EX-99.14 20 v057092_ex99-14.htm
 
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
 
Among

WASHINGTON MUTUAL BANK, FA
WASHINGTON MUTUAL BANK fsb
WASHINGTON MUTUAL BANK

(Sellers)

and

GOLDMAN SACHS MORTGAGE COMPANY

(Purchaser)

Dated as of December 1, 2003

Residential First Lien Mortgage Loans
Schedule/Schedule Flow Delivery Program
 
 

TABLE OF CONTENTS

   
Page
ARTICLE 1. DEFINITIONS
  
1
     
ARTICLE 2. SALE AND CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF FILES; PAYMENT OF PURCHASE PRICE; DELIVERY OF MORTGAGE LOAN DOCUMENTS; RECORDATION OF ASSIGNMENTS OF MORTGAGE
  
10
Section 2.1.
  
Sale and Conveyance of Mortgage Loans; Possession of Files
  
10
Section 2.2.
  
Delivery of Mortgage Loan Documents Regarding Mortgage Loans; Recordation of Assignments of Mortgage
  
11
Section 2.3.
  
Purchaser’s Due Diligence Review
  
14
       
ARTICLE 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLERS CONCERNING MORTGAGE LOANS; REPURCHASE OF MORTGAGE LOANS
  
14
Section 3.1.
  
Individual Mortgage Loans
  
14
Section 3.2.
  
Seller Representations
  
24
Section 3.3.
  
Repurchase and Substitution
  
25
       
 
ARTICLE 4. COVENANTS
  
28
Section 4.1.
  
Cooperation
  
28
Section 4.2.
  
Representations, Warranties, Covenants and Indemnities
  
29
Section 4.3.
  
Delivery of Documents
  
29
Section 4.4.
  
Consents and Approvals
  
29
Section 4.5.
  
Confidentiality
  
29
Section 4.6.
  
Servicing
  
30
         
ARTICLE 5. CONDITIONS TO PURCHASE
  
30
Section 5.1.
  
Effective Date and Closing Date Documents
  
30
Section 5.2.
  
Correctness of Representations and Warranties
  
30
Section 5.3.
  
Compliance With Conditions
  
30
         
ARTICLE 6. PASS-THROUGH AND WHOLE LOAN TRANSFERS
  
31
Section 6.1.
  
Pass-Through Transfers or Whole-Loan Transfers
  
31
Section 6.2.
  
Designation of a Master Servicer
  
33
         
ARTICLE 7. MISCELLANEOUS PROVISIONS
  
34
Section 7.1.
  
Amendment
  
34
Section 7.2.
  
Recordation of Agreement
  
34
Section 7.3.
  
Governing Law
  
34
Section 7.4.
  
General Interpretive Principles
  
34
 
i
 
Section 7.5.
  
Reproduction of Documents
  
35
Section 7.6.
  
Notices
  
35
Section 7.7.
  
Severability of Provisions
  
37
Section 7.8.
  
Exhibits
  
37
Section 7.9.
  
Counterparts; Successors and Assigns
  
37
Section 7.10.
  
Effect of Headings
  
37
Section 7.11.
  
Other Agreements Superseded; Entire Agreement
  
37
Section 7.12.
  
Survival
  
38
Section 7.13.
  
Intention of the Parties
  
38
Section 7.14.
  
Nonsolicitation
  
38
Section 7.15.
  
Costs
  
38
Section 7.16.
  
Obligations of the Sellers
  
39
Section 7.17.
  
Attorneys’ Fees
  
39
 
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EXHIBITS & SCHEDULES
 
·  
Exhibit A-1 CONTENTS OF COLLATERAL FILE

·  
Exhibit A-2 CONTENTS OF CREDIT FILE

·  
Exhibit BTERM SHEET

Schedule I to Term Sheet MORTGAGE LOAN SCHEDULE

·  
Exhibit C FORM OF INDEMNIFICATION AGREEMENT

·  
Exhibit D REPRESENTATIONS AND WARRANTIES
 
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MORTGAGE LOAN PURCHASE AND SALE AGREEMENT 
 
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (this “Agreement”) dated as of December 1, 2003 is among Goldman Sachs Mortgage Company, a New York limited partnership, as purchaser (the “Purchaser”), and Washington Mutual Bank, FA, a savings association organized under the laws of the United States, Washington Mutual Bank fsb, a savings bank organized under the laws of the United States and Washington Mutual Bank, a Washington state chartered stock savings bank, as sellers (each, a “Seller” and, collectively, the “Sellers”).
 
PRELIMINARY STATEMENT
 
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;
 
WHEREAS, the Purchaser and the Sellers desire to prescribe in this Agreement the manner of sale by each Seller and purchase by the Purchaser of such mortgage loans;
 
WHEREAS, the Purchaser and the Sellers desire that Washington Mutual Bank, FA service the mortgage loans in the manner described in the Servicing Agreement; and
 
WHEREAS, following its purchase of the mortgage loans from the Sellers, the Purchaser may desire to sell some or all of the mortgage loans to one or more purchasers as a whole loan transfer or a public or private mortgage-backed securities transaction;
 
NOW, THEREFORE, the Purchaser and the Sellers agree as follows:
 
ARTICLE 1. 
 
DEFINITIONS
 
Capitalized terms used in this Agreement shall have the meanings specified in the Servicing Agreement, except that, whenever used herein, the following words and phrases, unless the context otherwise requires, shall have the following meanings:
 
Acceptable Servicing Procedures: As defined in the Servicing Agreement.
 
Account: As defined in the Servicing Agreement.
 
Agreement: This Mortgage Loan Purchase and Sale Agreement, including all exhibits, attachments and schedules hereto, and all amendments hereof and supplements hereto.
 
ALTA: The American Land Title Association or any successor thereto.
 
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Appraised Value: With respect to any Mortgage Loan, the lesser of (i) the value set forth on the appraisal 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 Mortgage Loan 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 and provided, further, that in the case of a Streamlined Mortgage Loan, such value shall be based solely on the appraisal made in connection with the origination of the mortgage loan being refinanced.
 
ARM Loan: A Mortgage Loan as to which the related Mortgage Note provides that the Mortgage Interest Rate may be adjusted periodically.
 
Assignment of Mortgage: An assignment of mortgage, notice of transfer or equivalent instrument, in recordable form, sufficient under and complying with the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect of record the transfer of the Mortgage Loan to the assignee named therein.
 
Breaching Seller: As defined in Section 3.3(b).
 
Business Day: A day other than (i) a Saturday or Sunday, or (ii) a day on which banking or savings and loan institutions in the States of Washington, California, Illinois or New York are authorized or obligated by law or executive order to be closed.
 
Closing Date: With respect to any Loan Pool, the date on which the Purchaser purchases the Mortgage Loans included in such Loan Pool.
 
Code: The Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto, and applicable U.S. Department of the Treasury regulations issued pursuant thereto.
 
Collateral Documents: With respect to any Mortgage Loan, the mortgage loan documents pertaining to such Mortgage Loan which are specified in Exhibit A-1 attached hereto and any additional mortgage documents pertaining to such Mortgage Loan required to be added to the related Collateral File pursuant to the terms of this Agreement.
 
Collateral File: With respect to any Mortgage Loan, a file pertaining to such Mortgage Loan that contains each of the related Collateral Documents.
 
Commitment Letter: With respect to each Loan Pool, a commitment letter entered into between one or more 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.
 
Coop Ownership Interests: With respect to any Cooperative Loan, the ownership interest in a single Cooperative Apartment, including (i) the shares issued by the cooperative housing corporation, (ii) the leasehold interest in the Cooperative Apartment and (iii) all attendant right, title and interest thereto.
 
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Cooperative Apartment: A dwelling unit in a multi-dwelling building owned or leased by a cooperative housing corporation, which unit the Mortgagor has an exclusive right to occupy pursuant to the terms of a proprietary lease in accordance with the laws of the state in which the building is located.
 
Cooperative Loan: A Mortgage Loan evidenced by a Mortgage Note and secured by a first lien against the Coop Ownership Interests in a Cooperative Apartment.
 
Credit File: With respect to any Mortgage Loan, a file pertaining to such Mortgage Loan which contains the mortgage loan documents described on Exhibit A-2 attached hereto together with the credit documentation relating to the origination of such Mortgage Loan and copies of the Collateral Documents, which file shall be retained by the Servicer and may be maintained on microfilm or any other comparable medium.
 
Custodian: With respect to the Mortgage Loans in any Loan Pool, the custodian designated by the Purchaser in the related Commitment Letter, or any successor custodian.
 
Cut-off Date: As to each Mortgage Loan purchased on a particular Closing 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 applicable Cut-off Date, after deduction and application of all payments of principal due on or before such Cut-off Date, whether or not received.
 
Deleted Mortgage Loan: A Mortgage Loan that is removed from a Loan Pool and replaced with a Qualified Substitute Mortgage Loan as set forth in Section 3.3.
 
Delinquent Monthly Payment: Any scheduled Monthly Payment that (i) has not been received by the Due Date of the next Monthly Payment and (ii) remains unpaid as of the related Closing Date.
 
Disclosure Document: As defined in Section 6.1(d).
 
Due Date: With respect to any Mortgage Loan, the day of the month on which Monthly Payments on such Mortgage Loan are due, exclusive of any days of grace, which day shall be the first day of the month unless otherwise specified on the related Mortgage Loan Schedule.
 
Due Period: With respect to any Mortgage Loan, the period beginning on the first day of any month and ending on the last day of such month.
 
Effective Date: December 23, 2003.
 
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Effective Date Documents:
 
(A) two fully-executed counterparts of this Agreement;
 
(B) two fully executed counterparts of the Servicing Agreement; and
 
(C) two fully-executed counterparts of the Term Sheet.
 
Escrow Account: As defined in the Servicing Agreement.
 
Escrow Holdback Mortgage Loan: A Mortgage Loan subject to an escrow withhold agreement for the express purpose of completing designated improvements on the Mortgaged Property.
 
Fannie Mae: Fannie Mae (formerly known as the Federal National Mortgage Association) and any successor thereto.
 
Freddie Mac: Freddie Mac (formerly known as The Federal Home Loan Mortgage Corporation) and any successor thereto.
 
Gross Margin: With respect to any ARM Loan, the fixed percentage amount set forth in the related Mortgage Note and described in the related Mortgage Loan Schedule, which amount is added to the Index in accordance with the terms of the related Mortgage Note to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate for such Mortgage Loan.
 
HUD: The United States Department of Housing and Urban Development, or any successor thereto.
 
Indemnified Party: As defined in Section 6.1(d).
 
Index: With respect to any ARM Loan, the index set forth in each adjustable rate Mortgage Note, which index is added to the Gross Margin to determine the Mortgage Interest Rate on each Interest Rate Adjustment Date.
 
Initial Closing Date: December 23, 2003.
 
Initial Rate Cap: With respect to any ARM Loan, the maximum increase or decrease in the Mortgage Interest Rate on the initial Interest Rate Adjustment Date.
 
Interest Rate Adjustment Date: With respect to any ARM Loan, the 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.
 
Interest Rate Decrease Maximum: With respect to any ARM Loan, the maximum amount, if any, that the Mortgage Interest Rate can adjust downwards on any Interest Rate Adjustment Date, as determined in accordance with the related Mortgage Note.
 
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Interest Rate Increase Maximum: With respect to any ARM Loan, the maximum amount, if any, that the Mortgage Interest Rate can adjust upwards on any Interest Rate Adjustment Date, as determined in accordance with the related Mortgage Note.
 
Loan-to-Value Ratio: With respect to each Mortgage Loan, the original principal balance of such Mortgage Loan divided by the Appraised Value of the related Mortgaged Property.
 
Loan Pool: A pool of Mortgage Loans sold by one or more Sellers to the Purchaser on any Closing 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).
 
Master Servicer: As defined in Section 6.2.
 
Maturity Date: With respect to each Mortgage Loan, the maturity date of the related Mortgage Note, as specified therein.
 
Maximum Mortgage Interest Rate: With respect to any ARM Loan, the maximum rate of interest that may be charged pursuant to the related Mortgage Note.
 
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 maintained by MERS.
 
MIN: The mortgage identification number issued to each MERS Loan.
 
Minimum Mortgage Interest Rate: With respect to any ARM 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.
 
Mortgage: The mortgage, deed of trust, or other instrument creating a first lien on or first priority ownership interest in real property or, in the case of a Cooperative Loan, the security agreement or other instrument creating a first lien on the related Coop Ownership Interests, in each case, including any riders, addenda, assumption agreements, or modifications relating thereto.
 
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Mortgage Interest Rate: With respect to each Mortgage Loan, the annual rate at which interest accrues on such Mortgage Loan.
 
