EXHIBIT 99.2
EXECUTION COPY
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COUNTRYWIDE HOME LOANS, INC.
a Seller
PARK MONACO INC.
a Seller
CWHEQ, INC.
Purchaser
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PURCHASE AGREEMENT
Dated as of March 29, 2006
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REVOLVING HOME EQUITY LOAN ASSET BACKED NOTES,
Series 2006-B
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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 Sellers Upon Sale.............................3
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........................................9
ARTICLE IV
SELLERS' COVENANTS
Section 4.01. Covenants of the Sellers....................................23
ARTICLE V
SERVICING
Section 5.01. Servicing...................................................24
ARTICLE VI
TERMINATION
Section 6.01. Termination.................................................24
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment...................................................24
Section 7.02. Governing Law...............................................24
Section 7.03. Notices.....................................................24
Section 7.04. Severability of Provisions..................................25
Section 7.05. Counterparts; Electronic Delivery...........................25
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Section 7.06. Further Agreements..........................................26
Section 7.07. Successors and Assigns: Assignment of Purchase Agreement....26
Section 7.08. Survival....................................................26
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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EXECUTION COPY
This PURCHASE AGREEMENT, dated as of March 29, 2006 (the "Agreement"),
between COUNTRYWIDE HOME LOANS, INC., a New York corporation, as a seller
("CHL" or a "Seller"), PARK MONACO INC., a Delaware corporation, as a seller
("Park Monaco" or a "Seller," and together with CHL, the "Sellers"), and
CWHEQ, INC., a Delaware corporation (the "Purchaser"),
WITNESSETH:
WHEREAS, each Seller is the owner of the applicable notes or other
evidence of indebtedness indicated on Schedule I as owned by that Seller, 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, each Seller will own the
mortgages on the properties securing the Mortgage Loans indicated on Schedule
I as owned by that Seller, 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, each Seller wants to sell its 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, CHL, 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 Master Glossary of Defined Terms
attached as Annex 1 to the Indenture dated as of the date hereof among CWHEQ
Revolving Home Equity Loan Trust, Series 2006-B, JPMorgan Chase Bank, N.A., as
indenture trustee and Chase Bank USA, National Association as co-trustee. 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, CHL, with respect to each Initial Mortgage Loan it
owns as indicated on Schedule I, hereby transfers to the Purchaser, without
recourse, all of its right, title, and interest existing now or in the future
in
(1) that Mortgage Loan, including its Asset Balance (including all
Additional Balances), the related Mortgage File, all property that
secures that 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 that Mortgage Loan that is acquired by
foreclosure or deed in lieu of foreclosure;
(3) its rights under the hazard insurance policies related to the
mortgages that secure the Mortgage Loans;
(4) all rights under any guaranty executed in connection with that
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.
Park Monaco, with respect to each Initial Mortgage Loan it owns as
indicated on Schedule I, hereby transfers to the Purchaser, without recourse,
all of its right, title, and interest existing now or in the future in
(1) that Mortgage Loan, including its Asset Balance (including all
Additional Balances), the related Mortgage File, all property that
secures that 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 that Mortgage Loan that is acquired by
foreclosure or deed in lieu of foreclosure;
(3) its rights under the hazard insurance policies related to the
mortgages that secure the Mortgage Loans;
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(4) all rights under any guaranty executed in connection with that
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.
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, each Seller shall deliver a
Transfer Document (properly completed and executed by the Seller) to the
Purchaser. When each Seller delivers a Transfer Document, that Seller hereby
transfers to the Purchaser without recourse, and the Purchaser purchases and
shall effect payment for, all of its 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.
(b) By the sale of a Mortgage Loan and its Additional Balances, each
Seller has sold to the Purchaser, and the Purchaser has purchased from each
Seller, each future draw of new borrowing under the related Credit Line
Agreement. The Purchaser shall pay the applicable 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 applicable 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 Sellers Upon Sale.
In connection with the transfers pursuant to Section 2.01(a), each
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 sold by it,
specifying for each Initial Mortgage Loan, among other things, its account
number and its Cut-off Date Asset Balance;
(b) to indicate in its books and records that the applicable 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 and the Owner Trustee, and the Credit Enhancer, an Officer's
Certificate confirming the
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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 containing the Mortgage Loans sold by
both Sellers 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.
Each Seller agrees to perfect and protect the Purchaser's interest in
each Mortgage Loan transferred by it pursuant to Section 2.01(a) and its
proceeds by preparing, executing, and filing a UCC1 Financing Statement with
the Secretary of State in the State of New York or the Secretary of State in
the State of Delaware, as applicable, describing the Mortgage Loans and naming
the applicable 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 that 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 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 a Seller, it shall deliver to the
order of the Purchaser the following documents for each Mortgage Loan
transferred by that Seller (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
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affidavit from the Sponsor 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 Sponsor 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
Sponsor 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 Sponsor 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;
(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,
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(2) no later than the twentieth day after the Closing Date, with
respect to no less than 40% of the Initial 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.
