EXHIBIT 10.1
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[COUNTRYWIDE HOME LOANS, INC.]
a Seller
[------------------]
a Seller
CWHEQ, INC.
Purchaser
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PURCHASE AGREEMENT
Dated as of ____________, 200_
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REVOLVING HOME EQUITY LOAN ASSET BACKED NOTES
Series 200_-_
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..................................................................................1
Section 1.01. Definitions......................................................................1
ARTICLE II SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE...........................................2
Section 2.01. Sale of the Mortgage Loans.......................................................2
Section 2.02. Obligations of Sellers Upon Sale.................................................3
Section 2.03. Payment of Purchase Price for the Mortgage Loans.................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH........................................6
Section 3.01. Seller Representations and Warranties............................................6
Section 3.02. Seller Representations and Warranties Relating to the Mortgage Loans.............8
ARTICLE IV SELLERS' COVENANTS.........................................................................21
Section 4.01. Covenants of the Sellers........................................................21
ARTICLE V SERVICING...................................................................................21
Section 5.01. Servicing.......................................................................21
ARTICLE VI TERMINATION................................................................................21
Section 6.01. Termination.....................................................................21
ARTICLE VII MISCELLANEOUS PROVISIONS..................................................................22
Section 7.01. Amendment.......................................................................22
Section 7.02. Governing Law...................................................................22
Section 7.03. Notices.........................................................................22
Section 7.04. Severability of Provisions......................................................23
Section 7.05. Counterparts....................................................................23
Section 7.06. Further Agreements..............................................................23
Section 7.07. Successors and Assigns: Assignment of Purchase Agreement........................23
Section 7.08. Survival........................................................................24
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SCHEDULES AND ANNEXES
Schedule I MORTGAGE LOAN SCHEDULE......................................................Sch-I-1
Schedule II STANDARD & POOR'S GLOSSARY.................................................Sch-II-1
Annex 1 ADOPTION ANNEX..............................................................Xxx-1-1
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THIS PURCHASE AGREEMENT, dated as of ____________, 200_ (the
"Agreement"), between [COUNTRYWIDE HOME LOANS, INC., a New York corporation],
as a seller ("[CHL]" or a "Seller"), __________________, a ______________
corporation, as a seller ("___________" or a "Seller," and together with
[CHL], the "Sellers"), and CWHEQ, INC., a Delaware corporation (the
"Purchaser"),
WITNESSETH:
WHEREAS, each Seller is the owner of the applicable notes or other
evidence of indebtedness indicated on Schedule I as owned by that Seller, and
certain other notes or other evidence of indebtedness made or to be made in
the future, and Related Documentation; and
WHEREAS, by the date of their transfer, each Seller will own the
mortgages on the properties securing the Mortgage Loans indicated on Schedule
I as owned by that Seller, including rights to (a) any property acquired by
foreclosure or deed in lieu of foreclosure or otherwise and (b) the proceeds
of any hazard insurance policies on the Mortgaged Properties; and
WHEREAS, each Seller wants to sell its Mortgage Loans to the
Purchaser pursuant to this Agreement; and
WHEREAS, pursuant to the Sale and Servicing Agreement, of even date
with this Agreement (the "Sale and Servicing Agreement"), among the Purchaser,
as depositor, [CHL], as sponsor and master servicer, the Trust, and the
Indenture Trustee, the Purchaser will transfer the Mortgage Loans to the
Trust;
NOW, THEREFORE, the parties agree as follows.
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.
Capitalized terms used in this Agreement that are not otherwise
defined have the meanings given to them in the Indenture, and if not defined
there, in the Sale and Servicing Agreement. In addition, Section 1.04 (Rules
of Construction) of the Indenture is incorporated by reference with
appropriate substitution of this Agreement for references in that Section to
the Indenture so that the language of that Section will read appropriately as
applying to this Agreement.
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of the Mortgage Loans.
(a) The Mortgage Loans. Concurrently with the execution and delivery
of this Agreement, [CHL], with respect to each Mortgage Loan it owns as
indicated on Schedule I, hereby transfers to the Purchaser, without recourse,
all of its right, title, and interest existing now or in the future in
(1) that Mortgage Loan, including its Asset Balance
(including all Additional Balances), the related Mortgage File, all
property that secures that Mortgage Loan, and all collections
received on it after the Cut-off Date (excluding payments due by the
Cut-off Date);
(2) property that secured that Mortgage Loan that is
acquired by foreclosure or deed in lieu of foreclosure;
(3) its rights under the hazard insurance policies related
to the mortgages that secure the Mortgage Loans;
(4) all rights under any guaranty executed in connection
with that Mortgage Loan;
(5) all other assets included or to be included in the Trust
for the benefit of the Noteholders and the Credit Enhancer; and
(6) all proceeds of the foregoing.
[___________], with respect to each Mortgage Loan it owns as
indicated on Schedule I, hereby transfers to the Purchaser, without recourse,
all of its right, title, and interest existing now or in the future in
(1) that Mortgage Loan, including its Asset Balance
(including all Additional Balances), the related Mortgage File, all
property that secures that Mortgage Loan, and all collections
received on it after the Cut-off Date (excluding payments due by the
Cut-off Date);
(2) property that secured that Mortgage Loan that is
acquired by foreclosure or deed in lieu of foreclosure;
(3) its rights under the hazard insurance policies related
to the mortgages that secure the Mortgage Loans;
(4) all rights under any guaranty executed in connection
with that Mortgage Loan;
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(5) all other assets included or to be included in the Trust
for the benefit of the Noteholders and the Credit Enhancer; and
(6) all proceeds of the foregoing.
(b) By the sale of a Mortgage Loan and its Additional Balances, each
Seller has sold to the Purchaser, and the Purchaser has purchased from each
Seller, each future draw of new borrowing under the related Credit Line
Agreement. The Purchaser shall pay the applicable Seller for each Additional
Balance in cash in an amount equal to the principal amount of the Additional
Balance as it arises. The Trust, the applicable Seller, and the Purchaser may
agree to a netting arrangement in connection with this transaction, when
appropriate, rather than actually moving cash.
Section 2.02. Obligations of Sellers Upon Sale.
In connection with the transfers pursuant to Section 2.01(a), each
Seller further agrees, at its own expense:
(a) to deliver to the Purchaser by the Closing Date a Mortgage Loan
Schedule containing an accurate list of all Mortgage Loans sold by it,
specifying for each Mortgage Loan, among other things, its account number and
its Cut-off Date Asset Balance; and
(b) to indicate in its books and records that the applicable Mortgage
Loans have been sold to the Indenture Trustee, as assignee of the Purchaser,
pursuant to this Agreement by the Closing Date for the Mortgage Loans.
The Mortgage Loan Schedule containing the Mortgage Loans sold by both
Sellers is Exhibit A to the Sale and Servicing Agreement and shall also be
attached as Schedule I to this Agreement and is hereby incorporated into this
Agreement.