Mortgage Loan: An individual mortgage loan that is sold pursuant and subject to 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 included in a Loan Pool to be sold pursuant to this Agreement on any Closing Date, the schedule or schedules of Mortgage Loans agreed to by the parties that describes such Mortgage Loans, which schedule shall set forth at least the following information with respect to each Mortgage Loan to the extent applicable: (1) the Mortgage Loan identifying number, (2)  the street address, city, state and zip code of the Mortgaged Property, (3)  the Mortgage Interest Rate as of the applicable Cut-off Date, (4) the Net Rate as of the applicable Cut-off Date, (5) the amount of the Monthly Payment as of the applicable Cut-off Date, (6) with respect to each ARM Loan, (A) the Index, (B) the Gross Margin, (C) the Maximum Mortgage Interest Rate, (D) the Minimum Mortgage Interest Rate, (E) the Initial Rate Cap, (F) the periodic rate cap, (G) the first Interest Rate Adjustment Date immediately following the Closing Date for such Mortgage Loan, and (H) the first Interest Rate Adjustment Date after origination, (7)  the scheduled or stated Maturity Date, (8) the Cut-off Date Principal Balance of the Mortgage Loan, (9) the Loan-to-Value Ratio at origination, (10) the Mortgagor’s first and last name, (11) a code indicating the occupancy status of the Mortgaged Property (i.e., owner-occupied, non-owner, second home), (12) the type of residential dwelling constituting the Mortgaged Property, (13) the original months to maturity, (14) the original date of the Mortgage Loan and the remaining months to maturity from the Cut-off Date based on the original amortization schedule, (15) the date on which the first Monthly Payment was due on the Mortgage Loan, (16) the amount of the Monthly Payment at origination, (17) the last Due Date on which a Monthly Payment was actually applied to the Unpaid Principal Balance, (18) the original principal amount of the Mortgage Loan, (19) a code indicating the purpose of the loan (i.e., purchase financing, rate/term refinancing, cash-out refinancing), (20) the Mortgage Interest Rate at origination, (21) a code indicating whether the Mortgage Loan is an ARM Loan or a fixed rate Mortgage Loan, (22) a Primary Mortgage Insurance Policy insurer code, percent and policy number (if applicable), (23) the Appraised Value of the Mortgaged Property, (24) the sale price of the Mortgaged Property, if applicable, (25) a code indicating if the Mortgage Loan is subject to a prepayment fee, (26) the Servicing Fee Rate, (27) a code indicating the negative amortization percentage, if applicable, (28) if the Due Date is other than the first day of the month, the Due Date, (29) a code indicating the document type (e.g., full, alt, etc.), (30) a credit score or mortgage score, (31) the Mortgagor’s social security number, (32) the Seller, (33) a code indicating if the Mortgage Loan is a MERS Loan, (34) with respect to each MERS Loan, the MIN, (35) the appraisal type, and (36) a code indicating whether such Mortgage Loan is an Escrow Holdback Mortgage Loan. “Mortgage Loan Schedule” is the collective reference to each of the Mortgage Loan Schedules delivered by the Sellers to the Purchaser pursuant to this Agreement.
 
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Mortgage Note: The note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage, including any riders or addenda thereto.
 
Mortgaged Property: The property securing a Mortgage Note pursuant to the related Mortgage or, in the case of a Cooperative Loan the related Coop Ownership Interests.
 
Mortgagor: The obligor(s) on a Mortgage Note.
 
Net Rate: With respect to each Mortgage Loan, the annual rate at which interest thereon shall be remitted to the Purchaser (in each case computed on the basis of a 360-day year consisting of twelve 30-day months), which annual rate shall be equal to the Mortgage Interest Rate less the Servicing Fee Rate.
 
Pass-Through Transfer: The sale or transfer of some or all of the Mortgage Loans by the Purchaser to a trust to be formed as part of a publicly issued or privately placed mortgage backed securities transaction.
 
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.
 
Primary Mortgage Insurance Policy: With respect to each Mortgage Loan, the policy of primary mortgage insurance (including all endorsements thereto) issued with respect to such Mortgage Loan, if any, or any replacement policy.
 
Purchase Price: For each Mortgage Loan purchased hereunder, an amount equal to the Cut-off Date Principal Balance of such Mortgage Loan, multiplied by the Purchase Price Percentage.
 
Purchase Price Percentage: For each Mortgage Loan included in a Loan Pool, the percentage of par set forth in the related Commitment Letter that is used to calculate the Purchase Price of each Mortgage Loan in such Loan Pool, subject to any adjustments specified in the related Commitment Letter.
 
Purchaser: Goldman Sachs Mortgage Company, a New York limited partnership, and all successors in interest pursuant to Sections 6.1 and 7.9 hereof.
 
Qualification Defect: With respect to a Mortgage Loan, (a) a materially defective document in the Collateral File delivered as such by the Seller, (b) the absence of a material document in the Collateral File due to a failure by the Seller to deliver such document as required by Section 2.2, or (c) the breach of any material representation, warranty or covenant with respect to the Mortgage Loan made by the Seller, but, in each case, only if the affected Mortgage Loan ceases to qualify as a “qualified mortgage” for purposes of the REMIC Provisions.
 
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Qualified Substitute Mortgage Loan: A mortgage loan eligible to be substituted by a Breaching Seller for a Deleted Mortgage Loan, which must have the following qualities on the date of substitution, (i) have an outstanding principal balance, after deduction of all scheduled payments due in the month of substitution, not in excess of the outstanding principal balance of the Deleted Mortgage Loan (the amount of any shortfall shall be deposited in the Account by such Breaching Seller out of its own funds without right of reimbursement as provided in Section 3.3(e)), (ii) have a current Mortgage Interest Rate not less than 1% less than, and not more than 1% greater than, the current Mortgage Interest Rate of the Deleted Mortgage Loan, (iii) have a remaining term to maturity not greater than and not more than one year less than that of the Deleted Mortgage Loan, (iv) have a Net Rate not less than 1% less than, and not more than 1% greater than, the Net Rate of the Deleted Mortgage Loan, (v) be of the same type as the Deleted Mortgage Loan (i.e., if the Deleted Mortgage Loan is a fixed rate Mortgage Loan, the substituted loan shall be a fixed rate Mortgage Loan, and if the Deleted Mortgage Loan is an ARM Loan, the substituted loan shall be an ARM Loan which is the same ARM type and with the same Mortgage Interest Rate caps, Index and Gross Margin as the Deleted Mortgage Loan), and (vi) comply with each representation and warranty respecting individual Mortgage Loans set forth in Section 3.1 hereof, provided, that for purposes of applying such representations and warranties to each such Qualified Substitute Mortgage Loan, references in such Sections to the related Closing Date shall be deemed to be references to the date of substitution of such Qualified Substitute Mortgage Loan. If one or more Mortgage Loans are substituted for one or more Deleted Mortgage Loans pursuant to Section 3.3, the amounts described in clause (i) hereof shall be determined on the basis of the aggregate principal balances; the Mortgage Interest Rate, the term to maturity and the Net Rate described in clauses (ii)-(iv) hereof shall be determined on the basis of weighted average Mortgage Interest Rates, original terms to maturity and Net Rates respectively.
 
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 Pass-Through Transfer, 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 Pass-Through Transfer 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 3.3(gg).
 
Seller: As the context requires, any of Washington Mutual Bank, FA, Washington Mutual Bank fsb and/or Washington Mutual Bank and their respective assigns and successors in interest.
 
Seller’s Information: As defined in Section 6.1(d).
 
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Servicer: Washington Mutual Bank, FA, in its capacity as Servicer under the Servicing Agreement, and any permitted successor to or assignee of any servicing rights or obligations under the Servicing Agreement.
 
Servicing Agreement: That certain Servicing Agreement of even date herewith between the Purchaser as owner and the Servicer.
 
Servicing Cut-off Date: As to each Mortgage Loan purchased on a Closing Date, the last day of the Due Period in which such Closing Date occurs.
 
Servicing Fee: With respect to each Mortgage Loan, the amount of the annual fee payable to the Servicer as compensation for servicing and administering such Mortgage Loan. Such fee shall, for a period of one full month, be equal to one-twelfth of the product of (i) the related Servicing Fee Rate, multiplied by (ii) the outstanding Unpaid Principal Balance of such Mortgage Loan.
 
Servicing Fee Rate: With respect to each Mortgage Loan, the annual rate at which the Servicing Fee shall be calculated, which annual rate is set forth in the related Commitment Letter and Term Sheet. In the event that the Index and Gross Margin of an ARM Loan are adjusted pursuant to the terms of the related Mortgage Note.
 
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 6.1(a).
 
Term Sheet: A term sheet with respect to the Mortgage Loans purchased on a Closing Date, in the form attached hereto as Exhibit B.
 
Unpaid Principal Balance: With respect to each Mortgage Loan that is not a Qualified Substitute 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. With respect to each Mortgage Loan that is a Qualified Substitute Mortgage Loan, as of any date of determination, (i) the outstanding principal balance of such Mortgage Loan as of the close of business on the date of substitution, after deduction and application of the principal portion of all payments due on or before such date of substitution whether or not received, minus (ii) the principal portion of all payments made by or on behalf of the Mortgagor after such date of substitution and received by the Purchaser.
 
Whole Loan Transfer: Any sale or transfer of some or all of the Mortgage Loans by the Purchaser to a third party, which sale or transfer is not a Pass-Through Transfer.
 
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ARTICLE 2. 
 
SALE AND CONVEYANCE OF MORTGAGE LOANS;
POSSESSION OF FILES; PAYMENT OF PURCHASE
PRICE; DELIVERY OF MORTGAGE LOAN DOCUMENTS;
RECORDATION OF ASSIGNMENTS OF MORTGAGE
 
Section 2.1.  Sale and Conveyance of Mortgage Loans; Possession of Files
 
(a)  On each Closing Date for any Loan Pool, upon the receipt of the requisite consideration, the applicable Seller or Sellers shall deliver a Term Sheet with respect to the Loan Pool. By such delivery, each Seller shall sell, transfer, assign, set over, and convey to the Purchaser, without recourse, but subject to the representations, warranties, terms and provisions of this Agreement, all the right, title, and interest of the Seller in and to the Mortgage Loans included in such Loan Pool, exclusive of the related servicing rights.
 
(b)  Pursuant to Section 2.2, the applicable Seller or Sellers shall deliver to the Custodian the documents comprising the Collateral File with respect to each related Mortgage Loan included in a Loan Pool to be purchased by the Purchaser. Such documents shall, prior to payment for the related Mortgage Loan pursuant to Section 2.1(c) below, be held by the Custodian as custodian for the applicable Seller or Sellers. The documents comprising each Collateral File that are not required to be delivered to the Custodian pursuant to Section 2.2(a) and the documents comprising each Credit File shall, subject to payment for the related Mortgage Loan pursuant to Section 2.1(c) below, be held in trust by the Servicer for the benefit of the Purchaser as the owner thereof. The Servicer’s possession of such documents so held is at the will of the Purchaser, and such holding and possession is in trust for the Purchaser as the owner thereof and only for the purpose of servicing the Mortgage Loans. Upon payment for the related Mortgage Loan pursuant to Section 2.1(c) below, the beneficial ownership of each Mortgage Note, each Mortgage, and each of the other documents comprising the Collateral File and the Credit File with respect to such Mortgage Loan is and shall be vested in the Purchaser, and the ownership of all records and documents with respect to such Mortgage Loan prepared by or which come into the possession of the applicable Seller or Sellers or any agent or designee thereof shall immediately vest in the Purchaser and shall be delivered to the Custodian (in the case of the Collateral Documents) or the Servicer (in the case of the Credit Files or any other documents) to hold the same in a custodial capacity for Purchaser.
 
(c)  In full consideration for the sale of each of the Mortgage Loans pursuant to Section 2.1(a) hereof, and upon the terms and conditions of this Agreement, on the related Closing Date the Purchaser shall pay to the applicable Seller or Sellers by wire transfer of immediately available funds (i) the applicable Purchase Price for each Mortgage Loan purchased on such Closing Date, plus (ii) the amount of interest (computed, as to each Mortgage Loan, at the Net Rate) that has accrued on the Cut-off Date Principal Balance of such Mortgage Loans from and including the Cut-off Date to but not including the Closing Date.
 
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(d)  As of each Closing Date, the Purchaser shall own and be entitled to receive with respect to each Mortgage Loan purchased on such Closing Date all Monthly Payments and all other recoveries of principal and interest (computed, as to each Mortgage Loan, at the Net Rate) due after the applicable Cut-off Date, subject to the rights of the Servicer under the Servicing Agreement to 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 Closing Date shall be held and remitted by the Servicer in accordance with the terms of the Servicing Agreement.
 
(e)  On or before the Closing Date specified in the related Commitment Letter for any Loan Pool, the applicable Seller or Sellers shall deliver to the Purchaser with the Term Sheet the related Mortgage Loan Schedule, which shall be in hard copy or “read-only” electronic format (as reasonably acceptable to such Seller and the Purchaser).
 
 
Section 2.2.  Delivery of Mortgage Loan Documents Regarding Mortgage Loans; Recordation of Assignments of Mortgage
 
(a)  On or before the date specified in the related Commitment Letter, each Seller shall deliver or cause to be delivered to the Custodian, at such Seller’s expense, with respect to each Mortgage Loan sold by such Seller hereunder, each of the following items or documents (unless otherwise agreed by the applicable Seller and the Purchaser):
 
(i)  With respect to each Mortgage Loan (other than a Cooperative Loan):
 
(A) (1) the original Mortgage Note, endorsed (on the Mortgage Note or an allonge attached thereto) “Pay to the order of _______________________, without recourse,” (or as otherwise specified in the related Commitment Letter), and signed by facsimile signature in the name of such Seller by an authorized officer, with all intervening endorsements showing a complete, valid and proper chain of title from the originator of such Mortgage Loan to such Seller;
 
(2) or a lost note affidavit, providing indemnification to the holder thereof for any losses incurred due to the fact that the original Mortgage Note is missing, together with a copy of the Mortgage Note; provided, however, that unless otherwise specified in the related Commitment Letter or Term Sheet, the aggregate Unpaid Principal Balance of Mortgage Loans in the related Loan Pool as to which lost note affidavits shall be accepted by the Purchaser shall not exceed one percent (1%) of the aggregate Unpaid Principal Balance of all Mortgage Loans in such Loan Pool.
 
