Exhibit 4.2
Mortgage Loan Purchase Agreement
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Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of February 26, 2002 between ABN AMRO Mortgage Group, Inc. (the "Seller") and
ABN AMRO Mortgage Corporation (the "Purchaser").
Subject to the terms and conditions of this Agreement, the
Seller agrees to sell and the Purchaser agrees to purchase certain mortgage
loans (the "Mortgage Loans") as described herein and as identified on the
Mortgage Loan Schedule defined in Section 2 hereof. The Mortgage Loans will be
purchased on a servicing released basis.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
1. Purchase and Sale of the Mortgage Loans.
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A. Pursuant to the terms hereof and upon satisfaction of the
conditions set forth herein, the Seller agrees to sell and the Purchaser
agrees to purchase, Mortgage Loans having the general characteristics set
forth in this Agreement and specifically identified on the Mortgage Loan
Schedule, for the Purchase Price set forth below in Section 3(a) hereof and
having an aggregate principal balance on and as of the date of such Mortgage
Loan Schedule (the "Cut-Off Date") of approximately $158,879,415.71 after
deduction of principal payments due on or before the Cut-Off Date (which
amount may vary plus or minus 5% thereof), or such other aggregate principal
balance as agreed by the Purchaser and the Seller as evidenced by the actual
aggregate principal balance of the Mortgage Loans accepted by the Purchaser on
the Closing Date (as defined below).
B. Subject to mutual agreement between the Purchaser and the Seller,
the closing for the purchase and sale of the Mortgage Loans shall take place
on February 26, 2002 (the "Closing Date") at the office of Purchaser's counsel
in Chicago, Illinois or such other place as the parties shall agree.
2. Mortgage Loan Schedule. Attached to this Agreement as Schedule 1 is a
listing of the Mortgage Loans evidenced by promissory notes, mortgage notes or
other evidence of indebtedness (the "Mortgage Notes") evidencing the
indebtedness of an obligor (the "Mortgagor") under the mortgages, deeds of
trust or other instruments securing a Mortgage Loan (the "Mortgages") to be
purchased by and delivered to the Purchaser on the Closing Date (as such may
be amended prior to the Closing Date by mutual agreement of the parties) (the
"Mortgage Loan Schedule"). The "Mortgage Loan Schedule" as of the Closing Date
shall refer to the Mortgage Loan Schedule as delivered on the Cut-Off Date
related to such Mortgage Loans to be purchased by or on behalf of the
Purchaser pursuant to the terms of this Agreement. The Mortgage Loan Schedule
shall contain as to each Mortgage Loan listed thereon, at a minimum, the
Mortgage Loan information indicated on Schedule 2 hereto.
3. Purchase Price.
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A. In exchange for the Mortgage Loans, on the Closing Date, the
Purchaser shall transfer to the Seller by wire transfer in immediately
available funds the purchase price (the "Purchase Price") which is equal to
the principal balance thereof as of the Cut-Off Date plus any accrued and
unpaid interest thereon to such Cut-Off Date.
B. The Purchaser shall be entitled to all scheduled payments of
principal and interest due with respect to the Mortgage Loans after the
Cut-Off Date, and all other recoveries of principal and interest collected
after the Cut-Off Date (other than in respect of principal and interest on the
Mortgage Loans due on or before the Cut-Off Date). The Seller shall be
entitled to all scheduled payments of principal and interest due with respect
to the Mortgage Loans on or before the Cut-Off Date, and all other recoveries
of principal and interest collected on or before the Cut-Off Date (other than
in respect of principal and interest on the Mortgage Loans due after the
Cut-Off Date). The principal balance of each Mortgage Loan as of the Cut-Off
Date is determined after deduction of payments of principal due on or before
the Cut-Off Date whether or not collected. Therefore, payments of scheduled
principal and interest prepaid for a date due following the Cut-Off Date shall
not be deducted from the principal balance as of the Cut-Off Date but such
prepaid amounts shall belong to and be promptly remitted to the Purchaser.
4. Examination of Mortgage Files.
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Prior to the Closing Date, the Seller will have made files for each
Mortgage Loan, that consist at least of the documents listed on Schedule 3
attached hereto (with respect to each Mortgage Loan, a "Mortgage File", and
collectively, the "Mortgage Files"), available to the Purchaser or its agents,
for examination at the Seller's offices or such other location as shall
otherwise be agreed upon by the Purchaser and the Seller. The Purchaser may
purchase all or part of the Mortgage Loans with or without conducting any
partial or complete examination. The fact that the Purchaser or its agents
have conducted or have failed to conduct any partial or complete examination
of the Mortgage Files shall not affect the Purchaser's rights under this
Agreement, including, but not limited to, the rights to demand repurchase,
substitution or other relief as provided in this Agreement.
5. Transfer of Mortgage Loans; Possession of Mortgage Files.
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A. On the Closing Date, subject to the satisfaction of the terms and
conditions hereof, the Seller shall sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
of this Agreement, all right, title and interest of the Seller in and to the
Mortgage Loans and all proceeds thereof, wherever located, including without
limitation, all amounts in respect of principal and interest received or
receivable with respect to Mortgage Loan payments due after the Cut-Off Date
(and including scheduled payments of principal and interest due after the
Cut-Off Date but received by the Seller on or before the Cut-Off Date, but not
including payments of principal and interest due on the Mortgage Loans on or
before the Cut-Off Date), together with the proceeds of any related mortgage
insurance policies. Such transfer shall be made
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directly to the Purchaser in accordance with the letter delivered to the
Seller by the Purchaser attached hereto as Exhibit A (the "Instruction
Letter"). The Seller's records will accurately reflect the sale of each
Mortgage Loan to the Purchaser.
