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EXECUTION COPY
WACHOVIA ASSET SECURITIZATION, INC.,
as Purchaser,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Seller and Servicer,
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 19, 2002
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1
Definitions.................................................1
Section 1.2 Other Definitional
Provisions...............................2
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Mortgage
Loans......................................2
Section 2.2
[Reserved]..................................................4
Section 2.3 Payment of Purchase
Price...................................4
Section 2.4
Allocation..................................................5
Section 2.5 Draws During Rapid Amortization Period5
Section 2.6 Security
Interest...........................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1 Representations and Warranties of the
Seller................6
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the
Seller....................................12
ARTICLE V
[RESERVED]
ARTICLE VI
LIMITATION OF LIABILITY
Section 6.1 Limitation on Liability of the
Seller......................13
ARTICLE VII
TERMINATION
Section 7.1
Termination................................................13
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TABLE OF CONTENTS
(continued)
Page
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1
Amendment..................................................13
Section 8.2 GOVERNING
LAW..............................................13
Section 8.3
Notices....................................................14
Section 8.4 Severability of
Provisions.................................14
Section 8.5 Relationship of
Parties....................................15
Section 8.6
Counterparts...............................................15
Section 8.7 Further
Agreements.........................................15
Section 8.8 Intention of the
Parties...................................15
Section 8.9 Successors and Assigns; Assignment of this
Agreement.......15
Section 8.10
Survival...................................................15
Section 8.11 Third-Party
Beneficiary....................................16
EXHIBIT 1 MORTGAGE LOAN
SCHEDULE....................................1-1
This Mortgage
Loan Purchase Agreement (this “ Agreement ”),
dated as of December 19, 2002, is made by and between Wachovia
Bank, National Association, as seller (in such capacity, the
“ Seller ”) and as servicer (in such capacity,
the “ Servicer ”), and Wachovia Asset
Securitization, Inc., as purchaser (the “ Purchaser
” or the “ Depositor ”).
WITNESSETH:
WHEREAS, the
Seller, in the ordinary course of its business acquires and
originates mortgage loans and acquired or originated all of the
mortgage loans listed on the Mortgage Loan Schedule attached as
Exhibit 1 hereto (the “ Mortgage Loans
”);
WHEREAS, the
Seller owns the Mortgage Loans, the Cut-Off Date Principal Balances
and the Related Documents for the Mortgage Loans, including rights
to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise, and (b) the proceeds of any
insurance policies covering the Mortgage Loans;
WHEREAS, the
parties hereto desire that: (i) the Seller sell the Cut-Off Date
Principal Balances of the Mortgage Loans to the Purchaser on the
Closing Date pursuant to the terms of this Agreement together with
the Related Documents, and all Additional Balances relating to the
Mortgage Loans created on or after the Cut-Off Date and prior to
the Rapid Amortization Period and (ii) the Seller make certain
representations and warranties on the Closing Date;
WHEREAS,
pursuant to the terms of the Trust Agreement, the Depositor will
transfer the Mortgage Loans and other Transferred Property to the
Issuer and the Issuer will issue the Certificates;
WHEREAS,
pursuant to the terms of the Servicing Agreement, the Servicer will
service the Mortgage Loans;
WHEREAS,
pursuant to the terms of the Indenture, the Issuer will issue the
Notes, secured by the Trust Estate;
NOW, THEREFORE,
in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1.
Definitions . For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have
the meanings assigned to such terms in the definitions contained in
Appendix A to the indenture dated as of December 19, 2002 (the
“ Indenture ”), between Wachovia Asset
Securitization, Inc. 2002-HE2 Trust, a Delaware statutory trust
(the “Issuer ”) and JPMorgan Chase Bank, a New
York banking corporation, as indenture trustee (the “
Indenture Trustee ”) which is incorporated by
reference herein. All other capitalized terms used herein shall
have the meanings specified herein.
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Section 1.2.
Other Definitional Provisions . All terms defined in this
Agreement (including those incorporated by reference) shall have
the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined
therein.
