EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement") dated as of
November 29, 2001 among GMAC Mortgage Corporation, a Pennsylvania corporation,
having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as seller
("GMACM"), ▇▇▇▇▇▇ Funding LLC, a Delaware limited liability company, having an
office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, c/o GMAC Mortgage
Corporation, as seller ("Witmer" and, together with GMACM, each a "Seller" and
collectively, the "Sellers") and Residential Asset Mortgage Products, Inc., a
Delaware corporation, having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser").
WHEREAS, GMACM, in the ordinary course of its business acquires and
originates mortgage loans and acquired or originated all of the mortgage loans
listed on the Mortgage Loan Schedule attached as Schedule I hereto (the
"Mortgage Loans");
WHEREAS, GMACM sold a portion of the Mortgage Loans (the "▇▇▇▇▇▇
Mortgage Loans"), to ▇▇▇▇▇▇, pursuant to a Mortgage Loan Purchase and Servicing
Agreement (the "▇▇▇▇▇▇ Purchase Agreement"), dated as of October 31, 2001, among
▇▇▇▇▇▇, as purchaser, GMACM, as seller and servicer, and GMAC Residential
Holding Corp., as performance guarantor;
WHEREAS, GMACM owns the Cut-off Date Principal Balances for the portion
of Mortgage Loans identified on the Mortgage Loan Schedule attached as Schedule
I-A hereto (the "GMACM Mortgage Loans");
WHEREAS, ▇▇▇▇▇▇ owns the Cut-off Date Principal Balances of the ▇▇▇▇▇▇
Mortgage Loans identified on the Mortgage Loan Schedule attached as Schedule I-B
hereto;
WHEREAS, the parties hereto desire that: (i) GMACM sell the Cut-off Date
Principal Balances of the GMACM Mortgage Loans to the Purchaser on the Closing
Date pursuant to the terms of this Agreement, and (ii) ▇▇▇▇▇▇ sell the Cut-off
Date Principal Balances of the ▇▇▇▇▇▇ Mortgage Loans to the Purchaser on the
Closing Date pursuant to the terms of this Agreement;
WHEREAS, the parties hereto desire that GMACM continue servicing the
▇▇▇▇▇▇ Mortgage Loans and the GMACM Mortgage Loans; and
WHEREAS, GMACM has entered into an Amended and Restated Limited
Liability Company Agreement (the "LLC Agreement") dated as of October 31, 2001
with ▇▇▇▇▇▇ Member Corp. and Bank One, National Association pursuant to which
GMACM has been appointed the administrator of ▇▇▇▇▇▇ (the "Administrator"),
pursuant to which GMACM is authorized to execute documents on behalf of ▇▇▇▇▇▇
and cause ▇▇▇▇▇▇ to deliver or perform the obligations of ▇▇▇▇▇▇ set forth in
such documents;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
The following terms are defined as follows:
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Aggregate Principal Balance
(as of the Cut-off Date): $337,216,757.58 (after deduction of scheduled
principal payments due on or before the
Cut-off Date, whether or not collected, but
without deduction of prepayments that may
have been made but not reported to the
Sellers as of the close of business on such
date). With respect to the GMACM Mortgage
Loans, $37,410,565.82. With respect to the
▇▇▇▇▇▇ Mortgage Loans, $299,806,191.76.
Closing Date: November 29, 2001, or such other date as may
be agreed upon by the parties hereto.
Cut-off Date: November 1, 2001.
Mortgage Loan: A fixed rate,
fully-amortizing, first lien,
residential conventional
mortgage loan having a term of
not more than 30 years and
secured by Mortgaged Property.
Mortgaged Property: A single parcel of real property on which is
located a detached single-family residence, a
two-to-four family dwelling, a townhouse, an
individual condominium unit, or an individual
unit in a planned unit development, or a
proprietary lease in a unit in a
cooperatively-owned apartment building and
stock in the related cooperative corporation.
Pooling and Servicing Agreement: The
pooling and servicing
agreement, dated as of November
29, 2001, among Residential
Asset Mortgage Products, Inc.,
as company, GMAC Mortgage
Corporation, as servicer and
Bank One, National Association,
as trustee (the "Trustee").
Repurchase Event: With respect to any Mortgage Loan as to which
the related Seller delivers an affidavit
certifying that the original Mortgage Note
has been lost or destroyed, a subsequent
default on such Mortgage Loan if the
enforcement thereof or of the related
Mortgage is materially and adversely affected
by the absence of such original Mortgage Note.
All capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement. The parties intend
hereby to set forth the terms and conditions upon which the proposed
transactions will be effected and, in consideration of the premises and the
mutual agreements set forth herein, agree as follows:
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SECTION 1. Agreement to Sell and Purchase Mortgage Loans. GMACM agrees to sell
to the Purchaser and the Purchaser agrees to purchase from GMACM the GMACM
Mortgage Loans having an aggregate principal balance equal to the Aggregate
Principal Balance of the GMACM Mortgage Loans. ▇▇▇▇▇▇ agrees to sell to the
Purchaser and the Purchaser agrees to purchase from ▇▇▇▇▇▇ certain ▇▇▇▇▇▇
Mortgage Loans having an aggregate principal balance equal to the Aggregate
Principal Balance of the ▇▇▇▇▇▇ Mortgage Loans.
