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EXHIBIT 99.7
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MORTGAGE LOAN PURCHASE AGREEMENT
by and between
MERRILL LYNCH MORTGAGE LENDING INC.
(Purchaser)
and
WASHINGTON MUTUAL BANK
WASHINGTON MUTUAL BANK FSB
(Sellers)
Dated as of May 1, 2006
RESIDENTIAL FIRST LIEN MORTGAGE LOANS
SCHEDULE/SCHEDULE FLOW DELIVERY PROGRAM
WASHINGTON MUTUAL BANK, AS SERVICER
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TABLE OF CONTENTS
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Page
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ARTICLE 1.
DEFINITIONS...................................................
1
ARTICLE 2. CONVEYANCE AND
TRANSFER....................................... 12
Section 2.1
Conveyance and
Transfer................................. 12
Section 2.2
Sale
Date............................................... 12
Section 2.3
Due Diligence
Examination............................... 14
ARTICLE 3.
CONSIDERATION.................................................
14
Section 3.1
Purchase
Price.......................................... 14
ARTICLE 4. REPRESENTATIONS AND
WARRANTIES................................ 14
Section 4.1
Representations
and Warranties of Sellers............... 14
Section 4.2
Remedies................................................
24
Section 4.3
Representations
and Warranties of Purchaser............. 25
ARTICLE 5. COVENANT NOT TO
SOLICIT....................................... 26
ARTICLE 6. SERVICING THE MORTGAGE
LOANS.................................. 27
ARTICLE 7. CONDITIONS PRECEDENT TO OBLIGATIONS OF
PURCHASER.............. 27
Section 7.1
Correctness of
Representations and Warranties........... 27
Section 7.2
Compliance With
Conditions.............................. 27
Section 7.3
No Material
Adverse Change.............................. 27
Section 7.4
No
Actions.............................................. 27
ARTICLE 8. CONDITIONS PRECEDENT TO OBLIGATIONS OF
SELLERS................ 27
Section 8.1
Correctness of
Representations and Warranties........... 28
Section 8.2
Compliance with
Conditions.............................. 28
Section 8.3
No
Actions.............................................. 28
ARTICLE 9. RECONSTITUTIONS; REGULATIONS AB
COMPLIANCE.................... 28
Section 9.1
Reconstitutions.........................................
28
Section 9.2
Reconstitution
Agreements............................... 29
Section 9.3
Intent of the
Parties; Reasonableness................... 29
Section 9.4
Information to
be Provided by the Seller................ 30
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Section 9.5
Indemnification.........................................
32
ARTICLE 10. CLOSING
DOCUMENTS............................................ 33
Section 10.1
Sale
Date............................................... 33
ARTICLE 11. MISCELLANEOUS
PROVISIONS..................................... 33
Section 11.1
Costs and
Expenses...................................... 33
Section 11.2
Survival of
Representations, Warranties and
Indemnifications..................................... 34
Section 11.3
Notices.................................................
34
Section 11.4
Waivers.................................................
35
Section 11.5
Entire Agreement;
Amendment............................. 35
Section 11.6
Binding
Effect.......................................... 35
Section 11.7
Headings................................................
35
Section 11.8
Governing
Law........................................... 35
Section 11.9
Incorporation of
Exhibits............................... 36
Section 11.10
Counterparts............................................
36
Section 11.11
Assignment..............................................
36
Section 11.12
Merger or Consolidation of a Seller.....................
36
Section 11.13
Consideration...........................................
36
Section 11.14
Obligations of the Sellers..............................
36
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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
May
1, 2006, is by and between MERRILL LYNCH MORTGAGE LENDING INC., as
purchaser
("Purchaser"), and WASHINGTON MUTUAL BANK and WASHINGTON MUTUAL
BANK fsb as
sellers (each a "Seller" and together, the "Sellers").
WITNESSETH:
WHEREAS, Sellers are in the business of dealing in residential
first lien
mortgage loans; and
WHEREAS, in reliance upon the representations, warranties and
covenants of
each Seller contained herein, the Purchaser desires to purchase
from each
Seller, from time to time, and each Seller desires to sell to the
Purchaser,
from time to time, certain residential first lien mortgage loans,
subject to the
terms and conditions of this Agreement, without recourse and
exclusive of the
related servicing rights; and
WHEREAS, Sellers and the Purchaser desire that Washington Mutual
Bank
service the mortgage loans in the manner described in the Servicing
Agreement;
and
WHEREAS, following its purchase of the mortgage loans from
Sellers,
Purchaser may desire to sell some or all of the mortgage loans to
one or more
purchasers pursuant to a Whole Loan Transfer or a Pass-Through
Transfer.
NOW,
THEREFORE, in consideration of the mutual covenants made herein
and
for other good and valuable consideration the sufficiency of which
is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context
otherwise requires, shall have the following meanings:
Adjustable Rate Mortgage Loan: A Mortgage Loan that bears a rate
of
interest that changes in accordance with the terms of the related
Mortgage Note.
