EXHIBIT 99.2
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COUNTRYWIDE HOME LOANS, INC.
Seller
CWHEQ, INC.
Purchaser
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PURCHASE AGREEMENT
Dated as of September 30, 2005
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REVOLVING HOME EQUITY LOAN ASSET BACKED NOTES
Series 2005-H
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Table of Contents
Page
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.........................................1
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of the Mortgage Loans..........................2
Section 2.02. Obligations of Seller Upon Sale.....................3
Section 2.03. Payment of Purchase Price for the Mortgage Loans....6
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01. Seller Representations and Warranties...............6
Section 3.02. Seller Representations and Warranties Relating
to the Mortgage Loans...............................7
ARTICLE IV
SELLER'S COVENANTS
Section 4.01. Covenants of the Seller............................21
ARTICLE V
SERVICING
Section 5.01. Servicing..........................................21
ARTICLE VI
TERMINATION
Section 6.01. Termination........................................22
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment..........................................22
Section 7.02. Governing Law......................................22
Section 7.03. Notices............................................22
Section 7.04. Severability of Provisions.........................23
Section 7.05. Counterparts; Electronic Delivery..................23
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Section 7.06. Further Agreements.................................23
Section 7.07. Successors and Assigns: Assignment of Purchase
Agreement..........................................23
Section 7.08. Survival...........................................24
SCHEDULES AND ANNEXES
Schedule I MORTGAGE LOAN SCHEDULE...........................Sch-I-1
Schedule II STANDARD & POOR'S GLOSSARY......................Sch-II-1
Annex 1 ADOPTION ANNEX...................................Xxx-1-1
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This PURCHASE AGREEMENT, dated as of September 30, 2005 (the
"Agreement"), between COUNTRYWIDE HOME LOANS, INC., a New York corporation
(the "Seller"), and CWHEQ, INC., a Delaware corporation (the "Purchaser"),
WITNESSETH:
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.
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of the Mortgage Loans.
(a) The Initial Mortgage Loans. Concurrently with the execution and
delivery of this Agreement, the Seller, with respect to each Initial Mortgage
Loan, hereby transfers to the Purchaser, without recourse, all of its right,
title, and interest existing now or in the future in
(1) 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);
(2) property that secured a Mortgage Loan that is acquired by
foreclosure or deed in lieu of foreclosure;
(3) the Seller's rights under the hazard insurance policies;
(4) all rights under any guaranty executed in connection with a
Mortgage Loan;
(5) all other assets included or to be included in the Trust for
the benefit of the Noteholders and the Credit Enhancer; and
(6) all proceeds of the foregoing.
(b) The Additional Home Equity Loans. The Purchaser may use the funds in
each Additional Loan Account to purchase Additional Home Equity Loans on any
Subsequent Closing Date designated by the Purchaser by the Latest Subsequent
Closing Date. On each Subsequent Closing Date, the Seller shall deliver a
Transfer Document (properly completed and executed by the Seller) to the
Purchaser. When the Seller delivers a Transfer Document, the Seller hereby
transfers to the Purchaser without recourse, and the Purchaser purchases and
shall effect payment for, all of the Seller's right, title and interest in
each Additional Home Equity Loan identified in the Transfer Document,
including its Asset Balance (including all Additional Balances) and all
collections received on it after the relevant Subsequent Cut-off Date
(excluding payments due by the Subsequent Cut-off Date) and all proceeds of
the foregoing.
(c) Additional Balances. By the sale of a 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.
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Section 2.02. Obligations of Seller Upon Sale.
In connection with the transfers pursuant to Sections 2.01(a) and (b),
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 Initial Mortgage Loans, specifying
for each Initial 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 Initial Mortgage Loans, and by each
Subsequent Closing Date for the related Additional Home Equity Loans;
(c) to deliver to the Purchaser, or at the Purchaser's direction to the
Indenture Trustee, the Owner Trustee, and the Credit Enhancer, an Officer's
Certificate confirming the satisfaction of each of the conditions precedent in
Section 2.01(b) of the Sale and Servicing Agreement by each Subsequent Closing
Date; and
(d) to deliver to the Purchaser, or at the Purchaser's direction to the
Indenture Trustee, a revised Mortgage Loan Schedule reflecting the addition of
the Additional Home Equity Loans within 15 days following each Subsequent
Closing Date
The Initial Mortgage Loan Schedule is Exhibit A to the Sale and
Servicing Agreement and shall also be attached as Schedule I to this Agreement
and is hereby incorporated into this Agreement.