SECTION 2. Mortgage Loan Schedule. GMACM has provided to the Purchaser a
schedule setting forth all of the GMACM Mortgage Loans to be purchased on the
Closing Date under this Agreement, which shall be attached hereto as Schedule
I-A ("GMACM Mortgage Loan Schedule"). GMACM on behalf of ▇▇▇▇▇▇ has provided to
the Purchaser a schedule setting forth all of the ▇▇▇▇▇▇ Mortgage Loans to be
purchased on the Closing Date under this Agreement, which shall be attached
hereto as Schedule I-B ("▇▇▇▇▇▇ Mortgage Loan Schedule" and, together with the
GMACM Mortgage Loan Schedule, the "Mortgage Loan Schedule").
SECTION 3. Purchase Price of Mortgage Loans. The purchase price (the "Purchase
Price") to be paid to GMACM by the Purchaser for the GMACM Mortgage Loans shall
be the sum of (i) $38, 487,626.99 and (ii) the Class PO, Class IO Certificates
and a 0.01% Percentage Interest in each of the Class R-I Certificates and Class
R-II Certificates issued pursuant to the Pooling and Servicing Agreement. The
Purchase Price to be paid to ▇▇▇▇▇▇ by the Purchaser for the ▇▇▇▇▇▇ Mortgage
Loans shall be an amount equal to $308,437,699.98. The cash portion of the
Purchase Price due to GMACM shall be paid by wire transfer of immediately
available funds on the Closing Date to the account specified by GMACM. The
Purchase Price due to ▇▇▇▇▇▇ shall be paid by wire transfer of immediately
available funds on the Closing Date to the account specified by ▇▇▇▇▇▇.
The Purchaser and Sellers intend that the conveyance by the Sellers to
the Purchaser of each of the Seller's right, title and interest in and to their
respective Mortgage Loans pursuant to this Agreement shall be, and be construed
as, a sale of their respective Mortgage Loans by the related Seller to the
Purchaser. It is, further, not intended that such conveyance be deemed to be a
grant of a security interest in the Mortgage Loans by each Seller to the
Purchaser to secure a debt or other obligation of such Seller. However, in the
event that the Mortgage Loans are held to be property of the related Seller, or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans, then it is intended that, (a) this Agreement shall be and
hereby is a security agreement within the meaning of Articles 9 of the
Pennsylvania Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; (b) the conveyance provided for in this Section
shall be deemed to be, and hereby is, a grant by each Seller to the Purchaser of
a security interest in such Seller's right, title and interest, whether now
owned or hereafter acquired, in and to the following: (A) the Mortgage Loans
sold by such Seller, including (i) with respect to each Cooperative Loan, the
related Mortgage Note, Security Agreement, Assignment of Proprietary Lease,
Cooperative Stock Certificate, Cooperative Lease, (ii) with respect to each
Mortgage Loan other than a Cooperative Loan, the related Mortgage Note and
Mortgage and (iii) any insurance policies and all other documents in the related
Mortgage File, (B) all amounts payable pursuant to the Mortgage Loans in
accordance with the terms thereof, (C) all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, (D) all accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, goods, letters of credit, letter-of-credit
rights, oil, gas, and other minerals, and investment property consisting of,
arising from or relating to any of the foregoing and (E) all proceeds of the
foregoing; (c) the possession by the Trustee, the Custodian or any other agent
of the Trustee of any of the foregoing shall be deemed to be possession by the
secured party, or possession by a purchaser or a person holding for the benefit
of such secured party, for purposes of perfecting the security interest pursuant
to the Pennsylvania Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction (including, without limitation, Sections 9-313
and 9-314 thereof); and (d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
from, securities intermediaries, bailees or agents of, or persons holding for,
the Trustee (as applicable) for the purpose of perfecting such security interest
under applicable law. Each Seller shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that, if
this Agreement were determined to create a security interest in the Mortgage
Loans and the other property described above, such security interest would be
determined to be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement. Without limiting the generality of the foregoing, each Seller shall
prepare and deliver to the Purchaser not less than 15 days prior to any filing
date, and the Purchaser shall file, or shall cause to be filed, at the expense
of each Seller, all filings necessary to maintain the effectiveness of any
original filings necessary under the Uniform Commercial Code as in effect in any
jurisdiction to perfect the Purchaser's security interest in the Mortgage Loans,
including without limitation (x) continuation statements, and (y) such other
statements as may be occasioned by (1) any change of name of such Seller or the
Purchaser, (2) any change of type or jurisdiction of organization of such
Seller, or (3) any transfer of any interest of such Seller in any Mortgage Loan.
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Notwithstanding the foregoing, (i) GMACM in its capacity as Servicer
shall retain all servicing rights (including, without limitation, primary
servicing and master servicing) relating to or arising out of the Mortgage
Loans, and all rights to receive servicing fees, servicing income and other
payments made as compensation for such servicing granted to it under the Pooling
and Servicing Agreement pursuant to the terms and conditions set forth therein
(collectively, the "Servicing Rights") and (ii) the Servicing Rights are not
included in the collateral in which the Sellers grant a security interest
pursuant to the immediately preceding paragraph.
