EXHIBIT 4.3
WACHOVIA MORTGAGE LOAN TRUST, LLC,
as Purchaser,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller and Servicer,
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of ______ __, 200_
TABLE OF CONTENTS
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions...................................................1
Section 1.2 Other Definitional Provisions.................................2
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Mortgage Loans........................................2
Section 2.2 Sale of Subsequent Mortgage Loans.............................5
Section 2.3 Payment of Purchase Price.....................................7
Section 2.4 Allocation....................................................8
Section 2.5 Draws During the Rapid Amortization Period....................8
Section 2.6 Security Interest.............................................8
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1 Representations and Warranties of the Seller..................9
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller......................................17
ARTICLE V
[RESERVED]
ARTICLE VI
LIMITATION OF LIABILITY
Section 6.1 Limitation on Liability of the Seller........................18
ARTICLE VII
TERMINATION
Section 7.1 Termination..................................................18
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment....................................................18
Section 8.2 GOVERNING LAW................................................18
Section 8.3 Notices......................................................19
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TABLE OF CONTENTS
(continued)
Page
Section 8.4 Severability of
Provisions...................................................20
Section 8.5 Relationship of
Parties......................................................20
Section 8.6
Counterparts.................................................20
Section 8.7 Further
Agreements...................................................20
Section 8.8 Intention of the
Parties......................................................20
Section 8.9 Successors and Assigns; Assignment of this
Agreement....................................................21
Section 8.10
Survival.....................................................21
Section 8.11 Third-Party
Beneficiary..................................................21
EXHIBIT 1 MORTGAGE LOAN SCHEDULE......................................1-1
EXHIBIT 2 FORM OF SUBSEQUENT TRANSFER AGREEMENT.......................2-1
EXHIBIT 3 FORM OF ADDITION NOTICE.....................................3-1
EXHIBIT 4 FORM OF INITIAL CERTIFICATION...............................4-1
EXHIBIT 5 FORM OF FINAL CERTIFICATION.................................5-1
EXHIBIT 6 Standard & Poor's LEVELS(R) Glossary, Version 5.6 Revised,
Appendix E..................................................6-1
-ii-
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as of ______ __, 200_, is made by and between Wachovia Bank, National
Association, as seller (in such capacity, the "Seller") and as servicer (in
such capacity, the "Servicer"), and Wachovia Mortgage Loan Trust, LLC, as
purchaser (the "Purchaser" or the "Depositor").
WITNESSETH:
WHEREAS, the Seller, in the ordinary course of its business
acquires and originates mortgage loans and acquired or originated all of the
mortgage loans listed on the Mortgage Loan Schedule attached as Exhibit 1
hereto (the "Initial Mortgage Loans");
WHEREAS, the Seller owns the Initial Mortgage Loans, the Cut-Off
Date Principal Balances and the Related Documents for the Initial Mortgage
Loans, including rights to (a) any property acquired by foreclosure or deed
in lieu of foreclosure or otherwise, and (b) the proceeds of any insurance
policies covering the Initial Mortgage Loans;
WHEREAS, the parties hereto desire that: (i) the Seller sell the
Cut-Off Date Principal Balances of the Initial Mortgage Loans to the
Purchaser on the Closing Date pursuant to the terms of this Agreement
together with the Related Documents, and all Additional Balances relating to
the Initial Mortgage Loans created on or after the Cut-Off Date and prior to
the Rapid Amortization Period, (ii) the Seller may sell the applicable
Cut-Off Date Principal Balances of the Subsequent Mortgage Loans to the
Purchaser on one or more Subsequent Transfer Dates pursuant to the terms of
the related Subsequent Transfer Agreement and all Additional Balances
relating to the Subsequent Mortgage Loans created on or after the applicable
Subsequent Cut-Off Date and prior to the Rapid Amortization Period and (iii)
the Seller make certain representations and warranties on the Closing Date
and on each Subsequent Transfer Date as applicable;
WHEREAS, pursuant to the terms of the Trust Agreement and the
applicable Subsequent Transfer Agreement, the Depositor will transfer the
Mortgage Loans and other Transferred Property to the Issuer and the Issuer
will issue the Certificates;
WHEREAS, pursuant to the terms of the Servicing Agreement, the
Servicer will service the Mortgage Loans;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will
issue the Notes, secured by the Trust Estate;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1.Definitions. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the definitions contained in Appendix A to the
indenture dated as of ______ __, 200_ (the "Indenture"), among Wachovia
Mortgage Loan Trust, LLC [______] Trust, a Delaware statutory trust (the
"Issuer"), [____________], a national banking association, as indenture
trustee (the "Indenture Trustee") and Wachovia Bank, National Association, as
paying agent (the "Paying Agent"), which is incorporated by reference
herein. All other capitalized terms used herein shall have the meanings
specified herein.
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Section 1.2.Other Definitional Provisions. All terms defined in this
Agreement (including those incorporated by reference) shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate
or other document, to the extent not defined, shall have the respective
meanings given to them under GAAP. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other
document are inconsistent with the meanings of such terms under GAAP, the
definitions contained in this Agreement or in any such certificate or other
document shall control.
The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; the term
"including" shall mean "including without limitation"; "or" shall include
"and/or"; and the term "proceeds" shall have the meaning ascribed thereto in
the UCC.
The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 0.0.Xxxx of Mortgage Loans.
(a) The Seller, by the execution and delivery of this Agreement, does
hereby sell, transfer, assign, set over, and otherwise convey to the
Purchaser, without recourse (except as expressly provided herein), all of its
right, title and interest, whether now owned or existing or hereafter
created, arising, or acquired, in, to and under the Initial Transferred
Property; provided, however, that the Purchaser does not assume the
obligation under any Loan Agreement to fund Draws by the Mortgagor thereunder
or any other obligation arising under or related to the Related Documents,
and the Purchaser shall not be obligated or permitted to fund any such Draws,
it being agreed that the Seller will retain the obligation to fund future
Draws.
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(b) The Initial Mortgage Loans, including the Cut-Off Date Principal
Balances of such Initial Mortgage Loans, and all other related Initial
Transferred Property, shall be sold by the Seller and purchased by the
Purchaser on the Closing Date. The Subsequent Mortgage Loans, including the
Cut-Off Date Principal Balances of such Subsequent Mortgage Loans, and all
other related Subsequent Transferred Property, shall be sold by the Seller
and purchased by the Purchaser on the related Subsequent Transfer Date.
Additional Balances and the related Transferred Property arising after the
Cut-Off Date or related Subsequent Cut-Off Date, as applicable, through and
including the date immediately preceding the commencement of the Rapid
Amortization Period shall be sold by the Seller and purchased by the
Purchaser on the later of the Closing Date (or with respect to Subsequent
Mortgage Loans, the applicable Subsequent Transfer Date) and the date of
creation of such Additional Balance.
(c) In connection with the conveyance by the Seller of the Initial Mortgage
Loans and any Subsequent Mortgage Loans, the Seller further agrees, at its
own expense, on or prior to the Closing Date with respect to the Cut-Off Date
Principal Balances of the Initial Mortgage Loans and on or prior to the
related Subsequent Cut-Off Date in the case of any Subsequent Mortgage Loans,
to indicate in its books and records that the Initial Mortgage Loans have
been sold to the Purchaser pursuant to this Agreement, and, in the case of
the Subsequent Mortgage Loans, pursuant to the related Subsequent Transfer
Agreement and to deliver to the Purchaser true and complete lists of all of
the Mortgage Loans specifying for each Mortgage Loan the information
contained in the Mortgage Loan Schedule. The Mortgage Loan Schedule shall be
marked as Exhibit 1 to this Agreement and is hereby incorporated into and
made a part of this Agreement.
