Exhibit 4.3
WACHOVIA MORTGAGE LOAN TRUST, LLC,
as Purchaser,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller
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MORTGAGE LOAN PURCHASE AGREEMENT
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Dated as of August 24, 2005
TABLE OF CONTENTS
Page
i
SECTION 1. Definitions..............................................1
SECTION 2. Purchase and Sale of the Mortgage Loans..................4
SECTION 3. Mortgage Loan Schedule...................................6
SECTION 4. Allocation of Payments; Mortgage Loan Files..............6
SECTION 5. Material Defects.........................................7
SECTION 6. Recordation of Assignments of Mortgages..................9
SECTION 7. Representations and Warranties of Seller Concerning the
Mortgage Loans.........................................10
SECTION 8. Representations and Warranties Concerning the Seller....14
SECTION 9. Representations and Warranties Concerning the Purchaser.16
SECTION 10. Conditions to Closing...................................17
SECTION 11. Notices.................................................19
SECTION 12. Assignment by Purchaser.................................19
SECTION 13. Representations, Warranties and Agreements to
Survive Delivery.......................................19
SECTION 14. Severability............................................19
SECTION 15. Counterparts............................................19
SECTION 16. Amendment...............................................19
SECTION 17. GOVERNING LAW...........................................20
SECTION 18. Further Assurances......................................20
SECTION 19. Successors and Assigns..................................20
SECTION 20. Maintain Rights in Effect...............................20
SECTION 21. Entire Agreement........................................20
SECTION 22. No Partnership..........................................20
EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Mortgage Loan Schedule Information
Exhibit 2 Schedule of Lost Notes
Exhibit 3 S&P LEVELS(R) Glossary, Version 5.6(c) Revised, Appendix E
Schedule A Mortgage Loan Schedule
MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of August 24, 2005,
as amended and supplemented by any and all amendments hereto (collectively, the
"Agreement"), by and between WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association (the "Seller"), and WACHOVIA MORTGAGE LOAN TRUST, LLC, a
Delaware limited liability company (the "Purchaser").
Upon the terms and subject to the conditions of this
Agreement, the Seller agrees to sell, and the Purchaser agrees to purchase,
certain conventional, adjustable rate, first lien mortgage loans secured
primarily by one- to four-family residential properties as described herein. The
Purchaser intends to sell the Mortgage Loans to U.S. Bank National Association,
as trustee under the Pooling and Servicing Agreement, dated as of August 24,
2005 (the "Pooling and Servicing Agreement"), among the Purchaser, as depositor,
the Seller, as certificate administrator, ▇▇▇▇▇ Fargo Bank, N.A. and National
City Mortgage Co., as servicers, and U.S. Bank National Association, as trustee.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties hereto agree as follows:
SECTION 1. Definitions. The following terms are defined as follows:
Agreement: The meaning set forth in the preambles hereto.
Closing Date: August 24, 2005.
Co-op Shares: Shares issued by private non-profit housing
corporations.
Custodian: The Custodian under the Pooling and Servicing
Agreement.
Cut-off Date: August 1, 2005.
Deleted Mortgage Loan: A Mortgage Loan replaced or to be
replaced by a Substitute Mortgage Loan.
Material Defect: The meaning set forth in Section 5(ii).
MERS: Mortgage Electronic Registration Systems, Inc.
Mortgage: The mortgage, deed of trust or instrument creating a
lien on an interest in Mortgaged Property securing a Mortgage Note or creating a
lien on a leasehold interest.
Mortgage File: The following documents:
(i) the original Mortgage Note, endorsed by manual or
facsimile signature either (A) in blank or (B) in the following form: "Pay to
the order of U.S. Bank, National Association, as Trustee, without recourse,"
with all necessary intervening endorsements showing a complete chain of
endorsement from the originator to the Trustee (each such endorsement being
sufficient to transfer all right, title and interest of the party so endorsing
in and to that Mortgage Note);
(ii) the original recorded Mortgage with evidence of a
recording thereon, or if any such Mortgage has not been returned from the
applicable recording office or has been lost, or if such public recording office
retains the original recorded Mortgage, a copy of such Mortgage certified by the
Seller as being a true and correct copy of the Mortgage, if such copy is
available;
(iii) a duly executed assignment of mortgage to "U.S. Bank,
National Association, as trustee for the holders of the Wachovia Mortgage Loan
Trust, LLC Mortgage Pass-Through Certificates, Series 2005-A Certificates"
(which may be included in a blanket assignment or assignments), together with,
except as provided below, originals of all interim recorded assignments of such
mortgage or copies of such interim assignments certified by the Seller as being
true and complete copies of the original recorded intervening assignments of
Mortgage (each such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of the related Mortgage
to the assignee thereof); provided that, if the related Mortgage has not been
returned from the applicable public recording office, such assignment of
mortgage may exclude the information to be provided by the recording office; and
provided, further, if the related Mortgage has been recorded in the name of MERS
or its designee, no assignment of mortgage in favor of the Trustee is required;
(iv) the originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of recording
thereon, if any;
(v) the original or duplicate original mortgagee title
insurance policy and all riders thereto;
(vi) the original of any guarantee executed in connection with
the Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the lease with evidence of recording
indicated thereon, or, if the lease is in the process of being recorded, a
photocopy of the lease, certified by an officer of the respective prior owner of
such Mortgage Loan or by the applicable title insurance company,
closing/settlement/escrow agent or company or closing attorney to be a true and
correct copy of the lease transmitted for recordation;
(viii) the original of any security agreement, chattel
mortgage or equivalent document executed in connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the
originals of the following documents or instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a complete and
unbroken line of assignments from the mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable for recordation).
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate of interest at which interest accrues on the principal balance of such
Mortgage Loan, as adjusted from time to time in accordance with the provisions
of the related Mortgage Note.
Mortgage Loans: The mortgage loans listed on the Mortgage
Loan Schedule.
Mortgage Loan Schedule: The list of Mortgage Loans, as from
time to time amended by the Seller to reflect the addition of Substitute
Mortgage Loans and the deletion of Deleted Mortgage Loans pursuant to the
provisions of this Agreement, attached hereto as Schedule A.
Mortgage Note: The originally executed note or other evidence
of indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage
Loan, together with all riders thereto and amendments thereof.