Each 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 that 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 that
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 the applicable date of substitution, as applicable, CHL 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 CHL 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 each of the
Sellers existing now or in the future in the Mortgage Loans and other property
transferred to it pursuant to this Section.
The transfer of the Mortgage Loans is a sale by each Seller to the
Purchaser of all its interest in the applicable 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,
each Seller hereby Grants to the Purchaser a Security Interest in all of its
right, title, and interest in the applicable Mortgage Loans and other property
described above, whether existing now or in the future, to secure all of that
its obligations under this Agreement; and this Agreement shall constitute a
Security Agreement under applicable law.
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Section 2.03. Payment of Purchase Price for the Mortgage Loans.
(a) In consideration of the sale of the Initial Mortgage Loans from each
of the Sellers to the Purchaser on the Closing Date, the Purchaser agrees to
transfer to the applicable Seller on the Closing Date the purchase price for
the applicable Initial 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. Sellers Representations and Warranties.
(a) CHL represents and warrants to the Purchaser as of the Closing Date:
(1) CHL 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. CHL 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 CHL;
(2) CHL 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 CHL enforceable in accordance with its terms;
(3) CHL 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,
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licenses, approvals or authorizations, or registrations or declarations,
that have been obtained or filed, as the case may be, before the Closing
Date;
(4) 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 CHL,
or constitute a material breach of any mortgage, indenture, contract, or
other agreement to which CHL is a party or by which CHL may be bound;
and
(5) No litigation or administrative proceeding of or before any
court, tribunal, or governmental body is currently pending, or to the
knowledge of CHL threatened, against CHL or any of its properties or
with respect to this Agreement or the Notes that in the opinion of CHL
has a reasonable likelihood of resulting in a material adverse effect on
the transactions contemplated by this Agreement.
(6) The representations in Section 3.01(b) are true.
(b) Park Monaco represents and warrants to the Purchaser as of the
Closing Date:
(1) Park Monaco is a Delaware corporation, validly existing and in
good standing under the laws of the State of Delaware, and has the
corporate power to own its assets and to transact the business in which
it is currently engaged. Park Monaco 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 Park
Monaco.
(2) Park Monaco 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 Park Monaco enforceable in
accordance with its terms;
(3) Park Monaco 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;
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(4) The execution, delivery, and performance of this Agreement by
Park Monaco will not violate any provision of any existing law or
regulation or any order or decree of any court applicable to Park Monaco
or any provision of the certificate of incorporation or bylaws of Park
Monaco, or constitute a material breach of any mortgage, indenture,
contract, or other agreement to which Park Monaco is a party or by which
Park Monaco may be bound; and
(5) No litigation or administrative proceeding of or before any
court, tribunal, or governmental body is currently pending, or to the
knowledge of Park Monaco threatened, against Park Monaco or any of its
properties or with respect to this Agreement or the Notes that in the
opinion of Park Monaco has a reasonable likelihood of resulting in a
material adverse effect on the transactions contemplated by this
Agreement.
(c) The representations and warranties in this Section 3.01 shall
survive the transfer of the Mortgage Loans to the Purchaser. CHL shall cure a
breach of any of the representations and warranties of CHL and Park Monaco in
accordance with the Sale and Servicing Agreement. The remedy specified in the
Sale and Servicing Agreement shall constitute the sole remedy against a Seller
with respect to any breach.
Section 3.02. Seller Representations and Warranties Relating to the
Mortgage Loans.
(a) CHL 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, this Agreement
constitutes a valid and legally binding obligation of CHL, enforceable
against CHL in accordance with its terms.
(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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, either
(A) this Agreement constitutes a valid transfer to the
Purchaser of all right, title, and interest of each of the Sellers
in the applicable Mortgage Loans, and all collections received in
respect of the applicable 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 applicable Mortgage Loans, and all other property
specified
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in Section 2.01(a) or (b), 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 each of the Sellers 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 each of the Sellers.
(3) CHL has not authorized the filing of and is not aware of any
financing statements against either 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.
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(4) As of the Closing Date, the information in the Mortgage Loan
Schedule for the Initial Mortgage Loans is correct in all material
respects. As of the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, the information in the Mortgage Loan
Schedule for the relevant Additional Home Equity 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 applicable Mortgage Loans have not been assigned or
pledged, and the related 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 applicable 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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 related 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
applicable 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, the related
mortgage is a valid and subsisting first or second lien on the property
described in it, as shown on the Mortgage Loan Schedule with respect to
each related Mortgage Loan, and as of the Cut-off Date, 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;
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(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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, no obligor has a
valid offset, defense, or counterclaim under any Credit Line Agreement
or mortgage.
