Exhibit 4.3
WACHOVIA MORTGAGE LOAN TRUST, LLC,
as Purchaser,
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as Seller
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MORTGAGE LOAN PURCHASE AGREEMENT
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Dated as of August 24, 2005
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TABLE OF CONTENTS
Page
i
SECTION 1.
Definitions..............................................1
SECTION 2.
Purchase and Sale of the Mortgage Loans..................4
SECTION 3.
Mortgage Loan Schedule...................................6
SECTION 4.
Allocation of Payments; Mortgage Loan Files..............6
SECTION 5.
Material Defects.........................................7
SECTION 6.
Recordation of Assignments of Mortgages..................9
SECTION 7.
Representations and Warranties of Seller Concerning the
Mortgage Loans.........................................10
SECTION 8.
Representations and Warranties Concerning the Seller....14
SECTION 9.
Representations and Warranties Concerning the Purchaser.16
SECTION 10.
Conditions to Closing...................................17
SECTION 11.
Notices.................................................19
SECTION 12.
Assignment by Purchaser.................................19
SECTION 13.
Representations, Warranties and Agreements to
Survive Delivery.......................................19
SECTION 14.
Severability............................................19
SECTION 15.
Counterparts............................................19
SECTION 16.
Amendment...............................................19
SECTION 17.
GOVERNING LAW...........................................20
SECTION 18.
Further Assurances......................................20
SECTION 19.
Successors and Assigns..................................20
SECTION 20.
Maintain Rights in Effect...............................20
SECTION 21.
Entire Agreement........................................20
SECTION 22.
No Partnership..........................................20
<PAGE>
EXHIBITS AND SCHEDULE TO
MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 1
Mortgage Loan Schedule Information
Exhibit 2
Schedule of Lost Notes
Exhibit 3
S&P LEVELS(R) Glossary, Version 5.6(c) Revised, Appendix E
Schedule A
Mortgage Loan Schedule
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of August 24, 2005,
as amended and supplemented by any and all
amendments hereto (collectively, the
"Agreement"), by and between WACHOVIA BANK,
NATIONAL ASSOCIATION, a national
banking association (the "Seller"), and
WACHOVIA MORTGAGE LOAN TRUST, LLC, a
Delaware limited liability company (the
"Purchaser").
Upon the terms and subject to the conditions of this
Agreement, the Seller agrees to sell, and
the Purchaser agrees to purchase,
certain conventional, adjustable rate,
first lien mortgage loans secured
primarily by one- to four-family
residential properties as described herein. The
Purchaser intends to sell the Mortgage
Loans to U.S. Bank National Association,
as trustee under the Pooling and Servicing
Agreement, dated as of August 24,
2005 (the "Pooling and Servicing
Agreement"), among the Purchaser, as depositor,
the Seller, as certificate administrator,
Wells Fargo Bank, N.A. and National
City Mortgage Co., as servicers, and U.S.
Bank National Association, as trustee.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the
parties hereto agree as follows:
SECTION 1.
Definitions. The following terms are defined as follows:
Agreement: The meaning set forth in the preambles hereto.
Closing Date: August 24, 2005.
Co-op Shares: Shares
issued by private non-profit housing
corporations.
Custodian: The Custodian under the Pooling and Servicing
Agreement.
Cut-off Date: August 1, 2005.
Deleted Mortgage
Loan: A Mortgage Loan replaced or to be
replaced by a Substitute Mortgage Loan.
Material Defect: The meaning set forth in Section 5(ii).
MERS: Mortgage Electronic Registration Systems, Inc.
Mortgage: The mortgage, deed of trust or instrument creating a
lien on an interest in Mortgaged Property
securing a Mortgage Note or creating a
lien on a leasehold interest.