Each Seller agrees to perfect and protect the Purchaser's interest in
each Mortgage Loan transferred by it pursuant to Section 2.01(a) and its
proceeds by preparing, executing, and filing a UCC1 Financing Statement with
the Secretary of State in the State of New York describing the Mortgage Loans
and naming the applicable Seller as debtor and the Purchaser as secured party
and indicating that the Mortgage Loans have been assigned to the Trust and all
necessary Continuation Statements and any additional UCC1 Financing Statements
due to a change in the name or the state of incorporation of that Seller. The
Financing Statement shall be filed by the Closing Date. This Financing
Statement will state in bold-faced type that a purchase of the Mortgage Loans
included in the collateral covered by the Financing Statement from the debtor
will violate the rights of the secured party and its assignee.
The Purchaser agrees to perfect and protect the Trust's interest in
each Mortgage Loan and its proceeds by preparing, executing, and filing a UCC1
Financing Statement with the
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Secretary of State in the State of Delaware describing the Mortgage Loans and
naming the Purchaser as debtor and the Trust as secured party (and indicating
that the Mortgage Loans have been pledged to the Indenture Trustee) and all
necessary Continuation Statements and any additional UCC1 Financing Statements
due to a change in the name or the state of incorporation of the Purchaser.
The Financing Statement shall be filed by the Closing Date. This Financing
Statement will state in bold-faced type that a purchase of the Mortgage Loans
included in the collateral covered by the Financing Statement from the debtor
will violate the rights of the secured party and its assignee.
In connection with any transfer by each Seller, it shall deliver to
the order of the Purchaser the following documents for each Mortgage Loan
transferred by that Seller (the "Related Documentation"):
(1) the original Mortgage Note endorsed in blank or, if the
original Mortgage Note has been lost or destroyed and not replaced,
an original lost note affidavit from the Seller stating that the
original Mortgage Note was lost, misplaced, or destroyed, together
with a copy of the related Mortgage Note;
(2) unless the Mortgage Loan is registered on the MERS(R)
System, an original assignment of mortgage in blank in recordable
form;
(3) the original recorded mortgage with evidence of
recording on it (noting the presence of the MIN of the Mortgage Loan
and language indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan) or, if the original recorded mortgage
with evidence of recording on it cannot be delivered by the Closing
Date because of a delay caused by the public recording office where
the original Mortgage has been delivered for recordation or because
the original Mortgage has been lost, the Seller shall deliver to the
Indenture Trustee an accurate copy of the mortgage, together with (i)
when the delay is caused by the public recording office, an Officer's
Certificate of the Seller or the Purchaser stating that the original
mortgage has been dispatched to the appropriate public recording
official or (ii) when the original mortgage has been lost, a
certificate by the appropriate county recording office where the
mortgage is recorded;
(4) any original intervening assignments needed for a
complete chain of title to the Trust with evidence of recording on
them, or, if any original intervening assignment has not been
returned from the applicable recording office or has been lost, an
accurate copy of it, together with (i) when the delay is caused by
the public recording office, an Officer's Certificate of the Seller
or the Purchaser stating that the original intervening assignment has
been dispatched to the appropriate public recording official for
recordation or (ii) when the original intervening assignment has been
lost, a certificate by the appropriate county recording office where
the mortgage is recorded;
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(5) a title policy for each Mortgage Loan with a Credit
Limit in excess of $100,000;
(6) the original of any guaranty executed in connection with
the Mortgage Note;
(7) the original of each assumption, modification,
consolidation, or substitution agreement relating to the Mortgage
Loan; and
(8) any security agreement, chattel mortgage, or equivalent
instrument executed in connection with the Mortgage.
The Related Documentation will be delivered:
(1) no later than the Closing Date, with respect to no less
than [50%] of the Mortgage Loans in each Loan Group,
(2) no later than the [twentieth] day after the Closing Date,
with respect to no less than [40%] of the Mortgage Loans in each Loan
Group in addition to those delivered on the Closing Date, and
(3) within [thirty] days following the Closing Date, with
respect to the remaining Mortgage Loans.
Each Seller confirms to the Purchaser that, as of the Closing Date,
it has caused the portions of the Electronic Ledger relating to the Mortgage
Loans maintained by that Seller to be clearly and unambiguously marked to
indicate that the Mortgage Loans have been sold to the Purchaser, and sold by
the Purchaser to the Trust, and Granted by the Trust to the Indenture Trustee,
and that a purchase of those Mortgage Loans from that Seller or the Purchaser
will violate the rights of the Trust, as secured party with respect to those
Mortgage Loans. By the applicable date of substitution, that Seller shall
cause the portions of the Electronic Ledgers relating to the relevant Eligible
Substitute Mortgage Loans, as the case may be, to be clearly and unambiguously
marked, and shall make appropriate entries in its general accounting records,
to indicate that those Mortgage Loans have been transferred to the Trust at
the direction of the Purchaser and that they have been Granted by the Trust to
the Indenture Trustee, and that a purchase of the Mortgage Loans from that
Seller or the Purchaser will violate the rights of the Trust, as secured party
with respect to those Mortgage Loans.
The Purchaser accepts all right, title, and interest of each of the
Sellers existing now or in the future in the Mortgage Loans and other property
transferred to it pursuant to this Section.
Notwithstanding the characterization of the Notes as debt for
federal, state, and local income and franchise tax purposes, the transfer of
the Mortgage Loans is a sale by each Seller to the Purchaser of all its
interest in the applicable Mortgage Loans and other property described
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above. However, to provide for the possibility that either transfer might be
characterized as a transfer for security and not as a sale, each Seller hereby
Grants to the Purchaser a Security Interest in all of its right, title, and
interest in the applicable Mortgage Loans and other property described above,
whether existing now or in the future, to secure all of that its obligations
under this Agreement; and this Agreement shall constitute a Security Agreement
under applicable law.
Section 2.03. Payment of Purchase Price for the Mortgage Loans.
In consideration of the sale of the Mortgage Loans from each of the
Sellers to the Purchaser on the Closing Date, the Purchaser agrees to transfer
to the applicable Seller on the Closing Date the purchase price for the
applicable Mortgage Loans provided in the Adoption Annex attached as Annex 1
to this Agreement (the "Adoption Annex").
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01. Seller Representations and Warranties.
(a) [CHL] represents and warrants to the Purchaser as of the Closing
Date:
(1) [CHL] is a New York corporation, validly existing and in
good standing under the laws of the State of New York, and has the
corporate power to own its assets and to transact the business in
which it is currently engaged. [CHL] is duly qualified to do business
as a foreign corporation and is in good standing in each jurisdiction
in which the character of the business transacted by it or any
properties owned or leased by it requires such qualification and in
which the failure so to qualify would have a material adverse effect
on the business, properties, assets, or condition (financial or
other) of [CHL];
(2) [CHL] has the power and authority to make, execute,
deliver, and perform this Agreement and all of the transactions
contemplated by this Agreement, and has taken all necessary corporate
action to authorize the execution, delivery, and performance of this
Agreement. When executed and delivered, this Agreement will
constitute the valid and legally binding obligation of [CHL]
enforceable in accordance with its terms;
(3) [CHL] is not required to obtain the consent of any other
party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau,
or agency in connection with the execution, delivery, performance,
validity, or enforceability of this Agreement, except for any
consents,
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licenses, approvals or authorizations, or registrations or
declarations, that have been obtained or filed, as the case may be,
before the Closing Date;
(4) The execution, delivery, and performance of this
Agreement by the Seller will not violate any provision of any
existing law or regulation or any order or decree of any court
applicable to the Seller or any provision of the certificate of
incorporation or bylaws of [CHL], or constitute a material breach of
any mortgage, indenture, contract, or other agreement to which [CHL]
is a party or by which [CHL] may be bound; and
(5) No litigation or administrative proceeding of or before
any court, tribunal, or governmental body is currently pending, or to
the knowledge of [CHL] threatened, against [CHL] or any of its
properties or with respect to this Agreement or the Notes that in the
opinion of [CHL] has a reasonable likelihood of resulting in a
material adverse effect on the transactions contemplated by this
Agreement.
