EXHIBIT 99.2
EXECUTION COPY
==============================================================================
COUNTRYWIDE HOME LOANS, INC.
Seller
CWABS, INC.
Purchaser
----------------------------------
PURCHASE AGREEMENT
Dated as of April 25, 2003
----------------------------------
REVOLVING HOME EQUITY LOAN ASSET BACKED NOTES
Series 2003-D
==============================================================================
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
Section 1.01. Definitions......................................................................3
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of the Mortgage Loans.......................................................4
Section 2.02. Obligations of Seller Upon Sale..................................................4
Section 2.03. Payment of Purchase Price for the Mortgage Loans.................................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01. Seller Representations and Warranties............................................7
Section 3.02. Seller Representations and Warranties Relating to the Mortgage loans.............8
ARTICLE IV
SELLER'S COVENANTS
Section 4.01. Covenants of the Seller.........................................................15
ARTICLE V
SERVICING
Section 5.01. Servicing.......................................................................16
ARTICLE VI
TERMINATION
Section 6.01. Termination.....................................................................16
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.......................................................................16
Section 7.02. Governing Law...................................................................16
Section 7.03. Notices.........................................................................16
Section 7.04. Severability of Provisions......................................................17
Section 7.05. Counterparts....................................................................17
i
Section 7.06. Further Agreements..............................................................17
Section 7.07. Successors and Assigns: Assignment of Purchase Agreement........................17
Section 7.08. Survival........................................................................18
SCHEDULES AND ANNEXES
Schedule I ................................................................................20
Annex I ...........................................................................Xxx-1-1
ii
THIS PURCHASE AGREEMENT, dated as of April 25, 2003 (the "Agreement"),
between COUNTRYWIDE HOME LOANS, INC., a New York corporation (the "Seller"),
and CWABS, INC., a Delaware corporation (the "Purchaser"),
W I T N E S S E T H:
WHEREAS, the Seller is the owner of the notes or other evidence of
indebtedness indicated on Schedule I 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, the Seller will own the mortgages
on the properties securing the Mortgage Loans, including rights to (a) any
property acquired by foreclosure or deed in lieu of foreclosure or otherwise
and (b) the proceeds of any hazard insurance policies on the Mortgaged
Properties; and
WHEREAS, the Seller wants to sell the 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, the Seller, 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.
3
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, the Seller hereby transfers to the Purchaser, without
recourse, all of its right, title and interest existing now or in the future
in,
(i) each Mortgage Loan, including its Asset Balance (including all
Additional Balances), the related Mortgage File, all property that
secures the Mortgage Loan, and all collections received on it after the
Cut-off Date (excluding payments due by the Cut-off Date);
(ii) property that secured a Mortgage Loan that is acquired by
foreclosure or deed in lieu of foreclosure;
(iii) the Seller's rights under the hazard insurance policies;
(iv) all rights under any guaranty executed in connection with a
Mortgage Loan;
(v) all other assets included or to be included in the Trust for the
benefit of the Noteholders and the Credit Enhancer; and
(vi) all proceeds of the foregoing.
(b) By the sale of the Mortgage Loan and its Additional Balances, the
Seller has sold to the Purchaser, and the Purchaser has purchased from the
Seller, each future draw of new borrowing under the related Credit Line
Agreement. The Purchaser shall pay the 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 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 Seller Upon Sale.
In connection with any transfer pursuant to Section 2.01, the 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, 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 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.
4
The Mortgage Loan Schedule is Exhibit A to the Sale and Servicing
Agreement and shall also be marked as Schedule I to this Agreement and is
hereby incorporated into this Agreement.
The Seller agrees to perfect and protect the Purchaser's interest in each
Mortgage Loan and its proceeds by preparing, executing, and filing a UCC-1
Financing Statement with the Secretary of State in the State of New York
describing the Mortgage Loans and naming the 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 UCC-1 Financing Statements due to a change in the name or the state
of incorporation of the 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 UCC-1
Financing Statement with the 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 UCC-1 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 the Seller, the Seller shall deliver
to the order of the Purchaser the following documents for each Mortgage Loan
(the "Related Documentation"):
(i) 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;
(ii) unless the Mortgage Loan is registered on the MERS(R) System,
an original assignment of mortgage in blank in recordable form;
(iii) 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
5
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;
(iv) 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;
(v) a title policy for each Mortgage Loan with a Credit Limit in
excess of $100,000;
(vi) the original of any guaranty executed in connection with the
Mortgage Note;
(vii) the original of each assumption, modification, consolidation,
or substitution agreement relating to the Mortgage Loan; and
(viii) any security agreement, chattel mortgage, or equivalent
instrument executed in connection with the Mortgage.