As used in this
Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined
in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such
certificate or other document, to the extent not defined, shall
have the respective meanings given to them under GAAP. To the
extent that the definitions of accounting terms in this Agreement
or in any such certificate or other document are inconsistent with
the meanings of such terms under GAAP, the definitions contained in
this Agreement or in any such certificate or other document shall
control.
The words
“hereof,” “herein,” “hereunder”
and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of
this Agreement; Section and Exhibit references contained in
this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; the term
“including” shall mean “including without
limitation”; “or” shall include
“and/or”; and the term “proceeds” shall
have the meaning ascribed thereto in the UCC.
The definitions
contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as
the feminine and neuter genders of such terms.
Any agreement,
instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means
such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its
permitted successors and assigns.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1
Sale of Mortgage Loans .
(a) The
Seller, by the execution and delivery of this Agreement, does
hereby sell, transfer, assign, set over, and otherwise convey to
the Purchaser, without recourse (except as expressly provided
herein), all of its right, title and interest, whether now owned or
existing or hereafter created, arising, or acquired, in, to and
under the Transferred Property; provided , however ,
that the Purchaser does not assume the obligation under any Loan
Agreement to fund Draws by the Mortgagor thereunder or any other
obligation arising under or related to the Related Documents, and
the Purchaser shall not be obligated or permitted to fund any such
Draws, it being agreed that the Seller will retain the obligation
to fund future Draws.
(b) The
Mortgage Loans, including the Cut-Off Date Principal Balances of
such Mortgage Loans, and all other related Transferred Property,
shall be sold by the Seller and purchased by the Purchaser on the
Closing Date. Additional Balances and the related Transferred
Property
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arising after the Cut-Off Date through and including the date
immediately preceding the commencement of the Rapid Amortization
Period shall be sold by the Seller and purchased by the Purchaser
on the later of the Closing Date and the date of creation of such
Additional Balance.
(c) In
connection with the conveyance by the Seller of the Mortgage Loans,
the Seller further agrees, at its own expense, on or prior to the
Closing Date with respect to the Cut-Off Date Principal Balances of
the Mortgage Loans, to indicate in its books and records that the
Mortgage Loans have been sold to the Purchaser pursuant to this
Agreement, and to deliver to the Purchaser true and complete lists
of all of the Mortgage Loans specifying for each Mortgage Loan the
information contained in the Mortgage Loan Schedule. The Mortgage
Loan Schedule shall be marked as Exhibit 1 to this Agreement and is
hereby incorporated into and made a part of this
Agreement.
(d) In
connection with the conveyance by the Seller of the Mortgage Loans,
the Seller shall on behalf of the Purchaser deliver to, and deposit
with the Servicer, at least five (5) Business Days before the
Closing Date, with respect to (i) below, or within 90 days of the
Closing Date with respect to (ii) through (v) below, the following
documents or instruments with respect to each Mortgage
Loan:
(i) the original Loan Agreement endorsed or assigned without
recourse in blank (which endorsement shall contain either an
original signature or a facsimile signature of an authorized
officer of the Seller and which assignment may be included in one
or more blanket assignments if permitted by applicable law) or,
with respect to any Mortgage Loan as to which the original Loan
Agreement has been permanently lost or destroyed and has not been
replaced, a Lost Note Affidavit;
(ii) the original Mortgage with evidence of recording thereon, or,
if the original Mortgage has not yet been returned from the public
recording office, a copy of the original Mortgage certified by the
Seller that such Mortgage has been sent for recording, or a county
certified copy of such Mortgage in the event the recording office
keeps the original or if the original is lost;
