EXHIBIT 99.2
-------------------------------------------------------------------------------
COUNTRYWIDE HOME LOANS, INC.
Seller
CWABS, INC.
Purchaser
----------------------------------
PURCHASE AGREEMENT
Dated as of September 29, 2004
----------------------------------
REVOLVING HOME EQUITY LOAN ASSET BACKED NOTES
Series 2004-M
-------------------------------------------------------------------------------
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. .......................................................20
ARTICLE V
SERVICING
Section 5.01. Servicing. .....................................................................21
ARTICLE VI
TERMINATION
Section 6.01. Termination. ...................................................................21
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment. .....................................................................21
Section 7.02. Governing Law. .................................................................21
Section 7.03. Notices. .......................................................................21
Section 7.04. Severability of Provisions. ....................................................22
Section 7.05. Counterparts. ..................................................................22
i
Section 7.06. Further Agreements. ............................................................22
Section 7.07. Successors and Assigns: Assignment of Purchase Agreement. ......................22
Section 7.08. Survival. ......................................................................23
SCHEDULES AND ANNEXES
Schedule I ...........................................................................Sch-I-1
Schedule II ..........................................................................Sch-II-1
Annex I ...........................................................................Xxx-1-1
ii
THIS PURCHASE AGREEMENT, dated as of September 29, 2004 (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.
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.
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 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;
7
(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 binding obligation of the
Seller, enforceable against the Seller in accordance with its terms.
8
(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 this
Agreement, and the Sale and Servicing Agreement constitutes
a valid transfer to the Trust of the foregoing property and
all other property specified in Section 2.01(a) or (b) of
the Sale and Servicing Agreement such that, on execution of
the Sale and Servicing Agreement, it is owned by the Trust
free of all liens and other 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 or the Sale and Servicing
Agreement, as appropriate, constitutes a Grant of a Security
Interest to the Owner Trustee on behalf of the Trust and the
Indenture constitutes a Grant of a Security Interest to the
Indenture Trustee in the property described in clause (A)
above. If this Agreement and the Sale and Servicing
Agreement constitute the Grant of a Security Interest to the
Trust and the Indenture constitutes a Grant of a Security
Interest to the Indenture Trustee in such property, the
Indenture Trustee will have a first priority perfected
Security Interest in the property, subject to the effect of
Section 9-315 of the UCC with respect to collections on the
Mortgage Loans that are deposited in the Collection Account
in accordance with the next to last paragraph of Section
3.02(b) of the Sale and Servicing Agreement. This Security
Interest is enforceable as such against creditors of and
purchasers from the Trust, the Purchaser, and 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 the
Depositor, the Trust, or the Indenture Trustee as secured party.
(iv) As of the Closing Date, the information in the Mortgage
Loan Schedule for the Mortgage Loans is correct in all material
respects. As of the applicable date of substitution for an Eligible
Substitute Mortgage Loan, the information with respect to the
Eligible Substitute Mortgage Loan in the Mortgage Loan Schedule is
correct in all material respects. As of the date any Additional
Balance is created, the information as to the Mortgage Loan
identification number and the Additional Balance of that Mortgage
Loan reported for inclusion in the Mortgage Loan Schedule is correct
in all material respects.
(v) The Mortgage Loans have not been assigned or pledged,
and the Seller is their sole owner and holder free of any liens,
claims, encumbrances, participation interests, equities, pledges,
charges, or Security Interests of any nature, and has full authority,
under all governmental and regulatory bodies having jurisdiction over
the ownership of the Mortgage Loans, to transfer them pursuant to
this Agreement.
