WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC,
as Purchaser,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller and Servicer,
--------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
Dated as of [_____]
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.....................................................1
Section 1.2 Other Definitional Provisions...................................2
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Mortgage Loans..........................................2
Section 2.2 Sale of Subsequent Mortgage Loans...............................5
Section 2.3 Payment of Purchase Price.......................................7
Section 2.4 Allocation......................................................8
Section 2.5 Draws During Rapid Amortization Period..........................8
Section 2.6 Security Interest...............................................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1 Representations and Warranties of the Seller....................9
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller.........................................18
ARTICLE V
[RESERVED]
ARTICLE VI
LIMITATION OF LIABILITY
Section 6.1 Limitation on Liability of the Seller...........................19
ARTICLE VII
TERMINATION
Section 7.1 Termination.....................................................19
-i-
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment......................................................19
Section 8.2 GOVERNING LAW..................................................19
Section 8.3 Notices........................................................20
Section 8.4 Severability of Provisions.....................................21
Section 8.5 Relationship of Parties........................................21
Section 8.6 Counterparts...................................................21
Section 8.7 Further Agreements.............................................21
Section 8.8 Intention of the Parties.......................................21
Section 8.9 Successors and Assigns; Assignment of this Agreement...........22
Section 8.10 Survival.......................................................22
Section 8.11 Third-Party Beneficiary........................................22
EXHIBIT 1 MORTGAGE LOAN SCHEDULE........................................1-1
EXHIBIT 2 FORM OF SUBSEQUENT TRANSFER AGREEMENT.........................2-1
EXHIBIT 3 FORM OF ADDITION NOTICE.......................................3-1
-ii-
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
[_____], is made by and between Wachovia Bank, National Association, as seller
(in such capacity, the "Seller") and as servicer (in such capacity, the
"Servicer"), and Wachovia Asset Securitization Issuance, LLC, as purchaser (the
"Purchaser" or the "Depositor").
WITNESSETH:
-----------
WHEREAS, the Seller, in the ordinary course of its business acquires
and originates mortgage loans and acquired or originated all of the mortgage
loans listed on the Mortgage Loan Schedule attached as Exhibit 1 hereto (the
"Initial Mortgage Loans");
WHEREAS, the Seller owns the Initial Mortgage Loans, the Cut-Off Date
Principal Balances and the Related Documents for the Initial Mortgage Loans,
including rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise, and (b) the proceeds of any insurance policies
covering the Initial Mortgage Loans;
WHEREAS, the parties hereto desire that: (i) the Seller sell the
Cut-Off Date Principal Balances of the Initial Mortgage Loans to the Purchaser
on the Closing Date pursuant to the terms of this Agreement together with the
Related Documents, and all Additional Balances relating to the Initial Mortgage
Loans created on or after the Cut-Off Date and prior to the Rapid Amortization
Period, (ii) the Seller may sell the applicable Cut-Off Date Principal Balances
of the Subsequent Mortgage Loans to the Purchaser on one or more Subsequent
Transfer Dates pursuant to the terms of the related Subsequent Transfer
Agreement and all Additional Balances relating to the Subsequent Mortgage Loans
created on or after the applicable Subsequent Cut-Off Date and prior to the
Rapid Amortization Period and (iii) the Seller make certain representations and
warranties on the Closing Date and on each Subsequent Transfer Date as
applicable;
WHEREAS, pursuant to the terms of the Trust Agreement and the
applicable Subsequent Transfer Agreement, the Depositor will transfer the
Mortgage Loans and other Transferred Property to the Issuer and the Issuer will
issue the Certificates;
WHEREAS, pursuant to the terms of the Servicing Agreement, the
Servicer will service the Mortgage Loans;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue
the Notes, secured by the Trust Estate;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the definitions contained in Appendix A to the indenture dated
as of [_____] (the "Indenture"), among Wachovia Asset Securitization Issuance,
LLC [_____] Trust, a Delaware statutory trust (the "Issuer"), [_____], a
1
national banking association, as indenture trustee (the "Indenture Trustee") and
Wachovia Bank, National Association, as paying agent (the "Paying Agent"), which
is incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
Secton 1.2 Other Definitional Provisions. All terms defined in this
Agreement (including those incorporated by reference) shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document, to the extent not defined, shall have the respective meanings given to
them under GAAP. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent with the
meanings of such terms under GAAP, the definitions contained in this Agreement
or in any such certificate or other document shall control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; the term "including" shall mean
"including without limitation"; "or" shall include "and/or"; and the term
"proceeds" shall have the meaning ascribed thereto in the UCC.
The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to herein or
in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Mortgage Loans.
(a) The Seller, by the execution and delivery of this Agreement, does
hereby sell, transfer, assign, set over, and otherwise convey to the Purchaser,
without recourse (except as expressly provided herein), all of its right, title
and interest, whether now owned or existing or hereafter created, arising, or
acquired, in, to and under the Initial Transferred Property; provided, however,
that the Purchaser does not assume the obligation under any Loan Agreement to
fund Draws by the Mortgagor thereunder or any other obligation arising under or
related to the Related Documents, and the Purchaser shall not be obligated or
permitted to fund any such Draws, it being agreed that the Seller will retain
the obligation to fund future Draws.
2
(b) The Initial Mortgage Loans, including the Cut-Off Date Principal
Balances of such Initial Mortgage Loans, and all other related Initial
Transferred Property, shall be sold by the Seller and purchased by the Purchaser
on the Closing Date. The Subsequent Mortgage Loans, including the Cut-Off Date
Principal Balances of such Subsequent Mortgage Loans, and all other related
Subsequent Transferred Property, shall be sold by the Seller and purchased by
the Purchaser on the related Subsequent Transfer Date. Additional Balances and
the related Transferred Property arising after the Cut-Off Date or related
Subsequent Cut-Off Date, as applicable, through and including the date
immediately preceding the commencement of the Rapid Amortization Period shall be
sold by the Seller and purchased by the Purchaser on the later of the Closing
Date (or with respect to Subsequent Mortgage Loans, the applicable Subsequent
Transfer Date) and the date of creation of such Additional Balance.
(c) In connection with the conveyance by the Seller of the Initial
Mortgage Loans and any Subsequent Mortgage Loans, the Seller further agrees, at
its own expense, on or prior to the Closing Date with respect to the Cut-Off
Date Principal Balances of the Initial Mortgage Loans and on or prior to the
related Subsequent Cut-Off Date in the case of any Subsequent Mortgage Loans, to
indicate in its books and records that the Initial Mortgage Loans have been sold
to the Purchaser pursuant to this Agreement, and, in the case of the Subsequent
Mortgage Loans, pursuant to the related Subsequent Transfer Agreement and to
deliver to the Purchaser true and complete lists of all of the Mortgage Loans
specifying for each Mortgage Loan the information contained in the Mortgage Loan
Schedule. The Mortgage Loan Schedule shall be marked as Exhibit 1 to this
Agreement and is hereby incorporated into and made a part of this Agreement.
(d) In connection with the conveyance by the Seller of the Initial
Mortgage Loans and any Subsequent Mortgage Loans, the Seller shall on behalf of
the Purchaser deliver to, and deposit with the Servicer, at least five (5)
Business Days before the Closing Date in the case of an Initial Mortgage Loan,
and, three (3) Business Days prior to the related Subsequent Transfer Date in
the case of a Subsequent Mortgage Loan, with respect to (i) below, or within 90
days of the Closing Date in the case of an Initial Mortgage Loan, and, 90 days
of the related Subsequent Transfer Date, with respect to (ii) through (v) below,
the following documents or instruments with respect to each Mortgage Loan:
(i) the original Loan Agreement endorsed or assigned without
recourse in blank (which endorsement shall contain either an original signature
or a facsimile signature of an authorized officer of the Seller and which
assignment may be included in one or more blanket assignments if permitted by
applicable law) or, with respect to any Mortgage Loan as to which the original
Loan Agreement has been permanently lost or destroyed and has not been replaced,
a Lost Note Affidavit;
(ii) the original Mortgage with evidence of recording thereon,
or, if the original Mortgage has not yet been returned from the public recording
office, a copy of the original Mortgage certified by the Seller that such
Mortgage has been sent for recording, or a county certified copy of such
Mortgage in the event the recording office keeps the original or if the original
is lost;
(iii) originals of any intervening assignments of the Mortgage
from the originator to the Seller, with evidence of recording thereon, or, if
the original of any such intervening assignment has not yet been returned from
the public recording office, a copy of such original
3
intervening assignment certified by the Seller that such original intervening
assignment has been sent for recording; and
(iv) a true and correct copy of each assumption, modification,
consolidation or substitution agreement, if any, relating to such Mortgage Loan;
Within 90 days following delivery of the Mortgage Files to the
Servicer pursuant to the preceding paragraph, the Servicer shall review the
Mortgage Files and deliver to the Indenture Trustee and the Enhancer an initial
certification in the form attached hereto as Exhibit 4 evidencing the status of
the completeness of the Mortgage Files. If, in the course of such review, a
material defect in any Mortgage File is discovered which may materially and
adversely affect the value of the related Mortgage Loan, or the interests of the
Indenture Trustee (as pledgee of the Mortgage Loans), the Noteholders, the
Enhancer or the Certificateholders, including the Seller's failure to deliver
any document required to be delivered to the Servicer on behalf of the Indenture
Trustee, the Seller shall cure such defect, repurchase the related Mortgage Loan
at the Repurchase Price or substitute an Eligible Substitute Loan therefor upon
the same terms and conditions set forth in Section 3.1 hereof for breaches of
representations and warranties as to the Mortgage Loans.