SECTION 4. Record Title and Possession of Mortgage Files. Each Seller hereby
sells, transfers, assigns, sets over and conveys to the Purchaser, without
recourse, but subject to the terms of this Agreement and each Seller hereby
acknowledges that the Purchaser, subject to the terms of this Agreement, shall
have all the right, title and interest of such Seller in and to the related
Mortgage Loans. From the Closing Date, but as of the Cut-off Date, the ownership
of each Mortgage Loan, including the Mortgage Note, the Mortgage, the contents
of the related Mortgage File and all rights, benefits, proceeds and obligations
arising therefrom or in connection therewith, has been vested in the Purchaser.
All rights arising out of the Mortgage Loans including, but not limited to, all
funds received on or in connection with the Mortgage Loans and all records or
documents with respect to the Mortgage Loans prepared by or which come into the
possession of the related Seller shall be received and held by such Seller in
trust for the exclusive benefit of the Purchaser as the owner of the Mortgage
Loans. On and after the Closing Date, any portion of the related Mortgage Files
or servicing files related to the Mortgage Loans (the "Servicing Files") in
either Seller's possession shall be held by GMACM in a custodial capacity only
for the benefit of the Purchaser and shall be promptly delivered to GMACM in the
case of the Mortgage Files or Servicing Files in possession of ▇▇▇▇▇▇. GMACM
shall release its custody of any contents of the related Mortgage Files or
Servicing Files only in accordance with written instructions of the Purchaser or
the Purchaser's designee.
SECTION 5. Books and Records. The sale of each Mortgage Loan has been reflected
on each Seller's balance sheet and other financial statements as a sale of
assets by such Seller. Each Seller shall be responsible for maintaining, and
shall maintain, a complete set of books and records for the Mortgage Loans which
shall be appropriately identified in such Seller's computer system to clearly
reflect the ownership of the Mortgage Loans by the Purchaser.
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SECTION 6. Delivery of Mortgage Notes.
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(a) On or prior to the Closing Date, in connection with the conveyance by GMACM
of the GMACM Mortgage Loans sold by it and the conveyance by ▇▇▇▇▇▇ of the
▇▇▇▇▇▇ Mortgage Loans sold by it, GMACM shall deliver to the Purchaser or the
Custodian, as directed by the Purchaser, the original Mortgage Note, with
respect to each Mortgage Loan so assigned, endorsed without recourse in blank,
or in the name of the Trustee as trustee, and signed by an authorized officer
(which endorsement shall contain either an original signature or a facsimile
signature of an authorized officer of GMACM, and if in the form of an allonge,
the allonge shall be stapled to the Mortgage Note), with all intervening
endorsements showing a complete chain of title from the originator to GMACM. If
the Mortgage Loan was acquired by the endorser in a merger, the endorsement must
be by "____________, successor by merger to [name of predecessor]". If the
Mortgage Loan was acquired or originated by the endorser while doing business
under another name, the endorsement must be by "____________ formerly known as
[previous name]." The delivery of each Mortgage Note to the Purchaser or the
Custodian is at the expense of GMACM.
In lieu of delivering the Mortgage Note relating to any Mortgage
Loan, the Sellers may deliver or cause to be delivered a lost note affidavit
from the related Seller or GMACM stating that the original Mortgage Note was
lost, misplaced or destroyed, and, if available, a copy of each original
Mortgage Note; provided, however, that in the case of Mortgage Loans which have
been prepaid in full after the Cut-off Date and prior to the Closing Date,
GMACM, in lieu of delivering the above documents, may deliver to the Purchaser a
certification to such effect and shall deposit all amounts paid in respect of
such Mortgage Loan in the Payment Account on the Closing Date.
(b) If any Mortgage Note is not delivered to the Purchaser (or the Custodian as
directed by the Purchaser) or the Purchaser discovers any defect with respect to
a Mortgage Note which materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Purchaser shall give prompt
written specification of such defect or omission to GMACM, and GMACM shall cure
such defect or omission in all material respects or repurchase such Mortgage
Loan or substitute a Qualified Substitute Mortgage Loan in the manner set forth
in Section 7.03. It is understood and agreed that the obligation of GMACM to
cure a material defect in, or substitute for, or purchase any Mortgage Loan as
to which a material defect in, or omission of, a Mortgage Note exists, shall
constitute the sole remedy respecting such material defect or omission available
to the Purchaser, Certificateholders or the Trustee on behalf of
Certificateholders.
(c) All other documents contained in the Mortgage File and any original
documents relating to the Mortgage Loans not contained in the Mortgage File or
delivered to the Purchaser, are and shall be retained by the Servicer in trust
as agent for the Purchaser.