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(B) the original Mortgage, with evidence of recording thereon, (and, in the case of a MOM Loan, with evidence of the MIN); provided that (i) if the original Mortgage has been delivered for recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been returned to such Seller by such recording office, such Seller shall, no later than 270 days following the related Closing Date, deliver to the Custodian the original of such Mortgage, with evidence of recording thereon, and (ii) if such Mortgage has been lost or if such public recording office retains the original recorded Mortgage, such Seller may deliver or cause to be delivered to the Custodian a photocopy of such Mortgage certified by such public recording office to be a true and complete copy of the original recorded Mortgage;
 
(C) unless such Mortgage Loan is a MERS Loan, the original Assignment of Mortgage, from such Seller signed by original signature of an authorized officer, in blank (or as otherwise specified in the related Commitment Letter), which assignment shall be in form and substance acceptable for recording (except for the insertion of the name of the assignee and the recording information);
 
(D) unless such Mortgage Loan is a MOM Loan, originals of all intervening Assignments of Mortgage, with evidence of recording thereon, showing a complete chain of title from the originator to such Seller (or in the case of a MERS Loan other than a MOM Loan, showing a complete chain of title from the originator to MERS); provided that (i) if any original intervening Assignment of Mortgage has been delivered for recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been returned to such Seller by such recording office, such Seller shall, no later than 270 days following the related Closing Date, deliver to the Custodian the original of such intervening Assignment of Mortgage, with evidence of recording thereon, and (ii) if such intervening Assignment of Mortgage has been lost or if such public recording office retains the original recorded intervening Assignment of Mortgage, such Seller may deliver or cause to be delivered to the Custodian a photocopy of such intervening Assignment of Mortgage certified by such public recording office to be a true and complete copy of the original recorded intervening Assignment of Mortgage; and
 
(E) originals of all assumption and modification agreements, if any, unless such originals are unavailable (in which event such Seller shall deliver to the Custodian a photocopy of each such original, certified by the Seller to be a true and complete copy of the original).
 
(ii)  With respect to each Cooperative Loan, as applicable and as required by the applicable laws of the state in which the related Cooperative Apartment is located, copies of: (A) the proprietary lease, (B) the security agreement, (C) the assignment of the proprietary lease, with all intervening assignments showing a complete chain of title and an assignment thereof by such Seller, (D) the original stock certificate evidencing the ownership of the Cooperative Apartment endorsed or accompanied by a stock power relating to such stock certificate executed in blank, (E) a recognition agreement in form approved by Seller’s underwriting guidelines, in substantially the same form as the standard “AZTECH” form, (F) copies of the financing statement filed by the applicable Seller as secured party and, if applicable, a filed UCC-3 assignment of the subject security interest showing a complete chain of title, together with an executed UCC-3 Assignment of such security interest by the Seller in a form sufficient for filing, and (G) such other documents as are necessary for the perfection of a lien against the related Coop Ownership Interests under applicable law.
 
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(b)  In connection with the transfer of any MERS Loan pursuant to Section 2.1 hereof, the Servicer shall cause the MERS® System to indicate that such MERS Loan has been assigned to the Purchaser. The Purchaser may, in its discretion, direct the Servicer to deliver for recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is located, and cause to be duly recorded, any or all of the original Assignments of Mortgage referred to in Section 2.2(a)(i)(C). The Seller shall pay all recording fees relating to the recordation of the Assignments of Mortgage from its own funds. If any such Assignment of Mortgage is returned unrecorded to a Seller because of any defect therein, such Seller shall cause such defect to be cured and such Assignment of Mortgage to be recorded in accordance with this Section 2.2 within 30 days after the date on which the rejected document was received by such Seller from the public recording office.
 
(c)  Whenever a certified copy of a document certified by a Seller is required to be delivered to the Purchaser pursuant to this Section 2.2, the following form of certification is permitted: “Certified true, correct and complete copy of the original. [Name of Seller], By _________________, Its _________________.”
 
(d)  Promptly following receipt thereof, but in no event later than 270 days after the related Closing Date, such Seller shall deliver to the Custodian the following documents with respect to each Mortgage Loan included in the Loan Pool purchased on such Closing Date to the extent not previously delivered to the Custodian: (i) the original Mortgage, with evidence of recording thereon, (ii) unless such Mortgage Loan is a MOM Loan, all original intervening Assignments of Mortgage, with evidence of recording thereon and (iii) if a lost note affidavit was previously delivered without a copy of the related Mortgage Note, a copy of such Mortgage Note. 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 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. In the event that a 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 such Seller at the Repurchase Price and in the manner specified in Section 3.3(b). Notwithstanding the foregoing, a 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 above any of the documents described in this Section 2.2(d) and provides evidence to the Custodian that such failure is due solely to the failure of the applicable recorder’s office to return a Collateral 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.
 
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(e)  If requested by the Purchaser, the Servicer shall, at Purchaser’s sole expense, create a xeroxed copy or an imaged copy of the documents contained in the Credit File of any Mortgage Loan and deliver, or cause to be delivered, each such xeroxed copy or, through an electronic medium, each such imaged copy to the Custodian or the Purchaser.
 
Section 2.3.  Purchaser’s Due Diligence Review
 
With respect to each Loan Pool, the Purchaser shall be entitled to conduct a due diligence review in order to ensure that the Mortgage Loans included in such Loan Pool meet the requirements set forth in the related Commitment Letter and this Agreement. Such due diligence review shall be conducted in accordance with the timetable and any additional terms and conditions set forth in the related Commitment Letter. The Purchaser’s due diligence review shall not result in a waiver of or impair or diminish the rights of the Purchaser under this Agreement with respect to a breach of representations or warranties of the applicable Seller or Sellers.
 
ARTICLE 3. 
 
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE SELLERS CONCERNING MORTGAGE LOANS;
REPURCHASE OF MORTGAGE LOANS
 
Section 3.1.  Individual Mortgage Loans
 
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 Closing Date:
 
(a)  The information with respect to such Mortgage Loan set forth on the related Mortgage Loan Schedule is true and correct in all material respects. If the related information on the Mortgage Loan Schedule is left blank, then there is no data associated with that information related to such Mortgage Loan.
 
(b)  Immediately prior to the transfer of the Mortgage Loan to the Purchaser pursuant to Section 2.1, neither the related Mortgage nor the Mortgage Note were assigned or pledged to any Person and the Seller had good and marketable title thereto. Immediately prior to the transfer of the Mortgage Loan to the Purchaser pursuant to Section 2.1, the Seller was the sole owner and holder of such Mortgage Loan, free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges, or security interests of any nature, and had full right and authority to sell and assign such Mortgage Loan pursuant to this Agreement. Upon the transfer of the Mortgage Loan to the Purchaser pursuant to Section 2.1, the Seller shall have taken all actions necessary on its part to be taken so that the Purchaser will have good indefeasible title to, and will be sole owner of, the related Mortgage and the Mortgage Note, free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges, or security interests of any nature.
 
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(c)  With respect to each Mortgage Loan other than a Cooperative Loan, (i) the Mortgage is a valid, subsisting and enforceable first lien on the Mortgaged Property, including all buildings, fixtures, installations and improvements to the Mortgaged Property, and the Mortgaged Property is free and clear of all encumbrances and liens having parity with or priority over the first lien of the Mortgage except for (A) the lien of current real property taxes and assessments not yet due and payable, (B) covenants, conditions and restrictions, rights of way, easements, mineral right reservations and other matters of public record as of the date of recording of such Mortgage, such exceptions generally being acceptable under prudent mortgage lending standards and specifically reflected in the appraisal made in connection with the origination of such Mortgage Loan or specifically referred to in the mortgagee’s policy of title insurance and (C) other matters to which like properties are commonly subject that do not materially interfere with the value (as determined by the Appraised Value), use, enjoyment or marketability of the Mortgaged Property and (ii) there are no security agreements, pledged accounts, chattel mortgages, or equivalent documents related to the Mortgage.
 
(d)  The terms of the Mortgage and the Mortgage Note have not been impaired, waived, altered, or modified in any respect, except by a written instrument that has been recorded, if necessary, to protect the interest of the Purchaser and that is a part of the Collateral File. The substance of any such alteration or modification is reflected on the related Mortgage Loan Schedule.
 
(e)  No mortgagor has been released, in whole or in part, except in connection with an assumption agreement or modification agreement that is part of the Collateral File and that has been approved by the private mortgage guaranty insurer, if any.
 
(f)  There is no default, breach, violation, or event of acceleration existing under the Mortgage or the Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute such a default, breach, violation, or event of acceleration, and neither the Seller, nor to the best of the Seller’s knowledge, any seller or servicer, has waived any such default, breach, violation, or event of acceleration. All taxes, governmental assessments (including assessments payable in future installments), insurance premiums, leasehold payments, or ground rents which previously became due and owing in respect of or affecting the related Mortgaged Property have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item that remains unpaid and that has been assessed but is not yet due and payable. The Seller has not advanced funds, or induced, solicited, or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage or the Mortgage Note. No foreclosure action has been commenced with respect to such Mortgage Loan.
 
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(g)  The Mortgaged Property is free of material damage or waste and in good repair. 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 and no notice of any such pending or threatened proceeding has been received so as to adversely impair the value or marketability of the Mortgaged Property.
 
(h)  There are no mechanics’ or similar liens or claims which have been filed for work, labor, or material (and no rights are outstanding that under law could give rise to such liens) affecting the related Mortgaged Property that are, or may be, liens prior or equal to, or coordinate with, the lien of the related Mortgage and that are not insured against by the related mortgagee’s policy of title insurance.
 
(i)  All of the improvements which were included for the purpose of determining the Appraised Value of the Mortgaged Property were completed at the time that such Mortgage Loan was originated and lie wholly within the boundaries and building restriction lines of such Mortgaged Property; provided, that if such Mortgage Loan is an Escrow Holdback Mortgage Loan, the improvements described in the applicable agreement governing escrow arrangement may not have been made at the time such Mortgage Loan was originated. No improvements on adjoining properties encroach upon the Mortgaged Property except those that are insured against by the title insurance policy referred to in Section 3.1(q). No improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation, subdivision law or ordinance.
 
(j)  The Seller is (or, if the Seller did not originate the Mortgage Loan, the originator, during the period in which it held and disposed of such Mortgage Loan, was): (i) in compliance with any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is located and (ii)(A) organized under the laws of such state, (B) qualified to do business in such state, (C) a federal savings and loan association or national bank having principal offices in such state, (D) not doing business in such state, or (E) not required to qualify to do business in such state.
 
(k)  No Monthly Payment with respect to such Mortgage Loan is a Delinquent Monthly Payment. All payments required to be made under the related Mortgage and Mortgage Note through and including the related Cut-off Date, have been made. Unless otherwise stated in the related Commitment Letter, not more than one payment required to be made under the related Mortgage and Mortgage Note has remained unpaid through its next Due Date (excluding any applicable grace period) during the twelve months immediately preceding the related Cut-off Date.
 
(l)  There are no custodial agreements in effect adversely affecting the right or ability of the Seller to make the deliveries specified in Section 2.2(a) or Section 2.2(d).
 
(m)  The Mortgage Note and the Mortgage are genuine, and each is the legal, valid and binding obligation of the maker thereof and each party assuming liability therefor, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights generally and except that the equitable remedy of specific performance and other equitable remedies are subject to the discretion of the courts. All parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage and convey the estate therein purported to be conveyed, and the Mortgage Note and the Mortgage have been duly and properly executed by such parties or pursuant to a valid power-of-attorney that has been recorded with the Mortgage.
 
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(n)  The Mortgage has been duly assigned and the Mortgage Note has been duly endorsed as provided in Section 2.2(a). Any Assignment of Mortgage delivered to the Purchaser pursuant to Section 2.2(a)(i)(C) is in recordable form except for the insertion of the name of the assignee and recording information and is acceptable for recording under the laws of the applicable jurisdiction.
 
(o)  Any and all requirements of any federal, state, or local law including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity, fair housing, predatory and abusive lending or disclosure laws applicable to such Mortgage Loan, including applicable regulations, have been complied with and the Seller shall maintain (or cause the Servicer to maintain) in its possession, available for the Purchaser’s inspection and shall deliver (or cause to be delivered) to the Purchase promptly upon demand evidence of compliance with all such requirements to the extent such evidence constitutes a document required to be part of the Collateral File. The consummation of the transactions contemplated by this Agreement shall not cause the violation of any such laws.
 
(p)  The proceeds of such Mortgage Loan have been fully disbursed; provided that, if such Mortgage Loan is an Escrow Holdback Mortgage Loan, all of the proceeds of such Mortgage Loan have been or will be disbursed (i) upon the completion of the improvements described in the applicable agreement governing the escrow arrangement, and (ii) in a manner acceptable to the Seller. There is no requirement for, and the Seller shall not make any, future advances under the terms of the Mortgage Loan. Any future advances made prior to the applicable Cut-off Date have been consolidated with the principal balance secured by the Mortgage, and such principal balance, as consolidated, bears a single interest rate and single repayment term reflected on the related Mortgage Loan Schedule. Unless such Mortgage Loan is subject to negative amortization, the Unpaid Principal Balance as of the applicable Cut-off Date does not exceed the original principal amount of such Mortgage Loan. Any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with, and certificates of completion with respect thereto are contained in the related Credit File; provided that, if such Mortgage Loan is an Escrow Holdback Mortgage Loan, the improvements described in the applicable agreement governing the escrow arrangement may not have been completed and escrow funds related to such improvements may not have been disbursed pursuant to the terms of such agreement. All costs, fees and expenses incurred in making, or closing or recording such Mortgage Loan have been paid or shall be paid in the ordinary course of business.
 
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(q)  Such Mortgage Loan (unless it is a Cooperative Loan) is covered by an ALTA mortgage title insurance policy in a form acceptable to Fannie Mae or Freddie Mac, with, in the case of an ARM Loan, an adjustable rate mortgage endorsement, substantially in the form of ALTA Form 6.1 or 6.2, or such other generally used and acceptable form of policy and applicable endorsements acceptable under the Seller’s underwriting guidelines. Each such policy affirmatively insures ingress and egress and insures against encroachments by or upon the Mortgaged Property. Each such policy was issued on the date of the origination of such Mortgage Loan by a title insurer acceptable under Seller’s underwriting guidelines and qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the Seller, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of such Mortgage Loan. Each such policy has been duly and validly endorsed to the Purchaser or the assignment to the Purchaser of the Seller’s interest does not require the consent of or notification to the insurer, and such mortgage title insurance policy is in full force and effect. Where required by law or regulation, the Mortgagor has been given the opportunity to choose the carrier of the required mortgage title insurance. No claims have been made under such lender’s title insurance policy, and no prior holder of the related Mortgage, including the Seller, has taken any action that would impair the enforceability of such policy.
 