(d) In connection with the conveyance by the Seller of the Initial Mortgage
Loans and any Subsequent Mortgage Loans, the Seller shall on behalf of the
Purchaser deliver to and deposit with the Servicer prior to the Closing Date,
in the case of an Initial Mortgage Loan, and prior to the related Subsequent
Transfer Date, in the case of a Subsequent Mortgage Loan, with respect to (i)
below, or within 90 days of the Closing Date in the case of an Initial
Mortgage Loan, and, 90 days of the related Subsequent Transfer Date, in the
case of a Subsequent Mortgage Loan, with respect to (ii) through (v) below,
the following documents or instruments with respect to each Mortgage Loan:
(i) the original Loan Agreement endorsed or assigned without recourse in
blank (which endorsement shall contain either an original signature or a
facsimile signature of an authorized officer of the Seller and which
assignment may be included in one or more blanket assignments if permitted by
applicable law) or, with respect to any Mortgage Loan as to which the
original Loan Agreement has been permanently lost or destroyed and has not
been replaced, a Lost Note Affidavit; provided that any such endorsement or
assignment may be completed after the Closing Date or Subsequent Transfer
Date, as applicable, so long as such endorsement or assignment is completed
prior to the earlier of (A) 90 days after the Closing Date or Subsequent
Transfer Date, as applicable, and (B) the date on which the Servicer is
required to prepare the Assignments of Mortgage pursuant to Section 3.17 of
the Servicing Agreement;
(ii) the original Mortgage with evidence of recording thereon, or, if the
original Mortgage has not yet been returned from the public recording office,
a copy of the original Mortgage certified by the Seller that such Mortgage
has been sent for recording, or a county certified copy of such Mortgage in
the event the recording office keeps the original or if the original is lost;
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(iii) originals of any intervening assignments of the Mortgage from the
originator to the Seller, with evidence of recording thereon, or, if the
original of any such intervening assignment has not yet been returned from
the public recording office, a copy of such original intervening assignment
certified by the Seller that such original intervening assignment has been
sent for recording; and
(iv) a true and correct copy of each assumption, modification, consolidation
or substitution agreement, if any, relating to such Mortgage Loan;
Within 90 days following delivery of the Mortgage Files to the
Servicer pursuant to the preceding paragraph, the Servicer shall review the
Mortgage Files and deliver to the Indenture Trustee and the Enhancer an
initial certification in the form attached hereto as Exhibit 4 evidencing the
status of the completeness of the Mortgage Files. If, in the course of such
review, a material defect in any Mortgage File is discovered which may
materially and adversely affect the value of the related Mortgage Loan, or
the interests of the Indenture Trustee (as pledgee of the Mortgage Loans),
the Noteholders, the Enhancer or the Certificateholders, including the
Seller's failure to deliver any document required to be delivered to the
Servicer on behalf of the Indenture Trustee, the Seller shall cure such
defect, repurchase the related Mortgage Loan at the Repurchase Price or
substitute an Eligible Substitute Loan therefor upon the same terms and
conditions set forth in Section 3.1 hereof for breaches of representations
and warranties as to the Mortgage Loans.
Upon receipt of all documents required to be included in the
Mortgage Files and no later than within one year of the Closing Date, the
Servicer shall deliver to the Indenture Trustee and the Enhancer a final
certification in the form attached hereto as Exhibit 5 evidencing the
completeness of the Mortgage Files.
The Seller on behalf of the Purchaser will deliver the original
Loan Agreements to the Servicer, endorsed or assigned in blank, to effect the
transfer to the Purchaser of the Loan Agreements and all related Mortgages
and Related Documents. Concurrently herewith, the Purchaser has contracted
to sell the Mortgage Loans to the Issuer, and the Issuer, in turn, has
Granted its right, title and interest in the Mortgage Loans and other
Transferred Property constituting the Trust Estate to the Indenture Trustee
to secure payments on the Notes. 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 naming the Indenture Trustee as assignee. Notwithstanding the
fact that assignments of mortgages naming the Indenture Trustee as assignee
have not been prepared and delivered, the parties hereto acknowledge and
agree that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Purchaser, from the Purchaser to the
Issuer, and from the Issuer to the Indenture Trustee.
In instances where an original Mortgage or any original
intervening assignment of Mortgage was not, in accordance with clause (iii)
above, delivered by the Seller to the Servicer, as provided above, the Seller
will deliver or cause to be delivered the originals or certified copies of
such documents to the Servicer promptly upon receipt thereof. If an
Assignment of Mortgage is required to be prepared under Section 3.17 of the
Servicing Agreement, the Seller will promptly execute such Assignment of
Mortgage upon request of the Servicer.
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Upon sale of the Initial Mortgage Loans, the ownership of each
related Loan Agreement (subject to the proviso in Section 2.1(a)), each
related Mortgage and the contents of the related Mortgage File shall be
vested in the Purchaser and the ownership of all records and documents with
respect to the Mortgage Loans that are prepared by or that come into the
possession of the Seller, as the seller of the Mortgage Loans hereunder, or
by the Servicer under the Servicing Agreement shall immediately vest in the
Purchaser, and shall be retained and maintained in trust by the Servicer at
the will of the Purchaser, in such custodial capacity only; provided,
however, that if Wachovia is no longer the Servicer under the Servicing
Agreement, any records and documents that come into the possession of the
Seller shall be promptly delivered to the Servicer. The Seller's records
will accurately reflect the sale of the Mortgage Loans by it to the Purchaser.
The Purchaser hereby acknowledges its acceptance of all right,
title and interest to the property conveyed to it pursuant to this
Section 2.1.
Section 2.2. Sale of Subsequent Mortgage Loans.
(a) Subject to the conditions set forth in paragraphs (b) and (c) below
(the satisfaction of which (other than the conditions specified in paragraphs
(b)(i), (b)(ii) and (b)(iii)) shall be evidenced by an Officer's Certificate
of the Seller dated the date of the related Subsequent Transfer Date), in
consideration of the Purchaser's payment of the purchase price provided for
in Section 2.3 on one or more Subsequent Transfer Dates, the Seller may, on
the related Subsequent Transfer Date, sell, transfer, assign, set over and
convey to the Purchaser without recourse (except as expressly provided
herein), all of the right, title and interest of the Seller whether now owned
or existing or hereafter created, arising, or acquired, in, to and under the
Subsequent Transferred Property; provided, however, that the Purchaser does
not assume the obligation under any Loan Agreement to fund Draws by the
Mortgagor thereunder or any other obligation arising under or related to the
Related Documents, and the Purchaser shall not be obligated or permitted to
fund any such Draws, it being agreed that the Seller will retain the
obligation to fund future Draws. Any transfer to the Purchaser by the Seller
of Subsequent Mortgage Loans shall be absolute, and is intended by the
Purchaser and the Seller to constitute and to be treated as a sale of such
Subsequent Mortgage Loans by the Seller to the Purchaser.
The Purchaser on each Subsequent Transfer Date shall acknowledge, by
execution of the related Subsequent Transfer Agreement, its acceptance of all
right, title and interest to the related Subsequent Mortgage Loans and other
property, existing on the Subsequent Transfer Date and thereafter created,
conveyed to it pursuant to this Section 2.2.
The Purchaser shall be entitled to all scheduled principal payments due
on and after each Subsequent Cut-Off Date, all other payments of principal
due and collected on and after each Subsequent Cut-Off Date, all payments of
interest on any related Subsequent Mortgage Loans due on or after the related
Subsequent Cut-Off Date, all interest accruing thereon, all monies due or to
become due thereon and all collections in respect thereof received on or
after the Subsequent Cut-Off Date.
Upon sale of the Subsequent Mortgage Loans, the ownership of each
related Loan Agreement (subject to the proviso in Section 2.1(a)), each
related Mortgage and the contents of the related Mortgage File shall be
vested in the Purchaser and the ownership of all records and documents with
respect to the Subsequent Mortgage Loans that are prepared by or that come
into the possession of the Seller, as the seller of the Subsequent Mortgage
Loans, or by the Servicer under the Servicing Agreement shall immediately
vest in the Purchaser, and shall be retained and maintained in trust by the
Servicer at the will of the Purchaser, in such custodial capacity only;
provided, however, that if Wachovia is no longer the Servicer under the
Servicing Agreement, any records and documents that come into the possession
of the Seller shall be promptly delivered to the Servicer. The Seller's
records will accurately reflect the sale of the Subsequent Mortgage Loans by
it to the Purchaser.