(vi) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), the related Mortgage Note and the mortgage for each
Mortgage Loan have not been assigned or pledged, and immediately
before the sale of the Mortgage Loans to the Purchaser, the 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, the applicable date of
substitution), the related mortgage is a valid and subsisting first
or second lien on the property described in it, as shown on the
Mortgage Loan Schedule of the Mortgage Loans, 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;
10
(B) any first mortgage loan secured by the
Mortgaged Property and specified on the Mortgage Loan
Schedule;
(C) covenants, conditions and restrictions, rights
of way, easements, and other matters of public record as of
the date of recording that are acceptable to mortgage
lending institutions generally; and
(D) other matters to which like properties are
commonly subject that do not materially interfere with the
benefits of the security intended to be provided by the
mortgage.
(viii) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), no obligor has a valid offset, defense, or
counterclaim under any Credit Line Agreement or mortgage.
(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, the 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 and
is in good repair.
(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
(xv).
(xii) No Minimum Monthly Payment on a Mortgage Loan being
transferred on the Closing Date is more than 59 days delinquent
(measured on a contractual basis) and no Minimum Monthly Payment on
any other Mortgage Loan subsequently being transferred is more than
30 days delinquent (measured on a contractual basis) on the relevant
transfer date and for each Loan Group no more than the applicable
percentage of the Mortgage Loans in that Loan Group specified in the
Adoption Annex being transferred on the Closing Date (by Cut-off Date
Loan Balance) were 30-59 days delinquent (measured on a contractual
basis).
(xiii) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), for each Mortgage Loan, the related Mortgage File
contains each of the documents specified to be included in it.
11
(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 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; (b) no
Mortgage Loan is classified as (1) a "high cost" loan under the Home
Ownership and Equity Protection Act of 1994 or (2) a "high cost,"
"threshold," "covered," "predatory" or similar loan under any other
applicable state, federal or local law that applies to mortgage loans
(or a similar classified loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability
for residential mortgage loans having high interest rates, points, or
fees); and (c) no Mortgage Loan is a High Cost Loan or Covered Loan,
as applicable, and no Mortgage Loan originated on or after October 1,
2002 through March 6, 2003 is governed by the Georgia Fair Lending
Act; with respect to the foregoing subsection (c), "High Cost Loan"
and "Covered Loan" have the meaning assigned to them in the Standard
& Poor's LEVELS(R) Glossary attached as Schedule II (the "Glossary")
where (x) a "High Cost Loan" is each loan identified in the column
"Category under applicable anti-predatory lending law" of the table
entitled "Standard & Poor's High Cost Loan Categorization" in the
Glossary as each such loan is defined in the applicable
anti-predatory lending law of the State or jurisdiction specified in
such table and (y) "Covered Loan" is each loan identified in the
column "Category under applicable anti-predatory lending law" of the
table entitled "Standard & Poor's Covered Loan Categorization" in the
Glossary as each such loan is defined in the applicable
anti-predatory lending law of the State of jurisdiction specified in
such table.
(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 binder was
issued or guaranty of title customary in the relevant jurisdiction
was obtained, on the date of origination of the Mortgage Loan being
transferred on the relevant date and each policy is valid and remains
in full force.
(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.
12
(xvii) No more than the percentage specified in the Adoption
Annex of the Mortgage Loans in each Loan Group, by aggregate
principal balance of the related Mortgage Loans, are secured by
Mortgaged Properties located in one United States postal zip code.
(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 in each Loan Group 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.
(xxii) The Mortgage Notes constitute either "instruments" or
"general intangibles" as defined in the UCC.
(xxiii) By the Closing Date (or, within 30 days of the
applicable date of substitution with respect to any Eligible
Substitute Mortgage Loan), the Sponsor will file UCC-1 financing
statements in the proper filing office in the appropriate
jurisdiction to perfect the Security Interest in the Collateral
Granted under the Indenture.
(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 transferred 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."