Adjustment Date: As to each Adjustable Rate Mortgage Loan, a date
specified
in the related Mortgage Note as the date on which the Mortgage
Interest Rate for
the related Mortgage Loan is subject to adjustment.
Agreement: This Mortgage Loan Purchase Agreement, including all
exhibits,
attachments and schedules hereto, and all amendments hereof and
supplements
hereto.
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ALTA: The American Land Title Association and any successor
thereto.
Appraised Value: With respect to any Mortgage Loan that is not
a
Streamlined Mortgage Loan, the lesser of (i) the value set forth on
the
appraisal by an appraiser who met the minimum requirements of
either the
Seller's Underwriting Guidelines or the Mortgage Loan originator's
underwriting
guidelines at the time of origination made in connection with the
origination of
the related Mortgage Loan as the value of the related Mortgaged
Property, and
(ii) the purchase price paid for the Mortgaged Property, provided,
however, that
if such Mortgage Loan was originated in connection with the
refinance of a
mortgage loan, such value shall be based solely on the appraisal
made in
connection with the origination of such Mortgage Loan. With respect
to any
Streamlined Mortgage Loan, the value set forth in the appraisal by
an appraiser
who met the minimum requirements of either the Seller's
Underwriting Guidelines
or the Mortgage Loan originator's underwriting guidelines at the
time of
origination made in connection with the origination of the mortgage
loan being
refinanced.
Assignment of
Mortgage: An assignment of the Mortgage, notice of transfer
or equivalent instrument in recordable form sufficient under the
laws of the
jurisdiction wherein the related Mortgaged Property is located to
reflect the
transfer of the Mortgage to the assignee named therein, which
assignment, notice
of transfer or equivalent instrument may be in the form of one or
more blanket
assignments covering Mortgages secured by Mortgaged Properties in
the same
county or other recording jurisdiction, where permitted by law.
Assignment of Proprietary Lease: With respect to a Cooperative
Loan, the
assignment of the related Cooperative Lease from the Mortgagor to
the originator
of the Cooperative Loan.
Business Day: Any day other than (a) a Saturday or Sunday, (b) a
day on
which banking institutions in the State of Illinois, Washington,
California or
New York are authorized or obligated by law or by executive order
to be closed.
Code: The Internal Revenue Code of 1986, as amended, from time to
time, or
any successor statute thereto.
Commission: The United States Securities and Exchange
Commission.
Commitment Letter: The commitment letter entered into between the
Sellers
and the Purchaser that provides for the purchase of Mortgage Loans
pursuant to
the terms of this Agreement and sets forth the purchase price for
and certain
other terms and conditions of the sale and purchase of such
Mortgage Loans.
Cooperative: A private, cooperative housing corporation organized
under the
laws of, and headquartered in the state in which the related
premises are
located, which owns or leases land and all or part of a building or
buildings
located in any such state, including apartments, spaces used for
commercial
purposes and common areas therein and whose board of directors
authorizes, among
other things, the sale of Cooperative Stock.
Cooperative Apartment: A dwelling unit in a multi-dwelling building
owned
or leased by a Cooperative, which unit the Mortgagor has an
exclusive right to
occupy pursuant to the terms of a Cooperative Lease.
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Cooperative Lease: With respect to a Cooperative Loan, the
proprietary
lease or occupancy agreement with respect to the Cooperative
Apartment occupied
by the Mortgagor and relating to the related Cooperative Stock,
which lease or
agreement confers an exclusive right to the holder of such
Cooperative Stock to
occupy such apartment.
Cooperative Loans: Any of the Mortgage Loans made in respect of
a
Cooperative Apartment, evidenced by a Mortgage Note and secured by
(i) a
Security Agreement, (ii) the related Cooperative Stock Certificate,
(iii) an
assignment or mortgage of the Cooperative Lease, (iv) financing
statements and
(v) a stock power (or other similar instrument), and ancillary
thereto, a
recognition agreement between the Cooperative and the originator of
the
Cooperative Loan, each of which was transferred and assigned to the
Seller.
Cooperative Stock: With respect to a Cooperative Loan, the
outstanding
shares of stock, partnership interest or other ownership instrument
in a
Cooperative.
Cooperative Stock Certificate: With respect to a Cooperative Loan,
the
stock certificate or other instrument evidencing the related
Cooperative Stock.
Custodial Agreement: The agreement between the Purchaser and the
Custodian,
pursuant to which the Custodian shall hold the Mortgage File
documents for the
benefit of the Purchaser.
Custodian: Wells Fargo Bank N.A., or its successor in interest or
assigns.
Cut-Off Date: As to each Mortgage Loan purchased on a particular
Sale Date,
the cut-off date specified in the Commitment Letter relating to the
purchase and
sale of the related Loan Pool.
Cut-Off Date Principal Balance: As to each Mortgage Loan, the
outstanding
principal balance of such Mortgage Loan as of the close of business
on the
Cut-Off Date, after giving effect to scheduled Monthly Payments due
on or before
the Cut-Off Date, whether or not received.
