WHOLE LOAN PURCHASE AGREEMENT
Whole Loan Purchase Agreement (the "Agreement"), dated as of November
25, 2003 between ABN AMRO Mortgage Group, Inc. (the "Seller") and Washington
Mutual Mortgage Securities Corp. (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:
SECTION 1. Purchase and Sale of the Mortgage Loans.
(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 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 November l, 2003 (the "Cut-Off Date") of
approximately $297,039,583 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
November 25, 2003 (the "Closing Date") at the office of Purchaser's counsel in
New York, New York or such other place as the parties shall agree.
SECTION 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 one or more
obligors (the "Mortgagor") and the related mortgages, deeds of trust or other
instruments securing a Mortgage Loan (the "Mortgage") 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.
SECTION 3. Purchase Price.
(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 * % multiplied
by the principal balance thereof as of the Cut-Off Date plus any accrued and
unpaid interest thereon from the Cut-Off Date to the Closing 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 by the Seller to, the Purchaser.
SECTION 4. Examination of Mortgage Files.
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.
SECTION 5. Transfer of Mortgage Loans; Possession of Mortgage Files.
(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 (including the servicing rights related thereto) 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
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*Provided upon request by ABN AMRO Mortgage Group, Inc.
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mortgage insurance policies. Such transfer shall be made 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 (including the related
servicing rights) and the related Mortgage Note, the Mortgage and the contents
of the related Mortgage File shall be, upon satisfaction of SECTION 3(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 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.
SECTION 6. Books and Records.
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,
dated as of November 1, 2003, among U.S. Bank National Association, as Trustee
(the "Trustee"), Washington Mutual Mortgage Securities Corp. as Seller and
Servicer (in such capacity, the "Seller" or the "Servicer") and ABN AMRO
Mortgage Corporation as Depositor (the "Depositor")) 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.
SECTION 7. Further Actions; Financing Statements.
(a) 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,
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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.
SECTION 8. Representations, Warranties and Agreements of Seller.
(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
and in good standing 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 and 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) The Seller has all requisite corporate power, authority
and capacity to enter into this Agreement and to perform the
obligations required of it hereunder. 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. No consent, approval,
authorization or order of or registration with, or notice to, any
governmental authority or court is required, under state or federal law
prior to the execution, delivery, performance of or compliance by the
Seller with this Agreement or the consummation by the Seller with any
other transaction contemplated hereby;
(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;
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(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:
1) 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;
2) 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
and, upon the Seller's receipt of the Purchase Price, the
Purchaser shall own and hold such Mortgage Loan free and clear
of all liens, pledges, charges or security interests of any
nature;
3) 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;
4) 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;
5) 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;
6) 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, disclosure laws and all applicable anti-predatory
laws, and each Mortgage Loan was not usurious at the time of
origination;
7) to the best of the Seller's knowledge, all
insurance premiums, water, sewer and municipal charges,
leasehold payments and ground rents previously due and owing
with respect to each Mortgaged Property have been paid and all
taxes and
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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;
8) 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;
9) that each Mortgage is a valid and enforceable
perfected 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 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;
10) neither the Seller nor any prior holder of any
Mortgage or Mortgage Note has, except as the Mortgage File may
reflect, impaired, waived, altered or modified the Mortgage or
Mortgage Note in any respect, except by a written instrument
which has been recorded, if necessary to protect the interests
of the Purchaser and which has been delivered to the
Purchaser. The substance of any such waiver, alteration or
modification has been approved by the issuer of any primary
mortgage insurance policy covering the Mortgage Loan and title
insurer, to the extent required by the policies, and its terms
are reflected in the Mortgage Loan Schedule. No Mortgage has
been satisfied, cancelled or subordinated in whole or in part;
No Mortgaged Property has been released in whole or in part
from the lien of the Mortgage; No instrument of release,
cancellation, modification or satisfaction has been executed
with respect to the Mortgage Loan;
11) that each Mortgaged Property consists of a fee
simple estate or condominium form of ownership in real
property;
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12) the condominium projects that include the
condominiums that are the subject of any condominium loan are
acceptable to FNMA or FHLMC;
13) no foreclosure action is threatened or has been
commenced with respect to the Mortgage Loan; and except for
payment delinquencies not in excess of 30 days, there is no
default, breach, violation or event of acceleration existing
under the Mortgage or the related Mortgage Note and, to the
best of the Seller's knowledge, 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;
14) that each Mortgage Loan was originated on FNMA or
FHLMC uniform instruments for the state in which the Mortgaged
Property is located;
15) that based upon a representation by each
Mortgagor at the time of origination or assumption of the
applicable Mortgage Loan, approximately 93.6% of the Mortgage
Loans measured by principal balance were to be secured by
owner-occupied residences and approximately 6.4% of the
Mortgage Loans measured by principal balance were secured by
owner-occupied second home residences;
16) 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;
17) that no Mortgage Loan had a Loan-to-Value Ratio
at origination in excess of 95.00%;
18) 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;
19) 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;
20) 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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21) that no Mortgage Loan permits negative
amortization or the deferral of accrued interest;
22) pursuant to the terms of the applicable Mortgage,
all buildings or other improvements upon each Mortgaged
Property are insured by an insurer acceptable to FNMA or FHLMC
against loss by fire, hazards of extended coverage and such
other hazards as are customary in the area where the Mortgaged
Property is located pursuant to insurance policies conforming
to the requirements of FNMA or FHLMC. If upon origination of
any Mortgage Loan, the Mortgaged Property was in an area
identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards (and such
flood insurance has been made available) a flood insurance
policy meeting the requirements of the current guidelines of
the Federal Insurance Administration is in effect which policy
conforms to the requirements of FNMA or FHLMC. All individual
insurance policies contain a standard mortgagee clause naming
the Seller and its successors and assigns as mortgagee, and
all premiums thereon have been paid. Each Mortgage obligates
the Mortgagor thereunder to maintain the hazard insurance
policy at the Mortgagor's cost and expense, and on the
Mortgagor's failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such
Mortgagor's cost and expense, and to seek reimbursement
therefor from the Mortgagor. Where required by state law or
regulation, the Mortgagors have been given an opportunity to
choose the carrier of the required hazard insurance policy,
provided the policy is not a "master" or "blanket" hazard
insurance policy covering the common facilities of a planned