(r)  All buildings and other improvements upon the Mortgaged Property are insured against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Mortgaged Property is located, pursuant to insurance policies conforming to the requirements of Section 2.10 of the Servicing Agreement and issued by an insurer acceptable under Seller’s underwriting guidelines. If the Mortgaged Property is a condominium unit, it is included under the coverage afforded by a blanket policy for the project; the insurance policy contains a standard clause naming the originator of such Mortgage Loan, its successor and assigns, as insured mortgagee. If the Mortgaged Property is in an area that, at the time of origination of the related Mortgage Loan, was identified on a flood hazard boundary map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards and such flood insurance is available, a flood insurance policy is in effect meeting the requirements of the current guidelines of the Federal Insurance Administration with an insurance carrier acceptable to Seller. Each individual insurance policy has been validly issued and is in full force and effect. The Seller has caused to be performed all acts required to preserve the rights and interests of the Purchaser in all insurance policies required by this Agreement, including, without limitation, notification of insurers, and assignment of policies or interests therein. Each individual insurance policy contains a standard mortgagee clause naming the Seller, and its successors and assigns, as mortgagee and loss payee. All premiums due thereon have been paid. The Mortgage obligates the Mortgagor to maintain all such insurance at the Mortgagor’s cost and expense, and upon the Mortgagor’s failure to do so, authorizes the servicer or the owner of the Mortgage to obtain and maintain such insurance at the Mortgagor’s cost and expense and to seek reimbursement therefor from the Mortgagor. No claims have been made under such policies since origination of the Mortgage Loan, and the Seller has taken no action that would impair the coverage of any such insurance policy, the benefits of any endorsement or the validity, binding effect and enforceability of the foregoing.
 
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(s)  There is no valid offset, defense, counterclaim or right of rescission as to the related Mortgage Note or Mortgage, including the obligation of the Mortgagor to pay the unpaid principal of 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 the Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, recoupment, counterclaim or defense, including, without limitation, the defense of usury, and no such right of rescission, set-off, recoupment, counterclaim or defense has been asserted with respect thereto. Such Mortgage Loan is not subject to any pending bankruptcy, insolvency, reorganization or moratorium. If such Mortgage Loan is an ARM Loan, all the applicable terms of the Mortgage Note pertaining to adjustments of the Mortgage Interest Rate and the Monthly Payments and payment adjustments in connection therewith are enforceable and shall not affect the priority of the Mortgage lien. If such Mortgage Loan is an ARM Loan, the related Mortgage Note has been timely and appropriately adjusted, if such adjustment is required, and the respective Mortgagor timely and appropriately advised. All such adjustments have been made in compliance with applicable law and in accordance with the terms of the Mortgage Loan documents.
 
(t)  Such Mortgage Loan was originated by (i) the Seller, (ii) a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or state authority, or (iii) a mortgagee approved by the Secretary of HUD pursuant to Section 203 or 211 of the National Housing Act.
 
(u)  Principal payments on such Mortgage Loan commenced or are required to commence no more than two months after funds were disbursed in connection with such Mortgage Loan. Unless such Mortgage Loan is subject to negative amortization as indicated on the related Mortgage Loan Schedule, the Mortgage Note requires a Monthly Payment which is sufficient to fully amortize the original principal balance over the remaining term thereof and to pay interest at the Mortgage Interest Rate.
 
(v)  Such Mortgage Loan is a residential mortgage loan having an original term to maturity as set forth on the related Mortgage Loan Schedule, and if no such term is specified in the related Mortgage Loan Schedule, the term to maturity does not exceed forty years, with interest payable in arrears on the first day of each month, or such other day of the month as may be noted on the related Mortgage Loan Schedule. If such Mortgage Loan is an ARM Loan, the Mortgage Interest Rate is subject to adjustment periodically on each Interest Rate Adjustment Date to a new Mortgage Interest Rate (rounded as provided in the related Mortgage Note) equal to the then current Index plus the Gross Margin as specified on the related Mortgage Note, subject to the Initial Rate Cap (if applicable), Maximum Mortgage Interest Rate, the Minimum Mortgage Interest Rate, the Interest Rate Increase Maximum and the Interest Rate Decrease Maximum, in each case if and to the extent specified in the related Mortgage Loan Schedule.
 
(w)  The Mortgage Note is not and has not been secured by any collateral, pledged account or other security, except the lien of the Mortgage.
 
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(x)  The Mortgage contains customary and enforceable provisions which render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including (i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale and (ii) otherwise by judicial foreclosure. There is no homestead, dower, curtesy or other exemption or right available to the Mortgagor or any other Person which would interfere with the right to sell the Mortgaged Property at a trustee’s sale or the right to foreclose the Mortgage. The Mortgage or Mortgage Note contains a provision that is, to the extent not prohibited by federal or state law, enforceable and that provides for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the mortgagee thereunder. The Mortgagor has not notified the Seller and the Seller has no knowledge of any relief requested or allowed to the Mortgagor under the Soldiers and Sailors Civil Relief Act of 1940, as amended, or any similar state law.
 
(y)  If the Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in such Mortgage, and no fees or expenses are or shall become payable by the Purchaser to the trustee under the deed of trust, except in connection with a trustee’s sale after default by the Mortgagor.
 
(z)  The Mortgaged Property consists of (x) a single parcel of real property separately assessed for tax purposes, upon which is erected a detached or an attached one-to-four-family residence, an individual condominium or an individual unit in a planned unit development or (y) in the case of a Cooperative Loan, the related Coop Ownership Interests, in each case that is in compliance with Seller’s applicable requirements. Such Mortgaged Property is not (i) a property held in trust (other than a revocable inter vivos trust that is in compliance with Fannie Mae’s requirements applicable to Seller, or, if the Mortgaged Property is located in Illinois, an Illinois land trust), (ii) a mobile home or manufactured home, or (iii) a recreational vehicle. Such Mortgage Loan is not considered an agricultural loan. The related Mortgaged Property does not consist of a log home, earthen home, underground home or a home which is situated on more than twenty acres of property. At the time of origination of such Mortgage Loan, no portion of the related Mortgaged Property was used for commercial purposes.
 
(aa)  The Loan-to-Value Ratio of such Mortgage Loan at the time of origination was not greater than the Loan-to-Value Ratio set forth in the related Mortgage Loan Schedule, and if no such percentage is specified, not greater than 95%. If such Mortgage Loan had at the time of origination a Loan-to-Value Ratio in excess of 80%, unless otherwise specified in the related Commitment Letter, such Mortgage Loan is subject to a Primary Mortgage Insurance Policy. All provisions of such Primary Mortgage Insurance Policy have been and are being complied with, such policy is in full force and effect, and all premiums due thereunder have been paid. No Mortgage Loan requires payment of such premiums, in whole or in part, by the Purchaser. No action has been taken and no event has occurred that has, or shall result in the exclusion from, denial of, or defense to coverage. Any Mortgage Loan subject to a Primary Mortgage Insurance Policy obligates the Mortgagor to maintain the Primary Mortgage Insurance Policy and to pay all related premiums and charges. The Mortgage Interest Rate for the Mortgage Loan as set forth on the Mortgage Loan Schedule is net of any such insurance premium. None of the Mortgage Loans are covered by a “lender-paid” Primary Mortgage Insurance Policy.
 
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(bb)  Such Mortgage Loan was underwritten generally in accordance with the underwriting guidelines of the Seller in effect at the time such Mortgage Loan was originated.
 
(cc)  There exist no deficiencies in excess of $1000 with respect to escrow deposits and payments, if such are required, for which customary arrangements for repayment thereof have not been made or which the Seller expects not to be cured, and no escrow deposits or payments of other charges or payments due the Seller have been capitalized under the Mortgage or the Mortgage Note.
 
(dd)  Such Mortgage Loan does not have a shared appreciation feature or other contingent interest feature, and such Mortgage Loan does not involve buydowns, balloons, timeshares or graduated payments. If such Mortgage Loan is an ARM Loan, it is not convertible to a Mortgage Loan with a fixed Mortgage Interest Rate, unless otherwise indicated in the related Mortgage Loan Schedule.
 
(ee)  The origination, servicing and collection practices used with respect to such Mortgage Loan (including without limitation, the establishment, maintenance and servicing of the Escrow Accounts, if any), have been, in all material respects, in accordance with applicable laws and regulations, the terms of the Mortgage Loan documents and Acceptable Servicing Procedures. All escrow payments have been collected in all material respects in compliance with applicable law, Acceptable Servicing Procedures and the provisions of the Mortgage Loan documents. If such Mortgage Loan is the subject of an escrow, escrow of funds is not prohibited by applicable law and has been established in an amount sufficient to pay for every escrowed item that remains unpaid and has been assessed but is not yet due and payable. Any Escrow Account interest required to be paid pursuant to applicable law has been properly paid and credited.
 
(ff)  The appraisal report with respect to the Mortgaged Property contained in the Credit File was made in accordance with the relevant provisions of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as in effect on the date such Mortgage Loan was originated and was signed by a qualified appraiser, who met the requirements of the Seller’s appraisal policies and procedures, who had no interest, direct or indirect, in the Mortgaged Property or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of such application and who otherwise meets the requirements of Seller.
 
(gg)  No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994, as amended, or Section 226.32 of Regulation Z, or is a "high-cost" loan or a "predatory" loan as defined under any federal, state or local law or regulation applicable to the originator of such Mortgage Loan or is a loan which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law.
 
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(hh)  If such Mortgage Loan is an ARM Loan, it does not have an interest rate step-down feature or similar feature that would result in a downwards adjustment to the Mortgage Interest Rate, the Gross Margin or the Index as a result of the related Mortgagor’s payment method or payment history (e.g., no downwards adjustment in return for allowing the automatic withdrawal of funds from the related Mortgagor’s bank account to make the Monthly Payments on such Mortgage Loan, or for making payments when due on such Mortgage Loan). For avoidance of doubt, standard ARM Loan features that are subject to caps and floors do not constitute the features described in the immediately preceding sentence.
 
(ii)  No misrepresentation or fraud has taken place on the part of the Seller, the Mortgagor or any third party originator of such Mortgage Loan, or to the Seller’s knowledge, any other Person, including without limitation, any appraiser, any builder or developer, or any other party involved in the origination of the Mortgage Loan or in the application of any insurance in relation to such Mortgage Loan.
 
(jj)  At the time of origination of such Mortgage Loan, the related Mortgaged Property was lawfully occupied under applicable law and all inspections, licenses and certificates required to be made or issued with respect to all occupied portions of the Mortgaged Property (and, with respect to the use and occupancy of the same, including but not limited to certificates of occupancy) were made or obtained from the appropriate authorities.
 
(kk)  The Seller has no knowledge of any circumstances or condition existing as of the related Closing Date with respect to the Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit standing that can reasonably be expected to cause the Mortgage Loan to be an unacceptable investment as of such Closing Date.
 
(ll)  To the best of the Seller’s knowledge, the Mortgaged Property is in material compliance with all applicable environmental laws pertaining to environmental hazards including, without limitation, asbestos, and neither the Seller nor, to the Seller’s knowledge, the related Mortgagor, has received any notice of any violation or potential violation of such law.
 
(mm)  Such Mortgage Loan was selected from among the outstanding mortgage loans of the same type in the Seller’s portfolio on the related Closing Date and such selection was not made in a manner so as to affect adversely the interests of the Purchaser.
 
(nn)  Interest on each Mortgage Loan is calculated on the basis of a 360-day year consisting of twelve 30-day months.
 
(oo)  If such Mortgage Loan is a Cooperative Loan, the security instruments create a valid, enforceable and subsisting first priority security interest in the related cooperative shares securing the related cooperative note, subject only to (x) the lien of the related cooperative for unpaid assessments representing the Mortgagor’s pro rata share of payments for a blanket mortgage, if any, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject and (y) other matters to which like collateral is commonly subject and which do not materially interfere with the benefits of the security intended to be provided; provided, however, that the related proprietary lease for the Cooperative Apartment may be subordinated or otherwise subject to the lien of a mortgage on the cooperative building.
 
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(pp)  If such Mortgage Loan is a Cooperative Loan, a search for filings of financing statements has been made by a party competent to make the same, which party is acceptable to Seller in accordance with its underwriting guidelines and is qualified to do business in the jurisdiction where the cooperative unit is located; and such search did not disclose any lien or security interest that would materially and adversely affect the Cooperative Loan.
 
(qq)  If such Mortgage Loan is a Cooperative Loan, the cooperative corporation that owns title to the related Cooperative Apartment is a “cooperative housing corporation” within the meaning of Section 216 of the Code, and is in material compliance with applicable laws that, if not complied with, could have a material adverse effect on the Mortgaged Property.
 
(rr)  If such Mortgage Loan is a Cooperative Loan: (i) the term of the related proprietary lease or occupancy agreement is longer than the term of the Cooperative Loan, (ii) there is no provision in such proprietary lease or occupancy agreement which requires the Mortgagor to offer for sale the cooperative shares owned by such Mortgagor first to the Cooperative and (iii) there is no prohibition against pledging the shares of the cooperative corporation or assigning the cooperative lease.
 
(ss)  The Mortgage has not been satisfied, canceled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission.
 
(tt)  Each document or instrument in the related Collateral File is in a form acceptable to Fannie Mae or Freddie Mac in its transactions with the Seller or is in a form generally acceptable to prudent mortgage lenders that regularly originate or purchase mortgage loans comparable to the Mortgage Loans for sale to prudent investors in the secondary market that invest in mortgage loans such as the Mortgage Loans.
 
(uu)  As a condition to origination of such Mortgage Loan, the Mortgagor was not required to purchase single-premium credit insurance policies.
 
(vv)  The Seller has furnished (or caused to be furnished) information regarding its borrower credit files to Equifax, Experian and Trans Union Credit Information Company (three of the credit repositories) in compliance with the provisions of the Fair Credit Reporting Act and its implementing regulations applicable to the Seller.
 