Mortgage File: The following documents:
(i) the original Mortgage Note, endorsed by manual or
facsimile signature either (A) in blank or
(B) in the following form: "Pay to
the order of U.S. Bank, National
Association, as Trustee, without recourse,"
with all necessary intervening endorsements
showing a complete chain of
endorsement from the originator to the
Trustee (each such endorsement being
sufficient to transfer all right, title and
interest of the party so endorsing
in and to that Mortgage Note);
(ii) the original recorded Mortgage with evidence of a
recording thereon, or if any such Mortgage
has not been returned from the
applicable recording office or has been
lost, or if such public recording office
retains the original recorded Mortgage, a
copy of such Mortgage certified by the
Seller as being a true and correct copy of
the Mortgage, if such copy is
available;
(iii) a duly executed assignment of mortgage to "U.S. Bank,
National Association, as trustee for the
holders of the Wachovia Mortgage Loan
Trust, LLC Mortgage Pass-Through
Certificates, Series 2005-A Certificates"
(which may be included in a blanket
assignment or assignments), together with,
except as provided below, originals of all
interim recorded assignments of such
mortgage or copies of such interim
assignments certified by the Seller as being
true and complete copies of the original
recorded intervening assignments of
Mortgage (each such assignment, when duly
and validly completed, to be in
recordable form and sufficient to effect
the assignment of the related Mortgage
to the assignee thereof); provided that, if
the related Mortgage has not been
returned from the applicable public
recording office, such assignment of
mortgage may exclude the information to be
provided by the recording office; and
provided, further, if the related Mortgage
has been recorded in the name of MERS
or its designee, no assignment of mortgage
in favor of the Trustee is required;
(iv) the originals of all assumption, modification,
consolidation or extension agreements, if
any, with evidence of recording
thereon, if any;
(v) the
original or duplicate
original mortgagee
title
insurance policy and all riders thereto;
(vi) the original of any guarantee executed in connection with
the Mortgage Note;
(vii) for each Mortgage Loan, if any, which is secured by a
residential long-term lease, a copy of the
lease with evidence of recording
indicated thereon, or, if the lease is in
the process of being recorded, a
photocopy of the lease, certified by an
officer of the respective prior owner of
such Mortgage Loan or by the applicable
title insurance company,
closing/settlement/escrow agent or company
or closing attorney to be a true and
correct copy of the lease transmitted for
recordation;
(viii) the original of any security agreement, chattel
mortgage or equivalent document executed in
connection with the Mortgage; and
(ix) for each Mortgage Loan secured by Co-op Shares, the
originals of the following documents or
instruments:
(A) The stock certificate;
(B) The stock power executed in blank;
(C) The executed proprietary lease;
(D) The executed recognition agreement;
(E) The executed assignment of recognition agreement, if any;
(F) The executed UCC-1 financing statement with evidence of
recording thereon; and
(G) Executed UCC-3 financing statements or other appropriate
UCC financing statements required by state
law, evidencing a complete and
unbroken line of assignments from the
mortgagee to the Trustee with evidence of
recording thereon (or in a form suitable
for recordation).
Mortgage Interest Rate: As to any Mortgage Loan, the per annum
rate of interest at which interest accrues
on the principal balance of such
Mortgage Loan, as adjusted from time to
time in accordance with the provisions
of the related Mortgage Note.
Mortgage Loans: The mortgage loans listed on the Mortgage
Loan Schedule.
Mortgage Loan Schedule: The list of Mortgage Loans, as from
time to time amended by the Seller to
reflect the addition of Substitute
Mortgage Loans and the deletion of Deleted
Mortgage Loans pursuant to the
provisions of this Agreement, attached
hereto as Schedule A.
Mortgage Note: The originally executed note or other evidence
of indebtedness evidencing the indebtedness
of a Mortgagor under a Mortgage
Loan, together with all riders thereto and
amendments thereof.
Mortgaged Property:
The property securing a Mortgage Loan.
Mortgagor: The obligor
on a Mortgage Note.
Opinion of Counsel:
A written opinion of counsel,
who may be counsel for the Seller or the Purchaser,
reasonably acceptable to
the Purchaser.
Person: Any individual, corporation, limited liability
company, partnership, joint venture,
association, joint-stock company, trust,
unincorporated organization, government or
any agency or political subdivision
thereof, or any other organization or
entity of any type, whether or not a legal
entity.
Pooling and Servicing Agreement: The meaning set forth in the
preambles hereto.