Mortgaged Property: The property securing a Mortgage Loan.
Mortgagor: The obligor on a Mortgage Note.
Opinion of Counsel: A written opinion of counsel,
who may be counsel for the Seller or the Purchaser, reasonably acceptable to
the Purchaser.
Person: Any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other organization or entity of any type, whether or not a legal
entity.
Pooling and Servicing Agreement: The meaning set forth in the
preambles hereto.
Prospectus Supplement: The supplement, dated August 22, 2005
to the Prospectus, dated July 21, 2005, relating to certain classes of the
certificates issued under the Pooling and Servicing Agreement.
Purchase Price: The meaning specified in Section 2(ii).
Purchaser: The meaning set forth in the preambles hereto.
Remittance Date: As to any Distribution Date (as such term is
defined in the Pooling and Servicing Agreement in effect as of the date hereof),
by 2:00 p.m. Eastern time on the second Business Day immediately preceding such
Distribution Date.
Repurchase Price: With respect to any Mortgage Loan (or any
property acquired with respect thereto) required to be purchased by the Seller
pursuant to this Agreement, an amount equal to the sum of (i)(a) the unpaid
principal balance of such Mortgage Loan as of the date of repurchase (or if the
related Mortgaged Property was acquired by the Purchaser or its assignee, the
unpaid principal balance at the date of the acquisition), plus (b) accrued but
unpaid interest on the principal balance at the related Mortgage Interest Rate
through and including the last day of the month of repurchase, and (ii) any
costs and damages incurred by the Purchaser in connection with a breach of the
representation contained in Section 7(iii) as a result of any violation of any
predatory or abusive lending law with respect to such Mortgage Loan.
Seller: The meaning set forth in the preambles hereto.
Servicer: The applicable Servicer under the Pooling and
Servicing Agreement.
Substitute Mortgage Loan: A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the provisions of this Agreement. Upon such
substitution, such mortgage loan shall be a "Mortgage Loan" hereunder.
Substitution Adjustment Amount: The meaning specified in
Section 5(v).
Transferred Property: The meaning specified in Section 2(i).
Trustee: The Trustee under the Pooling and Servicing Agreement.
SECTION 2. Purchase and Sale of the Mortgage Loans.
(i) The Seller does hereby sell, assign, set over, transfer, and otherwise
convey to the Purchaser on the Closing Date, without recourse (except as
expressly provided herein), all of its right, title and interest, in, to and
under the following: (A) the Mortgage Loans (including the related Mortgage Note
and Mortgage, all monies due or to become due on the Mortgage Loans (other than
payments of principal and interest due and payable on or before the Cut-off
Date), and all collections on the Mortgage Loans received after the Cut-off Date
(other than payments of principal and interest due and payable on or before the
Cut-off Date)); (B) any insurance policies in respect of the Mortgage Loans; and
(C) all proceeds of the foregoing (collectively, the "Transferred Property").
(ii) The purchase price (the "Purchase Price") for the Mortgage Loans and the
related Transferred Property to be paid by the Purchaser to the Seller on the
Closing Date shall be (A) a 0.01% Percentage Interest in the Class 1-A-R
Certificates (as such terms are defined in the Pooling and Servicing Agreement
in effect as of the date hereof) and (B) an amount equal to $444,199,615.26.
(iii) In consideration of the sale of the Mortgage Loans and the related
Transferred Property by the Seller to the Purchaser on the Closing Date, the
Purchaser shall pay to the Seller on the Closing Date by wire transfer of
immediately available funds to a bank account designated by the Seller, the
Purchase Price.
(iv) It is the express intent of the parties hereto that the transfer of the
Mortgage Loans by the Seller to the Purchaser pursuant to this Section 2 be, and
be construed as, an absolute sale of the Mortgage Loans by the Seller to the
Purchaser, including for accounting purposes, and not a secured borrowing. It
is, further, not the intention of the parties that such transfer be deemed the
grant of a security interest in the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to be the property of the Seller, or if for any other reason this Agreement
is held or deemed to create a security interest in the Mortgage Loans, then: (1)
this Agreement shall constitute a security agreement, and (2) the transfer of
the Mortgage Loans provided for in this Section 2 shall be deemed to be a grant
by the Seller to the Purchaser of, and the Seller hereby grants to the
Purchaser, to secure all of the Seller's obligations hereunder, a security
interest in all of the Seller's right, title, and interest, whether now owned or
hereafter acquired, in and to (i)-the Mortgage Loans, (ii) all accounts, chattel
paper, deposit accounts, documents, general intangibles, goods, instruments,
investment property, letter-of-credit rights, letters of credit, money, and oil,
gas, and other minerals, consisting of, arising from, or relating to, any of the
foregoing; and (iii) all proceeds of the foregoing.
(v) The Seller shall file such financing statements, and the Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such other
actions as may be necessary to ensure that, if this Agreement were found to
create a security interest in the Mortgage Loans, such security interest would
be a perfected security interest of first priority under applicable law and will
be maintained as such throughout the term of the Agreement. In connection
herewith, the Purchaser shall have all of the rights and remedies of a secured
party under the Uniform Commercial Code as in force in the relevant
jurisdiction.
(vi) Concurrently herewith, the Purchaser has contracted to sell the Mortgage
Loans and other Transferred Property to the Trustee pursuant to the Pooling and
Servicing Agreement. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording of multiple assignment
documents, the Seller may execute one or more assignments of mortgages in blank
or naming the Trustee as assignee, and may endorse the Mortgage Notes in blank
or to the Trustee. Notwithstanding the fact that such assignments of mortgages
name the Trustee as assignee and that Mortgage Notes are endorsed to the
Trustee, the parties hereto acknowledge and agree that the Mortgage Loans for
all purposes have been transferred from the Seller to the Purchaser and from the
Purchaser to the Trustee.
SECTION 3. Mortgage Loan Schedule. The initial Mortgage Loan Schedule shall be
prepared by the Seller and shall set forth the information listed on Exhibit 1
to this Agreement with respect to each of the Mortgage Loans being sold by the
Seller hereunder.
SECTION 4. Allocation of Payments; Mortgage Loan Files.
