REGULATION AB AMENDMENT TO
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This REGULATION
AB AMENDMENT TO MORTGAGE LOAN PURCHASE AND SALE AGREEMENT dated as
of April 1, 2006 (the "Amendment") between WASHINGTON MUTUAL BANK,
(formerly known as Washington Mutual Bank, FA), a savings bank
organized under the laws of the United States and WASHINGTON MUTUAL
BANK, FSB, a savings bank organized under the laws of the United
States (each, " Seller " and, collectively, the "
Sellers "), and GOLDMAN SACHS MORTGAGE COMPANY, a New York
limited partnership, as purchaser (the " Purchaser "), is
made with respect to the Mortgage Loan Purchase and Sale Agreement
dated as of December 1, 2003, as amended by the First Amendment to
Mortgage Loan Purchase Agreement dated as of October 1, 2004 (as so
amended, the "Original Purchase Agreement") among the Sellers,
Washington Mutual Bank and the Purchaser. Capitalized terms used in
this Amendment without definition have the meanings assigned to
them in the Original Purchase Agreement.
The parties
wish to amend the Original Purchase Agreement in order to
facilitate compliance by the Purchaser and its assignees with
Regulation AB (as defined below).
Accordingly,
the parties agree as follows:
ARTICLE
I
AMENDMENTS
Section
1.1.
Definitions
(a)
Article 1 of the Original Purchase
Agreement is amended by adding the following definitions in the
proper alphabetical sequence:
Commission : The United States Securities and Exchange
Commission.
Depositor : The depositor, as such term is defined in
Regulation AB, with respect to any Securitization
Transaction.
Exchange
Act : The Securities
Exchange Act of 1934, as amended.
Issuing
Entity : The issuing
entity, as such term is defined in Regulation AB, with respect to
any Securitization Transaction.
Permitted
Reconstitution : A Whole
Loan Transfer or Securitization Transaction that complies with the
provisions of Section 6.1(a).
Qualified Correspondent : Any Person from which the Sellers purchased
Mortgage Loans, provided that the following conditions are
satisfied: (i) such Mortgage Loans were originated pursuant to an
agreement between the applicable Seller(s) and such Person that
contemplated that such Person would underwrite mortgage loans from
time to time, for sale to the applicable Seller(s), in accordance
with underwriting guidelines designated by the Seller(s) (“
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 applicable Seller(s) within 180 days after
origination; (iii) either (x) the Designated Guidelines were, at
the time such Mortgage Loans were originated, used by the
applicable Seller(s) 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(s) on a consistent basis for
use by lenders in originating mortgage loans to be purchased by the
applicable Seller(s); and (iv) the applicable Seller(s) 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 channels) designed to ensure that Persons from which it
purchased mortgage loans properly applied the underwriting criteria
designated by the Seller(s).
Reconstitution : Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreement : An agreement or agreements entered into by the
Sellers 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.
§§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 (January 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff
from time to time.
Required
Notice : With respect to
any Reconstitution, 15 days' prior written notice, in each case,
(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.
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.
Seller
Information : The
information provided by each of the Sellers pursuant to Sections
6.4(a) and (b).
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.
Third-Party
Originator : Each Person,
other than a Qualified Correspondent, that originated Mortgage
Loans acquired by the Sellers.
(b)
Article 1 of the Original Purchase
Agreement is amended by amending and restating the following
definitions in their entirety:
Disclosure
Document : With respect
to any Securitization Transaction, a prospectus, prospectus
supplement, private placement memorandum, offering circular or
other disclosure document prepared in connection with such
Securitization Transaction.
Master
Servicer : As defined in
Section 6.1(d).
Repurchase Price : With respect to any Mortgage Loan, unless
otherwise specified in the related Commitment Letter, an amount
equal to the sum of (a) (i) if such repurchase occurs during the
first twelve months following the related Closing Date, (A) the
Unpaid Principal Balance of such Mortgage Loan, multiplied by (B)
the Purchase Price Percentage, and (ii) if such repurchase occurs
after the first twelve months following the related Closing Date or
after such Mortgage Loan has been subject to a Securitization
Transaction, the Unpaid Principal Balance of such Mortgage Loan,
plus (b) the amount of interest on such Unpaid Principal Balance at
the applicable Net Rate, from the date to which interest has last
been paid and distributed to the Purchaser, to and including the
last day of the month in which such repurchase occurs, plus
(c) any costs and damages (including, without limitation, late
fees) actually incurred and paid by or on behalf of the trust in
the applicable Securitization Transaction in connection with the
fact that such Mortgage Loan at the time it was made failed to
comply in all material respects with applicable federal, state or
local predatory and abusive lending laws, to the extent such costs
and damages result from a breach by the Seller of the
representation and warranty set forth in Section
3.1(gg).