(b) [___________] represents and warrants to the Purchaser as of the
Closing Date:
(1) [___________] is a _____________ corporation, validly
existing and in good standing under the laws of the State of
Delaware, and has the corporate power to own its assets and to
transact the business in which it is currently engaged. [___________]
is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the character of the
business transacted by it or any properties owned or leased by it
requires such qualification and in which the failure so to qualify
would have a material adverse effect on the business, properties,
assets, or condition (financial or other) of [___________].
(2) [___________] has the power and authority to make,
execute, deliver, and perform this Agreement and all of the
transactions contemplated by this Agreement, and has taken all
necessary corporate action to authorize the execution, delivery, and
performance of this Agreement. When executed and delivered, this
Agreement will constitute the valid and legally binding obligation of
[___________] enforceable in accordance with its terms;
(3) [___________] is not required to obtain the consent of
any other party or any consent, license, approval or authorization
from, or registration or declaration with, any governmental
authority, bureau, or agency in connection with the execution,
delivery, performance, validity, or enforceability of this Agreement,
except for any consents, licenses, approvals or authorizations, or
registrations or declarations, that have been obtained or filed, as
the case may be, before the Closing Date;
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(4) The execution, delivery, and performance of this
Agreement by [___________] will not violate any provision of any
existing law or regulation or any order or decree of any court
applicable to [___________] or any provision of the certificate of
incorporation or bylaws of [___________], or constitute a material
breach of any mortgage, indenture, contract, or other agreement to
which [___________] is a party or by which [___________] may be
bound; and
(5) No litigation or administrative proceeding of or before
any court, tribunal, or governmental body is currently pending, or to
the knowledge of [___________] threatened, against [___________] or
any of its properties or with respect to this Agreement or the Notes
that in the opinion of [___________] has a reasonable likelihood of
resulting in a material adverse effect on the transactions
contemplated by this Agreement.
(c) The representations and warranties in this Section 3.01 shall
survive the transfer of the Mortgage Loans to the Purchaser. Each Seller shall
cure a breach of any of the representations and warranties of such Seller in
accordance with the Sale and Servicing Agreement. The remedy specified in the
Sale and Servicing Agreement shall constitute the sole remedy against a Seller
with respect to any breach.
Section 3.02. Seller Representations and Warranties Relating to the
Mortgage Loans.
(a) [CHL] represents and warrants to the Purchaser as of the Cut-off
Date, unless specifically stated otherwise:
(1) As of the Closing Date (or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution) this
Agreement constitutes a valid and legally binding obligation of the
applicable Seller, enforceable against such Seller in accordance with
its terms.
(2) As of the Closing Date (or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution),
either
(A) this Agreement constitutes a valid transfer to
the Purchaser of all right, title, and interest of each of
the Sellers in the Mortgage Loans, and all collections
received in respect of the Mortgage Loans after the Cut-off
Date (excluding payments due by the Cut-off Date), all
proceeds of the Mortgage Loans, and all other property
specified in Section 2.01(a) or (b), and the Sale and
Servicing Agreement constitutes a valid transfer to the
Trust of the foregoing property and all other property
specified in Section 2.01(a) or (b) of the Sale and
Servicing Agreement such that, on execution of the Sale and
Servicing Agreement, it is owned by the Trust free of all
liens and other
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encumbrances, and is part of the corpus of the Trust
transferred to the Trust by the Purchaser, and upon payment
for the Additional Balances, this Agreement and the Sale and
Servicing Agreement will constitute a valid transfer to the
Trust of all interest of each of the Sellers in the
Additional Balances, all proceeds of the Additional
Balances, and all other property specified in Section
2.01(a) of the Sale and Servicing Agreement relating to the
Additional Balances free of all liens and other
encumbrances, and the Indenture constitutes a valid Grant of
a Security Interest to the Indenture Trustee in that
property, and the Indenture Trustee has a first priority
perfected Security Interest in the property, subject to the
effect of Section 9-315 of the UCC with respect to
collections on the Mortgage Loans that are deposited in the
Collection Account in accordance with the next to last
paragraph of Section 3.02(b) of the Sale and Servicing
Agreement, or
(B) this Agreement or the Sale and Servicing
Agreement, as appropriate, constitutes a Grant of a Security
Interest to the Owner Trustee on behalf of the Trust and the
Indenture constitutes a Grant of a Security Interest to the
Indenture Trustee in the property described in clause (A)
above. If this Agreement and the Sale and Servicing
Agreement constitute the Grant of a Security Interest to the
Trust and the Indenture constitutes a Grant of a Security
Interest to the Indenture Trustee in such property, the
Indenture Trustee will have a first priority perfected
Security Interest in the property, subject to the effect of
Section 9-315 of the UCC with respect to collections on the
Mortgage Loans that are deposited in the Collection Account
in accordance with the next to last paragraph of Section
3.02(b) of the Sale and Servicing Agreement. This Security
Interest is enforceable as such against creditors of and
purchasers from the Trust, the Purchaser, and each of the
Sellers.
(3) No Seller has authorized the filing of or is aware of
any financing statements against either Seller that include a
description of collateral covering the Collateral other than any
financing statement (A) relating to the Security Interests granted to
the Depositor, the Trust, or the Indenture Trustee under this
Agreement, pursuant to the Sale and Servicing Agreement, or pursuant
to the Indenture, (B) that has been terminated, or (C) that names the
Depositor, the Trust, or the Indenture Trustee as secured party.
(4) As of the Closing Date, the information in the Mortgage
Loan Schedule for the Mortgage Loans is correct in all material
respects. As of the applicable date of substitution for an Eligible
Substitute Mortgage Loan, the information with respect to the
Eligible Substitute Mortgage Loan in the Mortgage Loan Schedule is
correct in all
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material respects. As of the date any Additional Balance is created,
the information as to the Mortgage Loan identification number and the
Additional Balance of that Mortgage Loan reported for inclusion in
the Mortgage Loan Schedule is correct in all material respects.
(5) The Mortgage Loans have not been assigned or pledged,
and the related Seller is their sole owner and holder free of any
liens, claims, encumbrances, participation interests, equities,
pledges, charges, or Security Interests of any nature, and has full
authority, under all governmental and regulatory bodies having
jurisdiction over the ownership of the Mortgage Loans, to transfer
them pursuant to this Agreement.