In the event that in connection with any Mortgage Loan: (a) the
original recorded Mortgage (or evidence of submission to the recording office),
(b) all interim recorded assignments, (c) the original recorded modification
agreement, if required, or (d) evidence of title insurance (together with all
riders thereto, if any) satisfying the requirements of clause (I)(ii), (iv),
(vi) or (vii) of the definition of Mortgage File, respectively, is not in the
possession of the Servicer concurrently with the execution and delivery hereof
because such document or documents have not been returned from the applicable
public recording office, or, in the case of each such interim assignment or
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modification agreement, because the related Mortgage has not been returned by
the appropriate recording office, in the case of clause (I)(ii), (iv) or (vi) of
the definition of Mortgage File, or because the evidence of title insurance has
not been delivered to the related Seller by the title insurer in the case of
clause (I)(vii) of the definition of Mortgage File, the Servicer shall use its
best efforts to obtain, (A) in the case of clause (I)(ii), (iv) or (vi) of the
definition of Mortgage File, such original Mortgage, such interim assignment, or
such modification agreement, with evidence of recording indicated thereon upon
receipt thereof from the public recording office, or a copy thereof, certified,
if appropriate, by the relevant recording office, or (B) in the case of clause
(I)(vii) of the definition of Mortgage File, evidence of title insurance.
(d) If any of the documents held by the Servicer pursuant to clause (c) above
are missing or defective in any other respect and such missing document or
defect materially and adversely affects the interests of the Certificateholders
in the related Mortgage Loan, GMACM shall cure or repurchase such Mortgage Loan
or substitute a Qualified Substitute Mortgage Loan in the manner set forth in
Section 7.03. It is understood and agreed that the obligation of GMACM to cure a
material defect in, or substitute for, or purchase any Mortgage Loan as to which
a material defect in or omission of a constituent document exists, shall
constitute the sole remedy respecting such material defect or omission available
to the Purchaser, Certificateholders or the Trustee on behalf of
Certificateholders.
(e) If any assignment is lost or returned unrecorded to the Servicer because of
any defect therein, GMACM shall prepare a substitute assignment or cure such
defect, as the case may be, and the Servicer shall cause such assignment to be
recorded in accordance with this Section.
SECTION 7. Representations and Warranties.
SECTION 7.01. Representations and Warranties of Sellers. (i) GMACM represents,
warrants and covenants to the Purchaser that as of the Closing Date or as of
such date specifically provided herein:
(a) GMACM is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Pennsylvania and is or
will be in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of each
Mortgage Loan;
(b) GMACM has the power and authority to make, execute, deliver
and perform its obligations under this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement; this
Agreement constitutes a legal, valid and binding obligation of GMACM,
enforceable against GMACM in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a proceeding at law or in
equity) or by public policy with respect to indemnification under applicable
securities laws;
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(c) The execution and delivery of this Agreement by GMACM and its
performance and compliance with the terms of this Agreement will not violate
GMACM's Certificate of Incorporation or Bylaws or constitute a material default
(or an event which, with notice or lapse of time, or both, would constitute a
material default) under, or result in the material breach of, any material
contract, agreement or other instrument to which GMACM is a party or which may
be applicable to GMACM or any of its assets;
(d) No litigation before any court, tribunal or governmental body
is currently pending, nor to the knowledge of GMACM is threatened against GMACM,
nor is there any such litigation currently pending, nor to the knowledge of
GMACM threatened against GMACM with respect to this Agreement that in the
opinion of GMACM has a reasonable likelihood of resulting in a material adverse
effect on the transactions contemplated by this Agreement;
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by GMACM of or compliance by GMACM with this Agreement, the sale of
the Mortgage Loans or the consummation of the transactions contemplated by this
Agreement except for consents, approvals, authorizations and orders which have
been obtained;
(f) The consummation of the transactions contemplated by this
Agreement is in the ordinary course of business of GMACM, and the transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages relating to
the GMACM Mortgage Loans by GMACM pursuant to this Agreement are not subject to
bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction;
(g) GMACM did not select such Mortgage Loans in a manner that it
reasonably believed was adverse to the interests of the Purchaser based on the
related Seller's portfolio of conventional non-conforming Mortgage Loans;
(h) GMACM will treat the sale of the Mortgage Loans to the
Purchaser as a sale for reporting and accounting purposes and, to the extent
appropriate, for federal income tax purposes;
(i) GMACM is an approved seller/servicer of residential mortgage
loans for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac. GMACM is in good standing to sell mortgage
loans to and service mortgage loans for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and no event
has occurred which would make GMACM unable to comply with eligibility
requirements or which would require notification to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac;
(j) No written statement, report or other document furnished or
to be furnished pursuant to the Agreement contains or will contain any statement
that is or will be inaccurate or misleading in any material respect; and
(k) GMACM, as Administrator under the LLC Agreement, is
authorized to execute this Agreement on behalf of ▇▇▇▇▇▇.