B. The ownership of each Mortgage Loan and the related Mortgage Note,
the Mortgage and the contents of the related Mortgage File shall be, upon
satisfaction of subsection 5(a) hereof, vested in the Purchaser and the
ownership of all records and documents with respect to such Mortgage Loan
prepared by or which come into the possession of the Seller shall immediately
vest in the Purchaser and shall be retained and maintained by the Seller at
the will and for the benefit of the Purchaser in a custodial capacity only.
The Seller shall deliver to the Purchaser or its agent in accordance with the
instructions set forth in Exhibit A, simultaneously with the execution and
delivery of this Agreement or prior to the Closing Date, all of the documents
pertaining to each Mortgage Loan.
C. The transfer of the Mortgage Loans as described herein shall be
absolute and is intended by the parties to be a sale. In the event that a
court deems the conveyance set forth herein not to constitute a sale, the
Seller shall have granted to the Purchaser and the Trustee (as defined in the
Pooling and Servicing Agreement, dated as of February 1, 2002 (the "Pooling
and Servicing Agreement"), among the Purchaser, as depositor, ABN AMRO
Mortgage Group, Inc., as servicer, and JPMorgan Chase Bank, as trustee) a
first priority security interest in the Mortgage Loans and in the proceeds
thereof of any kind or nature whatsoever, and in the proceeds of any related
insurance policies, subject to the satisfaction or waiver of the conditions
set forth in Section 11 hereof, and shall take, or shall cause to have been
taken, all steps necessary prior to the Closing Date to perfect such security
interest in the Purchaser.
6. Books and Records.
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On the Closing Date, following the sale of the Mortgage Loans to the
Purchaser, title to each Mortgage and the related Mortgage Note shall be
transferred to the Purchaser or its assignee in accordance with this
Agreement. All rights arising out of the Mortgage Loans after the Cut-Off Date
including, but not limited to, any and all funds received on or in connection
with a Mortgage Loan and due after the Cut-Off Date shall be received and held
by the Seller in a custodial capacity for the benefit of the Purchaser or its
assignee as the owner of the Mortgage Loans in accordance herewith and shall
be delivered or caused to be delivered by the Seller to the Purchaser or its
assignee on or immediately following the Closing Date. Any funds received by
the Seller, the Purchaser or the Servicer (as defined in the Pooling and
Servicing Agreement) after the Cut-Off Date but due prior to the Cut-Off Date
shall remain the property of the Seller and shall be promptly remitted to the
Seller.
7. Further Actions; Financing Statements.
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A. In furtherance of the provisions of Section 5(c) hereof, the
Seller agrees to take or cause to be taken such further actions to execute,
deliver and file or cause to be executed, delivered and filed, such further
documents and instruments (including, without limitation, any UCC financing
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statements) as may be necessary, or as the Purchaser may reasonably request,
in order to perfect and maintain the security interest created pursuant to
said section and to otherwise fully effectuate the purposes, terms and
conditions of this Agreement, and the Purchaser shall cooperate in any such
action.
B. The Seller shall: (i) promptly execute, deliver, and file any
financing statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such security interest as may
be necessary to enable the Purchaser to perfect or to maintain the perfection
of such security interest, each in form and substance satisfactory to the
Purchaser; and the Seller hereby grants to the Purchaser, subject to the
satisfaction or waiver of the conditions set forth in Section 11 hereof, the
right, at the Purchaser's option, to file any or all such financing
statements, amendments, continuation statements, assignments, certificates and
other documents pursuant to the UCC and otherwise without its signature and
hereby irrevocably appoints the Purchaser, subject to the satisfaction or
waiver of the conditions set forth in Section 11 hereof, as its
attorney-in-fact to execute, deliver and file any such financing statements,
amendments, continuation statements, assignments, certificates and other
documents in the Seller's name and to perform all other acts which the
Purchaser deems appropriate to perfect or to maintain the perfection of the
security interest; and (ii) notify the Purchaser within five (5) days after
the occurrence of any of the following: (A) any change in the Seller's
corporate name or any trade name; (B) any change in the Seller's location of
its chief executive office or principal place of business; and (C) any merger
or consolidation or other change in Seller's identity or material change in
its corporate structure.