Data
Tape: With respect to the Mortgage Loans to be sold pursuant to
this
Agreement, the data tape which shall be provided on the Sale Date
and shall set
forth as to each applicable Mortgage Loan the following
information:
(i)
the Mortgagor's and
co-mortgagor's name;
(ii)
the street address of the Mortgaged Property;
(iii) a code indicating whether the Mortgaged Property is a single
family
residence, a 2-4 family dwelling, a PUD, a townhouse or a unit in
a
high-rise or low-rise condominium project;
(iv)
a code indicating the loan is a fixed rate mortgage loan;
(v)
a code indicating the
Mortgage Loan is a conventional Mortgage Loan;
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(vi)
a code indicating the lien status of the Mortgage Loan;
(vii) the Loan-to-Value Ratio at origination;
(viii) the origination date of the Mortgage Loan;
(ix)
the first Due Date of the Mortgage Loan;
(x)
the amount of the
Monthly Payment at origination;
(xi)
the next Due Date of the Mortgage Loan;
(xii) the original principal amount of the Mortgage Loan;
(xiii) the Mortgage Loan purpose type;
(xiv) the occupancy status of the Mortgaged Property at the time
of
origination;
(xv)
the lower of the Mortgagor's and co-mortgagor's FICO score;
(xvi) a code indicating the mortgage insurance provider and percent
of
coverage, if applicable;
(xvii) the mortgage insurance certificate number, if
applicable;
(xviii) the loan documentation type;
(xix) Mortgagor social security number;
(xx)
co-Mortgagor social security number;
(xxi) a code indicating whether the Mortgage Loan has a prepayment
penalty;
(xxii) a code indicating the prepayment penalty term of the
Mortgage Loan,
if any;
(xxiii) MIN, if applicable;
(xxiv) the number of units for all Mortgaged Properties;
(xxv) a code indicating the payment status of the Mortgage Loan
(i.e..
bankruptcy, foreclosure, REO);
(xxvi) with respect to each Adjustable Rate Mortgage Loan, the
Index and
payment and interest rate adjustment frequencies;
(xxvii) with respect to each Adjustable Rate Mortgage Loan, the
initial
Adjustment Date;
(xxviii) with respect
to each Adjustable Rate Mortgage Loan, the initial
payment adjustment date;
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(xxix) with respect to each Adjustable Rate Mortgage Loan, the
next
Adjustment Date;
(xxx) with respect to each Adjustable Rate Mortgage Loan, the next
payment
adjustment date;
(xxxi) with respect to each Adjustable Rate Mortgage Loan, the
Margin;
(xxxii) with respect to each Adjustable Rate Mortgage Loan, the
Minimum
Mortgage Interest Rate under the terms of the Mortgage Note;
(xxxiii) with respect to each Adjustable Rate Mortgage Loan, the
Maximum
Mortgage Interest Rate under the terms of the Mortgage Note;
(xxxiv) with respect to each Adjustable Rate Mortgage Loan, the
periodic
rate cap at the initial Adjustment Date;
(xxxv) with respect to each Adjustable Rate Mortgage Loan, the
periodic
rate cap at all subsequent Adjustment Dates;
(xxxvi) with respect to each Adjustable Rate Mortgage Loan, the
lifetime
rate cap;
(xxxvii) the rounding provisions under the terms of the Mortgage
Note;
(xxxviii) the look back provisions (number of days) under the terms
of the
Mortgage Note; and
(xxxix) the Seller.
Depositor: The depositor, as such term is defined in Regulation AB,
with
respect to any Securitization Transaction.
Disclosure Document: With respect to any Securitization
Transaction, a
prospectus, prospectus supplement, private placement memorandum or
offering
circular prepared in connection with such Securitization
Transaction.
Document Exceptions: The schedule, if any, attached to a Memorandum
of Sale
that sets forth the exceptions to the Mortgage File with respect to
one or more
Mortgage Loans on the related Mortgage Loan Schedule.
Due
Date: With respect to any Mortgage Loan, the day of the month on
which
the Monthly Payment on such Mortgage Loan are due, exclusive of any
days of
grace, which day shall be the first day of each calendar month.
Exception Schedule: The schedule, if any, attached to a Memorandum
of Sale
that sets forth exceptions to the representations and warranties
set forth in
Section 4.1 with respect to one or more Mortgage Loans on the
related Mortgage
Loan Schedule.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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FHLMC: 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 Sellers.
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 Sellers.
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.
Issuing Entity: The issuing entity, as such term is defined in
Regulation
AB, with respect to any Securitization Transaction.
Insurers: Private mortgage guaranty insurers which are (a) licensed
to
transact a mortgage guaranty insurance business in the states where
Mortgaged
Properties for which they have written Primary Mortgage Insurance
Policies are
located and (b) approved by FHLMC or FNMA.
Loan
Pool: A pool of Mortgage Loans sold by one Seller or both Sellers
to
the Purchaser on any Sale Date pursuant to the terms of this
Agreement and the
related Commitment Letter (which Mortgage Loans shall be identified
on the
related Mortgage Loan Schedule delivered pursuant to this
Agreement).
Loan-to-Value Ratio: With respect to each Mortgage Loan, the
original
principal balance of a Mortgage Loan divided by the Original
Value.