Prospectus Supplement: The supplement, dated August 22, 2005
to the Prospectus, dated July 21, 2005,
relating to certain classes of the
certificates issued under the Pooling and
Servicing Agreement.
Purchase Price: The meaning specified in Section 2(ii).
Purchaser: The meaning set forth in the preambles hereto.
Remittance Date: As to any Distribution Date (as such term is
defined in the Pooling and Servicing
Agreement in effect as of the date hereof),
by 2:00 p.m. Eastern time on the second
Business Day immediately preceding such
Distribution Date.
Repurchase Price: With respect to any Mortgage Loan (or any
property acquired with respect thereto)
required to be purchased by the Seller
pursuant to this Agreement, an amount equal
to the sum of (i)(a) the unpaid
principal balance of such Mortgage Loan as
of the date of repurchase (or if the
related Mortgaged Property was acquired by
the Purchaser or its assignee, the
unpaid principal balance at the date of the
acquisition), plus (b) accrued but
unpaid interest on the principal balance at
the related Mortgage Interest Rate
through and including the last day of the
month of repurchase, and (ii) any
costs and damages incurred by the Purchaser
in connection with a breach of the
representation contained in Section 7(iii)
as a result of any violation of any
predatory or abusive lending law with
respect to such Mortgage Loan.
Seller: The meaning set forth in the preambles hereto.
Servicer: The applicable Servicer under the Pooling and
Servicing Agreement.
Substitute Mortgage Loan: A mortgage loan substituted for a
Deleted Mortgage Loan pursuant to the
provisions of this Agreement. Upon such
substitution, such mortgage loan shall be a
"Mortgage Loan" hereunder.
Substitution Adjustment Amount: The meaning specified in
Section 5(v).
Transferred Property: The meaning specified in Section 2(i).
Trustee: The Trustee under the Pooling and Servicing Agreement.
SECTION 2.
Purchase and Sale of the Mortgage Loans.
(i) The Seller does hereby sell, assign,
set over, transfer, and otherwise
convey to the Purchaser on the Closing
Date, without recourse (except as
expressly provided herein), all of its
right, title and interest, in, to and
under the following: (A) the Mortgage Loans
(including the related Mortgage Note
and Mortgage, all monies due or to become
due on the Mortgage Loans (other than
payments of principal and interest due and
payable on or before the Cut-off
Date), and all collections on the Mortgage
Loans received after the Cut-off Date
(other than payments of principal and
interest due and payable on or before the
Cut-off Date)); (B) any insurance policies
in respect of the Mortgage Loans; and
(C) all proceeds of the foregoing
(collectively, the "Transferred Property").
(ii) The purchase price (the "Purchase
Price") for the Mortgage Loans and the
related Transferred Property to be paid by
the Purchaser to the Seller on the
Closing Date shall be (A) a 0.01%
Percentage Interest in the Class 1-A-R
Certificates (as such terms are defined in
the Pooling and Servicing Agreement
in effect as of the date hereof) and (B) an
amount equal to $444,199,615.26.
(iii) In consideration of the sale of the
Mortgage Loans and the related
Transferred Property by the Seller to the
Purchaser on the Closing Date, the
Purchaser shall pay to the Seller on the
Closing Date by wire transfer of
immediately available funds to a bank
account designated by the Seller, the
Purchase Price.
(iv) It is the express intent of the
parties hereto that the transfer of the
Mortgage Loans by the Seller to the
Purchaser pursuant to this Section 2 be, and
be construed as, an absolute sale of the
Mortgage Loans by the Seller to the
Purchaser, including for accounting
purposes, and not a secured borrowing. It
is, further, not the intention of the
parties that such transfer be deemed the
grant of a security interest in the
Mortgage Loans by the Seller to the
Purchaser to secure a debt or other
obligation of the Seller. However, in the
event that, notwithstanding the intent of
the parties, the Mortgage Loans are
held to be the property of the Seller, or
if for any other reason this Agreement
is held or deemed to create a security
interest in the Mortgage Loans, then: (1)
this Agreement shall constitute a security
agreement, and (2) the transfer of
the Mortgage Loans provided for in this
Section 2 shall be deemed to be a grant
by the Seller to the Purchaser of, and the
Seller hereby grants to the
Purchaser, to secure all of the Seller's
obligations hereunder, a security
interest in all of the Seller's right,
title, and interest, whether now owned or
hereafter acquired, in and to (i)-the
Mortgage Loans, (ii) all accounts, chattel
paper, deposit accounts, documents, general
intangibles, goods, instruments,
investment property, letter-of-credit
rights, letters of credit, money, and oil,
gas, and other minerals, consisting of,
arising from, or relating to, any of the
foregoing; and (iii) all proceeds of the
foregoing.