(ii) ▇▇▇▇▇▇ represents, warrants and covenants to the Purchaser that as
of the Closing Date or as of such date specifically provided herein:
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(a) ▇▇▇▇▇▇ is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware;
(b) ▇▇▇▇▇▇ has the power and authority to make, execute, deliver
and perform its obligations under this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary limited liability
company action to authorize the execution, delivery and performance of this
Agreement; this Agreement constitutes a legal, valid and binding obligation of
▇▇▇▇▇▇, enforceable against ▇▇▇▇▇▇ in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity) or by public policy with respect
to indemnification under applicable securities laws;
(c) The execution and delivery of this Agreement by ▇▇▇▇▇▇ and
its performance and compliance with the terms of this Agreement will not violate
▇▇▇▇▇▇'▇ Certificate of Formation or the LLC Agreement or constitute a material
default (or an event which, with notice or lapse of time, or both, would
constitute a material default) under, or result in the material breach of, any
material contract, agreement or other instrument to which ▇▇▇▇▇▇ is a party or
which may be applicable to ▇▇▇▇▇▇ or any of its assets;
(d) No litigation before any court, tribunal or governmental body
is currently pending, nor to the knowledge of ▇▇▇▇▇▇ is threatened against
▇▇▇▇▇▇, nor is there any such litigation currently pending, nor to the knowledge
of ▇▇▇▇▇▇ threatened against ▇▇▇▇▇▇ with respect to this Agreement that in the
opinion of ▇▇▇▇▇▇ has a reasonable likelihood of resulting in a material adverse
effect on the transactions contemplated by this Agreement;
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by ▇▇▇▇▇▇ of or compliance by ▇▇▇▇▇▇ with this Agreement, the sale
of the Mortgage Loans or the consummation of the transactions contemplated by
this Agreement except for consents, approvals, authorizations and orders which
have been obtained;
(f) The consummation of the transactions contemplated by this
Agreement is in the ordinary course of business of ▇▇▇▇▇▇, and the transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages relating to
the ▇▇▇▇▇▇ Mortgage Loans by ▇▇▇▇▇▇ pursuant to this Agreement are not subject
to bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction; and
(g) ▇▇▇▇▇▇ will treat the sale of the Mortgage Loans to the
Purchaser as a sale for reporting and accounting purposes and, to the extent
appropriate, for federal income tax purposes.
SECTION 7.02. Representations and Warranties as to Individual Mortgage Loans.
(i) GMACM hereby represents and warrants to the Purchaser, as to each Mortgage
Loan (except as otherwise specified below), as of the Closing Date, as follows:
(a) The information set forth in the Mortgage Loan Schedule is true,
complete and correct in all material respects as of the Cut-off Date;
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(b) The original mortgage, deed of trust or other evidence of
indebtedness (the "Mortgage") creates a first lien on an estate in fee simple or
a leasehold interest in real property securing the related Mortgage Note, free
and clear of all adverse claims, liens and encumbrances having priority over the
first lien of the Mortgage subject only to (1) the lien of non-delinquent
current real property taxes and assessments not yet due and payable, (2)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording which are acceptable to
mortgage lending institutions generally, and (3) other matters to which like
properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property;
(c) The Mortgage Loan has not been delinquent thirty (30) days or
more at any time during the twelve (12) month period prior to the Cut-off Date
for such Mortgage Loan. As of the Closing Date, the Mortgage Loan is not
delinquent in payment more than 30 days and has not been dishonored; there are
no defaults under the terms of the Mortgage Loan; and GMACM has not advanced
funds, or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan;
(d) There are no delinquent taxes which are due and payable,
ground rents, assessments or other outstanding charges affecting the related
Mortgaged Property;
(e) The Mortgage Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by written instruments which
have been recorded to the extent any such recordation is required by applicable
law or is necessary to protect the interests of the Purchaser, and which have
been approved by the title insurer and the primary mortgage insurer, as
applicable, and copies of which written instruments are included in the Mortgage
File. No other instrument of waiver, alteration or modification has been
executed, and no Mortgagor has been released by GMACM or, to the best of GMACM's
knowledge, by any other person, in whole or in part, from the terms thereof
except in connection with an assumption agreement, which assumption agreement is
part of the Mortgage File and the terms of which are reflected on the Mortgage
Loan Schedule;
(f) The Mortgage Note and the Mortgage are not subject to any
right of rescission, set-off, counterclaim or defense, including the defense of
usury, nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
(g) All buildings upon the Mortgaged Property are insured by a
generally acceptable insurer pursuant to standard hazard policies conforming to
the requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. All such standard hazard
policies are in effect and on the date of origination contained a standard
mortgagee clause naming GMACM and its successors in interest as loss payee and
such clause is still in effect. If the Mortgaged Property is located in an area
identified by the Federal Emergency Management Agency as having special flood
hazards under the Flood Disaster Protection Act of 1973, as amended, such
Mortgaged Property is covered by flood insurance by a generally acceptable
insurer in an amount not less than the requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇
Mac. The Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to
do so, authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor;
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(h) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws applicable to the Mortgage Loan have been complied with in all material
respects;
(i) The Mortgage has not been satisfied, canceled or
subordinated, in whole or in part, or rescinded, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or in part nor has any
instrument been executed that would effect any such satisfaction, release,
cancellation, subordination or rescission;
(j) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject to
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors. All parties to the Mortgage Note and the Mortgage had the
legal capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage. The Mortgage Note and the Mortgage have been