(i) The Purchaser will be entitled to all payments of principal and interest on
the Mortgage Loans due after the Cut-off Date, regardless of when actually
collected, and all collections in respect of the Mortgage Loans received after
the Cut-off Date, other than payments of principal and interest due and payable
on or before the Cut-off Date. The Seller will be entitled to all scheduled
payments of principal and interest on the Mortgage Loans due on or before the
Cut-off Date, including payments of such collected after the Cut-off Date. Such
principal and interest belonging to the Seller as described above will not be
included in the aggregate principal balance of the Mortgage Loans as of the
Cut-off Date as set forth on the initial Mortgage Loan Schedule.
(ii) In connection with the transfer and assignment of the Mortgage Loans, the
Seller shall deliver or cause to be delivered to the Custodian on behalf of the
Trustee as assignee of the Purchaser by the Closing Date, the documents required
to be included in each Mortgage File; provided, however, that in lieu of the
foregoing, the Seller may deliver the following documents, under the
circumstances set forth below: (x) in lieu of the original Mortgage, the
assignment to the Trustee of such Mortgage, or intervening assignments thereof,
which have been delivered, are being delivered or will, upon receipt of
recording information relating to the Mortgage required to be included thereon,
be delivered to recording offices for recording and have not been returned to
the Seller in time to permit their delivery as specified above, the Seller may
deliver a true copy thereof with a certification by the Seller, on the face of
such copy, substantially as follows: "Certified to be a true and correct copy of
the original, which has been transmitted for recording"; (y) in lieu of the
Mortgage, the assignment to the Trustee of such Mortgage, or intervening
assignments thereof, if the applicable jurisdiction retains the originals of
such documents (as evidenced by a certification from the Seller to such effect)
the Seller may deliver photocopies of such documents containing an original
certification by the recording office of the jurisdiction where such documents
were recorded; and (z) in lieu of the Mortgage Notes relating to the Mortgage
Loans, each identified in the list attached hereto as Exhibit 2, the Seller may
deliver lost note affidavits and indemnities of the Seller; and provided
further, however, that in the case of Mortgage Loans which have been prepaid in
full after the Cut-off Date and prior to the Closing Date, the Seller, in lieu
of delivering the above documents, may deliver to the Trustee and the Custodian
a certification by the Seller or the Servicer servicing such Mortgage Loan to
such effect. The Seller shall deliver such original documents (including any
original documents as to which certified copies had previously been delivered)
or such certified copies to the Custodian promptly after they are received. The
Seller shall cause the Mortgage and intervening assignments, if any, to be
recorded not later than 180 days after the Closing Date, unless such assignment
is not required to be recorded under the terms set forth in Section 6(i).
SECTION 5. Material Defects.
(i) On or before the Closing Date, the Seller shall make the Mortgage Files
available to the Purchaser or its agent for examination, which examination may
be at the offices of the Custodian or the Seller. The fact that the Purchaser or
its agent has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the Purchaser's rights to
demand cure, repurchase, substitution or other relief as provided in this
Agreement.
(ii) If any document is missing, has not been executed, is unrelated, determined
on the basis of the Mortgagor name, original principal balance and loan number,
to the Mortgage Loans identified in the Mortgage Loan Schedule (a "Material
Defect"), the Purchaser or its assignee shall promptly notify the Seller in
writing of such Material Defect. The Seller shall correct or cure any such
Material Defect within 90 days from the date of notice of the Material Defect
and if the Seller does not correct or cure such Material Defect within such
period and such defect materially and adversely affects the interests of the
Purchaser or its assignee in the related Mortgage Loan, the Seller will either
(a) substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in this Section 5 or (b) purchase such Mortgage Loan from the
Purchaser or its assignee at the Repurchase Price for such Mortgage Loan;
provided that, if such defect would cause the Mortgage Loan to be other than a
"qualified mortgage" as defined in Section 860G(a)(3) of the Internal Revenue
Code, any such cure, repurchase or substitution must occur within 90 days from
the date such breach was discovered; provided, further that if such defect
relates solely to the inability of the Seller to deliver the original Mortgage
or intervening assignments thereof, or a certified copy, because the originals
of such documents, or a certified copy, have not been returned by the applicable
recording office, the Seller shall not be required to purchase such Mortgage
Loan if the Seller delivers such original documents or certified copy promptly
upon receipt, but in no event later than 360 days after the Closing Date. The
foregoing repurchase or substitution obligation shall not apply in the event
that the Seller cannot deliver such original or copy of any document submitted
for recording to the appropriate recording office in the applicable jurisdiction
because such document has not been returned by such office; provided that the
Seller shall instead deliver a recording receipt of such recording office or, if
such receipt is not available, a certificate of the Seller or the applicable
Servicer confirming that such documents have been accepted for recording, and
delivery to the Trustee or the Custodian, as assignee of the Purchaser, shall be
effected by the Seller within thirty days of its receipt of the original
recorded document.
(iii) With respect to each Substitute Mortgage Loan, the Seller shall promptly
deliver to the Custodian, on behalf of the Trustee as assignee of the Purchaser,
the Mortgage Note, the Mortgage, and the other documents required to be included
in the related Mortgage File, with the Mortgage Note endorsed and the Mortgage
assigned as required by the definition of Mortgage File. Payments due with
respect to any such Substitute Mortgage Loan in the month of substitution shall
be retained by the Seller and not transferred to the Purchaser. For the month of
substitution, collections on the Mortgage Loans will include the scheduled
payment due for such month on any Deleted Mortgage Loan for which the Seller has
substituted a Substitute Mortgage Loan.
(iv) The Seller shall amend the Mortgage Loan Schedule to reflect the repurchase
or transfer to the Seller of each Mortgage Loan that has become a Deleted
Mortgage Loan and the substitution of the Substitute Mortgage Loans and the
Seller shall deliver the amended Mortgage Loan Schedule to the Purchaser, with a
copy to each of the Trustee and the Custodian. Upon such substitution, each
Substitute Mortgage Loan shall be subject to the terms of this agreement in all
respects, and the Seller shall be deemed to have made to the Purchaser with
respect to such Substitute Mortgage Loan, as of the date of substitution, the
representations and warranties set forth in Section-7. Upon any such
substitution and the payment to the Trustee as assignee of the Purchaser of the
Repurchase Price or of any required Substitution Adjustment Amount, the
Purchaser shall cause the Custodian to release the Mortgage File relating to
such Deleted Mortgage Loan to the Seller and the Purchaser and its assignees, as
applicable, shall execute and deliver at the Seller's direction such instruments
of transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to transfer to the Seller, or its designee, any Defective
Mortgage Loan substituted for or repurchased pursuant to this Section 5.