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(b) The Seller may transfer to the Purchaser, Subsequent Mortgage Loans and
the other property and rights related thereto described in Section 2.2(a),
and the Purchaser shall pay for such Subsequent Mortgage Loans, only upon the
satisfaction of each of the following conditions on or prior to the related
Subsequent Transfer Date:
(i) the Seller shall have provided the Indenture Trustee, the Issuer, the
Purchaser, Rating Agencies and the Enhancer with a timely Addition Notice
substantially in the form of Exhibit 3, which notice shall be given no later
than seven Business Days prior to the related Subsequent Transfer Date, and
shall designate the Subsequent Mortgage Loans to be sold to the Purchaser and
the aggregate Principal Balance of such Subsequent Mortgage Loans as of the
related Subsequent Cut-Off Date;
(ii) the Seller shall have delivered to the Purchaser, the Indenture Trustee
and the Enhancer a duly executed Subsequent Transfer Agreement substantially
in the form of Exhibit 2, (A) confirming the satisfaction of each condition
precedent and making the representations specified in this Section 2.2(b) and
in the related Subsequent Transfer Agreement and (B) including a Mortgage
Loan Schedule listing the Subsequent Mortgage Loans;
(iii) as of each Subsequent Transfer Date, as evidenced by delivery to the
Indenture Trustee of the Subsequent Transfer Agreement in the form of Exhibit
2, the Seller shall not be insolvent, made insolvent by such transfer or
aware of any pending insolvency;
(iv) such sale and transfer shall not result in a material adverse tax
consequence to the Purchaser or the Issuer or due to any action or inaction
on the part of the Seller, to the Securityholders or the Enhancer;
(v) the Revolving Period shall not have terminated; and
(vi) the Enhancer and each Rating Agency (each, an "Approval Party") shall
have approved the sale of the Subsequent Mortgage Loans (which approval shall
not be unreasonably withheld) within five (5) Business Days of receipt of an
electronic file containing the information regarding the Subsequent Mortgage
Loans that was delivered to each Approval Party prior to the Closing Date
with respect to the Initial Mortgage Loans; provided, that if an Approval
Party shall not have notified the respective Seller within such five (5)
Business Days that such Approval Party does not so approve, such sale of
Subsequent Mortgage Loans shall be deemed approved by such Approval Party.
The obligation of the Purchaser to purchase a Subsequent Mortgage Loan
on any Subsequent Transfer Date is subject to the following conditions: (i)
each such Subsequent Mortgage Loan must satisfy the representations and
warranties specified in the related Subsequent Transfer Agreement and this
Agreement; (ii) the Seller has not selected such Subsequent Mortgage Loans in
a manner that it reasonably believes is adverse to the interests of the
Noteholders or the Enhancer; and (iii) as of the related Subsequent Cut-Off
Date each Subsequent Mortgage Loan will satisfy the following criteria: (A)
such Subsequent Mortgage Loan may not be 30 or more days contractually
delinquent as of the related Subsequent Cut-Off Date; (B) the original stated
term to maturity of such Subsequent Mortgage Loan will not exceed 480 months;
(C) such Subsequent Mortgage Loan must have an outstanding Principal Balance
of at least $1,000 and no more than $________ as of the related Subsequent
Cut-Off Date; (D) such Subsequent Mortgage Loan will be underwritten
substantially in accordance with the criteria set forth under " Description
of the Mortgage Loans - Underwriting Standards" in the Prospectus Supplement;
(E) such Subsequent Mortgage Loan shall not provide for negative
amortization; and (F) following the purchase of the Subsequent Mortgage Loan
by the issuer, the Mortgage Loans must have a weighted average loan margin, a
weighted average remaining term to maturity and a weighted average CLTV Ratio
at origination, as of each respective Subsequent Cut-Off Date, which would
not vary materially from the Initial Mortgage Loans.
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(c) Within five Business Days after each Subsequent Transfer Date, the
Seller shall deliver to the Purchaser, the Rating Agencies, the Indenture
Trustee and the Enhancer a copy of the Mortgage Loan Schedule reflecting the
Subsequent Mortgage Loans in electronic format.
Section 2.3.Payment of Purchase Price.
(a) The purchase price (the "Purchase Price") for the Initial Mortgage
Loans and the related Initial Transferred Property to be paid by the
Purchaser to the Seller on the Closing Date shall be an amount equal to
one-hundred percent (100%) of the related Cut-Off Date Principal Balances.
The Purchase Price paid for any Subsequent Mortgage Loans and related
Subsequent Transferred Property to be paid by the Purchaser to the Seller on
any Subsequent Transfer Date shall be one-hundred percent (100%) of the
related Cut-Off Date Principal Balances thereof (as identified on the
Mortgage Loan Schedule attached to the related Subsequent Transfer Agreement
provided by the Seller). In the case of each Additional Balance and the
related Transferred Property sold hereunder created on or after the Cut-Off
Date or any Subsequent Cut-Off Date, as applicable, and prior to the
commencement of the Rapid Amortization Period, the Purchase Price thereof
shall be 100% of the principal amount of the related Draw under the related
Loan Agreement on the later of the Closing Date or any Subsequent Cut-Off
Date, as applicable, and the date of the creation of such Additional Balance,
adjusted to reflect such factors as the Seller and the Purchaser mutually
agree will result in a purchase price determined to be the fair market value
of such Additional Balance and the related Transferred Property.
(b) In consideration of the sale of the Initial 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 amount specified above in paragraph (a) for the Initial Mortgage
Loans and the related Transferred Property. In consideration of the sale of
any Subsequent Mortgage Loan and the related Transferred Property by the
Seller to the Purchaser on any Subsequent Transfer Date, the Purchaser shall
pay to the Seller by wire transfer of immediately available funds to a bank
account designated by the Seller, the amount specified above in paragraph (a)
for the applicable Subsequent Mortgage Loans and the related Transferred
Property.
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(c) [Reserved]
(d) With respect to each Additional Balance transferred hereunder with
respect to any Mortgage Loan, the Purchaser shall pay or cause to be paid to
the Seller or its designee the Purchase Price specified above for such
Additional Balance and the related Transferred Property in cash on the
Payment Date in the calendar month immediately following the calendar month
in which such Additional Balance was created.
(e) The Seller shall have no obligation to sell any Transferred Property to
the Purchaser if the Seller is not paid the purchase price for such
Transferred Property as provided herein.
Section 2.4. Allocation. Except with respect to Liquidation Loss
Amounts and Subsequent Recovery Amounts, the Seller, the Servicer, and the
Purchaser agree that all collections on the Mortgage Loans will be allocated
and applied as provided by the terms of the related Loan Agreements or by
applicable law. Except with respect to Liquidation Loss Amounts and
Subsequent Recovery Amounts, if the Loan Agreement or applicable law does not
specify a method of allocation and application for particular collections,
such collections shall be allocated and applied (i) first to interest, pro
rata (based on the amounts coming due on such date) among the amounts coming
due on such date) and (ii) then to principal, in the order of the dates on
which such amounts for principal were first incurred or, in the case of
Promotional Advances, first to Promotional Advances. If, as a result of the
provisions of this Section 2.4, collections are allocated to Excluded Draws,
such collections shall not be property of the Purchaser or its assignees and
shall be paid by the Servicer to the Seller as provided in Section 2.5.
Liquidation Loss Amounts and Subsequent Recovery Amounts shall be allocated
as provided in the definition of Excluded Amount.
Section 2.5. Draws During the Rapid Amortization Period. During the
Rapid Amortization Period, any Excluded Draw shall not be deemed Additional
Balances, and the ownership of such Excluded Draws shall be retained by the
Seller except as provided herein. Payments and collections allocable
pursuant to Section 2.4 to an Excluded Draw shall not be deposited into the
Custodial Account, the Distribution Account or the Note Payment Account, and
shall be distributed by the Servicer to the Seller no less frequently than
monthly in accordance with reasonable instructions provided by the Seller.
Section 2.6. Security Interest. (a) The parties hereto intend that
the transactions set forth herein and in the Subsequent Transfer Agreements
each constitute a sale by the Seller to the Purchaser of all the Seller's
right, title and interest in and to the Mortgage Loans and the other
Transferred Property, including for accounting purposes, and not a secured
borrowing. In the event the transactions set forth herein or in any
Subsequent Transfer Agreement are deemed not to be a sale, the Seller hereby
grants to the Purchaser a security interest in the Transferred Property to
secure all of the Seller's obligations hereunder, and this Agreement shall
and hereby does constitute a security agreement under applicable law. The
Seller agrees to take or cause to be taken such actions and to execute such
documents, including without limitation the authorization and filing of any
continuation statements with respect to the UCC financing statements filed
with respect to the Mortgage Loans by the Purchaser on the Closing Date, if
any, and any amendments thereto required to reflect a change in the name or
corporate structure of the Seller or the filing of any additional UCC
financing statements due to the change in the principal office or
jurisdiction of organization of the Seller as are necessary to perfect and
protect the Purchaser's and its assignee's interests in the Transferred
Property. The Seller shall file any such continuation statements or
amendments on a timely basis.