(v) The Seller shall file such financing
statements, and the Seller and the
Purchaser shall, to the extent consistent
with this Agreement, take such other
actions as may be necessary to ensure that,
if this Agreement were found to
create a security interest in the Mortgage
Loans, such security interest would
be a perfected security interest of first
priority under applicable law and will
be maintained as such throughout the term
of the Agreement. In connection
herewith, the Purchaser shall have all of
the rights and remedies of a secured
party under the Uniform Commercial Code as
in force in the relevant
jurisdiction.
(vi) Concurrently herewith, the Purchaser
has contracted to sell the Mortgage
Loans and other Transferred Property to the
Trustee pursuant to the Pooling and
Servicing Agreement. To avoid the
unnecessary expense and administrative
inconvenience associated with the execution
and recording of multiple assignment
documents, the Seller may execute one or
more assignments of mortgages in blank
or naming the Trustee as assignee, and may
endorse the Mortgage Notes in blank
or to the Trustee. Notwithstanding the fact
that such assignments of mortgages
name the Trustee as assignee and that
Mortgage Notes are endorsed to the
Trustee, the parties hereto acknowledge and
agree that the Mortgage Loans for
all purposes have been transferred from the
Seller to the Purchaser and from the
Purchaser to the Trustee.
SECTION 3. Mortgage Loan Schedule. The
initial Mortgage Loan Schedule shall be
prepared by the Seller and shall set forth
the information listed on Exhibit 1
to this Agreement with respect to each of
the Mortgage Loans being sold by the
Seller hereunder.
SECTION 4.
Allocation of Payments; Mortgage Loan Files.
(i) The Purchaser will be entitled to all
payments of principal and interest on
the Mortgage Loans due after the Cut-off
Date, regardless of when actually
collected, and all collections in respect
of the Mortgage Loans received after
the Cut-off Date, other than payments of
principal and interest due and payable
on or before the Cut-off Date. The Seller
will be entitled to all scheduled
payments of principal and interest on the
Mortgage Loans due on or before the
Cut-off Date, including payments of such
collected after the Cut-off Date. Such
principal and interest belonging to the
Seller as described above will not be
included in the aggregate principal balance
of the Mortgage Loans as of the
Cut-off Date as set forth on the initial
Mortgage Loan Schedule.
(ii) In connection with the transfer and
assignment of the Mortgage Loans, the
Seller shall deliver or cause to be
delivered to the Custodian on behalf of the
Trustee as assignee of the Purchaser by the
Closing Date, the documents required
to be included in each Mortgage File;
provided, however, that in lieu of the
foregoing, the Seller may deliver the
following documents, under the
circumstances set forth below: (x) in lieu
of the original Mortgage, the
assignment to the Trustee of such Mortgage,
or intervening assignments thereof,
which have been delivered, are being
delivered or will, upon receipt of
recording information relating to the
Mortgage required to be included thereon,
be delivered to recording offices for
recording and have not been returned to
the Seller in time to permit their delivery
as specified above, the Seller may
deliver a true copy thereof with a
certification by the Seller, on the face of
such copy, substantially as follows:
"Certified to be a true and correct copy of
the original, which has been transmitted
for recording"; (y) in lieu of the
Mortgage, the assignment to the Trustee of
such Mortgage, or intervening
assignments thereof, if the applicable
jurisdiction retains the originals of
such documents (as evidenced by a
certification from the Seller to such effect)
the Seller may deliver photocopies of such
documents containing an original
certification by the recording office of
the jurisdiction where such documents
were recorded; and (z) in lieu of the
Mortgage Notes relating to the Mortgage
Loans, each identified in the list attached
hereto as Exhibit 2, the Seller may
deliver lost note affidavits and
indemnities of the Seller; and provided
further, however, that in the case of
Mortgage Loans which have been prepaid in
full after the Cut-off Date and prior to
the Closing Date, the Seller, in lieu
of delivering the above documents, may
deliver to the Trustee and the Custodian
a certification by the Seller or the
Servicer servicing such Mortgage Loan to
such effect. The Seller shall deliver such
original documents (including any
original documents as to which certified
copies had previously been delivered)
or such certified copies to the Custodian
promptly after they are received. The
Seller shall cause the Mortgage and
intervening assignments, if any, to be
recorded not later than 180 days after the
Closing Date, unless such assignment
is not required to be recorded under the
terms set forth in Section 6(i).