(ww)  No Mortgage Loan originated on or after October 1, 2002 will impose a prepayment premium for a term in excess of three years after its origination. No Mortgage Loan originated before October 1, 2002 will impose a prepayment premium for a term in excess of five years after its origination.
 
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Section 3.2.  Seller Representations
 
Each of the Sellers hereby, severally and not jointly, represents and warrants to the Purchaser as to such Seller as of the Initial Closing Date and each Closing Date on which such Seller sells Mortgage Loans hereunder, and with respect to the Mortgage Loans sold by such Seller, as of the related Closing Date:
 
(a)  If the Seller is Washington Mutual Bank, FA, the Seller is a federally chartered savings association, 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. If the Seller is Washington Mutual Bank, the Seller is a Washington state chartered stock savings bank, duly organized, validly existing and in good standing under the laws of the State of Washington.
 
(b)  The Seller has the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into, execute and deliver this Agreement, the Term Sheet and all documents and instruments executed and delivered pursuant hereto and to perform its obligations in accordance therewith. The execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated hereby, including, without limitation, the repurchase obligations hereinafter contained, have been duly and validly authorized. This Agreement, the Term Sheet and all other documents and instruments contemplated hereby, in each case assuming due authorization, execution and delivery by the Purchaser, evidence the valid, binding and enforceable obligations of the Seller, subject as to enforcement, (i) to bankruptcy, insolvency, receivership, conservatorship, reorganization, arrangement, moratorium, and other laws of general applicability relating to or affecting creditor’s rights and (ii) to general principles of equity, whether such enforcement is sought in a proceeding in equity or at law. All requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its terms.
 
(c)  No consent, approval, authorization, or order of any court or governmental agency or body relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or shall, prior to the Effective Date, be obtained, except for any recordations of Assignments of the Mortgages to or for the benefit of the Purchaser pursuant to this Agreement.
 
(d)  The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to or for the benefit of the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and shall not (i) conflict with any term or provision of the charter or by-laws of the Seller, (ii) result in the breach of any term or provision of, or conflict with 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 or its property is subject, or (iii) result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
 
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(e)  There is no action, suit, proceeding or investigation pending or, to the best of the Seller’s knowledge, threatened against the Seller which, either in any one instance or in the aggregate, is likely (in the Seller’s reasonable judgment) to draw into question the validity of this Agreement or the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
 
(f)  The Seller is a HUD approved mortgagee pursuant to Section 203 of the National Housing Act. No event has occurred, including but not limited to, a change in insurance coverage, which would make the Seller unable to comply with eligibility requirements of HUD.
 
(g)  There has been no material adverse change in the business, operation, financial conditions or assets of the Seller since the date of the Seller’s most recent financial statements that would affect the Seller’s ability to perform its obligations under this Agreement.
 
Section 3.3.  Repurchase and Substitution
 
(a)  It is understood and agreed that the representations and warranties set forth in Sections 3.1 and 3.2 shall survive the sale of Mortgage Loans by each Seller to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Collateral File or Credit File.
 
(b)  Upon discovery by a Seller (the “Breaching Seller”) or the Purchaser of a Qualification Defect with respect to a Mortgage Loan sold by the Breaching Seller or a breach of any of the representations and warranties set forth in Sections 3.1 or 3.2 made by the Breaching Seller, in each case, that materially and adversely affects the value of any Mortgage Loan or the interest of the Purchaser in any Mortgage Loan sold by the Breaching Seller hereunder (or, in the case of the representations and warranties set forth in Section 3.2, the value of the Mortgage Loans or the interest of the Purchaser in the Mortgage Loans sold by the Breaching Seller hereunder), the party discovering such breach shall give prompt written notice to the other. The Breaching Seller shall either (A) cure in all material respects any such breach or defect within 90 days (75 days with respect to a Qualification Defect) of the earlier of either discovery by or notice to the Breaching Seller of such breach or defect, or (B) in the case of a breach of a representation and warranty set forth in Section 3.1 or a Qualification Defect, repurchase the affected Mortgage Loan(s), and, in the case of a breach of a representation and warranty set forth in Section 3.2, repurchase either (1) all of the Mortgage Loans or (2) such of the Mortgage Loans selected by the Purchaser so that, after such repurchase, such breach or defect is cured in all material respects. Any such repurchase shall be at a price equal to the applicable Repurchase Price, shall occur on the next Monthly Remittance Date and shall be accomplished by deposit in the Account of the amount of the Repurchase Price pursuant to Section 2.4 of the Servicing Agreement. Notwithstanding the foregoing, if the Breaching Seller discovers or receives notice of any such breach or defect, and if the affected Mortgage Loan has not been subject to a Pass-Through Transfer, the Breaching Seller may remove any such Mortgage Loan (a “Deleted Mortgage Loan”), rather than repurchase any such Mortgage Loan as provided above, and substitute in its place a Qualified Substitute Mortgage Loan(s). If the Breaching Seller has no Qualified Substitute Mortgage Loan(s) or if the Breaching Seller discovered or received notice of such breach or defect no earlier than one year after the related Closing Date, then the Breaching Seller shall repurchase the Mortgage Loan or Mortgage Loans, as the case may be, in the manner provided in this Section 3.3(b).
 
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(c)  For each of the Qualified Substitute Mortgage Loans substituted for a Deleted Mortgage Loan, the Breaching Seller shall deliver to the Custodian the documents specified in Section 2.2(a), with the Mortgage Note endorsed as required by Section 2.2(a) and, where applicable, original documents having evidence of recording thereon. The Breaching Seller shall also take such actions with respect to the documents pertaining to each such Qualified Substitute Mortgage Loan as are required to be taken pursuant to Section 2.2(d) with respect to the Mortgage Loans originally subject to this Agreement. For purposes of applying the requirements of Section 2.2(d) to any Qualified Substitute Mortgage Loan, references in such Section to the related Closing Date shall be deemed to be references to the applicable date of substitution of such Qualified Substitute Mortgage Loan. The Breaching Seller shall deposit in the Account the Monthly Payment due on each Qualified Substitute Mortgage Loan in the month following the date of such substitution (with the interest portion thereof adjusted to the applicable Net Rate), and the Monthly Payment due with respect to such Qualified Substitute Mortgage Loan in the month of substitution shall be retained by the Breaching Seller. For the month of substitution, distributions to the Purchaser shall include the Monthly Payment due on such Deleted Mortgage Loan in the month of substitution, and the Breaching Seller shall thereafter be entitled to retain all amounts subsequently received by the Breaching Seller in respect of such Deleted Mortgage Loan. The Breaching Seller shall amend the related Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan(s) and shall give written notice to the Purchaser that such substitution has taken place, which notice shall have attached thereto a copy of such amended Mortgage Loan Schedule in hard copy or “read-only” electronic format (as reasonably acceptable to such Breaching Seller and the Purchaser). Upon such substitution, each such Qualified Substitute Mortgage Loan shall be subject to the terms of this Agreement in all respects, and the Breaching Seller shall make and shall be deemed to have made, with respect to such Qualified Substitute Mortgage Loan(s), as of the date of substitution, the representations and warranties set forth in Sections 3.1 and 3.2 (and, for purposes of applying such representations and warranties to each such Qualified Substitute Mortgage Loan, references in such Sections to the related Closing Date shall be deemed to be references to such date of substitution of such Qualified Substitute Mortgage Loan).
 
(d)  The Purchaser shall immediately take all steps necessary to effect the reconveyance of any repurchased Mortgage Loan or Deleted Mortgage Loan, including all documentation with respect thereto, to the Breaching Seller. The Breaching Seller shall pay all costs and expenses incurred in connection with the repurchase of any Mortgage Loan and the substitution for any Deleted Mortgage Loan. If, in accordance with Section 3.3(b), a Breaching Seller repurchases any MERS Loan or substitutes a Qualified Substitute Mortgage Loan for any MERS Loan, the Servicer shall be authorized to (i) cause the MERS® System to reflect such repurchase or substitution, as the case may be, or (ii) cause MERS to remove the repurchased or replaced Mortgage Loan from registration on the MERS® System and execute and deliver an Assignment of Mortgage to reflect the transfer of such Mortgage Loan to the Breaching Seller or its designee. The Breaching Seller shall bear any and all fees of MERS relating to the actions authorized under this Section 3.3(d).
 
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(e)  For any month in which a Breaching Seller substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, such Breaching Seller shall determine the amount, if any, by which the aggregate outstanding principal balance of all such Qualified Substitute Mortgage Loans as of the date of substitution is less than the aggregate Unpaid Principal Balance of all such Deleted Mortgage Loans (after application of scheduled principal payments due in the month of substitution). The amount of such shortfall shall be distributed by the Breaching Seller on the Monthly Remittance Date following the date of the substitution pursuant to Section 3.1 of the Servicing Agreement. Pursuant to Section 2.4 of the Servicing Agreement, the Breaching Seller shall deposit from its own funds (and without any right of reimbursement therefor) into the Account an amount equal to the amount of such shortfall.
 
(f)  It is understood and agreed that the obligations of a Breaching Seller set forth in this Section 3.3 constitute the sole remedies available to the Purchaser respecting a breach of the representations and warranties by such Breaching Seller set forth in Section 3.1 and Section 3.2.
 
(g)  Any cause of action against a Breaching Seller relating to or arising out of the breach of any representation and warranty made by such Breaching Seller in Sections 3.1 and 3.2 shall accrue as to any Mortgage Loan only upon (i) discovery of such breach by the Purchaser or notice thereof by such Breaching Seller to the Purchaser, (ii) failure by such Breaching Seller to cure such breach or repurchase or substitute a Qualified Substitute Mortgage Loan(s) for such Mortgage Loan as specified above and (iii) demand upon such Breaching Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
 
(h)  In addition to the repurchase obligations set forth above in this Section 3.3, each Seller shall also be required to repurchase, in the manner provided in Section 3.3(b) but without any right of such Seller to cure, any Mortgage Loan sold by such Seller hereunder that is paid in full on or prior to the related Cut-off Date. Any such Mortgage Loan shall be repurchased by such Seller at the Repurchase Price.
 
(i)  (A) In addition to the cure, repurchase or substitution obligation set forth above in this Section 3.3, each Seller shall indemnify the Purchaser and hold it harmless against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and other costs and expenses resulting from the defense of any claim against the Purchaser by a third party resulting from a breach of the representations and warranties made by such Seller in this Article 3; provided, however, that in no event shall such Seller have any liability for any indirect, special or consequential damages, losses, costs or expenses incurred by Purchaser.
 
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(B) No applicable Seller shall be liable for any costs and expenses pursuant to this Section 3.3(i) unless the Purchaser provides written notice to the Seller that describes the nature of such claim within a reasonable time after service of a summons or other first legal process upon the Purchaser; provided, however, that the Purchaser’s failure to notify such Seller pursuant to this paragraph shall not relieve such Seller from any liability that such Seller may have to the Purchaser otherwise than on account of this indemnity.

(C) Each applicable Seller shall be entitled to participate at its own expense in the defense, or, if such Seller so elects, to assume the defense of any suit against the Purchaser by a third party resulting from a breach of the representations and warranties made by such Seller in this Article 3. If such Seller elects to assume the defense of a suit against the Purchaser, such defense shall be conducted by counsel chosen by such Seller. In the event such Seller elects to assume the defense of any such suit and retain such counsel, the Purchaser may retain additional counsel but shall bear the fees and expenses of such counsel unless (x) such Seller and the Purchaser have mutually agreed to the retention of such counsel or (y) the named parties to such suit (including any impleaded parties) include both such Seller and the Purchaser and representation of both such Seller and the Purchaser by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that such Seller shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one counsel (separate from its own counsel) for the Purchaser.

(D) No applicable Seller shall be required to indemnify any person for any settlement of any claim effected without such Seller’s consent, which consent shall not be unreasonably withheld. Such Seller shall not, without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld, effect any settlement of any pending or threatened proceeding to which the Purchaser is a party and indemnity is sought hereunder by the Purchaser unless such settlement includes an unconditional release of the Purchaser from all liability on claims that are the subject matter of such proceeding.
 
ARTICLE 4. 
 
COVENANTS
 
Section 4.1.  Cooperation
 
Each of the Sellers and the Purchaser shall cooperate fully with each other and their respective counsel and other representatives and advisors in connection with the steps required to be taken as part of their respective obligations under this Agreement.
 
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Section 4.2.  Representations, Warranties, Covenants and Indemnities
 
Each representation, warranty, covenant and indemnity made by a Seller in this Agreement as of each Closing Date shall survive the execution of this Agreement and the expiration or termination of this Agreement.
 
Section 4.3.  Delivery of Documents
 
On the dates specified herein, each party shall deliver to the appropriate persons specified herein all documents and instruments provided for hereunder.
 
Section 4.4.  Consents and Approvals
 
Each Seller shall obtain, at its sole cost and expense, prior to each Closing Date, all consents and approvals required by law or pursuant to contract to consummate the transactions contemplated hereby.  All such consents shall be obtained without any cost or expense to the Purchaser and shall be obtained without any modification in the terms of any of the agreements relating to the Mortgage Loans or the imposition of any provisions or conditions on the Purchaser.
 
Section 4.5.  Confidentiality
 
(a)  Each party understands that certain information that has been furnished and shall be furnished in connection with the transactions contemplated under this Agreement is confidential and proprietary, and each party agrees that, with respect to such information that is marked or identified as confidential or proprietary, or required by applicable law (including, without limitation, the Gramm-Leach-Bliley Act and the regulations promulgated thereunder) to be kept confidential, such party shall maintain the confidentiality of such information and shall not, without the written consent of the party furnishing such information, disclose it to third parties or use it except in connection with the transactions contemplated by this Agreement, as permitted by applicable law or as permitted in Section 4.5(b) below. The parties agree that the following items, except as provided in Section 4.5(b) below, shall be deemed confidential for purposes of this Section 4.5: (a) each completed Term Sheet and (b) each Commitment Letter. The parties agree that the following items shall not be deemed confidential for purposes of this Section 4.5, unless otherwise required by applicable law: (i) this Agreement (except as provided above), (ii) each Mortgage Loan Schedule, (iii) the underwriting guidelines of each Seller, (iv) information generally known in the industry concerning a party, (v) information disclosed to the receiving party by a third party and (vi) information that is required to be disclosed by law, or regulatory or judicial process.
 