The Seller agrees to perfect and protect the Purchaser's interest in each
Mortgage Loan transferred by it pursuant to Section 2.01(a) and (b) and its
proceeds by preparing, executing, and filing a UCC1 Financing Statement with
the Secretary of State in the State of New York describing the Mortgage Loans
and naming the Seller as debtor and the Purchaser as secured party and
indicating that the Mortgage Loans have been assigned to the Trust and all
necessary Continuation Statements and any additional UCC1 Financing Statements
due to a change in the name or the state of incorporation of 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 UCC1
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
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been pledged to the Indenture Trustee) and all necessary Continuation
Statements and any additional UCC1 Financing Statements due to a change in the
name or the state of incorporation of the Purchaser. The Financing Statement
shall be filed by the Closing Date. This Financing Statement will state in
bold-faced type that a purchase of the Mortgage Loans included in the
collateral covered by the Financing Statement from the debtor will violate the
rights of the secured party and its assignee.
In connection with any transfer by the Seller, the Seller shall deliver
to the order of the Purchaser the following documents for each Mortgage Loan
(the "Related Documentation"):
(1) the original Mortgage Note endorsed in blank or, if the
original Mortgage Note has been lost or destroyed and not replaced, an
original lost note affidavit from the Seller stating that the original
Mortgage Note was lost, misplaced, or destroyed, together with a copy of
the related Mortgage Note;
(2) unless the Mortgage Loan is registered on the MERS(R) System,
an original assignment of mortgage in blank in recordable form;
(3) the original recorded mortgage with evidence of recording on
it (noting the presence of the MIN of the Mortgage Loan and language
indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is
a MOM Loan) or, if the original recorded mortgage with evidence of
recording on it cannot be delivered by the Closing Date because of a
delay caused by the public recording office where the original Mortgage
has been delivered for recordation or because the original Mortgage has
been lost, the Seller shall deliver to the Indenture Trustee an accurate
copy of the mortgage, together with (i) when the delay is caused by the
public recording office, an Officer's Certificate of the Seller or the
Purchaser stating that the original mortgage has been dispatched to the
appropriate public recording official or (ii) when the original mortgage
has been lost, a certificate by the appropriate county recording office
where the mortgage is recorded;
(4) any original intervening assignments needed for a complete
chain of title to the Trust with evidence of recording on them, or, if
any original intervening assignment has not been returned from the
applicable recording office or has been lost, an accurate copy of it,
together with (i) when the delay is caused by the public recording
office, an Officer's Certificate of the Seller or the Purchaser stating
that the original intervening assignment has been dispatched to the
appropriate public recording official for recordation or (ii) when the
original intervening assignment has been lost, a certificate by the
appropriate county recording office where the mortgage is recorded;
(5) a title policy for each Mortgage Loan with a Credit Limit in
excess of $100,000;
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(6) the original of any guaranty executed in connection with the
Mortgage Note;
(7) the original of each assumption, modification, consolidation,
or substitution agreement relating to the Mortgage Loan; and
(8) any security agreement, chattel mortgage, or equivalent
instrument executed in connection with the Mortgage.
The Related Documentation for the Initial Mortgage Loans will be
delivered:
(1) no later than the Closing Date, with respect to no less than 50%
of the Initial Mortgage Loans in each Loan Group,
(2) no later than the twentieth day after the Closing Date, with
respect to no less than 40% of the Mortgage Loans in each Loan Group in
addition to those delivered on the Closing Date, and
(3) within thirty days following the Closing Date, with respect to
the remaining Initial Mortgage Loans.
The Related Documentation for the Additional Home Equity Loans will be
delivered:
(1) no later than relevant Subsequent Closing Date, with respect to no
less than 10% of the relevant Additional Home Equity Loans in each Loan Group;
and
(2) within twenty days following the relevant Subsequent Closing Date,
with respect to the remaining relevant Additional Home Equity Loans in each
Loan Group.
The Seller confirms to the Purchaser that, as of the Closing Date, it
has caused the portions of the Electronic Ledger relating to the Initial
Mortgage Loans maintained by the Seller to be clearly and unambiguously marked
to indicate that the Initial 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 violate the rights of the Trust, as secured party with
respect to those Mortgage Loans. By the relevant Subsequent Closing Date or
applicable date of substitution, the Seller shall cause the portions of the
Electronic Ledgers relating to the relevant Additional Home Equity Loans or
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.