13
(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 in each Loan Group on a contractual basis as of
the Cut-off Date is approximately the number of months specified for
that Loan Group in the Adoption Annex. On each date that the Loan
Rates have been adjusted, interest rate adjustments on the Mortgage
Loans were made in compliance with the related mortgage and Mortgage
Note and applicable law. Over the term of each Mortgage Loan, the
Loan Rate may not exceed the related Loan Rate Cap. The Loan Rate Cap
for the Mortgage Loans ranges between the percentages specified in
the Adoption Annex for that Loan Group and the weighted average Loan
Rate Cap is approximately the percentage specified in the Adoption
Annex for that Loan Group. The Gross Margins for the Mortgage Loans
in each Loan Group range between the percentages specified in the
Adoption Annex for that Loan Group and the weighted average Gross
Margin is approximately the percentage specified in the Adoption
Annex for that Loan Group as of the Cut-off Date. The Loan Rates on
the Mortgage Loans in each Loan Group range between the percentages
specified in the Adoption Annex for that Loan Group and the weighted
average Loan Rate on the Mortgage Loans is approximately the
percentage specified in the Adoption Annex for that Loan Group. All
of the Mortgage Loans in the Loan Group specified in the Adoption
Annex were underwritten in conformity with Xxxxxx Xxx or Xxxxxxx Mac
maximum principal balance (by credit limit) guidelines.
(xxx) As of the Closing Date (or, with respect to any
Eligible Substitute Mortgage Loan, the applicable date of
substitution), each Mortgaged Property consists
14
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) for each Loan Group of the
Mortgage Loans in the related Loan Group are secured by real property
improved by individual condominium units, units in planned unit
developments, townhouses or two-to-four family residences erected on
them, and at least the percentage specified in the Adoption Annex (by
Cut-off Date Loan Balance) for each Loan Group of the Mortgage Loans
in the related Loan Group are secured by real property with a
detached one-family residence erected on them;
(xxxii) The Credit Limits on the Mortgage Loans in each Loan
Group range between approximately the dollar amounts specified in the
Adoption Annex for that Loan Group with an average of approximately
the dollar amount specified in the Adoption Annex for that Loan
Group. As of the Cut-off Date, no Mortgage Loan in either Loan Group
had a principal balance in excess of approximately the dollar amount
specified in the Adoption Annex for that Loan Group and the average
principal balance of the Mortgage Loans in each Loan Group is equal
to approximately the dollar amounts specified in the Adoption Annex
for that Loan Group.
(xxxiii) Approximately the percentages specified in the
Adoption Annex of the Mortgage Loans, by aggregate principal balance
as of the Cut-off Date, are secured by first and second liens.
(xxxiv) As of the Closing Date, no more than the percentage
specified in the Adoption Annex for each Loan Group of the Mortgage
Loans in the related Loan Group, by aggregate principal balance, were
appraised electronically.
(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 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.
15
(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), any leasehold estate securing a Mortgage Loan has a
term of not less than five years in excess of the term of the related
Mortgage Loan.
(xxxix) Based on the drawn balances of the Mortgage Loans,
the Mortgage Loans had the characteristics set out in the Adoption
Annex for each Loan Group in respect of the following: weighted
average Combined Loan-to-Value Ratio; range of Combined Loan-to-Value
Ratios; percentage of primary residences; weighted average FICO
score; range of FICO scores; Weighted Average Net Loan Rate; range of
net Loan Rates; weighted average original stated term to maturity;
range of original term to maturity; range of remaining term to
maturity; average drawn balance; weighted average utilization ratio;
percentage of the Mortgage Loans which have their respective
Mortgaged Properties located in the top five states, measured by
aggregate drawn balances.
(xl) Any Mortgage Loan that has been modified in any manner
has been so modified in accordance with the policies and procedures
of the Master Servicer and in a manner that was permitted by the Sale
and Servicing Agreement, the Indenture, and any other Transaction
Document.
(xli) Each Mortgage Loan was originated (within the meaning
of Section 3(a)(41) of the Securities Exchange Act of 1934) by an
entity that satisfied at the time of origination the requirements of
Section 3(a)(41) of the Securities Exchange Act of 1934.
(xlii) At the time each Mortgage Loan was originated, the
Sponsor is an approved seller of conventional mortgage loans for
Xxxxxx Xxx and Xxxxxxx Mac and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the National Housing Act.