(v) For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the amount (if any) by
which the aggregate unpaid principal balance of all such 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 the principal
portion of the scheduled payments due in the month of substitution (the
"Substitution Adjustment Amount") shall be paid to the Trustee as assignee of
the Purchaser by the Seller on or before the Remittance Date in the month
succeeding the calendar month during which the related Mortgage Loan is required
to be purchased or replaced hereunder.
SECTION 6. Recordation of Assignments of Mortgages.
(i) The Seller shall, promptly after the Closing Date, cause each Mortgage
and each assignment of Mortgage from the Seller to the Trustee, and all
unrecorded intervening assignments, if any, delivered on or prior to the Closing
Date, to be recorded in the recording offices in the jurisdictions where the
related Mortgaged Properties are located; provided, however, the Seller need not
cause to be recorded any assignment which relates to a Mortgage Loan if (a) such
recordation is not required by the rating agencies rating the certificates
issued under the Pooling and Servicing Agreement or an Opinion of Counsel has
been provided to the Purchaser, the Trustee, and the Custodian which states that
the recordation of such assignment is not necessary to protect the interest of
the Purchaser or its assignee in the related Mortgage Loan or (b) MERS is
identified on the Mortgage or a properly recorded assignment of the Mortgage as
the mortgagee of record; provided, however, notwithstanding the delivery of any
Opinion of Counsel, any assignment of Mortgage that has not been recorded
pursuant to clause (a) shall be submitted for recording by the Seller in the
manner described above, at the Seller's expense, upon 60 days' written notice to
the Seller from the Purchaser or its assignee.
(ii) While each such Mortgage or assignment is being recorded, if
necessary, the Seller shall leave or cause to be left with the Custodian a
certified copy of such Mortgage or assignment. In the event that, within 180
days of the Closing Date, the Purchaser, the Trustee, and the Custodian have not
been provided an Opinion of Counsel as described in subsection (i) or received
evidence of recording with respect to each Mortgage Loan pursuant to the terms
hereof, the failure to provide evidence of recording or such Opinion of Counsel
(in the alternative, if required) shall be considered a Material Defect, and the
provisions of Section 5 shall apply. All customary recording fees and reasonable
expenses relating to the recordation of the assignments of mortgage to the
Trustee or the Opinion of Counsel, as the case may be, shall be borne by the
Seller.
SECTION 7. Representations and Warranties of Seller Concerning the Mortgage
Loans. The Seller hereby represents and warrants to the Purchaser as of the
Closing Date, or such other date prior thereto as may be specified below, with
respect to each Mortgage Loan:
(i) the information set forth in the Mortgage Loan Schedule hereto is true
and correct in all material respects and all information provided by the Seller
to the Purchaser regarding the Mortgage Loans, including the Mortgage Loan level
detail, is true and correct in all material respects;
(ii) immediately prior to the transfer to the Purchaser, the Seller was the
sole owner and holder of each Mortgage and Mortgage Note relating to the
Mortgage Loans and is conveying the same to the Purchaser free and clear of any
and all liens, claims, encumbrances, participation interests, equities, pledges,
charges or security interests of any nature and the Seller has full right and
authority to sell or assign the same pursuant to this Agreement;
(iii) each Mortgage Loan at the time it was made complied in all material
respects with all applicable laws and regulations, including, without
limitation, usury, equal credit opportunity, disclosure and recording laws and
all predatory lending laws; and each Mortgage Loan has been serviced in all
material respects in accordance with all applicable laws and regulations,
including, without limitation, usury, equal credit opportunity, disclosure and
recording laws and all predatory lending laws and the terms of the related
Mortgage Note, the Mortgage and other loan documents;
(iv) there is no monetary default existing under any Mortgage or the
related Mortgage Note and there is no material event which, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach or event of acceleration; and neither the Seller,
any of its affiliates nor any servicer of any related Mortgage Loan has taken
any action to waive any default, breach or event of acceleration; no foreclosure
action is threatened or has been commenced with respect to the Mortgage Loan;
(v) the terms of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by written instruments, (i)
if required by law in the jurisdiction where the Mortgaged Property is located,
or (ii) to protect the interests of the Purchaser or its assignees;
(vi) no selection procedure reasonably believed by the Seller to be adverse
to the interests of the Purchaser or its assignees was utilized in selecting the
Mortgage Loans;
(vii) each Mortgage is a valid and enforceable first lien on the property
securing the related Mortgage Note and each Mortgaged Property is owned by the
Mortgagor in fee simple (except with respect to common areas in the case of
condominiums, PUDs and de minimis PUDs) or by leasehold for a term longer than
the term of the related Mortgage, subject only to (i) the lien of current real
property taxes and assessments, (ii) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions being acceptable to mortgage lending
institutions generally or specifically reflected in the appraisal obtained in
connection with the origination of the related Mortgage Loan or referred to in
the lender's title insurance policy delivered to the originator of the related
Mortgage Loan and (iii)-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 such Mortgage, except as enforceability may be
limited by bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors and by general principles of equity, whether in a proceeding in equity
or at law;
(viii) there is no mechanics' lien or claim for work, labor or material
affecting the premises subject to any Mortgage which is or may be a lien prior
to, or equal with, the lien of such Mortgage except those which are insured
against by the title insurance policy referred to in (xiii) below;
(ix) as of the Cut-off Date, to the best of the Seller's knowledge, there
was no delinquent tax or assessment lien against the property subject to any
Mortgage, except where such lien was being contested in good faith and a stay
had been granted against levying on the property;
(x) there is no valid offset, defense or counterclaim to any Mortgage Note
or Mortgage, including the obligation of the Mortgagor to pay the unpaid
principal and interest on such Mortgage Note;
(xi) except to the extent insurance is in place which will cover such
damage, each Mortgaged Property is free of material damage and is in good repair
and there is no proceeding pending or threatened for the total or partial
condemnation of any Mortgaged Property;
(xii) to the best of the Seller's knowledge, the Mortgaged Property and all
improvements thereon comply with all requirements of any applicable zoning and
subdivision laws and ordinances;
(xiii) a lender's title insurance policy (on an ALTA or CLTA form) or
binder, or other assurance of title customary in the relevant jurisdiction