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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, to
provide for the possibility that either transfer might be characterized as a
transfer for security and not as a sale, 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 that the Seller's obligations
under this Agreement; and this Agreement shall constitute a Security Agreement
under applicable law.
Section 2.03. Payment of Purchase Price for the Mortgage Loans.
(a) In consideration of the sale of the Mortgage Loans from the Seller
to the Purchaser on the Closing Date, the Purchaser agrees to transfer to the
Seller on the Closing Date the purchase price for the Mortgage Loans provided
in the Adoption Annex attached as Annex 1 to this Agreement (the "Adoption
Annex").
(b) In consideration of the sale of the Additional Home Equity Loans
from the Seller to the Purchaser on each Subsequent Closing Date, the
Purchaser agrees to cause the Trust to pay to the Seller, when the conditions
to the release of the purchase price for the Additional Home Equity Loans
under the Sale and Servicing Agreement have been met, an amount equal to their
Cut-off Date Asset Balance.
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;
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(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 3.01 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 with respect to any
breach.
Section 3.02. Seller Representations and Warranties Relating to the
Mortgage Loans.
(a) The Seller represents and warrants to the Purchaser as of the
Cut-off Date, unless specifically stated otherwise:
(1) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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.
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(2) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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 in respect of the
Mortgage Loans after the Cut-off Date or Subsequent Cut-off Date,
as applicable (excluding payments due by the Cut-off Date or
Subsequent Cut-off Date, as applicable), all proceeds of the
Mortgage Loans, and all other property specified in Section
2.01(a), (b) or (c), 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), (b) or (c) 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
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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.
(3) 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 under this Agreement,
pursuant to the Sale and Servicing Agreement, or pursuant to the
Indenture, (B) that has been terminated, or (C) that names the
Depositor, the Trust, or the Indenture Trustee as secured party.
(4) As of the Closing Date, the information in the Mortgage Loan
Schedule for the Mortgage Loans is correct in all material respects. As
of the applicable date of substitution for an Eligible Substitute
Mortgage Loan, the information with respect to the Eligible Substitute
Mortgage Loan in the Mortgage Loan Schedule is correct in all material
respects. As of the date any Additional Balance is created, the
information as to the Mortgage Loan identification number and the
Additional Balance of that Mortgage Loan reported for inclusion in the
Mortgage Loan Schedule is correct in all material respects.
(5) The Mortgage Loans have not been assigned or pledged, and the
Seller is their sole owner and holder free of any liens, claims,
encumbrances, participation interests, equities, pledges, charges, or
Security Interests of any nature, and has full authority, under all
governmental and regulatory bodies having jurisdiction over the
ownership of the Mortgage Loans, to transfer them pursuant to this
Agreement.
(6) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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.
(7) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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
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property described in it, as shown on the Mortgage Loan Schedule, and as
of the Cut-off Date, relevant Subsequent Closing Date, or date of
substitution, as applicable, the related Mortgaged Property is free of
all encumbrances and liens having priority over the first or second
lien, as applicable, of the mortgage except for liens for
(A) real estate taxes and special assessments not yet
delinquent;
(B) any first mortgage loan secured by the Mortgaged
Property and specified on the Mortgage Loan Schedule;
(C) covenants, conditions and restrictions, rights of way,
easements, and other matters of public record as of the date of
recording that are acceptable to mortgage lending institutions
generally; and
(D) other matters to which like properties are commonly
subject that do not materially interfere with the benefits of the
security intended to be provided by the mortgage.
(8) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, no
obligor has a valid offset, defense, or counterclaim under any Credit
Line Agreement or mortgage.
(9) To the best knowledge of the Seller, as of the Closing Date
with respect to the Initial Mortgage Loans, the relevant Subsequent
Closing Date with respect to any Additional Home Equity Loans, 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 or governmental charge against
it, other than those that have been or will be paid by the Seller.
(10) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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.
(11) To the best knowledge of the Seller, as of the Closing Date
with respect to the Initial Mortgage Loans, the relevant Subsequent
Closing Date with respect to any Additional Home Equity Loans, or, with
respect to any Eligible Substitute Mortgage Loan, the applicable date of
substitution, no mechanics' or similar liens or claims have been filed
for work, labor, or material affecting the related Mortgaged Property
that are, or may be, liens prior or equal to the lien of the related
mortgage, except liens that are fully insured against by the title
insurance policy referred to in clause (16).