The Related Documentation will be delivered:
(i) no later than the Closing Date, with respect to no less than 50%
of the Mortgage Loans,
(ii) no later than the twentieth day after the Closing Date, with
respect to no less than 40% of the Mortgage Loans in addition to those
delivered on the Closing Date, and
(iii) within thirty days following the Closing Date, with respect to
the remaining Mortgage Loans.
The 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 the 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 the Seller or the Purchaser will
6
violate the rights of the Trust, as secured party with respect to those
Mortgage Loans. By the applicable date of substitution, the 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 the
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 the Seller
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 the Seller to the Purchaser of all the Seller's
interest in the Mortgage Loans and other property described above. However, if
the transfer were to be characterized as a transfer for security and not as a
sale, then the Seller hereby Grants to the Purchaser a Security Interest in
all of the Seller's right, title and interest in the Mortgage Loans and other
property described above, whether existing now or in the future, to secure all
of the Seller's 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.
(a) In consideration of the sale of the Mortgage Loans from the Seller to
the Purchaser on the Closing Date, the Purchaser agrees to transfer to the
Seller on the Closing Date the purchase price for the Mortgage Loans provided
in the Adoption Annex.
(b) Reserved.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01. Seller Representations and Warranties.
The Seller represents and warrants to the Purchaser as of the Closing
Date:
(a) The Seller 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. The Seller 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
7
in which the failure so to qualify would have a material adverse effect on the
business, properties, assets, or condition (financial or other) of the Seller;
(b) The Seller 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 the Seller enforceable in accordance with its terms;
(c) The Seller 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;
(d) 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 the Seller, or constitute a material
breach of any mortgage, indenture, contract, or other agreement to which the
Seller is a party or by which the Seller may be bound; and
(e) No litigation or administrative proceeding of or before any court,
tribunal, or governmental body is currently pending, or to the knowledge of
the Seller threatened, against the Seller or any of its properties or with
respect to this Agreement or the Notes that in the opinion of the Seller has a
reasonable likelihood of resulting in a material adverse effect on the
transactions contemplated by this Agreement.
The representations and warranties in this Section shall survive the
transfer of the Mortgage Loans to the Purchaser. The Seller shall cure a
breach of any representations and warranties in accordance with the Sale and
Servicing Agreement. The remedy specified in the Sale and Servicing Agreement
shall constitute the sole remedy against the Seller respecting any breach.
Section 3.02. Seller Representations and Warranties Relating to the
Mortgage Loans.
The Seller represents and warrants to the Purchaser as of the Cut-off
Date, unless otherwise specifically set forth in this Agreement:
(i) 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
8
binding obligation of the Seller, enforceable against the Seller in
accordance with its terms.
(ii) 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 the Seller in the
Mortgage Loans, and all collections received on it 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) of the Sale and Servicing Agreement, as applicable,
and the Sale and Servicing Agreement constitutes a valid transfer to
the Trust of the foregoing property such that, on execution of the
Sale and Servicing Agreement, it is owned by the Trust free of all
liens and other 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 the Seller 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 and the Sale and Servicing Agreement
constitute 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 the Seller.
9
(iii) The Seller has not authorized the filing of and is not aware
of any financing statements against the 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 hereunder, pursuant to the Sale and
Servicing Agreement or pursuant to the Indenture, (B) that has been
terminated, or (C) that names of the Depositor, the Trust, or the
Indenture Trustee as secured party.
(iv) As of the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution and as of
the date any Additional Balance is created, the information in the
Mortgage Loan Schedule for the Mortgage Loans is correct in all material
respects.
(v) The Mortgage Loans have not been assigned or pledged, and the
Seller is its 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 it pursuant to this Agreement.