duly and properly executed by such parties. The proceeds of the Mortgage Note
have been fully disbursed and there is no requirement for future advances
thereunder;
(k) (i) With respect to each ▇▇▇▇▇▇ Mortgage Loan, (A)
immediately prior to the transfer and assignment to the Purchaser, the Mortgage
Note and the Mortgage were not subject to an assignment or pledge, except for
any assignment or pledge that had been satisfied and released, (B) immediately
prior to the assignment of such Mortgage Loan to ▇▇▇▇▇▇, GMACM had good and
marketable title thereto and was the sole owner thereof, and (C) GMACM had full
right to transfer and sell the Mortgage Loan pursuant to the ▇▇▇▇▇▇ Purchase
Agreement free and clear of any encumbrance, equity, lien, pledge, charge, claim
or security interest; and (ii) with respect to each GMACM Mortgage Loan, (A)
immediately prior to the transfer and assignment to the Purchaser, the Mortgage
Note and the Mortgage were not subject to an assignment or pledge, except for
any assignment or pledge that had been satisfied and released, (B) GMACM had
good and marketable title to and was the sole owner thereof and (C) GMACM had
full right to transfer and sell the Mortgage Loan to the Purchaser free and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest;
(l) The Mortgage Loan is covered by an ALTA lender's title
insurance policy or other generally acceptable form of policy of insurance, with
all necessary endorsements, issued by a title insurer qualified to do business
in the jurisdiction where the Mortgaged Property is located, insuring (subject
to the exceptions contained in clause (b) (1), (2) and (3) above) GMACM, its
successors and assigns, as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan. Such title insurance policy
affirmatively insures ingress and egress and against encroachments by or upon
the Mortgaged Property or any interest therein. GMACM is the sole insured of
such lender's title insurance policy, such title insurance policy has been duly
and validly endorsed to the Purchaser or the assignment to the Purchaser of
GMACM's interest therein does not require the consent of or notification to the
insurer and such lender's title insurance policy is in full force and effect and
will be in full force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the related Mortgage has done, by
act or omission, anything which would impair the coverage of such lender's title
insurance policy;
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(m) To GMACM's knowledge, there is no default, breach, violation
or event of acceleration existing under the Mortgage or the related Mortgage
Note and no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event permitting acceleration; and neither GMACM nor any prior
mortgagee has waived any default, breach, violation or event permitting
acceleration;
(n) To GMACM's knowledge, there are no mechanics, or similar
liens or claims which have been filed for work, labor or material affecting the
related Mortgaged Property which are or may be liens prior to or equal to the
lien of the related Mortgage;
(o) To GMACM's knowledge, all improvements lie wholly within the
boundaries and building restriction lines of the Mortgaged Property (and wholly
with the project with respect to a condominium unit) and no improvements on
adjoining properties encroach upon the Mortgaged Property except those which are
insured against by the title insurance policy referred to in clause (l) above
and all improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(p) The Mortgage Loan is a "qualified mortgage" under Section
860(G)(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1);
(q) The Mortgage Loan was originated by GMACM or by an eligible
correspondent of GMACM. The Mortgage Loan complies in all material respects with
all the terms, conditions and requirements of GMACM's underwriting standards in
effect at the time of origination of such Mortgage Loan. The Mortgage Notes and
Mortgages are on uniform ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇ Mac instruments or are on forms
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac;
(r) The Mortgage Loan contains the usual and enforceable
provisions of the originator at the time of origination for the acceleration of
the payment of the unpaid principal amount if the related Mortgaged Property is
sold without the prior consent of the mortgagee thereunder. The Mortgage Loan
has an original term to maturity of not more than 30 years, with interest
payable in arrears on the first day of each month. Except as otherwise set forth
on the Mortgage Loan Schedule, the Mortgage Loan does not contain terms or
provisions which would result in negative amortization nor contain "graduated
payment" features or "buydown" features;
(s) To GMACM's knowledge, the Mortgaged Property at origination
of the Mortgage Loan was and currently is free of damage and waste and at
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation thereof;
(t) The related Mortgage contains enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (1) in the case of a Mortgage designated as a deed
of trust, by trustee's sale, and (2) otherwise by judicial foreclosure. To GMACM
s knowledge, there is no homestead or other exemption available to the Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage;
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(u) If the Mortgage constitutes a deed of trust, a trustee, duly
qualified if required under applicable law to act as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by the Purchaser to the trustee under the
deed of trust, except in connection with a trustees sale or attempted sale after
default by the Mortgagor;
(v) If required by the applicable processing style, the Mortgage
File contains an appraisal of the related Mortgaged Property made and signed
prior to the final approval of the mortgage loan application by an appraiser
that is acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and approved by GMACM. The
appraisal, if applicable, is in a form generally acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac;
(w) To GMACM's knowledge, each of the Mortgaged Properties
consists of a single parcel of real property with a detached single-family
residence erected thereon, or a two- to four-family dwelling, a townhouse, an
individual condominium unit in a condominium project, an individual unit in a
planned unit development or a proprietary lease on a cooperatively owned
apartment and stock in the related cooperative corporation. Any condominium unit
or planned unit development either conforms with applicable ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac requirements regarding such dwellings or is covered by a waiver
confirming that such condominium unit or planned unit development is acceptable
to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac or is otherwise "warrantable" with respect thereto.