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(12) No Minimum Monthly Payment on a Initial 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 Initial Mortgage Loans in that Loan Group specified in the Adoption
Annex being transferred on the Closing Date (by Cut-off Date Loan
Balance) were 30-59 days delinquent (measured on a contractual basis).
(13) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, the
Mortgage File for each Mortgage Loan contains each of the documents
specified to be included in it.
(14) At origination, each Mortgage Loan and the related Mortgage
Note complied in all material respects with applicable local, state, and
federal laws, including all applicable predatory and abusive lending
laws, usury, truth-in-lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity, or disclosure laws
applicable to the Mortgage Loan, and the servicing practices used by the
Master Servicer with respect to each Mortgage Loan have been consistent
with the practices and the degree of skill and care the Master Servicer
exercises in servicing for itself loans that it owns that are comparable
to the Mortgage Loans.
(15) As of the Closing Date, with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, no
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and no
Mortgage Loan originated on or after October 1, 2002 through March 6,
2003 is governed by the Georgia Fair Lending Act; and "High Cost Loan"
and "Covered Loan" have the meaning assigned to them in the Standard &
Poor's LEVELS(R) Glossary attached as Schedule II (the "Glossary") where
(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
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defined in the applicable anti-predatory lending law of the state
or jurisdiction specified in such table.
(16) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, either a
lender's title insurance policy or binder was issued or a guaranty of
title customary in the relevant jurisdiction was obtained, on the date
of origination of the Mortgage Loan being transferred on the relevant
date and each policy is valid and remains in full force.
(17) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, none of
the Mortgaged Properties is a mobile home or a manufactured housing unit
that is not considered or classified as part of the real estate under
the laws of the jurisdiction in which it is located.
(18) No more than the percentage specified in the Adoption Annex
of the Initial Mortgage Loans in each Loan Group, by aggregate principal
balance of the related Mortgage Loans, are secured by Mortgaged
Properties located in one United States postal zip code.
(19) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, the
Combined Loan-to-Value Ratio for each Mortgage Loan in each Loan Group
was not in excess of the percentage specified in the Adoption Annex.
(20) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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.
(21) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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.
(22) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans,
12
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.
(23) The Mortgage Notes constitute either "instruments" or
"general intangibles" as defined in the UCC.
(24) By the Closing Date (or, within 30 days of the applicable
date of substitution with respect to any Eligible Substitute Mortgage
Loan), the Sponsor will file UCC1 financing statements in the proper
filing office in the appropriate jurisdiction to perfect the Security
Interest in the Collateral Granted under the Indenture.
(25) The Mortgage Notes that constitute or evidence the Collateral
do not have any marks or notations indicating that they have been
pledged, assigned, or otherwise transferred to any person other than the
Purchaser, the Trust, or the Indenture Trustee. All financing statements
filed or to be filed against 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."
(26) 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.
(27) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, each
Credit Line Agreement and each Mortgage Loan is an enforceable
obligation of the related mortgagor.
(28) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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.
(29) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of
13
substitution, the definition of "prime rate" in each Credit Line
Agreement relating to a Mortgage Loan does not differ materially from
"the highest `prime rate' as published in the `Money Rates' table of The
Wall Street Journal as of the first business day of the calendar month
for the applicable interest rate adjustment date."
(30) The weighted average remaining term to maturity of the
Initial 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 Initial 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
Initial 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 Initial 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 for the Initial Mortgage Loans. The
Loan Rates on the Mortgage Loans in each Loan Group range between the
percentages specified in the Adoption Annex for that Loan Group and the
weighted average Loan Rate on the Mortgage Loans is approximately the
percentage specified in the Adoption Annex for that Loan Group.
(31) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, each
Mortgaged Property consists of a single parcel of real property with a
one-to-four unit single family residence erected on it, or an individual
condominium unit, planned unit development unit, or townhouse.
(32) No more than the percentage specified in the Adoption Annex
(by Cut-off Date Loan Balance) for each Loan Group of the Initial
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.
14
(33) The Credit Limits on the Initial 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 for the Initial Mortgage Loans, 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 Initial Mortgage Loans in each Loan
Group is equal to approximately the dollar amounts specified in the
Adoption Annex for that Loan Group.
(34) Approximately the percentages specified in the Adoption Annex
of the Initial Mortgage Loans, by aggregate principal balance as of the
Cut-off Date, are secured by first and second liens.