(xliii) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the principal balance of
the related Mortgage Loan as of the Cut-off Date or a commitment
(binder) to issue the same was effective on the date of the
origination of each Mortgage Loan, each such policy is valid and
remains in full force, and each such policy was issued by a title
insurer qualified to do business in the jurisdiction where the
Mortgaged Property is located and acceptable to Xxxxxx Mae and
Xxxxxxx Mac and is in a form acceptable to Xxxxxx Mae and Xxxxxxx
Mac, which policy insures the Sponsor
16
and successor owners of indebtedness secured by the insured Mortgage,
as to the first priority lien, of the Mortgage subject to the
exceptions in paragraph (vii) above.
(xliv) At the Cut-off Date, the improvements on each
Mortgaged Property are covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides
for fire and extended coverage and coverage for such other hazards as
are customary in the area where the Mortgaged Property is located in
an amount that is at least equal to the lesser of (i) the maximum
insurable value of the improvements securing the Mortgage Loan or
(ii) the greater of (a) the outstanding principal balance of the
Mortgage Loan and (b) an amount such that the proceeds of the policy
will be sufficient to prevent the Mortgagor or the mortgagee from
becoming a co-insurer. If the Mortgaged Property is a condominium
unit, it is included under the coverage afforded by a blanket policy
for the condominium unit. All such individual insurance policies and
all flood policies referred to in item (xlv) below contain a standard
mortgagee clause naming the Sponsor or the original mortgagee, and
its successors in interest, as mortgagee, and the Sponsor has
received no notice that any premiums due and payable thereon have not
been paid; the Mortgage obligates the Mortgagor thereunder to
maintain all such insurance, including flood insurance, at the
Mortgagor's expense, and upon the Mortgagor's failure to do so,
authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's expense and to seek reimbursement
therefor from the Mortgagor.
(xlv) If the Mortgaged Property is in an area identified in
the Federal Register by the Federal Emergency Management Agency as
having special flood hazards, a flood insurance policy in a form
meeting the requirements of the current guidelines of the Flood
Insurance Administration is in effect with respect to the Mortgaged
Property with a generally acceptable carrier in an amount
representing coverage not less than the least of (A) the original
outstanding principal balance of the Mortgage Loan, (B) the minimum
amount required to compensate for damage or loss on a replacement
cost basis, or (C) the maximum amount of insurance that is available
under the Flood Disaster Protection Act of 1973.
(xlvi) Each Mortgage Note and the related Mortgage are
genuine, and each is the valid and legally binding obligation of its
maker, enforceable in accordance with its terms and under applicable
law, except that (a) its enforceability may be limited by bankruptcy,
insolvency, moratorium, receivership, and other similar laws relating
to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought. To the best of
the Sponsor's knowledge, all parties to the Mortgage Note and the
Mortgage had
17
legal capacity to execute the Mortgage Note and the Mortgage and each
Mortgage Note and Mortgage have been duly and properly executed by
such parties.
(xlvii) No Mortgage Loan has a shared appreciation feature,
or other contingent interest feature.
(xlviii) To the best of the Sponsor's knowledge, all of the
improvements that were included for the purpose of determining the
appraised value of the Mortgaged Property lie wholly within the
boundaries and building restriction lines of the Mortgaged Property,
and no improvements on adjoining properties encroach on the
Mortgaged Property.
(xlix) To the best of the Sponsor's knowledge, all
inspections, licenses, and certificates required to be made or issued
with respect to all occupied portions of the Mortgaged Property and,
with respect to the use and occupancy of the same, including
certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities, unless their
lack would not have a material adverse effect on the value of the
Mortgaged Property, and the Mortgaged Property is lawfully occupied
under applicable law.
(l) Each Mortgage contains customary and enforceable
provisions that render the rights and remedies of its holder adequate
for the realization against the Mortgaged Property of the benefits of
the security intended to be provided by it, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee's sale,
and (ii) otherwise by judicial foreclosure.