Whole Loan
Transfer : Any sale or
transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
(c)
Article 1 of the Original Purchase
Agreement is amended by deleting the following definitions:
“Indemnified Party,” "Pass-Through Transfer" and
"Seller's Information."
(d)
The penultimate sentence of Section
3.3(b) of the Original Purchase Agreement is amended by replacing
the reference therein to "Pass-Through Transfer" with
“Securitization Transaction”.
(e)
Article 6 of the Original Purchase
Agreement is amended and restated in its entirety to read as
follows:
ARTICLE
RECONSTITUTIONS; REGULATION
AB COMPLIANCE
Section
6.1
Reconstitutions
(a)
Upon Required Notice to the
applicable Seller(s), the Purchaser may, at its sole option, effect
one or more Reconstitutions with respect to some or all of the
Mortgage Loans purchased on any Closing Date, retaining the
Servicer as servicer or subservicer, if a master servicer is
employed; provided, however, that no Reconstitution may be made by
the Purchaser or any of its permitted assignees with respect to
Mortgage Loans in any Loan Pool if as a result thereof: (i) more
than three (3) investors (other than the Purchaser) would own
Mortgage Loans in such Loan Pool at any one time (unless otherwise
stated in the related Commitment Letter), (ii) any single investor
(other than the Purchaser) would own Mortgage Loans from such Loan
Pool having an aggregate Unpaid Principal Balance immediately after
such Reconstitution of less than $5,000,000 (unless mutually agreed
upon otherwise by the parties thereto), (iii) the applicable
Seller(s) and the Servicer are not provided with initial drafts of
all documents for which the applicable Seller(s) and Servicer are
requested to become a party in connection with such Reconstitution
at least 10 days prior to the related settlement date (the “
Subsequent Transfer Settlement Date ”), (iv) a final
list of the Mortgage Loans intended to be subject to such
Reconstitution is not provided to the Servicer at least 2 Business
Days prior to the related Subsequent Transfer Settlement Date
(unless mutually agreed upon otherwise by the parties thereto), (v)
any Mortgage Loan is subject to more than one Reconstitution in any
given Due Period, or (vi) the related Subsequent Transfer
Settlement Date occurs on or prior to the related Servicing Cut-off
Date.
(b)
The Purchaser shall promptly notify
the applicable Seller(s) if the percentage of Mortgage Loans in the
entire related transaction increases above the percentage specified
in the Required Notice.
(c)
The Purchaser shall reimburse the
applicable Seller(s) for all reasonable out-of-pocket expenses,
including attorneys’ fees, incurred by the Seller(s) in
connection with any Reconstitution.
(d) Notwithstanding anything to the contrary
contained in this Agreement, but subject to the terms of the
Servicing Agreement, the Purchaser shall have the right, in its
sole discretion, upon 30 days’ prior written notice to the
Sellers, to appoint and designate a master servicer (the “
Master Servicer ”), as master servicer of any Mortgage
Loans subject to a Permitted Reconstitution. Upon such appointment,
the Sellers shall correspond and communicate solely with the Master
Servicer, as if the Master Servicer were the
“Purchaser” hereunder. Furthermore, the Master Servicer
shall have all rights as designee of the Purchaser to enforce the
representations and warranties, and all other covenants and
conditions set forth in this Agreement, and the Sellers shall
follow and shall be entitled to rely on the instructions of the
Master Servicer under this Agreement as if such instructions were
the instructions of the Purchaser. The Master Servicer shall have
the right to give any waivers or consents required or allowed under
this Agreement on behalf of the Purchaser, and the Sellers shall
have the right to rely on all such waivers and consents. The Master
Servicer shall be empowered to enter into and execute and deliver
any amendments or modifications to this Agreement as the
Purchaser’s designee hereunder, and such amendments or
modifications shall be binding upon the Purchaser as if the
Purchaser had executed and delivered the same.
Section
6.2
Reconstitution
Agreements
(a) In connection with each Permitted
Reconstitution, each of the Sellers, as applicable,
shall:
(i) provide the Purchaser with information and
appropriate verification of information in its possession or
control as may reasonably be necessary in order to effect such
Reconstitution (and, to the extent any such information is in the
possession or control of any third party, use commercially
reasonable efforts to cause such third party to provide such
information); and
(ii) cooperate with all reasonable requests and due
diligence procedures not otherwise addressed herein.
(b) With respect to any Securitization Transaction
that is a Permitted Reconstitution in which all or substantially
all of the mortgage loans in the related transaction consist of
Mortgage Loans, each of the applicable Sellers shall:
(i) execute and deliver a pooling and servicing
agreement containing terms and conditions that are consistent with
the terms and conditions set forth herein and in the Servicing
Agreement and that are customary for public, rated transactions for
the issuance of pass-through certificates backed by mortgage loans
similar to the Mortgage Loans included in such Securitization
Transa