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(b) To the extent that the Seller retains any interest in the Transferred
Property, the Seller hereby grants to the Indenture Trustee for the benefit
of the Noteholders a security interest in the Transferred Property, to secure
the performance of all of the obligations of the Seller hereunder and under
the other Basic Documents. With respect to this security interest, the
Indenture Trustee shall have all of the rights that it has under the
Indenture and the Basic Documents and all of the rights of a secured creditor
under the UCC.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1.Representations and Warranties of the Seller. The Seller
represents and warrants to the Purchaser, as of the Closing Date or, as
applicable, as of each Subsequent Transfer Date (or if otherwise specified
below, as of the date so specified):
(a) As to the Seller:
(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 each Subsequent Transfer
Agreement to which it is a party and all of the transactions contemplated
under this Agreement and each such Subsequent Transfer Agreement, and has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and each such Subsequent Transfer 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 or each such Subsequent Transfer 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 and any Subsequent
Transfer Agreement to which it is a party by the Seller and its performance
and compliance with the terms of this Agreement and each such Subsequent
Transfer 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 may be applicable to the
Seller or any of its assets;
(v) There are no pending or, to the best of the Seller's knowledge,
threatened, actions, suits, proceedings or investigations before any court,
tribunal, administrative agency, arbitrator or governmental body 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, the Basic Documents to which it is a party or (C) the
transactions contemplated by this Agreement;
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(vi) This Agreement and each Subsequent Transfer Agreement to which it is a
party 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, as they may be applied in the context of the
insolvency of a national banking association, and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
which purport to provide indemnification from liabilities under applicable
securities laws;
(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
Initial Mortgage Loans, including the Cut-Off Date Principal Balances now
existing and all Additional Balances thereafter arising to and including the
day immediately preceding the Rapid Amortization Period, all monies due or to
become due with respect thereto, and all proceeds of such Cut-Off Date
Principal Balances with respect to the Initial Mortgage Loans; and this
Agreement and the related Subsequent Transfer Agreement, when executed and
delivered, will constitute a valid transfer and assignment to the Purchaser
of all right, title and interest of the Seller in and to the Subsequent
Mortgage Loans, including the Cut-Off Date Principal Balances of the
Subsequent Mortgage Loans, all monies due or to become due with respect
thereto, and all proceeds of such Cut-Off Date Principal Balances and nothing
has been done by the Seller to impair the rights of the Purchaser, the
Trustee, the Paying Agent, the Enhancer or the Securityholders with respect
thereto; and
(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,
municipal or 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.
(b) As to each Initial Mortgage Loan (except as otherwise specified below)
as of the Closing Date, or as to each Subsequent Mortgage Loan (except as
otherwise specified below) as of the related Subsequent Transfer Date:
(i) The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule delivered by the Seller was true and correct in all
material respects as of the date or dates respecting which such information
is initially furnished;
(ii) Each Mortgaged Property is improved by a residential dwelling, which,
to the best of the Seller's knowledge, does not constitute property other
than real property under state law;
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(iii) Each Mortgage Loan is being serviced by the Seller and there was only
one originally executed Loan Agreement not stamped as a duplicate copy with
respect to each such Mortgage Loan;
(iv) The Loan Agreement with respect to each Mortgage Loan bears an
adjustable Loan Rate;
(v) Immediately prior to the transfer and assignment herein contemplated or
under the related Subsequent Transfer Agreement, as applicable, the Seller
held good and indefeasible title to, and was the sole owner of, each Mortgage
Loan conveyed by the Seller subject to no liens (other than, with respect to
any Mortgage Loan in a (A) second lien position, the lien of the related
first mortgage and (B) third lien position, the lien of the related first
mortgage and the related second mortgage), charges, mortgages, encumbrances
or rights of others or other liens which will not be released simultaneously
with such transfer and assignment and has full right and authority, under all
governmental and regulatory bodies having jurisdiction over the ownership of
the applicable Mortgage Loans to sell and assign the same pursuant to this
Agreement or the related Subsequent Transfer Agreement, as applicable;
(vi) To the best of the Seller's knowledge, there is no delinquent recording
or other tax or fee or assessment lien on any Mortgaged Property, and each
Mortgaged Property is free of material damage and is in good repair;
(vii) No Mortgage Loan is subject to any right of rescission, valid set-off,
counterclaim or defense, including the defense of usury, nor will the
operation of any of the terms of the Loan Agreement or the Mortgage relating
to any Mortgage Loan, or the exercise of any right thereunder, render either
such Loan Agreement or such Mortgage unenforceable in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto;
(viii)......To the best of the Seller's knowledge, each Mortgage Loan at the
time it was made and the related Loan Agreement complied in all material
respects with applicable local, state and federal laws, including, without
limitation, usury, equal credit opportunity, disclosure, recording and all
applicable anti-predatory lending laws;
(ix) A policy of hazard insurance and flood insurance, if applicable, was
required from the Mortgagor for the Mortgage Loan when the Mortgage Loan was
originated;
(x) Each Mortgage Loan and each Loan Agreement is the legal, valid and
binding obligation of the maker thereof and is enforceable in accordance with
its terms, except only as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of
equity (whether considered in a proceeding or action in equity or at law);
(xi) No Mortgage Loan is subject to the Home Ownership and Equity Protection
Act of 1994. Furthermore, no Mortgage Loan either currently has, or in the
future will have, single premium life provisions as part of the Loan
Agreement;
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(xii) Each Initial Mortgage Loan has an associated CLTV of no higher than
100%;
(xiii)......There is no proceeding pending or threatened for the total or
partial condemnation of the Mortgaged Property, nor is such a proceeding
currently occurring;
(xiv) The related Loan Agreement is not and has not been secured by any
collateral, pledged account or other security except the lien of the
corresponding Mortgage;
(xv) With respect to each Initial Mortgage Loan and Subsequent Mortgage
Loan, as applicable, the related Mortgage File contains or will contain each
of the documents and instruments specified to be included therein;
(xvi) With respect to each Mortgage Loan that is not a first mortgage loan,
either (i) no consent for the Mortgage Loan is required by the holder or
holders of the related prior lien, (ii) such consent has been obtained and is
contained in the related Mortgage File or (iii) no consent for the Mortgage
Loan was required by relevant law;
(xvii)......The Mortgaged Property is located in the state identified in the
Mortgage Loan Schedule and consists of a single parcel of real property with
a residential dwelling erected thereon;
(xviii).....The related Mortgage contains customary and enforceable (subject
to clause (x)) 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 or other exemption available to the
Mortgagor which would materially interfere with the right to sell the
Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage;
(xix) To the best of the Seller's knowledge, there is no default, breach,
violation or event of acceleration existing under the Mortgage or the related
Loan Agreement and no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration; and the Seller has not waived any
default, breach, violation or event of acceleration;
(xx) At origination, each Initial Mortgage Loan has a draw period of not
less than 36 months;
(xxi) The Loan Agreement with respect to each Initial Mortgage Loan bears an
adjustable Loan Rate with an index plus a margin that equals a rate per annum
of no less than Prime minus ____%;
(xxii)......To the best of the Seller's knowledge, there are no mechanics' or
similar liens or claims which have been filed for work, labor or material
affecting the related Mortgaged Property which are, or may be liens prior or
equal to the lien of the related Mortgage, except liens which are fully
insured against by a title insurance policy referred to in clause (xxiv)
below;
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(xxiii).....As of the Cut-Off Date or the related Subsequent Cut-Off Date, as
applicable, no Mortgage Loan was 30 days or more delinquent in payment of
principal or interest or the subject of a bankruptcy proceeding;
(xxiv)......A title search or other assurance of title customary in the
relevant jurisdiction was obtained with respect to each Mortgage Loan;
(xxv) Each original Mortgage was recorded, and all subsequent assignments of