(vi) As of the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, 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 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.
(vii) As of the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, 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 with respect to
each related Mortgage Loan, 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
10
(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.
(viii) As of the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, applicable date of substitution, no obligor has
a valid offset, defense, or counterclaim under any Credit Line Agreement
or mortgage.
(ix) To the best knowledge of the Seller, as of the Closing Date or,
with respect to any Eligible Substitute Mortgage Loan, the applicable
date of substitution, no related Mortgaged Property has any delinquent
recording or other tax or fee or assessment lien against it.
(x) As of the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, applicable date of substitution, no proceeding
is pending or, to the best knowledge of the Seller, threatened for the
total or partial condemnation of the related Mortgaged Property, and the
property is free of material damage;
(xi) To the best knowledge of the Seller, 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 (xiv).
(xii) No Minimum Monthly Payment on a Mortgage Loan is more than 59
days delinquent (measured on a contractual basis) and no Minimum Monthly
Payment on any other Mortgage Loan being transferred on the relevant date
is more than 30 days delinquent (measured on a contractual basis) and no
more than the percentage specified in the Adoption Annex of the Mortgage
Loans being transferred on the relevant date (by Cut-off Date Loan
Balance) were 30-59 days delinquent (measured on a contractual basis).
(xiii) As of the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, applicable date of substitution, for each
Mortgage Loan, the related Mortgage File contains each of the documents
specified to be included in them.
(xiv) 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 related mortgage at origination (a)
complied in all material respects with applicable 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
11
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 and (b) no Mortgage Loan is
classified as (1) a "high cost" loan under the Home Ownership and Equity
Protection Act of 1194 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).
(xv) 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 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, or a title search or
guaranty of title customary in the relevant jurisdiction was obtained
with respect to a Mortgage Loan as to which no title insurance policy or
binder was issued.
(xvi) 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.
(xvii) No more than the percentage specified in the Adoption Annex
of the Mortgage Loans, by aggregate principal balance, are secured by
Mortgaged Properties located in one United States postal zip code.
(xviii) 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 was not in excess of
the percentage specified in the Adoption Annex.
(xix) 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 the Seller to be adverse to
the interests of the Transferor, the Noteholders, or the Credit Enhancer
was used in selecting the Mortgage Loans.
(xx) As of the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, the Seller
has not transferred the Mortgage Loans to the Trust with any intent to
hinder, delay, or defraud any of its creditors.
(xxi) As of the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, the
Minimum Monthly Payment with respect to any Mortgage Loan is not less
than the interest accrued at the applicable Loan Rate on the average
daily Asset Balance during the interest period relating to the date on
which the Minimum Monthly Payment is due.
12
(xxii) The Mortgage Notes constitute either "instruments" or
"general intangibles" as defined in the UCC.
(xxiii) By the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, within 30 days of the applicable date of
substitution, the Seller will file UCC-1 financing statements in the
proper filing office in the appropriate jurisdiction to perfect the
Security Interest Granted hereunder.
(xxiv) 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 conveyed to any person other than the
Purchaser, the Trust, or the Indenture Trustee. All financing statements
filed or to be filed against the 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."
(xxv) As of the Closing Date, the Seller will have received a
written acknowledgement from the Custodian that is acting solely as agent
of the Indenture Trustee.
(xxvi) 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.
(xxvii) As of the Closing Date or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, the Seller
has not 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.
(xxviii) 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 definition in the form
of Credit Line Agreement in Exhibit B of the Sale and Servicing
Agreement.
(xxix) The weighted average remaining term to maturity of the
Mortgage Loans on a contractual basis as of the Cut-off Date for the
Mortgage Loans is approximately the number of months specified in the
Adoption 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
13
specified in the Adoption Annex and the weighted average Loan Rate Cap is
approximately the percentage specified in the Adoption Annex. The Gross
Margins for the Mortgage Loans range between the percentages specified in
the Adoption Annex and the weighted average Gross Margin is approximately
the percentage specified in the Adoption Annex as of the Cut-off Date for
the Mortgage Loans. The Loan Rates on the Mortgage Loans range between
the percentages specified in the Adoption Annex and the weighted average
Loan Rate on the Mortgage Loans is approximately the percentage specified
in the Adoption Annex.