(35) As of the Closing Date, no more than the percentage specified
in the Adoption Annex for each Loan Group of the Initial Mortgage Loans
in the related Loan Group, by aggregate principal balance, were
appraised electronically.
(36) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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
with respect to the Initial Mortgage Loans, the relevant Subsequent
Closing Date with respect to any Additional Home Equity Loans, or, with
respect to any Eligible Substitute Mortgage Loan, the applicable date of
substitution, no modifications to the Mortgage Notes and Mortgage Loans
have been made and not disclosed in the Mortgage Loan Files.
(37) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, each
Mortgage Loan was originated in accordance with the Sponsor's
underwriting guidelines and the Sponsor had no knowledge of any fact
that would have caused a reasonable originator of mortgage loans to
conclude on the date of origination of each Mortgage Loan that each such
Mortgage Loan would not be paid in full when due.
(38) To the best knowledge of 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.
15
(39) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, any
leasehold estate securing a Mortgage Loan has a term of not less than
five years in excess of the term of the related Mortgage Loan.
(40) Based on the drawn balances of the Initial Mortgage Loans,
the Initial Mortgage Loans had the characteristics set out in the
Adoption Annex for each Loan Group in respect of the following: weighted
average Combined Loan-to-Value Ratio; range of Combined Loan-to-Value
Ratios; percentage of primary residences; weighted average FICO score;
range of FICO scores; Weighted Average Net Loan Rate; range of net Loan
Rates; weighted average original stated term to maturity; range of
original term to maturity; range of remaining term to maturity; average
drawn balance; weighted average utilization ratio; and percentage of the
Initial Mortgage Loans that have their respective Mortgaged Properties
located in the top five states, measured by aggregate drawn balances.
(41) Any Initial 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.
(42) Each Initial Mortgage Loan was originated (within the meaning
of Section 3(a)(41) of the Securities Exchange Act of 1934) by an entity
that satisfied at the time of origination the requirements of Section
3(a)(41) of the Securities Exchange Act of 1934.
(43) At the time each Initial Mortgage Loan was originated, the
Sponsor was, and 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.
(44) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the principal balance of the
related Mortgage Loan as of the Cut-off Date or the relevant Subsequent
Cut-off Date, as applicable, or a commitment (binder) to issue the same
was effective on the date of the origination of each Mortgage Loan, each
such policy is valid and remains in full force, and each such policy was
issued by a title insurer qualified to do business in the jurisdiction
where the Mortgaged Property is located and acceptable to Xxxxxx Mae and
Xxxxxxx Mac and is in a form acceptable to Xxxxxx Mae and Xxxxxxx Mac,
which policy insures the Sponsor and successor owners
16
of indebtedness secured by the insured Mortgage, as to the first
priority lien, of the Mortgage subject to the exceptions in paragraph
(7) above.
(45) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, the
improvements on each Mortgaged Property are covered by a valid and
existing hazard insurance policy with a generally acceptable carrier
that provides for fire and extended coverage and coverage for such other
hazards as are customary in the area where the Mortgaged Property is
located in an amount that is at least equal to the lesser of (i) the
maximum insurable value of the improvements securing the Mortgage Loan
or (ii) the greater of (a) the outstanding principal balance of the
Mortgage Loan and (b) an amount such that the proceeds of the policy
will be sufficient to prevent the Mortgagor or the mortgagee from
becoming a co-insurer. If the Mortgaged Property is a condominium unit,
it is included under the coverage afforded by a blanket policy for the
condominium unit. All such individual insurance policies and all flood
policies referred to in item (46) below contain a standard mortgagee
clause naming the Sponsor or the original mortgagee, and its successors
in interest, as mortgagee, and the Sponsor has received no notice that
any premiums due and payable thereon have not been paid, and the
Mortgage obligates the Mortgagor thereunder to maintain all such
insurance, including flood insurance, at the Mortgagor's expense, and
upon the Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at the Mortgagor's
expense and to seek reimbursement therefor from the Mortgagor.
(46) If the Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Flood Insurance
Administration is in effect with respect to the Mortgaged Property with
a generally acceptable carrier in an amount representing coverage not
less than the least of (A) the 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 National Flood Insurance Act of
1968.