(6) As of the Closing Date (or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution), the
related Mortgage Note and the mortgage for each Mortgage Loan have
not been assigned or pledged, and immediately before the sale of the
Mortgage Loans to the Purchaser, the related Seller was the sole
owner and holder of the Mortgage Loan free of any liens, claims,
encumbrances, participation interests, equities, pledges, charges, or
Security Interests of any nature, and has full authority, under all
governmental and regulatory bodies having jurisdiction over the
ownership of the Mortgage Loans, to transfer it pursuant to this
Agreement.
(7) As of the Closing Date (or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution), the
related mortgage is a valid and subsisting first or second lien on
the property described in it, as shown on the Mortgage Loan Schedule,
and as of the Cut-off Date or date of substitution, as applicable,
the related Mortgaged Property is free of all encumbrances and liens
having priority over the first or second lien, as applicable, of the
mortgage except for liens for
(A) real estate taxes and special assessments not
yet delinquent;
(B) any first mortgage loan secured by the
Mortgaged Property and specified on the Mortgage Loan
Schedule;
(C) covenants, conditions and restrictions, rights
of way, easements, and other matters of public record as of
the date of recording that are acceptable to mortgage
lending institutions generally; and
(D) other matters to which like properties are
commonly subject that do not materially interfere with the
benefits of the security intended to be provided by the
mortgage.
(8) As of the Closing Date (or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution), no
obligor has a valid offset, defense, or counterclaim under any Credit
Line Agreement or mortgage.
(9) To the best knowledge of [CHL], as of the Closing Date
(or, with respect to any Eligible Substitute Mortgage Loan, the
applicable date of substitution),
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no related Mortgaged Property has any delinquent recording or other
tax or fee or assessment lien or governmental charge against it.
(10) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), no proceeding is pending or, to the best knowledge of
[CHL], threatened for the total or partial condemnation of the
related Mortgaged Property, and the property is free of material
damage and is in good repair.
(11) To the best knowledge of [CHL], as of the Closing Date
(or, with respect to any Eligible Substitute Mortgage Loan, the
applicable date of substitution), no mechanics' or similar liens or
claims have been filed for work, labor, or material affecting the
related Mortgaged Property that are, or may be, liens prior or equal
to the lien of the related mortgage, except liens that are fully
insured against by the title insurance policy referred to in clause
(16).
(12) No Minimum Monthly Payment on a Mortgage Loan being
transferred on the Closing Date is more than 59 days delinquent
(measured on a contractual basis) and no Minimum Monthly Payment on
any other Mortgage Loan subsequently being transferred is more than
30 days delinquent (measured on a contractual basis) on the relevant
transfer date and for each Loan Group no more than the applicable
percentage of the Mortgage Loans in that Loan Group specified in the
Adoption Annex being transferred on the Closing Date (by Cut-off Date
Loan Balance) were 30-59 days delinquent (measured on a contractual
basis).
(13) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), the Mortgage File for each Mortgage Loan contains each
of the documents specified to be included in it.
(14) At origination, each Mortgage Loan and the related
Mortgage Note complied in all material respects with applicable
local, state, and federal laws, including all applicable predatory
and abusive lending laws, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity, or disclosure laws applicable to the Mortgage Loan, and
the servicing practices used by the Master Servicer with respect to
each Mortgage Loan have been consistent with the practices and the
degree of skill and care the Master Servicer exercises in servicing
for itself loans that it owns that are comparable to the Mortgage
Loans.
(15) As of the Closing Date, (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), no Mortgage Loan is a High Cost Loan or Covered Loan,
as applicable, and no Mortgage Loan originated on or after October 1,
2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act; and "High Cost Loan" and "Covered Loan" have the meaning
assigned to them in the Standard & Poor's LEVELS(R) Glossary attached
as Schedule II (the "Glossary") where
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(x) a "High Cost Loan" is each loan identified in
the column "Category under applicable anti-predatory lending
law" of the table entitled "Standard & Poor's High Cost Loan
Categorization" in the Glossary as each such loan is defined
in the applicable anti-predatory lending law of the state or
jurisdiction specified in such table and
(y) "Covered Loan" is each loan identified in the
column "Category under applicable anti-predatory lending
law" of the table entitled "Standard & Poor's Covered Loan
Categorization" in the Glossary as each such loan is defined
in the applicable anti-predatory lending law of the state or
jurisdiction specified in such table.
(16) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), either a lender's title insurance policy or binder was
issued or a guaranty of title customary in the relevant jurisdiction
was obtained, on the date of origination of the Mortgage Loan being
transferred on the relevant date and each policy is valid and remains
in full force.
(17) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), none of the Mortgaged Properties is a mobile home or a
manufactured housing unit that is not considered or classified as
part of the real estate under the laws of the jurisdiction in which
it is located.
(18) No more than the percentage specified in the Adoption
Annex of the Mortgage Loans in each Loan Group, by aggregate
principal balance of the related Mortgage Loans, are secured by
Mortgaged Properties located in one United States postal zip code.
(19) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), the Combined Loan-to-Value Ratio for each Mortgage
Loan in each Loan Group was not in excess of the percentage specified
in the Adoption Annex.
(20) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), no selection procedure reasonably believed by [CHL] to
be adverse to the interests of the Transferor, the Noteholders, or
the Credit Enhancer was used in selecting the Mortgage Loans.
(21) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), neither Seller has transferred the Mortgage Loans to
the Trust with any intent to hinder, delay, or defraud any of its
creditors.
(22) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), the Minimum Monthly Payment
12
with respect to any Mortgage Loan is not less than the interest
accrued at the applicable Loan Rate on the average daily Asset
Balance during the interest period relating to the date on which the
Minimum Monthly Payment is due.
(23) The Mortgage Notes constitute either "instruments" or
"general intangibles" as defined in the UCC.
(24) By the Closing Date (or, within 30 days of the
applicable date of substitution with respect to any Eligible
Substitute Mortgage Loan), the Sponsor will file UCC1 financing
statements in the proper filing office in the appropriate
jurisdiction to perfect the Security Interest in the Collateral
Granted under the Indenture.
(25) The Mortgage Notes that constitute or evidence the
Collateral do not have any marks or notations indicating that they
have been pledged, assigned, or otherwise transferred to any person
other than the Purchaser, the Trust, or the Indenture Trustee. All
financing statements filed or to be filed against each Seller in
favor of the Purchaser, the Trust, or the Indenture Trustee in
connection with this Agreement, the Sale and Servicing Agreement, or
the Indenture describing the Collateral contain a statement to the
following effect: "A purchase of the Mortgage Loans included in the
collateral covered by this financing statement will violate the
rights of the Purchaser, the Trust, or the Indenture Trustee."
(26) As of the Closing Date, [CHL] and [___________] will
have received a written acknowledgement from the Custodian that is
acting solely as agent of the Indenture Trustee.
(27) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), each Credit Line Agreement and each Mortgage Loan is
an enforceable obligation of the related mortgagor.
(28) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution). No Seller has received a notice of default of any
senior mortgage loan related to a Mortgaged Property that has not
been cured by a party other than the Master Servicer.