No such residence is a mobile home or manufactured dwelling;
(x) The ratio of the original outstanding principal amount of the
Mortgage Loan to the lesser of the appraised value (or stated value if an
appraisal was not a requirement of the applicable processing style) of the
Mortgaged Property at origination or the purchase price of the Mortgaged
Property securing each Mortgage Loan (the "Loan-to-Value Ratio") is not in
excess of 95.00%. The original Loan-to-Value Ratio of each Mortgage Loan either
was not more than 80.00% or the excess over 80.00% is insured as to payment
defaults by a primary mortgage insurance policy issued by a primary mortgage
insurer acceptable to ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac;
(y) GMACM is either, and each Mortgage Loan was originated by, 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 by a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Section 203 and 211 of the National
Housing Act;
(z) The origination, collection and servicing practices with
respect to each Mortgage Note and Mortgage have been in all material respects
legal, normal and usual in GMACM's general mortgage servicing activities. With
respect to escrow deposits and payments that GMACM collects, all such payments
are in the possession of, or under the control of, GMACM, and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or other charges or
payments due under the Mortgage Note have been capitalized under any Mortgage or
the related Mortgage Note;
(aa) No fraud or misrepresentation of a material fact with
respect to the origination of a Mortgage Loan has taken place on the part of
GMACM; and
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(bb) If any of the Mortgage Loans are secured by a leasehold
interest, with respect to each leasehold interest: residential property in such
area consisting of leasehold estates is readily marketable; the lease is
recorded and is in full force and effect and is not subject to any prior lien or
encumbrance by which the leasehold could be terminated or subject to any charge
or penalty; and the remaining term of the lease does not terminate less than ten
years after the maturity date of such Mortgage Loan.
With respect to Section 7.02(i), representations made by GMACM with
respect to the ▇▇▇▇▇▇ Mortgage Loans, made as of the Cut-off Date or the Closing
Date are made by GMACM in its capacity as Servicer. Representations made by
GMACM with respect to the ▇▇▇▇▇▇ Mortgage Loans sold by ▇▇▇▇▇▇ and made as of
any other date are made by GMACM in its capacity as seller of ▇▇▇▇▇▇ Mortgage
Loans to ▇▇▇▇▇▇.
(ii) ▇▇▇▇▇▇ hereby represents and warrants to the Purchaser, as to each
▇▇▇▇▇▇ Mortgage Loan, as of the Closing Date, as follows:
With respect to each ▇▇▇▇▇▇ Mortgage Loan, (A) immediately prior
to the transfer and assignment to the Purchaser, the Mortgage Note and the
Mortgage were not subject to an assignment or pledge, except for any assignment
or pledge that had been or is, concurrently with the sale and assignment
hereunder, satisfied and released; (B) immediately prior to assignment of such
Mortgage Loan, ▇▇▇▇▇▇ had good title thereto; and (C) immediately prior to such
assignment ▇▇▇▇▇▇ had good and marketable title to and was the sole owner
thereof and had full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim
or security interest, except for any encumbrance, equity, lien, pledge, charge,
claim or security interest that had been or is, concurrently with the sale and
assignment hereunder, satisfied and released.
SECTION 7.03. Repurchase. It is understood and agreed that the representations
and warranties set forth in Sections 7.01 and 7.02 shall survive the sale of the
Mortgage Loans to the Purchaser and delivery of the related Mortgage Loan
documents to the Purchaser or its designees and shall inure to the benefit of
the Purchaser, notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File.
Upon discovery by either Seller, GMACM or the Purchaser of a breach of such
Seller's respective representations and warranties, or upon the occurrence of a
Repurchase Event, in either case which materially and adversely affects
interests of the Purchaser or its assignee in any Mortgage Loan, the party
discovering such breach or occurrence shall give prompt written notice to the
other parties. If the substance of any representation or warranty has been
breached, the repurchase obligation set forth in the provisions of this Section
7.03 shall apply notwithstanding any qualification as to such Seller's
knowledge. Following discovery or receipt of notice of any such breach or
occurrence, GMACM or ▇▇▇▇▇▇, as applicable, shall either (i) cure such breach in
all material respects within 90 days from the date such Person was notified of
such breach or (ii) repurchase such Mortgage Loan at the related Purchase Price
within 90 days from the date such Person was notified of such breach; provided,
however, that GMACM or ▇▇▇▇▇▇, as applicable, shall have the option to
substitute a Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan
if such substitution occurs within two years following the Closing Date; and
provided further that if the breach or occurrence would cause the Mortgage Loan
to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the
Code, any such cure, repurchase or substitution must occur within 90 days from
the earlier of the date the breach was discovered or receipt of notice of any
such breach. In the event that any such breach shall involve any representation
or warranty set forth in Section 7.01 or those relating to the Mortgage Loans or
a portion thereof in the aggregate, and such breach cannot be cured within
ninety days of the earlier of either discovery by or notice to such Seller of
such breach, all Mortgage Loans affected by the breach shall, at the option of
the Purchaser, be repurchased by such Seller at the Purchase Price or
substituted for in accordance with this Section 7.03. If GMACM or ▇▇▇▇▇▇ elects
to substitute a Qualified Substitute Mortgage Loan or Loans for a Deleted
Mortgage Loan pursuant to this Section 7.03, such Person shall deliver to the
Custodian with respect to such Qualified Substitute Mortgage Loan or Loans, the