unit development. The hazard insurance policy is the valid and
binding obligation of the insurer, is in full force and
effect, and will be in full force and effect and inure to the
benefit of the Purchaser upon the consummation of the
transactions contemplated by this Agreement. Seller has not
engaged in, and has no knowledge of the Mortgagor's or any
subservicer s having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of
the endorsement provided for herein, or the validity and
binding effect of either, including, without limitation, no
unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been
received, retained or realized by the Seller. All flood
insurance and hazard insurance premiums have been paid when
due;
23) each Mortgage Loan has been closed and the
proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder, and
any and all requirements as to completion of any on-site or
off -site improvement and as to disbursements of any escrow
funds therefor have been complied with. All costs, fees and
expenses incurred in making or closing each Mortgage Loan and
the recording of the related Mortgage were paid, and the
applicable Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
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24) with respect to each Mortgage Loan with a
Loan-to-Value Ratio greater than 80%, the excess of the
principal balance of such Mortgage Loan to the percentage of
the appraised value thereof specified by FNMA is and will be
insured as to payment defaults by a primary mortgage insurance
policy issued by an insurer, and in a form, acceptable to FNMA
or FHLMC. All provisions of such primary mortgage insurance
policy have been and are being complied with, such policy is
in full force and effect, and all premiums due thereunder have
been paid. No action, inaction or event has occurred and no
state of facts exists that has, or will result in the
exclusion from, denial of, or defense to coverage. Any
Mortgage Loan subject to a primary mortgage insurance policy
obligates the Mortgagor thereunder to maintain the primary
mortgage insurance policy and to pay all premiums and charges
in connection therewith. The mortgage interest rate for the
Mortgage Loan as set forth on the Mortgage Loan Schedule is
net of any such insurance premium;
25) to the best of the Seller's knowledge each
Mortgaged Property is free from any and all toxic or hazardous
substances and there exists no violation of any local, state
or federal environmental law, rule or regulation;
26) all inspections, licenses and certificates
required to be made or issued with respect to all occupied
portions of each Mortgaged Property and, with respect to the
use and occupancy of the same, including, but not limited to,
certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities;
27) each Mortgage Loan has been properly serviced in
accordance with all applicable federal, state and local laws,
the terms of the Mortgage, Mortgage Note and related Mortgage
Loan documents and all applicable guidelines to any prior
mortgagee. With respect to escrow deposits and escrow
payments, all such payments are in the possession of the
Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have
not been made. All escrow payments have been collected in full
compliance with state and federal law. An escrow of funds is
not prohibited by applicable law and has been established in
accordance with law, and by Servicer's best estimate in an
amount sufficient to pay for every item which remains unpaid
and which has been assessed but is not yet due and payable. No
escrow deposits or escrow payments or other charges or
payments due the Seller have been capitalized under any
Mortgage or any Mortgage Note. Any interest required to be
paid pursuant to state and local law has been properly paid
and credited;
28) as of the Closing Date, each Mortgage Loan will
have a transferable life-of-loan tax service contract with
First American Real Estate Tax Service or another tax service,
provided that such tax service is acceptable to the Purchaser;
29) each Mortgage Note and Assignment of Mortgage has
been, or will be, delivered to the Purchaser or its custodian
for each Mortgage Loan;
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30) the Mortgage Loan was underwritten in accordance
with the Seller's underwriting standards in effect at the time
the Mortgage Loan was originated;
31) no fraud occurred on the part of the Seller, the
Mortgagor or, to the best of the Seller's knowledge, any third
party in connection with the origination of the Mortgage Loan;
32) each Mortgage Loan that has a Loan-to-Value Ratio
at origination in excess of 80% is covered by a primary
mortgage insurance policy;
33) no Loan is a "high-cost home loan" as defined in
the Georgia Fair Lending Act, as amended, or in the New York
Predatory Lending Law, codified as N.Y. Banking Law Section
6-l, N.Y. Gen. Bus. Law Section 771-a, and N.Y. Real Prop.
Acts Law Section 1302, the Arkansas Home Loan Protection Act,
as amended, the Kentucky Revised Statutes Section 360.100, as
amended, or the Florida Home Loan Protection Act ss.494.007
(the "Florida Act"); no Loan is a "covered loan" as defined in
the District of Columbia Home Loan Protection Act
ss.26-1151.01 (the "D.C. Act"); no Loan is a "high-rate,
high-fee mortgage" as defined in Maine Consumer Credit Code --
Truth In Lending ss.8-103 (the "Maine Act"); and no Loan is a
"home loan" as defined in Nevada Revised Statutes title 52, as
amended by Assembly ▇▇▇▇ No. 284, 72nd Session (Nevada 2003)
(the "Nevada Act"); and
34) none of the Mortgage Loans are subject to the
Home Ownership and Equity Protection Act of 1994 or any
comparable state law.
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
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Loans set forth herein, as of the date of substitution (such mortgage loan being
referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). If the breach of
representation and warranty that gave rise to the obligation to repurchase or
substitute a Loan pursuant to this SECTION 8 was the representation set forth in
clause (viii)(6) of this SECTION 8, then the Seller shall pay to the Trust Fund,
concurrently with and in addition to the remedies provided in the preceding
sentence, an amount equal to any liability, penalty or reasonable expense that
was actually incurred and paid out of or on behalf of the Trust Fund, and that
directly resulted from such breach, or if incurred and paid by the Trust Fund
thereafter, concurrently with such payment. 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 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.
SECTION 9. Representations, Warranties and Agreements of Purchaser.
(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, validly
existing and in good standing 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;
11
(iii) The Purchaser has all requisite corporate power,
authority and capacity to enter into this Agreement and to perform the
obligations required of it hereunder. 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. No consent, approval, authorization or order of or registration
with, or notice to, any governmental authority or court is required,
under state or federal law prior to the execution, delivery,
performance of or compliance by the Purchaser with this Agreement or
the consummation by the Purchaser with any other transaction
contemplated hereby;
(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
(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.
SECTION 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) 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 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;
12
(ii) The Mortgage Loan Schedule prepared by Seller 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.
(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.
SECTION 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.
SECTION 12. Interim Servicing.
During the period (the "Interim Servicing Period") commencing on the
Closing Date and ending on or about February 2, 2004, or such other date as the
Seller and the Servicer shall agree upon (the "Transfer Date"), the Seller shall
service the Mortgage Loans on behalf of the Purchaser in accordance with the
Purchaser's Servicing Guide in effect on the Closing Date. As compensation for
servicing the Mortgage Loans during the Interim Servicing Period, the Seller
shall be entitled to receive a fee of $7.00 per Mortgage Loan for each full
calendar month during the Interim Servicing Period. With respect to any partial
month the Seller services the Mortgage Loans on behalf of the Purchaser, the
Seller shall be entitled to receive a pro rata portion of the monthly interim
servicing fee. On or prior to the Servicing Transfer Date, the Seller shall have
made files for each Mortgage Loan, that consist at least of the documents listed
on Schedule 4 attached hereto (with respect to each Mortgage Loan, a "Servicing
File", and collectively, the "Servicing Files") and shall deliver such Servicing
File to the Purchaser.
