Exhibit 99.2
MORTGAGE LOAN PURCHASE AGREEMENT
between
TABERNA REALTY HOLDINGS TRUST
as Seller
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Purchaser
Dated as of
December 1, 2005
TABLE OF CONTENTS
PAGE
Section 1. Definitions..................................................................1
Section 2. Purchase and Sale of the Mortgage Loans and Related Rights...................3
Section 3. Mortgage Loan Schedule.......................................................4
Section 4. Mortgage Loan Transfer.......................................................4
Section 5. Examination of Originator's Mortgage Files...................................5
Section 6. [Reserved]...................................................................7
Section 7. Representations and Warranties of Seller Concerning the Mortgage Loans.......8
Section 8. Representations and Warranties Concerning the Seller........................11
Section 9. Representations and Warranties Concerning the Purchaser.....................12
Section 10. Conditions to Closing.......................................................13
Section 11. [Reserved]..................................................................15
Section 12. Accountants' Letters........................................................15
Section 13. Indemnification.............................................................16
Section 14. Notices.....................................................................18
Section 15. Transfer of Mortgage Loans..................................................18
Section 16. Termination.................................................................19
Section 17. Representations, Warranties and Agreements to Survive Delivery..............19
Section 18. Mandatory Delivery; Grant of Security Interest..............................19
Section 19. Severability................................................................20
Section 20. Counterparts................................................................20
Section 21. Amendment...................................................................20
Section 22. Governing Law...............................................................20
Section 23. Further Assurances..........................................................20
Section 24. Successors and Assigns......................................................20
Section 25. The Seller..................................................................21
Section 26. Entire Agreement............................................................21
Section 27. No Partnership..............................................................21
EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1 Mortgage Loan Schedule Information
Exhibit 2 Schedule of Lost Notes
Exhibit 3 S&P Index
MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of December 1, 2005,
as amended and supplemented by any and all amendments hereto (collectively, the
"Agreement"), by and between TABERNA REALTY HOLDINGS TRUST, a Maryland business
trust (the "Seller"), and XXXXXXX XXXXX MORTGAGE INVESTORS, INC., a Delaware
corporation (the "Purchaser").
Upon the terms and subject to the conditions of this Agreement,
the Seller agrees to sell, and the Purchaser agrees to purchase, certain first
lien, adjustable-rate mortgage loans secured by one- to four-family residences,
individual condominiums, co-op units and units in planned unit developments
(collectively, the "Mortgage Loans") as described herein. The Purchaser intends
to sell the Mortgage Loans to the Xxxxxxx Xxxxx Mortgage Investors Trust, Series
2005-A9 pursuant to the Sale and Servicing Agreement, dated December 22, 2005,
among the Seller, the Purchaser, as depositor, Xxxxxxx Xxxxx Mortgage Investors
Trust, Series 2005-A9, as issuer (the "Issuer"), Xxxxx Fargo Bank, N.A., as
master servicer and securities administrator (the "Securities Administrator")
and Wachovia Bank, N.A. as indenture trustee (the "Indenture Trustee") (the
"Sale and Servicing Agreement"). The Issuer will issue Mortgage Loan
Asset-Backed Notes, Series 2005-A9 pursuant to an Indenture, dated as of
December 22, 2005, among the Issuer, the Securities Administrator and the
Indenture Trustee (the "Indenture").
The Purchaser has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Number
333-127233) relating to its Mortgage Loan Asset-Backed Notes and the offering of
certain series thereof (including certain classes of the Notes) from time to
time in accordance with Rule 415 under the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder (the
"Securities Act"). Such registration statement, when it became effective under
the Securities Act, and the prospectus relating to the public offering of
certain classes of the Notes by the Purchaser (the "Public Offering"), as from
time to time each is amended or supplemented pursuant to the Securities Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively. The "Prospectus Supplement" shall mean that
supplement, dated December 20, 2005 to the Prospectus, dated August 26, 2005,
relating to certain classes of the Notes. With respect to the Public Offering of
certain classes of the Notes, the Purchaser and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") have entered into a terms agreement dated
as of December 19, 2005 to an underwriting agreement dated February 28, 2003,
between the Purchaser and Xxxxxxx Xxxxx (together, the "Underwriting
Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties hereto agree as follows:
Section 1. Definitions.
Certain terms are defined herein. Capitalized terms used herein
but not defined herein shall have the meanings specified in Appendix A to the
Indenture. The following other terms are defined as follows:
Xxxxxxx Xxxxx: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
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Originator's Mortgage File: The items provided in the respective
Transfer Agreement pertaining to a particular Mortgage Loan and any additional
documents required to be added to such documents pursuant to such Transfer
Agreement.
Purchase Price: With respect to any Mortgage Loan required to be
purchased by the Seller pursuant to the applicable provisions of this Agreement,
an amount equal to the sum of (i) 100% of the principal remaining unpaid on such
Mortgage Loan as of the date of purchase (including if a foreclosure has already
occurred, the principal balance of the related Mortgage Loan at the time the
Mortgaged Property was acquired), and (ii) accrued and unpaid interest thereon
at the Mortgage Interest Rate through and including the last day of the month of
purchase (iii) any costs and damages incurred by the Issuer in connection with
any violation by such Mortgage Loan of any predatory or abusive-lending law.