the original Mortgage required to be delivered to the Servicer pursuant to
Section 2.1 have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof (or are in the process
of being recorded in accordance with local law);
(xxvi)......The Seller has not transferred the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of its creditors;
(xxvii).....No selection procedure reasonably believed by the Seller to be
adverse to the interests of the Securityholders was utilized in selecting the
Mortgage Loans;
(xxviii).... The Minimum Monthly Payment with respect to any Mortgage Loan is
not less than the interest accrued at the applicable Loan Rate on the average
daily Principal Balance during the interest period relating to the date on
which such Minimum Monthly Payment is due;
(xxix)......The Seller has not received a notice of default of any senior
mortgage loan related to a Mortgaged Property which has not been cured by a
party other than the Seller;
(xxx) No instrument of release or waiver has been executed in connection with
the Mortgage Loans, and no Mortgagor has been released, in whole or in part,
from its obligations in connection therewith;
(xxxi)......Each Mortgage Loan has been originated by the Seller in
compliance in all material respects with the Seller's internal underwriting
policies as in effect on the date of origination of such Mortgage Loan;
(xxxii)..... Other than provisions relating to "promotional Finance Charges"
and "promotional advances," as each such term is used in the related Loan
Agreements, or any similar terms used in any of the related Loan Agreements,
there are no provisions in any of the related Loan Agreements that would
interfere with the allocation provisions of the second sentence of
Section 2.4;
(xxxiii).... No "promotional advances," as such term is used in the related
Loan Agreements or any other similar type of advance that would be entitled
to an allocation of payment other than by application in chronological order
(except with respect to Liquidation Loss Amounts and Subsequent Recovery
Amounts) will be extended under any Mortgage Loan after the date on which the
Rapid Amortization Period commences;
(xxxiv).....None of the Loan Agreements that constitute or evidence the
Mortgage Loans has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the
Purchaser;
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(xxxv)......No Mortgage Loan is a "high cost loan" or "covered loan" as
applicable (as such terms are defined in Standard & Poor's LEVELS(R) Glossary,
Version 5.6 Revised, Appendix E, attached hereto as Exhibit 6) and no
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is
governed by the Georgia Fair Lending Act";
(xxxvi).....Reserved;
(xxxvii)....As of the Cut-Off Date, the minimum CLTV of a Mortgage Loan is
___%, the highest CLTV of a Mortgage Loan is ___% and the weighted average
CLTV for the Mortgage Loans is approximately ___%;
(xxxviii)...As of the Cut-Off Date, no more than approximately ___% of the
Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged
Properties which may have been appraised using a statistical property
evaluation method provided by CASA(R);
(xxxix).....As of the Cut-Off Date, no more than approximately ___% of the
Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged
Properties which may have been appraised using a statistical property
evaluation method provided by vendors other than CASA;
(xl) As of the Cut-Off Date, the Loan Rates on the Mortgage Loans range
between ___% per annum and ___% per annum. As of the Cut-Off Date, the
weighted average Loan Rate for the Mortgage Loans is approximately ___% per
annum;
(xli) As of the Cut-Off Date, no more than approximately ___%, ___%, ___%,
___% and ___% of the Mortgage Loans, by Cut-Off Date Principal Balance, are
secured by Mortgaged Properties located in the states of _______, _______,
_______, _______ and _______, respectively;
(xlii)......(A) Each Mortgaged Property consists of a single parcel of real
property with a single family or multi-family residence erected thereon, or
an individual condominium unit or agricultural property with a residence
erected thereon. (B) With respect to the Mortgage Loans, (a) approximately
___% (by Cut-Off Date Principal Balance) are secured by real property
improved by individual condominium units, (b) approximately ___% (by Cut-Off
Date Principal Balance) are secured by real property with a single family
residence erected thereon, (c) approximately ___% (by Cut-Off Date Principal
Balance) are secured by real property with a multi-family residence erected
thereon and (d) approximately ___% are secured by agricultural property with
a residence thereon;
(xliii).....As of the Cut-Off Date, (i) no more than approximately ___% of
the Mortgage Loans, by Cut-Off Date Principal Balance, are secured by second
liens and (ii) no more than approximately ___% of the Mortgage Loans, by
Cut-Off Date Principal Balance, are secured by third liens;
(xliv)......As of the Cut-Off Date, no Mortgage Loan had a Principal Balance
less than $______ and no Mortgage Loan had a Principal Balance in excess of
$______;
(xlv) Each Mortgage Loan has been serviced since its origination in
compliance with all applicable federal, state and local laws;
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(xlvi)......No Mortgage Loan is scheduled to mature later than _____ __,
20__;
(xlvii).....Each Mortgage Loan contains a provision for the acceleration of
payment of the unpaid Principal Balance of the related Mortgage Loan in the
event that the property securing such Mortgage Loan is sold or transferred
without the prior written consent of the Mortgagee thereunder;
(xlviii)....As of the Cut-Off Date, no Mortgagor was the subject of any
bankruptcy proceedings;
(xlix)......None of the Mortgage Loans were originated in the States of Maine
or Nevada;
(l) No Mortgage Loan provides for a prepayment premium;
(li) The margin for the Mortgage Loans (which margin, when added to the
applicable current index, establishes the interest rate to be paid to the
applicable Mortgage Loans) ranges from -___% to ___%;
(lii) The Pool Balance of the Initial Mortgage Loans as of the Cut-Off Date
is $__________; and
(liii)......No more than ___% (by Cut-Off Date Principal Balance) of the
Initial Mortgage Loans are secured by non-primary residences.
(c) As to each Subsequent Mortgage Loan as of the related Subsequent
Cut-Off Date:
(i) the original stated term to maturity of the Subsequent Mortgage Loan
will not exceed 480 months;
(ii) the Subsequent Mortgage Loan must have an outstanding Principal Balance
of at least $1,000 and no more than $_______ as of the Subsequent Cut-Off
Date;
(iii) the Subsequent Mortgage Loan will be underwritten substantially in
accordance with the criteria used with respect to the Initial Mortgage Loans;
(iv) the Subsequent Mortgage Loan shall not provide for negative
amortization; and
(v) following the purchase of the Subsequent Mortgage Loan by the
Purchaser, the Mortgage Loans must have a weighted average Gross Margin, a
weighted average remaining term to maturity and a weighted average CLTV Ratio
at origination, as of each respective Subsequent Cut-Off Date, which would
not vary materially from the Initial Mortgage Loans.
(d) Upon notice from the Purchaser, the Enhancer, the Owner Trustee, the
Indenture Trustee or the Servicer, as applicable, of a breach of the Seller's
respective representations or warranties in paragraph (a) above that
materially and adversely affects the interests of the Securityholders or the
Enhancer in any Mortgage Loan, the Seller shall, within 90 days of its
discovery or its receipt of notice of such breach, either (i) cure such
breach in all material respects or (ii) to the extent that such breach is
with respect to a Mortgage Loan or a Related Document, either (A) repurchase
such Mortgage Loan from the Purchaser or its assignee at the Repurchase
Price, or (B) substitute one or more Eligible Substitute Loans for such
Mortgage Loan, in each case in the manner and subject to the conditions and
limitations set forth below.
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Upon discovery by the Seller or upon notice from the Purchaser,
the Enhancer, the Owner Trustee, the Indenture Trustee or the Servicer, as
applicable, of a breach of the Seller's representations or warranties in
paragraphs (b) or (c) above, with respect to any Mortgage Loan, or upon the
occurrence of a Repurchase Event, that materially and adversely affects the
interests of the Securityholders, the Enhancer or the Purchaser in such
Mortgage Loan (notice of which shall be given to the Purchaser by the Seller
if it discovers the same), notwithstanding such Seller's lack of knowledge
with respect to the substance of such representation and warranty, the Seller
shall, within 90 days after the earlier of its discovery or receipt of notice
thereof, either cure such breach or Repurchase Event in all material respects
or either (i) repurchase such Mortgage Loan from the Purchaser or its
assignee at the Repurchase Price, or (ii) substitute one or more Eligible
Substitute Loans for such Mortgage Loan, in each case in the manner and
subject to the conditions set forth below. The Repurchase Price for any such
Mortgage Loan repurchased by the Seller shall be deposited or caused to be
deposited by the Seller into the Custodial Account. If the breach of
representation and warranty that gave rise to the obligation to repurchase or
substitute a Mortgage Loan pursuant to this Section (d) was the
representation and warranty set forth in clause (viii) of Section 3.1(b),
then the Seller shall pay to the Issuer on behalf of the Trust Estate,
concurrently with and in addition to the remedies provided in the preceding
sentence, an amount equal to any liability, penalty or expense that was
actually incurred and paid out of or on behalf of the Trust Estate, and that
directly resulted from such breach, or if incurred and paid by the Trust
Estate thereafter, concurrently with such payment.