SECTION 5.
Material Defects.
(i) On or before the Closing Date, the
Seller shall make the Mortgage Files
available to the Purchaser or its agent for
examination, which examination may
be at the offices of the Custodian or the
Seller. The fact that the Purchaser or
its agent has conducted or has failed to
conduct any partial or complete
examination of the Mortgage Files shall not
affect the Purchaser's rights to
demand cure, repurchase, substitution or
other relief as provided in this
Agreement.
(ii) If any document is missing, has not
been executed, is unrelated, determined
on the basis of the Mortgagor name,
original principal balance and loan number,
to the Mortgage Loans identified in the
Mortgage Loan Schedule (a "Material
Defect"), the Purchaser or its assignee
shall promptly notify the Seller in
writing of such Material Defect. The Seller
shall correct or cure any such
Material Defect within 90 days from the
date of notice of the Material Defect
and if the Seller does not correct or cure
such Material Defect within such
period and such defect materially and
adversely affects the interests of the
Purchaser or its assignee in the related
Mortgage Loan, the Seller will either
(a) substitute for the related Mortgage
Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the
manner and subject to the conditions
set forth in this Section 5 or (b) purchase
such Mortgage Loan from the
Purchaser or its assignee at the Repurchase
Price for such Mortgage Loan;
provided that, if such defect would cause
the Mortgage Loan to be other than a
"qualified mortgage" as defined in Section
860G(a)(3) of the Internal Revenue
Code, any such cure, repurchase or
substitution must occur within 90 days from
the date such breach was discovered;
provided, further that if such defect
relates solely to the inability of the
Seller to deliver the original Mortgage
or intervening assignments thereof, or a
certified copy, because the originals
of such documents, or a certified copy,
have not been returned by the applicable
recording office, the Seller shall not be
required to purchase such Mortgage
Loan if the Seller delivers such original
documents or certified copy promptly
upon receipt, but in no event later than
360 days after the Closing Date. The
foregoing repurchase or substitution
obligation shall not apply in the event
that the Seller cannot deliver such
original or copy of any document submitted
for recording to the appropriate recording
office in the applicable jurisdiction
because such document has not been returned
by such office; provided that the
Seller shall instead deliver a recording
receipt of such recording office or, if
such receipt is not available, a
certificate of the Seller or the applicable
Servicer confirming that such documents
have been accepted for recording, and
delivery to the Trustee or the Custodian,
as assignee of the Purchaser, shall be
effected by the Seller within thirty days
of its receipt of the original
recorded document.
(iii) With respect to each Substitute
Mortgage Loan, the Seller shall promptly
deliver to the Custodian, on behalf of the
Trustee as assignee of the Purchaser,
the Mortgage Note, the Mortgage, and the
other documents required to be included
in the related Mortgage File, with the
Mortgage Note endorsed and the Mortgage
assigned as required by the definition of
Mortgage File. Payments due with
respect to any such Substitute Mortgage
Loan in the month of substitution shall
be retained by the Seller and not
transferred to the Purchaser. For the month of
substitution, collections on the Mortgage
Loans will include the scheduled
payment due for such month on any Deleted
Mortgage Loan for which the Seller has
substituted a Substitute Mortgage Loan.