Upon receipt of all documents required to be included in the Mortgage
Files and no later than within one year of the Closing Date, the Servicer shall
deliver to the Indenture Trustee and the Enhancer a final certification in the
form attached hereto as Exhibit 5 evidencing the completeness of the Mortgage
Files.
The Seller on behalf of the Purchaser will deliver the original Loan
Agreements to the Servicer, endorsed or assigned in blank, to effect the
transfer to the Purchaser of the Loan Agreements and all related Mortgages and
other loan documents. Concurrently herewith, the Purchaser has contracted to
sell the Mortgage Loans to the Issuer, and the Issuer, in turn, has Granted its
right, title and interest in the Mortgage Loans and other Transferred Property
constituting the Trust Estate to the Indenture Trustee to secure payments on the
Notes. To avoid the unnecessary expense and administrative inconvenience
associated with the execution and recording of multiple assignment documents,
the Seller may execute one or more assignments of mortgages naming the Indenture
Trustee as assignee. Notwithstanding the fact that assignments of mortgages
naming the Indenture Trustee as assignee have not been prepared and delivered,
the parties hereto acknowledge and agree that the Mortgage Loans shall for all
purposes be deemed to have been transferred from the Seller to the Purchaser,
from the Purchaser to the Issuer, and from the Issuer to the Indenture Trustee.
In instances where an original Mortgage or any original intervening
assignment of Mortgage was not, in accordance with clause (iii) above, delivered
by the Seller to the Servicer, as provided above, the Seller will deliver or
cause to be delivered the originals or certified copies of such documents to the
Servicer promptly upon receipt thereof. If an Assignment of Mortgage is required
to be prepared under Section 3.17 of the Servicing Agreement, the Seller will
promptly execute such Assignment of Mortgage upon request of the Servicer.
Upon sale of the Initial Mortgage Loans, the ownership of each related
Loan Agreement (subject to the proviso in Section 2.1(a)), each related Mortgage
and the contents of the related Mortgage File shall be vested in the Purchaser
and the ownership of all records and documents with respect to the Mortgage
Loans that are prepared by or that come into the
4
possession of the Seller, as the seller of the Mortgage Loans hereunder, or by
the Servicer under the Servicing Agreement shall immediately vest in the
Purchaser, and shall be retained and maintained in trust by the Servicer at the
will of the Purchaser, in such custodial capacity only; provided, however, that
if Wachovia is no longer the Servicer under the Servicing Agreement, any records
and documents that come into the possession of the Seller shall be promptly
delivered to the Servicer. The Seller's records will accurately reflect the sale
of the Mortgage Loans by it to the Purchaser.
The Purchaser hereby acknowledges its acceptance of all right, title
and interest to the property conveyed to it pursuant to this Section 2.1.
Section 2.2 Sale of Subsequent Mortgage Loans.
(a) Subject to the conditions set forth in paragraphs (b) and (c)
below (the satisfaction of which (other than the conditions specified in
paragraphs (b)(i), (b)(ii) and (b)(iii)) shall be evidenced by an Officer's
Certificate of the Seller dated the date of the related Subsequent Transfer
Date), in consideration of the Purchaser's payment of the purchase price
provided for in Section 2.3 on one or more Subsequent Transfer Dates, the Seller
may, on the related Subsequent Transfer Date, sell, transfer, assign, set over
and convey to the Purchaser without recourse (except as expressly provided
herein), all of the right, title and interest of the Seller whether now owned or
existing or hereafter created, arising, or acquired, in, to and under the
Subsequent Transferred Property; provided, however, that the Purchaser does not
assume the obligation under any Loan Agreement to fund Draws by the Mortgagor
thereunder or any other obligation arising under or related to the Related
Documents, and the Purchaser shall not be obligated or permitted to fund any
such Draws, it being agreed that the Seller will retain the obligation to fund
future Draws. Any transfer to the Purchaser by the Seller of Subsequent Mortgage
Loans shall be absolute, and is intended by the Purchaser and the Seller to
constitute and to be treated as a sale of such Subsequent Mortgage Loans by the
Seller to the Purchaser.
The Purchaser on each Subsequent Transfer Date shall acknowledge, by
execution of the related Subsequent Transfer Agreement, its acceptance of all
right, title and interest to the related Subsequent Mortgage Loans and other
property, existing on the Subsequent Transfer Date and thereafter created,
conveyed to it pursuant to this Section 2.2.
The Purchaser shall be entitled to all scheduled principal payments
due on and after each Subsequent Cut-Off Date, all other payments of principal
due and collected on and after each Subsequent Cut-Off Date, and all payments of
interest on any related Subsequent Mortgage Loans, minus that portion of any
such interest payment that is allocable to the period prior to the related
Subsequent Cut-Off Date.
Upon sale of the Subsequent Mortgage Loans, the ownership of each
related Loan Agreement (subject to the proviso in Section 2.1(a)), each related
Mortgage and the contents of the related Mortgage File shall be vested in the
Purchaser and the ownership of all records and documents with respect to the
Subsequent Mortgage Loans that are prepared by or that come into the possession
of the Seller, as the seller of the Subsequent Mortgage Loans, or by the
Servicer under the Servicing Agreement shall immediately vest in the Purchaser,
and shall be retained and maintained in trust by the Servicer at the will of the
Purchaser, in such custodial capacity only; provided, however, that if Wachovia
is no longer the Servicer under the Servicing Agreement, any records and
documents that come into the possession of the Seller shall be promptly
delivered to
5
the Servicer. The Seller's records will accurately reflect the sale of the
Subsequent Mortgage Loans by it to the Purchaser. The Seller may transfer to the
Purchaser,
(b) The Seller may transfer to the Purchaser, Subsequent Mortgage
Loans and the other property and rights related thereto described in Section
2.2(a), and the Purchaser shall pay for such Subsequent Mortgage Loans, only
upon the satisfaction of each of the following conditions on or prior to the
related Subsequent Transfer Date:
(i) the Seller shall have provided the Indenture Trustee, the
Issuer, the Purchaser, Rating Agencies and the Enhancer with a timely Addition
Notice substantially in the form of Exhibit 3, which notice shall be given no
later than seven Business Days prior to the related Subsequent Transfer Date,
and shall designate the Subsequent Mortgage Loans to be sold to the Purchaser
and the aggregate Principal Balance of such Subsequent Mortgage Loans as of the
related Subsequent Cut-Off Date;
(ii) the Seller shall have delivered to the Purchaser, the
Indenture Trustee and the Enhancer a duly executed Subsequent Transfer Agreement
substantially in the form of Exhibit 2, (A) confirming the satisfaction of each
condition precedent and making the representations specified in this Section
2.2(b) and in the related Subsequent Transfer Agreement and (B) including a
Mortgage Loan Schedule listing the Subsequent Mortgage Loans;
(iii) as of each Subsequent Transfer Date, as evidenced by
delivery to the Indenture Trustee of the Subsequent Transfer Agreement in the
form of Exhibit 2, the Seller shall not be insolvent, made insolvent by such
transfer or aware of any pending insolvency;
(iv) such sale and transfer shall not result in a material
adverse tax consequence to the Purchaser or the Issuer or due to any action or
inaction on the part of the Seller, to the Securityholders or the Enhancer;
(v) the related Revolving Period shall not have terminated; and
(vi) the Enhancer shall have approved the sale of the Subsequent
Mortgage Loans (which approval shall not be unreasonably withheld) within five
(5) Business Days of receipt of an electronic file containing the information
regarding the Subsequent Mortgage Loans that was delivered to the Enhancer prior
to the Closing Date with respect to the Initial Mortgage Loans; provided, that
if the Enhancer shall not have notified the respective Seller within such five
(5) Business Days that the Enhancer does not so approve, such sale of Subsequent
Mortgage Loans shall be deemed approved by the Enhancer.