(9) To the best knowledge of CHL, 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 the applicable
date of substitution with respect to any Eligible Substitute Mortgage
Loan, 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, no proceeding is
pending or, to the best knowledge of CHL, 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 CHL, 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 the applicable
date of substitution with respect to any Eligible Substitute Mortgage
Loan, 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).
(12) No Minimum Monthly Payment on an 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 for each Loan Group and no more than
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the applicable percentage specified in the Adoption Annex of the Initial
Mortgage Loans in that Loan Group 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage
13
Loan, 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, no selection
procedure reasonably believed by CHL 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, neither Seller
has 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, or the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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.
14
(23) The Mortgage Notes constitute either "instruments" or
"general intangibles" as defined in the UCC.
(24) By the Closing Date with respect to the Initial Mortgage
Loans, the relevant Subsequent Closing Date with respect to any
Additional Home Equity Loans, 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 each 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, CHL and Park Monaco 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, neither Seller
has 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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
15
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 Initial 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 Initial 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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.
(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
16
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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, no default exists
under any applicable Mortgage Note or applicable 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
applicable Mortgage Note or applicable 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, no modifications
to the applicable Mortgage Notes and applicable Mortgage Loans have been
made and not disclosed.
(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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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 CHL 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.
(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,
17
or the applicable date of substitution with respect to any Eligible
Substitute Mortgage Loan, 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, each
Seller was, and each Seller 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 of indebtedness
secured by the insured Mortgage, as to the first priority lien, of the
Mortgage subject to the exceptions in paragraph (7) above.
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(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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, 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 outstanding principal balance of the
Mortgage Loan and any mortgage loan senior to that 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 and other forms of equitable relief may be subject to
equitable defenses and to the
19
discretion of the court before which any proceeding therefor may be
brought. To the best of CHL'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 CHL'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 CHL'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.
(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,
20
or the applicable date of substitution with respect to any Eligible
Substitute Mortgage Loan, no foreclosure proceedings are pending against
any Mortgaged Property and no Mortgage Loan is 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 the applicable date of substitution
with respect to any Eligible Substitute Mortgage Loan, there is no
homestead exemption available and enforceable that materially interferes
with the right to sell any 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 Initial Mortgage Loans, individually and in the
aggregate, conform in all material respects to their descriptions in the
Prospectus Supplement.
(58) Each Mortgage Loan represents a "qualified mortgage" within
the meaning of Section 860(a)(3) of the Code (but without regard to the
rule in Treasury Regulation ss. 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage, or any substantially similar
successor provision).
(59) No Mortgage Loan is covered by the Home Ownership and Equity
Protection Act of 1994.
(60) 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.
(61) 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).
21
(62) 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.
(63) 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.
(64) 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.
(65) All of the Mortgage Loans in the Loan Group specified in the
Adoption Annex conform to Xxxxxx Xxx or Xxxxxxx Mac maximum principal
balance (by credit limit) guidelines.
(66) With respect to any Mortgage Loan in Loan Group 1:
o With respect to any subordinate lien mortgages
underlying the Security, such lien is on a one- to
four-family residence that is the principal residence
of the borrower at the time of the origination of the
subordinate lien;
o Any subordinate-lien mortgages backing the Security
must have original loan amounts that do not exceed
one-half of the one-unit limitation for first
mortgages, or $179,825 (in Alaska, Guam, Hawaii or
Virgin Islands: $269,737.50), without regard to the
number of units; and
o The aggregate original principal balance of the first
and subordinate lien mortgage loans relating to the
same mortgaged property does not exceed Xxxxxxx Mac's
applicable loan limits for first-lien mortgages for
that property type.
(b) If the substance of any representation or warranty under the Sale
and Servicing Agreement or in this Section made to the best of CHL's knowledge
or as to which a 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 CHL shall cure the breach,
repurchase the Mortgage Loan, or substitute for the Mortgage Loan in
accordance with the Sale and Servicing Agreement.
22
(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 a Seller for the breach of a
representation or warranty is CHL'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 CHL, 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.
(e) A breach of any one of the representations in Sections 3.02(a)(58)
to (66) will be considered to materially adversely affect the interests of the
Noteholders.
ARTICLE IV
SELLERS' COVENANTS
Section 4.01. Covenants of the Sellers.
Except for the transfer under this Agreement, none of the Sellers will
transfer to any other person, or create or suffer to exist any Lien on any
Mortgage Loan, or any interest in one; each Seller will notify the Indenture
Trustee of the existence of any Lien on any Mortgage Loan immediately on its
discovery; and CHL 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 a Seller. Nothing in this Section shall prohibit a
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 applicable Seller is contesting their validity in
good faith by appropriate proceedings and set aside on its books adequate
reserves with respect to them.