(xxx) 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.
(xxxi) No more than the percentage specified in the Adoption Annex
(by Cut-off Date Loan Balance) of the Mortgage Loans 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) of the Mortgage Loans are secured by real
property with a detached one-family residence erected on them;
(xxxii) The Credit Limits on the Mortgage Loans range between
approximately the dollar amounts specified in the Adoption Annex with an
average of approximately the dollar amount specified in the Adoption
Annex. As of the Cut-off Date for the Mortgage Loans, no Mortgage Loan
had a principal balance in excess of approximately the dollar amount
specified in the Adoption Annex and the average principal balance of the
Mortgage Loans is equal to approximately the dollar amounts specified in
the Adoption Annex.
(xxxiii) Approximately the percentages specified in the Adoption
Annex of the Mortgage Loans, by aggregate principal balance as of the
Cut-off Date for the Mortgage Loans, are first and second liens.
(xxxiv) As of the Closing Date, no more than the percentage
specified in the Adoption Annex of the Mortgage Loans, by aggregate
principal balance, were appraised electronically.
(xxxv) 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
14
substitution), no modifications to the Mortgage Notes and Mortgage Loans
have been made and not disclosed.
(xxxvi) 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.
(xxxvii) To the best knowledge of the Seller 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.
(xxxviii) As of the Closing Date (or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution), no
Mortgage Loan is secured by a leasehold interest.
(xxxix) Based upon the drawn balances of the Mortgage Loans, the
Mortgage Loans had the characteristics set out in the Adoption Annex 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;
percentage of the Mortgage Loans which have their respective Mortgaged
Properties located in the top five states, measured by aggregate drawn
balances.
(xl) No Mortgage Loan that was originated prior to January 1, 2003
has been delinquent for greater than 30 days at any time since April 25,
2002.
(xli) Any Mortgage Loan that has been modified in any manner has
been so modified in accordance with the policies and procedures of the
Servicer.
If the substance of any representation or warranty under the Sale and
Servicing Agreement or in this Section made to the best of the Seller's
knowledge or as to which the 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 the Seller
shall cure the breach, repurchase the Mortgage Loan, or substitute for the
Mortgage Loan in accordance with the Sale and Servicing Agreement.
15
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 the Seller for the breach of a
representation or warranty is the Seller'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.
The Purchaser acknowledges that the Seller, 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.
ARTICLE IV
SELLER'S COVENANTS
Section 4.01. Covenants of the Seller.
Except for the transfer under this Agreement, the Seller will not
transfer to any other person, or create or suffer to exist any Lien on any
Mortgage Loan, or any interest in one; the Seller will notify the Indenture
Trustee of the existence of any Lien on any Mortgage Loan immediately on its
discovery; and the 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 the Seller. Nothing in this Section shall
prohibit the 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 Seller is contesting their validity in
good faith by appropriate proceedings and set aside on its books adequate
reserves with respect to them.
16
ARTICLE V
SERVICING
Section 5.01. Servicing.
The Seller will be the Master Servicer of the Mortgage Loans pursuant to
of the Sale and Servicing Agreement.
ARTICLE VI
TERMINATION
Section 6.01. Termination.
The respective obligations of the Seller and the Purchaser created by
this Agreement shall terminate when the Indenture terminates in accordance
with its terms.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment.
This Agreement may be amended from time to time by the Seller and the
Purchaser, with the written consent of the Credit Enhancer by written
agreement signed by the Seller 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
17
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 the Seller at:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ref: CWABS 2003-D
and
(ii) if to the Purchaser at:
CWABS, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ref: CWABS 2003-D
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.
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.
Section 7.06. Further Agreements.
The Purchaser and the Seller each 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 the Seller, the Purchaser, the Trust, the Indenture Trustee, and the Credit
Enhancer. The obligations of the 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 the Seller may assign its obligations
under this Agreement to any person into which the Seller is merged or any
corporation resulting from any merger, conversion, or consolidation to which
the Seller is a party or any person succeeding
18
to the business of the 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, the 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 the Seller
under this Agreement insofar as they relate to Mortgage Loans transferred to
the Trust and to the enforcement or exercise of any right against the 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.