(47) Each Mortgage Note and the related mortgage are genuine, and
each is the valid and legally binding obligation of its maker,
enforceable in accordance with its terms and under applicable law,
except that (a) its enforceability may be limited by bankruptcy,
insolvency, moratorium, receivership, and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance
and injunctive
17
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 legal capacity to execute the
Mortgage Note and the Mortgage and each Mortgage Note and Mortgage have
been duly and properly executed by such parties.
(48) No Mortgage Loan has a shared appreciation feature, or other
contingent interest feature.
(49) To the best of 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.
(50) 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.
(51) Each Mortgage contains customary and enforceable provisions
that render the rights and remedies of its holder adequate for the
realization against the Mortgaged Property of the benefits of the
security intended to be provided by it, including, (i) in the case of a
Mortgage designated as a deed of trust, by trustee's sale, and (ii)
otherwise by judicial foreclosure.
(52) Before the approval of the Mortgage Loan application, an
appraisal of the related Mortgaged Property was obtained from a
qualified appraiser, duly appointed by the Sponsor, who had no interest,
direct or indirect, in the Mortgaged Property or in any loan secured by
the Mortgaged Property, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan.
(53) Except for (A) payments in the nature of escrow payments, and
(B) interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage proceeds, whichever is later, to the day
that precedes by one month the Due Period of the first installment of
principal and interest and taxes and insurance payments, the Sponsor has
not advanced funds, or induced, solicited, or knowingly received any
advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required by the Mortgage.
18
(54) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, no
foreclosure proceedings are pending against the Mortgaged Property and
the Mortgage Loan is not subject to any pending bankruptcy or insolvency
proceeding.
(55) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, there is
no homestead exemption available and enforceable that materially
interferes with the right to sell the related Mortgaged Property at a
trustee's sale or the right to foreclose the related Mortgage.
(56) No borrower was required to purchase any single premium
credit insurance policy (e.g., life, disability, accident, unemployment,
or health insurance product) or debt cancellation agreement as a
condition of obtaining the extension of credit. No borrower obtained a
prepaid single-premium credit insurance policy (e.g., life, disability,
accident, unemployment, mortgage, or health insurance) in connection
with the origination of the Mortgage Loan. No proceeds from any Mortgage
Loan were used to purchase debt cancellation agreements as part of the
origination of, or as a condition to closing, the Mortgage Loan.
(57) The Mortgage Loans, individually and in the aggregate,
conform in all material respects to their descriptions in the Prospectus
Supplement.
(58) No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994.
(59) No Mortgage Loan originated on or after October 1, 2002 and
before March 7, 2003 is secured by Mortgaged Property located in the
State of Georgia.
(60) As of the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, or, with respect to any Eligible
Substitute Mortgage Loan, the applicable date of substitution, no
Mortgage Loan is classified as (1) a "high cost" loan under the Home
Ownership and Equity Protection Act of 1994 or (2) a "high cost,"
"threshold," "covered," "predatory," or similar loan under any other
applicable state, federal, or local law that applies to mortgage loans
(or a similar classified loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability
for residential mortgage loans having high interest rates, points, or
fees).
19
(61) No proceeds from any Mortgage Loan were used to purchase
single premium credit insurance policies as part of the origination of,
or as a condition to closing, the Mortgage Loan.
(62) No subprime Mortgage Loan originated on or after October 1,
2002 will impose a prepayment premium after the third anniversary of the
Mortgage Loan. No subprime Mortgage Loan originated before October 1,
2002, and no non-subprime Mortgage Loan, will impose a prepayment
penalty after the fifth anniversary of the Mortgage Loan.
(63) The servicer for each Mortgage Loan has fully furnished, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian, and
Trans Union Credit Information Company on a monthly basis.
(64) All of the Mortgage Loans in the Loan Group specified in the
Adoption Annex conform to Xxxxxx Mae or Xxxxxxx Mac maximum principal
balance (by credit limit) guidelines.
(b) 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.
(c) The representations and warranties in this Section shall survive the
transfer and assignment of the Mortgage Loans to the Purchaser. The sole
remedy of the Purchaser, the Noteholders, the Indenture Trustee on behalf of
Noteholders, and the Credit Enhancer against 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.