Margin: For each Adjustable Rate Mortgage Loan, the applicable
fixed per
annum percentage rate specified in the applicable Mortgage Note and
designated
as such in the Mortgage Loan Schedule or Data Tape, which, when
added to the
applicable Index, determines the Mortgage Interest Rate, subject to
the
restrictions provided by the Mortgage Note.
Maximum Mortgage Interest Rate: With respect to any Adjustable
Rate
Mortgage Loan, the maximum rate of interest that may be charged
pursuant to the
related Mortgage Note.
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Memorandum of Sale: A memorandum of sale entered into between the
Sellers
and the Purchaser that provides for the purchase of Mortgage Loans
pursuant to
the terms of this Agreement, in the form attached hereto as Exhibit
B, and sets
forth certain terms and conditions for the sale and purchase of
such Mortgage
Loans.
MERS: Mortgage Electronic Registration Systems, Inc., a
Delaware
corporation, and any successor thereto.
MERS
Loan: Any Mortgage Loan registered on the MERS system and for
which
MERS is listed as the record mortgagee or beneficiary on the
related Mortgage or
assignment thereof.
MERS
System: The system of electronically recording transfers of
Mortgages
contained by MERS.
MIN:
The mortgage identification number issued to each MERS Loan.
Minimum Mortgage Interest Rate: With respect to any Adjustable
Rate
Mortgage Loan, the minimum rate of interest, if any, that may be
charged
pursuant to the related Mortgage Note.
MOM
Loan: A Mortgage Loan that was registered on the MERS System at
the
time of origination thereof and for which MERS appears as the
record mortgagee
or beneficiary on the related Mortgage.
Monthly Payment: The scheduled monthly payment of principal and
interest on
a Mortgage Loan which is payable by a Mortgagor from time to time
under the
related Mortgage Note and due on the applicable Due Date.
Mortgage: The mortgage, deed of trust or other security
instrument
evidencing the creation of a first lien security interest in a fee
simple estate
in real property securing repayment of the Mortgage Note, or, in
the case of a
Cooperative Loan, the security agreement or other instrument
creating a first
lien on the related Cooperative Shares.
Mortgage File: The mortgage documents pertaining to a particular
Mortgage
Loan as set forth on Exhibit A.
Mortgage Interest Rate: The annual rate of interest on a Mortgage
Note.
Mortgage Loan: A first lien residential mortgage loan sold by
the
applicable Seller or Sellers to Purchaser pursuant to the terms and
conditions
of this Agreement, each such mortgage loan being identified on the
related
Mortgage Loan Schedule. The term Mortgage Loan includes a
Cooperative Loan.
Mortgage Loan Schedule: With respect to the Mortgage Loans in a
Loan Pool
sold pursuant to this Agreement, the schedule of Mortgage Loans
which shall be
attached to the Memorandum of Sale and shall set forth as to each
applicable
Mortgage Loan the following information, to the extent
applicable:
(i)
the Seller's Mortgage
Loan identifying number;
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(ii)
the city, state and zip code of the Mortgaged Property;
(iii) the original months to maturity from the Cut-Off Date, based
on the
original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual
amortization
schedule;
(iv)
with respect to Adjustable Rate Mortgage Loans:
(a) the Margin,
and
(b) the Mortgage
Interest Rate, periodic cap, lifetime floor and
lifetime ceiling and, if applicable, the negative amortization
cap;
(v)
the Mortgage Interest
Rate of the Mortgage Loan as of the Cut-Off
Date;
(vi)
the stated maturity date of the Mortgage Loan;
(vii) the amount of the Monthly Payment as of the Cut-Off Date;
(viii) the last Due Date on which a Monthly Payment was actually
applied to
the Stated Principal Balance;
(ix)
the scheduled principal balance of the Mortgage Loan as of the
close
of business on the Cut-Off Date, after deduction of payments of
principal due on or before the Cut-Off Date whether or not
collected,
if applicable;
(x)
a Primary Mortgage
Insurance Policy Insurer code (if applicable);
(xi)
the property value of the Mortgaged Property;
(xii) the Mortgage Interest Rate under the terms of the Mortgage
Note; and
(xiii) the Servicing Fee applicable to such Mortgage Loan.
With
respect to the Mortgage Loans in the aggregate, the Mortgage
Loan
Schedule shall set forth the following information, as of the
Cut-Off Date: (1)
the number of Mortgage Loans; (2) the current aggregate outstanding
principal
balance of the Mortgage Loans; (3) the weighted average mortgage
interest rate
of the Mortgage Loans; and (4) the weighted average maturity of the
Mortgage
Loans.
Mortgage Note: The note or other instrument evidencing the
Mortgagor's
obligation to repay the amount of the Mortgage Loan, executed by
the Mortgagor
or its authorized agent.
Mortgaged Property: The real property, together with improvements
thereto,
securing the Mortgage Note pursuant to the related Mortgage Loan,
or, in the
case of a Cooperative Loan, the items described under the
definition of
"Cooperative Loan", none of which is a mobile home or manufactured
housing.