8. Representations, Warranties and Agreements of Seller.
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A. The Seller hereby represents and warrants to the Purchaser as of
the Closing Date (or such other date as is specified in the related
representation or warranty) as follows:
i. The Seller has been duly created and is validly existing
as a corporation under the laws of the State of Delaware;
ii. The execution and delivery of this Agreement by the
Seller and its performance of and compliance with the terms of this Agreement
will not violate the Seller's charter or by-laws or will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Seller is a party or by which
the Seller or to which any of the property or assets of the Seller is subject;
iii. This Agreement, assuming due authorization, execution
and delivery by the Purchaser, constitutes a valid and legally binding
obligation of the Seller, enforceable against the Seller in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles, regardless of
whether such enforcement is considered in a proceeding in equity or at law;
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iv. The Seller is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or other)
or operations of the Seller or its properties or might have consequences that
would affect its performance hereunder;
v. No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which would prohibit its entering
into this Agreement or performing its obligations under this Agreement;
vi. The Seller is an approved conventional seller/servicer
for FNMA or FHLMC in good standing;
vii. The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Seller pursuant to this Agreement is not subject to the bulk transfer or
any similar statutory provisions in effect in the State of Michigan;
viii. With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage
Loan Schedule appearing as an exhibit to this Agreement is true and correct in
all material respects at the date or dates respecting which such information
is furnished as specified therein;
(b) the Seller is the sole owner and holder of each
Mortgage Loan free and clear of all liens, pledges, charges or security
interests of any nature and has full right and authority, subject to no
interest or participation of, or agreement with, any other party, to sell and
assign the same;
(c) no payment of principal of or interest on or in
respect of any Mortgage Loan is 30 days or more past due from the Due Date of
such payment;
(d) to the best of the Seller's knowledge, as of the
date of the transfer of the Mortgage Loans to the Purchaser, there is no valid
offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of
the Seller's knowledge, threatened for the total or partial condemnation of
any of the real property, together with any improvements thereto, securing the
indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged
Property") and the Mortgaged Property is free of material damage and is in
good repair and neither the Mortgaged Property nor any improvement located on
or being part of the Mortgaged Property is in violation of any applicable
zoning law or regulation;
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(f) that each Mortgage Loan complies in all material
respects with applicable state or federal laws, regulations and other
requirements, pertaining to usury, equal credit opportunity and disclosure
laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all
insurance premiums previously due and owing with respect to each Mortgaged
Property have been paid and all taxes and governmental assessments previously
due and owing, and which may become a lien against the Mortgaged Property,
with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage
are genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in accordance with its terms except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law); 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 the
Mortgagor;
(i) that each Mortgage is a valid and enforceable
first lien on the property securing the related Mortgage Note, and that each
Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other
form of policy or insurance generally acceptable to FNMA or FHLMC, issued by,
and is a valid and binding obligation of, a title insurer acceptable to FNMA
or FHLMC insuring the originator, its successor and assigns, as to the lien of
the Mortgage in the original principal amount of the Mortgage Loan subject
only to (a) the lien of current real property taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of recording of
such Mortgage acceptable to mortgage lending institutions in the area in which
the Mortgaged Property is located or specifically referred to in the appraisal
performed in connection with the origination of the related Mortgage Loan and
(c) such other matters to which like properties are commonly subject which do
not individually, or in the aggregate, materially interfere with the benefits
of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any
Mortgage has, except as the Mortgage File may reflect, modified the Mortgage
in any material respect; satisfied, cancelled or subordinated such Mortgage in
whole or in part; released such Mortgaged Property in whole or in part from
the lien of the Mortgage; or executed any instrument of release, cancellation,
modification or satisfaction;
(k) that each Mortgaged Property consists of a fee
simple estate or condominium form of ownership in real property;
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(l) the condominium projects that include the
condominiums that are the subject of any condominium loan are generally
acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been
commenced (except for the filing of any notice of default) with respect to the
Mortgage Loan; and except for payment delinquencies not in excess of 30 days,
to the best of the Seller's knowledge, there is no default, breach, violation
or event of acceleration existing under the Mortgage or the related Mortgage
Note and no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration; and the Seller has not waived any default,
breach, violation or event of acceleration;
(n) that each Mortgage Loan was originated on FNMA or
FHLMC uniform instruments for the state in which the Mortgaged Property is
located;
(o) that based upon a representation by each Mortgagor
at the time of origination or assumption of the applicable Mortgage Loan,
94.15% of the Mortgage Loans measured by principal balance were to be secured
by primary residences and no more than 5.35% of the Mortgage Loans measured by
principal balance were to be secured by second homes;
(p) that an appraisal of each Mortgaged Property was
conducted at the time of origination of the related Mortgage Loan, and that
each such appraisal was conducted in accordance with FNMA or FHLMC criteria,
on FNMA or FHLMC forms and comparables on at least three properties were
obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at
origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner
to adversely affect the interests of the Purchaser and the Seller knows of no
conditions which reasonably would cause it to expect any Mortgage Loan to
become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated
directly by or closed in the name of either: (i) a savings and loan
association, savings bank, commercial bank, credit union, insurance company,
or similar institution which is supervised and examined by a federal or state
authority or (ii) a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act or
(B) originated or underwritten by an entity employing underwriting standards
consistent with the underwriting standards of an institution as described in
subclause (A)(i) or (A)(ii) above;
(t) each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G of the Internal Revenue Code of 1986,
without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
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(u) each Mortgage Loan that has a Loan-to-Value Ratio
at origination in excess of 80% is covered by a primary mortgage insurance
policy; and
(v) that no Mortgage Loan permits negative
amortization or the deferral of accrued interest.
It is understood and agreed that the representations and
warranties set forth in this Section 8 shall survive the sale of the
Mortgage Loans to the Purchaser and shall inure to the benefit of the
Purchaser, notwithstanding any restrictive or qualified endorsement
on any Mortgage Note (or lost note affidavit and indemnity) or
assignment of Mortgage or the examination of any Mortgage File.
Upon discovery by either the Seller, the Purchaser or its
designees of a breach of any of the foregoing representations or
warranties of the Seller which materially and adversely affects (1)
the value of any of the Mortgage Loans actually delivered or (2) the
interests of the Purchaser therein, the party discovering such breach
shall give prompt written notice to the other. Within 90 (ninety)
days of its discovery or its receipt of notice of any such breach of
a representation or warranty, the Seller shall, with respect to the
Mortgage Loan(s) to which such breach relates, either (i) cure such
breach in all material respects (except for a breach of that portion
of the representation and warranty relating to any casualty from the
presence of hazardous waste or hazardous substances), (ii) repurchase
such Mortgage Loan or Mortgage Loans (or any property acquired in
respect thereof) from the Purchaser at the Purchase Price, as
adjusted for the then current principal balance or (iii) within the
90 (ninety)-day period following the Closing Date substitute another
mortgage loan for such Mortgage Loan. Such substitute mortgage loan
shall on the date of substitution, (a) have a principal balance not
in excess of the principal balance of the defective Mortgage Loan,
(b) be accruing interest at a rate of interest at least equal to that
of the defective Mortgage Loan, (c) have a remaining term to stated
maturity not greater than, and not more than two years less than,
that of the Mortgage Loan so substituted, (d) have an original
loan-to-value ratio not higher than that of the Mortgage Loan so
substituted and a current loan-to-value ratio not higher than that of
the Mortgage Loan so substituted, and (e) comply with all the
representations and warranties relating to Mortgage Loans set forth
herein, as of the date of substitution (such mortgage loan being
referred to herein as a "Qualifying Substitute Mortgage Loan").
