law.
Each of the Sellers and Purchaser hereby knowingly, voluntarily and
intentionally waives any and all rights it may have to trial by jury in respect
of any litigation based on, or arising out of, under, or in connection with,
this Agreement, or any other documents or instruments executed
35
in connection herewith, or any course of conduct, course of dealing, statements
(whether oral or written), or actions of Seller or Purchaser. This provision is
a material inducement for Purchaser to enter this Agreement.
SECTION 11.9 INCORPORATION OF EXHIBITS
All Exhibits attached hereto shall be incorporated herein and shall be
understood to be a part hereof as though included in the body of this Agreement.
SECTION 11.10 COUNTERPARTS
For the purpose of facilitating the execution of this Agreement as herein
provided and for other purposes, this Agreement may be executed in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute and be one and the same instrument.
SECTION 11.11 ASSIGNMENT
Subject to Section 9.1 herein, the Purchaser shall have the right, without
the consent of the Seller hereof, to assign, in whole or in part, its interest
under this Agreement with respect to some or all of the Mortgage Loans, and
designate any person to exercise any rights of the Purchaser hereunder, by
executing an assignment, assumption and recognition agreement mutually agreeable
to the parties hereto and the assignee or designee shall accede to the rights
and obligations hereunder of the Purchaser with respect to such Mortgage Loans.
In no event shall Purchaser sell a partial interest in any Mortgage Loan without
the written consent of the Sellers, which consent shall not be unreasonably
denied. All references to the Purchaser in this Agreement shall be deemed to
include its assignee or designee. However, in no event shall there be more than
four Persons at any given time having the status of "Purchaser" hereunder.
SECTION 11.12 MERGER OR CONSOLIDATION OF A SELLER
Any Person into which a Seller may be merged or consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Seller
shall be a party, or any Person succeeding to the business of such Seller, shall
be the successor of such Seller hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 11.13 CONSIDERATION
The parties hereto acknowledge and agree that the consideration received by
the Seller upon the sale of the Mortgage Loans under this Agreement constitutes
fair consideration and reasonably equivalent value for the Mortgage Loans.
SECTION 11.14 OBLIGATIONS OF THE SELLERS
The obligations and liability of each of the Sellers under this Agreement
are several, and neither Seller shall be responsible for the obligations of the
other Seller under this Agreement.
36
Each representation, warranty, indemnity and covenant made by a Seller under the
Agreement is made by, or on behalf of, and with respect to, that Seller only and
not the other Seller.
[Signature page follows]
37
IN WITNESS WHEREOF, each of the undersigned parties to this Agreement has
caused this Agreement to be duly executed in its corporate name by one of its
duly authorized officers, all as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WASHINGTON MUTUAL BANK
a federally chartered savings bank
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WASHINGTON MUTUAL BANK FSB
a federally chartered savings bank
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Mortgage Loan Purchase Agreement]
38
EXHIBIT A
MORTGAGE FILE
Subject to Document Exceptions, the contents of each Mortgage File shall
include the following documents with respect to the related Mortgage Loan:
(a) the original Mortgage Note, endorsed as set forth in Section 2.2(a), or
a lost note affidavit, providing indemnification to the holder thereof for any
losses incurred due to the fact that the original Mortgage Note is missing,
together with a copy of the Mortgage Note;
(b) the original recorded Mortgage (and in the case of a MOM Loan, with
evidence of MIN), or in instances where the original recorded Mortgage cannot be
delivered by Seller to Purchaser prior to or concurrent with the Sale Date (due
to a delay on the part of the recording office) the Seller may, in lieu of
delivering such original Mortgage, deliver to Purchaser a fully legible
reproduction of the original mortgage provided that the Seller certifies on the
face of such reproduction as follows: "Certified true and correct copy of
original which has been transmitted for recordation". For purposes hereof
transmitted for recordation means having been mailed or otherwise delivered for
recordation to the appropriate authority. In all such instances, Seller shall
deliver the original recorded Mortgage to Purchaser within 180 days after the
Sale Date except to the extent that any delay in recording or delivering any
document is caused by the recording office.