The obligation of the Purchaser to purchase a Subsequent Mortgage Loan in
Loan Group I on any Subsequent Transfer Date is subject to the following
conditions: (i) each such Subsequent Mortgage Loan must satisfy the
representations and warranties specified in the related Subsequent Transfer
Agreement and this Agreement; (ii) the Seller has not selected such Subsequent
Mortgage Loans in a manner that it reasonably believes is adverse to the
interests of the Noteholders or the Enhancer; and (iii) as of the related
Subsequent Cut-Off Date each Subsequent Mortgage Loan will satisfy the following
criteria: (A) such Subsequent Mortgage Loan may not be 30 or more days
contractually delinquent as of the related Subsequent Cut-Off Date; (B) the
original stated term to maturity of such Subsequent Mortgage Loan will not
exceed [___] months; (C) such Subsequent
6
Mortgage Loan must have an outstanding Principal Balance of at least $[_____] as
of the related Subsequent Cut-Off Date; (D) such Subsequent Mortgage Loan will
be underwritten substantially in accordance with the criteria set forth under "
Description of the Mortgage Loans - Underwriting Standards" in the Prospectus
Supplement; (E) such Subsequent Mortgage Loan shall not provide for negative
amortization; (F) following the purchase of the Subsequent Mortgage Loan by the
issuer, the Mortgage Loans in the related Loan Group must have a weighted
average loan margin, a weighted average remaining term to maturity and a
weighted average CLTV Ratio at origination, as of each respective Subsequent
Cut-Off Date, which would not vary materially from the Initial Mortgage Loans in
the related Loan Group; and (G) if such Subsequent Mortgage Loan is (a) a first
lien Mortgage Loan, it shall have a Credit Limit that is less than or equal to
$[_____] or (b) a junior lien Mortgage Loan (I) the sum of the Credit Limit and
the Principal Balances of any related senior loans will be less than or equal to
$[_____] and (II) the Credit Limit will be less than or equal to $[_____].
The obligation of the Purchaser to purchase a Subsequent Mortgage Loan in
Loan Group II on any Subsequent Transfer Date is subject to the following
conditions: (i) each such Subsequent Mortgage Loan must satisfy the
representations and warranties specified in the related Subsequent Transfer
Agreement and this Agreement; (ii) the Seller has not selected such Subsequent
Mortgage Loans in a manner that it reasonably believes is adverse to the
interests of the Noteholders or the Enhancer; (iii) as of the related Subsequent
Cut-Off Date each Subsequent Mortgage Loan will satisfy the following criteria:
(A) the original stated term to maturity of such Subsequent Mortgage Loan will
not exceed [___] months; (B) such Subsequent Mortgage Loan must have an
outstanding Principal Balance of at least $[___] and no more than $[___] as of
the Subsequent Cut-Off date; (C) the Subsequent Mortgage Loan will be
underwritten substantially in accordance with the criteria set forth under
"Description of the Mortgage Loans--Underwriting Standards" in this Prospectus
Supplement; (D) such Subsequent Mortgage Loan shall not provide for negative
amortization; and (E) following the purchase of the Subsequent Mortgage Loan by
the Issuer, the Mortgage Loans in the related Loan Group must have a weighted
average loan margin, a weighted average remaining term to maturity and a
weighted average CLTV Ratio at origination, as of each respective Subsequent
Cut-Off date, which would not vary materially from the Initial Mortgage Loans in
the related Loan Group.
(c) Within five Business Days after each Subsequent Transfer Date, the
Seller shall deliver to the Purchaser, the Rating Agencies, the Indenture
Trustee and the Enhancer a copy of the Mortgage Loan Schedule reflecting the
Subsequent Mortgage Loans in electronic format.
Section 2.3 Payment of Purchase Price.
(a) The purchase price (the "Purchase Price") for the Initial Mortgage
Loans and the related Initial Transferred Property to be paid by the Purchaser
to the Seller on the Closing Date shall be an amount equal to one-hundred
percent (100%) of the related Cut-Off Date Principal Balances. The Purchase
Price paid for any Subsequent Mortgage Loans and related Subsequent Transferred
Property to be paid by the Purchaser to the Seller on any Subsequent Transfer
Date shall be one-hundred percent (100%) of the related Cut-Off Date Principal
Balances thereof (as identified on the Mortgage Loan Schedule attached to the
related Subsequent Transfer Agreement provided by the Seller). In the case of
each Additional Balance and the related Transferred Property sold hereunder
created on or after the Cut-Off Date or any Subsequent Cut-Off Date, as
applicable, and prior to the commencement of the Rapid Amortization Period, the
Purchase Price thereof shall
7
be 100% of the principal amount of the related Draw under the related Loan
Agreement on the later of the Closing Date or any Subsequent Cut-Off Date, as
applicable, and the date of the creation of such Additional Balance, adjusted to
reflect such factors as the Seller and the Purchaser mutually agree will result
in a purchase price determined to be the fair market value of such Additional
Balance and the related Transferred Property.
(b) In consideration of the sale of the Initial Mortgage Loans and the
related Transferred Property by the Seller to the Purchaser on the Closing Date,
the Purchaser shall pay to the Seller on the Closing Date by wire transfer of
immediately available funds to a bank account designated by the Seller, the
amount specified above in paragraph (a) for the Initial Mortgage Loans and the
related Transferred Property. In consideration of the sale of any Subsequent
Mortgage Loan and the related Transferred Property by the Seller to the
Purchaser on any Subsequent Transfer Date, the Purchaser shall pay to the Seller
by wire transfer of immediately available funds to a bank account designated by
the Seller, the amount specified above in paragraph (a) for the applicable
Subsequent Mortgage Loans and the related Transferred Property.
(c) [Reserved]
(d) With respect to each Additional Balance transferred hereunder with
respect to any Mortgage Loan, the Purchaser shall pay or cause to be paid to the
Seller or its designee the Purchase Price specified above for such Additional
Balance and the related Transferred Property in cash on the Payment Date in the
calendar month immediately following the calendar month in which such Additional
Balance was created.
(e) The Seller shall have no obligation to sell any Transferred
Property to the Purchaser if the Seller is not paid the purchase price for such
Transferred Property as provided herein.
Section 2.4 Allocation. Except with respect to Liquidation Loss
Amounts, the Seller, the Servicer, and the Purchaser agree that all collections
on the Mortgage Loans will be allocated and applied as provided by the terms of
the related Loan Agreements or by applicable law. Except with respect to
Liquidation Loss Amounts, if the Loan Agreement or applicable law does not
specify a method of allocation and application for particular collections, such
collections shall be allocated and applied (i) first to interest, pro rata
(based on the amounts coming due on such date) among the amounts coming due on
such date) and (ii) then to principal, in the order of the dates on which such
amounts for principal were first incurred. If, as a result of the provisions of
this Section 2.4, collections are allocated to Excluded Draws, such collections
shall not be property of the Purchaser or its assignees and shall be paid by the
Servicer to the Seller as provided in Section 2.5. Liquidation Loss Amounts
shall be allocated as provided in the definition of Excluded Amounts.
Section 2.5 Draws During the Rapid Amortization Period. During the
Rapid Amortization Period, any Excluded Draw shall not be deemed Additional
Balances, and the ownership of such Excluded Draws shall be retained by the
Seller except as provided herein. Payments and collections allocable pursuant to
Section 2.4 to an Excluded Draw shall not be deposited into the Custodial
Account, the Distribution Account or the Note Payment Account, and shall be
distributed by the Servicer to the Seller no less frequently than monthly in
accordance with reasonable instructions provided by the Seller.