Except as set forth in Section 12 hereof, it is understood and agreed
that the obligations of the Seller set forth in this Section 8 to
cure, substitute for or repurchase a defective Mortgage Loan
constitute the sole remedies of the Purchaser respecting a breach of
the foregoing representations and warranties.
The Purchaser, upon receipt by it of the full amount of the
Purchase Price as adjusted for the then current principal balance for
a Mortgage Loan that is repurchased, or upon receipt of the Mortgage
File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan
that is substituted or repurchased, shall release or cause to be
released and reassign to the Seller the related Mortgage File for the
Mortgage Loan that is substituted and shall execute
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and deliver such instruments of transfer or assignment, in each case
without recourse, representation, or warranty, as shall be necessary
to vest in the Seller or its designee or assignee title to any such
substituted Mortgage Loan released pursuant hereto, free and clear of
all security interests, liens and other encumbrances created by this
Agreement, which instruments shall be prepared by the Seller at its
expense and shall be reasonably acceptable to the Purchaser, and the
Purchaser shall have no further responsibility with respect to the
Mortgage File relating to such Mortgage Loan that is substituted.
Any cause of action against the Seller or relating to or
arising out of the breach of any representations and warranties made
in this Section 8 shall accrue as to any Mortgage Loan upon (i)
discovery of such breach by the Purchaser or notice thereof by the
Seller to the Purchaser, (ii) failure by the Seller to cure such
breach, repurchase such Mortgage Loan or substitute a Qualifying
Substitute Mortgage Loan as specified above, and (iii) demand upon
the Seller by the Purchaser for all amounts payable in respect of
such Mortgage Loan.
9. Representations, Warranties and Agreements of Purchaser.
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A. The Purchaser hereby represents and warrants to the Seller, as of
the date hereof (or such other date as is specified in the related
representation or warranty) as follows:
i. The Purchaser is a corporation duly formed and validly
existing under the laws of the State of Delaware;
ii. The execution and delivery of this Agreement by the
Purchaser and its performance of and compliance with the terms of this
Agreement will not violate the Purchaser's corporate charter or by-laws or
will not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the
Purchaser is a party or by which the Purchaser or to which any property or
assets of the Purchaser is subject;
iii. This Agreement, assuming due authorization, execution
and delivery by the Seller, constitutes a valid and legally binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
iv. The Purchaser is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which the Purchaser default
might have consequences that would materially and adversely affect the
condition (financial or other) or operations of the Purchaser or its
properties or might have consequences that would affect its performance
hereunder; and
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v. No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would prohibit
its entering into this Agreement or performing its obligations under this
Agreement;
10. Purchaser's Conditions to Closing. The obligations of the Purchaser under
this Agreement shall be subject to the satisfaction, on or prior to the
Closing Date, of the following conditions:
A. The obligations of the Seller required to be performed by it on or
prior to the Closing Date pursuant to the terms of this Agreement shall have
been duly performed and complied with and all of the representations and
warranties of the Seller under this Agreement shall be true and correct as of
the date hereof and as of the Closing Date, and no event shall have occurred
which, with notice or the passage of time, or both, would constitute a default
under this Agreement, and the Purchaser shall have received a certificate to
that effect signed by an Authorized Officer (as defined below) of the Seller.
B. The Purchaser or the Purchaser's document custodian shall have
received, or the Purchaser's attorney shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and
acceptable to the Purchaser, duly executed by all signatories other than the
Purchaser, as required pursuant to the respective terms thereof:
i. An assignment or assignments of the Mortgage Loans to the
Purchaser substantially in the form attached hereto as Exhibit B with such
changes as are required to adapt the assignment to the proper form in the
jurisdiction where the related Mortgage Property is located, and each original
Mortgage Note (or lost note affidavit and indemnity), duly endorsed originally
or by facsimile, without recourse, to the Purchaser, in each case in
accordance with the instructions set forth in Exhibit A attached hereto, which
assignment or assignments and Mortgage Note (or lost note affidavit and
indemnity) shall be delivered to and held by the Purchaser or its agent on
behalf of the Purchaser;
ii. The Mortgage Loan Schedule prepared by Purchaser dated
as of the related Closing Date and attached hereto;
iii. A certificate signed by an officer, which officer may
be either a senior vice president, a vice president, an assistant vice
president or assistant secretary (an "Authorized Officer"), dated as of the
Closing Date, substantially in the form attached hereto as Exhibit C, to the
parties hereto, and attached thereto copies of the charter and by-laws and a
Good Standing Certificate or a memorandum setting forth the verbal assurances
from the appropriate regulatory authorities with respect to the Seller will be
immediately forthcoming; and
iv. An opinion of Seller's counsel in substantially the form
attached hereto as Exhibit D.
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v. A security release certification, in a form acceptable to
the Purchaser, executed by the appropriate mortgagee or secured party, if any
of the Mortgage Loans have at any time been subject to any security interest,
pledge or hypothecation for the benefit of such person.
C. The Seller will furnish to the Purchaser such other certificates
of its officers or others and such other documents to evidence fulfillment of
the conditions set forth in this Agreement as the Purchaser and its attorney
may reasonably request.