therefor in a form acceptable to ▇▇▇▇▇▇ ▇▇▇ or the Federal Home Loan Mortgage
Corporation, was issued on the date that each Mortgage Loan was originated by a
title insurance company which, to the best of the Seller's knowledge, was
qualified to do business in the jurisdiction where the related Mortgaged
Property is located, insuring the Seller and its successors and assigns that the
Mortgage is a first priority lien on the related Mortgaged Property in the
original principal amount of the Mortgage Loan. The Seller is the sole insured
under such lender's title insurance policy, and such policy, binder or assurance
is valid and remains in full force and effect, and each such policy, binder or
assurance shall contain all applicable endorsements including a negative
amortization endorsement, if applicable;
(xiv) at the time of origination, each Mortgaged Property was the subject
of an appraisal which conformed to the underwriting requirements of the
originator of the Mortgage Loan;
(xv) as of the Closing Date, the improvements on each Mortgaged Property
securing a Mortgage Loan are insured (by an insurer which is acceptable to the
Seller) against loss by fire and such hazards as are covered under a standard
extended coverage endorsement in the locale in which the Mortgaged Property is
located, in an amount which is not less than the lesser of the maximum insurable
value of the improvements securing such Mortgage Loan or the Stated Principal
Balance of the Mortgage Loan, but in no event in an amount less than an amount
that is required to prevent the Mortgagor from being deemed to be a co-insurer
thereunder; if the improvement on the Mortgaged Property is a condominium unit,
it is included under the coverage afforded by a blanket policy for the
condominium project; if upon origination of the related Mortgage Loan, the
improvements on the Mortgaged Property were in an area identified as a federally
designated flood area, a flood insurance policy is in effect in an amount
representing coverage not less than the least of (i) the unpaid principal
balance of the Mortgage Loan, (ii) the restorable cost of improvements located
on such Mortgaged Property or (iii) the maximum coverage available under federal
law; and each Mortgage obligates the Mortgagor thereunder to maintain the
insurance referred to above at the Mortgagor's cost and expense;
(xvi) each Mortgage Loan constitutes a "qualified mortgage" under Section
860G(a)(3)(A) of the Internal Revenue Code and Treasury Regulation Section
1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the
provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation
Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan
to be treated as a "qualified mortgage" notwithstanding its failure to meet the
requirements of Section 860G(a)(3)(A) of the Internal Revenue Code and Treasury
Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9);
(xvii) each Mortgage Loan was originated or funded by (a) a savings and
loan association, savings bank, commercial bank, credit union, insurance company
or similar institution which is supervised and examined by a federal or state
authority (or originated by (i) a subsidiary of any of the foregoing
institutions which subsidiary is actually supervised and examined by applicable
regulatory authorities or (ii) a mortgage loan correspondent of any of the
foregoing and that was originated pursuant to the criteria established by any of
the foregoing) or (b) a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act, as
amended;
(xviii) none of the Mortgage Loans are (a) loans subject to 12 CFR Section
226.31, 12 CFR Section 226.32 or 12 CFR Section 226.34, as amended, or (b) "high
cost home," "covered" (excluding home loans defined as "covered home loans" in
the New Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home" or "predatory" loans under
any applicable state, federal or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees);
(xix) no Mortgage Loan (a) is a "high cost loan" or "covered loan" as
applicable (as such terms are defined in S&P LEVELS(R) Glossary, Version 5.6(c)
Revised as of August 1, 2005, Appendix E, attached hereto as Exhibit 3, or, with
respect to a Substitute Mortgage Loan, as such terms are defined in the version
of the S&P LEVELS(R) Glossary in effect at the time such Mortgage Loan becomes a
Substitute Mortgage Loan) or (b) was originated on or after October 1, 2002
through March 6, 2003 and is governed by the Georgia Fair Lending Act;
(xx) the information set forth in Annex I of the Prospectus Supplement with
respect to the Mortgage Loans is true and correct in all material respects;
(xxi) each Mortgage Loan was originated in accordance with the underwriting
guidelines of the related originator;
(xxii) each original Mortgage has been recorded or is in the process of
being recorded in accordance with the requirements of this Agreement in the
jurisdiction where the related Mortgaged Property is located;
(xxiii) the related Mortgage File contains each of the documents and
instruments listed in the definition thereof, subject to any exceptions,
substitutions and qualifications as are set forth in this Agreement;
(xxiv) the Mortgage Loans are currently being serviced in accordance with
accepted servicing practices;
(xxv) at the time of origination, each Mortgaged Property was the subject
of an appraisal which conformed to the underwriting requirements of the
originator of the Mortgage Loan, and the appraisal is in a form which was
acceptable to ▇▇▇▇▇▇ Mae or the Federal Home Loan Mortgage Corporation at the
time of origination; and
(xxvi) none of the Mortgage Loans that are secured by property located in
the State of Illinois are in violation of the provisions of the Illinois
Interest Act.
It is understood and agreed that the representations and warranties set
forth in this Section 7 will inure to the benefit of the Purchaser and its
successors and assigns, notwithstanding any restrictive or qualified endorsement
on any Mortgage Note or assignment of Mortgage or the examination of any
Mortgage File. Upon any substitution for a Mortgage Loan, the representations
and warranties set forth above shall be deemed to be made by the Seller as to
any Substitute Mortgage Loan as of the date of substitution.
Upon discovery by the Seller or upon notice to the Seller from the
Purchaser, the Trustee, or a Servicer of a breach of the Seller's respective
representations or warranties set forth in Section 7 that materially and
adversely affects the interests of the Purchaser or its assignees in any
Mortgage Loan, the Seller shall, within 90 days from the earlier of the date of
discovery by the Seller of such breach and the date the Seller receives written
notice of such breach, (i) cure such breach in all material respects, (ii)
purchase the affected Mortgage Loan at the applicable Repurchase Price or (iii)
if within two years of the Closing Date, substitute a qualifying Substitute
Mortgage Loan in exchange for such Mortgage Loan. The obligations of the Seller
to cure, purchase or substitute a qualifying Substitute Mortgage Loan shall
constitute the sole and exclusive remedies of the Purchaser or its assignees
respecting a breach of representations or warranties hereunder with respect to
the Mortgage Loans. A breach of the representations and warranties made in any
of clause (xviii) or (xix)(b) of this Section 7 will be deemed to materially and
adversely affect the value of the interests of the Purchaser or its assignees in
the related Mortgage Loan. Any repurchase or substitution required pursuant to
this Section 7 shall be carried out in accordance with the requirements of
Section 5.