19
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
CWABS, INC.
Purchaser
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
Seller
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
20
SCHEDULE I
SCHEDULE OF
MORTGAGE LOANS
[Delivered to the Indenture Trustee only]
21
STATE OF California)
----------
) ss.:
COUNTY OF Los Angeles)
-----------
On the 25th day of April, 2003 before me, a Notary Public in and for said
State, personally appeared Xxxxx Xxxxxxx, known to me to be a Vice President
of CWABS, 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.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires October 15, 2005.
22
STATE OF California )
) ss.:
COUNTY OF Los Angeles )
On the 25th day of April, 2003 before me, Xxxxx Xxxxxxx 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 upon 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.
/s/ Xxxxxx Xxxxxx
-----------------
Notary Public
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires October 15, 2005.
23
ANNEX 1
ADOPTION ANNEX
The purchase price for the Mortgage Loans pursuant to Section 2.03(a) is
the transfer to the Seller on the Closing Date of the Notes and the Transferor
Certificates.
The items referred to in the representations and warranties in Section
3.02 are:
(xii) 0.00% of the Mortgage Loans being transferred on the relevant date
(by Cut-off Date Loan Balance) were 30-59 days delinquent (measured on a
contractual basis).
(xvii) As of the Cut-off Date for the Mortgage Loans no more than 3.00%
of the Mortgage Loans, by aggregate principal balance, are secured by
Mortgaged Properties located in one United States postal zip code.
(xviii) The Combined Loan-to-Value Ratio for each Mortgage Loan was not
in excess of 100%.
(xxix) The weighted average remaining term to maturity of the Mortgage
Loans on a contractual basis as of the Cut-off Date for the Mortgage Loans is
approximately 285 months. The Loan Rate Caps for the Mortgage Loans range
between 12.00% and 21.00% and the weighted average Loan Rate Cap is
approximately 17.90% . The Gross Margins for the Mortgage Loans range between
(1.750)% and 6.125% and the weighted average Gross Margin is approximately
1.82% as of the Cut-off Date for the Mortgage Loans. The Loan Rates on the
Mortgage Loans range between 2.50% and 10.38% and the weighted average Loan
Rate on the Mortgage Loans is approximately 4.19%.
(xxxi) No more than 22.86% (by Cut-off Date Loan Balance) of the Mortgage
Loans 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 77.14% (by Cut-off Date Loan Balance)
of the Mortgage Loans are secured by real property with a detached one-family
residence erected on them.
(xxxii) The Credit Limits on the Mortgage Loans range between
approximately $7,500 and $1,000,000 with an average of approximately
$41,545.45. As of the Cut-off Date for the Mortgage Loans, no Mortgage Loan
had a principal balance in excess of approximately $1,000,000 and the average
principal balance of the Mortgage Loans is equal to approximately $24,677.21.
(xxxiii) Approximately 7.15% and 92.85% of the Mortgage Loans, by
aggregate principal balance as of the Cut-off Date for the Mortgage Loans, are
first and second liens, respectively.
(xxxiv) As of the Closing Date, no more than 1.56% of the Mortgage Loans,
by aggregate principal balance, were appraised electronically.
Xxx-1-1
(xxxix) As of the Cut-off Date (based upon the drawn balances), the
Mortgage Loans had a weighted average Combined Loan-to-Value Ratio of 81.88%;
a range of Combined Loan-to-Value Ratios between 6.45% and 100.00%; a
percentage of primary residences of 97.53%; a weighted average FICO score of
708; a range of FICO scores between 620 and 861; a Weighted Average Net Loan
Rate of 3.69%; a range of net Loan Rates between 2.00% and 9.88%; a weighted
average original stated term to maturity of 298 months; a range of original
term to maturity between 120 months and 300 months; a range of remaining term
to maturity between 67 months and 300 months; an average drawn balance of
$24,677.21; a weighted average utilization ratio of 88.26%; 49.90% of the
Mortgage Loans have their respective Mortgaged Properties located in the top
five states, measured by aggregate drawn balances.
Xxx-1-2