(d) 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
20
Mortgage Loan the related Mortgage File and shall execute and deliver any
instruments of transfer prepared by the purchaser of the Mortgage Loan,
without recourse, necessary to vest in the purchaser of the Mortgage Loan any
Mortgage Loan released pursuant to this Agreement, and the purchaser of the
Mortgage Loan shall succeed to all the Trust's interest in the Mortgage Loan
and all security and documents. This assignment shall be an assignment
outright and not for security. The purchaser of the Mortgage Loan shall then
own the Mortgage Loan, and all security and documents, free of any further
obligation to the Trust, the Owner Trustee, the Indenture Trustee, the
Transferor, the Credit Enhancer, or the Noteholders with respect to it.
(e) A breach of any one of the representations in Sections 3.02(a)(58)
to (64) will be considered to materially adversely affect the interests of the
Noteholders.
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.
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.
21
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
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: CWHEQ 2005-H
22
and
(iv) if to the Purchaser at:
CWHEQ, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ref: CWHEQ 2005-H
Section 7.04. Severability of Provisions.
Any provisions of this Agreement that are held invalid for any reason or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the invalidity or unenforceability without
invalidating the remaining provisions of this Agreement, and the prohibition
or unenforceability in a jurisdiction shall not invalidate or render
unenforceable that provision in any other jurisdiction.
Section 7.05. Counterparts; Electronic Delivery.
This Agreement may be executed in any number of copies, and by the
different parties on the same or separate counterparts, each of which shall be
considered to be an original instrument. Any signature page to this Agreement
containing a manual signature may be delivered by facsimile transmission or
other electronic communication device capable of transmitting or creating a
printable written record, and when so delivered shall have the effect of
delivery of an original manually signed signature page.
Section 7.06. Further Agreements.
The Purchaser and 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 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
23
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.
24
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.
CWHEQ, 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
25
STATE OF CALIFORNIA)
) ss.:
COUNTY OF LOS ANGELES)
On the 30th day of September, 2005 before me, a Notary Public in and for
said State, personally appeared Xxxx Xxxxxxx, Xx., known to me to be a Vice
President of CWHEQ, Inc., the corporation that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxxx
--------------------
Notary Public
Xxxxxx X. Xxxxxx
Commission # 1325392
Notary Public - California
Los Angeles County
My Comm. Expires October 15, 2005.
26
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 30th day of September, 2005 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.
27
SCHEDULE I
SCHEDULE OF
MORTGAGE LOANS
[Delivered to the Indenture Trustee only]
Sch-I-1
SCHEDULE II
STANDARD & POOR'S GLOSSARY
Standard & Poor's Predatory Lending Categorization
Standard & Poor's has categorized loans governed by anti-predatory lending
laws in the jurisdictions listed below into three categories based on a
combination of factors that include (a) the risk exposure associated with the
assignee liability and (b) the tests and thresholds set forth in those laws.
Note that certain loans classified by the relevant statute as Covered are
included in Standard & Poor's High Cost Loan category because they included
thresholds and tests that are typical of what is generally considered High
Cost by the industry.
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Standard & Poor's High-Cost Loan Categorization
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State/jurisdiction Category under applicable anti-predatory lending law
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Arkansas High Cost Home Loan
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Cleveland Heights, Ohio Covered Loan
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Colorado Covered Loan
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Connecticut High Cost Home Loan
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District of Columbia Covered Loan
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Florida High Cost Home Loan
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Georgia (Oct. 1, 2002 - March 6, 2003) High Cost Home Loan
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Georgia as amended (March 7, 2003 - current) High Cost Home Loan
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HOEPA Section 32 High Cost Loan
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Illinois High Risk Home Loan
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Kansas High Loan-to-Value Consumer Loans and High APR Consumer Loans
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Kentucky High Cost Home Loan
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Los Angeles, Calif. High Cost Refinance Home Loan
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Maine High Rate High Fee mortgage
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Massachusetts High Cost Home Loan
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Nevada Home Loan
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New Jersey High Cost Home Loan
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New York High Cost Home Loan
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New Mexico High Cost Home Loan
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North Carolina High Cost Home Loan
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Oakland, Calif. High Cost Home Loan
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Ohio Covered Loan
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Oklahoma Subsection 10 Mortgage
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South Carolina High Cost Home Loan
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West Virginia West Virginia Mortgage Loan Act Loan
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Standard & Poor's Covered Loan Categorization
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State/jurisdiction Category under applicable anti-predatory lending law
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Georgia (Oct. 1, 2002 - March 6, 2003) Covered Loan
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New Jersey Covered Home Loan
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Sch-II-1
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Standard & Poor's Home Loan Categorization
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State/jurisdiction Category under applicable anti-predatory lending law
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Georgia (Oct. 1, 2002- March 6, 2003) Home Loan
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New Jersey Home Loan
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New Mexico Home Loan
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North Carolina Consumer Home Loan
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Oakland, Calif. Home Loan
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South Carolina Consumer Home Loan
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Sch-II-2
ANNEX 1
ADOPTION ANNEX
The purchase price for the Mortgage Loans pursuant to Section 2.03 is
the transfer to the Seller on the Closing Date of the Transferor Certificates
and the proceeds from the sale of the Notes.