11. Seller's Conditions to Closing. The obligations of the Seller under this
Agreement shall be subject to the satisfaction, on or prior to the Closing
Date, of the following conditions:
A. The obligations of the Purchaser required to be performed by it on
or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with and all of the representations and
warranties of the Purchaser under this Agreement shall be true and correct as
of the date hereof and as of the Closing Date, and no event shall have
occurred which, with notice or the passage of time, or both, would constitute
a default under this Agreement, and the Seller shall have received a
certificate to that effect signed by an Authorized Officer of the Purchaser;
B. The Seller shall have received, or the Seller's attorney shall
have received in escrow, a certificate signed by an Authorized Officer of the
Purchaser dated as of the Closing Date, in the form acceptable to the parties
hereto, and attached thereto the resolutions of the Purchaser authorizing the
transactions contemplated by this Agreement, together with copies of the
Articles of Association and by-laws as of a recent date with respect to the
Purchaser; and
C. The Purchaser will furnish to the Seller such other certificates
of its officers or others and such other documents to evidence fulfillment of
the conditions set forth in this Agreement as the Seller and its attorney may
reasonably request.
12. Indemnification.
A. The Seller agrees to indemnify and hold harmless the Purchaser
against any and all losses, claims, expenses, damages or liabilities to which
Purchaser may become subject, insofar as such losses, claims, expenses,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any representation or warranty made by the Seller in Section
8(a)(i) through Section 8(a)(vii) hereof on which Purchaser has relied, being,
or alleged to be, materially untrue or incorrect. This indemnity will be in
addition to any liability which the Seller may otherwise have.
B. The Purchaser agrees to indemnify and hold harmless the Seller
solely in its capacity as seller of the Mortgage Loans against any and all
losses, claims, expenses, damages or liabilities to which the Seller may
become subject, insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
representation or warranty made by the Purchaser in Section 9 hereof on which
the Seller has relied, being, or alleged to be, materially
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untrue or incorrect (notwithstanding the Purchaser's lack of knowledge with
respect to the substance of any representation or warranty to which Section 9
applies which is made to the best of the Purchaser's knowledge). This
indemnity will be in addition to any liability which the Purchaser may
otherwise have.
C. Promptly after receipt by either the Purchasers or the Seller of
notice of the commencement of any action or proceeding in any way relating to
or arising from this Agreement, such party will notify the other party of the
commencement thereof; but the omission so to notify the party from whom
indemnification is sought (the "Indemnifying Party") will not relieve the
Indemnifying Party from any liability which it may have to the party seeking
indemnification (the "Indemnified Party") except to the extent that the
Indemnifying Party is adversely affected by the lack of notice. In case any
such action is brought against the Indemnified Party, and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be
entitled to participate in the defense (with the consent of the Indemnified
Party which shall not be unreasonably withheld) of such action at the
Indemnifying Party's expense.
13. Notices. All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed, by registered
or certified mail, return receipt requested, or, if by other means, when
received by the other party. Notices to the Seller shall be directed to
InterFirst, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇ - Vice President with a copy to ABN AMRO Mortgage Group, Inc., ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ -
Assistant Secretary; and notices to the Purchaser shall be directed to ABN
AMRO Mortgage Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ - First Vice President - ABN AMRO
Mortgage Operations, with a copy to ABN AMRO North America, Inc. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇ - Associate
General Counsel; or such other addresses as may hereafter be furnished to the
other party by like notice.
14. Termination. This Agreement may be terminated (a) by the mutual consent of
the parties hereto, or (b) by the Purchaser if the conditions to the
Purchaser's obligations to closing set forth under Section 10 hereof are not
fulfilled as and when required to be fulfilled or (c) by the Seller if the
Purchaser's obligations under Section 11 hereof are not fulfilled as and when
required. In the event of a termination pursuant to Section 14(b), the Seller
agrees that it will pay the out-of-pocket fees and expenses of the Purchaser
in connection with the transactions contemplated by this Agreement and in the
event of a termination pursuant to Section 14(c), the Purchaser agrees that it
will pay the out-of-pocket fees and expenses of the Seller in connection with
the transactions contemplated by this Agreement.
15. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or in
certificates of officers of the Seller and the Purchaser submitted pursuant
hereto, shall remain operative and in full force and effect and shall survive
transfer and sale of the Mortgage Loans to the Purchaser.
-12-
16. Severability. If any provision of this Agreement shall be prohibited or
invalid under applicable law, the Agreement shall be ineffective only to such
extent, without invalidating the remainder of this Agreement.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but both of which together
shall constitute one and the same agreement.
18. Governing Law. This Agreement shall be deemed to have been made in the
State of New York and shall be interpreted in accordance with the laws of such
state without regard to the principles of conflicts of law of such state.
19. Further Assurances. The Seller and the Purchaser agree to execute and
deliver such instruments and take such actions as the other party may, from
time to time, reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement.
20. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the Seller and the Purchaser and their
permitted successors and assigns. The Seller acknowledges and agrees that the
Purchaser may assign its rights under this Agreement. Any person into which
the Seller may be merged or consolidated (or any person resulting from any
merger or consolidation involving the Seller), or any person succeeding to the
business of the Seller shall be considered the "successor" of the Seller
hereunder. Except as provided in the two preceding sentences, this Agreement
cannot be assigned, pledged or hypothecated by any party hereto without the
written consent of the other party to this Agreement. Notwithstanding anything
to the contrary in this Section 20, the parties hereto agree that the
Purchaser has the right to assign its rights and interest in, to and under
Section 8 hereof.
21. Amendments. No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced.
-13-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of
the date first above written.
ABN AMRO Mortgage Group, Inc.,
as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
ABN AMRO Mortgage Corporation,
as Purchaser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SCHEDULE 1
MORTGAGE LOAN SCHEDULE
----------------------
A copy of the Mortgage Loan Schedule is available upon Request.
