WACHOVIA MORTGAGE LOAN TRUST, LLC,
as Purchaser,
and
AMERICAN MORTGAGE NETWORK, INC.,
as Seller
_______________________________________________
MORTGAGE LOAN PURCHASE AGREEMENT
_______________________________________________
Dated as of December 27, 2006
TABLE OF CONTENTS
Page
SECTION 1.
Definitions................................................................................1
SECTION 2.
Purchase and Sale of the Mortgage
Loans....................................................5
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....................................................8
SECTION 7.
Representations and Warranties of Seller Concerning the Mortgage
Loans.....................9
SECTION 8.
Representations and Warranties Concerning the
Seller......................................13
SECTION 9.
Representations and Warranties Concerning the
Purchaser...................................14
SECTION 10.
Conditions to
Closing.....................................................................15
SECTION 11.
Notices...................................................................................17
SECTION 12.
Assignment by
Purchaser...................................................................17
SECTION 13.
Representations, Warranties and Agreements to Survive
Delivery............................17
SECTION 14.
Severability..............................................................................17
SECTION 15.
Counterparts..............................................................................18
SECTION 16.
Amendment.................................................................................18
SECTION 17.
GOVERNING
LAW.............................................................................18
SECTION 18.
Further
Assurances........................................................................18
SECTION 19.
Successors and
Assigns....................................................................18
SECTION 20.
Maintain Rights in
Effect.................................................................18
SECTION 21.
Entire
Agreement..........................................................................18
SECTION 22.
No
Partnership............................................................................18
SECTION 23.
Enforcement of Representations and Warranties regarding the
Mortgage Loans................18
i
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® Glossary, Version 5.7 Revised, Appendix E
Schedule A
Mortgage Loan Schedule
ii
MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE
AGREEMENT,
dated as of December 27, 2006, as amended and supplemented by
any and all amendments hereto (collectively,
the "Agreement"),
by and between AMERICAN MORTGAGE NETWORK,
INC., a
Delaware
corporation (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 fully
amortizing,
hybrid,
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
December
27, 2006 (the
"Pooling
and
Servicing
Agreement"),
among the
Purchaser,
as
depositor,
National City
Mortgage Co. and Wells Fargo Bank,
N.A., as
servicers,
and U.S.
Bank
National
Association,
as
trustee, supplemental interest trust trustee and custodian.
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: December 27, 2006.
Co-op Shares:
Shares issued by private non-profit housing corporations.
Custodian: The Custodian under the Pooling and Servicing Agreement.
Cut-off Date: December 1, 2006.
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.
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 from the mortgagee or assignee of record
either
(A) in blank or (B) to "U.S. Bank National
Association,
as trustee for the holders of the Wachovia
Mortgage Loan
Trust,
LLC
Asset-Backed
Certificates,
Series
2006-ALT1
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 recorded
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:
2
(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.
3
Pooling and Servicing
Agreement:
The meaning set forth in the preambles hereto.
All references
herein to the Pooling and Servicing
Agreement are to the Pooling and Servicing
Agreement as in effect on the date
hereof.
Prospectus
Supplement:
The supplement,
dated December 19, 2006, to the
Prospectus,
dated May
23, 2006, 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),
by 2:00 p.m. Eastern time on the third 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
4
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 $12,537,445.20
(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 and the other Transferred Property, (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
authorize and 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 either (A)
deliver
(if the Seller is not the
mortgagee
of record) or (B)
5
execute (if the Seller is the
mortgagee
of record) one or more
assignments
of
mortgages in blank or naming the
Trustee as assignee,
and may either (A) deliver (if the Mortgage
Notes are not endorsed or payable to the Seller)
or (B) endorse (if the
Mortgage
Notes are
endorsed or payable to the Seller) 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.
The
Seller
further
agrees,
at its own
expense,
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
the Mortgage
Loan
Schedule.
The Mortgage
Loan
Schedule is hereby
incorporated into and made a part of this Agreement.
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 on or 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 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
6
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
7
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.
8
(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.
Representations
and Warranties of Seller
Concerning the Mortgage
Loans.