(b)  Notwithstanding any other provision of this Agreement (including the confidentiality provision in Section 4.5(a)), each Seller, the Purchaser and the Servicer (and each employee, representative or other agent of any of the foregoing) may disclose to any and all persons, without limitation of any kind, the “tax treatment” and “tax structure” of all transactions covered by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to any of the foregoing parties relating to such tax treatment and tax structure. For this purpose, “tax treatment” means U.S. federal income tax treatment, and “tax structure” is limited to any facts that may be relevant to that treatment.
 
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Section 4.6.  Servicing
 
Each of Washington Mutual Bank and Washington Mutual Bank fsb, for purposes of the servicing of all Mortgage Loans sold by it hereunder, hereby appoints Washington Mutual Bank, FA as its agent and subservicer for purposes of acting as Servicer and servicing such Mortgage Loans on behalf of the Purchaser pursuant to the Servicing Agreement. Each of the Sellers shall cause the Servicing Agreement to be executed by the Servicer on or before the Initial Closing Date.
 
ARTICLE  5. 
 
CONDITIONS TO PURCHASE
 
The obligations of the Purchaser to purchase any Mortgage Loans on any Closing Date are subject to the satisfaction, as applicable, prior to or on the Initial Closing Date and on such Closing Date (or on such other date as expressly provided for herein) of the following conditions, any of which may be waived in writing by Purchaser:
 
Section 5.1.  Effective Date and Closing Date Documents
 
On the Effective Date, the Purchaser shall have received the Effective Date Documents duly executed by all signatories thereto. At each subsequent Closing Date, the Purchaser and the applicable Sellers each shall furnish to the other a fully executed counterpart of the Term Sheet.
 
Section 5.2.  Correctness of Representations and Warranties
 
All of the representations and warranties of the applicable Seller or Sellers under this Agreement shall be true and correct as of such Closing Date (except as otherwise expressly provided for herein), and no event shall have occurred which, with notice or the passage of time, would constitute a default under this Agreement.
 
Section 5.3.  Compliance With Conditions
 
All other terms and conditions of this Agreement to be performed by the applicable Seller or Sellers on or prior to such Closing Date (or such other date as expressly provided for herein) shall have been duly complied with and performed in all respects.
 
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ARTICLE 6.  
 
PASS-THROUGH AND WHOLE LOAN TRANSFERS
 
Section 6.1.  Pass-Through Transfers or Whole-Loan Transfers
 
(a)  Upon 15 days’ prior written notice of intent to the applicable Seller(s) and the Servicer, the Purchaser may, at its sole option, effect one or more Whole Loan Transfers or Pass-Through Transfers with respect to some or all of the Mortgage Loans in a Loan Pool purchased on any Closing Date, retaining the Servicer as the servicer or subservicer if a Master Servicer is employed as provided in Section 6.2; provided, however, that neither the Purchaser nor any of its permitted assignees may effect a Whole Loan Transfer or a Pass-Through Transfer with respect to Mortgage Loans in any Loan Pool if as a result: (i) more than three 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 Whole Loan Transfer or Pass-Through Transfer of less than $5,000,000, (iii) the applicable Seller(s) and the Servicer are not provided with initial drafts of all documents for which such Sellers and Servicer are requested to become a party in connection with such Whole Loan Transfer or Pass-Through Transfer at least 10 days prior to the related settlement date (the “Subsequent Transfer Settlement Date”), (iv) a final list of the Mortgage Loans subject to such Whole Loan Transfer or Pass-Through Transfer is not provided to the Servicer at least 2 Business Days prior to the related Subsequent Transfer Settlement Date, (v) any Mortgage Loan is subject to more than one Whole Loan Transfer or Pass-Through Transfer 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)  Purchaser shall reimburse each Seller for all reasonable out-of-pocket expenses, including attorneys’ fees, incurred by such Seller in connection with each Whole Loan Transfer or Pass-Through Transfer.
 
(c)  In connection with each Whole Loan Transfer or Pass-Through Transfer permitted under this Section 6.1, 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 Whole Loan Transfer or Pass-Through Transfer (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.
 
(d)  With respect to any Whole Loan Transfer or Pass-Through Transfer permitted under this Section 6.1 in which a prospectus, prospectus supplement or other disclosure document (a “Disclosure Document”) is prepared in connection therewith, and in which a substantial portion of the mortgage loans in the related transaction consist of Mortgage Loans, each of the Sellers, as applicable, shall:
 
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(i) provide for inclusion as part of such Disclosure Document (A) the regulatory status of such Seller and its affiliates, (B) the origination and underwriting criteria related to the applicable Mortgage Loans sold by such Seller, (C) delinquency and foreclosure information of the type typically provided by such Seller in connection with mortgage loans originated by such Seller and securitized by third parties and (D) updated information with respect to the Mortgage Loans as of the related Whole Loan Transfer or Pass-Through Transfer (the information referred to in this sentence, in the form provided to Purchaser, being “Seller’s Information”); and
 
(ii) execute and deliver an Indemnification Agreement in substantially the form attached hereto as Exhibit C.
 
(e)  With respect to any Pass-Through Transfer permitted under this Section 6.1 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 Pass-Through Transfer, provided, that (A) any servicing reporting requirements must be consistent with the standard practices of Washington Mutual Bank, FA and (B) each of the parties to such pooling and servicing agreement negotiates in good faith any terms or conditions in such pooling and servicing agreement not specifically referenced or provided for under this Agreement or the Servicing Agreement;
 
(ii) provide Purchaser with opinions of counsel as to such Seller’s corporate authority and the enforceability of the pooling and servicing agreement against such Seller, audit letters addressing the delinquency and foreclosure statistics of Washington Mutual Bank, FA and certificates from public officials, each as such Seller shall reasonably determine to be necessary to effect such Pass-Through Transfer; and
 
(iii) upon the reasonable request of the Purchaser, execute and deliver a reconstituted sale agreement pursuant to which such Seller shall make the representations and warranties set forth on Exhibit D with respect to the applicable Mortgage Loans, effective as of the date of such reconstituted sale agreement, provided that (A) the related Mortgage Loans have been transferred by the Purchaser to a third party within six months of the related Closing Date, (B) the representations and warranties made in such reconstituted sale agreement shall supercede and replace all representations and warranties made in Section 3.1 hereof with respect to such Mortgage Loans and (C) in no event shall any Seller be obligated to make any representation or warranty regarding any Mortgage Loan that is untrue.
 
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(f)  With respect to any Whole Loan Transfer or Pass-Through Transfer in which a Disclosure Document is prepared in connection therewith, the Purchaser shall:
 
(i) provide each Seller with all drafts of the Seller’s Information when produced and revise the Seller’s Information in accordance with such Seller’s comments to correct any information therein at the Purchaser’s cost; and
 
(ii) (A) indemnify and hold harmless each of the Sellers against any losses, claims, damages or liabilities to which such Seller may become subject, under the Securities Act of 1933, as amended, or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) (x) arise out of or are based upon any untrue statement of any material fact contained in such Disclosure Document (other than an untrue statement of material fact contained in the Seller’s Information), or (y) arise out of or are based upon the omission to state in such Disclosure Document a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (unless the material fact omitted would constitute Seller’s Information) and (B) reimburse each Seller for any legal or other expenses reasonably incurred by such Seller in connection with investigating or defending any such loss, claim, damage, liability or action.
 
Section 6.2.  Designation of a Master Servicer
 
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 Whole Loan Transfer or Pass-Through Transfer permitted under Section 6.1. 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.
 
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ARTICLE 7.  
 
MISCELLANEOUS PROVISIONS
 
Section 7.1.  Amendment
 
This Agreement may be amended from time to time by the Sellers and the Purchaser solely by written agreement signed by the Sellers and the Purchaser.
 
Section 7.2.  Recordation of Agreement
 
(a)  To the extent necessary under applicable law to protect the interests of the Purchaser, this Agreement or a memorandum thereof is subject to recordation in all appropriate public offices for real property records in all the counties and other comparable jurisdictions in which any or all of the Mortgaged Properties are situated, and in any other appropriate public recording office or elsewhere, such recordation to be effected by the Sellers at the Purchaser’s expense upon direction of the Purchaser.
 
(b)  Each Seller agrees to execute or cause to be executed such documents and take or cause to be taken such actions as may be necessary to effect the intent of this Agreement, including without limitation the execution and delivery of instruments of further assurance and the execution and delivery of such other documents, and the taking of such other actions as may be reasonably requested by the Purchaser.
 
Section 7.3.  Governing Law
 
This Agreement shall be governed by and construed in accordance with the laws of the State of New York (including Section 5-1401 of the New York General Obligations Law) and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws without giving effect to conflict of laws principles other than Section 5-1401 of the New York General Obligations Law.
 
Section 7.4.  General Interpretive Principles
 
For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
 
(i)  the terms defined in this Agreement have the meanings assigned to them in this Agreement and include the plural as well as the singular, and the use of any gender herein shall be deemed to include the other gender;
 
(ii)  accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles;
 
34
 
(iii)  references herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other subdivisions without reference to a document are to designated Articles, Sections, Subsections, Paragraphs, and other subdivisions of this Agreement;
 
(iv)  a reference to a subsection without further reference to a Section is a reference to such subsection as contained in the same Section in which the reference appears, and this rule shall also apply to Paragraphs and other subdivisions;
 
(v)  the words “herein,” “hereof,” “hereunder,” and other words of similar import refer to this Agreement as a whole and not to any particular provision; and
 
(vi)  the term “include” or “including” shall mean without limitation by reason of enumeration.
 
Section 7.5.  Reproduction of Documents
 
This Agreement and all documents relating hereto, including (i) consents, waivers, and modifications which may hereafter be executed, (ii) the Effective Date Documents, all Commitment Letters, Term Sheets and Mortgage Loan Schedules and (iii) financial statements, certificates, and other information previously or hereafter furnished, may be reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, or other similar process. The parties agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile, or further reproduction of such reproduction shall likewise be admissible in evidence.
 
Section 7.6.  Notices
 
All demands, notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given upon receipt if personally delivered, sent by facsimile, mailed by registered mail, postage prepaid or delivered by a nationally recognized overnight courier, to
 
(i) in the case of the Sellers:
 
Washington Mutual Bank, FA
Washington Mutual Bank fsb
Washington Mutual Bank
1201 Third Avenue, WMT0511
Seattle, Washington 98101
Attention: General Counsel
Telephone: (206) 461-8890
Facsimile: (206) 461-5739
 
35
 
(ii) in the case of the Servicer:
 
Washington Mutual Bank, FA
19850 Plummer St. (Mail Stop N070205)
Chatsworth, CA 91311
Attention: Vice President of Investor Reporting
Telephone: (818) 775-2278
Facsimile: (818) 775-2819

or such other address as may hereafter be furnished to the Purchaser in writing by a Seller or the Servicer, and
 
(iii) in the case of the Purchaser:
 
Goldman Sachs Mortgage Company
85 Broad Street
New York, NY 10004
Attention: Lisa Rosenberg
Telephone: (212) 357-1240
Facsimile: (212) 902-3000

With a copies to:

Legal Department
Goldman Sachs Mortgage Company
85 Broad Street
New York, NY 10004

and

Goldman Sachs Mortgage Company
100 Second Avenue South, Suite 200 North
St. Petersburg, FL 33701
Attention: Debbie Brown
Telephone: (727) 825-3800
Facsimile: (727) 825-3821

or such other address as may hereafter be furnished to each of the Sellers and the Servicer in writing by the Purchaser.
 
Notwithstanding the foregoing, any demand, notice, consent, waiver or communication may be given by any other means if the parties hereto agree to such alternative means in writing.
 
36
 
Section 7.7.  Severability of Provisions
 
If any one or more of the covenants, agreements, provisions, or terms of this Agreement shall be held invalid for any reason whatsoever, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining covenants, agreements, provisions, or terms of this Agreement and shall in no way affect the validity or enforceability of the other covenants, agreements, provisions, or terms of this Agreement or the rights of the parties hereunder. If the invalidity of any part, provision, representation or warranty of this Agreement shall deprive any party of the economic benefit intended to be conferred by this Agreement, the parties shall negotiate in good faith to develop a structure the economic effect of which is as nearly as possible the same as the economic effect of this Agreement without regard to such invalidity.
 
Section 7.8.  Exhibits
 
The exhibits to this Agreement and each of the Commitment Letters are hereby incorporated and made a part hereof and are an integral part of this Agreement.
 
Section 7.9.  Counterparts; Successors and Assigns
 
This Agreement may be executed in one or more counterparts, and by the different parties hereto on separate counterparts, each of which, when so executed, shall be deemed to be an original; such counterparts, together, shall constitute one and the same agreement. This Agreement shall inure to the benefit of and be binding upon the Sellers and the Purchaser. Notwithstanding the foregoing, (a) none of the Sellers shall assign its rights and obligations under this Agreement without the prior written consent of the Purchaser, which consent shall not be unreasonably withheld or delayed and (b) the Purchaser may not assign its rights and obligations under this Agreement except (i) as provided in Article 6, or (ii) with the prior written consent of the applicable Seller or Sellers, which consent shall not be unreasonably withheld or delayed (in which case all references to the Purchaser herein shall be deemed to include such assignee or designee).
 