13
In connection with any Form 10-K Certification, filed pursuant to the
Pooling and Servicing Agreement during the Interim Servicing Period, the Seller
shall provide the Servicer with a back-up certification substantially in the
form attached hereto as Exhibit F.
SECTION 13. Transfer of Servicing Covenants.
On the Transfer Date, the Seller shall transfer the servicing
obligations with respect to the Mortgage Loans to the Purchaser or its designee
in accordance with the servicing transfer procedures attached hereto as Exhibit
E (the "Transfer Procedures") and the following requirements:
(a) Notice to Mortgagors. On or before the date prescribed under
applicable federal and state law, the Seller shall, at the Seller's expense,
mail to each Mortgagor a letter advising the Mortgagor of the transfer of the
servicing to the Purchaser or its designee, as applicable. The Seller's notice
shall comply with all state and federal requirements. If any notices are
returned to the Seller by the postal service for any reason, the Seller shall
promptly forward the notice to the Purchaser or its designee, as applicable, for
disposition.
(b) Notice to Mortgage Insurers. The Seller shall, at the Seller's
expense, notify all relevant private mortgage insurance companies no later than
15 days prior to the Transfer Date that all insurance premium ▇▇▇▇▇▇▇▇ for the
Mortgage Loans must be sent to the Purchaser or its designee, as applicable,
following the Transfer Date.
(c) Notice to Taxing Authorities and Hazard Insurance Companies. No
later than 15 days prior to the Transfer Date, the Seller shall, at the Seller's
expense, transmit to the applicable taxing authorities and hazard insurance
companies and/or agents, notification of the assignment of the servicing and
instructions to deliver all notices, tax bills and insurance statements, as the
case may be, to the Purchaser or its designee, as applicable, from and after the
Transfer Date. The Seller shall provide the Purchaser or its designee, as
applicable, with copies of such notices and instructions within five (5)
business days of the Seller's dispatch of such notices and instructions to the
foregoing entities.
(d) Internal Revenue Service Forms. The Seller shall mail, on or before
the date required by law, all Internal Revenue Service required forms to all
parties entitled to receive same for the period from January 1 until the
Transfer Date. The Seller shall provide copies of such forms to the Purchaser or
its designee, as applicable, upon request. The Purchaser or its designee, as
applicable, shall make such Internal Revenue Service filings pertaining to
events on and after the Transfer Date.
(e) Insurance Policies. After the Transfer Date, the Seller shall
deliver such insurance policies or renewals as it may receive with respect to
the mortgage loan or the servicing to Purchaser or its designee, as applicable,
within five (5) Business Days of its receipt of same.
(f) Payment of Hazard Insurance Premiums. The Seller shall pay, prior
to the Transfer Date, all hazard insurance premiums due within 30 days after the
Transfer Date, provided that the Seller has received bills for such insurance
premiums prior to the Transfer Date. The Seller shall immediately deliver to the
Purchaser or its designee, as applicable, all bills and correspondence related
to the mortgage loan and received by it subsequent to the Transfer Date.
14
(g) Property Taxes. The Seller shall cause to be paid prior to the
Transfer Date all tax bills (including interest, late charges, and penalties in
connection therewith) due within 30 days of the Transfer Date that are issued by
a taxing authority and relate to any Mortgaged Property and that are received by
the Seller or its tax service provider prior to the Transfer Date. The Seller
or, its tax service provider shall immediately forward to the Purchaser or its
designee, as applicable, all tax bills received by the Seller after such date.
The foregoing shall in no way impose upon the Seller an obligation to pay any
taxes (including interest, late charges, and penalties associated therewith) for
which a title insurer has an obligation to pay by virtue of the terms of a
mortgagee policy of title insurance which is issued in connection with the
origination of any Mortgage Loan and which insures the Purchaser subsequent to
the purchase.
(h) Social Security Numbers. Each Mortgage Loan has a certified Social
Security number as required by the Internal Revenue Service or, if the Mortgage
Loan does not have a certified Social Security number, the Seller has exercised
due diligence (as defined by Internal Revenue Service regulations) to obtain
such a number.
(i) Internal Revenue Service Forms. All Internal Revenue Service forms,
including, but not limited to, forms 1099, 1099A and 1098, as appropriate, which
are required to be filed with respect to each Mortgage Loan for activity
occurring on or before year end of the preceding calendar year have been filed.
(j) Escrow Analysis. With respect to each Mortgage Loan that was
originated more than twelve (l2) months prior to the Transfer Date, the Seller
has properly conducted such escrow analyses with respect to the Mortgage Loan as
required under applicable law. Any adjustment to the Mortgagor's escrow payment,
refunds of escrow overages and collections of escrow shortages have been made in
accordance with all applicable law.
(k) Mortgage Payments Received Prior to Transfer Date. Prior to the
Transfer Date, all payments received by the Seller with respect to each Mortgage
Loan shall be properly applied by the Seller to the account of the related
Mortgagor.
(l) Mortgage Payments Received on or After Transfer Date. Any payment
with respect to a mortgage loan received by the Seller on or after the Transfer
Date shall not be processed by the Seller but shall instead be forwarded to the
Purchaser or its designee, as applicable, at the Seller's expense. The Seller
shall accumulate such payments and forward them to the Purchaser every second
business day via overnight mail. After the first day of the third month
following the month in which the Transfer Date occurs, any payment received by
the Seller with respect to a Mortgage Loan shall be forwarded by the Seller to
the Purchaser or its designee by regular mail within five (5) business days of
the Seller's receipt thereof.
(m) Recording of Assignments. With respect to each Mortgage Loan, the
Seller shall promptly record an Assignment of Mortgage in accordance with the
Purchaser's specifications which complies with all applicable provisions of
state law in the applicable county recorder's office.
15
(n) Delivery of Servicing File. With respect to each Mortgage Loan, the
Seller shall deliver, at the time specified in the Transfer Procedures, all
documents reasonably necessary to service the Mortgage Loans.
(o) Transfer of Escrows. Escrow funds relating to the Mortgage Loans
shall be transferred at the time, and in accordance with the requirements, set
forth in the Transfer Procedures.
SECTION 14. Covenant Not to Solicit.