Mortgagor: The obligor(s) on a Mortgage Note.
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Original Value: With respect to any Mortgage Loan other than a
Mortgage
Loan originated for the purpose of refinancing an existing mortgage
debt, the
lesser of (a) the Appraised Value of the Mortgaged Property at the
time the
Mortgage Loan was originated or (b) the purchase price paid for the
Mortgaged
Property by the Mortgagor: With respect to a Mortgage Loan
originated for the
purpose of refinancing existing mortgage debt, the Original Value
shall be equal
to the Appraised Value of the Mortgaged Property at the time the
Mortgage Loan
was originated.
Permitted Reconstitution: A Whole Loan Transfer or
Securitization
Transaction that complies with the provisions of Section
9.1(a).
Person: Any individual, corporation, partnership, limited
liability
company, joint venture, association, joint-stock company, trust,
unincorporated
organization or government or any agency or political subdivision
thereof.
Portfolio Loans: The meaning as set forth in Section 9.1(d)
herein.
Primary Mortgage Insurance Policy: With respect to each Mortgage
Loan, a
policy of primary mortgage insurance (including all endorsements
thereto) issued
with respect to such Mortgage Loan, which complies with
substantially all of the
requirements established by FNMA or FHLMC for such policies.
Purchase Price: For each Mortgage Loan purchased hereunder, an
amount equal
to the product of the applicable Purchase Price Percentage and the
Cut-Off Date
Principal Balance of such Mortgage Loan.
Purchase Price Percentage: For each Mortgage Loan, the percentage
of par
set forth in the related Memorandum of Sale that is used to
calculate the
Purchase Price of each Mortgage Loan.
Purchaser: Merrill Lynch Mortgage Lending Inc., a Delaware
corporation, or
its successors in interest or assigns.
Qualified Correspondent: Any Person from which the Seller
purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such
Mortgage Loans were originated pursuant to an agreement between the
Seller and
such Person that contemplated that such Person would underwrite
mortgage loans
from time to time, for sale to the Seller, in accordance with
underwriting
guidelines designated by the Seller ("Designated Guidelines") or
guidelines that
do not vary materially from such Designated Guidelines; (ii) such
Mortgage Loans
were in fact underwritten as described in clause (i) above and were
acquired by
the Seller within 180 days after origination; (iii) either (x) the
Designated
Guidelines were, at the time such Mortgage Loans were originated,
used by the
Seller in origination of mortgage loans of the same type as the
Mortgage Loans
for the Seller's own account or (y) the Designated Guidelines were,
at the time
such Mortgage Loans were underwritten, designated by the Seller on
a consistent
basis for use by lenders in originating mortgage loans to be
purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage
Loans were
acquired by the Seller, pre-purchase or post-purchase quality
assurance
procedures (which may involve, among other things, review of a
sample of
mortgage loans purchased during a particular time period or through
particular
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channels) designed to ensure that Persons from which it purchased
mortgage loans
properly applied the underwriting criteria designated by the
Seller.
Qualified Insurer: An insurer acceptable under the applicable
Seller's
underwriting guidelines or the originator's underwriting guidelines
or
acceptable under the FNMA Selling Guide or the FHLMC Selling
Guide.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreement: An agreement or agreements entered into
by the
Seller and the Purchaser and/or certain third parties, including a
master
servicer, in connection with a Reconstitution with respect to any
or all of the
Mortgage Loans serviced under this Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB),
17 C.F.R. Sections 229.1100-229.1123, as such may be amended from
time to time,
and subject to such clarification and interpretation as have been
provided by
the Commission in the adopting release (Asset-Backed Securities,
Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or
by the staff
of the Commission, or as may be provided by the Commission or its
staff from
time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning of
Section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating
to a
REMIC, which appear at section 860A through 860G of Subchapter M of
Chapter 1,
Subtitle A of the Code, and related provisions, and regulations,
rulings or
pronouncements promulgated thereunder, as the foregoing may be in
effect from
time to time.
Required Notice: With respect to any Reconstitution, 15 days' prior
written
notice (i) accompanied by loan-level data with respect to the
Mortgage Loans
intended for inclusion in such Reconstitution and (ii) specifying
the percentage
of mortgage loans in the entire related transaction that consist of
Mortgage
Loans.
Sale
Date: With respect to any Loan Pool, the date on which the
Purchaser
purchases the Mortgage Loans included in such Loan Pool.
Security Agreement: With respect to a Cooperative Loan, the
agreement or
mortgage creating a security interest in favor of the originator of
the
Cooperative Loan in the related Cooperative Stock.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction involving either (1) a
sale or
other transfer of some or all of the Mortgage Loans directly or
indirectly to an
issuing entity in connection with an issuance of publicly offered
or privately
placed, rated or unrated mortgage-backed securities or (2) an
issuance of
publicly offered or privately placed, rated or unrated securities,
the payments
on which are determined primarily by reference to one or more
portfolios of
residential mortgage loans consisting, in whole or in part, of some
or all of
the Mortgage Loans.
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Seller: As the context requires, Washington Mutual Bank and/or
Washington
Mutual Bank fsb and their respective assigns and successors in
interest.
