Document/Exhibit Description Pages Size
1: 8-K Current Report 10 35K
2: EX-4.1 Pooling and Servicing Agreement 416 1.51M
3: EX-99.1 Mortgage Loan Purchase Agreement 44 149K
12: EX-99.10 Assignment, Assumption and Recognition Agreement 34 134K
13: EX-99.11 Seller's Warranties and Servicing Agreement 127 454K
14: EX-99.12 Assignment, Assumption and Recognition Agreement 23 79K
15: EX-99.13 Mortgage Servicing Purchase and Sale Agreement 118 332K
16: EX-99.14 Assignment, Assumption and Recognition Agreement 46 166K
17: EX-99.15 Assignment, Assumption and Recognition Agreement 3 16K
18: EX-99.16 Master Mortgage Loan Purchase and Servicing 91 301K
Agreement
19: EX-99.17 Assignment, Assumption and Recognition Agreement 45 155K
20: EX-99.18 Assignment, Assumption and Recognition Agreement 3 14K
21: EX-99.19 Mortgage Loan Flow Purchase, Sale & Servicing 48 230K
Agreement
4: EX-99.2 Assignment, Assumption and Recognition Agreement 27 91K
5: EX-99.3 Master Seller's Warranties and Servicing Agreement 125 492K
6: EX-99.4 Assignment, Assumption and Recognition Agreement 20 68K
7: EX-99.5 Mortgage Loan Purchase Agreement 44 144K
8: EX-99.6 Regulation Ab Amendment 13 44K
9: EX-99.7 Mortgage Loan Purchase Agreement 50 163K
10: EX-99.8 Servicing Agreement 60 223K
11: EX-99.9 Regulation Ab Amendment to Servicing Agreement 37 121K
EXHIBIT 99.5
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MORTGAGE LOAN PURCHASE AGREEMENT
by and between
MERRILL LYNCH MORTGAGE LENDING INC.
(Purchaser)
and
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
(Seller)
Dated as of November 1, 2005
RESIDENTIAL FIRST LIEN MORTGAGE LOANS
SCHEDULE/SCHEDULE FLOW DELIVERY PROGRAM
WASHINGTON MUTUAL BANK. AS SERVICER
================================================================================
TABLE OF CONTENTS
[Download Table]
Page
----
ARTICLE 1. DEFINITIONS................................................... 4
ARTICLE 2. CONVEYANCE AND TRANSFER....................................... 13
Section 2.1 Conveyance and Transfer................................. 13
Section 2.2 Sale Date............................................... 13
Section 2.3 Due Diligence Examination............................... 15
ARTICLE 3. CONSIDERATION................................................. 15
Section 3.1 Purchase Price.......................................... 15
ARTICLE 4. REPRESENTATIONS AND WARRANTIES................................ 16
Section 4.1 Representations and Warranties of Seller................ 16
Section 4.2 Remedies................................................ 25
Section 4.3 Representations and Warranties of Purchaser............. 26
ARTICLE 5. COVENANT NOT TO SOLICIT....................................... 27
ARTICLE 6. SERVICING THE MORTGAGE LOANS.................................. 28
ARTICLE 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.............. 28
Section 7.1 Correctness of Representations and Warranties........... 28
Section 7.2 Compliance With Conditions.............................. 28
Section 7.3 No Material Adverse Change.............................. 28
Section 7.4 No Actions.............................................. 28
ARTICLE 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER................. 28
Section 8.1 Correctness of Representations and Warranties........... 28
Section 8.2 Compliance with Conditions.............................. 29
Section 8.3 No Actions.............................................. 29
ARTICLE 9. PASS-THROUGH AND WHOLE LOAN TRANSFER; COMPLIANCE WITH REMIC
PROVISIONS.................................................... 29
Section 9.1 Pass-Through Transfers or Whole-Loan Transfers.......... 29
ARTICLE 10. CLOSING DOCUMENTS............................................ 31
Section 10.1 Sale Date............................................... 31
ARTICLE 11. MISCELLANEOUS PROVISIONS..................................... 32
[Download Table]
Section 11.1 Costs and Expenses...................................... 32
Section 11.2 Survival of Representations, Warranties and
Indemnifications........................................ 32
Section 11.3 Notices................................................. 32
Section 11.4 Waivers................................................. 33
Section 11.5 Entire Agreement; Amendment............................. 34
Section 11.6 Binding Effect.......................................... 34
Section 11.7 Headings................................................ 34
Section 11.8 Governing Law........................................... 34
Section 11.9 Incorporation of Exhibits............................... 34
Section 11.10 Counterparts............................................ 34
Section 11.11 Assignment.............................................. 35
Section 11.12 Merger or Consolidation of the Seller................... 35
Section 11.13 Consideration........................................... 35
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
November 1, 2005, is by and between MERRILL LYNCH MORTGAGE LENDING INC., as
purchaser ("Purchaser"), and WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
("Seller").
WITNESSETH:
WHEREAS, Seller is in the business of dealing in residential first lien
mortgage loans; and
WHEREAS, Seller wishes to sell to the Purchaser residential mortgage loans
with an aggregate principal balance as of the Cut-Off Date (as defined below) of
approximately $80,779,299.63, without recourse and exclusive of the related
servicing rights, in accordance with the terms and conditions of this Agreement;
and
WHEREAS, Seller 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 Seller,
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.
ALTA: The American Land Title Association and any successor thereto.
Appraised Value: With respect to any 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 orignation made in
connection with the origination of the related Mortgage Loan as the value of the
related Mortgaged Property, or (ii) the purchase price paid for the Mortgaged
Property; provided, however, that in the case of a Refinanced Mortgage Loan,
such value shall be based solely 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 such Refinanced Mortgage Loan.
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.
Commitment Letter: The commitment letter entered into between the Seller
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.
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.
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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: Wells Fargo Bank N.A., or its successor in interest or assigns.
Cut-Off Date: November 1, 2005.
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;
(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;
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(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;
(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;
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(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 lookback provisions (number of days) under the terms of the
Mortgage Note; and
(xxxix) the Seller.
Disclosure Document: As defined in Section 9.1.
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.
FHLMC: Freddie 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 Seller.
FNMA: Fannie Mae, or its successor-in-interest.
FNMA Selling Guide: The Fannie Mae 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 Seller.
8
FNMA Servicing Guide: The Fannie 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.
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-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.
Memorandum of Sale: A memorandum of sale entered into between the Seller
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.
9
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 Seller 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 to be 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;
(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;
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(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".
Mortgagor: The obligor(s) on a Mortgage Note.
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.
Pass-Through Transfer: The sale of transfer of some or all of the Mortgage
Loans by Purchaser to a trust to be formed as part of a publicly issued or
privately placed mortgage backed securities transaction.
Pass-Through Transfer Servicing Agreement: As defined in Section 9.1.
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.
11
Portfolio Loans: The meaning as set forth in Section 9.1(e) 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: Merrill Lynch Mortgage Lending Inc., a Delaware corporation, or
its successors in interest or assigns.
Qualified Insurer: An insurer acceptable under the Seller's underwriting
guidelines or the originator's underwriting guidelines or acceptable under the
FNMA Selling Guide or the FHLMC Selling Guide.
Refinanced Mortgage Loan: A Mortgage Loan originated in connection with the
refinance of an existing mortgage debt.
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.
Sale Date: November 18, 2005.
Security Agreement: With respect to a Cooperative Loan, the agreement or
mortgage creating a security interest in favor of the originator of the
Cooperative Loan in the related Cooperative Stock.
Seller: Washington Mutual Mortgage Securities Corp. or its successor in
interest or assigns.
Seller's Underwriting Guidelines: The underwriting guidelines of the
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.
12
Servicing Agreement: That certain Servicing Agreement by and between
Purchaser and Servicer dated as of November 1, 2005.
Servicing Cut-Off 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.
Subsequent Transfer Settlement Date: As defined in Section 9.1.
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 #:
321180748, 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 by Purchaser to a third party, which sale or transfer is not a
Pass-Through Transfer.
ARTICLE 2.
CONVEYANCE AND TRANSFER
SECTION 2.1 CONVEYANCE AND TRANSFER
On the Sale Date, subject to the terms and conditions of this Agreement,
Seller 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 the 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 one Business Day prior to the Sale Date, the Seller 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 the Seller. Upon payment for the
13
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. 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 Seller or the originator of the Mortgage Loan,
in either case showing a complete chain of title from 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.
(c) The Purchaser shall notify the Seller 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. The Seller shall
correct or cure such omission or defect within 60 days from the date the Seller
was notified of such omission or defect and, if the Seller does not correct or
cure such omission or defect within such period, then the 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
the 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 Wells
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 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 the 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 the Seller accompanied by evidence
that the Seller is diligently proceeding to obtain and deliver any such
documents. In the event that
14
the 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, the Seller shall not be
deemed to be in breach of this Agreement if the 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. The 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 the
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 _________________."
(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 Seller, 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
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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 SELLER
Seller hereby represents, warrants and covenants to Purchaser as of the
Sale Date:
(a) Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and is
qualified to transact business under the laws of each state required by
applicable law or is otherwise exempt under applicable law from such
qualification and no demand for such qualification has been made upon Seller by
any state;
(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. 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 certificate of incorporation 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;
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(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. Other than Washington Mutual Capital Corp., the
Seller has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans;
(i) Mortgage Loan Representations. With respect to each Mortgage Loan:
(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;
(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,
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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 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 or a "lender-paid" 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 or "lender-paid" Primary Mortgage Insurance Policy. The Seller
has taken no action that would impair the enforceability of such 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;
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(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 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; and
(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.
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(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;
(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.
(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
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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 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
21
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 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;
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(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 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
23
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 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
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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; and
(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.
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 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, Seller shall cure such breach in
all material respects. If the Seller fails to cure such breach in all material
respects within the cure period, at Purchaser's option, the 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 Pass-Through Transfer any costs or
damages (in excess of the amounts to be paid pursuant to clause (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 Seller pursuant to Section 4.1(i)(xxiv) of this Agreement. Any such
repurchase shall be accomplished by the deposit by Seller in the account
designated by Purchaser of the amount of the repurchase price in immediately
available funds. Within five (5) Business Days after Seller's deposit of the
repurchase amount, Purchaser shall cause the Custodian to endorse the applicable
Mortgage Notes and assign the applicable Mortgages to Seller and promptly
deliver such instruments, together with all related Mortgage Loan documents, to
Seller and shall take all other steps necessary to effect the reconveyance of
any repurchased Mortgage Loan to the Seller. If the 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 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 Seller that as of the 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
26
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
The 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 the 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.
27
ARTICLE 6.
SERVICING THE MORTGAGE LOANS
Seller 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 the 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 Seller in this Agreement with
respect to the Mortgage Loans to be purchased by the Purchaser on the 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 Seller at or prior to the Sale
Date with respect to the Mortgage Loans 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 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 or the consummation of the transactions contemplated hereby.
ARTICLE 8.
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are subject to the
satisfaction of the following conditions:
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.
28
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.
PASS-THROUGH AND WHOLE LOAN TRANSFER; COMPLIANCE WITH REMIC PROVISIONS
SECTION 9.1 PASS-THROUGH TRANSFERS OR WHOLE-LOAN TRANSFERS
(a) Purchaser and Seller agree that with respect to some or all of the
Mortgage Loans, Purchaser, at its sole option, upon 15 days' prior written
notice to the Seller, may effect one or more Whole Loan Transfers or
Pass-Through Transfers with respect to some or all of the Mortgage Loan sold
pursuant to this Agreement, retaining Servicer as a servicer; provided, however,
that no such Whole Loan Transfer of Pass-Through Transfer may be effected by
Purchaser or any of its permitted assignees with respect to the Mortgage Loans
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 Owner's completion
of a Clean-Up Transfer (as defined below) shall not be counted for purposes of
this subclause (i), (ii) the Owner 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 or the Servicer are
requested to become a party in connection with such Whole Loan Transfer or
Pass-Through Transfer at least 10 Days prior to the related settlement date (the
"Subsequent Transfer Settlement Date"), (iii) the Owner 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 Whole Loan
Transfer or Pass-Through Transfer at least 2 Business Days prior to the related
Subsequent Transfer Settlement Date, (iv) any Mortgage Loan is subject to more
than one Whole Loan Transfer or Pass-Through Transfer in any given calendar
month, (v) the related Subsequent Transfer Settlement Date occurs on or prior to
the related Servicing Cut-Off Date or (vi) any investor would own Mortgage Loans
having an aggregate unpaid principal balance immediately following such Whole
Loan Transfer or Pass-Through Transfer of less than $5,000,000; provided, that
the Purchaser may complete one Whole Loan Transfer or Pass-Through Transfer of
less than $5,000,000 (such transfer, a "Clean-Up Transfer").
(b) Seller shall reasonably cooperate with Purchaser in connection
with each Whole Loan Transfer or Pass-Through Transfer permitted under this
Section 9.1. In connection therewith, Seller shall provide Purchaser with such
information as it customarily provides third parties in connection with Whole
Loan Transfers or Pass-Through Transfers. With respect to
29
any Pass-Through Transfer permitted under this Section 9.1 occurring on or
before December 31, 2005, in which a prospectus, prospectus supplement or other
disclosure document (a "Disclosure Document") is prepared in connection
therewith, and in which a substantial portion of the mortgage loans in the
related transaction consist of the Mortgage Loans, the Seller shall: (i) provide
for inclusion as part of such Disclosure Document (A) the origination and
underwriting criteria related to the applicable Mortgage Loans sold by the
Seller and (B) delinquency and foreclosure information of the type typically
provided by the Seller in connection with mortgage loans sold by the Seller and
securitized by third parties (the information referred to in this sentence being
"Seller Information"). With respect to each Pass-Through Transfer, Purchaser
shall provide Seller with all drafts of the applicable Disclosure Document when
produced and shall revise the Seller Information contained therein (the
"Seller's Information") in accordance with Seller's comments to correct any
information therein at Purchaser's cost. With respect to any Pass-Through
Transfer in which a substantial portion of the mortgage loans in the related
transaction consist of the Mortgage Loans, the Servicer may enter into an
agreement (a "Pass-Through Transfer Servicing Agreement") governing the
servicing of the Mortgage Loans in a Pass-Through Transfer only if such
agreement is substantially similar, in all material respects, to the Seller's
form of pooling and servicing agreement executed in connection with the Seller's
own issuance of mortgaged-backed securities. Notwithstanding anything herein to
the contrary, Purchaser shall reimburse Seller for all reasonable out-of-pocket
expenses, including attorney's fees, incurred by Seller in connection with any
Whole Loan Transfer or Pass-Through Transfer.
(c) Seller (i) will indemnify and hold harmless the Purchaser and each
Person, if any who "controls" Purchaser within the meaning of the Securities Act
of 1933, as amended (a "Purchaser Indemnified Party"), against any losses,
claims, damages or liabilities to which such Purchaser Indemnified Party may
become subject, under the Securities Act of 1933, as amended, or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of any material
fact contained in the Seller's Information provided by the Seller and included
in the Disclosure Document and (ii) will reimburse each Purchaser Indemnified
Party for any legal or other expenses reasonably incurred by such Purchaser
Indemnified Party in connection with investigating or defending any such loss,
claim, damage, liability or action. Seller agrees to execute an indemnification
agreement in connection with any Pass-Through Transfer containing the foregoing
indemnity.
(d) Purchaser (i) will indemnify and hold harmless Seller, the
Servicer and each Person, if any who "controls" the Seller or the Servicer (all
such persons, the "Seller Indemnified Party") within the meaning of the
Securities Act of 1933, as amended, against any losses, claims, damages or
liabilities to which such Seller Indemnified Party may become subject, under the
Securities Act of 1933, as amended, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (x) arise out of
or are based upon any untrue statement of any material fact contained in any
Disclosure Document (other than an untrue statement of material fact contained
in the Seller's Information), or (y) arise out of or are based upon the omission
to state in any Disclosure Document a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (unless such omission
would constitute Seller's Information) and (ii) will reimburse Seller
Indemnified Party for any legal or other expenses reasonably incurred by Seller
Indemnified Party in connection with investigating or defending any such loss,
30
claim, damage, liability or action. Purchaser agrees to execute an
indemnification agreement containing the foregoing indemnity.
(e) With respect to any Mortgage Loan that is the subject of a
Pass-Through Transfer on or after January 1, 2006, in connection with the
Purchaser's preparation of a Disclosure Document, the Seller shall deliver
disclosures relating to the Seller, or the Mortgage Loans that the Seller
reasonably determines, after good faith negotiation with the Purchaser, to be
required to be delivered by the Seller pursuant to Regulation AB under the
Securities Act of 1933 and the Securities Exchange Act of 1934, each as amended
("Regulation AB"). The Seller shall indemnify the Purchaser Indemnified Party
for such disclosures as provided in Section 9.1(c).
(f) With respect to any Mortgage Loan that is the subject of a
Pass-Through Transfer on or after January 1, 2006, in connection with the
servicing of such Mortgage Loan, the Servicer shall deliver the reports,
statements and certifications required to be delivered by the Servicer under
Regulation AB with respect to such Pass-Through Transfer.
(g) If at any time, the aggregate Unpaid Principal Balance of any
Mortgage Loans serviced hereunder and retained by the Owner ("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(g) 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 from the date to which interest has last been
paid and distributed to the Owner to, and including, the last day of the month
in which such purchase occurs.
ARTICLE 10.
CLOSING DOCUMENTS
SECTION 10.1 SALE DATE
On or before the Sale Date, the Seller 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;
31
4. the Commitment Letter;
5. an officer's certificate of the Seller, 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.
Within 30 Business Days after the Sale Date, the Seller shall deliver to
the Purchaser underwriting guidelines relating to the originators of the
Mortgage Loans, other than the underwriting guidelines of those Mortgage Loans
previously purchased from the Purchaser or its affiliate and indicated as such
on the Data Tape.
ARTICLE 11.
MISCELLANEOUS PROVISIONS
SECTION 11.1 COSTS AND EXPENSES
Except as otherwise provided herein, all costs and expenses incurred in
connection with the transactions contemplated hereby shall be paid by 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 the Seller on
the Sale Date and no further Recording Costs shall be payable by the 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 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:
32
(a) If to the Purchaser, to:
Merrill Lynch Mortgage Lending Inc.
4 World Financial Center
9th Floor
New York, New York 10080
Attention: Asset Management
Telephone: (212) 449-1437
Facsimile: (212) 738-1110
(b) If to Seller, to:
Washington Mutual Mortgage Securities Corp.
75 North Fairway Drive.
Vernon Hills, IL 60061
Attention: Wendy Lee Loncar
Telephone: (847) 549-6500
Facsimile: (847) 549-2997
with a copy to:
Washington Mutual Legal Department
1201 Third Avenue, WMT 1706
Seattle, WA 98101
Attention: WMMSC
Telephone: (206) 461-8890
Facsimile: (206) 461-5739
or to such other address as Purchaser or Seller shall have specified in writing
to the other.
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 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.
33
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 Seller 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 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.
34
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 Seller, 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 THE SELLER
Any Person into which the Seller may be merged or consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Seller shall be a party, or any Person succeeding to the business of the Seller,
shall be the successor of the 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.
[Signature page follows]
35
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.
MERRILL LYNCH MORTGAGE LENDING INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Signature Page to Mortgage Loan Purchase Agreement]
36
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 Mortgage Securities Corp.
("Seller") to Merrill Lynch Mortgage Lending Inc. ("Purchaser") pursuant to the
terms and conditions of that certain Mortgage Loan Purchase Agreement
("Agreement"), dated as of November 1, 2005, between Seller and Purchaser and
the following additional terms and conditions:
[Download Table]
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: [_______]
i
MERRILL LYNCH MORTGAGE LENDING INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
i
EXHIBIT A
SCHEDULE OF MORTGAGE LOANS
i
EXHIBIT B
DOCUMENT EXCEPTIONS
i
EXHIBIT C
EXCEPTION SCHEDULE
i
EXHIBIT C
SECURITY RELEASE CERTIFICATION
I. Release of Security Interest
Washington Mutual Mortgage Securities Corp. ("WMMSC") hereby
relinquishes 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
Merrill Lynch Mortgage Lending, Inc. ("Merrill") from WMMSC pursuant to that
certain Mortgage Loan Purchase Agreement, dated as of _______, 2005 (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
WMMSC hereby certifies 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. WMMSC
warrants that, as of such time, there are and will be no other security
interests affecting any or all of such Mortgage Loans.
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
i
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘8-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 10/16/06 | | | | | | | None on these Dates |
| For Period End: | | 9/1/06 |
| | 1/1/06 | | 31 |
| | 12/31/05 | | 30 |
| | 11/18/05 | | 12 |
| | 11/1/05 | | 1 | | 39 |
| List all Filings |
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