(c) unless such Mortgage Loan is a MERS Loan, the original Assignment of
Mortgage;
(d) unless such Mortgage Loan is a MOM Loan, all original recorded
intervening assignments of the Mortgage showing a complete chain of title to the
Mortgage from the originator to Purchaser (or, in the case of a MERS Loan other
than a MOM Loan, showing a complete chain of title from the originator to MERS)
or in instances where an original recorded intervening assignment of Mortgage
cannot be delivered by Seller to Purchaser prior to or concurrent with the Sale
Date (due to a delay on the part of the recording office) the Seller may, in
lieu of delivering such original intervening assignment of Mortgage, deliver to
Purchaser a fully legible reproduction of the original intervening assignment of
Mortgage provided that the Seller certifies on the face of such reproduction as
follows: "Certified true and correct copy of original which has been transmitted
for recordation". In all such instances, Seller shall deliver each original
recorded intervening assignment of Mortgage to Purchaser within 180 days after
the Sale Date except to the extent that any delay in recording or delivering any
document is caused by the recording office;
(e) all modification and assumption agreements, if any; and,
(f) with respect to any Cooperative Loan, copies of:
(i) A counterpart of the Cooperative Lease and the Assignment of
Proprietary Lease to the originator of the Cooperative Loan with intervening
assignments showing an unbroken chain of title from such originator to the
Purchaser;
A-1
(ii) The related Cooperative Stock Certificate, representing the
related Cooperative Stock pledged with respect to such Cooperative Loan,
together with an undated stock power (or other similar instrument) executed in
blank;
(iii) The recognition agreement by the Cooperative of the interests of
the mortgagee with respect to the related Cooperative Loan;
(iv) The Security Agreement;
(v) The UCC-1 financing statement, and any continuation statements,
filed by the originator of such Cooperative Loan as secured party, each with
evidence of recording thereof, evidencing the interest of the originator under
the Security Agreement and the Assignment of Proprietary Lease;
(vi) The filed UCC-3 assignments of the security interest referenced
above showing an unbroken chain of title from the originator to the Purchaser,
each with evidence of recording thereof, evidencing the interest of the
originator under the Security Agreement and the Assignment of Proprietary Lease;
(vii) An executed assignment of the interest of the originator in the
Security Agreement, Assignment of Proprietary Lease and the recognition
agreement referenced above, showing an unbroken chain of title from the
originator to the Purchaser; and
(viii) For any Cooperative Loan that has been modified or amended, the
instrument or instruments effecting such modification or amendment.
A-2
EXHIBIT B
FORM OF MEMORANDUM OF SALE
The mortgage loans described on the mortgage loan schedule attached hereto
as Exhibit A shall be deemed sold by Washington Mutual Bank and/or Washington
Mutual Bank fsb (each a "Seller" and together the "Sellers") to ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Lending Inc. ("Purchaser") pursuant to the terms and conditions of that
certain Mortgage Loan Purchase Agreement ("Agreement"), dated as of May 1, 2006,
between Seller and Purchaser and the following additional terms and conditions:
Sale Date: [_______]
Purchase Price Percentage: [_______]%
Document Exceptions: As set forth on the schedule attached
hereto as Exhibit B.
Exception Schedule: As set forth on the schedule attached
hereto as Exhibit C.
Servicing Fee: [[_______]% per annum] [As set forth on
Exhibit A]
Wire Instructions "Ref" Field: Payee: [________________]
ABA: _____________________
Account: _________________
Bank Name:________________
Bank City/State: New York, NY
First Remittance Date: [_______]
Additional Terms and Conditions: [_______]
B-1
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE LENDING INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
WASHINGTON MUTUAL BANK
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
WASHINGTON MUTUAL BANK FSB
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
B-2
EXHIBIT A
SCHEDULE OF MORTGAGE LOANS
B-3
EXHIBIT B
DOCUMENT EXCEPTIONS
B-4
EXHIBIT C
EXCEPTION SCHEDULE
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇'▇ ▇▇▇▇▇▇(▇) GLOSSARY
B-6
EXHIBIT C
SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
Washington Mutual Bank and/or Washington Mutual Bank fsb (each a
"Seller" and together, the "Sellers") hereby relinquish any and all right, title
and interest it may have in and to the Mortgage Loans described in Exhibit A
attached hereto upon purchase thereof by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Lending, Inc.
("Merrill") from the Sellers pursuant to that certain Mortgage Loan Purchase
Agreement, dated as of May 1, 2006 (the "Purchase Agreement"), as of the date
and time of receipt by _______, 2005 at 4:00 p.m. of $__________ for such
Mortgage Loans (the "Date and Time of Sale"), and certifies that the Mortgage
Files (as defined in the Purchase Agreement) have been delivered and released to
Merrill or its designees as of the Date and Time of Sale.
II. Certification of Release
The Sellers hereby certify to Merrill that, as of the Date and Time of
Sale of the above mentioned Mortgage Loans to Merrill, the security interests in
the Mortgage Loans released by the above named corporation comprise all security
interests relating to or affecting any and all such Mortgage Loans. The Sellers
warrant that, as of such time, there are and will be no other security interests
affecting any or all of such Mortgage Loans.
WASHINGTON MUTUAL BANK
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WASHINGTON MUTUAL BANK fsb
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-1