SCHEDULE 2
MORTGAGE LOAN SCHEDULE INFORMATION
Each Mortgage Loan shall be identified by at least the following
details, among others, relating to each Mortgage Loan:
(i) the loan number of the Mortgage Loan and name of the related Mortgagor;
(ii) the street address of the Mortgaged Property including city, state and zip
code;
(iii) the mortgage interest rate as of the Cut-Off Date;
(iv) the original term and maturity date of the related Mortgage Note;
(v) the original principal balance;
(vi) the first payment date;
(vii) the monthly payment in effect as of the Cut-Off Date;
(viii) the date of the last paid installment of interest;
(ix) the unpaid principal balance as of the close of business on the Cut-Off Date;
(x) the loan-to-value ratio at origination;
(xi) the type of property;
(xii) whether a primary mortgage insurance policy is in effect as of the
Cut-Off Date;
(xiii) the nature of occupancy at origination;
(xiv) the servicing fee;
(xv) the county in which the Mortgaged Property is located, if
available; and
(xvi) the closing date.
SCHEDULE 3
MORTGAGE FILE INFORMATION
Each Mortgage File shall include at least the following documents,
among others, with respect to each Mortgage Loan transferred and assigned from
the Seller to the Purchaser, or its agent:
(i) the original Mortgage Note (or, if the original Mortgage
Note has been lost or destroyed, a lost note affidavit and
indemnity) bearing all intervening endorsements endorsed,
"Pay to the order of JPMorgan Chase Bank for the benefit of
the Certificateholders of ABN AMRO Mortgage Corporation
Series 2002-2 Attn: Corporate Trust Department, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, without recourse" and signed in
the name of the mortgagee at the request of the Seller by
an Authorized Officer showing an unbroken chain of title
from the originator thereof to the person endorsing;
(ii) (a) the original Mortgage with evidence of recording
thereon, and if the Mortgage was executed pursuant to a
power of attorney, a certified true copy of the power of
attorney certified by the recorder's office, with evidence
of recording thereon, or certified by a title insurance
company or escrow company to be a true copy thereof;
provided, that if such original Mortgage or power of
attorney cannot be delivered with evidence of recording
thereon on or prior to the Closing Date because of a delay
caused by the public recording office where such original
Mortgage has been delivered for recordation or because such
original Mortgage has been lost, the Seller shall deliver
or cause to be delivered to the Purchaser (with a copy to
the Trustee (as defined in the Pooling and Servicing
Agreement)) a true and correct copy of such Mortgage,
together with (1) in the case of a delay caused by the
public recording office, a certificate signed by an
Authorized Officer of the Seller stating that such original
Mortgage has been dispatched to the appropriate public
recording official for recordation or (2) in the case of an
original Mortgage that has been lost, a certificate by the
appropriate county recording office where such Mortgage is
recorded or from a title insurance company or escrow
company indicating that such original was lost and the copy
of the original mortgage is a true and correct copy;
(b) the original assignment to "JPMorgan Chase Bank, as
Trustee," which assignment shall be in form and substance
acceptable for recording, or a copy certified by the Seller
as a true and correct copy of the original assignment which
has been sent for recordation. Subject to the foregoing,
such assignments may, if permitted by law, be by blanket
assignments for Mortgage Loans covering Mortgaged
Properties situated within the same county. If the
assignment is in blanket form, a copy of the assignment
shall be included in the related individual Mortgage File;
-1-
(iii) the originals of any and all instruments that modify the
terms and conditions of the Mortgage Note, including but
not limited to modification, consolidation, extension and
assumption agreements including any adjustable rate
mortgage (ARM) rider, if any;
(iv) the originals of all required intervening assignments, if
any, with evidence of recording thereon, and if such
assignment was executed pursuant to a power of attorney, a
certified true copy of the power of attorney certified by
the recorder's office, with evidence of recording thereon,
or certified by a title insurance company or escrow company
to be a true copy thereof; provided, that if such original
assignment or power of attorney cannot be delivered with
evidence of recording thereon on or prior to the Closing
Date because of a delay caused by the public recording
office where such original assignment has been delivered
for recordation or because such original assignment has
been lost, the Seller shall deliver or cause to be
delivered to the Purchaser (with a copy to the Trustee (as
defined in the Pooling and Servicing Agreement)) a true and
correct copy of such assignment, together with (a) in the
case of a delay caused by the public recording office, a
certificate signed by an Authorized Officer of the Seller
stating that such original assignment has been dispatched
to the appropriate public recording official for
recordation or (b) in the case of an original assignment
that has been lost, a certificate by the appropriate county
recording office where such assignment is recorded or from
a title insurance company or escrow company indicating that
such original was lost and the copy of the original
assignment is a true and correct copy;
(v) the original mortgagee policy of title insurance
(including, if applicable, the endorsement relating to the
negative amortization of the Mortgage Loans) or in the
event such original title policy is unavailable, any one of
an original title binder, an original preliminary title
report or an original title commitment or a copy thereof
certified by the title company with the original policy of
title insurance to follow within 180 days of the Closing
Date;
(vi) the mortgage insurance certificate;
(vii) hazard insurance certificates and copies of the Hazard
Insurance Policy and, if applicable, flood insurance
policy; and
(viii) any and all other documents, opinions and certificates
executed and/or delivered by the related Mortgagor and/or
its counsel in connection with the origination of such
Mortgage Loan, which may include truth-in-lending
statements and other legal statements, and appraisal and a
survey.
-2-
EXHIBIT A
INSTRUCTION LETTER
ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
________ __, 2002
ABN AMRO Mortgage Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
Pursuant to the Mortgage Loan Purchase Agreement dated as of February
26, 2002 (the "Purchase Agreement") between you and us, we have agreed to
purchase from you certain Mortgage Loans. All capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Purchase
Agreement.