Section 7.10.  Effect of Headings
 
The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
 
Section 7.11.  Other Agreements Superseded; Entire Agreement
 
This Agreement supersedes all prior agreements and understandings (other than any Commitment Letter delivered prior to the date hereof) relating to the subject matter hereof. This Agreement, together with all Commitment Letters and Term Sheets delivered or entered into pursuant hereto constitute the entire agreement of the parties with respect to the subject matter hereof. If any provision of the Term Sheet conflicts with any provision of the Agreement, the Term Sheet shall control. If any provision of this Agreement conflicts with any provision of any Commitment Letter, the provisions of this Agreement shall control.
 
37
 
Section 7.12.  Survival
 
The representations, warranties, indemnities, covenants and agreements of the parties provided in this Agreement and the parties’ obligations hereunder shall survive the execution and delivery and the termination or expiration of this Agreement.
 
Section 7.13.  Intention of the Parties
 
It is the intention of the parties that the Purchaser is purchasing, and each Seller is selling Mortgage Loans and not a debt instrument of such Seller or other security. Accordingly, the parties hereto each intend to treat each of the transactions hereunder for federal income tax purposes as a sale by each Seller, as applicable, and a purchase by the Purchaser, of Mortgage Loans. The Purchaser shall have the right to review the Mortgage Loans and the related Credit Files to determine the characteristics of the Mortgage Loans which shall affect the federal income tax consequences of owning the Mortgage Loans, and the applicable Seller or Sellers shall cooperate with all reasonable requests made by the Purchaser in the course of such review.
 
Section 7.14.  Nonsolicitation
 
Each Seller covenants and agrees that it shall not take any action to solicit the refinancing of any Mortgage Loan following the date hereof or provide information to any other entity to solicit the refinancing of any Mortgage Loan; provided that, the foregoing shall not preclude such Seller or any of its affiliates from (a) engaging in general solicitations to its customer base, including by mass mailing or as part of monthly or periodic statements mailed to its borrowers or to holders of deposit or other accounts, (b) engaging in solicitations to the general public, including without limitation by mass mailing, newspaper, radio, television or other media which are not specifically directed toward the Mortgagors, (c) engaging in solicitations of optional insurance or other bank products (not including mortgage loans) (d) refinancing the Mortgage Loan of any Mortgagor who, without solicitation, contacts a Seller to request the refinancing of the related Mortgage Loan, or (e) engaging in any action to solicit the refinancing of any Mortgage Loan to the extent such action would be permitted under the Fannie Mae Selling Guide or the Fannie Mae Servicing Guide.
 
Section 7.15.  Costs
 
Except as otherwise provided in Section 2.2(b), each Seller shall pay all costs, fees and expenses incurred in connection with the transfer and delivery of the Mortgage Loans sold by such Seller under this Agreement for Seller’s accountants, attorneys and other service providers, including any broker, investment banker, agent or other Person hired by the Seller that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans.
 
38
 
Section 7.16.   Obligations of the Sellers
 
The obligations and liability of each of the Sellers under this Agreement are several, and no Seller shall be responsible for the obligations of any other Seller under this Agreement. Each representation, warranty, indemnity and covenant made by one Seller under the Agreement is made by, or on behalf of, and with respect to, that Seller only and not any other Seller.
 
Section 7.17.  Attorneys’ Fees
 
If any party retains an attorney to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees from the non-prevailing party (or parties), including, without limitation, fees incurred in arbitration and in trial and appellate courts, fees incurred without suit, and all arbitration, court and accounting costs.
 
[signatures follow]
 
39

TO WITNESS THIS, the Sellers and the Purchaser have caused their names to be signed to this Mortgage Loan Purchase and Sale Agreement by their duly authorized respective officers as of the day and year first above written.
 
     
 
WASHINGTON MUTUAL BANK, FA
a federally chartered savings association
     
By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
 
WASHINGTON MUTUAL BANK fsb
a federal savings bank
     
By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
 
WASHINGTON MUTUAL BANK
a Washington state chartered stock savings bank
     
By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
40
 
 
GOLDMAN SACHS MORTGAGE COMPANY
a New York limited partnership
     
By:  
Goldman Sachs Real Estate Funding Corp., 
General Partner
     
     
  By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
41
 
 STATE OF WASHINGTON  )
   ) ss.
 COUNTY OF KING  )
 
This instrument was acknowledged before me on ______________________, 200_, by _____________________ as _________________________ of Washington Mutual Bank, FA.
 
 
__________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
Washington, residing at ____________________
My commission expires _____________________
 
 STATE OF WASHINGTON  )
   ) ss.
 COUNTY OF KING  )
 
This instrument was acknowledged before me on ______________________, 200_, by _____________________ as _________________________ of Washington Mutual Bank fsb.
 
 
__________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
Washington, residing at ____________________
My commission expires _____________________

 
 STATE OF WASHINGTON  )
   ) ss.
 COUNTY OF KING  )
 
This instrument was acknowledged before me on ______________________, 200_, by _____________________ as _________________________ of Washington Mutual Bank.
 
 
__________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
Washington, residing at ____________________
My commission expires _____________________

 
 STATE OF  )
   ) ss.
 COUNTY OF  )
 
This instrument was acknowledged before me on ______________________, 200_, by _____________________ as _________________________ of _______________.
 
 
__________________________________
[Print Name]_________________________
NOTARY PUBLIC in and for the State of
__________, residing at ____________________
My commission expires _____________________
 

EXHIBIT A-1

CONTENTS OF COLLATERAL FILE

 
With respect to each Mortgage Loan, unless otherwise agreed by the applicable Seller and the Purchaser, the Collateral File shall include each of the following items:
 
A. With respect to each Mortgage Loan (other than a Cooperative Loan):
 
1.  
(i) The original Mortgage Note, endorsed (on the Mortgage Note or an allonge attached thereto) “Pay to the order of _______________________, without recourse,” (or as otherwise specified in the related Commitment Letter), and signed by facsimile signature in the name of such Seller by an authorized officer, with all intervening endorsements showing a complete, valid and proper chain of title from the originator of such Mortgage Loan to such Seller; or
 
(ii) to the extent permitted in Section 2.2(a)(i)(A)(2) of the Agreement or the applicable Commitment Letter or Term Sheet, a lost note affidavit, providing indemnification to the holder thereof for any losses incurred due to the fact that the original Mortgage Note is missing, together with a copy of the Mortgage Note.
 
2.  
The original Mortgage, with evidence of recording thereon (and in the case of a MOM Loan, with evidence of the MIN), or if such Mortgage has been lost or if such public recording office retains the original recorded Mortgage, a photocopy of such Mortgage certified by such public recording office to be a true and complete copy of the original recorded Mortgage.
 
3.  
Unless such Mortgage Loan is a MERS Loan, the original Assignment of Mortgage, from the Seller signed by original signature of an authorized officer, in blank (or as otherwise specified in the related Commitment Letter), which assignment shall be in form and substance acceptable for recording (except for the insertion of the name of the assignee and recording information).
 
4.  
Unless such Mortgage Loan is a MOM Loan, originals of all intervening Assignments of Mortgage, with evidence of recording thereon, showing a complete chain of title from the originator to the Seller (or in the case of a MERS Loan other than a MOM Loan showing a complete chain of title from the originator to MERS), or if any such original intervening Assignment of Mortgage is permanently retained by the applicable recording office, or if such original Assignment of Mortgage has been lost, a photocopy of each such original, certified by the applicable public recording office to be a true and complete copy of the original.
 
A-1-1
 
5.  
Originals of all assumption and modification agreements, if any, unless such originals are unavailable (in which event such Seller shall deliver to the Custodian a photocopy of each such original, certified by the Seller to be a true and complete copy of the original).
 
B. With respect to each Cooperative Loan, as applicable, copies of (1) the proprietary lease; (2) the security agreement; (3) the assignment of the proprietary lease, with all intervening assignments showing a complete chain of title and an assignment thereof by the applicable Seller; (4) the original stock certificate evidencing the ownership of the Cooperative Apartment, endorsed or accompanied by a stock power relating to such stock certificate executed in blank; (5) a recognition agreement in form approved by the applicable Seller’s underwriting guidelines, in substantially the same form as the standard “AZTECH” form; (6) copies of the financing statement filed by the applicable Seller as secured party and, if applicable, a filed UCC-3 assignment of the subject security interest showing a complete chain of title, together with an executed UCC-3 Assignment of such security interest by the applicable Seller in a form sufficient for filing; and (7) such other documents as are necessary for the perfection of a lien against the related Coop Ownership Interests under applicable law.
A-1-2

EXHIBIT A-2

CONTENTS OF CREDIT FILE
 
With respect to each Mortgage Loan, unless otherwise agreed by the applicable Seller and the Purchaser, the Credit File shall include each of the following items:
 
1.  
Copy of survey of the Mortgaged Property, if available.
 
2.  
Copy of each instrument necessary to complete identification of any exception set forth in the exception schedule in the title policy (i.e., map or plat, restrictions, easements, sewer agreements, home association declarations, etc.).
 
3.  
Evidence of a hazard insurance policy and, if required by law, a flood insurance policy, with extended coverage of the hazard insurance policy. (Note: Evidence shall be maintained by the applicable Seller in electronic form. The applicable Seller shall produce a paper copy of such evidence upon request by the Purchaser.)
 
4.  
Mortgage Loan closing statement (Form HUD-1) and any other truth-in-lending or real estate settlement procedure forms required by law.
 
5.  
Residential loan application.
 
6.  
Verification of employment and income (if required pursuant to the Seller’s underwriting criteria).
 
7.  
Verification of acceptable evidence of source and amount of down payment (to the extent required under the Seller’s underwriting guidelines).
 
8.  
Credit report on the Mortgagor.
 
9.  
Residential appraisal report.
 
10.  
Photograph of the property.
 
11.  
Executed disclosure statement.
 
12.  
Tax receipts, insurance premium receipts, ledger sheets, payment records, insurance claim files and correspondence, correspondence, current and historical computerized data files, underwriting standards used for origination, and all other papers and records developed or originated by the applicable Seller or others required to document the Mortgage Loan or to service the Mortgage Loan.
 
A-2-1
 
13.  
A certified copy or an imaged copy on CD ROM of the policy of title insurance, including any endorsements thereto.
 
14.  
A certified copy or an imaged copy on CD ROM of the executed Power of Attorney, if any.
 
15.  
A certified copy or an imaged copy on CD ROM of the original Primary Mortgage Insurance Policy, if any.
 
A-2-2

EXHIBIT B
 
TERM SHEET
 
(Washington Mutual—__________)
 
This Term Sheet (the “Term Sheet”) is dated _____, by ____________________ [INSERT one or more of the following parties: WASHINGTON MUTUAL BANK, FA, a savings association organized under the laws of the United States, WASHINGTON MUTUAL BANK fsb, a savings bank organized under the laws of the United States and WASHINGTON MUTUAL BANK, a Washington state chartered stock savings bank], as sellers (each, a “Seller” and, collectively, the “Sellers”) and Goldman Sachs Mortgage Company, a New York limited partnership (the “Purchaser”).
 
This Term Sheet is made pursuant to the terms and conditions of the Mortgage Loan Purchase and Sale Agreement (the “Agreement”), dated as of December 1, 2003, among Sellers and the Purchaser, the provisions of which are incorporated here, as such terms may be modified or supplemented here. All capitalized terms shall have the meanings ascribed to them in the Agreement, unless otherwise defined here.
 
The Purchaser hereby purchases from Sellers and each Seller hereby sells to the Purchaser, severally and not jointly, all of Seller’s right, title and interest in and to the Mortgage Loans described on the Mortgage Loan Schedule attached hereto as Schedule I, in accordance with the terms of the Agreement, as such terms may be supplemented or modified by this Term Sheet. From this date forward, Washington Mutual Bank, FA, shall service the Mortgage Loans for the benefit of the Purchaser and all subsequent transferees of the Mortgage Loans in accordance with the terms of the Servicing Agreement, dated as of December 1, 2003, between Washington Mutual Bank, FA, as servicer, and Purchaser.
 
1. DEFINITIONS
 
For purposes of the Mortgage Loans to be sold pursuant to this Term Sheet, the following terms shall have the following meanings:
 
  Aggregate Principal Balance
(as of the Cut-Off Date):
 _______________________________
     
  Closing Date:  _______________________________
     
  Custodian:  _______________________________
     
  Cut-off Date:  _______________________________
     
  Initial Weighted Average
Mortgage Loan Net Rate:		  _______________________________
     
  Mortgage Loan Type:  _______________________________
     
  Purchase Price Percentage:  _______________________________
     
  Servicing Fee Rate:  _______________________________
 
B-1
 
2. Additional Closing Conditions:
 
a. The Purchaser or any of its permitted assignees shall not effect a Whole Loan Transfer or a Pass-Through Transfer unless the following conditions are met: (i) the maximum number of investors (other than the Purchaser) that own the Mortgage Loans at any one time is three, (ii) no single investor (other than the Purchaser) owns Mortgage Loans having an aggregate Unpaid Principal Balance immediately after such Whole Loan Transfer or Pass-Through Transfer of less than $5,000,000, (iii) the applicable Seller(s) and the Servicer are provided with initial drafts of all documents for which such Sellers and Servicer are requested to become a party in connection with such Whole Loan Transfer or Pass-Through Transfer at least 10 days prior to the Subsequent Transfer Settlement Date, (iv) a final list of the Mortgage Loans subject to such Whole Loan Transfer or Pass-Through Transfer is provided to the Servicer at least 2 Business Days prior to the related Subsequent Transfer Settlement Date, (v) no Mortgage Loan is subject to more than one Whole Loan Transfer or Pass-Through Transfer in any given Due Period and (vi) the Subsequent Transfer Settlement Date occurs after the related Servicing Cut-off Date.
 
b. The aggregate Unpaid Principal Balance of Mortgage Loans in the Loan Pool as to which lost note affidavits shall be accepted by the Purchaser shall not exceed ___________ percent (__%) of the aggregate Unpaid Principal Balance of all Mortgage Loans in the Loan Pool.
 
c. In addition to the foregoing and to the conditions specified in the Agreement, the obligation of each of the Sellers and the Purchaser is subject to the fulfillment, on or prior to the relevant Closing Date, of the following additional conditions:
 
[None].
 