The Seller covenants that neither the Seller nor any affiliate of the
Seller will take any action personally, by telephone, by mail or otherwise, to
solicit the prepayment of the Mortgage Loans by the Mortgagors, in whole or in
part. Nothing in this SECTION 14, however, shall prohibit the Seller or any
affiliate from:
(i) advertising its availability for handling refinancings of
mortgage loans in its portfolio if the Mortgage Loans are not
specifically targeted;
(ii) promoting terms available for refinancing by sending
letters or promotional material to the mortgagors of all the mortgage
loans that it owns or services;
(iii) promoting terms available for refinancing by sending
letters or promotional material to the mortgagors of all the mortgage
loans of a specific type (e.g., conventional fixed-rate or conventional
adjustable-rate) that it owns or services;
(iv) promoting terms available for refinancing by sending
letters or promotional material to the mortgagors of all the mortgage
loans that fall within specific interest rate ranges that it owns or
services;
(v) promoting terms available for refinancing by communicating
with mortgagors of mortgage loans in its portfolio that one or more
predictive models indicate a propensity to prepay;
(vi) providing payoff information or otherwise cooperating
with individual Mortgagors who contact it about prepaying any Mortgage
Loan; or
(vii) advising individual Mortgagors who contact it about
prepaying any Mortgage Loan of refinancing terms or streamlined
origination arrangements that are available.
In no event, however, shall the Seller or any affiliate treat mortgage
loans that it holds in its own portfolio and the Mortgage Loans as separate
classes of mortgages for purposes of advertising the availability of refinancing
terms.
16
SECTION 15. 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 Inter First, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇-Senior
Vice President with a copy to ABN AMRO Mortgage Group, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇; and notices to
the Purchaser shall be directed to Washington Mutual Mortgage Securities Corp.,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Legal Services Department; or
such other addresses as may hereafter be furnished to the other party by like
notice.
SECTION 16. 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 16(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 16(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.
SECTION 17. 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.
SECTION 18. 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.
SECTION 19. 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.
17
SECTION 20. 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.
SECTION 21. 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.
SECTION 22. 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 22,
the parties HERETO AGREE THAT THE PURCHASER HAS THE RIGHT TO ASSIGN ITS RIGHTS
AND INTEREST IN, TO AND UNDER SECTION 8 hereof.
SECTION 23. Amendments.
No tern 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.
SECTION 24. Manual Revisions to Agreement.
It is the intent of the parties that no erasure, interlineation or
addition to the form of this Agreement shall be deemed to form any part of the
agreement between the parties.
SECTION 25. Electronic Signatures.
The parties agree that signatures exchanged by telephone transmission
of facsimile shall be deemed to be "electronic signatures" and this agreement
shall be deemed to be an "electronic record" for purposes of 5 ILCS 175/10-105.
18
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
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.,
as Purchaser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: First Vice President
SCHEDULE 1
MORTGAGE LOAN SCHEDULE
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:
the loan number of the Mortgage Loan;
the city, state and zip code of the Mortgaged Property;
the mortgage interest rate as of the Cut-Off Date;
the original term and maturity date of the related Mortgage Note;
the original principal balance;
the first payment date;
the monthly payment in effect as of the Cut-Off Date;
the date of the last paid installment of interest;
the unpaid principal balance as of the close of business on the Cut-Off
Date;
the loan-to-value ratio at origination;
the type of property and the Original Value of the Mortgaged Property;
whether a primary mortgage insurance policy is in effect as of the
Cut-Off Date;
the nature of occupancy at origination;
the county in which the Mortgaged Property is located, if available;
and
the Closing Date.
"Original Value" shall be defined in the Pooling and Servicing
Agreement, dated as of November 1, 2003, among U.S. Bank National
Association, as Trustee (the, "Trustee", Washington Mutual Mortgage
Securities Corp. as Seller and Servicer (in such capacity, the "Seller"
or the "Servicer" and ABN AMRO Mortgage Corporation as Depositor (the
"Depositor").
SCHEDULE 3
CONTENTS OF MORTGAGE FILE
(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
_________________, without recourse" and signed in the name of the
Seller by an Authorized Officer showing an unbroken chain of title from
the originator thereof to the person endorsing;
(ii) 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 a true and correct copy of such
Mortgage, together with (1) in the case of a delay caused by the public
recording office, an Officer's Certificate signed by a Responsible
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;
(iii) The original Assignment to "____________," 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;
(iv) 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;
(v) 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 a true and correct copy of such Assignment, together with (a)
in the case of a delay caused by the public recording office, an
Officer's Certificate signed by a Responsible 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; and
(vi) 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, an
appraisal and a survey.
EXHIBIT A
INSTRUCTION LETTER
Washington Mutual Mortgage Securities Corp.
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________, 2003
ABN AMRO Mortgage Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
Pursuant to the Whole Loan Purchase Agreement dated as of November 1,
2003 (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
and indemnities) to:
"Pay to the order of
_________________________
without recourse" one week prior to funding
2. Assign mortgages to be recorded to U.S. Bank
National Association on or before the fifth
Business Day after the Closing Date one week prior to funding
3. Deliver to the Purchaser or its agent all Mortgage
Loan documents pertaining to each loan two business days after funding
4. Provide lost mortgage note affidavits, certified
copies of all missing mortgages, and certified
recorded copies of missing intervening
assignments one week prior to funding
5. Mortgage Loan Schedule generated by Purchaser
and agreed to by Seller one day prior to funding
Sincerely,
WASHINGTON MUTUAL MORTGAGE
SECURITIES CORP.
By:______________________________
Name:
Title:
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
Washington Mutual Mortgage Securities Corp., 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.
Dated: _______ __, 2003 ABN AMRO Mortgage Group, Inc.
By:___________________________
Name:
Title:
ACKNOWLEDGED ON _________ __, 2003
WASHINGTON MUTUAL MORTGAGE SECURITIES CORP.
By:_______________________________
Name:
Title:
STATE OF MICHIGAN )
)
COUNTY OF OAKLAND )
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 ABN AMRO Mortgage Group, Inc., 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 ABN AMRO Mortgage Group,
Inc., for the uses and purposes therein set forth, and that he was duly
authorized to execute the said instrument by the Board of Directors of said
Delaware corporation.
Given under my hand and seal, this __th day of __________, 2003.
___________________________
Notary Public
My commission expires:
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 _____________________ 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 Whole Loan
Purchase Agreement, dated as of November 1, 2003, between AAMGI, as seller, and
Washington Mutual 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 "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.
6. 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:
[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)]
________________, 2003
ABN AMRO Mortgage Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ABN AMRO Mortgage Corporation Purchase of Mortgage Loans
--------------------------------------------------------
Ladies and Gentlemen:
As General Counsel 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 Washington
Mutual Mortgage Securities Corp. (the "Purchaser") pursuant to a Whole Loan
Purchase Agreement, dated as of November 1, 2003 (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 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 ▇▇▇▇▇ 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 not an 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 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:_______________________________
I, ___________________, [Assistant Secretary] of ABN AMRO Mortgage
Group, Inc., a Delaware corporation, hereby certify that _______________________
is the duly elected, qualified and acting _______________________ of ABN AMRO
Mortgage Group, Inc. and that the signature appearing on the preceding page is
his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date:__________________
ABN AMRO MORTGAGE GROUP, INC.