Any cause of action against the Seller relating to or arising out of a
breach by the Seller of any representations and warranties made in this Section
7 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the
Seller or written notice thereof by the party discovering such breach and (ii)
failure by the Seller to cure such breach, purchase such Mortgage Loan or
substitute a qualifying Substitute Mortgage Loan pursuant to the terms hereof.
SECTION 8. Representations and Warranties Concerning the Seller. As of the
Closing Date, the Sellerrepresents and warrants to the Purchaser as follows:
(i) The Seller is a national banking association duly organized and validly
existing under the laws of the United States of America and is in compliance
with the laws of each state in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan;
(ii) The Seller has the power and authority to make, execute, deliver and
perform its obligations under this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement;
(iii) The Seller is not required to obtain the consent of any other Person
or any consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or authorizations, or
registrations or declarations, as shall have been obtained or filed, as the case
may be;
(iv) The execution and delivery of this Agreement by the Seller and its
performance and compliance with the terms of this Agreement will not violate the
Seller's Articles of Association or Bylaws or constitute a material default (or
an event which, with notice or lapse of time, or both, would constitute a
material default) under, or result in the material breach of, any material
contract, agreement or other instrument to which the Seller is a party or which
is applicable to the Seller or any of its assets;
(v) There are no actions, suits, proceedings or investigations before any
court, tribunal, administrative agency, arbitrator or governmental body pending
or, to the best of the Seller's knowledge, threatened, against the Seller, that,
if decided adversely, would materially and adversely affect (A) the condition
(financial or otherwise), business or operations of the Seller, (B) the ability
of the Seller to perform its obligations under, or the validity or
enforceability of, this Agreement or the Pooling and Servicing Agreement or (C)
the transactions contemplated by this Agreement;
(vi) This Agreement constitutes a legal, valid and binding obligation of
the Seller, enforceable against the Seller in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights in general, and by general equity principles, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
(vii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of the Seller in and to the Mortgage
Loans and the other Transferred Property, and nothing has been done by the
Seller to impair the rights of the Purchaser or its assignees with respect
thereto;
(viii) The Seller is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, or municipal
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or otherwise) or operations of the
Seller or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
(ix) The information in the Prospectus Supplement described in the Sections
entitled "SUMMARY OF TERMS -- The Mortgage Pool," " THE MORTGAGE POOL" and
"ANNEX I -- MORTGAGE POOL DATA" does not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
SECTION 9. Representations and Warranties Concerning the Purchaser. As of
the Closing Date, the Purchaser represents and warrants to the Seller as
follows:
(i) The Purchaser (i) is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and (ii) is qualified and in good standing as a foreign corporation in each
jurisdiction where such qualification is necessary, except where the failure so
to qualify would not reasonably be expected to have a material adverse effect on
the Purchaser's business as presently conducted or on the Purchaser's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(ii) The Purchaser has full corporate power to own its property, to carry
on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) The execution and delivery by the Purchaser of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Purchaser; and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions herein
contemplated, nor compliance by the Purchaser with the provisions hereof, will
conflict with or result in a breach of, or constitute a default under, any of
the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Purchaser or its properties or the articles of
incorporation or by-laws of the Purchaser, except those conflicts, breaches or
defaults which would not reasonably be expected to have a material adverse
effect on the Purchaser's ability to enter into this Agreement and to consummate
the transactions contemplated hereby;
(iv) The execution, delivery and performance by the Purchaser of this
Agreement and the consummation by the Purchaser of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except those consents,
approvals, notices, registrations or other actions as have already been
obtained, given or made;
(v) This Agreement has been duly executed and delivered by the Purchaser
and, assuming due authorization, execution and delivery by the Seller,
constitutes a valid and binding obligation of the Purchaser enforceable against
it in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights in general, and by general equity
principles, regardless of whether such enforceability is considered in a
proceeding in equity or at law; and
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Purchaser, threatened, against the Purchaser, before or by any
court, administrative agency, arbitrator or governmental body (i) with respect
to any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter which in the judgment of the Purchaser will be determined
adversely to the Purchaser and will if determined adversely to the Purchaser
materially and adversely affect the Purchaser's ability to perform its
obligations under this Agreement; and the Purchaser is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement.
SECTION 10. Conditions to Closing.
(1) The obligations of the Purchaser under this Agreement will be subject
to the satisfaction, on or prior to the Closing Date, of the following
conditions:
(a) Each of the obligations of the Seller required to be performed at
or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of
the representations and warranties of the Seller under this Agreement shall
be true and correct as of the dates specified in all material respects; no
event shall have occurred which, with notice or the passage of time, would
constitute a default under this Agreement; and the Purchaser shall have
received a certificate to that effect signed by an authorized officer of
the Seller.
(b) The Purchaser shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to
the Purchaser, duly executed by all signatories other than the Purchaser as
required pursuant to the respective terms thereof:
(i) A certificate of an officer of the Seller dated as of the
Closing Date, in a form reasonably acceptable to the Purchaser, and
attached thereto copies of the charter and by-laws of the Seller and
evidence as to the good standing of the Seller dated as of a recent
date; and
(ii) One or more opinions of counsel from the Seller's counsel in
form and substance reasonably satisfactory to the Purchaser.
(c) The certificates to be issued under the Pooling and Servicing
Agreement and sold to Wachovia Capital Markets shall have been issued and
sold to Wachovia Capital Markets.
(d) The Seller shall have furnished to the Purchaser such other
certificates of its officers or others and such other documents and
opinions of counsel to evidence fulfillment of the conditions set forth in
this Agreement and the transactions contemplated hereby as the Purchaser
and its counsel may reasonably request.
(2) The obligations of the Seller under this Agreement shall be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
(a) The obligations of the Purchaser required to be performed by it on
or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects, and
all of the representations and warranties of the Purchaser under this
Agreement shall be true and correct in all material respects as of the date
hereof, and no event shall have occurred which would constitute a breach by
it of the terms of this Agreement, and the Seller shall have received a
certificate to that effect signed by an authorized officer of the
Purchaser.
(b) The Seller shall have received copies of all of the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to the Seller, duly executed by all signatories other than the
Seller as required pursuant to the respective terms thereof:
(i) A certificate of an officer of the Purchaser dated as of the
Closing Date, in a form reasonably acceptable to the Seller, and
attached thereto copies of the Purchaser's articles of incorporation
and by-laws, and evidence as to the good standing of the Purchaser
dated as of a recent date; and
(ii) One or more opinions of counsel from the Purchaser's counsel
in form and substance reasonably satisfactory to the Seller.
SECTION 11. Notices. All demands, notices and communications hereunder
shall be in writing but may be delivered by facsimile transmission subsequently
confirmed in writing. Notices to the Seller shall be directed to [address], and
notices to the Purchaser shall be directed to [address]; or to any other address
as may hereafter be furnished by one party to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have been
received on the date received at the premises of the addressee (as evidenced, in
the case of registered or certified mail, by the date noted on the return
receipt) provided that it is received on a business day during normal business
hours and, if received after normal business hours, then it shall be deemed to
be received on the next business day.
SECTION 12. Assignment by Purchaser. As an inducement to the Purchaser to
purchase the Mortgage Loans, the Seller acknowledges and consents to the
Purchaser's transfer of its interest in this Agreement to the Trustee pursuant
to the Pooling and Servicing Agreement and the enforcement by the Trustee of any
right or remedy against the Seller pursuant to this Agreement. Such enforcement
of a right or remedy by the Trustee shall have the same force and effect as if
the right or remedy had been enforced or exercised by the Purchaser directly.
Notwithstanding the foregoing, the sole and exclusive right and remedy of the
Trustee with respect to a breach of a representation or warranty of the Seller
shall be the cure, purchase or substitution obligations of the Seller contained
in Sections 5 and 7 hereof.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Seller submitted pursuant hereto,
shall remain operative and in full force and effect and shall survive the sale
of the Mortgage Loans to the Purchaser and the transfer of the Mortgage Loans by
the Purchaser to the Trustee.
SECTION 14. Severability. If any provision of this Agreement shall be
prohibited or invalid under applicable law, this Agreement shall be ineffective
only to such extent, without invalidating the remainder of this Agreement.
SECTION 15. Counterparts. This Agreement may be executed in counterparts,
each of which will be an original, but which together shall constitute one and
the same agreement.
SECTION 16. Amendment. This Agreement cannot be amended or modified in any
manner without the prior written consent of each party.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
APPLICATION OF THE CONFLICTS OF LAWS PROVISIONS THEREOF, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
SECTION 18. Further Assurances. Each of the parties agrees to execute and
deliver such instruments and take such actions as another party may, from time
to time, reasonably request in order to effectuate the purpose and to carry out
the terms of this Agreement.
SECTION 19. Successors and Assigns. This Agreement shall bind and inure to
the benefit of and be enforceable by the Seller and the Purchaser and their
permitted successors and assigns. The Seller acknowledges and agrees that the
Purchaser may assign its rights under this Agreement to the Trustee as provided
in Section 12. Any person into which the Seller may be merged or consolidated,
any person resulting from any merger or consolidation involving the Seller, any
person resulting from a change in form of the Seller or any person succeeding to
the business of the Seller, shall be considered the "successor" of the Seller
hereunder and shall be considered a party hereto without the execution or filing
of any paper or any further act or consent on the part of any party hereto.
Except as provided in this Section and in Section 12 hereto, this Agreement
cannot be assigned by either party hereto without the written consent of the
other parties to this Agreement.
SECTION 20. Maintain Rights in Effect. The Seller and the Purchaser will
each keep in full effect all rights with respect to itself as are necessary to
perform its respective obligations under this Agreement.
SECTION 21. Entire Agreement. This Agreement contains the entire agreement
and understanding between the parties with respect to the subject matter hereof,
and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof.
SECTION 22. No Partnership. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
WACHOVIA MORTGAGE LOAN TRUST, LLC
By:
------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
Title:
EXHIBIT 1
MORTGAGE LOAN SCHEDULE INFORMATION
The Mortgage Loan Schedule shall set forth the following information
with respect to each Mortgage Loan:
(a) the loan number;
(b) the Mortgagor's name;
(c) the city, state and zip code of the Mortgaged Property;
(d) the property type;
(e) the Mortgage Interest Rate;
(f) the servicing fee rate;
(g) the net mortgage interest rate;
(h) the original term;
(i) the maturity date;
(j) the stated remaining term to maturity;
(k) the original principal balance;
(1) the first payment date;
(m) the principal and interest payment in effect as of the Cut-off Date;
(n) the unpaid principal balance as of the Cut-off Date;
(o) the loan-to-value ratio at origination;
(p) the paid-through date;
(q) the insurer of any primary mortgage insurance policy;
(r) the gross margin;
(s) the maximum Mortgage Interest Rate;
(t) the minimum Mortgage Interest Rate;
(u) the periodic rate cap;
(v) the number of days delinquent, if any; and
(w) the term for which the Mortgage Interest Rate is fixed.
Such schedule also shall set forth for all of the Mortgage Loans, the total
number of Mortgage Loans, the total of each of the amounts described under (k)
and (n) above, the weighted average by principal balance as of the Cut-off Date
of each of the rates described under (e), (f) and (g) above, and the weighted
average remaining term to maturity by unpaid principal balance as of the Cut-off
Date.
EXHIBIT 2
SCHEDULE OF LOST NOTES
EXHIBIT 3
S&P LEVELS(R) Glossary, Version 5.6(c) Revised, Appendix E
REVISED August 1, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇ - S&P Anti-Predatory Lending Categorization
S&P has categorized loans governed by anti-predatory lending laws in the
Jurisdictions listed below into three categories based upon a combination of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note that
certain loans classified by the relevant statute as Covered are included in S&P
High Cost Loan Category because they included thresholds and tests that are
typical of what is generally considered High Cost by the industry.