In the event that the Seller elects to substitute an Eligible
Substitute Loan or Loans for a Deleted Loan pursuant to this Section 3.1, the
Seller shall deliver to the Servicer on behalf of the Issuer, with respect to
such Eligible Substitute Loan or Loans, the original Loan Agreement and all
other documents and agreements as are required by Section 2.1(d), with the
Loan Agreement endorsed as required by Section 2.1(d). No substitution will
be made in any calendar month after the Determination Date for such month.
Minimum Monthly Payments due with respect to Eligible Substitute Loans in the
month of substitution shall not be part of the Trust Estate and will be
retained by the Servicer and remitted by the Servicer to the Seller on the
next succeeding Payment Date, provided that a payment at least equal to the
applicable Minimum Monthly Payment for such month in respect of the Deleted
Loan has been received by the Issuer. For the month of substitution,
distributions to the Note Payment Account pursuant to the Servicing Agreement
will include the Minimum Monthly Payment due on a Deleted Loan for such month
and thereafter the Seller shall be entitled to retain all amounts received in
respect of such Deleted Loan. The Servicer shall amend or cause to be
amended the Mortgage Loan Schedule to reflect the removal of such Deleted
Loan and the substitution of the Eligible Substitute Loan or Loans and the
Servicer shall deliver the amended Mortgage Loan Schedule to the Owner
Trustee and the Indenture Trustee. Upon such substitution, the Eligible
Substitute Loan or Loans shall be subject to the terms of this Agreement in
all respects, the Seller shall be deemed to have made the representations and
warranties with respect to the Eligible Substitute Loan contained herein set
forth in Section 3.1(b), in each case, as of the date of substitution, and
the Seller shall be deemed to have made a representation and warranty that
each Mortgage Loan so substituted is an Eligible Substitute Loan as of the
date of substitution. The Seller shall be obligated to repurchase or
substitute for any Eligible Substitute Loan as to which a Repurchase Event
has occurred or as to which the Seller has breached the Seller's
representations and warranties in Section 3.1(b), in each case to the same
extent as for any other Mortgage Loan, as provided herein. In connection
with the substitution of one or more Eligible Substitute Loans for one or
more Deleted Loans, the Servicer shall determine the Substitution Adjustment
Amount and the Seller shall deposit such Substitution Adjustment Amount into
the Custodial Account on the date of substitution, without any reimbursement
therefor.
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Upon receipt by the Indenture Trustee on behalf of the Issuer of
written notification, signed by a Servicing Officer, of the deposit of such
Repurchase Price or of such substitution of an Eligible Substitute Loan
(together with the complete related Mortgage File) and deposit of any
applicable Substitution Adjustment Amount as provided above, the Servicer, on
behalf of the Indenture Trustee, shall release to the Seller the related
Mortgage File for the Mortgage Loan being repurchased or substituted for and
the Indenture Trustee on behalf of the Issuer shall execute and deliver such
instruments of transfer or assignment prepared by the Servicer, in each case
without recourse, as shall be necessary to vest in the Seller or its
respective designee such Mortgage Loan released pursuant hereto and
thereafter such Mortgage Loan shall not be an asset of the Purchaser or the
Issuer or part of the Trust Estate.
It is understood and agreed that the obligation of the Seller to
cure any breach of the Seller's representation and warranties in paragraphs
(b) or (c) above, or to repurchase or substitute for any Mortgage Loan as to
which such a breach has occurred and is continuing, shall constitute the sole
remedy respecting such breach available to the Purchaser, the Issuer, the
Enhancer (other than with respect to rights of the Enhancer under the
Insurance Agreement), the Certificateholders (or the Owner Trustee on behalf
of the Certificateholders) and the Noteholders (or the Indenture Trustee on
behalf of the Noteholders) against the Seller.
It is understood and agreed that the representations and
warranties set forth in this Section 3.1 shall survive delivery of the
respective Mortgage Files to the Issuer or the Servicer.
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller. The Seller hereby agrees and covenants
that:
(a) except for the transfer hereunder, or under the related Subsequent
Transfer Agreement, as applicable, the Seller will not sell, pledge, assign
or transfer to any other Person, or grant, create, incur or assume any Lien
on any Mortgage Loan or other Transferred Property, or any interest in the
foregoing, except with respect to any Excluded Draw;
(b) the Seller shall not convey, pledge or sell any Excluded Draw unless
the Seller delivers an Opinion of Counsel to the Enhancer that such
conveyance will not cause the Trust to become a taxable mortgage pool;
(c) the Seller shall notify the Purchaser and the Indenture Trustee of the
existence of any Lien (other than as provided above) arising through or under
the Seller on any Mortgage Loan immediately upon discovery thereof; and the
Seller shall defend the right, title and interest of the Purchaser and the
Indenture Trustee in, to and under the Mortgage Loans and other Transferred
Property against all claims of third parties claiming through or under the
Seller; and
17
(d) in a sale of the Trust Estate upon an Event of Default pursuant to the
Indenture, the Indenture Trustee shall have the right to sell all Excluded
Draws in connection with such sale, provided that the Seller receives an
amount equal to the fair market value for such Excluded Draws upon such sale.
ARTICLE V
[RESERVED]
ARTICLE VI
LIMITATION OF LIABILITY
Section 6.1 Limitation on Liability of the Seller. None of the directors,
officers, employees or agents of the Seller shall be under any liability to
the Purchaser, it being expressly understood that all such liability is
expressly waived and released as a condition of, and as consideration for,
the execution of this Agreement and any Subsequent Transfer Agreement.
Except (i) with respect to its breach of any of its representations,
warranties, or covenants herein, and (ii) as and to the extent expressly
provided in this Agreement, the Seller shall not be under any liability to
the Owner Trustee, the Indenture Trustee or the Securityholders. The Seller
and any director, officer, employee or agent of the Seller may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person respecting any matters arising hereunder.
ARTICLE VII
TERMINATION
Section 7.1 Termination. The obligations and responsibilities of the parties
hereto shall terminate upon the termination of the Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement may be amended from time to time by
the parties hereto by written agreement with the prior written consent of the
Enhancer, which consent shall not unreasonably be withheld.
Section 8.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
18
Section 8.3 Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified mail, returned receipt requested and
postage prepaid, addressed as follows:
(i) if to the Seller:
Wachovia Bank, National Association
Xxxxxxxxx Xxxxx
00xx Xxxxx
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Re: Wachovia Mortgage Loan Trust, LLC [______] Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to the Purchaser:
Wachovia Mortgage Loan Trust, LLC
[______________]
[address]
Re: Wachovia Mortgage Loan Trust, LLC [______] Trust
Telephone: (___) ___-____
Facsimile: (___) ___-____
(iii) if to the Issuer:
c/o [______________]
[address]
Re: Wachovia Mortgage Loan Trust, LLC [______] Trust
Telephone: (___) ___-____
Facsimile: (___) ___-____
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(iv) if to the Indenture Trustee:
[______________]
[address]
Re: Wachovia Mortgage Loan Trust, LLC [______] Trust
Telephone: (___) ___-____
Facsimile: (___) ___-____
(v) if to the Enhancer:
[______________]
[address]
Re: Wachovia Mortgage Loan Trust, LLC [______] Trust
Telephone: (___) ___-____
Facsimile: (___) ___-____;
or, with respect to any of the foregoing Persons, at such other address as
may hereafter be furnished to the other foregoing Persons in writing in
accordance with this Section 8.3.
Section 8.4 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 provisions of this Agreement.
Section 8.5 Relationship of Parties. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the
parties hereto.
Section 8.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an
original and such counterparts, together, shall constitute one and the same
agreement.
Section 8.7 Further Agreements. The parties hereto each agree to execute and
deliver to the other such additional documents, instruments or agreements as
may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 8.8 Intention of the Parties. It is the intention of the parties
hereto that the Purchaser will be purchasing on the Closing Date, and the
Seller will be selling on the Closing Date, the Initial Mortgage Loans,
rather than the Purchaser providing a loan to the Seller secured by the
Initial Mortgage Loans on the Closing Date; and that the Purchaser will be
purchasing on each Subsequent Transfer Date, and the Seller will be selling
on each Subsequent Transfer Date, the related Subsequent Mortgage Loans,
rather than the Purchaser providing a loan to the Seller secured by the
related Subsequent Mortgage Loans on each Subsequent Transfer Date. The
Purchaser shall have the right to review the Mortgage Loans and the Related
Documents to determine the characteristics of the Mortgage Loans which will
affect the federal income tax consequences of owning the Mortgage Loans, and
the Seller shall cooperate with all reasonable requests made by the Purchaser
in the course of such review.