(iv) The Seller shall amend the Mortgage
Loan Schedule to reflect the repurchase
or transfer to the Seller of each Mortgage
Loan that has become a Deleted
Mortgage Loan and the substitution of the
Substitute Mortgage Loans and the
Seller shall deliver the amended Mortgage
Loan Schedule to the Purchaser, with a
copy to each of the Trustee and the
Custodian. Upon such substitution, each
Substitute Mortgage Loan shall be subject
to the terms of this agreement in all
respects, and the Seller shall be deemed to
have made to the Purchaser with
respect to such Substitute Mortgage Loan,
as of the date of substitution, the
representations and warranties set forth in
Section-7. Upon any such
substitution and the payment to the Trustee
as assignee of the Purchaser of the
Repurchase Price or of any required
Substitution Adjustment Amount, the
Purchaser shall cause the Custodian to
release the Mortgage File relating to
such Deleted Mortgage Loan to the Seller
and the Purchaser and its assignees, as
applicable, shall execute and deliver at
the Seller's direction such instruments
of transfer or assignment prepared by the
Seller, in each case without recourse,
as shall be necessary to transfer to the
Seller, or its designee, any Defective
Mortgage Loan substituted for or
repurchased pursuant to this Section 5.
(v) For any month in which the Seller
substitutes one or more Substitute
Mortgage Loans for one or more Deleted
Mortgage Loans, the amount (if any) by
which the aggregate unpaid principal
balance of all such Substitute Mortgage
Loans as of the date of substitution is
less than the aggregate unpaid principal
balance of all such Deleted Mortgage Loans
after application of the principal
portion of the scheduled payments due in
the month of substitution (the
"Substitution Adjustment Amount") shall be
paid to the Trustee as assignee of
the Purchaser by the Seller on or before
the Remittance Date in the month
succeeding the calendar month during which
the related Mortgage Loan is required
to be purchased or replaced hereunder.
SECTION 6.
Recordation of Assignments of Mortgages.
(i) The Seller
shall, promptly after
the Closing Date, cause each Mortgage
and each assignment of Mortgage from the Seller to the Trustee, and all
unrecorded intervening assignments, if any,
delivered on or prior to the Closing
Date, to be recorded in the recording offices in the jurisdictions where the
related Mortgaged Properties are located;
provided, however, the Seller need not
cause to be recorded any assignment which
relates to a Mortgage Loan if (a) such
recordation is not required by the rating agencies rating the certificates
issued under the Pooling and Servicing Agreement or an Opinion of Counsel
has
been provided to the Purchaser, the
Trustee, and the Custodian which states that
the recordation of such assignment is not necessary to
protect the interest of
the Purchaser or its assignee in the related Mortgage Loan or (b) MERS is
identified on the Mortgage or a properly
recorded assignment of
the Mortgage as
the mortgagee of record; provided, however,
notwithstanding the
delivery of any
Opinion of Counsel, any assignment of Mortgage that has not been recorded
pursuant to clause (a) shall be
submitted for recording by the Seller in the
manner described above, at the Seller's
expense, upon 60 days' written notice to
the Seller from the Purchaser or its
assignee.
(ii)
While each such Mortgage or assignment is being recorded, if
necessary, the Seller shall leave or cause to be left with the
Custodian a
certified copy of such Mortgage or
assignment.
In the event that,
within 180
days of the Closing Date, the Purchaser,
the Trustee, and the Custodian have not
been provided an Opinion of Counsel as
described in
subsection (i) or
received
evidence of recording with respect to each Mortgage Loan pursuant to the
terms
hereof, the failure to provide evidence of
recording or such Opinion of Counsel
(in the alternative, if required) shall be
considered a Material Defect, and the
provisions of Section 5 shall apply. All
customary recording fees and reasonable
expenses relating to the recordation of the assignments of mortgage to the
Trustee or the Opinion of Counsel, as the case may be, shall be borne by the
Seller.
SECTION 7.
Representa