(li) Before the approval of the Mortgage Loan application,
an appraisal of the related Mortgaged Property was obtained from a
qualified appraiser, duly appointed by the Sponsor, who had no
interest, direct or indirect, in the Mortgaged Property or in any
loan secured by the Mortgaged Property, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan.
(lii) Except for (A) payments in the nature of escrow
payments, and (B) interest accruing from the date of the Mortgage
Note or date of disbursement of the Mortgage proceeds, whichever is
later, to the day that precedes by one month the Due Period of the
first installment of principal and interest and taxes and insurance
payments, the Sponsor has not advanced funds, or induced, solicited,
or knowingly received any advance of funds by a party other than the
Mortgagor, directly or indirectly, for the payment of any amount
required by the Mortgage.
(liii) As of the Closing Date, no foreclosure proceedings
are pending against the Mortgaged Property and the Mortgage Loan is
not subject to any pending bankruptcy or insolvency proceeding.
18
(liv) There is no homestead exemption available and
enforceable that materially interferes with the right to sell the
related Mortgaged Property at a trustee's sale or the right to
foreclose the related Mortgage.
(lv) No Mortgage Loan is covered by the Home Ownership and
Equity Protection Act of 1994.
(lvi) No Mortgage Loan originated on or after October 1, 2002
and before March 7, 2003 is secured by Mortgaged Property located in
the State of Georgia.
(lvii) No proceeds from any Mortgage Loan were used to
finance single-premium credit insurance policies.
(lviii) No subprime Mortgage Loan originated on or after
October 1, 2002 will impose a prepayment premium after the third
anniversary of the Mortgage Loan. No subprime Mortgage Loan
originated before October 1, 2002, and no non-subprime Mortgage
Loan, will impose a prepayment penalty after the fifth anniversary
of the Mortgage Loan.
(lix) The servicer for each Mortgage Loan has fully
furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian, and Trans Union Credit Information Company, on a monthly
basis.
(lx) The Mortgage Loans, individually and in the aggregate,
conform in all material respects to their descriptions in the
Prospectus Supplement.
(lxi) As of the Closing Date, no Mortgaged Property has been
damaged by the hurricanes that struck the southeastern United States
in August and September of 2004 in a manner that materially affects
the value of the Mortgaged Property. Any damage to a Mortgaged
Property occurring after the Closing Date as a result of the
hurricanes referred to in the preceding sentence or any other
hurricane, tornado, or casualty shall not result in a breach of this
representation and warranty.
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.
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
19
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.
20
ARTICLE V
SERVICING
Section 5.01. Servicing.
The Seller will be the Master Servicer of the Mortgage Loans pursuant
to the Sale and Servicing Agreement.
ARTICLE VI
TERMINATION
Section 6.01. Termination.
The respective obligations of 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
21
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 2004-M
and
(ii) if to the Purchaser at:
CWABS, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ref: CWABS 2004-M
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
22
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.
23
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/ Xxxx Xxxxxxx, Xx.
-----------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
Seller
By: /s/ Xxxx Xxxxxxx, Xx.
-----------------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Senior Vice President
24
STATE OF CALIFORNIA)
) ss.:
COUNTY OF LOS ANGELES)
On the 29th day of September, 2004 before me, a Notary Public in and
for said State, personally appeared Xxxx Xxxxxxx, Xx., 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 X. Xxxxxx
--------------------
Notary Public
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires October 15, 2005.
25
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 29th day of September, 2004 before me, Xxxx Xxxxxxx, Xx. of
Countrywide Home Loans, Inc., personally appeared, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity on behalf of which the person acted,
executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxxx
--------------------
Notary Public
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires October 15, 2005.