By:____________________________
Name:
Title:
EXHIBIT E
SERVICING TRANSFER PROCEDURES
WASHINGTON MUTUAL INFORMATIONAL SHEET
Note: All addresses subject to revision
(i) New Servicer Name: Washington Mutual Bank,
FA ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇
Contact: ▇▇▇▇▇ Barchengcr-Analyst
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
(ii) Customer Service: ▇-▇▇▇-▇▇▇-▇▇▇▇ Monday - Friday 7:00 a.m. - 10:00 p.m.
CT, Saturday 8:00 a.m. -1:00 p.m. Central Time Correspondence Address:
Washington Mutual (List WaMu) loan number)
(iii) ▇.▇. ▇▇▇ ▇▇▇▇▇ Attention: Correspondence Dept. ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇
Lock Boxes Tax Department
Washington Mutual Bank, ▇▇ ▇▇▇▇▇▇▇▇▇▇ Mutual Bank, FA
▇.▇. ▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇
Attention: Tax Department
Service Bureau: Alltel
Tax Service: LERETA
HUD ID #: Contract WaMu for details
Optional Insurance: Contact WaMu for details
Forced Placed Ins.: Contact WaMu for details
Flood Contracts: Pinnacle, GEO Track, First American Flood Data
Services, TRETS.
HAZARD ENDORSEMENTS PAYOFF CHECKS FORWARDED:
------------------- ------------------------
Washington Mutual Bank, ▇▇ ▇▇▇▇▇▇▇▇▇▇ Mutual Bank, FA
Its Successors and/or Assigns ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 35210 ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Payoff Dept.
MORTGAGE INSURANCE WIRING PAYOFF FUNDS:
------------------ --------------------
Washington Mutual Bank, FA Contact WaMu for details
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PURCHASER'S TRANSFER DATE INSTRUCTIONS
SUBJECT PAGE
------- ----
A. General Requirements 2-3
B. Escrow/IOE 4
C. ACH Drafting/BI-Savers 5
D. Hazard Insurance Information 6-7
E. Loss Drafts 8
F. Tax Information 9
G. FHA/MIP/PMl Information 10
H. Life, A&H Disability Insurance 11
I. Assumptions 12
J. Paid-In-Full and Partial Releases 13
K. Collections/BKIFCL/REO/Default 14
L. Investor Reporting 15
M. Assignments/Document Custodian 16
N. Special Loan 17
O. Records/Microfilm 18
P. Post Transfer Date Procedures 19-20
A. GENERAL REQUIREMENTS
1. General Reports, Records and /or Listing Required
IA. Automated Conversion Data
IAl. All necessary master file data to be provided to
Alltel in an acceptable data media. Tapes should
agree to the investor cut-off date and should not
include zero principal balance loans. Test and
conversion reports due two days after each month-end
cut-off. Please send tapes (if applicable) to:
Alltel Information Services, Inc
Attention: Alltel Analyst
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(For non Alltel users and Licensed Alltel users
only)
1A2. Trial balance generated off the servicing workstation
(One hard copy during the interim servicing period).
1A3. Trial balances will be generated for each month-end
after the Settlement Date. For example if the
Settlement Date is January 1, 2003, Seller will
generate a trial balance as of January month-end and
continue to supply at each month-end until the
Transfer Date.
ON TRANSFER DATE, PLEASE FAX THE FINAL PAGE BY 9:00
A.M. CST TO ALLOW WAMU TO BALANCE.
lA4. Please provide the following reports for every month
end after the Settlement Date and at Transfer Date or
as requested:
Trial balance report Alltel report 4TB Open items report
Force laced insurance report Flood insurance report
Optional insurance report Restricted escrow listing
Binder coverage listing Mortgage insurance listing
Buydown loan listing Bankruptcy trial balance
Drafted loans listing Escrow header listing
Foreclosure trial balances No longer match criteria
Tax and Hazard listing Alltel report 1OP-2 & 3 Delinquency report separating by 30, 60, 90 & 120 days
List of balloon loans List of loans with a pre-payment penalty
ONCE ALL OF THE LOANS HAVE BEEN IDENTIFIED PLEASE
PROVIDE A FILE OR DISK IN EXCEL FORMAT LISTING
SELLER'S LOAN NUMBER, MORTGAGORS LAST NAME, ORIGINAL
UPB AND INVESTOR LOAN NUMBER.
1B. Original servicing file complete in all material respects
including copies, servicing correspondence, and other related
documentation 5 Business Days after Transfer Date.
1C. Two sets of histories and escrow analysis from inception of
each loan on microfiche or paper if history data is not being
converted. 5 Business Days after Transfer Date.
1D. Wires to Purchaser within 5 Business Days after the Transfer
Date.
1D1. A wire to Purchaser for all escrow, suspense,
buy-down and loss draft funds (where applicable) as
of the Transfer Date with a detailed listing, by loan
number, showing how the funds are to be applied.
1D2. A report representing all suspense funds and a
listing showing the application for each unapplied
payment. Provide reason for each suspense item.
1D3. Please provide a detail listing of recoverable
corporate advances and include a copy of the paid
invoices. Upon receipt and review, Washington Mutual
will reimburse.
(DO NOT NET THE FUNDS FROM THE FINAL REMITTANCE)
WIRING INSTRUCTIONS:
Washington Mutual Bank, FA
Stockton, CA
ABA# ▇▇▇▇▇▇▇▇▇
Account # 00001709406
Credit: Washington Mutual Bank, FA
Attention: Investor Accounting
1E. Sample of letter to appropriate insurance companies/agents
requesting endorsements to reflect transfer to Purchaser and
address of Purchaser (i.e.: flood, flood certification, PMI,
MIP, hazard mortgage, accident, health, and life insurance
companies should receive these notifications) to be approved
by WaMu prior to the mailing.
1F. Sample of the good-bye letters to borrowers advising of the
change in Servicer and pertinent related information. To be
approved by WaMu prior to the mailing.
1G. Listing of all loans with pending payoffs (a copy of the
payoff statement issued to the borrower must accompany this
list), pending partial releases, and any other special items.
1H. Evidence of TIN certification and that all 1098 requirements
have been met within 5 Business Days after the Transfer Date.
1I. Seller agrees to prepare tax and interest statements for the
period of January 1, 2003 through Transfer Date.