8
Sectioin 2.6 Security Interest. 1. The parties hereto intend that the
transactions set forth herein and in the Subsequent Transfer Agreements each
constitute a sale by the Seller to the Purchaser of all the Seller's right,
title and interest in and to the Mortgage Loans and the other Transferred
Property, including for accounting purposes, and not a secured borrowing. In the
event the transactions set forth herein or in any Subsequent Transfer Agreement
are deemed not to be a sale, the Seller hereby grants to the Purchaser a
security interest in the Transferred Property to secure all of the Seller's
obligations hereunder, and this Agreement shall and hereby does constitute a
security agreement under applicable law. The Seller agrees to take or cause to
be taken such actions and to execute such documents, including without
limitation the authorization and filing of any continuation statements with
respect to the UCC financing statements filed with respect to the Mortgage Loans
by the Purchaser on the Closing Date, if any, and any amendments thereto
required to reflect a change in the name or corporate structure of the Seller or
the filing of any additional UCC financing statements due to the change in the
principal office or jurisdiction of organization of the Seller as are necessary
to perfect and protect the Purchaser's and its assignee's interests in the
Transferred Property. The Seller shall file any such continuation statements or
amendments on a timely basis.
(b) To the extent that the Seller retains any interest in the
Transferred Property, the Seller hereby grants to the Indenture Trustee for the
benefit of the Noteholders a security interest in the Transferred Property, to
secure the performance of all of the obligations of the Seller hereunder and
under the other Basic Documents. With respect to this security interest, the
Indenture Trustee shall have all of the rights that it has under the Indenture
and the Basic Documents and all of the rights of a secured creditor under the
UCC.
ARTICLE
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 Representations and Warranties of the Seller. The Seller
represents and warrants to the Purchaser, as of the Closing Date or, as
applicable, as of each Subsequent Transfer Date (or if otherwise specified
below, as of the date so specified):
(a)As to the Seller:
(i) The Seller is a national banking association duly organized
and validly existing under the laws of the United States of America and is in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan;
(11) The Seller has the power and authority to make, execute,
deliver and perform its obligations under this Agreement and each Subsequent
Transfer Agreement to which it is a party and all of the transactions
contemplated under this Agreement and each such Subsequent Transfer Agreement,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement and each such Subsequent Transfer
Agreement;
(iii) The Seller is not required to obtain the consent of any
other Person or any consents, licenses, approvals or authorizations from, or
registrations or declarations with, any
9
governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement or each such
Subsequent Transfer Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been obtained or
filed, as the case may be;
(iv) The execution and delivery of this Agreement and any
Subsequent Transfer Agreement to which it is a party by the Seller and its
performance and compliance with the terms of this Agreement and each such
Subsequent Transfer Agreement will not violate the Seller's Articles of
Association or Bylaws or constitute a material default (or an event which, with
notice or lapse of time, or both, would constitute a material default) under, or
result in the material breach of, any material contract, agreement or other
instrument to which the Seller is a party or which may be applicable to the
Seller or any of its assets;
(v) There are no pending or, to the best of the Seller's
knowledge, threatened, actions, suits, proceedings or investigations before any
court, tribunal, administrative agency, arbitrator or governmental body that, if
decided adversely, would materially and adversely affect (A) the condition
(financial or otherwise), business or operations of the Seller, (B) the ability
of the Seller to perform its obligations under, or the validity or
enforceability of, the Basic Documents to which it is a party or (C) the
transactions contemplated by this Agreement;
(vi) This Agreement and each Subsequent Transfer Agreement to
which it is a party constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights in general, as they may be applied in the context of the
insolvency of a national banking association, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and by public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(vii) This Agreement constitutes a valid transfer and assignment
to the Purchaser of all right, title and interest of the Seller in and to the
Initial Mortgage Loans, including the Cut-Off Date Principal Balances now
existing and all Additional Balances thereafter arising to and including the day
immediately preceding the Rapid Amortization Period, all monies due or to become
due with respect thereto, and all proceeds of such Cut-Off Date Principal
Balances with respect to the Initial Mortgage Loans; and this Agreement and the
related Subsequent Transfer Agreement, when executed and delivered, will
constitute a valid transfer and assignment to the Purchaser of all right, title
and interest of the Seller in and to the Subsequent Mortgage Loans, including
the Cut-Off Date Principal Balances of the Subsequent Mortgage Loans, all monies
due or to become due with respect thereto, and all proceeds of such Cut-Off Date
Principal Balances; and
(viii) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or otherwise) or
operations of the Seller or its properties or might have consequences that would
materially adversely affect its performance hereunder.
10
(b) As to each Initial Mortgage Loan (except as otherwise specified
below) as of the Closing Date, or as to each Subsequent Mortgage Loan (except as
otherwise specified below) as of the related Subsequent Transfer Date:
(i) The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule delivered by the Seller was true and correct in all
material respects as of the date or dates respecting which such information is
initially furnished;
(ii) Each Mortgaged Property is improved by a residential
dwelling, which, to the best of the Seller's knowledge, does not constitute
property other than real property under state law;
(iii) Each Mortgage Loan is being serviced by the Seller and
there was only one originally executed Loan Agreement not stamped as a duplicate
copy with respect to each such Mortgage Loan;
(iv) The Loan Agreement with respect to each Mortgage Loan bears
an adjustable Loan Rate;
(v) Immediately prior to the transfer and assignment herein
contemplated or under the related Subsequent Transfer Agreement, as applicable,
the Seller held good and indefeasible title to, and was the sole owner of, each
Mortgage Loan conveyed by the Seller subject to no liens (other than, with
respect to any Mortgage Loan in a (A) second lien position, the lien of the
related first mortgage and (B) third lien position, the lien of the related
first mortgage and the related second mortgage), charges, mortgages,
encumbrances or rights of others or other liens which will not be released
simultaneously with such transfer and assignment and has full right and
authority, under all governmental and regulatory bodies having jurisdiction over
the ownership of the applicable Mortgage Loans to sell and assign the same
pursuant to this Agreement or the related Subsequent Transfer Agreement, as
applicable;
(vi) To the best of the Seller's knowledge, there is no
delinquent recording or other tax or fee or assessment lien on any Mortgaged
Property, and each Mortgaged Property is free of material damage and is in good
repair;
(vii) No Mortgage Loan is subject to any right of rescission,
valid set-off, counterclaim or defense, including the defense of usury, nor will
the operation of any of the terms of the Loan Agreement or the Mortgage relating
to any Mortgage Loan, or the exercise of any right thereunder, render either
such Loan Agreement or such Mortgage unenforceable in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense, including
the defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto;
(viii) To the best of the Seller's knowledge, each Mortgage Loan
at the time it was made and the related Loan Agreement complied in all material
respects with applicable local, state and federal laws, including, without
limitation, usury, equal credit opportunity, disclosure, recording and all
applicable predatory lending laws;
11
(ix) A policy of hazard insurance and flood insurance, if
applicable, was required from the Mortgagor for the Mortgage Loan when the
Mortgage Loan was originated;
(x) Each Mortgage Loan is the legal, valid and binding obligation
of the maker thereof and is enforceable in accordance with its terms, except
only as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
considered in a proceeding or action in equity or at law);
(xi) No Mortgage Loan is subject to the Home Ownership and Equity
Protection Act of 1994. Furthermore, no Mortgage Loan either currently has, or
in the future will have, single premium life provisions as part of the Loan
Agreement;
(xii) Each Initial Mortgage Loan has an associated CLTV of no
higher than 100%;
(xiii) There is no proceeding pending or threatened for the total
or partial condemnation of the Mortgaged Property, nor is such a proceeding
currently occurring;
(xiv) The related Loan Agreement is not and has not been secured
by any collateral, pledged account or other security except the lien of the
corresponding Mortgage;
(xv) With respect to each Initial Mortgage Loan and Subsequent
Mortgage Loan, as applicable, the related Mortgage File contains or will contain
each of the documents and instruments specified to be included therein;
(xvi) With respect to each Mortgage Loan that is not a first
mortgage loan, either (i) no consent for the Mortgage Loan is required by the