(iii) Assignments of Mortgage (which may be included in one or more
blanket assignments if permitted by applicable law) in recordable
form from the Seller to "JPMorgan Chase Bank, as Indenture Trustee
under that certain Indenture dated as of December 19, 2002, for
Wachovia Asset Securitization, Inc. 2002-HE2 Trust";
(iv) originals of any intervening assignments of the Mortgage from
the originator to the Seller, with evidence of recording thereon,
or, if the original of any such intervening assignment has not yet
been returned from the public recording office, a copy of such
original intervening assignment certified by the Seller that such
original intervening assignment has been sent for recording;
and
(v) a true and correct copy of each assumption, modification,
consolidation or substitution agreement, if any, relating to such
Mortgage Loan;
Within 90 days
following delivery of the Mortgage Files to the Servicer pursuant
to the preceding paragraph, the Servicer shall review the Mortgage
Files and if a material defect in any Mortgage File is discovered
which may materially and adversely affect the value of the
related
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Mortgage Loan, or the interests of the Indenture Trustee (as
pledgee of the Mortgage Loans), the Noteholders or the
Certificateholders, including the Seller’s failure to deliver
any document required to be delivered to the Servicer on behalf of
the Indenture Trustee ( provided that a Mortgage File will
not be deemed to contain a defect for an unrecorded assignment
under clause (iv) above if the Seller has submitted such assignment
for recording and satisfied the terms of clause (iv) above), the
Seller shall cure such defect, repurchase the related Mortgage Loan
at the Repurchase Price or substitute an Eligible Substitute Loan
therefor upon the same terms and conditions set forth in
Section 3.1 hereof for breaches of representations and
warranties as to the Mortgage Loans.
The Seller on
behalf of the Purchaser will deliver the original Loan Agreements
to the Servicer, endorsed or assigned in blank, to effect the
transfer to the Purchaser of the Loan Agreements and all related
Mortgages and other loan documents. Concurrently herewith, the
Purchaser has contracted to sell the Mortgage Loans to the Issuer,
and the Issuer, in turn, has Granted its right, title and interest
in the Mortgage Loans and other Transferred Property constituting
the Trust Estate to the Indenture Trustee to secure payments on the
Notes. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording of
multiple assignment documents, the Seller may execute one or more
assignments of mortgages naming the Indenture Trustee as assignee.
Notwithstanding the fact that such assignments of mortgages name
the Indenture Trustee as assignee, the parties hereto acknowledge
and agree that the Mortgage Loans shall for all purposes be deemed
to have been transferred from the Seller to the Purchaser, from the
Purchaser to the Issuer, and from the Issuer to the Indenture
Trustee.
In instances
where an original Mortgage or any original intervening assignment
of Mortgage was not, in accordance with clauses (ii) or (iv) above,
delivered by the Seller to the Servicer, as provided above, the
Seller will deliver or cause to be delivered the originals or
certified copies of such documents to the Servicer promptly upon
receipt thereof.
Upon sale of
the Mortgage Loans, the ownership of each related Loan Agreement
(subject to the proviso in Section 2.1(a)), each related
Mortgage and the contents of the related Mortgage File shall be
vested in the Purchaser and the ownership of all records and
documents with respect to the Mortgage Loans that are prepared by
or that come into the possession of the Seller, as the seller of
the Mortgage Loans hereunder, or by the Servicer under the
Servicing Agreement shall immediately vest in the Purchaser, and
shall be retained and maintained in trust by the Servicer at the
will of the Purchaser, in such custodial capacity only;
provided , however , that if Wachovia is no longer
the Servicer under the Servicing Agreement, any records and
documents that come into the possession of the Seller shall be
promptly delivered to the Servicer. The Seller’s records will
accurately reflect the sale of the Mortgage Loans by it to the
Purchaser.
The Purchaser
hereby acknowledges its acceptance of all right, title and interest
to the property conveyed to it pursuant to this
Section 2.1.
Section 2.2
[Reserved] .
Section 2.3
Payment of Purchase Price .