1J. Other documents or information that Purchaser may reasonably
request which are available to Seller.
IK. Please provide after the last Settlement Date with WaMu
Securities and at time of transfer a list of Co-op Loans.
1L. List of buy-down loans.
1M. Provide a list of loans with payment variances (i.e.,
Forbearance Plans), if applicable and backup notes.
B. ESCROW/TOE
2. Interest on escrow - Matrix indicating when interest is posted (monthly,
quarterly, etc.).
2A. Listing of state(s) requiring payment of interest on escrow to
be received 45 days prior to Transfer Date.
2B. Evidence that all accrued interest due on escrow has been
posted to accounts through cutoff date- two days after
Transfer Date.
C. ACH DRAFTING/BI-SAVERS
3. WaMu will continue to draft all ACH customers, unless otherwise
notified. For Alltel clients that ACH will convert, please place a bad
check stop so that no drafting will happen after the Transfer Date.
Please do not delete the ACH information prior to the Transfer Date.
Please provide the Alltel 1 LD report as of the Transfer Date.
4. Billing method (i.e., coupons, monthly billing).
5. A listing of loans set up on the Bi-Saver program along with a
description of the Bi-Saver schedule that they are on. Please provide
this information 45 days prior to Transfer Date. Please provide a copy
of the notification letter to WaMu.
D. HAZARD INSURANCE INFORMATION
6. Insurance files
6A. Seller must provide complete and accurate information
concerning all insurance records (from the servicing system)
in accordance with agency guidelines. This should include but
not limited to the following, where applicable:
6A1. Current homeowner's or fire policy number
6A2. Current flood insurance policy number
6A3. Current catastrophe policies number
6A4. Windstorm policies number
6A5. All other policies, correspondence, or information
6B. In addition, the following information is needed for each
escrow detail:
6B1. Payee (agent and/or carrier)
6B2. Policy expiration date
6B3. Coverage amount
6B4. The total annual premium
NOTE: WAMU MORTGAGE FLOOD CONTRACTS ARE WITH
PINNACLE, GEO TRACK, FIRST AMERICAN, FLOOD DATA SERVICES AND
TRANSAMERICA. [IF SELLER DOES NOT USE THESE COMPANIES,
PURCHASER IS RESPONSIBLE FOR THE COSTS INCURRED TO SET UP NEW,
LIFE OF LOAN, FLOOD CONTRACTS WITH PINNACLE.] SELLER TO
PROVIDE PURCHASER WITH ALL FLOOD DETERMINATIONS ON
TRANSFERABLE LIFE OF LOAN IN ALLTEL FORMAT (TO BE PROVIDED
PRIOR TO TRANSFER DATE). IF FLOOD CONTRACTS ARE NOT
TRANSFERABLE OR WITH A COMPANY WAMU DOES NOT USE, CONTRACTS
ARE TO BE CANCELED. PLEASE CONTACT THE FLOOD COMPANIES TO
TRANSFER THE FLOOD CERTIFICATIONS TO WASHINGTON MUTUAL. PLEASE
PROVIDE WAMU WITH COPIES OF THE NOTIFICATION LETTERS.
7. Reports and records
7A. Purchaser shall be provided the following within 5 Business
Days after Transfer Date:
7A1. Seller will be responsible for the payment of any
insurance premiums due within 30 days after the
Transfer Date. Seller to provide WaMu with a listing
of all expired or unpaid policies through 30 days
after Transfer Date sorted by insurance type (hazard,
flood, etc.). Open items report.
7A2. A separate listing should be prepared showing those
loans for which flood, earthquake and/or windstorm
insurance is required. It should also include the
expiration date & insurance company names.
7A3. Listing of all loans on direct or mass ▇▇▇▇▇▇▇▇.
7A4. If flood insurance audit was completed in last 12
months, provide a copy of findings with date of last
audit.
7A5. List of all accounts with no hazard insurance
8. Change endorsements
8A. For each loan in the transfer, notification of the transfer
should be mailed to the insurance carriers and applicable
insurance agents to substitute the lender loss payable
endorsement on hazard and private mortgage insurance policies.
If it is determined the flood contracts are transferring the
change should occur as well. These notices must be mailed 15
days prior to the Transfer Date and include reference to the
WaMu loan number.
8B. A copy of the mortgagee clause notification letter should be
faxed to WaMu prior to mailing to verify the correct wording
of the mortgagee clause.
The new mortgagee clause endorsement should read as follows:
Washington Mutual Bank, FA
Its Successors and/or Assigns
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
9. Miscellaneous
9A. As of Transfer Date, Seller shall provide a listing of all
insurance premiums due within 30 days of Transfer Date and not
paid by Seller within 5 Business Days after Transfer Date.
10. Binders
10A. Provide a listing of all loans with forced place coverage for
both hazard and flood along with the name of the company and
expiration ▇▇▇▇ (including copy of the policy) within (5)
Business Days after Transfer Date.
E. LOSS DRAFTS
11. Information required on loss drafts pending
11A. Seller shall provide Purchaser with a listing of all loans
having a loss draft pending 5 Business Days after Transfer
Date.
11B. In addition to this listing, Purchaser shall receive loss
draft files/information for each loan which contains the
following information, properly documented 3 - 5 Business Days
after Transfer Date:
11B1. Date of loss.
11B2. Cause of loss.
11B3. Amount of loss.
11B4. Amount of insurance proceeds received to date &
copies of checks received and disbursed.
l1B5. Information received from contractors or record of
conversations with contractors.
11B6. Correspondence from and/or record of conversation
with borrowers and insurance companies.
11B7. Status reports on repairs.
11B8. Inspection reports, if any.
11B9. Report on receipt of future proceeds (▇▇▇▇ expected,
amount, etc.).
11C. All loss draft checks received by Seller after Transfer Date
should be:
11C1. Clearly identified with the Seller's loan number in
the upper right hand ▇▇▇▇▇ of the check.
11C2. Date stamped and properly endorsed.
11C3. Forward to Purchaser via overnight delivery service
to:
Washington Mutual Bank, FA
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Acquisitions Department
F. TAX INFORMATION
12. Washington Mutual uses LERETA. For Sellers using LERETA all tax
contracts will be transferred with life of loan transferable contracts.
Seller must notify the applicable tax service to determine the status
of the tax contracts. WaMu will need a copy of that notification. The
Seller must work with the tax service to ensure that all loans are
contracted prior to Transfer Date. In order to ensure that the tax
contracts are set up /transferred correctly, WaMu is requiring that 30
days prior to the Transfer Date the seller must have their tax service
provide LERETA with the tax contract information tape (Tax tape). A
final Tax tape will also be required at the transfer date. This final
tape should only include the loans
that transferred to WaMu. The final tape is required within 5 business
days after the transfer date. The tapes will need to be sent to the
following address:
Contact WaMu for address.