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Section 8.9
Successors and Assigns; Assignment of this Agreement.
(a) This Agreement shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective permitted successors
and assigns. The obligations of the Seller under this Agreement cannot be
assigned or delegated to a third party without the consent of the Enhancer
and the Purchaser (and the Issuer with respect to the transfer of the
Subsequent Mortgage Loans), which consent shall be at each of the Enhancer,
the Purchaser, and the Issuer's sole discretion, provided that the Seller may
assign its obligations hereunder to any Affiliate of the Seller, to any
Person succeeding to the business of the Seller, to any Person into which the
Seller is merged and to any Person resulting from any merger, conversion or
consolidation to which the Seller is a party.
(b) As an inducement to the Purchaser to purchase the Initial Mortgage
Loans and the Subsequent Mortgage Loans, the Seller acknowledges and consents
to the Purchaser's transfer of its interest in this Agreement and each
Subsequent Transfer Agreement to which it is a party to the Issuer pursuant
to the Servicing Agreement and each related Subsequent Transfer Agreement
executed by the Depositor and the Issuer, the grant of a security interest in
such interest by the Issuer to the Indenture Trustee pursuant to the
Indenture and the enforcement by the Indenture Trustee or the Servicer on
behalf of the Indenture Trustee or the Issuer, of any right or remedy against
the Seller pursuant to this Agreement. Such enforcement of a right or remedy
by the Owner Trustee, the Indenture Trustee or the Servicer on behalf of the
Indenture Trustee or the Issuer, as applicable, shall have the same force and
effect as if the right or remedy had been enforced or exercised by the
Purchaser directly.
Section 8.10 Survival. The representations and warranties made herein
by the Seller and the provisions of Article VI hereof shall survive the
purchase of the Initial Mortgage Loans hereunder and any transfer of
Subsequent Mortgage Loans pursuant to this Agreement and the related
Subsequent Transfer Agreement.
Section 8.11 Third-Party Beneficiary. The Enhancer shall be an express
third-party beneficiary hereof and shall be entitled to enforce the
provisions of this Agreement as if a party hereto.
21
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed to this Mortgage Loan Purchase Agreement by their respective
officers thereunto duly authorized as of the day and year first above written.
WACHOVIA MORTGAGE LOAN TRUST, LLC,
as Purchaser
By: ________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller and Servicer
By:
Name:
Title:
Acknowledged and Accepted:
[____________], not in its
individual capacity but solely
as Indenture Trustee
By: ________________________________
Name:
Title:
[Signature Page Mortgage Loan Purchase Agreement]
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement No.[_____] (the
"Agreement"), dated as of [______________,_________], between
Wachovia Bank, National Association, as seller (the "Seller"), and Wachovia
Mortgage Loan Trust, LLC (the "Purchaser") and pursuant to the mortgage loan
purchase agreement dated as of ______ __, 200_ (the "Mortgage Loan Purchase
Agreement"), between the Seller, as seller and servicer, and the Purchaser,
as purchaser, the Seller and the Purchaser agree to the sale by the Seller
and the purchase by the Purchaser of the mortgage loans listed on the
attached Schedule of Subsequent Mortgage Loans (the "Subsequent Mortgage
Loans").
Capitalized terms used and not defined herein have their respective
meanings as set forth in Appendix A to the indenture dated as of ______ __,
200_, among the Wachovia Mortgage Loan Trust, LLC [______] Trust (the
"Issuer"), [______________], as indenture trustee (the "Indenture Trustee")
and Wachovia Bank, National Association, as paying agent (the "Paying
Agent"), which meanings are incorporated by reference herein. All other
capitalized terms used herein shall have the meanings specified herein.
Section 1. Sale of Subsequent Mortgage Loans.
(a) The Seller does hereby sell, transfer, assign, set over and
convey to the Purchaser, without recourse (except as expressly provided
herein and in the Mortgage Loan Purchase Agreement), all of its right, title
and interest whether now owned or existing or hereafter created, arising, or
acquired, in, to and under the following: (i) the Subsequent Mortgage Loans
identified on the Mortgage Loan Schedule attached hereto as Attachment B
(including the related Cut-Off Date Principal Balances now existing and all
Additional Balances arising thereunder after the Subsequent Cut-Off Date
through and including the date immediately preceding the commencement of the
Rapid Amortization Period), all scheduled principal payments due on and after
the Subsequent Cut-Off Date, all other payments of principal due and
collected on and after the Subsequent Cut-Off Date, all payments of interest
on the Subsequent Mortgage Loans due on or after the Subsequent Cut-Off Date,
all interest accruing thereon, all monies due or to become due thereon and
all collections in respect thereof received on or after the Subsequent
Cut-Off Date; provided, however, that any Principal Balance represented by a
Draw made during the Rapid Amortization Period and interest thereon and money
due or to become due in respect thereof will not be or deemed to be
transferred to the Purchaser, and the Seller in such event shall retain
ownership of each Principal Balance represented by each such Draw and
interest thereon and money due or to become due in respect thereof; (ii) the
interest of the Seller in any insurance policies in respect of the Subsequent
Mortgage Loans; (iii) the interest of the Seller in the Mortgages and the
Loan Agreements related to each Subsequent Mortgage Loan and the other
Related Documents and (iv) all proceeds of the foregoing; provided, however,
that the Purchaser does not assume the obligation under any Loan Agreement to
fund Draws by the Mortgagor thereunder or any other obligation arising under
or related to the Related Documents, and the Purchaser shall not be obligated
or permitted to fund any such Draws, it being agreed that the Seller will
retain the obligation to fund future Draws. The Seller, contemporaneously
with the delivery of this Agreement, has delivered or caused to be delivered
to the Purchaser each item set forth in Section 2.2 of the Mortgage Loan
Purchase Agreement.
The transfer to the Purchaser by the Seller of the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule is intended by the parties
hereto to constitute a sale by the Seller to the Purchaser on the Subsequent
Transfer Date of all the Seller's right, title and interest in and to the
Subsequent Mortgage Loans and the other Subsequent Transferred Property,
including for accounting purposes, and not a secured borrowing. In the event
the transactions set forth herein are deemed not to be a sale, the Seller
hereby grants to the Purchaser a security interest in the Subsequent
Transferred Property to secure all of the Seller's obligations hereunder, and
this Agreement shall and hereby does constitute a security agreement under
applicable law. The Seller agrees to take or cause to be taken such actions
and to execute such documents, including without limitation the authorization
and filing of any continuation statements with respect to the UCC financing
statements filed with respect to the Subsequent Mortgage Loans by the
Purchaser on the related Subsequent Transfer Date, if any, and any amendments
thereto required to reflect a change in the name or corporate structure of
the Seller or the filing of any additional UCC financing statements due to
the change in the principal office or jurisdiction of organization of the
Seller as are necessary to perfect and protect the Purchaser's interests in
the Subsequent Transferred Property. The Seller shall file any such
continuation statements or amendments on a timely basis.
(b) The expenses and costs relating to the delivery of the Subsequent
Mortgage Loans and the related Subsequent Transferred Property, this
Agreement and the Mortgage Loan Purchase Agreement shall be borne by the
Seller.
(c) The Purchaser, by execution of this Agreement, acknowledges its
acceptance of all of the Seller's right, title and interest to the Subsequent
Mortgage Loans and the other related Subsequent Transferred Property.
(d) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Representations and Warranties; Conditions Precedent.
(a) The Seller hereby affirms the representations and warranties made
by it and set forth in Section 3.1 of the Mortgage Loan Purchase Agreement
that relate to the Seller or the Subsequent Mortgage Loans as of the date
hereof. The Seller hereby confirms that each of the conditions set forth in
Section 2.2(b) of the Mortgage Loan Purchase Agreement are satisfied as of
the date hereof and further represents and warrants that the Mortgage Loan
Schedule attached hereto is accurate as of the Subsequent Cut-Off Date.
(b) The Seller is solvent, is able to pay its debts as they become
due and has capital sufficient to carry on its business and its obligations
hereunder; it will not be rendered insolvent by the execution and delivery of
this instrument or by the performance of its obligations hereunder nor is it
aware of any pending insolvency; no petition of bankruptcy (or similar
insolvency proceeding) has been filed by or against the Seller prior to the
date hereof.