(29) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), the definition of "prime rate" in each Credit Line
Agreement relating to a Mortgage Loan does not differ materially from
"the highest `prime rate' as published in the `Money Rates' table of
The Wall Street Journal as of the first business day of the calendar
month for the applicable interest rate adjustment date."
(30) The weighted average remaining term to maturity of the
Mortgage Loans in each Loan Group on a contractual basis as of the
Cut-off Date is approximately the number of months specified for that
Loan Group in the Adoption
13
Annex. On each date that the Loan Rates have been adjusted, interest
rate adjustments on the Mortgage Loans were made in compliance with
the related mortgage and Mortgage Note and applicable law. Over the
term of each Mortgage Loan, the Loan Rate may not exceed the related
Loan Rate Cap. The Loan Rate Cap for the Mortgage Loans ranges
between the percentages specified in the Adoption Annex for that Loan
Group and the weighted average Loan Rate Cap is approximately the
percentage specified in the Adoption Annex for that Loan Group. The
Gross Margins for the Mortgage Loans in each Loan Group range between
the percentages specified in the Adoption Annex for that Loan Group
and the weighted average Gross Margin is approximately the percentage
specified in the Adoption Annex for that Loan Group as of the Cut-off
Date. The Loan Rates on the Mortgage Loans in each Loan Group range
between the percentages specified in the Adoption Annex for that Loan
Group and the weighted average Loan Rate on the Mortgage Loans is
approximately the percentage specified in the Adoption Annex for that
Loan Group.
(31) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), each Mortgaged Property consists of a single parcel of
real property with a one-to-four unit single family residence erected
on it, or an individual condominium unit, planned unit development
unit, or townhouse.
(32) No more than the percentage specified in the Adoption
Annex (by Cut-off Date Loan Balance) for each Loan Group of the
Mortgage Loans in the related Loan Group are secured by real property
improved by individual condominium units, units in planned unit
developments, townhouses, or two-to-four family residences erected on
them, and at least the percentage specified in the Adoption Annex (by
Cut-off Date Loan Balance) for each Loan Group of the Mortgage Loans
in the related Loan Group are secured by real property with a
detached one-family residence erected on them.
(33) The Credit Limits on the Mortgage Loans in each Loan
Group range between approximately the dollar amounts specified in the
Adoption Annex for that Loan Group with an average of approximately
the dollar amount specified in the Adoption Annex for that Loan
Group. As of the Cut-off Date, no Mortgage Loan in either Loan Group
had a principal balance in excess of approximately the dollar amount
specified in the Adoption Annex for that Loan Group and the average
principal balance of the Mortgage Loans in each Loan Group is equal
to approximately the dollar amounts specified in the Adoption Annex
for that Loan Group.
(34) Approximately the percentages specified in the Adoption
Annex of the Mortgage Loans, by aggregate principal balance as of the
Cut-off Date, are secured by first and second liens.
14
(35) As of the Closing Date, no more than the percentage
specified in the Adoption Annex for each Loan Group of the Mortgage
Loans in the related Loan Group, by aggregate principal balance, were
appraised electronically.
(36) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), no default exists under any Mortgage Note or Mortgage
Loan and no event that, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a
default under any Mortgage Note or Mortgage Loan has occurred and
been waived. As of the Closing Date (or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution), no
modifications to the Mortgage Notes and Mortgage Loans have been made
and not disclosed in the Mortgage Files.
(37) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), each Mortgage Loan was originated in accordance with
the Sponsor's underwriting guidelines and the Sponsor had no
knowledge of any fact that would have caused a reasonable originator
of mortgage loans to conclude on the date of origination of each
Mortgage Loan that each such Mortgage Loan would not be paid in full
when due.
(38) To the best knowledge of [CHL] at the time of
origination of each Mortgage Loan, no improvement located on or being
part of the Mortgaged Property was in violation of any applicable
zoning and subdivision laws or ordinances.
(39) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), any leasehold estate securing a Mortgage Loan has a
term of not less than five years in excess of the term of the related
Mortgage Loan.
(40) Based on the drawn balances of the Mortgage Loans, the
Mortgage Loans had the characteristics set out in the Adoption Annex
for each Loan Group in respect of the following: weighted average
Combined Loan-to-Value Ratio; range of Combined Loan-to-Value Ratios;
percentage of primary residences; weighted average FICO score; range
of FICO scores; Weighted Average Net Loan Rate; range of net Loan
Rates; weighted average original stated term to maturity; range of
original term to maturity; range of remaining term to maturity;
average drawn balance; weighted average utilization ratio; and
percentage of the Mortgage Loans that have their respective Mortgaged
Properties located in the top five states, measured by aggregate
drawn balances.
(41) Any Mortgage Loan that has been modified in any manner
has been so modified in accordance with the policies and procedures
of the Master Servicer and in a
15
manner that was permitted by the Sale and Servicing Agreement, the
Indenture, and any other Transaction Document.
(42) Each Mortgage Loan was originated (within the meaning
of Section 3(a)(41) of the Securities Exchange Act of 1934) by an
entity that satisfied at the time of origination the requirements of
Section 3(a)(41) of the Securities Exchange Act of 1934.
(43) At the time each Mortgage Loan was originated, each
Seller was, and each Seller is an approved seller of conventional
mortgage loans for Xxxxxx Xxx and Xxxxxxx Mac and is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act.
(44) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the principal balance of
the related Mortgage Loan as of the Cut-off Date or a commitment
(binder) to issue the same was effective on the date of the
origination of each Mortgage Loan, each such policy is valid and
remains in full force, and each such policy was issued by a title
insurer qualified to do business in the jurisdiction where the
Mortgaged Property is located and acceptable to Xxxxxx Mae and
Xxxxxxx Mac and is in a form acceptable to Xxxxxx Mae and Xxxxxxx
Mac, which policy insures the Sponsor and successor owners of
indebtedness secured by the insured Mortgage, as to the first
priority lien, of the Mortgage subject to the exceptions in paragraph
(7) above.
(45) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution) the improvements on each Mortgaged Property are covered
by a valid and existing hazard insurance policy with a generally
acceptable carrier that provides for fire and extended coverage and
coverage for such other hazards as are customary in the area where
the Mortgaged Property is located in an amount that is at least equal
to the lesser of (i) the maximum insurable value of the improvements
securing the Mortgage Loan or (ii) the greater of (a) the outstanding
principal balance of the Mortgage Loan and (b) an amount such that
the proceeds of the policy will be sufficient to prevent the
Mortgagor or the mortgagee from becoming a co-insurer. If the
Mortgaged Property is a condominium unit, it is included under the
coverage afforded by a blanket policy for the condominium unit. All
such individual insurance policies and all flood policies referred to
in item (46) below contain a standard mortgagee clause naming the
Sponsor or the original mortgagee, and its successors in interest, as
mortgagee, and the Sponsor has received no notice that any premiums
due and payable thereon have not been paid, and the Mortgage
obligates the Mortgagor thereunder to maintain all such insurance,
including flood insurance, at the Mortgagor's expense, and upon the
Mortgagor's failure to do so, authorizes the holder
16
of the Mortgage to obtain and maintain such insurance at the
Mortgagor's expense and to seek reimbursement therefor from the
Mortgagor.
(46) If the Mortgaged Property is in an area identified in
the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, a flood insurance policy in a form
meeting the requirements of the current guidelines of the Flood
Insurance Administration is in effect with respect to the Mortgaged
Property with a generally acceptable carrier in an amount
representing coverage not less than the least of (A) the outstanding
principal balance of the Mortgage Loan and any mortgage loan senior
to that Mortgage Loan from time to time, (B) the minimum amount
required to compensate for damage or loss on a replacement cost
basis, or (C) the maximum amount of insurance that is available under
the National Flood Insurance Act of 1968.
(47) Each Mortgage Note and the related Mortgage are
genuine, and each is the valid and legally binding obligation of its
maker, enforceable in accordance with its terms and under applicable
law, except that (a) its enforceability may be limited by bankruptcy,
insolvency, moratorium, receivership, and other similar laws relating
to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought. To the best of
[CHL]'s knowledge, all parties to the Mortgage Note and the Mortgage
had legal capacity to execute the Mortgage Note and the Mortgage and
each Mortgage Note and Mortgage have been duly and properly executed
by such parties.
(48) No Mortgage Loan has a shared appreciation feature, or
other contingent interest feature.
(49) To the best of [CHL]'s knowledge, all of the
improvements that were included for the purpose of determining the
appraised value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of the Mortgaged Property,
and no improvements on adjoining properties encroach on the Mortgaged
Property.
(50) To the best of [CHL]'s knowledge, all inspections,
licenses, and certificates required to be made or issued with respect
to all occupied portions of the Mortgaged Property and, with respect
to the use and occupancy of the same, including certificates of
occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities, unless their lack would
not have a material adverse effect on the value of the Mortgaged
Property, and the Mortgaged Property is lawfully occupied under
applicable law.
17
(51) Each Mortgage contains customary and enforceable
provisions that render the rights and remedies of its holder adequate
for the realization against the Mortgaged Property of the benefits of
the security intended to be provided by it, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale,
and (ii) otherwise by judicial foreclosure.
(52) Before the approval of the Mortgage Loan application,
an appraisal of the related Mortgaged Property was obtained from a
qualified appraiser, duly appointed by the Sponsor, who had no
interest, direct or indirect, in the Mortgaged Property or in any
loan secured by the Mortgaged Property, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan.
(53) Except for (A) payments in the nature of escrow
payments, and (B) interest accruing from the date of the Mortgage
Note or date of disbursement of the Mortgage proceeds, whichever is
later, to the day that precedes by one month the Due Period of the
first installment of principal and interest and taxes and insurance
payments, the Sponsor has not advanced funds, or induced, solicited,
or knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount
required by the Mortgage.
(54) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution) no foreclosure proceedings are pending against any
Mortgaged Property and no Mortgage Loan is subject to any pending
bankruptcy or insolvency proceeding.
(55) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), there is no homestead exemption available and
enforceable that materially interferes with the right to sell any
Mortgaged Property at a trustee's sale or the right to foreclose the
related Mortgage.
(56) No borrower was required to purchase any single premium
credit insurance policy (e.g., life, disability, accident,
unemployment, or health insurance product) or debt cancellation
agreement as a condition of obtaining the extension of credit. No
borrower obtained a prepaid single-premium credit insurance policy
(e.g., life, disability, accident, unemployment, mortgage, or health
insurance) in connection with the origination of the Mortgage Loan.
No proceeds from any Mortgage Loan were used to purchase debt
cancellation agreements as part of the origination of, or as a
condition to closing, the Mortgage Loan.
(57) The Mortgage Loans, individually and in the aggregate,
conform in all material respects to their descriptions in the
Prospectus Supplement.
(58) No Mortgage Loan is covered by the Home Ownership and
Equity Protection Act of 1994.
18
(59) No Mortgage Loan originated on or after October 1, 2002
and before March 7, 2003 is secured by Mortgaged Property located in
the State of Georgia.
(60) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), no Mortgage Loan is classified as (1) a "high cost"
loan under the Home Ownership and Equity Protection Act of 1994 or
(2) a "high cost," "threshold," "covered," "predatory," or similar
loan under any other applicable state, federal, or local law that
applies to mortgage loans (or a similar classified loan using
different terminology under a law imposing heightened regulatory
scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points, or fees).
(61) No proceeds from any Mortgage Loan were used to
purchase single premium credit insurance policies as part of the
origination of, or as a condition to closing, the Mortgage Loan.
(62) No subprime Mortgage Loan originated on or after
October 1, 2002 will impose a prepayment premium after the third
anniversary of the Mortgage Loan. No subprime Mortgage Loan
originated before October 1, 2002, and no non-subprime Mortgage Loan,
will impose a prepayment penalty after the fifth anniversary of the
Mortgage Loan.
(63) The servicer for each Mortgage Loan has fully
furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company on a monthly
basis.
(64) All of the Mortgage Loans in the Loan Group specified
in the Adoption Annex conform to Xxxxxx Mae or Xxxxxxx Mac maximum
principal balance (by credit limit) guidelines.
(65) With respect to all of the Mortgage Loans in Loan Group
1 originated from August 1, 2004 through April 30, 2005, if the
related Mortgage Loan or the related Mortgage Note, or any document
relating to the loan transaction, contains a mandatory arbitration
clause (that is, a clause that requires the borrower to submit to
arbitration to resolve any dispute arising out of or relating in any
way to the mortgage loan transaction), [CHL] will (i) notify the
related borrower in writing within 60 days after the Closing Date
that none of the related seller, the related servicer or any
subsequent party that acquires an interest in the Mortgage Loan or
services the Mortgage Loan will enforce the arbitration clause
against the borrower, but that the borrower will continue to have the
right to submit a dispute to arbitration, and (ii) place a copy of
that notice in the Mortgage File.
19
(b) If the substance of any representation or warranty under the Sale
and Servicing Agreement or in this Section made to the best of [CHL]'s
knowledge or as to which a Seller has no knowledge is inaccurate and the
inaccuracy materially and adversely affects the interest of the Purchaser or
its assignee in the related Mortgage Loan, then, notwithstanding that the
Seller did not know the substance of the representation and warranty was
inaccurate at the time the representation or warranty was made, the inaccuracy
shall be a breach of the applicable representation or warranty and [CHL] shall
cure the breach, repurchase the Mortgage Loan, or substitute for the Mortgage
Loan in accordance with the Sale and Servicing Agreement.
(c) The representations and warranties in this Section shall survive
the transfer and assignment of the Mortgage Loans to the Purchaser. The sole
remedy of the Purchaser, the Noteholders, the Indenture Trustee on behalf of
Noteholders, and the Credit Enhancer against a Seller for the breach of a
representation or warranty is [CHL]'s obligation to accept a transfer of a
Mortgage Loan as to which a breach has occurred and is continuing and to make
any required deposit in the Collection Account or to substitute an Eligible
Substitute Mortgage Loan.
(d) The Purchaser acknowledges that [CHL], as Master Servicer, in its
sole discretion, may purchase for its own account from the Trust any Mortgage
Loan that is 151 days or more delinquent. The price for any Mortgage Loan
purchased shall be calculated in the same manner as in Section 3.06 of the
Sale and Servicing Agreement and shall be deposited in the Collection Account.
When it receives a certificate from the Master Servicer in the form of Exhibit
D to the Sale and Servicing Agreement, the Trust shall release to the
purchaser of the Mortgage Loan the related Mortgage File and shall execute and
deliver any instruments of transfer prepared by the purchaser of the Mortgage
Loan, without recourse, necessary to vest in the purchaser of the Mortgage
Loan any Mortgage Loan released pursuant to this Agreement, and the purchaser
of the Mortgage Loan shall succeed to all the Trust's interest in the Mortgage
Loan and all security and documents. This assignment shall be an assignment
outright and not for security. The purchaser of the Mortgage Loan shall then
own the Mortgage Loan, and all security and documents, free of any further
obligation to the Trust, the Owner Trustee, the Indenture Trustee, the
Transferor, the Credit Enhancer, or the Noteholders with respect to it.
(e) A breach of any one of the representations in Sections
3.02(a)(58) to (65) will be considered to materially adversely affect the
interests of the Noteholders.
20
ARTICLE IV
SELLERS' COVENANTS
Section 4.01. Covenants of the Sellers.
Except for the transfer under this Agreement, neither Seller will
transfer to any other person, or create or suffer to exist any Lien on any
Mortgage Loan, or any interest in one; each Seller will notify the Indenture
Trustee of the existence of any Lien on any Mortgage Loan immediately on its
discovery; and each Seller will defend the right, title, and interest of the
Trust and the Indenture Trustee in the Mortgage Loans against all claims of
third parties claiming through a Seller. Nothing in this Section shall
prohibit a Seller from suffering to exist on any of the Mortgage Loans any
Liens for municipal or other local taxes and other governmental charges if
they are not due at the time or if the applicable Seller is contesting their
validity in good faith by appropriate proceedings and set aside on its books
adequate reserves with respect to them.
ARTICLE V
SERVICING
Section 5.01. Servicing.
[CHL] will be the Master Servicer of the Mortgage Loans pursuant to
the Sale and Servicing Agreement.
ARTICLE VI
TERMINATION
Section 6.01. Termination.
The respective obligations of each of the Sellers and the Purchaser
created by this Agreement shall terminate when the Indenture terminates in
accordance with its terms.
21
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.
This Agreement may be amended from time to time by each Seller, and
the Purchaser, with the written consent of the Credit Enhancer, by written
agreement signed by [CHL], [___________], and the Purchaser.
Section 7.02. 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 PROVISIONS THAT
WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER STATE.
Section 7.03. Notices.
All notices, demands, instructions, consents, and other
communications required or permitted under this Agreement shall be in writing
and signed by the party giving the same and shall be personally delivered or
sent by first class or express mail (postage prepaid), national overnight
courier service, or by facsimile transmission or other electronic
communication device capable of transmitting or creating a written record
(confirmed by first class mail) and shall be considered to be given for
purposes of this Agreement on the day that the writing is delivered when
personally delivered or sent by facsimile or overnight courier or three
Business Days after it was sent to its intended recipient if sent by first
class mail. A facsimile has been delivered when the sending machine issues an
electronic confirmation of transmission. Unless otherwise specified in a
notice sent or delivered in accordance with the provisions of this Section,
notices, demands, instructions, consents, and other communications in writing
shall be given to or made on the respective parties at their respective
addresses indicated below:
(i) if to [CHL] at:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ref: CWHEQ 200_-_
(ii) if to [___________]
________________________
________________________
________________________
Ref: CWHEQ 200_-_
22
and
(iii) if to the Purchaser at:
CWHEQ, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ref: CWHEQ 200_-_
Section 7.04. Severability of Provisions.
Any provisions of this Agreement that are held invalid for any reason
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the invalidity or unenforceability without
invalidating the remaining provisions of this Agreement, and the prohibition
or unenforceability in a jurisdiction shall not invalidate or render
unenforceable that provision in any other jurisdiction.
Section 7.05. Counterparts; Electronic Delivery.
This Agreement may be executed in any number of copies, and by the
different parties on the same or separate counterparts, each of which shall be
considered to be an original instrument. Any signature page to this Agreement
containing a manual signature may be delivered by facsimile transmission or
other electronic communication device capable of transmitting or creating a
printable written record, and when so delivered shall have the effect of
delivery of an original manually signed signature page.
Section 7.06. Further Agreements.
The Purchaser and each Seller agree to execute and deliver to the
other any additional documents appropriate to effectuate the purposes of this
Agreement or in connection with the issuance of the Notes.
Section 7.07. Successors and Assigns: Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by each Seller, the Purchaser, the Trust, the Indenture Trustee,
and the Credit Enhancer. The obligations of each Seller under this Agreement
cannot be assigned or delegated to a third party without the consent of the
Purchaser and the Credit Enhancer, except that either Seller may assign its
obligations under this Agreement to any person into which that Seller is
merged or any corporation resulting from any merger, conversion, or
consolidation to which that Seller is a party or any person succeeding to the
business of that Seller. The Purchaser is acquiring the Mortgage Loans to
further transfer them to the Trust, and the Trust will Grant a Security
Interest in them to the Indenture Trustee under the Indenture pursuant to
which the Trust will issue a series of Notes secured by the Mortgage Loans. As
an inducement to the Purchaser to purchase the Mortgage Loans, each Seller
consents to the assignment by the Purchaser to the Trust, and by the Trust to
the Indenture Trustee of all of the Purchaser's rights against it under
23
this Agreement insofar as they relate to the Mortgage Loans transferred to the
Trust applicable to that Seller and to the enforcement or exercise of any
right against that Seller pursuant to this Agreement by the Indenture Trustee
under the Sale and Servicing Agreement and the Indenture. Enforcement of a
right by the Indenture Trustee shall have the same effect as if the right had
been exercised by the Purchaser directly.
Section 7.08. Survival.
The representations and warranties in Article III shall survive the
purchase of the Mortgage Loans.
24
IN WITNESS WHEREOF, the Sellers and the Purchaser have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
CWHEQ, INC.
as Purchaser
By:
-------------------------------------
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
as a Seller
By:
-------------------------------------
Name:
Title:
----------------------------------------
as a Seller
By:
-------------------------------------
Name:
Title:
00
XXXXX XX XXXXXXXXXX)
) ss.:
COUNTY OF LOS ANGELES)
On the _____ day of ____________, 200_ before me, a Notary Public in
and for said State, personally appeared ________________, known to me to be a
____________ of CWHEQ, Inc., the corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
26
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the _____ day of ____________, 200_ before me, ________________ of
[Countrywide Home Loans, Inc.], personally appeared, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity on behalf of which the person acted,
executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
27
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the _____ day of ____________, 200_ before me, ________________ of
[_______________________], personally appeared, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity on behalf of which the person acted,
executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
28
SCHEDULE I
SCHEDULE OF
MORTGAGE LOANS
[Delivered to the Indenture Trustee only]
Sch-I-1
SCHEDULE II
STANDARD & POOR'S GLOSSARY
Standard & Poor's Predatory Lending Categorization
Standard & Poor's has categorized loans governed by anti-predatory lending
laws in the jurisdictions listed below into three categories based on 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 Category under applicable anti-predatory lending law
------------------------------------------------------------------------------------------------------------------------
Arkansas High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Cleveland Heights, Ohio Covered Loan
------------------------------------------------------------------------------------------------------------------------
Colorado Covered Loan
------------------------------------------------------------------------------------------------------------------------
Connecticut High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
District of Columbia Covered Loan
------------------------------------------------------------------------------------------------------------------------
Florida High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - March 6, 2003) High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Georgia as amended (March 7, 2003 - current) High Cost Home Loan
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HOEPA Section 32 High Cost Loan
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Illinois High Risk Home Loan
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Kansas High Loan-to-Value Consumer Loans and High APR Consumer Loans
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Kentucky High Cost Home Loan
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Los Angeles, Calif. High Cost Refinance Home Loan
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Maine High Rate High Fee mortgage
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Massachusetts High Cost Home Loan
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Nevada Home Loan
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New Jersey High Cost Home Loan
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New York High Cost Home Loan
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New Mexico High Cost Home Loan
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North Carolina High Cost Home Loan
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Oakland, Calif. High Cost Home Loan
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Ohio Covered Loan
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Oklahoma Subsection 10 Mortgage
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South Carolina High Cost Home Loan
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West Virginia West Virginia Mortgage Loan Act Loan
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Standard & Poor's Covered Loan Categorization
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State/jurisdiction Category under applicable anti-predatory lending law
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Georgia (Oct. 1, 2002 - March 6, 2003) Covered Loan
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New Jersey Covered Home Loan
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Sch-II-1
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Standard & Poor's Home Loan Categorization
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State/jurisdiction Category under applicable anti-predatory lending law
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Georgia (Oct. 1, 2002- March 6, 2003) Home Loan
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New Jersey Home Loan
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New Mexico Home Loan
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North Carolina Consumer Home Loan
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Oakland, Calif. Home Loan
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South Carolina Consumer Home Loan
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Sch-II-2
ANNEX 1
ADOPTION ANNEX
The purchase price for the Mortgage Loans pursuant to Section 2.03 is
the transfer to each of the Sellers on the Closing Date of the Transferor
Certificates and the proceeds from the sale of the Notes, each by its
respective portion.
The items referred to in the representations and warranties in
Section 3.02 are:
(12) _____% and _____% of the Mortgage Loans in Loan Group [1] and
Loan Group [2], respectively, being transferred on the relevant date (by
Cut-off Date Loan Balance) were 30-59 days delinquent (measured on a
contractual basis).
(18) As of the Cut-off Date no more than _____% and _____% of the
Mortgage Loans in Loan Group [1] and Loan Group [2], respectively, by
aggregate principal balance, are secured by Mortgaged Properties located in
one United States postal zip code.
(19) The Combined Loan-to-Value Ratio for each Mortgage Loan was not
in excess of [100.00]%.
(30) The weighted average remaining term to maturity of the Mortgage
Loans on a contractual basis as of the Cut-off Date is approximately _____ and
_____ months with respect to the Mortgage Loans in Loan Group [1] and Loan
Group [2], respectively. The Loan Rate Caps for the Mortgage Loans range
between _____% and _____% and _____% and _____% with respect to the Mortgage
Loans in Loan Group [1] and Loan Group [2], respectively, and the weighted
average Loan Rate Cap is approximately _____% and _____%, with respect to the
Mortgage Loans in Loan Group [1] and Loan Group [2], respectively. The Gross
Margins for the Mortgage Loans range between (_____)% and _____% and (_____)%
and _____% with respect to the Mortgage Loans in Loan Group [1] and Loan Group
[2], respectively, and the weighted average Gross Margin is approximately
_____% and _____% as of the Cut-off Date for the Mortgage Loans in Loan Group
[1] and Loan Group [2], respectively. The Loan Rates on the Mortgage Loans
range between _____% and _____% and _____% and _____% with respect to the
Mortgage Loans in Loan Group [1] and Loan Group [2], respectively, and the
weighted average Loan Rate on the Mortgage Loans is approximately _____% and
_____% with respect to the Mortgage Loans in Loan Group [1] and Loan Group
[2], respectively. As of the Cut-off Date, _____% and _____% of the Mortgage
Loans in Loan Group [1] and Loan Group [2], respectively, by aggregate
principal balance, have original principal balances (by credit limit) that
conform to Xxxxxx Xxx or Xxxxxxx Mac guidelines.
(32) No more than _____% and _____% (by Cut-off Date Loan Balance) of
the Mortgage Loans in Loan Group [1] and Loan Group [2], respectively, are
secured by real property improved by individual condominium units, units in
planned unit developments, townhouses, or two-to-four family residences
erected on them, and at least _____% and
Xxx-1-1
_____% (by Cut-off Date Loan Balance) of the Mortgage Loans in Loan Group [1]
and Loan Group [2], respectively, are secured by real property with a detached
one-family residence erected on them.
(33) The Credit Limits on the Mortgage Loans range between
approximately $__________ and $__________ and $__________ and $__________ with
an average of approximately $62,899 and $61,304 with respect to the Mortgage
Loans in Loan Group [1] and Loan Group [2], respectively. As of the Cut-off
Date, no Mortgage Loan had a principal balance in excess of approximately
$__________ and $__________ and the average principal balance of the Mortgage
Loans is equal to approximately $__________ and $__________ with respect to
the Mortgage Loans in Loan Group [1] and Loan Group [2], respectively.
(34) Approximately _____% and _____% of the Mortgage Loans of each
Loan Group, by aggregate principal balance as of the Cut-off Date for the
Mortgage Loans, are secured by first and second liens, respectively.
(35) As of the Closing Date, no more than _____% and _____% of the
Mortgage Loans in Loan Group [1] and Loan Group [2], respectively, by
aggregate principal balance, were appraised electronically.
(40) As of the Cut-off Date (based on the drawn balances), the
Mortgage Loans had a weighted average Combined Loan-to-Value Ratio of _____%
and _____%; a range of Combined Loan-to-Value Ratios between _____% and _____%
and _____% and _____%; a percentage of primary residences of _____% and
_____%; a weighted average FICO score of _____ and _____; a range of FICO
scores between _____ and _____ and _____ and _____; a Weighted Average Net
Loan Rate of _____% and _____%; a range of net Loan Rates between _____% and
_____% and _____% and _____%; a weighted average original stated term to
maturity of _____ and _____ months; a range of original term to maturity
between _____ and _____ months and _____ and _____ months; a range of
remaining term to maturity between _____ and _____ months and _____ and _____
months; an average drawn balance of $__________ and $__________; a weighted
average utilization ratio of _____% and _____%; and _____% and _____% of the
Mortgage Loans have their respective Mortgaged Properties located in the top
five states, measured by aggregate drawn balances, all with respect to the
Mortgage Loans in Loan Group [1] and Loan Group [2], respectively.
Xxx-1-2