Seller Information: The information provided by the Seller pursuant
to
Sections 9.4(a) and (b).
Seller's Underwriting Guidelines: The underwriting guidelines of
the
applicable Seller.
Servicer: Washington Mutual Bank, a savings bank organized under
the laws
of the United States, or its permitted successor in interest, or
any successor
to the Servicer under the Servicing Agreement appointed as therein
provided.
Servicing Agreement: That certain Servicing Agreement by and
between
Purchaser and Servicer dated as of November 1, 2005, as amended by
the
Regulation AB Amendment to Servicing Agreement, dated as of
November 1, 2005.
Servicing Cut-Off Date: As to each Mortgage Loan purchased on a
Sale Date,
the last day of the calendar month in which the Sale Date
occurs.
Servicing Fee: The meaning as set forth in the Servicing
Agreement.
Sponsor: The sponsor, as such term is defined in Regulation AB,
with
respect to any Securitization Transaction.
Static Pool Information: Static pool information as described in
Item
1105(a)(1)-(3) and 1105(c) of Regulation AB.
Streamlined Mortgage Loan: A Mortgage Loan originated in connection
with
the refinance of a mortgage loan pursuant to the related Seller's
streamlined
loan documentation program then in effect.
Subsequent Transfer Settlement Date: As defined in Section 9.1.
Third-Party Originator: Each Person, other than a Qualified
Correspondent,
from which the Seller acquired Mortgage Loans.
Unpaid Principal Balance: With respect to each Mortgage Loan, as of
any
date of determination, (i) the Cut-Off Date Principal Balance,
minus (ii) the
principal portion of all payments made by or on behalf of the
Mortgagor after
such Cut-Off Date and received by the Purchaser.
Wire
Instructions: Bank Name: Washington Mutual Bank, ABA/Routing #:
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, other than a Securitization Transaction.
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ARTICLE 2.
CONVEYANCE AND TRANSFER
SECTION 2.1 CONVEYANCE AND TRANSFER
On
each Sale Date, subject to the terms and conditions of this
Agreement,
the applicable Seller or Sellers shall sell, transfer, assign and
deliver to
Purchaser, without recourse and Purchaser shall purchase, all
right, title and
interest in and to the Mortgage Loans, exclusive of the related
servicing
rights.
As
of each Sale Date, the Purchaser shall own and be entitled to
receive
with respect to each Mortgage Loan purchased on such Sale Date all
Monthly
Payments and all other recoveries of principal and interest due
after the
applicable Cut-Off Date, subject to the rights of the Servicer in
accordance
with the terms of the Servicing Agreement to the Servicing Fees
and
reimbursement for certain costs, expenses, and advances incurred or
made
pursuant thereto. All such amounts that are collected after the
applicable
Cut-Off Date through and including the related Sale Date, shall be
held and
remitted by the Servicer, in accordance with the terms of the
Servicing
Agreement.
SECTION 2.2 SALE DATE
(a)
At least three Business Day's prior to each Sale Date (unless
otherwise
agreed to in the Commitment Letter), the applicable Seller or
Sellers shall
deliver or cause to be delivered to the Custodian the Mortgage File
related to
each Mortgage Loan to be purchased by the Purchaser. Prior to the
payment for
the related Mortgage Loan, such documents shall be held by the
Custodian as
custodian for such Seller. Upon payment for the related Mortgage
Loans pursuant
to Section 3.1 below, the beneficial ownership of each Mortgage
File with
respect to such Mortgage Loan is and shall be vested in the
Purchaser. Such
Seller shall, in connection with such delivery:
(i) with respect to
each Mortgage Loan:
(a) cause the related Mortgage Note to be endorsed "Pay to the
order of __________________________, without recourse"; and
(b) assign in blank the related Mortgage by an Assignment of
Mortgage signed by such Seller or the originator of the
Mortgage
Loan, in either case showing a complete chain of title from
such
Seller or such originator and in form and substance acceptable
for recording (except with respect to Assignments of Mortgage
in
blank which shall be acceptable for recording upon insertion of
the assignee's
name).
(b)
Pursuant to the Custodial Agreement, the Custodian shall certify
its
receipt of all documents constituting the Mortgage File for the
Sale Date,
pursuant to an initial custody receipt and initial certification of
the
Custodian and subject to the exception report attached to such
certification or
subsequent certifications delivered under the Custodial Agreement.
The Custodian
shall deliver such initial certification on or prior to the Sale
Date.