holder or holders of the related prior lien, (ii) such consent has been obtained
and is contained in the related Mortgage File or (iii) no consent for the
Mortgage Loan was required by relevant law;
(xvii) The Mortgaged Property is located in the state identified
in the Mortgage Loan Schedule and consists of a single parcel of real property
with a residential dwelling erected thereon;
(xviii) The related Mortgage contains customary and enforceable
(subject to clause (x)) provisions which render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property of
the benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. There is no homestead or other exemption available to the Mortgagor
which would materially interfere with the right to sell the Mortgaged Property
at a trustee's sale or the right to foreclose the Mortgage;
(xix) To the best of the Seller's knowledge, there is no default,
breach, violation or event of acceleration existing under the Mortgage or the
related Loan Agreement and no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration; and the Seller has not
waived any default, breach, violation or event of acceleration;
12
(xx) At origination, each Initial Mortgage Loan has a draw period
of not less than 60 months;
(xxi) The Loan Agreement with respect to each Initial Mortgage
Loan bears an adjustable Loan Rate that equals a rate per annum of no less than
Prime minus [_____]% for the Mortgage Loans in Loan Group I and Prime minus
[_____]% for the Mortgage Loans in Loan Group II;
(xxii) To the best of the Seller's knowledge, there are no
mechanics' or similar liens or claims which have been filed for work, labor or
material affecting the related Mortgaged Property which are, or may be liens
prior or equal to the lien of the related Mortgage, except liens which are fully
insured against by a title insurance policy referred to in clause (xxiv) below;
(xxiii) As of the Cut-Off Date or the related Subsequent Cut-Off
Date, as applicable, no Mortgage Loan was 30 days or more delinquent in payment
of principal or interest or the subject of a bankruptcy proceeding;
(xxiv) A title search or other assurance of title customary in
the relevant jurisdiction was obtained with respect to each Mortgage Loan;
(xxv) Each original Mortgage was recorded, and all subsequent
assignments of the original Mortgage required to be delivered to the Servicer
pursuant to Section 2.01 have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof (or are in the
process of being recorded in accordance with local law);
(xxvi) The Seller has not transferred the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of its creditors;
(xxvii) No selection procedure reasonably believed by the Seller
to be adverse to the interests of the Securityholders was utilized in selecting
the Mortgage Loans;
(xxviii) The Minimum Monthly Payment with respect to any Mortgage
Loan is not less than the interest accrued at the applicable Loan Rate on the
average daily Principal Balance during the interest period relating to the date
on which such Minimum Monthly Payment is due;
(xxix) The Seller has not received a notice of default of any
senior mortgage loan related to a Mortgaged Property which has not been cured by
a party other than the Seller;
(XXX) No instrument of release or waiver has been executed in
connection with the Mortgage Loans, and no Mortgagor has been released, in whole
or in part, from its obligations in connection therewith;
(xxxi) Each Mortgage Loan has been originated by the Seller in
compliance in all material respects with the Seller's internal underwriting
policies as in effect on the date of origination of such Mortgage Loan;
13
(xxxii) Other than provisions relating to "promotional Finance
Charges" and "promotional Advances," as each such term is used in the related
Loan Agreements, or any similar terms used in any of the related Loan
Agreements, there are no provisions in any of the related Loan Agreements that
would interfere with the allocation provisions of the second sentence of Section
2.4;
(xxxiii) No "Promotional Advances," as such term is used in the
related Loan Agreements or any other similar type of advance that would be
entitled to an allocation of payment contrary to the second sentence of Section
2.4 will be extended under any Mortgage Loan after the date on which the Rapid
Amortization Period commences;
(xxxiv) None of the Loan Agreements that constitute or evidence
the Mortgage Loans has any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the Purchaser;
(xxxv) None of the Mortgage Loans are "high cost home loans"
under the Georgia Fair Lending Act, as amended, and no Mortgage Loans that are
secured by mortgaged property in Georgia and were originated between [_____] and
[_____] are subject to the Georgia Fair Lending Act;
(xxxvi) None of the Mortgage Loans are "high cost home loans"
under the New York Predatory Lending Law, codified as N.Y. Banking Lawss.6-I,
N.Y. Gen. Bus. Lawss.771-a, and N.Y. Real Prop. Acts Lawss.1302;
(xxxvii) As of the Cut-Off Date, the minimum CLTV of a Mortgage
Loan in Loan Group I is [_____]%, the highest CLTV of a Mortgage Loan in Loan
Group I is [_____]% and the weighted average CLTV for the Mortgage Loans in Loan
Group I is approximately [_____]%. As of the Cut-Off Date, the minimum CLTV of a
Mortgage Loan in Loan Group II is [_____]%, the highest CLTV of a Mortgage Loan
in Loan Group II is [_____]% and the weighted average CLTV for the Mortgage
Loans in Loan Group II is approximately [_____]%;
(xxxviii) As of the Cut-Off Date, no more than approximately
[_____]% of the Mortgage Loans in Loan Group I, by Cut-Off Date Principal
Balance, are secured by Mortgaged Properties which may have been appraised using
a statistical property evaluation method provided by CASA(R). As of the Cut-Off
Date, no more than approximately [_____]% of the Mortgage Loans in Loan Group
II, by Cut-Off Date Principal Balance, are secured by Mortgaged Properties which
may have been appraised using a statistical property evaluation method provided
by CASA(R);
(xxxix) As of the Cut-Off Date, none of the Mortgage Loans in
Loan Group I are secured by Mortgaged Properties which may have been appraised
using a statistical property evaluation method provided by vendors other than
CASA(R). As of the Cut-Off Date, no more than approximately [_____]% of the
Mortgage Loans in Loan Group II, by Cut-Off Date Principal Balance, are secured
by Mortgaged Properties which may have been appraised using a statistical
property evaluation method provided by vendors other than CASA(R);
(xl) As of the Cut-Off Date, the Loan Rates on the Mortgage Loans
in Loan Group I range between [_____]% per annum and [_____]% per annum and the
Loan Rates
14
on the Mortgage Loans in Loan Group II range between [_____]% per annum and
[_____]% per annum. As of the Cut-Off Date, the weighted average Loan Rate for
the Mortgage Loans in Loan Group I is approximately [_____]% per annum and the
weighted average Loan Rate for the Mortgage Loans in Loan Group II is
approximately [_____]% per annum;
(xli) As of the Cut-Off Date, no more than approximately
[_____]%, [_____]%, [_____]%, [_____]% and [_____]% of the Mortgage Loans in
Loan Group I, by Cut-Off Date Principal Balance, are secured by Mortgaged
Properties located in [_____], respectively. As of the Cut-Off Date, no more
than approximately [_____]%, [_____]%, [_____]% and [_____]% of the Mortgage
Loans in Loan Group II, by Cut-Off Date Principal Balance, are secured by
Mortgaged Properties located in [_____], respectively;
(xlii) (A) Each Mortgaged Property consists of a single parcel of
real property with a single family or multi-family residence erected thereon, or
an individual condominium unit or agricultural property with a residence erected
thereon. (B) With respect to the Mortgage Loans in Loan Group I, (a)
approximately [_____]% (by Cut-Off Date Principal Balance) are secured by real
property improved by individual condominium units, (b) approximately [_____]%
(by Cut-Off Date Principal Balance) are secured by real property with a single
family residence erected thereon and (c) approximately [_____]% (by Cut-Off Date
Principal Balance) are secured by real property with a multi-family residence
erected thereon. (C) With respect to the Mortgage Loans in Loan Group II, (a)
approximately [_____]% (by Cut-Off Date Principal Balance) are secured by real
property improved by individual condominium units, (b) approximately [_____]%
(by Cut-Off Date Principal Balance) are secured by real property with a single
family residence erected thereon, (c) approximately [_____]% (by Cut-Off Date
Principal Balance) are secured by real property with a multi-family residence
erected thereon and (d) approximately [_____]% are secured by agricultural
property with a residence thereon;
(xliii)As of the Cut-Off Date, (i) no more than approximately
[_____]% of the Mortgage Loans in Loan Group I, by Cut-Off Date Principal
Balance, are secured by second liens and (ii) no more than approximately
[_____]% of the Mortgage Loans in Loan Group I, by Cut-Off Date Principal
Balance, are secured by third liens. As of the Cut-Off Date, (i) no more than
approximately [_____]% of the Mortgage Loans in Loan Group II, by Cut-Off Date
Principal Balance, are secured by second liens and (ii) no more than
approximately [_____]% of the Mortgage Loans in Loan Group II, by Cut-Off Date
Principal Balance, are secured by third liens;
(xliv) As of the Cut-Off Date, no Mortgage Loan in Loan Group I
had a Principal Balance less than $[_____] and no Mortgage Loan in Loan Group I
had a Principal Balance in excess of $[_____]. As of the Cut-Off Date, no
Mortgage Loan in Loan Group II had a Principal Balance less than $[_____] and no
Mortgage Loan in Loan Group II had a Principal Balance in excess of $[_____];
(xlv) No Mortgage Loan originated on or after [_____] will impose
a prepayment premium for a term in excess of three years;
(xlvi) No Mortgage Loan provides for a prepayment premium for a
period in excess of five years after the origination date;
15
(xlvii) Each Mortgage Loan has been serviced since its
origination in compliance with all applicable federal, state and local laws; and
(xlviii) As of the Cut-Off Date, no Mortgagor was the subject of
any bankruptcy proceedings.