Transfer Agreement: Each of (1) the Seller's Warranties and
Servicing Agreement, dated as of October 1, 2005, by and between Xxxxxxx Xxxxx
Mortgage Lending, Inc., ("MLML") and Xxxxx Fargo Bank, N.A. ("WFB") (the "WFB
Agreement"); (2) the Assignment, Assumption and Recognition Agreement, dated
November 1, 2005, between MLML and the Seller, with respect to the WFB Agreement
(the "WFB AAR"); (3) the Master Mortgage Loan Purchase Agreement, dated as of
August 1, 2004, by and between MLML and Xxxxxxx Xxxxx Credit Corporation
("MLCC") (the "MLCC Agreement"); (4) the Assignment and Assumption Agreement,
dated November 1, 2005, between MLML and the Seller, with respect to the MLCC
Agreement (the "MLCC AAR"); (5) the Flow Mortgage Loan Purchase and Warranties
Agreement, dated as of September 1, 2005, between Xxxxxx Capital, a Division of
Xxxxxx Brothers Holdings, Inc. ("Xxxxxx") and the Seller (the "Xxxxxx
Agreement"); (6) the Master Mortgage Loan Purchase and Servicing Agreement,
dated November 1, 2004, between Xxxxxxx Xxxxx Bank, USA and Countrywide Home
Loans, Inc. (the "MLB Agreement"); (7) the Assignment and Assumption Agreement
dated November 30, 2005 between MLML and Xxxxxxx Xxxxx Bank, USA, with respect
to the MLB Agreement (the "MLB AAR"); (8) the Assignment, Assumption and
Recognition Agreement dated December 1, 2005 between MLML and the Seller, with
respect to the MLB AAR and the MLB Agreement (the "MLML AAR"); and (9) any other
transfer agreements relating to a Mortgage Loan.
Transferor: With respect to the WFB Agreement, WFB. With respect
to the MLCC Agreement, MLCC. With respect to the Xxxxxx Agreement, Xxxxxx. With
respect to the MLB Agreement, Countrywide. With respect to the MLB AAR, MLB.
With respect to the WFB AAR, the MLCC AAR and the MLML AAR, MLML.
Value: The value of the Mortgaged Property at the time of
origination of the related Mortgage Loan, such value being the lesser of (i) the
value of such property set forth in an appraisal accepted by the Originator or
(ii) the sales price of such property at the time of origination.
Section 2. Purchase and Sale of the Mortgage Loans and Related Rights.
(a) Upon satisfaction of the conditions set forth in Section 10
hereof, the Seller agrees to sell, and the Purchaser agrees to purchase Mortgage
Loans having an aggregate Cut-off Date Balance of $927,442,200.
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(b) The closing for the purchase and sale of the Mortgage Loans
and the closing for the issuance of the Notes will take place on the Closing
Date at the office of the Purchaser's counsel in New York, New York or such
other place as the parties shall agree.
(c) Upon the satisfaction of the conditions set forth in Section
10 hereof, on the Closing Date, in consideration of the purchase of the Mortgage
Loans, the Purchaser shall pay to the Seller an amount equal to the net sale
proceeds of the Notes plus accrued interest (the "Purchase Price") in
immediately available funds by wire transfer to such account or accounts as
shall be designated by the Seller.
(d) In addition to the foregoing, on the Closing Date the Seller
assigns to the Purchaser without recourse all of its right, title and interest
in the Transfer Agreements.
Section 3. Mortgage Loan Schedule.
The Seller agrees to provide to the Purchaser on or prior to the
Closing Date a schedule (the "Mortgage Loan Schedule") setting forth the
information listed on Exhibit 1 to this Agreement with respect to each of the
Mortgage Loans being sold by the Seller to the Purchaser. The Purchaser confirms
that the Mortgage Loan Schedule includes the information categories set forth on
Exhibit 1.
Section 4. Mortgage Loan Transfer.
(a) The Purchaser will be entitled to all scheduled payments of
principal and interest on the Mortgage Loans due after the Cut-off Date
(regardless of when actually collected) and all payments thereof other than
scheduled principal and interest received after the Cut-off Date. The Seller
will be entitled to all scheduled payments of principal and interest on the
Mortgage Loans due on or before the Cut-off Date (including payments collected
after the Cut-off Date) and all payments thereof other than scheduled principal
and interest on the Mortgage Loans received on or before the Cut-off Date. Such
principal amounts and any interest thereon belonging to the Seller as described
above will not be included in the aggregate outstanding principal balance of the
Mortgage Loans as of the Cut-off Date as set forth on the Mortgage Loan
Schedule.
(b) Pursuant to various conveyancing documents to be executed on
the Closing Date and pursuant to the Sale and Servicing Agreement and the
Indenture, the Purchaser will assign on the Closing Date all of its right, title
and interest in and to the Mortgage Loans to the Issuer, and the Issuer will
assign on the Closing Date all of its right, title in and to the Mortgage Loans
to the Indenture Trustee for the benefit of the Noteholders. In connection with
the transfer and assignment of the Mortgage Loans, the Seller (at the request of
the Purchaser) has delivered or will deliver or cause to be delivered to the
Custodian, on behalf of the Issuer, by the Closing Date or such later date as is
agreed to by the Purchaser and the Seller (each of the Closing Date and such
later date is referred to as a "Originator's Mortgage File Delivery Date"), the
items of each Originator's Mortgage File, provided, however, that in lieu of the
foregoing, the Seller may deliver the following documents, under the
circumstances set forth below: (x) in lieu of the original Mortgage, assignments
to the Indenture Trustee or intervening assignments thereof which have been
delivered, are being delivered or will upon receipt of recording
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information relating to the Mortgage required to be included thereon, be
delivered to recording offices for recording and have not been returned in time
to permit their delivery as specified above, the Seller may deliver a true copy
thereof with a certification by the Seller or the Originator, on the face of
such copy, substantially as follows: "Certified to be a true and correct copy of
the original, which has been transmitted for recording;" (y) in lieu of the
Mortgage, assignments to the Indenture Trustee or intervening assignments
thereof, if the applicable jurisdiction retains the originals of such documents
or if the originals are lost (in each case, as evidenced by a certification from
the Seller to such effect), the Seller may deliver photocopies of such documents
containing an original certification by the judicial or other governmental
authority of the jurisdiction where such documents were recorded; and (z) in
lieu of the Mortgage Notes relating to the Mortgage Loans, each identified in
the list delivered by the Purchaser to the Indenture Trustee on the Closing Date
and attached hereto as Exhibit 2 the Seller may deliver lost note affidavits and
indemnities of the Seller; and provided further, however, that in the case of
Mortgage Loans which have been prepaid in full after the Cut-off Date and prior
to the Closing Date, the Seller, in lieu of delivering the above documents, may
deliver to the Indenture Trustee a certification by the Seller to such effect.