26
SCHEDULE I
SCHEDULE OF
MORTGAGE LOANS
[Delivered to the Indenture Trustee only]
Sch-1-1
SCHEDULE II
STANDARD & POOR'S GLOSSARY
Standard & Poor's Predatory Lending Categorization
Standard & Poor's has categorized loans governed by anti-predatory lending
laws in the jurisdictions listed below into three categories based on a
combination of factors that include (a) the risk exposure associated with the
assignee liability and (b) the tests and thresholds set forth in those laws.
Note that certain loans classified by the relevant statute as Covered are
included in Standard & Poor's High Cost Loan category because they included
thresholds and tests that are typical of what is generally considered High
Cost by the industry.
------------------------------------------------------------------------------------------------------------------------
Standard & Poor's High-Cost Loan Categorization
------------------------------------------------------------------------------------------------------------------------
State/jurisdiction Category under applicable anti-predatory lending law
------------------------------------------------------------------------------------------------------------------------
Arkansas High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Cleveland Heights, Ohio Covered Loan
------------------------------------------------------------------------------------------------------------------------
Colorado Covered Loan
------------------------------------------------------------------------------------------------------------------------
Connecticut High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
District of Columbia Covered Loan
------------------------------------------------------------------------------------------------------------------------
Florida High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - March 6, 2003) High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Georgia as amended (March 7, 2003 - current) High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
HOEPA Section 32 High Cost Loan
------------------------------------------------------------------------------------------------------------------------
Illinois High Risk Home Loan
------------------------------------------------------------------------------------------------------------------------
Kansas High Loan-to-Value Consumer Loans and High APR Consumer Loans
------------------------------------------------------------------------------------------------------------------------
Kentucky High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Los Angeles, Calif. High Cost Refinance Home Loan
------------------------------------------------------------------------------------------------------------------------
Maine High Rate High Fee mortgage
------------------------------------------------------------------------------------------------------------------------
Massachusetts High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Nevada Home Loan
------------------------------------------------------------------------------------------------------------------------
New Jersey High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
New York High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
New Mexico High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
North Carolina High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Oakland, Calif. High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
Ohio Covered Loan
------------------------------------------------------------------------------------------------------------------------
Oklahoma Subsection 10 Mortgage
------------------------------------------------------------------------------------------------------------------------
South Carolina High Cost Home Loan
------------------------------------------------------------------------------------------------------------------------
West Virginia West Virginia Mortgage Loan Act Loan
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
------------------------------------------------------------------------------------------------------------------------
State/jurisdiction Category under applicable anti-predatory lending law
------------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - March 6, 2003) Covered Loan
------------------------------------------------------------------------------------------------------------------------
New Jersey Covered Home Loan
------------------------------------------------------------------------------------------------------------------------
Sch-II-1
------------------------------------------------------------------------------------------------------------------------
Standard & Poor's Home Loan Categorization
------------------------------------------------------------------------------------------------------------------------
State/jurisdiction Category under applicable anti-predatory lending law
------------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002- March 6, 2003) Home Loan
------------------------------------------------------------------------------------------------------------------------
New Jersey Home Loan
------------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan
------------------------------------------------------------------------------------------------------------------------
North Carolina Consumer Home Loan
------------------------------------------------------------------------------------------------------------------------
Oakland, Calif. Home Loan
------------------------------------------------------------------------------------------------------------------------
South Carolina Consumer Home Loan
------------------------------------------------------------------------------------------------------------------------
Sch-II-2
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) 0.90 and 1.40% of the Mortgage Loans in Loan Group 1 and Loan
Group 2, respectively, being transferred on the relevant date (by Cut-off Date
Loan Balance) were 30-59 days delinquent (measured on a contractual basis).
(xvii) As of the Cut-off Date no more than 3.00% and 3.00% of the
Mortgage Loans in Loan Group 1 and Loan Group 2, respectively, by aggregate
principal balance, are secured by Mortgaged Properties located in one United
States postal zip code.