23
ARTICLE V
SERVICING
Section 5.01. Servicing.
CHL 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 each of the Sellers 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 CHL, Park Monaco, and
the Purchaser, with the written consent of the Credit Enhancer, by written
agreement signed by CHL, Park Monaco, 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
24
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 CHL at:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ref: CWHEQ 2006-B
(ii) if to Park Monaco
Park Monaco Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ref: CWHEQ 2006-B
and
(iii) if to the Purchaser at:
CWHEQ, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Ref: CWHEQ 2006-B
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.
25
Section 7.06. Further Agreements.
The Purchaser and each Seller 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 each Seller, the Purchaser, the Trust, the Indenture Trustee, and the
Credit Enhancer. The obligations of each 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 any Seller may assign its obligations
under this Agreement to any person into which that Seller is merged or any
corporation resulting from any merger, conversion, or consolidation to which
that Seller is a party or any person succeeding to the business of that
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, each 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 it under this Agreement
insofar as they relate to the Mortgage Loans transferred to the Trust
applicable to that Seller and to the enforcement or exercise of any right
against that 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.
26
IN WITNESS WHEREOF, the Sellers 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.
as Purchaser
By: /s/ Xxxx Xxxxxxx, Xx.
---------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
as a Seller
By: /s/ Xxxx Xxxxxxx, Xx.
---------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Senior Vice President
PARK MONACO INC.
as a Seller
By: /s/ Xxxx Xxxxxxx, Xx.
---------------------------
Name: Xxxx Xxxxxxx, Xx.
Title: Vice President
27
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 29th day of March, 2006 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 # 1609859
Notary Public - California
Los Angeles County
My Comm. Expires October 15, 2009.
28
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 29th day of March, 2006 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 # 1609859
Notary Public - California
Los Angeles County
My Comm. Expires October 15, 2009.
29
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 29th day of March, 2006 before me, Xxxx Xxxxxxx, Xx. of PARK
MONACO 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 # 1609859
Notary Public - California
Los Angeles County
My Comm. Expires October 15, 2009.
30
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
----------------------------------------------------------------------------------------------------------------------------------
State/jurisdiction Category under applicable anti-predatory lending law
----------------------------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------------------------
Georgia as amended (March 7, 2003 - current) High Cost Home Loan
----------------------------------------------------------------------------------------------------------------------------------
HOEPA Section 32 High Cost Loan
----------------------------------------------------------------------------------------------------------------------------------
Illinois High Risk Home Loan
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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
----------------------------------------------------------------------------------------------------------------------------------
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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 is
the transfer to each of the Sellers on the Closing Date of the Transferor
Certificates and the proceeds from the sale of the Notes, each by its
respective portion.
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 298 and
298 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
11.750% and 18.000% and 11.949% and 18.000% with respect to the Mortgage Loans
in Loan Group 1 and Loan Group 2, respectively, and the weighted average Loan
Rate Cap is approximately 17.774% and 17.829%, with respect to the Mortgage
Loans in Loan Group 1 and Loan Group 2, respectively. The Gross Margins for
the Mortgage Loans range between -1.000% and 9.125% and -2.000% 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 2.072%
and 2.110% 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
3.990% and 14.500% and 3.990% and 16.250% 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 8.651% and 9.447% with respect to
the Mortgage Loans in Loan Group1 and Loan Group 2, respectively. As of the
Cut-off Date, 100.00% and 0.00% 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 36.41% and 39.90% (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 63.59% and 60.10% (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 $230,000 and $7,500 and $2,400,000 with an average of approximately
$45,703 and $118,345 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 $200,000 and $2,000,000 and the
average principal balance of the Mortgage Loans is equal to approximately
$36,907 and $101,709 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 33.85% and 16.76% 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 86.63% and
86.05%; a range of Combined Loan-to-Value Ratios between 10.72% and 100.00%
and 8.42% and 100.00%; a percentage of primary residences of 100.00% and
79.55%; a weighted average FICO score of 700 and 706; a range of FICO scores
between 544 and 838 and 581 and 842; a Weighted Average Net Loan Rate of
7.390% and 8.669%; a range of net Loan Rates between 2.506% and 14.000% and
2.506% and 15.750%; a weighted average original stated term to maturity of 300
and 300 months; a range of original term to maturity between 156 and 360
months and 120 and 360 months; a range of remaining term to maturity between
66 and 358 months and 98 and 358 months; an average drawn balance of $36,907
and $101,709; an average utilization ratio of 83.29% and 89.38%; and 50.12%
and 78.55% 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
