Exhibit 10.1
EXECUTION COPY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Purchaser,
GMAC MORTGAGE CORPORATION,
as Seller,
GMACM HOME EQUITY LOAN TRUST 2000-HE2,
as Issuer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Indenture Trustee
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MORTGAGE LOAN PURCHASE AGREEMENT
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Dated as of June 29, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions...........................................................1
Section 1.2 Other Definitional Provisions.........................................2
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Initial Mortgage Loans........................................2
Section 2.2 Sale of Subsequent Mortgage Loans.....................................5
Section 2.3 [Reserved]............................................................8
Section 2.4 [Reserved]............................................................8
Section 2.5 [Reserved]............................................................8
Section 2.6 Payment of Purchase Price.............................................9
Section 2.7 Variable Funding Notes on or after the Closing Date...................9
Section 2.8 Draws During Rapid Amortization Period...............................10
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.1 Seller Representations and Warranties................................10
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller..............................................17
ARTICLE V
SERVICING
Section 5.1 Servicing............................................................18
ARTICLE VI
INDEMNIFICATION BY THE SELLER WITH
RESPECT TO THE MORTGAGE LOANS
Section 6.1 Limitation on Liability of the Seller................................18
Section 6.2 Indemnification with Respect to the Mortgage Loans...................18
ARTICLE VII
TERMINATION
Section 7.1 Termination..........................................................18
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment............................................................19
Section 8.2 GOVERNING LAW........................................................19
Section 8.3 Notices..............................................................19
Section 8.4 Severability of Provisions...........................................20
Section 8.5 Relationship of Parties..............................................20
Section 8.6 Counterparts.........................................................20
Section 8.7 Further Agreements...................................................20
Section 8.8 Intention of the Parties.............................................20
Section 8.9 Successors and Assigns; Assignment of This Agreement.................21
Section 8.10 Survival.............................................................21
Section 8.11 Third Party Beneficiary..............................................21
Exhibits
EXHIBIT 1 MORTGAGE LOAN SCHEDULE
EXHIBIT 2 FORM OF SUBSEQUENT TRANSFER AGREEMENT
EXHIBIT 3 FORM OF ADDITION NOTICE
This Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
June 29, 2000, is made among GMAC Mortgage Corporation, as seller (the
"Seller"), Residential Asset Mortgage Products, Inc., as purchaser (the
"Purchaser"), GMACM Home Equity Loan Trust 2000-HE2, as issuer (the "Issuer"),
and Norwest Bank Minnesota, National Association, as indenture trustee (the
"Indenture Trustee").
WITNESSETH:
WHEREAS, the Seller owns the Cut-Off Date Principal Balances and the
Related Documents for the mortgage loans indicated on the Mortgage Loan Schedule
attached as Exhibit 1 hereto (the "Initial Mortgage Loans"), including rights to
(a) any property acquired by foreclosure or deed in lieu of foreclosure or
otherwise, and (b) the proceeds of any insurance policies covering the Initial
Mortgage Loans;
WHEREAS, the parties hereto desire that the Seller (i) sell the Cut-Off
Date Principal Balances of the Initial Mortgage Loans to the Purchaser on the
Closing Date pursuant to the terms of this Agreement together with the Related
Documents, and thereafter all Additional Balances relating to the Initial
Mortgage Loans created on or after the Cut-Off Date, (ii) may sell Subsequent
Mortgage Loans to the Issuer on one or more Subsequent Transfer Dates pursuant
to the terms of the related Subsequent Transfer Agreement, and (iii) make
certain representations and warranties on the Closing Date and on each
Subsequent Transfer Date;
WHEREAS, pursuant to the Trust Agreement, the Purchaser will sell the
Initial Mortgage Loans and transfer all of its rights under this Agreement to
the Issuer on the Closing Date;
WHEREAS, pursuant to the terms of the Servicing Agreement, the Servicer
will service the Mortgage Loans;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue the Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue the
Notes, secured by the Trust Estate;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided herein or unless the context otherwise requires, capitalized
terms not otherwise defined herein shall have the meanings assigned to such
terms in the Definitions contained in Appendix A to the indenture dated as of
June 29, 2000 (the "Indenture"), between the Issuer and the Indenture Trustee,
which is incorporated by reference herein. All other capitalized terms used
herein shall have the meanings specified herein.
Section 1.2 Other Definitional Provisions. All terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document,
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; the term "including" shall mean
"including without limitation"; "or" shall include "and/or"; and the term
"proceeds" shall have the meaning ascribed thereto in the UCC.
The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to herein or in
any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Initial Mortgage Loans.