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(c)
The Purchaser shall notify the applicable Seller or Sellers and
the
Custodian if any document or documents constituting a part of the
Mortgage File
are defective or missing in any material respect and if such
omission or defect
materially and adversely affect the interests of the Purchaser in
the Mortgage
Loan. Such Seller shall correct or cure such omission or defect
within 60 days
from the date such Seller was notified of such omission or defect
and, if such
Seller does not correct or cure such omission or defect within such
period, then
such Seller shall purchase such Mortgage Loan from the Purchaser
within 10 days
after the expiration of such 60-day period by depositing in
immediately
available funds the repurchase price for such Mortgage Loan to the
account
designated by the Purchaser, calculated and payable in the manner
set forth in
Section 4.2; provided, however, that the foregoing repurchase
obligation shall
not apply in the event such Seller cannot deliver such items due to
a delay
caused by the recording office in the applicable jurisdiction. The
Purchaser
shall be responsible for the ongoing fees and expenses of the
Custodian so long
as the Custodian is 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
applicable Seller
shall deliver to the Custodian in lieu of such original document a
photocopy
certified by such recording office to be a true and correct copy of
such
original. If such Seller does not deliver an original Mortgage or
Assignment of
Mortgage within one hundred and eighty (180) days after the Sale
Date due solely
to the failure of the applicable recorder's office to return such
document, the
Purchaser may extend the 180-day period by ninety (90) or more days
upon receipt
by the Purchaser of an Officer's Certificate from such Seller
accompanied by
evidence that the Seller is diligently proceeding to obtain and
deliver any such
documents. In the event that such Seller does not comply with the
delivery
requirements set forth in this Section 2.2, the related Mortgage
Loan shall,
upon the request of the Purchaser, be repurchased by the Seller at
the
repurchase price and in the manner specified in this Section
2.2.
Notwithstanding the foregoing, such Seller shall not be deemed to
be in breach
of this Agreement if such Seller fails to deliver to the Custodian
within the
time period specified in this Agreement any of the documents
described in this
Section 2.2 and provides evidence to the Custodian that such
failure is due
solely to the failure of the applicable recorder's office to return
a Mortgage
Loan document that was properly submitted for recordation. Such
Seller shall use
reasonable efforts to obtain such original recorded document or
copy of the
original showing recording information certified by the appropriate
recording
office to be a true and complete copy of the recorded original as
soon as
practicable.
(e)
The Servicer shall forward to the Purchaser or its designees,
any
original documents evidencing an assumption, modification or
consolidation or
extension of any Mortgage Loan purchased by the Purchaser that is
entered into
after the Sale Date.
(f)
Whenever a certified copy of a Mortgage Loan document certified by
a
Seller is required to be delivered to the Purchaser, the following
form of
certification is permitted: "Certified true, correct and complete
copy of the
original. [Name of Seller], By _________________, Its
_________________."
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(g)
The Custodian shall issue its initial certification with respect to
the
Mortgage Loans on or prior to the Sale Date. Purchaser shall have
no obligation
to purchase any Mortgage Loans on the Sale Date for which the
Custodian has
indicated in its initial certification that there are material
defects or
omissions in the Mortgage File; provided, that once the Purchaser
has paid to
the Seller the Purchase Price for each Mortgage Loan pursuant to
Section 3.1
herein, Seller shall have all rights to cure and correct any such
defects or
omissions as provided in Section 2.2(c) above.
SECTION 2.3 DUE DILIGENCE EXAMINATION
Prior to the fifth Business Day preceding the Sale Date, Purchaser
shall
have the right, during Seller's regular business hours and without
interrupting
Seller's operations, to review the Mortgage Files, including all
credit and
underwriting information, for the purpose of determining that the
Mortgage Loans
meet the requirements set forth in the related Memorandum of Sale
and this
Agreement.
ARTICLE 3.
CONSIDERATION
SECTION 3.1 PURCHASE PRICE
On
the Sale Date, Purchaser shall pay the applicable Seller or
Sellers, by
wire transfer of immediately available funds in accordance with the
Wire
Instructions, the sum of (i) the applicable Purchase Price for each
Mortgage
Loan purchased on the Sale Date and (ii) the accrued interest on
the Cut-Off
Date Principal Balance of the Mortgage Loans, from the Cut-Off Date
through the
day prior to the Sale Date at the weighted average (by principal
balance) of the
Mortgage Interest Rates borne by such Mortgage Loans as set forth
in the
Memorandum of Sale less the related Servicing Fees.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF SELLERS
Each
of the Sellers hereby, severally and not jointly, represents,
warrants and covenants to the Purchaser as to such Seller as of
each Sale Date
on which such Seller sells Mortgage Loans hereunder, and with
respect to the
Mortgage Loans sold by such Seller, as of the related Sale
Date:
(a) Organization. If the Seller is Washington Mutual Bank, the
Seller
is a federally chartered savings bank, duly organized, validly
existing and in
good standing under the laws of the United States. If the Seller is
Washington
Mutual Bank fsb, the Seller is a savings bank, duly organized,
validly existing
and in good standing under the laws of the United States.
(b) Authority and Capacity. Seller has all requisite corporate
power,
authority and capacity to enter into this Agreement and to perform
the
obligations required of it hereunder.
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This Agreement has been duly authorized, validly executed and
delivered by
Seller and (assuming the due authorization and execution of this
Agreement by
Purchaser) constitutes a valid and legally binding agreement of
Seller
enforceable in accordance with its terms, except as such
enforceability may be
limited by (i) bankruptcy, insolvency, receivership,
conservatorship,
moratorium, reorganization, arrangement and other similar laws of
general
applicability relating to or affecting creditor's rights and (ii)
general
principles of equity, whether such enforcement is sought in a
proceeding in
equity or at law.