The items referred to in the representations and warranties in Section
3.02 are:
(12) 0.00% and 0.00% of the Mortgage Loans in Loan Group 1 and Loan
Group 2, respectively, being transferred on the relevant date (by Cut-off Date
Loan Balance) were 30-59 days delinquent (measured on a contractual basis).
(18) As of the Cut-off Date no more than 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.
(19) The Combined Loan-to-Value Ratio for each Mortgage Loan was not in
excess of 100.00%.
(30) The weighted average remaining term to maturity of the Mortgage
Loans on a contractual basis as of the Cut-off Date is approximately 290 and
292 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
6.000% and 24.000% and 16.000% and 24.000% with respect to the Mortgage Loans
in Loan Group 1 and Loan Group 2, respectively, and the weighted average Loan
Rate Cap is approximately 17.889% and 17.935%, with respect to the Mortgage
Loans in Loan Group 1 and Loan Group 2, respectively. The Gross Margins for
the Mortgage Loans range between -1.075% and 6.750% and -0.990% and 6.500%
with respect to the Mortgage Loans in Loan Group 1 and Loan Group 2,
respectively, and the weighted average Gross Margin is approximately 1.639%
and 1.550% as of the Cut-off Date for the Mortgage Loans in Loan Group 1 and
Loan Group 2, respectively. The Loan Rates on the Mortgage Loans range between
3.000% and 13.250% and 3.250% and 13.000% 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 7.883% and 7.872% with respect to
the Mortgage Loans in Loan Group 1 and Loan Group 2, respectively. As of the
Cut-off Date, 100% and 7.18% of the Mortgage Loans in Loan Group 1 and Loan
Group 2, respectively, by aggregate principal balance, have original principal
balances (by credit limit) that conform to Xxxxxx Xxx or Xxxxxxx Mac
guidelines.
(32) No more than 25.75% and 28.74% (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 74.25% and 71.26% (by Cut-off
Xxx-1-1
Date Loan Balance) of the Mortgage Loans in Loan Group 1 and Loan Group 2,
respectively, are secured by real property with a detached one-family
residence erected on them.
(33) The Credit Limits on the Mortgage Loans range between approximately
$7,500 and $179,200 and $7,500 and $2,000,000 with an average of approximately
$42,092 and $80,086 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 $175,000 and $2,000,000 and the
average principal balance of the Mortgage Loans is equal to approximately
$35,843 and $64,600 with respect to the Mortgage Loans in Loan Group 1 and
Loan Group 2, respectively.
(34) Approximately 0.00% and 100.00% of the Mortgage Loans of each Loan
Group, by aggregate principal balance as of the Cut-off Date for the Mortgage
Loans, are secured by first and second liens, respectively.
(35) As of the Closing Date, no more than 34.77% and 9.12% of the
Mortgage Loans in Loan Group 1 and Loan Group 2, respectively, by aggregate
principal balance, were appraised electronically.
(40) As of the Cut-off Date (based on the drawn balances), the Mortgage
Loans had a weighted average Combined Loan-to-Value Ratio of 83.35% and 83.04%
; a range of Combined Loan-to-Value Ratios between 8.49% and 100.00% and
10.55% and 100.00%; a percentage of primary residences of 96.23% and 96.41%; a
weighted average FICO score of 720 and 718; a range of FICO scores between 455
and 840 and 480 and 844; a Weighted Average Net Loan Rate of 7.383% and
7.372%; a range of net Loan Rates between 2.500% and 12.750% and 2.750% and
12.500%; 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 85 and 355
months and 94 and 355 months; an average drawn balance of $35,843 and $64,600;
an average utilization ratio of 87.97% and 80.98%; and 42.41% and 74.22% of
the Mortgage Loans have their respective Mortgaged Properties located in the
top five states, measured by aggregate drawn balances, all with respect to the
Mortgage Loans in Loan Group 1 and Loan Group 2, respectively.
Xxx-1-2