(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 is approximately
297 and 297 months with respect to the Mortgage Loans in Loan Group 1 and Loan
Group 2, respectively. The Loan Rate Caps for the Mortgage Loans range between
6.0 and 21.0% and 6.0 and 21.0% with respect to the Mortgage Loans in Loan
Group 1 and Loan Group 2, respectively, and the weighted average Loan Rate Cap
is approximately 17.989 and 18.01% with respect to the Mortgage Loans in Loan
Group 1 and Loan Group 2, respectively. The Gross Margins for the Mortgage
Loans range between -0.25 and 7.750% and -0.990 and 8.750% with respect to the
Mortgage Loans in Loan Group 1 and Loan Group 2, respectively, and the
weighted average Gross Margin is approximately 2.507 and 2.163% as of the
Cut-off Date with respect to the Mortgage Loans in Loan Group 1 and Loan Group
2, respectively. The Loan Rates on the Mortgage Loans range between 3.00 and
12.250% and 1.27 and 13.25% with respect to the Mortgage Loans in Loan Group 1
and Loan Group 2, respectively, and the weighted average Loan Rate on the
Mortgage Loans is approximately 6.902% and 6.577% with respect to the Mortgage
Loans in Loan Group 1 and Loan Group 2, respectively. As of the Cut-off Date,
100% of the Mortgage Loans in Loan Group 1, by aggregate principal balance,
have original principal balances (by credit limit) that conform to Xxxxxx Xxx
or Xxxxxxx Mac guidelines.
(xxxi) No more than 27.74 and 43.91% (by Cut-off Date Loan Balance)
of the Mortgage Loans in Loan Group 1 and Loan Group 2, respectively. are
secured by real property improved by individual condominium units, units in
planned unit developments, townhouses, or two-to-four family residences
erected on them, and at least 72.26 and 56.09% (by Cut-off Date Loan Balance)
of the Mortgage Loans in Loan Group 1 and Loan Group 2, respectively, are
secured by real property with a detached one-family residence erected on them.
Xxx-1-1
(xxxii) The Credit Limits on the Mortgage Loans range between
approximately $7,500 and $165,000 and $7,500 and $2,000,000 with respect to
the Mortgage Loans in Loan Group 1 and Loan Group 2, respectively, with an
average of approximately $37,155 and 100,470 with respect to the Mortgage
Loans in Loan Group 1 and Loan Group 2, respectively. As of the Cut-off Date,
no Mortgage Loan had a principal balance in excess of approximately $155,000
and $2,000,000 and the average principal balance of the Mortgage Loans is
equal to approximately $33,201 and $85,033 with respect to the Mortgage Loans
in Loan Group 1 and Loan Group 2, respectively.
(xxxiii) Approximately 0% and 100% 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 23.88% and 6.90% of the
Mortgage Loans in Loan Group 1 and Loan Group 2, respectively, by aggregate
principal balance, were appraised electronically.
(xxxix) As of the Cut-off Date (based upon the drawn balances), the
Mortgage Loans in Loan Group 1 and Loan Group 2, respectively, had a weighted
average Combined Loan-to-Value Ratio of 89.23 and 86.59%; a range of Combined
Loan-to-Value Ratios between 6.84 and 100% and 13.56 and 100%; a percentage of
primary residences of 95.66 and 94.76%; a weighted average FICO score of 704
and 710; a range of FICO scores between 492 and 842 and 511 and 834; a
Weighted Average Net Loan Rate of 6.402 and 6.077%; a range of net Loan Rates
between 2.5 and 11.75% and 0.75 and 8.25%; a weighted average original stated
term to maturity of 300 and 300 months; a range of original term to maturity
between 120 and 360 months and 120 and 360 months; a range of remaining term
to maturity between 108 and 352 months and 108 and 352 months; an average
drawn balance of $33,201 and 100,470; a weighted average utilization ratio of
91.51 and 88.43%; and 41.33 and 73.01% of the Mortgage Loans in Loan Group 1
and Loan Group 2, respectively, have their respective Mortgaged Properties
located in the top five states, measured by aggregate drawn balances.
Xxx-1-2