For those loans that transfer without contracts, WaMu will require a
valid legal description and be responsible for any costs incurred in
connection with those tax contracts. Seller to provide to WaMu with the
following information within 5 Business Days after the Final Settlement
Date and within 5 Business Days after the Transfer Date:
12A. Open items report. Seller is responsible for the paying all
real estate taxes, ground rents, water, sewer and municipal
charges, leasehold payments or similar items that are required
to be paid within 30 days
12B. Report of all loans without tax service contracts.
12C. Forward all bills received after Transfer Date to:
Washington Mutual Bank, FA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Tax Department
12D. Seller will provide paid bills and/or receipts for loans
included in each applicable Transfer Date on an as needed
basis within 5 days of request.
12E. Listing of loans pending tax refunds.
12F. Seller to provide permission for LERETA to provide any and all
historical and backup information to the Purchaser.
G. FHA/MIP/PMI INFORMATION
13. Notice of change of servicer
13A. Seller to provide Purchaser with fiche copies of notification
to all PMI companies involved with loans included in Transfer
Date. Please forward this to WaMu within 5 Business Days after
the Transfer Date.
14. Payment of premiums
14A. Seller to pay all PMI/MIP premiums due prior to the Transfer Date.
15. Miscellaneous reports due to Purchaser to be received 5 Business Days
after the final settlement date and 3-5 Business Days after the
Transfer Date.
15A. For each FHA loan, with monthly premiums, Sellers shall
prepare a listing in their loan number order which will
include the following.
15A1. FHA case number
15A2. Anniversary due date
15A3. Monthly remittance amount
15A4. Next month for which MIP is due
15A5. Amount of Annual MIP due HUD as shown by HUD on their
advance Notice of S/F Annual MIP notice
15A6. Total amount of MIP paid year to date
15B. Seller agrees to reimburse WaMu for any and all interest
and/or late charges assessed which result from delinquent
payment of premiums due prior to the Transfer Date.
15C. Provide a disk of loans with LTV's greater than 80% without
PMI at Transfer Date.
15D. Listing of loans with lender paid PMI/MI with amounts paid
(monthly/annually). If applicable, an accounting of the
percentage for paying the insurance along with a wire of the
funds.
15E. PMI Certification Uninsured Report.
H. LIFE, A&H DISABILITY AND OTHER "OPTIONAL" INSURANCE
16. Seller will provide WaMu with a listing of accounts with optional
insurance 5 Business Days after the Final Settlement date and 60 days
prior to Transfer Date.
16A. Records and Information Required
16A1. Sellers' loan number.
16A2. Mortgagor(s) name(s) and insured(s) name(s).
16A3. Policy/Certificate number (exception report to be
provided where information is not available).
16A4. Type of insurance & insurance carrier.
16A5. Effective date (exception report to be provided where
information is not available).
16A6. Amount of premium.
16A7. Due date of premium.
16A8. Payee codes
16B. A list of those mortgagors receiving benefits under a policy
claim; this list should contain the name, loan number,
insurance benefit amount and insurance company. A copy of the
claim file should also be sent.
16C. List of loans in transfer with open and closed claims.
16D. Copy of certificate/policy/master policy for each type of
coverage maintained (exception report to be provided where the
information is not available).
16E. Notify each insurance carrier at least 15 days prior to the
Transfer Date.
16F. Provide A&H disability rates.
I. ASSUMPTIONS
17. Assumption information pending at time of transfer due to Purchaser
within 3 - 5 Business Days after Transfer Date.
17A. Seller shall provide Purchaser with a listing of all loans
pending assumption as of a Transfer Date.
17B. Seller shall provide Purchaser with a current status report on
each pending assumption which indicates the stages of
completion.
17C. Seller shall forward to Purchaser via overnight delivery all
required documents for each loan(s) on which the assumption
processing has not been completed.
18. Information required pending assumption statements
18A. Sellers shall provide Purchaser with copies of all assumption
statements/packages issued up to Transfer Date for which no
assumption papers have been received 3 - 5 Business Days after
Transfer Date.
18B. The assumption statements should be placed, in Sellers' loan
number order, in separate files appropriately labeled.
19. Information required on name changes
19A. Seller shall provide a listing of all pending legal name
changes along with the appropriate documentation (quit claims,
death certificates, divorce decrees, etc.) 3 - 5 business days
after Transfer Date.
J. PAID-IN-FULL AND PARTIAL RELEASES
20. Information required on pending paid-In-full
20A. All checks received through Transfer Date are to be applied.
20B. Paid-in-full checks received, but not applied by Transfer
Date, will be endorsed and date stamped and forwarded
immediately upon receipt via over night mail to Purchaser.
Each check should indicate the Sellers' loan number WaMu loan
number, mortgagor name, property city and state.
Washington Mutual Bank, FA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇-▇▇▇▇
Attention: Payoff Dept.
▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
20C. If payoff funds are being wired, please call and notify WaMu
when funds are being wired. Use the following wiring
instructions:
Contact WaMu for instructions
20D. Seller agrees to reimburse Purchaser for additional per diem
interest on any payoff not forwarded to Purchaser within 24
hours of receipt. Seller will forward to WaMu a check in the
appropriate amount upon their receipt of appropriately
documented request.
21. Information required on pending partial releases (if applicable)
21A. Seller shall provide Purchaser with a listing of all loans on
which a partial release is pending, along with an explanation
for each case, and all documentation received to date 3 - 5
Business Days after Transfer Date.
21B. Seller shall provide Purchaser with copies of all
correspondence forwarded to any governmental agency or
investor for their approval 3 -5 Business Days after Transfer
Date.
K. COLLECTIONS / BANKRUPTCY / FORECLOSURE / REO / DEFAULT REPORTING
22. Collection records and reports required
22A. Seller shall provide to Purchaser the following within 3 -5
Business Days after Transfer Date:
22A1. All collection records.
22A2. Files on accounts 60 or more days past due must
include all collection documents, including
collection comments/history and copies of all letters
to the mortgagor that pertain to the current default
as well as copy of the most recent property
inspection.
22A3. A delinquency report sorted by 30,60 and 90+ days,
foreclosure and bankruptcy.
22B. Listing of all accounts currently on a repayment plan (please
note that Purchaser will honor signed written repay agreements
only) - 2 weeks prior to Transfer Date and 2 days after
Transfer Date.
22C. Collection files related to default reporting. These files
should contain copies of all required default notices on the
FHA, VA and /or private investor forms 3 - 5 Business Days
after Transfer Date.