3. Additional Loan Documents:
 
a. In addition to the contents of the Collateral File specified in the Agreement, the following documents shall be delivered with respect to the Mortgage Loans:
 
[None].
 
B-2
 
4. [Additional] [Modification of] Representations and Warranties:
 
a. In addition to the representations and warranties set forth in the Agreement, as of the date hereof, the applicable Seller makes the following additional representations and warranties with respect to each of the Mortgage Loans to be sold by such Seller on the Closing Date:
 
(i) No Mortgage Loan originated on or after October 1, 2002 will impose a prepayment premium for a term in excess of three years after its origination. No Mortgage Loan originated before October 1, 2002 will impose a prepayment premium for a term in excess of five years after its origination. 
 
[Other].
 
b. [Notwithstanding anything to the contrary set forth in the Agreement, with respect to each Mortgage Loan to be sold on the Closing Date or with respect to each of the Sellers, the representations and warranties set forth in Section 3.1 and Section 3.2 of the Agreement shall be modified to read as follows:
 
[No change].
 
c. Except as modified here, Sections 3.1 and 3.2 of the Agreement remain in full force and effect as of the date of this Term Sheet.
 
5. Tax Treatment and Tax Structure

Notwithstanding any other provision of this Term Sheet or the Agreement (including any confidentiality provision) or the terms of any confidentiality provisions in any other agreements between the parties relevant to the Mortgage Loans, each Seller, the Purchaser and the Servicer (and each employee, representative or other agent of any of the foregoing) may disclose to any and all persons, without limitation of any kind, (i) the “tax treatment” and “tax structure” of all transactions covered by this Term Sheet, the Agreement or any other agreements between the parties relevant to the Mortgage Loans and (ii) all materials of any kind (including opinions or other tax analyses) that are provided to any of the foregoing parties relating to such tax treatment and tax structure. For this purpose, “tax treatment” means U.S. federal income tax treatment, and “tax structure” is limited to any facts that may be relevant to that treatment.
 
[signatures follow]
 
B-3
 
TO WITNESS THIS, the parties have caused their names to be signed by their respective duly authorized officers as of the date first written above.
 
     
 
WASHINGTON MUTUAL BANK, FA
a federally chartered savings association
     
By:  
  Name: 
______________________________
  Title:  ______________________________ 
   
 
 
WASHINGTON MUTUAL BANK fsb
a federal savings bank
     
By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
 
WASHINGTON MUTUAL BANK
a Washington state chartered stock savings bank
     
By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
B-4
 
 
GOLDMAN SACHS MORTGAGE COMPANY
a New York limited partnership
     
By:  
Goldman Sachs Real Estate Funding Corp., 
General Partner
     
  By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
B-5

SCHEDULE I TO TERM SHEET
 
MORTGAGE LOAN SCHEDULE *
 
* To be attached as diskette in “read-only” format.
 
i
 
EXHIBIT C

FORM OF INDEMNIFICATION AGREEMENT

[Date]

[Depositor Name]
[Depositor Address]
[Depositor Address]

Re: [Name of Securities]

Ladies and Gentlemen:

The following terms shall have the meanings indicated:

“Act” shall mean The Securities Act of 1933, as amended.

“Claims” shall mean losses, third-party claims, damages, joint or several liabilities or expenses (including the reasonable cost of investigating and defending against any third-party claims including related counsel fees, except as otherwise provided herein); for avoidance of doubt, including those resulting in amounts payable by an Indemnified Party to any third party, including affiliates of such Indemnified Party.

“Controlling Person” shall mean each person, if any, who controls a party to this letter agreement within the meaning of Section 15 of the Act.

“Indemnified Party” shall mean a party to this letter agreement (in its own right and on behalf of its related Controlling Persons and its or such Controlling Persons’ present and former officers, directors, employees and assignees) entitled to an indemnification under the terms of this letter agreement.

“Indemnifying Party” shall mean a party to this letter agreement obligated to indemnify an Indemnified Party under the terms of this letter agreement.

“Prospectus Supplement” shall mean the prospectus supplement dated on or about ____________, 200_ under the Act related to the securities described in the subject line of this letter agreement.

“Seller” shall mean, as the context requires, any of Washington Mutual Bank, FA, Washington Mutual Bank fsb and/or Washington Mutual Bank.

“Seller Information” shall mean the information contained on Exhibit A attached hereto.
 
C-1
 
Capitalized terms not otherwise defined herein have the meanings ascribed to such terms in the Pooling and Servicing Agreement, dated as of ____________, 200_ (the “Pooling and Servicing Agreement”), among ______________, as depositor, ________________, as trustee, ____________________, as a seller, and ________________, as a seller and servicer.

Each of the Sellers, severally and not jointly, represents and warrants that the Seller Information related to such Seller does not (1) contain any untrue statement of a material fact or (2) omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In the event of a breach of the foregoing representation and warranty, each Seller agrees to indemnify and hold harmless each addressee of this letter agreement, each of its related Controlling Persons and each of their respective present and former officers, directors, employees and assignees against any Claim that may be based upon the Act, or any other statute or at common law, on the ground or alleged ground that the Prospectus Supplement, to the limited extent of the Seller Information related to such Seller contained therein, (1) contains an untrue statement of a material fact, or (2) omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

Each addressee of this letter agreement represents and warrants that the Prospectus Supplement, exclusive of the Seller Information, does not (1) contain any untrue statement of a material fact or (2) omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. In the event of a breach of the foregoing representation and warranty, each addressee of this letter agreement agrees to indemnify and hold harmless each of the Sellers, each of its respective Controlling Persons and each of their respective present and former officers, directors, employees and assignees, against any Claim that may be based upon the Act, or any other statute or at common law, on the ground or alleged ground that the statements made in the Prospectus Supplement (exclusive of the Seller Information) (1) contain any untrue statement of a material fact or (2) omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

With respect to each claim for indemnification made hereunder, the Indemnified Party shall notify the Indemnifying Party in writing, giving notice of the nature of the claim, within a reasonable time after service of a summons or other first legal process that shall have been served upon such Indemnified Party, but failure to notify the Indemnifying Party of any such claim shall not relieve the Indemnifying Party from any liability which it may have to the Indemnified Party (i) on account of the indemnity contained in this letter agreement, except to the extent that the Indemnifying Party has been materially prejudiced by such failure, or (ii) otherwise than on account of the indemnity contained in this letter agreement.

The Indemnifying Party will be entitled to participate at its own expense in the defense or, if the Indemnifying Party so elects, to assume the defense of any suit brought to enforce any such liability, but if the Indemnifying Party elects to assume the defense, such defense shall be conducted by counsel reasonably satisfactory to the Indemnified Party. In the event the Indemnifying Party elects to assume the defense of any such suit and retain such counsel, the Indemnified Party or persons, defendant or defendants in the suit, may retain additional counsel but shall bear the fees and expenses of such counsel unless: (1) the Indemnifying Party shall have agreed to the retention of such counsel at the expense of the Indemnifying Party; or (2) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party reasonably determines that representation of both by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one counsel (separate from its own counsel) for the Indemnified Party.
 
C-2

The Indemnified Party shall not be liable to indemnify any person for any settlement of any claim effected without the Indemnified Party’s consent, which consent shall not be unreasonably withheld. The Indemnifying Party shall not, without the prior written consent of an Indemnified Party, which consent will not be unreasonably withheld, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity is or could have been sought hereunder by such Indemnified Party.

If the indemnification provided for in this letter is insufficient or unavailable to an Indemnified Party in respect of any losses, claims, damages, liabilities or judgments referred to herein, then the Indemnifying Party, in lieu of indemnifying the Indemnified Party, shall contribute to the amount paid or payable by the Indemnified Party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate equally to reflect (1) the relative fault and benefits of (a) the Indemnifying Party on the one hand and (b) the Indemnified Party on the other hand, as well as (2) any other relevant equitable considerations.

The Controlling Person of any Indemnified Party and present and former officers, directors, employees and assignees of an Indemnified Party or such Controlling Person shall be an intended third-party beneficiary of this letter agreement; provided, however, that any Controlling Person, present or former officer, director, employee and/or assignee shall appoint its related Indemnified Party as its exclusive agent for, on behalf of, and in the name of such person, to exercise any and all rights of such person under this letter agreement, without prejudice to the right of any Controlling Party, present or former officer, director, employee or assignee to retain additional counsel at its own expense, as provided in this letter agreement. In no event, however, will an Indemnifying Party be required to bear the expense of such additional counsel on the grounds that representation of both the Indemnified Party and its related Controlling Person, present or former officer, director, employee or assignee by the same counsel would be inappropriate due to actual or potential differing interests between them.

This letter agreement shall be governed by and construed in accordance with the laws of the State of New York (including Section 5-1401 of the New York General Obligations Law) and the obligations, rights and remedies of the parties shall be determined in accordance with such laws without giving effect to conflict of laws principles other than Section 5-1401 of the New York General Obligations Law.
 
C-3
 
Please signify your acceptance of this letter agreement by signing below and returning to the undersigned. This letter agreement shall be effective as of the date first stated above upon delivery of written acceptance by all parties hereto.
 
     
 
Very truly yours,

WASHINGTON MUTUAL BANK, FA
a federally chartered savings association
     
By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
 
WASHINGTON MUTUAL BANK fsb
a federal savings bank
     
By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
 
WASHINGTON MUTUAL BANK
a Washington state chartered stock savings bank
     
By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
 
AGREED AND ACCEPTED

[PURCHASER]
a _____________________
     
By:  
  Name: 
______________________________
  Title:  ______________________________
   
 
C-4

Exhibit A

WASHINGTON MUTUAL BANK, FA

Washington Mutual Bank, FA (“WMBFA”), is a federally chartered savings association. WMBFA’s principal executive offices are located at 1201 Third Avenue, Seattle, WA 98101, telephone (206) 461-2000. The primary mortgage loan servicing office of WMBFA is located at 19850 Plummer Street, Chatsworth, California 91311. Its telephone number is (818) 775-2278. WMBFA is subject to regulation and examination by the Office of Thrift Supervision, which is its primary regulator. Its deposit accounts are insured by the FDIC, primarily through the Savings Association Insurance Fund. As a result, the FDIC also has some authority to regulate WMBFA.

WASHINGTON MUTUAL BANK fsb

Washington Mutual Bank fsb (“WMBfsb”) is a federally chartered savings bank. WMBfsb’s principal executive offices are located at 1201 Third Avenue, Seattle, WA 98101, telephone (206) 461-2000. WMBfsb is subject to regulation and examination by the Office of Thrift Supervision, which is its primary regulator. Its deposit accounts are insured by the FDIC through the Savings Association Insurance Fund. As a result, the FDIC also has some authority to regulate WMBfsb.

WASHINGTON MUTUAL BANK

Washington Mutual Bank (“WMB”) is a savings bank chartered under the laws of the State of Washington. WMB’s principal executive offices are located at 1201 Third Avenue, Seattle, WA 98101, telephone (206) 461-2000. WMB is subject to regulation and supervision by the Director of Financial Institutions of the State of Washington. As a state savings bank, WMB is also subject to examination and regulation by the FDIC.
 
C-5
 
NONACCRUAL LOAN STATISTICS

[to be attached]
 
C-6

ORIGINATION AND UNDERWRITING CRITERIA

[to be attached]
 
C-7

MORTGAGE LOAN SCHEDULE

[to be attached as diskette in “read-only” format]

C-8

EXHIBIT D

REPRESENTATIONS AND WARRANTIES

Each Company hereby, severally and not jointly, represents and warrants to and covenants to and agrees with the Assignor and the Assignee that, as to each Mortgage Loan sold by such Company to the Assignor, as of the date hereof:

1.1 The information set forth in the Mortgage Loan Schedule attached hereto as Exhibit A is true and correct in all material respects.
 
1.2 The related Mortgage is a valid and enforceable (subject to Section 1.12) first lien on 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 and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally 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, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage.
 
1.3 All Monthly Payments due on such Mortgage Loan have been made and such Mortgage Loan has not been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days.
 
1.4 There is no offset, defense or counterclaim to the related Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note.
 
1.5 The related Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted.
 
1.6 Such Mortgage Loan at the time it was made complied with all applicable state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws.
 
1.7 Such Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or a mortgagee approved by HUD.
 
1.8 Such Mortgage Loan is covered by an ALTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and will inure to the benefit of the Assignee upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and the applicable Company, has not done, by act or omission, anything that would impair the coverage of such policy.
 
D-1
 
1.9 If such Mortgage Loan had a Loan-to-Value Ratio in excess of 80% at the time of origination, such Mortgage Loan was covered by a Primary Mortgage Insurance Policy that remains in full force and effect.
 
1.10 The related Mortgage (exclusive of any riders thereto) was documented by appropriate Fannie Mae/Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the applicable Company.
 
1.11 The related Mortgaged Property securing the Mortgage is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development.
 
1.12 The related Mortgage and the related Mortgage Note are the legal, valid and binding obligations of the maker thereof and are enforceable in accordance with their respective terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally and principles of equity.
 
1.13 Prior to origination or refinancing, an appraisal of the related Mortgaged Property was made by an appraiser who met the requirements of the applicable Company.
 
1.14 Such Mortgage Loan has been underwritten substantially in accordance with the underwriting guidelines of the applicable Company.
 
1.15 The applicable Company used no adverse selection procedures in selecting such Mortgage Loan from among the outstanding mortgage loans in such Company’s portfolio on the date of transfer to the Assignor and as to which the representations and warranties set forth herein could be made.
 
1.16 Immediately upon the transfer contemplated by the Purchase Agreement, the Assignor had good title to, and was the sole legal owner of, such Mortgage Loan, free and clear of any encumbrance or lien.
 
1.17 There is no late assessment for delinquent taxes outstanding against the related Mortgaged Property.
 
D-2