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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
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TABLE OF CONTENTS
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Page
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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
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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
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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.
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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.
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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.
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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.
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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.
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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
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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
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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
au