22D. All on-line collection activity report will be microfiche and
provided to WaMu.
22E. Originals or copies of all bills or receipts for Corporate
Advances (attorney fees, property preservation, etc.) in each
individual file to be received 3 -5 Business Days after
Transfer Date.
22F. A Payee Code Listing identifying all payees 3 -5 Business Days
after Transfer Date (alpha order).
22G. Individual Bankruptcy, Foreclosure, and REO files. Please
ensure any bills are in the files. The files need to be
shipped to the address listed below.
22H. List of loans being considered for HUD assistance, Deed in
Lieu, or any other Loss Mitigation programs.
22I. Copies of the notification to Attorneys and Trustees:
Washington Mutual Bank, FA
539 South 4'" Ave.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
23. Corporate advance
23A. Corporate advance activity by payee - from inception date.
24. List of loans in Foreclosure, REO, and Bankruptcy with loss drafts
pending 3 -5 Business Days after Transfer Date.
L. INVESTOR REPORTING REQUIREMENTS
25. The remittance type for these loans is scheduled / scheduled. At the
time of transfer we will need to settle the pre-paids vs. delinquents.
If an Alltel client please provide the P139, 50Y and T62D reports
within 5 Business Days after the Transfer Date. Please contact WaMu for
non-Alltel clients for comparable reports.
M. ASSIGNMENTS/DOCUMENT CUSTODIAN
26. Please ensure the notes are properly endorsed and assignments are
prepared to the Trustee's and sent out for recording.
N. SPECIAL LOANS
27. Buydown Loans
27A. Within 3-5 Business Days of the Transfer Date, the Seller must
provide the report identifying all buy-down loans with funds
remaining, which reflect the following:
27A1. P & I's or subsidies
27A2. Payment effective dates
27A3. Notice of last date of borrower notification
27A4. Please provide the list of the buy-down loans and
copies of the buy-down agreements 60 days prior to
the Transfer Date and provide a list of buydown loans
after the Transfer Date, as well.
28. Graduated Payment Mortgage Loans N/A
29. ARM Loans
29A. Twenty (20) days prior to the Transfer Date, the Seller must
provide Purchaser with report(s) identifying:
29A1. All ARM loans
29A2. If convertible, what fixed rate calculation
parameters are based on.
29A3. Each ARM product as reflected on the current
servicing system, identifying what the adjustment
parameters are.
29A4. The next interest rate/payment change dates.
29A5. Copies of the last payment change notices and notice
of last date of borrower notification.
30. Balloon Loans
30A. Within 3 - 5 Business Days of the Transfer Date, the Seller
must provide Purchaser with report(s) of all Balloon loans
indicating:
30A1. Product type
30A2. Maturity date
O. RECORDS/MICROFILM
31. Arrangements shall be made for inside delivery 3 - 5 Business Days
after the Transfer Date of the files and records being transferred.
32. WaMu can provide Seller with labels to be placed on the loan files.
33. Transmittals must be used for all shipments.
33A. Manifest must be in each box
33B. Master manifest to be to ▇▇▇▇▇ ▇▇▇▇▇
34. Loan files/microfiche should be forwarded to:
Washington Mutual Bank, FA
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Management
▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
35. Reports and processing files (pending assumptions/payoffs, for example)
should be forwarded to:
Washington Mutual Bank, FA
▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
P. POST TRANSFER DATE PROCEDURES
36. Mortgage payments received after Transfer Date
36A. Any mortgage payments received by Seller after Transfer Date
should be:
36A1. Clearly identified with WaMu's loan number in the
upper right hand ▇▇▇▇▇ of the check.
36A2. Date stamped and properly endorsed.
37. Forwarded to Purchaser along with a transmittal of each loan involved,
via overnight delivery service to:
Washington Mutual Bank, FA
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Cashiering Dept.
38. Payments must be forwarded to Purchaser on a daily basis.
38B. All checks received by Seller should be date stamped and
endorsed as follows:
Pay to the Order of
Washington Mutual Bank, FA
Without Recourse
By:__________________________
38C. For a period of sixty (60) days following the Transfer Date(s)
Seller will send all moneys received to Purchaser via
overnight delivery. After sixty (60) days following the
Transfer Date(s). Seller will return all payments received by
Seller to mortgagors with instructions to remit directly to
Purchaser.
39. NSF checks after Transfer Date
39A. All checks related to NSF's, NSF on draft accounts, stop
payments, etc., which were not reversed by Seller prior to
cut-off will be handled as follows:
Washington Mutual Bank, FA
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Cashiering Department
39A1. Seller will forward original items to WaMu
39A2. Upon receipt, Purchaser will reverse funds from the
appropriate account(s).
39A3. Upon reversal, WaMu will forward funds to Seller.
40. Other checks received after Transfer Date
40A. The following procedures will apply to checks (other than
payments, NSF's or stop payments) received by Seller after
Transfer Date:
40A1. Check will be clearly identified with the Sellers'
loan number in the upper right hand ▇▇▇▇▇.
40A2. Checks that include funds for two or more accounts
should be accompanied by detail as reasonable,
providing Sellers' loan number and amount due to each
account.
40A3. Checks should be properly endorsed.
40A4. Purpose of check should be identified and grouped
accordingly (i.e. tax refund, loss draft, payment of
special insurance, principal payment, etc.).
40A5. Checks should be forwarded to Purchaser via overnight
delivery service to:
Washington Mutual Bank, FA
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Cashiering Dept.
41. Seller agrees to pay expenses of overnight delivery service on all
items being forwarded to Purchaser for a period of sixty (60) days.
42. Correspondence received after Transfer Date
42A. All correspondence, insurance renewals, cancellation notices,
customer inquiries, etc., received by Seller after Transfer
Date should be identified with the Sellers' loan number and
forwarded (via overnight delivery) on a daily basis to:
Washington Mutual Bank, FA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Correspondence Dept.
EXHIBIT F
FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE
I, [identify the certifying individual], on behalf of ABN AMRO Mortgage
Group, Inc. ("AAMG") certify that:
1. I have reviewed the annual report on Form 10-K for the fiscal year
[___], and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual report,
of the trust (the "Trust") created pursuant to the Pooling and Servicing
Agreement dated November 1, 2003 (the "P&S Agreement") among ABN AMRO Mortgage
Corporation (the "Depositor"), ABN AMRO Mortgage Group, Inc. (the "Servicer")
and JPMorgan Chase Bank (the "Trustee"); and
2. Based on my knowledge, the information in these reports and any
other information provided by AAMG, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which the
statements were made, not misleading as of the last day of the period covered by
that annual report.
Date:____________
_________________________________
[Signature]
Name:
Title: