MORTGAGE LOAN PURCHASE AGREEMENT

 

                        Mortgage Loan Purchase Agreement

                        --------------------------------

 

                  Mortgage Loan Purchase Agreement (the "AGREEMENT"), dated as

of December 23, 2003 between Washington Mutual Mortgage Securities Corp. (the

"SELLER") and ABN AMRO Mortgage Corporation (the "PURCHASER").

 

                  Subject to the terms and conditions of this Agreement, the

Seller agrees to sell and the Purchaser agrees to purchase certain mortgage

loans (the "MORTGAGE LOANS") as described herein and as identified on the

Mortgage Loan Schedule defined in SECTION 2 hereof. The Mortgage Loans will be

purchased on a servicing retained 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 general characteristics set forth in this

Agreement and specifically identified on the Mortgage Loan Schedule, for the

Purchase Price set forth below in SECTION 3(A) hereof and having an aggregate

principal balance on and as of the date of such Mortgage Loan Schedule (the

"CUT-OFF DATE") of approximately $354,678,057 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

December 23, 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 (each a "MORTGAGOR") and the related mortgages, deeds of trust or other

instruments securing a Mortgage Loan (the "MORTGAGES") to be purchased by and

delivered to the Purchaser on the Closing Date (as such may be amended prior to

the Closing Date by mutual agreement of the parties) (the "MORTGAGE LOAN

SCHEDULE"). The "Mortgage Loan Schedule" as of the Closing Date shall refer to

the Mortgage Loan Schedule as delivered on the Cut- Off Date related to such

Mortgage Loans to be purchased by or on behalf of the Purchaser pursuant

 

 

 

 

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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 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 (excluding the servicing rights related thereto) and all proceeds

thereof,

 

----------------------

         *   Provided upon request by Washington Mutual Mortgage Securities Corp.

 

 

                                        -2-

 

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wherever located, including without limitation, all amounts in respect of

principal and interest received or receivable with respect to Mortgage Loan

payments due after the Cut-Off Date (and including scheduled payments of

principal and interest due after the Cut-Off Date but received by the Seller on

or before the Cut-Off Date, but not including payments of principal and interest

due on the Mortgage Loans on or before the Cut-Off Date), together with the

proceeds of any related mortgage insurance policies. Such transfer shall be made

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 (excluding 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 and the Trustee (as defined in the Pooling and

Servicing Agreement, dated as of December 1, 2003 (the "POOLING AND SERVICING

AGREEMENT"), among the Purchaser, as depositor, Washington Mutual Mortgage

Securities Corp., as servicer, and U.S. Bank National Association, as trustee) a

first priority security interest in the Mortgage Loans and in the proceeds

thereof of any kind or nature whatsoever, and in the proceeds of any related

insurance policies, subject to the satisfaction or waiver of the conditions set

forth in SECTION 11 hereof, and shall take, or shall cause to have been taken,

all steps necessary prior to the Closing Date to perfect such security interest

in the Purchaser.

 

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)

after the Cut-Off Date but due prior

 

 

                                        -3-

 

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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) In furtherance of the provisions of SECTION 5(C) hereof, the Seller

agrees to take or cause to be taken such further actions to execute, deliver and

file or cause to be executed, delivered and filed, such further documents and

instruments (including, without limitation, any UCC financing statements) as may

be necessary, or as the Purchaser may reasonably request, in order to perfect

and maintain the security interest created pursuant to said section and to

otherwise fully effectuate the purposes, terms and conditions of this Agreement,

and the Purchaser shall cooperate in any such action.

 

         (b) The Seller shall: (i) promptly execute, deliver, and file any

financing statements, amendments, continuation statements, assignments,

certificates and other documents with respect to such security interest as may

be necessary to enable the Purchaser to perfect or to maintain the perfection of

such security interest, each in form and substance satisfactory to the

Purchaser; and the Seller hereby grants to the Purchaser, subject to the

satisfaction or waiver of the conditions set forth in SECTION 11 hereof, the

right, at the Purchaser's option, to file any or all such financing statements,

amendments, continuation statements, assignments, certificates and other

documents pursuant to the UCC and otherwise without its signature and hereby

irrevocably appoints the Purchaser, subject to the satisfaction or waiver of the

conditions set forth in SECTION 11 hereof, as its attorney-in-fact to execute,

deliver and file any such financing statements, amendments, continuation

statements, assignments, certificates and other documents in the Seller's name

and to perform all other acts which the Purchaser deems appropriate to perfect

or to maintain the perfection of the security interest; and (ii) notify the

Purchaser within five (5) days after the occurrence of any of the following: (A)

any change in the Seller's corporate name or any trade name; (B) any change in

the Seller's location of its chief executive office or principal place of

business; and (C) any merger or consolidation or other change in Seller's

identity or material change in its corporate structure.

 

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

 

 

                                       -4-

 

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         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;

 

                  (vi) The subservicers servicing on behalf of the seller are

         approved conventional servicers 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;

 

 

 

                                       -5-

 

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                            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 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;

 

 

                                       -6-

 

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                           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;

 

                           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;

 

 

                                       -7-

 

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                           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 93.95% of the Mortgage

                  Loans measured by principal balance were to be secured by

                  owner-occupied residences and approximately 6.05% 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 Section 1.860 G-2(f) of the

                  REMIC provisions or any similar rule;

 

                           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

 

 

                                       -8-

 

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                  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 impa