(c) As to each Subsequent Mortgage Loan as of the related Subsequent
Cut-Off Date:
(i) the original stated term to maturity of the Subsequent
Mortgage Loan will not exceed [___] months;
(ii) if such Subsequent Mortgage Loan is for inclusion in Loan
Group I and (a) is a first lien Mortgage Loan, it shall have a credit limit that
is less than or equal to $[_____] or (b) is a junior lien Mortgage Loan (i) the
sum of the credit limit and the principal balances of any related senior loans
will be less than or equal to $[_____] and (ii) the credit limit will be less
than or equal to $[_____];
(iii) if such Subsequent Mortgage Loan is for inclusion in Loan
Group II, it must have an outstanding Principal Balance of at least $[_____] and
no more than $[_____] as of the Subsequent Cut-Off Date;
(iv) the Subsequent Mortgage Loan will be underwritten
substantially in accordance with the criteria used with respect to the Initial
Mortgage Loans;
(v) the Subsequent Mortgage Loan shall not provide for negative
amortization; and
(vi) following the purchase of the Subsequent Mortgage Loan by
the Issuer, the Mortgage Loans in the related Loan Group must have a weighted
average Gross Margin, a weighted average remaining term to maturity and a
weighted average CLTV Ratio at origination, as of each respective Subsequent
Cut-Off Date, which would not vary materially from the Initial Mortgage Loans in
the related Loan Group.
(d) Upon notice from the Purchaser, the Enhancer, the Owner Trustee,
the Indenture Trustee or the Servicer, as applicable, of a breach of the
Seller's respective representations or warranties in paragraph (a) above that
materially and adversely affects the interests of the Securityholders or the
Enhancer in any Mortgage Loan, the Seller shall, within 90 days of its discovery
or its receipt of notice of such breach, either (i) cure such breach in all
material respects or (ii) to the extent that such breach is with respect to a
Mortgage Loan or a Related Document, either (A) repurchase such Mortgage Loan
from the Purchaser or its assignee at the Repurchase Price, or (B) substitute
one or more Eligible Substitute Loans for such Mortgage Loan, in each case in
the manner and subject to the conditions and limitations set forth below.
Upon discovery by the Seller or upon notice from the Purchaser, the
Enhancer, the Owner Trustee, the Indenture Trustee or the Servicer, as
applicable, of a breach of the Seller's representations or warranties in
paragraphs (b) or (c) above, with respect to any Mortgage Loan, or upon the
occurrence of a Repurchase Event, that materially and adversely affects the
interests of the Securityholders, the Enhancer or the Purchaser in such Mortgage
Loan (notice of which shall be
16
given to the Purchaser by the Seller if it discovers the same), notwithstanding
such Seller's lack of knowledge with respect to the substance of such
representation and warranty, the Seller shall, within 90 days after the earlier
of its discovery or receipt of notice thereof, either cure such breach or
Repurchase Event in all material respects or either (i) repurchase such Mortgage
Loan from the Purchaser or its assignee at the Repurchase Price, or (ii)
substitute one or more Eligible Substitute Loans for such Mortgage Loan, in each
case in the manner and subject to the conditions set forth below. The Repurchase
Price for any such Mortgage Loan repurchased by the Seller shall be deposited or
caused to be deposited by the Seller into the Custodial Account. If the breach
of representation and warranty that gave rise to the obligation to repurchase or
substitute a Mortgage Loan pursuant to this Section (d) was the representation
and warranty set forth in clause (viii) of Section 3.1(b), then the Seller shall
pay to the Issuer on behalf of the Trust Estate, concurrently with and in
addition to the remedies provided in the preceding sentence, an amount equal to
any liability, penalty or expense that was actually incurred and paid out of or
on behalf of the Trust Estate, and that directly resulted from such breach, or
if incurred and paid by the Trust Estate thereafter, concurrently with such
payment.
In the event that the Seller elects to substitute an Eligible
Substitute Loan or Loans for a Deleted Loan pursuant to this Section 3.1, the
Seller shall deliver to the Servicer on behalf of the Issuer, with respect to
such Eligible Substitute Loan or Loans, the original Loan Agreement and all
other documents and agreements as are required by Section 2.1(d), with the Loan
Agreement endorsed as required by Section 2.1(d). No substitution will be made
in any calendar month after the Determination Date for such month. Minimum
Monthly Payments due with respect to Eligible Substitute Loans in the month of
substitution shall not be part of the Trust Estate and will be retained by the
Servicer and remitted by the Servicer to the Seller on the next succeeding
Payment Date, provided that a payment at least equal to the applicable Minimum
Monthly Payment for such month in respect of the Deleted Loan has been received
by the Issuer. For the month of substitution, distributions to the Note Payment
Account pursuant to the Servicing Agreement will include the Minimum Monthly
Payment due on a Deleted Loan for such month and thereafter the Seller shall be
entitled to retain all amounts received in respect of such Deleted Loan. The
Servicer shall amend or cause to be amended the Mortgage Loan Schedule to
reflect the removal of such Deleted Loan and the substitution of the Eligible
Substitute Loan or Loans and the Servicer shall deliver the amended Mortgage
Loan Schedule to the Owner Trustee and the Indenture Trustee. Upon such
substitution, the Eligible Substitute Loan or Loans shall be subject to the
terms of this Agreement in all respects, the Seller shall be deemed to have made
the representations and warranties with respect to the Eligible Substitute Loan
contained herein set forth in Section 3.1(b), in each case, as of the date of
substitution, and the Seller shall be deemed to have made a representation and
warranty that each Mortgage Loan so substituted is an Eligible Substitute Loan
as of the date of substitution. The Seller shall be obligated to repurchase or
substitute for any Eligible Substitute Loan as to which a Repurchase Event has
occurred or as to which the Seller has breached the Seller's representations and
warranties in Section 3.1(b), in each case to the same extent as for any other
Mortgage Loan, as provided herein. In connection with the substitution of one or
more Eligible Substitute Loans for one or more Deleted Loans, the Servicer shall
determine the Substitution Adjustment Amount and the Seller shall deposit such
Substitution Adjustment Amount into the Custodial Account on the date of
substitution, without any reimbursement therefor.
Upon receipt by the Indenture Trustee on behalf of the Issuer of
written notification, signed by a Servicing Officer, of the deposit of such
Repurchase Price or of such substitution of an Eligible Substitute Loan
(together with the complete related Mortgage File) and
17
deposit of any applicable Substitution Adjustment Amount as provided above, the
Servicer, on behalf of the Indenture Trustee, shall release to the Seller the
related Mortgage File for the Mortgage Loan being repurchased or substituted for
and the Indenture Trustee on behalf of the Issuer shall execute and deliver such
instruments of transfer or assignment prepared by the Servicer, in each case
without recourse, as shall be necessary to vest in the Seller or its respective
designee such Mortgage Loan released pursuant hereto and thereafter such
Mortgage Loan shall not be an asset of the Purchaser or the Issuer or part of
the Trust Estate.
It is understood and agreed that the obligation of the Seller to cure
any breach of the Seller's representation and warranties in paragraphs (b) or
(c) above, or to repurchase or substitute for any Mortgage Loan as to which such
a breach has occurred and is continuing, shall constitute the sole remedy
respecting such breach available to the Purchaser, the Issuer, the Enhancer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against the Seller.
It is understood and agreed that the representations and warranties
set forth in this Section 3.1 shall survive delivery of the respective Mortgage
Files to the Issuer or the Servicer.
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller. The Seller hereby agrees and
covenants that:
(a) except for the transfer hereunder, or under the related Subsequent
Transfer Agreement, as applicable, the Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur or assume any Lien on any
Mortgage Loan or other Transferred Property, or any interest in the foregoing,
except with respect to any Excluded Draw;
(b) the Seller shall not convey, pledge or sell any Excluded Draw
unless the Seller delivers an Opinion of Counsel to the Enhancer that such
conveyance will not cause the Trust to become a taxable mortgage pool;
(c) the Seller shall notify the Purchaser and the Indenture Trustee of
the existence of any Lien (other than as provided above) arising through or
under the Seller on any Mortgage Loan immediately upon discovery thereof; and
the Seller shall defend the right, title and interest of the Purchaser and the
Indenture Trustee in, to and under the Mortgage Loans and other Transferred
Property against all claims of third parties claiming through or under the
Seller; and
(d) in a sale of the Trust Estate upon an Event of Default pursuant to
the Indenture, the Indenture Trustee shall have the right to sell all Excluded
Draws in connection with such sale, provided that the Seller receives an amount
equal to the fair market value for such Excluded Draws upon such sale.
18
ARTICLE V
[RESERVED]
ARTICLE VI
LIMITATION OF LIABILITY
Section 6.1 Limitation on Liability of the Seller. None of the
directors, officers, employees or agents of the Seller shall be under any
liability to the Purchaser, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement and any Subsequent Transfer
Agreement. Except (i) with respect to its breach of any of its representations,
warranties, or covenants herein, and (ii) as and to the extent expressly
provided in this Agreement, the Seller shall not be under any liability to the
Owner Trustee, the Indenture Trustee or the Securityholders. The Seller and any
director, officer, employee or agent of the Seller may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder.
ARTICLE VII
TERMINATION
Section 7.1 Termination. The obligations and responsibilities of the
parties hereto shall terminate upon the termination of the Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement may be amended from time to time
by the parties hereto by written agreement with the prior written consent of the
Enhancer, which consent shall not unreasonably be withheld.
Section 8.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
19
Section 8.3 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by certified mail, returned receipt requested and postage
prepaid, addressed as follows:
(i) if to the Seller:
Wachovia Bank, National Association
One Wachovia Center
18th Floor
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx
Re: Wachovia Asset Securitization [_____] Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to the Purchaser:
Wachovia Asset Securitization Issuance, LLC
0000 Xxxxxxxx Xxxxx
XX0000-Xxxxx X
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Re: Wachovia Asset Securitization [_____] Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) if to the Issuer:
c/o [_____], as Owner Trustee
[-----]
Re: Wachovia Asset Securitization [_____] Trust; or
(iv) if to the Indenture Trustee:
[-----]
[-----]
[-----]
Re: Wachovia Asset Securitization [_____] Trust
(v) if to the Enhancer:
[-----]
[-----]
Attention: Research and Risk Management;
or, with respect to any of the foregoing Persons, at such other address as may
hereafter be furnished to the other foregoing Persons in writing in accordance
with this Section 8.3.
20
Section 8.4 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 8.5 Relationship of Parties. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto.
Section 8.6 Counterparts. This Agreement may be executed in any number
of counterparts, each of which, when so executed, shall be deemed to be an
original and such counterparts, together, shall constitute one and the same
agreement.
Section 8.7 Further Agreements. The parties hereto each agree to
execute and deliver to the other such additional documents, instruments or
agreements as may be necessary or appropriate to effectuate the purposes of this
Agreement.
Section 8.8 Intention of the Parties. It is the intention of the
parties hereto that the Purchaser will be purchasing on the Closing Date, and
the Seller will be selling on the Closing Date, the Initial Mortgage Loans,
rather than the Purchaser providing a loan to the Seller secured by the Initial
Mortgage Loans on the Closing Date; and that the Purchaser will be purchasing on
each Subsequent Transfer Date, and the Seller will be selling on each Subsequent
Transfer Date, the related Subsequent Mortgage Loans, rather than the Purchaser
providing a loan to the Seller secured by the related Subsequent Mortgage Loans
on each Subsequent Transfer Date. The Purchaser shall have the right to review
the Mortgage Loans and the Related Documents to determine the characteristics of
the Mortgage Loans which will affect the federal income tax consequences of
owning the Mortgage Loans, and the Seller shall cooperate with all reasonable
requests made by the Purchaser in the course of such review.
21
Section 8.9 Successors and Assign; Assignment of this Agreement.
(a) This Agreement shall bind and inure to the benefit of and be
enforceable by the parties hereto and their respective permitted successors and
assigns. The obligations of the Seller under this Agreement cannot be assigned
or delegated to a third party without the consent of the Enhancer and the
Purchaser (and the Issuer with respect to the transfer of the Subsequent
Mortgage Loans), which consent shall be at each of the Enhancer, the Purchaser,
and the Issuer's sole discretion, provided that the Seller may assign its
obligations hereunder to any Affiliate of the Seller, to any Person succeeding
to the business of the Seller, to any Person into which the Seller is merged and
to any Person resulting from any merger, conversion or consolidation to which
the Seller is a party.
(b) As an inducement to the Purchaser to purchase the Initial Mortgage
Loans and the Subsequent Mortgage Loans, the Seller acknowledges and consents to
the Purchaser's transfer of its interest in this Agreement and each Subsequent
Transfer Agreement to which it is a party to the Issuer pursuant to the
Servicing Agreement and each related Subsequent Transfer Agreement executed by
the Depositor and the Issuer, the grant of a security interest in such interest
by the Issuer to the Indenture Trustee pursuant to the Indenture and the
enforcement by the Indenture Trustee or the Servicer on behalf of the Indenture
Trustee or the Issuer, of any right or remedy against the Seller pursuant to
this Agreement. Such enforcement of a right or remedy by the Owner Trustee, the
Indenture Trustee or the Servicer on behalf of the Indenture Trustee or the
Issuer, as applicable, shall have the same force and effect as if the right or
remedy had been enforced or exercised by the Purchaser directly.
Section 8.10 Survival. The representations and warranties made herein
by the Seller and the provisions of Article VI hereof shall survive the purchase
of the Initial Mortgage Loans hereunder and any transfer of Subsequent Mortgage
Loans pursuant to this Agreement and the related Subsequent Transfer Agreement.
Section 8.11 Third-Party Beneficiary. The Enhancer shall be an express
third-party beneficiary hereof and shall be entitled to enforce the provisions
of this Agreement as if a party hereto.
22
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC,
as Purchaser
By:
----------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller and Servicer
By:
----------------------------------------
Name:
Title:
Acknowledged and Accepted:
[_____], not in its individual capacity but solely
as Indenture Trustee
By:
------------------------------------------------
Name:
Title:
23
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement No.[ ] (the
"Agreement"), dated as of [ , ], between Wachovia Bank, National Association, as
seller (the "Seller"), and Wachovia Asset Securitization Issuance, LLC (the
"Purchaser") and pursuant to the mortgage loan purchase agreement dated as of
[_____] (the "Mortgage Loan Purchase Agreement"), between the Seller, as seller
and servicer, and the Purchaser, as purchaser, the Seller and the Purchaser
agree to the sale by the Seller and the purchase by the Purchaser of the
mortgage loans listed on the attached Schedule of Subsequent Mortgage Loans (the
"Subsequent Mortgage Loans").
Capitalized terms used and not defined herein have their respective
meanings as set forth in Appendix A to the indenture dated as of [_____], among
the Wachovia Asset Securitization Issuance, LLC [_____] Trust (the "Issuer"),
[_____], as indenture trustee (the "Indenture Trustee"), and Wachovia Bank,
National Association, as paying agent (the "Paying Agent")which meanings are
incorporated by reference herein. All other capitalized terms used herein shall
have the meanings specified herein.
Section 1. Sale of Subsequent Mortgage Loans.
(a) The Seller does hereby sell, transfer, assign, set over and convey
to the Purchaser, without recourse (except as expressly provided herein and in
the Mortgage Loan Purchase Agreement), all of its right, title and interest
whether now owned or existing or hereafter created, arising, or acquired, in, to
and under the following: (i) the Subsequent Mortgage Loans identified on the
Mortgage Loan Schedule attached hereto as Attachment B (including the related
Cut-Off Date Principal Balances now existing and all Additional Balances arising
thereunder after the Subsequent Cut-Off Date through and including the date
immediately preceding the commencement of the Rapid Amortization Period), all
interest accruing thereon, all monies due or to become due thereon, and all
collections in respect thereof received on or after the Subsequent Cut-Off Date
(other than interest thereon in respect of any period prior to the Subsequent
Cut-Off Date); provided, however, that any Principal Balance represented by a
Draw made during the Rapid Amortization Period and interest thereon and money
due or to become due in respect thereof will not be or deemed to be transferred
to the Purchaser, and the Seller in such event shall retain ownership of each
Principal Balance represented by each such Draw and interest thereon and money
due or to become due in respect thereof; (ii) the interest of the Seller in any
insurance policies in respect of the Subsequent Mortgage Loans; (iii) the
interest of the Seller in the Mortgages and the Loan Agreements related to each
Subsequent Mortgage Loan and the other Related Documents and (iv) all proceeds
of the foregoing; provided, however, that the Purchaser does not assume the
obligation under any Loan Agreement to fund Draws by the Mortgagor thereunder or
any other obligation arising under or related to the Related Documents, and the
Purchaser shall not be obligated or permitted to fund any such Draws, it being
agreed that the Seller will retain the obligation to fund future Draws. The
Seller, contemporaneously with the delivery of this Agreement, has delivered or
caused to be delivered to the Purchaser each item set forth in Section 2.2 of
the Mortgage Loan Purchase Agreement.