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original Mortgage Note endorsed as required by Section 6, and such Seller shall
deliver to the Servicer with respect to such Qualified Substitute Mortgage Loan,
the Mortgage, an Assignment of the Mortgage in recordable form if required
pursuant to Section 6, and such other documents and agreements as are required
to be held by the Servicer pursuant to Section 6. No substitution will be made
in any calendar month after the Determination Date for such month. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month of
substitution shall not be part of the Trust Fund and will be retained by the
Servicer and remitted by the Servicer to such Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to the
Certificateholders will include the Monthly Payment due on a Deleted Mortgage
Loan for such month and thereafter such Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan. Upon such
substitution, the Qualified Substitute Mortgage Loan or Loans shall be subject
to the terms of this Agreement in all respects, such Seller and GMACM shall be
deemed to have made the representations and warranties contained in this
Agreement with respect to the Qualified Substitute Mortgage Loan or Loans and
that such Mortgage Loans so substituted are Qualified Substitute Mortgage Loans
as of the date of substitution. In furtherance of the foregoing, if GMACM or the
Seller that repurchases or substitutes a Mortgage Loan is no longer a member of
MERS and the Mortgage is registered on the MERS(R) System, the Purchaser, at the
expense of GMACM and without any right of reimbursement, shall cause MERS to
execute and deliver an assignment of the Mortgage in recordable form to transfer
the Mortgage from MERS to GMACM or the Seller and shall cause such Mortgage to
be removed from registration on the MERS(R) System in accordance with MERS'
rules and regulations.
In the event of a repurchase by either Seller or GMACM pursuant to this
Section 7.03, the Purchaser shall (i) forward or cause to be forwarded the
Mortgage File for the related Mortgage Loan to the Seller or GMACM, as the case
may be, which shall include the Mortgage Note endorsed without recourse to such
Seller or its designee, (ii) cause the Servicer to release to such Seller any
remaining documents in the related Mortgage File which are held by the Servicer,
and (iii) forward or cause to be forwarded an assignment in favor of such Seller
or its designee of the Mortgage in recordable form and acceptable to such Seller
in form and substance and such other documents or instruments of transfer or
assignment as may be necessary to vest in ▇▇▇▇▇▇ or GMACM, as the case may be,
or its respective designee title to any such Mortgage Loan (or with respect to
any Mortgage registered on the MERS(R) System, if such Seller is still a member
of MERS, the Purchaser shall cause MERS to show such Seller as the owner of
record). The Purchaser shall cause the related Mortgage File to be forwarded to
such Seller immediately after receipt of the related Purchase Price by wire
transfer of immediately available funds to an account specified by the
Purchaser.
It is understood and agreed that the obligation of each Seller to cure
such breach or purchase (or to substitute for) such Mortgage Loan as to which
such a breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Purchaser or the Trustee on behalf of
the Certificateholders.
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SECTION 8. Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given when deposited, postage
prepaid, in the United States mail, if mailed by registered or certified mail,
return receipt requested, or when received, if delivered by private courier to
another party, at the related address shown on the first page hereof, or such
other address as may hereafter be furnished to the parties by like notice.
SECTION 9. Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 10. Counterparts; Entire Agreement. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original, and all such counterparts shall constitute one and the same
instrument. This Agreement is the entire agreement between the parties relating
to the subject matter hereof and supersedes any prior agreement or
communications between the parties.
SECTION 11. Place of Delivery and Governing Law. This Agreement shall be deemed
in effect when counterparts hereof have been executed by each of the parties
hereto. This Agreement shall be deemed to have been made in the State of New
York. This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with the laws of the State of New York,
without giving effect to its conflict of law rules.
SECTION 12. Successors and Assigns; Assignment of Agreement. This Agreement
shall bind and inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns; provided that this Agreement may
not be assigned, pledged or hypothecated by each Seller to a third party without
the prior written consent of the Purchaser.
SECTION 13. Waivers; Other Agreements. No term or provision of this Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification is sought to be
enforced.
SECTION 14. Survival. The provisions of this Agreement shall survive the Closing
Date and the delivery of the Mortgage Loans, and for so long thereafter as is
necessary (including, subsequent to the assignment of the Mortgage Loans) to
permit the parties to exercise their respective rights or perform their
respective obligations hereunder.
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IN WITNESS WHEREOF, the Sellers and the Purchaser have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the date first above written.
GMAC MORTGAGE CORPORATION, as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇ FUNDING LLC, as Seller
BY: GMAC MORTGAGE CORPORATION, as
Administrator
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
Title: Senior Vice President
RESIDENTIAL ASSET MORTGAGE PRODUCTS,
INC., as Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
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SCHEDULE I
MORTGAGE LOAN SCHEDULE
SCHEDULE I-A
GMACM MORTGAGE LOAN SCHEDULE
SCHEDULE ▇-▇
▇▇▇▇▇▇ MORTGAGE LOAN SCHEDULE
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