The Seller shall deliver such original documents (including any original
documents as to which certified copies had previously been delivered) or such
certified copies to the Custodian, on behalf of the Issuer, or the Indenture
Trustee promptly after they are received.
(c) The Seller and the Purchaser acknowledge hereunder that all
of the Mortgage Loans and the related servicing therefor will ultimately be
assigned to Wachovia Bank, National Association, as Indenture Trustee for the
Noteholders, on the date hereof.
Section 5. Examination of Originator's Mortgage Files.
(a) On or before the Originator's Mortgage File Delivery Date,
the Seller will have made the Originator's Mortgage Files available to the
Purchaser or its agent for examination which may be at the offices of the
Indenture Trustee, the Seller or the Custodian. The fact that the Purchaser or
its agent has conducted or has failed to conduct any partial or complete
examination of the Originator's Mortgage Files shall not affect the Purchaser's
rights to demand cure, repurchase, substitution or other relief as provided in
this Agreement. In furtherance of the foregoing, the Seller shall make the
Originator's Mortgage Files available to the Purchaser or its agent from time to
time so as to permit the Purchaser to confirm the Seller's compliance with the
delivery requirements of this Agreement and the Sale and Servicing Agreement. In
addition, upon request of the Purchaser, the Seller agrees to provide to the
Purchaser and Xxxxxxx Xxxxx information regarding the Mortgage Loans and their
servicing, to make the Originator's Mortgage Files available to the Purchaser
and Xxxxxxx Xxxxx (which may be at the offices of the Seller and/or the
Custodian) and to make available personnel knowledgeable about the Mortgage
Loans for discussions with the Purchaser and Xxxxxxx Xxxxx, upon reasonable
request during regular business hours, sufficient to permit the Purchaser and
Xxxxxxx Xxxxx to conduct such due diligence as any such party reasonably
believes is appropriate.
(b) Pursuant to the Sale and Servicing Agreement, on the Closing
Date the Indenture Trustee or its designee, for the benefit of the Noteholders,
will review items of the
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Originator's Mortgage Files and will deliver to the Seller a certification in
the form attached as Exhibit One to the Custodial Agreement.
(c) Pursuant to the Sale and Servicing Agreement, the Indenture
Trustee, or its designee, will review the Originator's Mortgage Files within 180
days of the Closing Date and will deliver to the Purchaser a final certification
substantially in the form of Exhibit Three to the Custodial Agreement. If the
Indenture Trustee, or its designee, is unable to deliver a final certification
due to any document that is missing, has not been executed, is unrelated,
determined on the basis of the Mortgagor name, original principal balance and
loan number, to the Mortgage Loans identified in the Mortgage Loan Schedule (a
"Material Defect"), the Indenture Trustee shall notify the Seller of such
Material Defect. The Seller shall correct or cure any such Material Defect
within 90 days from the date of notice from the Indenture Trustee of the
Material Defect (or such other time period specified in the related Transfer
Agreement) and if the Seller does not correct or cure such Material Defect
within such period and such defect materially and adversely affects the
interests of the Noteholders in the related Mortgage Loan, the Seller will, in
accordance with the terms of the Sale and Servicing Agreement, within 90 days of
the date of notice (or such other time period specified in the related Transfer
Agreement), provide the Indenture Trustee with a Substitute Mortgage Loan or
purchase the related Mortgage Loan at the applicable Purchase Price, it being
understood and agreed by the parties hereto that the Seller's obligation to
repurchase any Mortgage Loan hereunder is no greater than the Seller's right to
cause the applicable Transferor to repurchase such Mortgage Loan pursuant to the
applicable Transfer Agreement; provided, however, that if such defect relates
solely to the inability of the Seller to deliver the original security
instrument or intervening assignments thereof, or a certified copy because the
originals of such documents, or a certified copy, have not been returned by the
applicable jurisdiction, the Seller shall not be required to purchase such
Mortgage Loan if the Seller delivers such original documents or certified copy
promptly upon receipt, but in no event later than 360 days after the Closing
Date (or such other time period specified in the related Transfer Agreement).
The foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver such original or copy of any document submitted for recording to
the appropriate recording office in the applicable jurisdiction because such
document has not been returned by such office; provided that the Seller shall
instead deliver a recording receipt of such recording office or, if such receipt
is not available, a certificate of the Seller confirming that such documents
have been accepted for recording, and delivery to the Indenture Trustee, or its
designee, shall be effected by the Seller within thirty days of its receipt of
the original recorded document.
(d) At the time of any substitution, the Seller shall deliver or
cause to be delivered the Substitute Mortgage Loan, the related Originator's
Mortgage File and any other documents and payments required to be delivered in
connection with a substitution pursuant to the Sale and Servicing Agreement. At
the time of any purchase or substitution, the Indenture Trustee shall (i) assign
to the Seller and cause the Indenture Trustee to release the documents
(including, but not limited to, the Mortgage, Mortgage Note and other contents
of the Originator's Mortgage File) in the possession of the Indenture Trustee
relating to the Deleted Mortgage Loan and (ii) execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be necessary to vest in the Seller title to such Deleted Mortgage Loan.
(e) It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by the Seller to the Purchaser, as contemplated
by this Agreement be, and be treated as, a sale. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller. However, in the event that, notwithstanding the intent of the parties,
the Mortgage
5
Loans are held by a court of competent jurisdiction to continue to be property
of the Seller, then (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the applicable Uniform
Commercial Code; (ii) the transfer of the Mortgage Loans provided for herein
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title and interest in and to the Mortgage
Loans and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, to the extent the Purchaser would otherwise be entitled to own such
Mortgage Loans and proceeds pursuant to Section 4 hereof, including all amounts,
other than investment earnings, from time to time held or invested in any
accounts created pursuant to the Sale and Servicing Agreement, whether in the
form of cash, instruments, securities or other property; (iii) the possession by
the Purchaser or the Indenture Trustee of Mortgage Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 (or comparable
provision) of the applicable Uniform Commercial Code; and (iv) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose of perfecting
such security interest under applicable law. Any assignment of the interest of
the Purchaser pursuant to any provision hereof or pursuant to the Sale and
Servicing Agreement or the Indenture shall also be deemed to be an assignment of
any security interest created hereby. The Seller and the Purchaser shall, to the
extent consistent with this Agreement, take such actions as may be reasonably
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Sale and Servicing Agreement and
the Indenture.
Section 6. [Reserved].
Section 7. Representations and Warranties of Seller Concerning the Mortgage
Loans.
(a) The representations and warranties of each Transferor with
respect to the Mortgage Loans contained in the applicable Transfer Agreement
were made as of the date specified in such Transfer Agreement. To the extent
that any fact, condition or event with respect to a Mortgage Loan constitutes a
breach of both (i) a representation or warranty of a Transferor under the
applicable Transfer Agreement and (ii) a representation or warranty of the
Seller under this Agreement, the sole right or remedy of the Purchaser with
respect to a breach by the Seller of such representation and warranty (other
than a breach by the Seller of the representations and warranties made pursuant
to Sections 7(a)(vii) and 7(a)(viii)) shall be the right to enforce the
obligations of the applicable Transferor under any applicable representation or
warranty made by it. The representations made by the Seller pursuant to Sections
7(a)(vii) and 7(a)(viii) shall be direct obligations of the Seller. The
Purchaser acknowledges and agrees that the representations and warranties of the
Seller in this Section 7(a) (other than a breach by the Seller of the
representations and warranties made pursuant to Sections 7(a)(vii) and
7(a)(viii)) are applicable only to facts, conditions or events that do not
constitute a breach of any representation or
6
warranty made by a Transferor in the applicable Transfer Agreement. The Seller
shall have no obligation or liability with respect to any breach of a
representation or warranty made by it with respect to the Mortgage Loans if the
fact, condition or event constituting such breach also constitutes a breach of a
representation or warranty made by a Transferor in the applicable Transfer
Agreement, without regard to whether such Transferor fulfills its contractual
obligations in respect of such representation or warranty; provided, however,
that if such Transferor fulfills its obligations under the provisions of the
applicable Transfer Agreement by substituting for the affected Mortgage Loan a
mortgage loan which is not a Replacement Mortgage Loan, the Seller shall, in
exchange for such substitute mortgage loan, provide the Purchaser (a) with the
applicable Purchase Price for the affected Mortgage Loan or (b) with a Qualified
Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the
foregoing, the Seller represents and warrants upon delivery of the Mortgage
Loans to the Purchaser hereunder, as to each, that as of December 22, 2005:
(i) The Seller is the lawful owner of the Mortgage Loans
with the full right to transfer the Mortgage Loans and any and all of
its interests, rights and obligations under the Transfer Agreements as
they relate to the Mortgage Loans, free and clear of any and all liens,
claims and encumbrances whatsoever;
(ii) The information set forth with respect to the
Mortgage Loans on the Mortgage Loan Schedule provides an accurate
listing of the Mortgage Loans, and the information with respect to each
Mortgage Loan on the Mortgage Loan Schedule is true and correct in all
material respects at the date or dates respecting which such information
is given;
(iii) The representations and warranties contained
paragraph 3(c), (d) and (i) in the MLCC AAR and the representations and
warranties contained in Xxxxxxx 0.00 (x), (x), (x), (x), (x), (x), (x),
of the MLCC Agreement, which with respect to the related Mortgage Loans
were assigned by MLML to the Seller Pursuant to the MLCC AAR, are hereby
restated by the Seller as of the Closing Date;
(iv) The representations and warranties contained in
paragraph 4 (c) and (d) in the MLML AAR, and the representations and
warranties contained in section 7.02(iv), (v), (vi), (vii), (x),
(xviii), (xxiii), (xxviii), (xxxiv), (xxxvii), (xlvii) in the MLB
Agreement, which with respect to the related Mortgage Loans were
assigned to MLML pursuant to the MLB AAR, and which were in turn
assigned, with respect to the related Mortgage Loans, to the Seller
pursuant to the MLML AAR, are hereby restated by the Seller as of the
Closing Date;
(v) The representations and warranties contained in
Section 6(b)-(e), (i), (t), (v), (y) and (ee) in the Xxxxxx Agreement
are hereby restated by the Seller as of the Closing Date;
7
(vi) The representations and warranties contained in
Paragraph 3(c), (d), in the WFB AAR, and the representations and
warranties contained in Xxxxxxx 0.00(x), (x), (x), (x), (x), (xx), (xx)
and (qq) in the WFB Agreement, which were assigned to the Seller
pursuant to the WFB AAR with respect to the related Mortgage Loans, are
hereby restated by the Seller as of the Closing Date;
(vii) None of the Mortgage Loans are "high cost" as
defined by applicable predatory and abusive lending laws; no Mortgage
Loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the current Standard & Poor's LEVELS(R) Glossary which is
now Version 5.6(c) Revised, Appendix E, attached hereto as Exhibit 3)
and no mortgage loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act; and
(viii) Each Mortgage Loan at the time it was made complied
with all applicable local, state and federal lending laws, including,
but not limited to, all applicable predatory and abusive lending laws.
(b) It is understood and agreed that the representations and
warranties set forth in Section 7.04(a) herein shall survive delivery of the
Originator's Mortgage Files and the Assignment of Mortgage of each Mortgage Loan
to the Purchaser. Upon discovery by either the Seller or the Purchaser of a
breach of any of the foregoing representations and warranties that adversely and
materially affects the value of the related Mortgage Loan, and that does not
also constitute a breach of a representation or warranty of a Transferor in the
applicable Transfer Agreement, the party discovering such breach shall give
prompt written notice to the other party. Within 90 days (or such other time
specified in the applicable Transfer Agreement) of the discovery of any
such breach, the Seller shall either (a) cure such breach in all material
respects, (b) repurchase such Mortgage Loan or any property acquired in respect
thereof from the Purchaser at the applicable Purchase Price or (c) substitute a
Replacement Mortgage Loan for the affected Mortgage Loan.
Section 8. Representations and Warranties Concerning the Seller.
As of the date hereof and as of the Closing Date, the Seller
represents and warrants to the Purchaser as to itself in the capacity indicated
as follows:
(a) the Seller (i) is a business trust duly formed, validly
existing and in good standing under the laws of the State of Maryland and (ii)
is qualified and in good standing to do business in each jurisdiction where such
qualification is necessary, except where the failure so to qualify would not
reasonably be expected to have a material adverse effect on the Seller's
business as presently conducted or on the Seller's ability to enter into this
Agreement and to consummate the transactions contemplated hereby;
(b) the Seller has full power to own its property, to carry on
its business as presently conducted and to enter into and perform its
obligations under this Agreement;
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(c) the execution and delivery by the Seller of this Agreement
have been duly authorized by all necessary action on the part of the Seller; and
neither the execution and delivery of this Agreement, nor the consummation of
the transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under, any
of the provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Seller or its properties or the charter or by-laws of the
Seller, except those conflicts, breaches or defaults which would not reasonably
be expected to have a material adverse effect on the Seller's ability to enter
into this Agreement and to consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Seller of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given or
made and, in connection with the recordation of the Mortgages, powers of
attorney or assignments of Mortgages not yet completed;
(e) this Agreement has been duly executed and delivered by the
Seller and, assuming due authorization, execution and delivery by the Purchaser,
constitutes a valid and binding obligation of the Seller enforceable against it
in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally);
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Seller, threatened against the Seller, before or by any court,
administrative agency, arbitrator or governmental body (i) with respect to any
of the transactions contemplated by this Agreement or (ii) with respect to any
other matter which in the judgment of the Seller will be determined adversely to
the Seller and will if determined adversely to the Seller materially and
adversely affect the Seller's ability to perform its obligations under this
Agreement; and the Seller is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement;
and
(g) The Seller is qualified as of the date hereof and will
qualify at all times that the Notes are Outstanding as a real estate investment
trust within the meaning of Section 856 of the Code.
(h) The Seller will hold all Notes (other than the Offered Notes
(as defined in the Indenture) or Notes with respect to which a "will be debt"
for federal income tax purposes opinion has been delivered by nationally
recognized federal income tax counsel) either directly or through one or more
subsidiaries, each of which is either a "qualified REIT subsidiary" within the
meaning of Section 856(i)(2) of the Code or a disregarded entity under a
Treasury Regulation promulgated pursuant to Section 7701 of the Code.
Section 9. Representations and Warranties Concerning the Purchaser.
As of the date hereof and as of the Closing Date, the Purchaser
represents and warrants to the Seller as follows:
9
(a) the Purchaser (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and (ii)
is qualified and in good standing as a foreign corporation to do business in
each jurisdiction where such qualification is necessary, except where the
failure so to qualify would not reasonably be expected to have a material
adverse effect on the Purchaser's business as presently conducted or on the
Purchaser's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(b) the Purchaser has full corporate power to own its property,
to carry on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(c) the execution and delivery by the Purchaser of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Purchaser; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Purchaser or its properties or the
articles of incorporation or by-laws of the Purchaser, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Purchaser's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(d) the execution, delivery and performance by the Purchaser of
this Agreement and the consummation of the transactions contemplated hereby do
not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except those consents,
approvals, notices, registrations or other actions as have already been
obtained, given or made;
(e) this Agreement has been duly executed and delivered by the
Purchaser and, assuming due authorization, execution and delivery by the Seller,
constitutes a valid and binding obligation of the Purchaser enforceable against
it in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally);
(f) there are no actions, suits or proceedings pending or, to the
knowledge of the Purchaser, threatened against the Purchaser, before or by any
court, administrative agency, arbitrator or governmental body (i) with respect
to any of the transactions contemplated by this Agreement or (ii) with respect
to any other matter which in the judgment of the Purchaser will be determined
adversely to the Purchaser and will if determined adversely to the Purchaser
materially and adversely affect the Purchaser's ability to perform its
obligations under this Agreement; and the Purchaser is not in default with
respect to any order of any court, administrative agency, arbitrator or
governmental body so as to materially and adversely affect the transactions
contemplated by this Agreement; and
10
Section 10. Conditions to Closing.
(a) The obligations of the Purchaser under this Agreement will be
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) Each of the obligations of the Seller required to be
performed at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with in all
material respects; all of the representations and warranties of the
Seller under this Agreement shall be true and correct as of the date or
dates specified in all material respects; and no event shall have
occurred which, with notice or the passage of time, would constitute a
default under this Agreement.
(ii) The Purchaser shall have received all of the
following closing documents, in such forms as are agreed upon and
reasonably acceptable to the Purchaser, duly executed by all signatories
other than the Purchaser as required pursuant to the respective terms
thereof:
(A) [Reserved];
(B) The Mortgage Loan Schedule containing the
information set forth on Exhibit 1 hereto;
(C) Each of the Sale and Servicing Agreement and
the Indenture, in form and substance reasonably satisfactory to
the Indenture Trustee and the Purchaser, and all documents
required thereby duly executed by all signatories;
(D) A certificate of an officer of the Seller dated
as of the Closing Date, in a form reasonably acceptable to the
Purchaser, and attached thereto the resolutions of the Seller's
authorizing the transactions contemplated by this Agreement,
together with copies of the charter and by-laws of the Seller;
(E) One or more opinions of counsel from the
Seller's counsel otherwise in form and substance reasonably
satisfactory to the Purchaser, the Indenture Trustee and each
Rating Agency;
(F) A letter from each of the Rating Agencies
rating each Class of Notes, as applicable;
(G) Such other documents, certificates (including
additional representations and warranties) and opinions as may be
reasonably necessary to secure the intended ratings from each
Rating Agency for the Notes.
(iii) The Notes to be sold to Xxxxxxx Xxxxx pursuant to
the Underwriting Agreement shall have been issued and sold to Xxxxxxx
Xxxxx.
(iv) The Seller shall have furnished to the Purchaser such
other certificates of its officers or others and such other documents
and opinions of counsel to
11
evidence fulfillment of the conditions set forth in this Agreement and
the transactions contemplated hereby as the Purchaser and its counsel
may reasonably request.
(b) The obligations of the Seller under this Agreement shall be
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions:
(i) The obligations of the Purchaser required to be
performed by it on or prior to the Closing Date pursuant to the terms of
this Agreement shall have been duly performed and complied with in all
material respects, and all of the representations and warranties of the
Purchaser under this Agreement shall be true and correct in all material
respects as of the date hereof and as of the Closing Date, and no event
shall have occurred which would constitute a breach by it of the terms
of this Agreement, and the Seller shall have received a certificate to
that effect signed by an authorized officer of the Purchaser.
(ii) The Seller shall have received copies of all of the
following closing documents, in such forms as are agreed upon and
reasonably acceptable to the Seller, duly executed by all signatories
other than the Seller as required pursuant to the respective terms
thereof:
(A) [Reserved];
(B) Each of the Sale and Servicing Agreement and
the Indenture, in form and substance reasonably satisfactory to
the Seller, and all documents required thereby duly executed by
all signatories;
(C) A certificate of an officer of the Purchaser
dated as of the Closing Date, in a form reasonably acceptable to
the Seller, and attached thereto the resolutions of the Purchaser
authorizing the transactions contemplated by this Agreement, the
Sale and Servicing Agreement and the Indenture, together with
copies of the Purchaser's articles of incorporation, and evidence
as to the good standing of the Purchaser dated as of a recent
date;
(D) One or more opinions of counsel from the
Purchaser's counsel in form and substance reasonably satisfactory
to the Seller; and
(E) Such other documents, certificates (including
additional representations and warranties) and opinions as may be
reasonably necessary to secure the intended rating from each
Rating Agency for the Notes;
Section 11. [Reserved].
Section 12. Notices.
All demands, notices and communications hereunder shall be in
writing but may be delivered by facsimile transmission subsequently confirmed in
writing. Notices to the Seller shall be directed to Taberna Realty Holdings
Trust, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, XX 00000, Attn: Xxxx
Xxxxxx, with a copy to the same address, Attn: Xxxxxxx Xxxxx, and notices
12
to the Purchaser shall be directed to Xxxxxxx Xxxxx Mortgage Investors, Inc., 0
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Telecopy: 212-449-6710),
Attention: Xxxx Xxxxxx; or to any other address as may hereafter be furnished by
one party to the other party by like notice. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
received at the premises of the addressee (as evidenced, in the case of
registered or certified mail, by the date noted on the return receipt) provided
that it is received on a business day during normal business hours and, if
received after normal business hours, then it shall be deemed to be received on
the next business day.
Section 13. Transfer of Mortgage Loans.
The Purchaser retains the right to assign the Mortgage Loans and
any or all of its interest under this Agreement to the Issuer without the
consent of the Seller, and, upon such assignment, the Issuer shall succeed to
the applicable rights and obligations of the Purchaser hereunder; provided,
however, the Purchaser shall remain entitled to the benefits set forth in
Sections 11 and 14 hereto and as provided in Section 2(a). Notwithstanding the
foregoing, the sole and exclusive right and remedy of the Indenture Trustee with
respect to a breach of representation or warranty of the Seller shall be the
purchase or substitution obligations of the Seller contained in Sections 5 and 7
hereof.
Section 14. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Seller submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans to the Purchaser (and by the Purchaser to
the Indenture Trustee). Subsequent to the delivery of the Mortgage Loans to the
Purchaser, the Seller's representations and warranties contained herein with
respect to the Mortgage Loans shall be deemed to relate to the Mortgage Loans
actually delivered to the Purchaser and included in the Mortgage Loan Schedule
and any Substitute Mortgage Loan.
Section 15. Mandatory Delivery; Grant of Security Interest.
The sale and delivery on the Closing Date of the Mortgage Loans
described on the Mortgage Loan Schedule in accordance with the terms and
conditions of this Agreement is mandatory. It is specifically understood and
agreed that each Mortgage Loan is unique and identifiable on the date hereof and
that an award of money damages would be insufficient to compensate the Purchaser
for the losses and damages incurred by the Purchaser in the event of the
Seller's failure to deliver the Mortgage Loans on or before the Closing Date.
The Seller hereby grants to the Purchaser a lien on and a continuing security
interest in the Seller's interest in each Mortgage Loan and each document and
instrument evidencing each such Mortgage Loan to secure the performance by the
Seller of its obligation hereunder, and the Seller agrees that it holds such
Mortgage Loans in custody for the Purchaser, subject to the Purchaser's
obligation to deliver or cause to be delivered the consideration for the
Mortgage Loans pursuant to Section 2 hereof. The Seller agrees that, upon
acceptance of the Mortgage Loans by the Purchaser or its designee and delivery
of payment to the Seller, that its security interest in the Mortgage Loans shall
be released. All rights and remedies of the Purchaser under this Agreement are
distinct
13
from, and cumulative with, any other rights or remedies under this Agreement or
afforded by law or equity and all such rights and remedies may be exercised
concurrently, independently or successively.
Notwithstanding the foregoing, if on the Closing Date, each of
the conditions set forth in Section 10 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the purchase price as
described in Section 2 hereof, or any such condition shall not have been waived
or satisfied and the Purchaser determines not to pay or cause to be paid the
purchase price, the Purchaser shall immediately effect the redelivery of the
Mortgage Loans, if delivery to the Purchaser has occurred and the security
interest created by this Section 18 shall be deemed to have been released.
Section 16. Severability.
Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement which is prohibited or
unenforceable or is held to be void or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof.
Section 17. Counterparts.
This Agreement may be executed in counterparts, each of which
will be an original, but which together shall constitute one and the same
agreement.
Section 18. Amendment.
This Agreement cannot be amended or modified in any manner
without the prior written consent of each party.
Section 19. GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE AND PERFORMED IN
THE STATE OF NEW YORK AND SHALL BE INTERPRETED IN ACCORDANCE WITH THE INTERNAL
LAWS OF SUCH STATE.
Section 20. Further Assurances.
Each of the parties agrees to execute and deliver such
instruments and take such actions as another party may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement including any amendments hereto which may be required by
either Rating Agency.
14
Section 21. Successors and Assigns.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser and their permitted successors and
assigns and, to the extent specified in Section 13 hereof, Xxxxxxx Xxxxx, and
their directors, officers and controlling persons (within the meaning of federal
securities laws). The Seller acknowledges and agrees that the Purchaser may
assign its rights under this Agreement (including, without limitation, with
respect to the Seller's representations and warranties respecting the Mortgage
Loans) to the Indenture Trustee. Any person into which the Seller may be merged
or consolidated (or any person resulting from any merger or consolidation
involving the Seller), any person resulting from a change in form of the Seller
or any person succeeding to the business of the Seller, shall be considered the
"successor" of the Seller hereunder and shall be considered a party hereto
without the execution or filing of any paper or any further act or consent on
the part of any party hereto. Except as provided in the two preceding sentences,
this Agreement cannot be assigned, pledged or hypothecated by either party
hereto without the written consent of the other parties to this Agreement and
any such assignment or purported assignment shall be deemed null and void.
Section 22. The Seller.
The Seller will keep in full effect all rights as are necessary
to perform their respective obligations under this Agreement.
Section 23. Entire Agreement.
This Agreement contains the entire agreement and understanding
between the parties with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever with
respect to the subject matter hereof.
Section 24. No Partnership.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the parties hereto have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
TABERNA REALTY HOLDINGS TRUST
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.
By:
----------------------------------------
Name:
Title:
16
EXHIBIT 1
MORTGAGE LOAN SCHEDULE INFORMATION
The Mortgage Loan Schedule shall set forth the following
information with respect to each Mortgage Loan:
(a) the loan number of the mortgage loan;
(b) the city, state and zip code of the Mortgage Property;
(c) a code indicating whether the Mortgaged Property is owner
occupied;
(d) the type of Residential Dwelling constituting the
Mortgaged Property;
(e) the original months to maturity;
(f) the original date of the mortgage;
(g) the Loan to Value Ratio at origination;
(h) the Mortgage Rate;
(i) the date on which the first Monthly Payment was due on the
Mortgage Loan;
(j) the stated maturity date;
(k) the amount of the Monthly Payment at origination;
(l) the amount of the Monthly Payment as of the Cut off Date;
(m) the last Due Date on which a Monthly Payment was actually
applied to the unpaid Stated Principal Balance;
(n) the original principal amount of the Mortgage Loan;
(o) the Stated Principal Balance of the Mortgage Loan as of
the close of business on the Cut off Date;
(p) a code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, Rate/Term Refinancing, Cash Out Refinancing);
(q) a code indicating the documentation style (i.e., full,
alternative or reduced);
(r) [reserved];
(s) the Value of the Mortgaged Property;
1-1
(t) the sale price of the Mortgaged Property, if applicable;
(u) the actual unpaid principal balance of the Mortgage Loan
as of the Cut off Date;
(v) the Servicing Fee;
(w) [reserved];
(x) the next Interest Rate Adjustment Date;
(y) the Gross Margin;
(z) the Minimum and Maximum Mortgage Rate under the terms of
the Mortgage Note;
(aa) the First Rate Cap;
(bb) the related Periodic Rate Cap;
(cc) whether additional collateral exists;
(dd) whether it is interest-only; and
(ee) the Seller.
Such schedule shall set forth the following information with
respect to the Mortgage Loans in the aggregate as of the Cut off Date: (1) the
number of Mortgage Loans; (2) the current principal balance of the Mortgage
Loans; (3) the weighted average Mortgage Rate of the Mortgage Loans; and (4) the
weighted average maturity of the Mortgage Loans.
1-2
EXHIBIT 2
SCHEDULE OF LOST NOTES
[Intentionally Omitted]
2-1
EXHIBIT 3
REVISED February 07, 0000
XXXXXXXX X - 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
Category under
Name of Anti-Predatory Applicable Anti-
State/Jurisdiction Lending Law/Effective Date Predatory Lending Law
------------------ -------------------------- ---------------------
Arkansas Arkansas Home Loan Protection Act, Ark. Code High Cost Home Loan
Xxx. Sections 00-00-000 et seq.
Effective July 16, 0000
Xxxxxxxxx Xxxxxxx, XX Ordinance No. 72-2003 (PSH), Mun. Code Covered Loan
Sections 757.01 et seq.
Effective June 2, 2003
Colorado Consumer Equity Protection, Colo. Stat. Xxx. Covered Loan
Sections 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, 0000
Xxxxxxxxxxx Xxxxxxxxxxx Abusive Home Loan Lending High Cost Home Loan
Practices Act, Conn. Gen. Stat. Sections
36a-746 et seq.
Effective October 1, 0000
Xxxxxxxx xx Xxxxxxxx Home Loan Protection Act, D.C. Code Sections Covered Loan
26-1151.01 et seq.
Effective for loans closed on or after
January 28, 2003
3-1
Category under
Name of Anti-Predatory Applicable Anti-
State/Jurisdiction Lending Law/Effective Date Predatory Lending Law
------------------ -------------------------- ---------------------
Florida Fair Lending Act, Fla. Stat. Xxx. Sections High Cost Home Loan
494.0078 et seq.
Effective October 2, 2002
Georgia (Oct. 1, 0000 - Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. High Cost Home Loan
Mar. 6, 2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
Georgia as amended Georgia Fair Lending Act, Ga. Code Xxx. High Cost Home Loan
(Mar. 7, 2003 - current) Sections 7-6A-1 et seq.
Effective for loans closed on or after Xxxxx
0, 0000
XXXXX Section 32 Home Ownership and Equity Protection Act of High Cost Loan
1994, 15 U.S.C. Section 1639, 12 C.F.R.
Sections 226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
Illinois High Risk Home Loan Act, Ill. Comp. Stat. High Risk Home Loan
tit. 815, Sections 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, Ind. Code High Cost Home Loan
Xxx. Sections 24-9-1-1 et seq.
Effective for loans originated on or after
January 1, 2005.
Kansas Consumer Credit Code, Kan. Stat. Xxx. High Loan to Value
Sections 16a-1-101 et seq. Consumer Loan (id.
Sections 16a-1-301 and 16a-3-207 became Section 16a-3-207) and;
effective April 14, 1999; Section 16a-3-308a
became effective July 1, 1999 High APR Consumer Loan
(id. Section 16a-3-308a)
Kentucky 2003 KY H.B. 287 - High Cost Home Loan Act, High Cost Home Loan
Ky. Rev. Stat. Sections 360.100 et seq.
Effective June 24, 2003
3-2
Category under
Name of Anti-Predatory Applicable Anti-
State/Jurisdiction Lending Law/Effective Date Predatory Lending Law
------------------ -------------------------- ---------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, High Rate High Fee
Sections 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. Sections High Cost Home Loan
32.00 et seq. and 209 C.M.R. Sections 40.01
et seq.
Effective March 22, 2001 and amended from
time to time
Massachusetts Predatory Home Loan Practices High Cost Home Mortgage
Act Loan
Mass. Gen. Laws ch. 183C, Sections 1 et seq.
Effective November 7, 2004
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. Home Loan
Sections 598D.010 et seq.
Effective October 1, 2003
New Jersey New Jersey Home Ownership Security Act of High Cost Home Loan
2002, N.J. Rev. Stat. Sections 46:10B-22 et
seq.
Effective for loans closed on or after
November 27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. Stat. High Cost Home Loan
Sections 58-21A-1 et seq.
Effective as of January 1, 2004; Revised as
of February 26, 2004
New York N.Y. Banking Law Article 6-1 High Cost Home Loan
Effective for applications made on or after
April 1, 2003
North Carolina Restrictions and Limitations on High Cost High Cost Home Loan
Home Loans, N.C. Gen. Stat. Sections 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 sections of Covered Loan
the Ohio Code), Ohio Rev. Code Xxx. Sections
1349.25 et seq.
Effective May 24, 2002
3-3
Category under
Name of Anti-Predatory Applicable Anti-
State/Jurisdiction Lending Law/Effective Date Predatory Lending Law
------------------ -------------------------- ---------------------
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
South Carolina South Carolina High Cost and Consumer Home High Cost Home Loan
Loans Act, S.C. Code Xxx. Sections 37-23-10
et seq.
Effective for loans taken on or after
January 1, 0000
Xxxx Xxxxxxxx Xxxx Xxxxxxxx Residential Mortgage Lender, West Virginia Mortgage
Broker and Servicer Act, W. Va. Code Xxx. Loan Act Loan
Sections 31-17-1 et seq.
Effective June 5, 2002
STANDARD & POOR'S COVERED LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------ --------------------------
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. Covered Loan
- Mar. 6, 2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
0000
Xxx Xxxxxx Xxx Xxxxxx Home Ownership Security Act Covered Home Loan
of 2002, N.J. Rev. Stat. Sections
46:10B-22 et seq.
Effective November 27, 2003 - July 5,
2004
STANDARD & POOR'S HOME LOAN CATEGORIZATION
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------ --------------------------
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Xxx. Home Loan
- Mar. 6, 2003) Sections 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
3-4
Name of Anti-Predatory Lending Category under Applicable
State/Jurisdiction Law/Effective Date Anti-Predatory Lending Law
------------------ ------------------ --------------------------
New Jersey New Jersey Home Ownership Security Act Home Loan
of 2002, N.J. Rev. Stat. Sections
46:10B-22 et seq.
Effective for loans closed on or after
November 27, 2003
New Mexico Home Loan Protection Act, N.M. Rev. Home Loan
Stat. Sections 58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
North Carolina Restrictions and Limitations on High Consumer Home Loan
Cost Home Loans, N.C. Gen. Stat.
Sections 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 Consumer Home Loan
Home Loans Act, S.C. Code Xxx. Sections
37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
3-5