S&P High Cost Loan Categorization
--------------------------------------------------------------------------------
---------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection High Cost Home Loan
Act, Ark. Code ▇▇▇. ▇▇.▇▇. ▇▇-▇▇-▇▇▇
et seq.
-- ---
Effective July 16, 2003
--------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code ▇▇.▇▇. 757.01 et seq.
-- ---
Effective June 2, 2003
--------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. ▇▇▇. ▇▇.▇▇. 5-3.5-101 et seq.
-- ---
Effective for covered loans offered or entered into on or
after January 1, 2003. Other provisions of the Act took
effect on June 7, 2002
--------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn. Gen.
Stat. ▇▇.▇▇. 36a-746 et seq.
Effective October 1, 2001
--------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Covered Loan
Code ▇▇.▇▇. 26-1151.01 et seq.
-- ---
Effective for loans closed on or
after January 28, 2003
--------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. ▇▇▇. High Cost Home Loan
▇▇.▇▇. 494.0078 et seq.
-- ---
Effective October 2, 2002
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. High Cost Home Loan
- Mar. 6, 2003) Code ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
-- ---
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
Georgia as amended Georgia Fair Lending Act, Ga. High Cost Home Loan
(Mar. 7, 2003 - Code ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
-- ---
current)
Effective for loans closed on or
after March 7, 2003
--------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity High Cost Loan
Protection Act of 1994, 15 U.S.C.
ss. 1639, 12 C.F.R. ▇▇.▇▇. 226.32 and
226.34
Effective October 1, 1995,
amendments October 1, 2002
--------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. High Risk Home Loan
Comp. Stat. tit. 815, ▇▇.▇▇. 137/5 et seq.
Effective January 1, 2004 (prior to this date,
regulations under Residential Mortgage License Act
effective from May 14, 2001)
--------------------------------------------------------------------------------
Indiana Indiana Home Loan Practices Act, High Cost Home Loan
Ind. Code ▇▇▇. ▇▇.▇▇. 24-9-1-1 et
--
seq.
Effective for loans originated on or after January 1,
2005.
--------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. High Loan to Value
▇▇▇. ▇▇.▇▇. 16a-1-101 et seq. Consumer Loan (id. ss.
-- --- ---
16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 became effective April
14, 1999; Section 16a-3-308a became effective July 1,
1999
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
High APR Consumer
Loan (id. ss.
---
16a-3-308a)
--------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. ▇▇.▇▇.
360.100 et seq.
-- ---
Effective June 24, 2003
--------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. High Rate High Fee
tit. 9-A, ▇▇.▇▇. 8-101 et seq. Mortgage
-- ---
Effective September 29, 1995 and
as amended from time to time
--------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. High Cost Home Loan
▇▇.▇▇. 32.00 et seq. and 209 C.M.R.
-- ---
▇▇.▇▇. 40.01 et seq.
-- ---
Effective March 22, 2001 and
amended from time to time
--------------------------------------------------------------------------------
Massachusetts Predatory Home Loan High Cost Home
Practices Act Mortgage Loan
Mass. Gen. Laws ch. 183C, ▇▇.▇▇. 1 et seq.
Effective November 7, 2004
--------------------------------------------------------------------------------
Nevada Assembly ▇▇▇▇ No. 284, Nev. Rev. Home Loan
Stat. ▇▇.▇▇. 598D.010 et seq.
Effective October 1, 2003
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership High Cost Home Loan
Security Act of 2002, N.J. Rev.
Stat. ▇▇.▇▇. 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. High Cost Home Loan
Rev. Stat. ▇▇.▇▇. 58-21A-1 et seq.
-- ---
Effective as of January 1, 2004;
Revised as of February 26, 2004
--------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-l High Cost Home Loan
Effective for applications made
on or after April 1, 2003
--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Loan
High Cost Home Loans, N.C. Gen.
Stat. ▇▇.▇▇. 24-1.1E et seq.
Effective July 1, 2000; amended October 1, 2003 (adding
open-end lines of credit)
--------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code), Ohio
Rev. Code ▇▇▇. ▇▇.▇▇. 1349.25 et seq.
-- ---
Effective May 24, 2002
--------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in Subsection 10
various sections of Title 14A) Mortgage
Effective July 1, 2000; amended
effective January 1, 2004
--------------------------------------------------------------------------------
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C.
Code ▇▇▇. ▇▇.▇▇. 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
--------------------------------------------------------------------------------
West Virginia West Virginia Residential West Virginia
Mortgage Lender, Broker and Mortgage Loan Act
Servicer Act, W. Va. Code ▇▇▇. ▇▇.▇▇. Loan
31-17-1 et seq.
-- ---
Effective June 5, 2002
--------------------------------------------------------------------------------
S&P Covered Loan Categorization
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State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
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Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Covered Loan
- Mar. 6, 2003) Code ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
-- ---
Effective October 1, 2002 - March
6, 2003
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New Jersey New Jersey Home Ownership Covered Home Loan
Security Act of 2002, N.J. Rev.
Stat. ▇▇.▇▇. 46:10B-22 et seq.
Effective November 27, 2003 -
July 5, 2004
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S&P Home Loan Categorization
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State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Home Loan
- Mar. 6, 2003) Code ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
-- ---
Effective October 1, 2002 - March
6, 2003
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New Jersey New Jersey Home Ownership Home Loan
Security Act of 2002, N.J. Rev.
Stat. ▇▇.▇▇. 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
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New Mexico Home Loan Protection Act, N.M. Home Loan
Rev. Stat. ▇▇.▇▇. 58-21A-1 et seq.
-- ---
Effective as of January 1, 2004;
Revised as of February 26, 2004
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North Carolina Restrictions and Limitations on Consumer Home Loan
High Cost Home Loans, N.C. Gen.
Stat. ▇▇.▇▇. 24-1.1E et seq.
Effective July 1, 2000; amended October 1, 2003 (adding
open-end lines of credit)
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South Carolina South Carolina High Cost and Consumer Home Loan
Consumer Home Loans Act, S.C.
Code ▇▇▇. ▇▇.▇▇. 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
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SCHEDULE A
MORTGAGE LOAN SCHEDULE