In order to facilitate these transactions, and for the purpose of
convenience only, we hereby authorize and direct you to:
Action Due Date
1. Endorse mortgage notes (or lost note affidavits one week prior to funding
and indemnities) to:
"Pay to the order of
JPMorgan Chase Bank
for the benefit of the Certificateholders
of ABN AMRO Mortgage Corporation
Series 2002-2, Attn: Corporate Trust
Department, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
without recourse"
2. Assign mortgages to be recorded one week prior to funding
to JPMorgan Chase Bank
for the benefit of the Certificateholders
of ABN AMRO Mortgage Corporation
Series 2002-2:
-1-
3. Deliver to the Purchaser or its agent all Mortgage two business days after funding
Loan documents pertaining to each loan
4. Deliver to the Purchaser's servicer all Mortgage one week prior to Servicing transfer date
Loan servicing documents pertaining to each loan
5. Provide lost mortgage note affidavits, certified one week prior to funding
copies of all missing mortgages, and certified
recorded copies of missing intervening
assignments
6. Mortgage Loan Schedule generated by Purchaser one day prior to funding
and agreed to by Seller
Sincerely,
ABN AMRO Mortgage Corporation
By: _______________________
Name: _______________________
Title: _______________________
-2-
EXHIBIT B
---------
FORM OF ASSIGNMENT
-------------------
ABN AMRO Mortgage Group, Inc., a Delaware corporation (the "Seller"),
in exchange for $[__________] in hand paid and other good and valuable
consideration, hereby grants, bargains, sells, assigns, transfers, conveys,
and sets over to ABN AMRO Mortgage Corporation, a Delaware corporation (the
"Purchaser"), all of the Seller's right, title, and interest in, to, and under
the mortgage loans listed on Schedule 1 attached hereto, the mortgage notes
evidencing or relating to such mortgage loans, all mortgages, trust deeds,
title insurance policies, property insurance policies, chattel paper, loan
guaranties, loan accounts, surveys, instruments, certificates, and other
documents whatsoever evidencing or relating to such mortgage notes and
mortgage loans, and all books, ledgers, books of account, records, writings,
data bases, information, and computer software (and all documentation therefor
or relating thereto, and all licenses relating to or covering such computer
software and/or documentation), and all other property, rights, title, and
interests whatsoever relating to, used, or useful in connection with, or
evidencing, embodying, incorporating, or referring to, any of the foregoing
(the "Mortgages"). The Seller warrants to the Purchaser that the Seller is the
owner of the Mortgages, subject to no liens, claims, or encumbrances.
-1-
Dated: _____________, 2002 ABN AMRO Mortgage Group, Inc.
By: __________________________
Name: ________________________
Title: _______________________
-▇-
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ __________ __, 2002
ABN AMRO Mortgage Corporation
By: _____________________________
Name: ___________________________
Title: __________________________
-3-
STATE OF ____________ )
)
COUNTY OF ____________ )
I, ______________, a Notary Public in and for the said County and
State, do hereby certify that ____________, personally known to me to be the
same person whose name is subscribed to the foregoing instrument as
_______________ of __________________, appeared before me this day in person
and, being first sworn, acknowledged that he signed and delivered the said
instrument as his own free and voluntary act, and as the free and voluntary
act of said corporation as the ___________ of ____________, a ____________,
for the uses and purposes therein set forth and that he was duly authorized to
execute the said instrument by the __________________ of said
-----------------.
Given under my hand and seal, this ____ day of ____________, 2002.
----------------------------------
Notary Public
My commission expires:______________
-4-
EXHIBIT C
---------
FORM OF OFFICER'S CERTIFICATE
-----------------------------
ABN AMRO Mortgage Group, Inc.
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇, do hereby certify pursuant to Section 10(a) and
(b)(iii) of the Purchase Agreement (as hereinafter defined) that I am the duly
elected Executive Vice President of ABN AMRO Mortgage Group, Inc. ("AAMGI" ),
a Delaware corporation, and further certify as follows:
1. Attached hereto as Exhibit "A" is a true and correct copy of the
articles of incorporation of AAMGI. There has been no amendment or other
document filed affecting the charter as of the date of this certification of
AAMGI, and no such amendment has been authorized.
2. Attached hereto as Exhibit "B" is a true and correct copy of the
by-laws of AAMGI as in full force and effect as of the date of this
certification.
3. No proceedings looking toward merger, consolidation, liquidation,
or dissolution of AAMGI are pending or contemplated.
4. Each person who, as an officer or representative of AAMGI, signed,
or will sign (a) the Purchase Agreement, and (b) any other document delivered
pursuant thereto or on the date hereof in connection with the Mortgage Loan
Purchase Agreement, dated as of February 26, 2002 between AAMGI, as seller,
and ABN AMRO Mortgage Corporation, as Purchaser (the "Purchase Agreement")
was, at the respective times of such signing and delivery, and is as of the
date hereof duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
are their genuine signatures.
5. Attached hereto as Exhibit "C" is a true, complete and correct
copy of the Resolutions of AAMGI's Board of Directors, which were duly adopted
as of _____ __, ____, and such Resolutions have not been amended, altered or
repealed, and remain in full force and effect without modification on the date
hereof.
6. Attached hereto as Exhibit "D" is a Good Standing Certificate
issued by the Office of the Secretary of State of Delaware as of __________,
____. A current Good Standing Certificate has been requested from the Office
of the Secretary of State of _________ and will be supplied when it is
received.
7. AAMGI has performed all obligations and satisfied all conditions
on its part to be performed or satisfied under the Purchase Agreement on or
prior to the Closing Date and all of the representations and warranties of the
Seller under the Purchase Agreement are true and correct as of the date hereof
and as of the Closing Date, and no event has occurred which, with notice or
passage of time, or both, would constitute a default under the Purchase
Agreement.
All capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Purchase Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date: __________ __, ____
ABN AMRO Mortgage Group, Inc.
By: ____________________________
Name: __________________________
Title: _________________________
-2-
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant Secretary of ABN AMRO Mortgage Group,
Inc., a Delaware corporation, hereby certify that ▇▇▇▇▇▇ ▇. ▇▇▇▇ is the duly
elected, qualified and acting Executive Vice President of ABN AMRO Mortgage
Group, Inc. and that the signature appearing on the preceding page is his/her
genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date: __________ __, ____
ABN AMRO Mortgage Group, Inc.
By: __________________________
Name: ________________________
Title: _______________________
-3-
[OPINION TO BE REVISED IN ACCORDANCE WITH
GENERAL COUNSEL'S FORM OF OPINION LETTER]
EXHIBIT D
[OPINION OF SELLER'S IN-HOUSE COUNSEL
PURSUANT TO SECTION 10(B)(IV)]
-----------------
__________ __, 2002
ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ABN AMRO Mortgage Corporation Purchase of Mortgage Loans
--------------------------------------------------------
Ladies and Gentlemen:
As _______________ to ABN AMRO Mortgage Group, Inc., a Delaware
Corporation ("Seller"), I and attorneys working under my supervision have
acted as counsel to Seller in connection with the sale of Mortgage Loans by
Seller to ABN AMRO Mortgage Corporation (the "Purchaser") pursuant to a
Mortgage Loan Purchase Agreement, dated as of February 26, 2002 (the "Purchase
Agreement"), between the Purchaser and Seller. This opinion is being delivered
to the Purchaser pursuant to Section 10(b)(iv) of the Purchase Agreement. All
capitalized terms not otherwise defined herein have the meanings given them in
the Purchase Agreement.
In rendering the opinions set forth below, we have examined and
relied upon originals or copies, certified or otherwise identified to our
satisfaction, of the charter and by-laws of Seller, the Purchase Agreement and
such corporate records, agreements or other instruments of Seller, and such
certificates, records and other documents, agreements and instruments,
including, among other things, certain documents delivered on the Closing
Date, as we have deemed necessary and proper as the basis for our opinions. In
connection with such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents, agreements and instruments
submitted to us as originals, the conformity to original documents, agreements
and instruments of all documents, agreements and instruments submitted to us
as copies or specimens, the authenticity of the originals of such documents,
agreements and instruments submitted to us as copies or specimens, the
conformity to executed original documents of all documents submitted to us in
draft and the accuracy of the matters set forth in the documents we reviewed.
We have also assumed that all documents, agreements and instruments have been
duly authorized, executed and delivered by all parties thereto. As to any
facts material to such opinions that we did not independently establish
-1-
ABN AMRO Mortgage Corporation
__________ __, 200_
Page 2
or verify, we have relied upon statements and representations of officers and
other representatives of Seller as we have deemed necessary and proper as the
basis for our opinions, including, among other things, the representations and
warranties of Seller in the Purchase Agreement.
Based upon the foregoing, I am of the opinion that:
1. Seller is a ______________, duly organized, validly existing and
in good standing under the laws of _____________ and either is not required to
be qualified to do business under the laws of any states where such
qualification is necessary to transact the business contemplated by the
Purchase Agreement, or is qualified to do business under the laws of any
states where such qualification is necessary to transact the business
contemplated by the Purchase Agreement, and Seller is duly authorized and has
full corporate power and authority to transact the business contemplated by
the Purchase Agreement.
2. The Purchase Agreement has been duly authorized, executed and
delivered by Seller and is a legal, valid and binding obligation of and is
enforceable against Seller in accordance with its terms, except that the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
receivership, conservatorship, reorganization, moratorium or other laws, now
or hereafter in effect, relating to creditors' rights generally, (B) general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (C) limitations of public policy under
applicable securities laws as to rights of indemnity and contribution under
the Purchase Agreement.
3. No consent, approval, authorization or order of any court or
supervisory, regulatory, administrative or governmental agency or body is
required for the execution, delivery and performance by Seller of or
compliance by Seller with the Purchase Agreement, the sale of the Mortgage
Loans or the consummation of the transactions contemplated by the Purchase
Agreement.
4. Neither the execution and delivery by Seller of the Purchase
Agreement, nor the consummation by Seller of the transactions contemplated
therein, nor the compliance by Seller with the provisions thereof, will
conflict with or result in a breach of any of the terms, conditions or
provisions of Seller's charter or by-laws or board or shareholder's
resolutions, or any agreement or instrument to which Seller is now a party or
by which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject, which, in any of the above cases, would materially and adversely
affect Seller's ability to perform its obligations under the Purchase
Agreement.
5. There is no action, suit, proceeding or investigation pending, or,
to the best of my knowledge, threatened against Seller which, either in any
one instance or in the aggregate, would
-2-
ABN AMRO Mortgage Corporation
__________ __, 200_
Page 3
draw into question the validity of the Purchase Agreement or the Mortgage
Loans or of any action taken or to be taken in connection with the obligations
of Seller contemplated therein, or which would be likely to materially impair
the ability of Seller to perform under the terms of the Purchase Agreement.
The Opinions expressed herein are limited to matters of federal and Michigan law
and do not purport to cover any matters as to which laws of any other
jurisdiction are applicable. Except as expressly provided herein, this opinion
is being furnished to you solely for your benefit in connection with the
purchase of the Mortgage Loans, and it is not to be used, circulated, quoted or
otherwise referred to for any purpose without my express written consent.
Sincerely,
ABN AMRO Mortgage Group, Inc.
By:__________________________
Title:
-3-