(c) No Conflict. The consummation of the transactions
contemplated
herein, including the transfer and assignment of the Mortgage Loans
to the
Purchaser, shall not (i) conflict with or result in the breach of
any term or
provision of the charter or by-laws of Seller, (ii) conflict with
or result in
the breach of or constitute a default under, or result in the
acceleration of
any obligation under, any material agreement, indenture, loan or
credit
agreement or other instrument to which the Seller is a party or by
which it is
bound, or (iii) result in the violation of any law, statute, order,
judgment,
governmental rule, decree or regulation applicable to Seller or any
of its
properties.
(d) No Proceeding. There is no action, suit, proceeding or
investigation pending or, to Seller's knowledge, threatened, that,
if determined
adversely to Seller, would materially and adversely affect the sale
of the
Mortgage Loans by Seller pursuant to this Agreement on the Sale
Date, or the
execution, delivery or enforceability of this Agreement, or the
ability of
Seller to perform its obligations hereunder.
(e) No Consent. No consent, approval, authorization or order of
any
court, regulatory body or governmental agency or body is required
for the
transfer of legal title to the Mortgage Loans to the Purchaser or
the execution,
delivery and performance by Seller of this Agreement, except for
any
recordations of Assignment of Mortgages to or for the benefit of
the Purchaser
pursuant to this Agreement.
(f) Ordinary Course of Business. The consummation of the
transactions
contemplated by this Agreement are in the ordinary course of
business of the
Seller;
(g) Performance. The Seller does not believe, nor does it have
any
reason or cause to believe, that it cannot perform each and every
covenant
contained in this Agreement;
(h) No Commissions. The Seller has not dealt with any broker,
investment banker, agent or other person that may be entitled to
any commission
or compensation payable by the Purchaser in connection with the
sale of the
Mortgage Loans.
(i) Mortgage Loan Representations. Each of the Sellers hereby,
severally and not jointly, represents and warrants to and covenants
to and
agrees with the Purchaser that, as to each Mortgage Loan sold by
such Seller
hereunder, as of the related Sale Date:
(i) The information
set forth in the Mortgage Loan Schedule and
the Data Tape with respect to the Mortgage Loans is true and
correct in all
material respects at the date or dates respecting which such
information is
furnished;
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(ii) With respect to each Mortgage Loan other than a
Cooperative
Loan, the Mortgage is a valid and enforceable (subject to clause
(xv) below)
first lien on an estate in fee simple in the related Mortgaged
Property, subject
only to (a) liens for current real property taxes and special
assessments; (b)
covenants, conditions and restrictions, rights of way, easements,
mineral right
reservations and other matters of public record as of the date of
recording such
Mortgage, such exceptions generally being acceptable to mortgage
lending
institutions or specifically reflected in the appraisal obtained in
connection
with the origination of the Mortgage Loan; (c) exceptions set forth
in the title
insurance policy relating to such Mortgage and generally being
acceptable to
mortgage lending institutions; and (d) other matters to which like
properties
are commonly subject that do not materially interfere with the
benefits of the
security intended to be provided by the Mortgage;
(iii) Immediately prior to the transfer of the Mortgage Loan to
the Purchaser pursuant to Section 2.1, Seller had good title to,
and was the
sole owner of, such Mortgage Loan free and clear of any encumbrance
or lien.
Upon the transfer of the Mortgage Loans to the Purchaser pursuant
to Section
2.1, the Purchaser shall have good title to, and will be the sole
legal owner
of, such Mortgage Loan, free and clear of any encumbrance or lien
(other than
any lien under this Agreement);
(iv) As of the day prior to the Cut-Off Date, all payments due
on
such Mortgage Loan had been made and no Mortgage Loan has been more
than 30 days
delinquent more than one time during the twelve (12) months
immediately
preceding the related Cut-Off Date and any such delinquency lasted
for no more
than 30 days;
(v) There is no late assessment for delinquent taxes
outstanding
against any Mortgaged Property;
(vi) There is no valid offset, defense or counterclaim as to
the
related Mortgage Note, including the obligation of the Mortgagor to
pay the
unpaid principal or interest on such Mortgage Note. The operation
of any of the
terms of such Mortgage Note or Mortgage, or the exercise of any
right
thereunder, shall not render either the Mortgage Note or Mortgage
unenforceable,
in whole or in part, or subject to any right of rescission,
set-off, recoupment,
counterclaim or defense and no such right of rescission, set-off,
recoupment,
counterclaim or defense has been asserted with respect thereto;
(vii) The Mortgaged Property is free of any material damage and
in good repair, ordinary wear and tear excepted and there is no
proceeding
pending or, to the best of the Seller's knowledge, threatened for
the total or
partial condemnation of the Mortgaged Property;
(viii) Such Mortgage Loan was originated by (i) a savings and
loan association, savings bank, credit union, insurance company, or
similar
institution which is supervised and examined by a federal or state
authority or
(ii) by a mortgagee approved by the