(c) All terms and conditions of the Mortgage Loan Purchase Agreement
relating to the Subsequent Mortgage Loans are hereby ratified and confirmed;
provided, however, that in the event of any conflict the provisions of this
Agreement shall control over the conflicting provisions of the Mortgage Loan
Purchase Agreement.
Exhibit 2-2
Section 3. GOVERNING LAW. THIS INSTRUMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 4. Counterparts. This Instrument may be executed in
counterparts, each of which, when so executed, shall be deemed to be an
original and together shall constitute one and the same instrument.
Section 5. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Purchaser and their
respective successors and assigns.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller
By:_____________________________
Name:
Title:
WACHOVIA MORTGAGE LOAN TRUST, LLC,
as Purchaser
By:_____________________________
Name:
Title:
Acknowledged and Accepted:
[____________], not in its
individual capacity but solely as
Indenture Trustee
By:___________________________
Name:
Title:
Exhibit 2-3
Attachments
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
C. Seller's Officer's Certificate.
Exhibit 2-4
WACHOVIA MORTGAGE LOAN TRUST, LLC
ATTACHMENT A TO FORM OF SUBSEQUENT TRANSFER AGREEMENT
____________, ____
A.
1. Subsequent Cut-Off Date:
2. Pricing date:
3. Subsequent Transfer Date:
4. Aggregate Principal Balance of the Subsequent
Mortgage Loans as of the Subsequent Cut-Off Date:
5. Purchase Price: 100.00%
B.
As to all Subsequent Mortgage Loans:
1. Longest stated term to maturity:
______months
2. Minimum loan rate: ______%
3. Maximum Loan Rate: ______%
EXHIBIT 3
FORM OF ADDITION NOTICE
DATE:
[Indenture Trustee] Xxxxx'x Investors Service, Inc.
[address] 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Mortgage Loan Trust, LLC [Owner Trustee]
[address] [address]
Standard & Poor's, a division of [Enhancer]
The XxXxxx-Xxxx Companies, Inc. [address]
00 Xxxxxxxx Xxxxxxxxx: [_____________]
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: WACHOVIA MORTGAGE LOAN TRUST, LLC
Ladies and Gentlemen:
Pursuant to Section 2.2 of the mortgage loan purchase agreement dated
as of ______ __, 200_ (the "Purchase Agreement"), between Wachovia Bank,
National Association, as Seller and Servicer and Wachovia Mortgage Loan
Trust, LLC, as Purchaser, the Seller has designated the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule attached hereto to be sold to
the Purchaser on [ , ], with an aggregate Principal
Balance of $[ ]. Capitalized terms not otherwise defined
herein have the meaning set forth in the Appendix A to the indenture dated as
of ______ __, 200_, among Wachovia Mortgage Loan Trust, LLC [______] Trust,
[ ], as indenture trustee, and Wachovia Bank, National
Association, as paying agent.
Please acknowledge, as Purchaser, your receipt of this notice by
countersigning the enclosed copy in the space indicated below and returning
it to the attention of the undersigned.
Very truly yours,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller
By: ____________________________________
Name:
Title:
WACHOVIA MORTGAGE LOAN TRUST, LLC,
as Purchaser
By:_____________________________________
Name:
Title:
7
EXHIBIT 4
FORM OF INITIAL CERTIFICATION
[_______], 200[_]
[Indenture Trustee] [Enhancer]
[address] [address]
Re: Wachovia Mortgage Loan Trust, LLC [______] Trust
Ladies and Gentlemen:
In accordance with Section 2.1 of the mortgage loan purchase agreement dated
as of ______ __, 200_ (the "Purchase Agreement"), between Wachovia Bank,
National Association, as Seller and Servicer and Wachovia Mortgage Loan
Trust, LLC, as Purchaser, the undersigned, as Servicer, hereby certifies that
it has received the following with respect to each Initial Mortgage Loan
listed in the Mortgage Loan Schedule:
Except for the exceptions listed on the schedule attached hereto, the
Mortgage File for each of the Mortgage Loans includes all documents specified
in Section 2.1(d) of the Purchase Agreement.
Capitalized terms not otherwise defined herein have the meaning set forth in
the Appendix A to the indenture dated as of ______ __, 200_, between the
Wachovia Mortgage Loan Trust, LLC [______] Trust, [___________], as indenture
trustee, and Wachovia Bank, National Association, as paying agent.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Servicer
By:____________________________________
Name:
Title:
8
EXHIBIT 5
FORM OF FINAL CERTIFICATION
[ ], 200[ ]
[Indenture Trustee] [Enhancer]
[address] [address]
Re: Wachovia Mortgage Loan Trust, LLC [______] Trust
Ladies and Gentlemen:
In accordance with Section 2.1 of the mortgage loan purchase agreement dated
as of ______ __, 200_ (the "Purchase Agreement"), between Wachovia Bank,
National Association, as Seller and Servicer and Wachovia Mortgage Loan
Trust, LLC, as Purchaser, the undersigned, as Servicer, hereby certifies that
it has received the following with respect to each Initial Mortgage Loan
listed in the Mortgage Loan Schedule:
Except for the exceptions listed on the schedule attached hereto, the
Mortgage File for each of the Mortgage Loans includes all documents specified
in Section 2.1(d) of the Purchase Agreement.
Capitalized terms not otherwise defined herein have the meaning set forth in
the Appendix A to the indenture dated as of ______ __, 200_, between the
Wachovia Mortgage Loan Trust, LLC [______] Trust, [__________], as indenture
trustee, and Wachovia Bank, National Association, as paying agent.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Servicer
By:____________________________________
Name:
Title:
1-1
SCHEDULE A TO EXHIBIT 5
EXCEPTIONS TO FINAL CERTIFICATION
1-1
EXHIBIT 6
Standard & Poor's LEVELS(R) Glossary, Version 5.6 Revised, Appendix E
REVISED ____ __,
200_
APPENDIX E - Standard & Poor's Anti-Predatory Lending Categorization
Standard & Poor's 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 Standard & Poor's High Cost Loan Category because they included
thresholds and tests that are typical of what is generally considered High
Cost by the industry.
Standard & Poor's 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 Xxx. xx.xx. 00-00-000
et seq.
Effective July 16, 2003
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code xx.xx. 757.01 et seq.
Effective June 2, 2003
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. Xxx. xx.xx. 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. xx.xx. 36a-746 et seq.
Effective October 1, 2001
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Covered Loan
Code xx.xx. 26-1151.01 et seq.
Effective for loans closed on or
after January 28, 2003
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
1-1
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. High Cost Home Loan
xx.xx. 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 Xxx. xx.xx. 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 Xxx. xx.xx. 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. xx.xx. 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, xx.xx. 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 Xxx. xx.xx. 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
Xxx. xx.xx. 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. xx.xx.
360.100 et seq.
Effective June 24, 2003
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. High Rate High Fee
tit. 9-A, xx.xx. 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
xx.xx. 32.00 et seq. and 209 C.M.R.
xx.xx. 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, xx.xx. 1
et seq.
Effective November 7, 2004
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Home Loan
Stat. xx.xx. 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. xx.xx. 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. xx.xx. 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. xx.xx. 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 Xxx. xx.xx. 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 Xxx. xx.xx. 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 Xxx. xx.xx. Loan
31-17-1 et seq.
Effective June 5, 2002
--------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
--------------------------------------------------------------------------------
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. Covered Loan
- Mar. 6, 2003) Code Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Covered Home Loan
Security Act of 2002, N.J. Rev.
Stat. xx.xx. 46:10B-22 et seq.
Effective November 27, 2003 -
July 5, 2004
--------------------------------------------------------------------------------
Standard & Poor's Home Loan Categorization
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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 Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Indiana Indiana Home Loan Practices Act, Home Loan
Ind. Code Xxx. xx.xx. 24-9-1-1 et
seq.
Effective for loans originated on
or after January 1, 2005.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Home Loan
Security Act of 2002, N.J. Rev.
Stat. xx.xx. 46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Home Loan
Rev. Stat. xx.xx. 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on Consumer Home Loan
High Cost Home Loans, N.C. Gen.
Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Loan
Consumer Home Loans Act, S.C.
Code Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
--------------------------------------------------------------------------------