(a) 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
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an amount equal to one-hundred percent (100%) of the related
the Cut-Off Date Principal Balances. In the case of each Additional
Balance and the related Transferred Property sold hereunder created
on or after the Cut-Off Date and prior to the commencement of the
Rapid Amortization Period, the Purchase Price thereof shall be 100%
of the principal amount of the related Draw under the related Loan
Agreement on the later of the Closing Date and the date of the
creation of such Additional Balance, adjusted to reflect such
factors as the Seller and the Purchaser mutually agree will result
in a purchase price determined to be the fair market value of such
Additional Balance and the related Transferred Property.
(b) In
consideration of the sale of the Mortgage Loans and the related
Transferred Property by the Seller to the Purchaser on the Closing
Date, the Purchaser shall pay to the Seller on the Closing Date by
wire transfer of immediately available funds to a bank account
designated by the Seller, the amount specified above in paragraph
(a) for the Mortgage Loans and the related Transferred
Property.
(c)
[Reserved]
(d) With
respect to each Additional Balance transferred hereunder with
respect to any Mortgage Loan, the Purchaser shall pay or cause to
be paid to the Seller or its designee the Purchase Price specified
above for such Additional Balance and the related Transferred
Property in cash on the Payment Date in the calendar month
immediately following the calendar month in which such Additional
Balance was created.
(e) The Seller
shall have no obligation to sell any Transferred Property to the
Purchaser if the Seller is not paid the purchase price for such
Transferred Property as provided herein.
Section 2.4.
Allocation . Except with respect to Liquidation Loss
Amounts, the Seller, the Servicer, and the Purchaser agree that all
collections on the Mortgage Loans will be allocated and applied as
provided by the terms of the related Loan Agreements or by
applicable law. Except with respect to Liquidation Loss Amounts, if
the Loan Agreement or applicable law does not specify a method of
allocation and application for particular collections, such
collections shall be allocated and applied (i) first to interest,
pro rata (based on the amounts coming due on such date) among the
amounts coming due on such date) and (ii) then to principal, in the
order of the dates on which such amounts for principal were first
incurred. If, as a result of the provisions of this
Section 2.4, collections are allocated to Excluded Amounts,
such collections shall not be property of the Purchaser or its
assignees and shall be paid by the Servicer to the Seller as
provided in Section 2.5. Liquidation Loss Amounts shall be
allocated as provided in the definition of Excluded
Amounts.
Section 2.5.
Draws During Rapid Amortization Period . During the Rapid
Amortization Period, any Excluded Amounts shall not be Additional
Balances, and the ownership of such Excluded Amounts shall be
retained by the Seller except as provided herein. Payments and
collections allocable pursuant to Section 2.4 to an Excluded
Amount shall not be deposited into the Custodial Account, the
Distribution Account or the Note Payment Account, and shall be
distributed by the Servicer to the Seller no less frequently than
monthly in accordance with reasonable instructions provided by the
Seller.
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Section 2.6.
Security Interest . (a) The parties hereto intend that the
transactions set forth herein each constitute a sale by the Seller
to the Purchaser of all the Seller’s right, title and
interest in and to the Mortgage Loans and the other Transferred
Property, including for accounting purposes, and not a secured
borrowing. In the event the transactions set forth herein are
deemed not to be a sale, the Seller hereby grants to the Purchaser
a security interest in the Transferred Property to secure all of
the Seller’s obligations hereunder, and this Agreement shall
and hereby does constitute a security agreement under applicable
law. The Seller agrees to take or cause to be taken such actions
and to execute such documents, including without limitation the
authorization and filing of any continuation statements with
respect to the UCC financing statements filed with respect to the
Mortgage Loans by the Purchaser on the Closing Date, if any, and
any amendments thereto required to reflect a change in the name or
corporate structure of the Seller or the filing of any additional
UCC financing statements due to the change in the principal office
or jurisdiction of organization of the Seller as are necessary to
perfect and protect the Purchaser’s interests in the
Transferred Property. The Seller shall file any such continuation
statements or amendments on a timely basis.
(b) To the
extent that the Seller retains any interest in the Transferred
Property, the Seller hereby grants to the Indenture Trustee for the
benefit of the Noteholders a security
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