The
Seller
hereby
represents
and warrants to the
Purchaser as of the Closing Date, or such other date prior thereto
as may be specified below, with respect to each Mortgage Loan:
(i)
the
information
set forth in the Mortgage Loan Schedule
hereto is true and correct in
all material
respects and all
information
provided by the Seller to the Purchaser
regarding the Mortgage Loans,
including the Mortgage Loan level detail, is true and correct in
all material respects;
(ii)
immediately
prior to the transfer to the
Purchaser,
the Seller was the sole owner and
holder of each
Mortgage
and
Mortgage
Note
relating
to the
Mortgage
Loans and is
conveying
the same to the
Purchaser free and clear of any and all liens, claims,
encumbrances,
participation interests,
equities, pledges,
charges or
security
interests
of any nature
and the Seller has full right and
authority
to sell or assign the
same pursuant to this Agreement;
(iii)
each Mortgage
Loan at the time it was made
complied in all material
respects with all
applicable laws and regulations,
including,
without limitation,
usury, equal credit opportunity,
disclosure and
recording laws and all
applicable
anti-predatory,
abusive and fair lending laws; and each Mortgage Loan,
during
the time period that it was serviced by the Seller,
was serviced in all material
respects in accordance
with all
applicable laws and regulations,
including,
without limitation,
usury, equal credit opportunity,
disclosure and
recording laws and all
anti-predatory,
abusive and fair lending laws and the terms of the related
Mortgage Note,
the Mortgage and other loan documents;
(iv)
there is no monetary
default
existing under any Mortgage or the related
Mortgage Note
and there is no material
event which,
with the passage of time or with notice and the
expiration of any grace or
cure period,
would constitute a default,
breach or event of
acceleration;
and neither the Seller nor any of its
affiliates has taken any action to waive any default,
breach or event of
acceleration;
no foreclosure
action is
threatened or has been commenced with respect to the Mortgage Loan;
9
(v)
the
terms of the
Mortgage
Note and the
Mortgage
have
not
been
impaired,
waived,
altered or modified
in any
respect,
except by written
instruments,
(i) if required by law in the
jurisdiction
where the Mortgaged Property is located, or (ii) to protect the
interests of the Purchaser or its assignees;
(vi)
no
selection
procedure
reasonably
believed
by
the
Seller
to be
adverse
to
the
interests of the Purchaser or its assignees was utilized in
selecting the Mortgage Loans;
(vii)
each
Mortgage
is a valid and
enforceable
first
lien on the
property
securing
the
related
Mortgage Note and each Mortgaged
Property is owned by the Mortgagor in fee simple (except with
respect to
common areas in the case of
condominiums,
PUDs and de minimis
PUDs) or by
leasehold
for a term longer than the
term of the related
Mortgage,
subject only to (i) the lien of current real property taxes and
assessments,
(ii)
covenants,
conditions
and
restrictions,
rights of way,
easements
and other matters of public record as of the
date of recording of such Mortgage,
such exceptions being acceptable to mortgage
lending
institutions
generally
or specifically
reflected in the appraisal
obtained in connection
with the
origination of the related
Mortgage
Loan or referred to in the lender's title
insurance
policy
delivered to the
originator of the related
Mortgage
Loan and (iii) other
matters to which like properties are commonly subject which do not
materially
interfere with
the benefits of the security intended to be provided by such
Mortgage,
except as enforceability
may be limited by
bankruptcy, insolvency, liquidation,
receivership,
moratorium, reorganization or other similar laws affecting the
enforcement
of the rights of creditors and by general
principles of equity,
whether in a proceeding in equity or
at law;
(viii)
there
is no
mechanics'
lien or
claim
for
work,
labor or
material
affecting
the
premises
subject to any
Mortgage
which is or may be a lien prior to, or equal
with,
the lien of such
Mortgage
except those which are insured against by the title insurance
policy referred to in (xiii) below;
(ix)
as of the Cut-off Date, to the best of the Seller's
knowledge,
there was no delinquent
tax or assessment
lien against the property
subject to any Mortgage,
except where such lien was being
contested
in good faith and a stay had been granted against levying on the
property;
(x)
there is no valid
offset,
defense or
counterclaim
to any Mortgage
Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid
principal and interest on such Mortgage Note;
(xi)
except
to the
extent
insurance
is in
place
which
will
cover
such
damage,
each
Mortgaged
Property
is free of
material
damage
and is in good
repair
and there is no
proceeding
pending
or
threatened for the total or partial condemnation of any Mortgaged
Property;
(xii)
to the best of the Seller's
knowledge,
the
Mortgaged
Property
and all
improvements
thereon comply with all requirements of any applicable zoning and
subdivision laws and ordinances;
10
(xiii)
a
lender's
title
insurance
policy
(on an ALTA or CLTA
form)
or
binder,
or other
assurance of title
customary
in the
relevant
jurisdiction
therefor in a form
acceptable
to Fannie Mae or the
Federal Home Loan Mortgage
Corporation,
was issued on the date that each Mortgage Loan was
originated by a title
insurance
company which, to the best of the Seller's
knowledge,
was qualified to do business in the jurisdiction
where the related
Mortgaged
Property is located,
insuring
the Seller and its
successors
and assigns
that the
Mortgage
is a first
priority
lien on the related
Mortgaged
Property in the
original
principal
amount of the
Mortgage
Loan.
The Seller is the sole
insured
under such
lender's
title
insurance
policy,
and such policy,
binder or
assurance
is valid and
remains in full force and effect,
and each such
policy,
binder or
assurance
shall contain all applicable endorsements including a negative
amortization endorsement, if applicable;
(xiv)
as of the
Closing
Date,
the
improvements
on
each
Mortgaged
Property
securing
a
Mortgage Loan are insured (by an insurer
which is acceptable to the Seller)
against loss by fire and such hazards
as are covered under a standard
extended
coverage
endorsement
in the locale in which the Mortgaged
Property is
located,
in an
amount
which is not less than the
lesser
of the
maximum
insurable
value of the
improvements
securing such
Mortgage Loan or the unpaid
principal
balance of the Mortgage
Loan,
but in no event in an amount
less than an amount that is required to prevent the Mortgagor from
being deemed to be a co-insurer
thereunder;
if
the improvement on the Mortgaged
Property is a condominium
unit, it is included under the coverage
afforded by a
blanket policy for the condominium
project;
if upon origination of the related Mortgage Loan, the improvements
on
the Mortgaged
Property were in an area identified as a federally
designated
flood area, a flood insurance policy
is in effect in an amount
representing
coverage
not less than the least of (i) the unpaid
principal
balance of
the Mortgage
Loan,
(ii) the
restorable
cost of
improvements
located on such
Mortgaged
Property or (iii) the
maximum
coverage
available
under federal law; and each Mortgage
obligates the Mortgagor
thereunder to maintain
the insurance referred to above at the Mortgagor's cost and
expense;
(xv)
each Mortgage Loan
constitutes a "qualified
mortgage" under Section
860G(a)(3)(A)
of
the Internal
Revenue
Code and Treasury
Regulation
Section
1.860G-2(a)(1),
(2),
(4),
(5),
(6), (7) and (9),
without reliance on the provisions of Treasury
Regu