The transfer to the Purchaser by the Seller of the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule is intended by the parties hereto
to constitute a sale by the Seller to the Purchaser on the Subsequent Transfer
Date of all the Seller's right, title and interest in and to the Subsequent
Mortgage Loans and the other Subsequent Transferred Property, including for
accounting purposes, and not a secured borrowing. In the event the transactions
set forth herein are deemed not to be a sale, the Seller hereby grants to the
Purchaser a security interest in the Subsequent Transferred Property to secure
all of the Seller's obligations hereunder, and this Agreement shall and hereby
does constitute a security agreement under applicable law. The Seller agrees to
take or cause to be taken such actions and to execute such documents, including
without limitation the authorization and filing of any continuation statements
with respect to the UCC financing statements filed with respect to the
Subsequent Mortgage Loans by the Purchaser on the related Subsequent Transfer
Date, if any, and any amendments thereto required to reflect a change in the
name or corporate structure of the Seller or the filing of any additional UCC
financing statements due to the change in the principal office or jurisdiction
of organization of the Seller as are necessary to perfect and protect the
Purchaser's interests in the Subsequent Transferred Property. The Seller shall
file any such continuation statements or amendments on a timely basis.
(b) The expenses and costs relating to the delivery of the Subsequent
Mortgage Loans and the related Subsequent Transferred Property, this Agreement
and the Mortgage Loan Purchase Agreement shall be borne by the Seller.
(c) The Purchaser, by execution of this Agreement, acknowledges its
acceptance of all of the Seller's right, title and interest to the Subsequent
Mortgage Loans and the other related Subsequent Transferred Property.
(d) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Representations and Warranties; Conditions Precedent.
(a) The Seller hereby affirms the representations and warranties made
by it and set forth in Section 3.1 of the Mortgage Loan Purchase Agreement that
relate to the Seller or the Subsequent Mortgage Loans as of the date hereof. The
Seller hereby confirms that each of the conditions set forth in Section 2.2(b)
of the Mortgage Loan Purchase Agreement are satisfied as of the date hereof and
further represents and warrants that the Mortgage Loan Schedule attached hereto
is accurate as of the Subsequent Cut-Off Date.
(b) The Seller is solvent, is able to pay its debts as they become due
and has capital sufficient to carry on its business and its obligations
hereunder; it will not be rendered insolvent by the execution and delivery of
this instrument or by the performance of its obligations hereunder nor is it
aware of any pending insolvency; no petition of bankruptcy (or similar
insolvency proceeding) has been filed by or against the Seller prior to the date
hereof.
(c) All terms and conditions of the Mortgage Loan Purchase Agreement
relating to the Subsequent Mortgage Loans are hereby ratified and confirmed;
provided, however, that in the event of any conflict the provisions of this
Agreement shall control over the conflicting provisions of the Mortgage Loan
Purchase Agreement.
Exhibit 2-2
Section 3. GOVERNING LAW. THIS INSTRUMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 4. Counterparts. This Instrument may be executed in
counterparts, each of which, when so executed, shall be deemed to be an original
and together shall constitute one and the same instrument.
Section 5. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Purchaser and their respective
successors and assigns.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller
By:
------------------------------------
Name:
Title:
WACHOVIA ASSET SECURITIZATION, INC,
as Purchaser
By:
------------------------------------
Name:
Title:
Acknowledged and Accepted:
[_____], not in its individual capacity but solely
as Indenture Trustee
By:
--------------------------------
Name:
Title:
Exhibit 2-3
Attachments
-----------
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
C. Seller's Officer's Certificate.
Exhibit 2-4
WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC
ATTACHMENT A TO FORM OF SUBSEQUENT TRANSFER AGREEMENT
------------, ----
A.
1. Subsequent Cut-Off Date:
2. Pricing Date:
3. Subsequent Transfer Date:
4. Aggregate Principal Balance of the Subsequent Mortgage Loans as of the
Subsequent Cut-Off Date:
5. Purchase Price: 100.00%
B.
As to all Subsequent Mortgage Loans:
1. Longest stated term to maturity: ---------- months
2. Minimum Loan Rate: ---------- %
3. Maximum Loan Rate: ---------- %
Exhibit 2-5
EXHIBIT 3
FORM OF ADDITION NOTICE
DATE:
[_____], Xxxxx'x Investors Service, Inc.
as Indenture Trustee 00 Xxxxxx Xxxxxx
[_____] Xxx Xxxx, Xxx Xxxx 00000
[_____]
Wachovia Asset Securitization Issuance, LLC [_____],
One Xxxxxxxx Xxxxxx, 0xx Xxxxx as Owner Trustee
000 Xxxxxxx Xxxxxx [_____]
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 [_____]
[_____]
Standard & Poor's, a division of
The XxXxxx-Xxxx Companies, Inc.
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC
-------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.2 of the mortgage loan purchase agreement dated as of
[_____] (the "Purchase Agreement"), between Wachovia Bank, National Association,
as Seller and Servicer and Wachovia Asset Securitization Issuance, LLC, as
Purchaser, the Seller has designated the Subsequent Mortgage Loans identified on
the Mortgage Loan Schedule attached hereto to be sold to the Purchaser on [ , ],
with an aggregate Principal Balance of $[ ]. Capitalized terms not otherwise
defined - herein have the meaning set forth in the Appendix A to the indenture
dated as of [_____], among the Wachovia Asset Securitization Issuance, LLC
[_____] Trust, [_____], as indenture trustee and Wachovia Bank, National
Association, as paying agent.
Exhibit 2-6
Please acknowledge, as Purchaser, your receipt of this notice by
countersigning the enclosed copy in the space indicated below and returning it
to the attention of the undersigned.
Very truly yours,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller
By:
------------------------------------
Name:
Title:
WACHOVIA ASSET SECURITIZATION ISSUANCE, LLC,
as Purchaser
By:
------------------------------------
Name:
Title:
7
EXHIBIT 4
FORM OF INITIAL CERTIFICATION
[_______], 200[_]
[_____] , [_____]
as Indenture Trustee [_____]
[_____] [_____]
[_____] Attention: Wachovia Asset Securitization Issuance, LLC [_____]
Attention: Corporate Trust Services Trust
Re: Wachovia Asset Securitization [_____] Trust
-------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.1 of the mortgage loan purchase agreement dated as
of [_____] (the "Purchase Agreement"), between Wachovia Bank, National
Association, as Seller and Servicer and Wachovia Asset Securitization Issuance,
LLC, as Purchaser, the undersigned, as Servicer, hereby certifies that it has
received the following with respect to each Initial Mortgage Loan listed in the
Mortgage Loan Schedule:
Except for the exceptions listed on the schedule attached hereto, the Mortgage
File for each of the Mortgage Loans includes all documents specified in Section
2.1(d) of the Purchase Agreement.
Capitalized terms not otherwise defined herein have the meaning set forth in the
Appendix A to the indenture dated as of [_____], among the Wachovia Asset
Securitization Issuance, LLC [_____] Trust, [_____], as indenture trustee and
Wachovia Bank, National Association, as paying agent.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Servicer
By:____________________________________
Name:
Title:
8
EXHIBIT 5
FORM OF FINAL CERTIFICATION
[ ], 200[ ]
[_____], [_____]
as Indenture Trustee [_____]
[_____] Attention: Wachovia Asset Securitization Issuance,
LLC [_____] Trut
[_____]
Attention: Corporate Trust Services
Re: Wachovia Asset Securitization [_____] Trust
-------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.1 of the mortgage loan purchase agreement
dated as of [_____] (the "Purchase Agreement"), between Wachovia Bank, National
Association, as Seller and Servicer and Wachovia Asset Securitization Issuance,
LLC, as Purchaser, the undersigned, as Servicer, hereby certifies that it has
received the following with respect to each Initial Mortgage Loan listed in the
Mortgage Loan Schedule:
Except for the exceptions listed on the schedule attached hereto, the
Mortgage File for each of the Mortgage Loans includes all documents specified in
Section 2.1(d) of the Purchase Agreement.
Capitalized terms not otherwise defined herein have the meaning set forth
in the Appendix A to the indenture dated as of [_____], among the Wachovia Asset
Securitization Issuance, LLC [_____] Trust, [_____], as indenture trustee and
Wachovia Bank, National Association, as paying agent.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Servicer
By:____________________________________
Name:
Title:
1-1
SCHEDULE A TO EXHIBIT 5
EXCEPTIONS TO FINAL CERTIFICATION
1-1