(a) The Seller, by the execution and delivery of this Agreement, does hereby
sell, assign, set over, and otherwise convey to the Purchaser, without recourse,
all of its right, title and interest in, to and under the following, and
wherever located: (i) the Initial Mortgage Loans (including the Cut-Off Date
Principal Balances now existing and all Additional Balances thereafter arising
thereunder to and including the date immediately preceding the commencement of
the Rapid Amortization Period relating thereto; provided, however, that any
Principal Balance represented by a Draw made during the Rapid Amortization
Period and interest thereon and money due or to become due in respect thereof
will not be or deemed to be transferred to the Purchaser, and the Seller in such
event shall retain ownership of each Principal Balance represented by each such
Draw and interest thereon and money due or to become due in respect thereof),
all interest accruing thereon, all monies due or to become due thereon, and all
collections in respect thereof received on or after the Cut-Off Date (other than
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interest thereon in respect of any period prior to the Cut-Off Date); (ii) the
interest of the Seller in any insurance policies in respect of the Initial
Mortgage Loans; and (iii) all proceeds of the foregoing; provided, however, that
the Purchaser does not assume the obligation under each Loan Agreement relating
to a HELOC to fund Draws to the Mortgagor thereunder, and the Purchaser shall
not be obligated or permitted to fund any such Draws, it being agreed that the
Seller will retain the obligation to fund future Draws. Such conveyance shall be
deemed to be made: (1) with respect to the Cut-Off Date Principal Balances, as
of the Closing Date; and (2) with respect to the amount of each Additional
Balance created on or after the Cut-Off Date and prior to the commencement of
the Rapid Amortization Period, as of the later of the Closing Date and the date
that the corresponding Draw was made pursuant to the related Loan Agreement,
subject to the receipt by the Seller of consideration therefor as provided
herein under clause (a) of Section 2.6.
In addition, the Issuer shall deposit with the Indenture Trustee from
proceeds of the issuance of the Securities on the Closing Date (i) the Original
Pre-Funded Amount for deposit in the Pre-Funding Account and (ii) the Interest
Coverage Amount for deposit in the Capitalized Interest Account.
(b) In connection with the conveyance by the Seller of the Initial Mortgage
Loans and any Subsequent Mortgage Loans, the Seller further agrees, at its own
expense, on or prior to the Closing Date with respect to the Principal Balances
of the Initial Mortgage Loans and on or prior to the related Subsequent Cut-Off
Date in the case of any Subsequent Mortgage Loans, to indicate in its books and
records that the Initial Mortgage Loans have been sold to the Purchaser pursuant
to this Agreement, and, in the case of the Subsequent Mortgage Loans, to the
Issuer pursuant to the related Subsequent Transfer Agreement, and to deliver to
the Purchaser true and complete lists of all of the Mortgage Loans specifying
for each Mortgage Loan (i) its account number, (ii) its Cut-Off Date Principal
Balance or Subsequent Cut-Off Date Principal Balance and (iii) the Loan Group or
Loan Groups to which such Subsequent Mortgage Loans relate. Such lists, which
form part of the Mortgage Loan Schedule, shall be marked as Exhibit 1 to this
Agreement and are hereby incorporated into and made a part of this Agreement.
(c) In connection with the conveyance by the Seller of the Initial Mortgage
Loans and any Subsequent Mortgage Loans, the Seller shall on behalf of the
Purchaser deliver to, and deposit with the Custodian, at least five (5) Business
Days before the Closing Date in the case of an Initial Mortgage Loan, and, on
behalf of the Issuer, three (3) Business Days prior to the related Subsequent
Transfer Date in the case of a Subsequent Mortgage Loan, with respect to (i)
below, or within 150 days of the Closing Date or the Subsequent Transfer Date,
as the case may be, with respect to (ii) through (v) below, the following
documents or instruments with respect to each related Mortgage Loan:
(i) the original Loan Agreement endorsed or assigned without recourse in
blank (which endorsement shall contain either an original signature or a
facsimile signature of an authorized officer of the Seller) or, with
respect to any Mortgage Loan as to which the original Loan Agreement has
been permanently lost or destroyed and has not been replaced, a Lost
Note Affidavit;
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(ii) the original Mortgage with evidence of recording thereon, or, if the
original Mortgage has not yet been returned from the public recording
office, a copy of the original Mortgage certified by the Seller that
such Mortgage has been sent for recording, or a county certified copy of
such Mortgage in the event the recording office keeps the original or if
the original is lost;
(iii) assignments (which may be included in one or more blanket assignments if
permitted by applicable law) of the Mortgage in recordable form from the
Seller to "Norwest Bank Minnesota, National Association, as Indenture
Trustee under that certain Indenture dated as of June 29, 2000, for
GMACM Home Equity Loan Trust 2000-HE2, Home Equity Loan-Backed Term
Notes" c/o the Servicer at an address specified by the Servicer;
(iv) originals of any intervening assignments of the Mortgage from the
originator to the Seller, with evidence of recording thereon, or, if the
original of any such intervening assignment has not yet been returned
from the public recording office, a copy of such original intervening
assignment certified by the Seller that such original intervening
assignment has been sent for recording; and
(v) a true and correct copy of each assumption, modification, consolidation
or substitution agreement, if any, relating to such Mortgage Loan.
Within the time period for the review of each Mortgage File set forth in
Section 2.2 of the Custodial Agreement, if a material defect in any Mortgage
File is discovered which may materially and adversely affect the value of the
related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of
the Mortgage Loans), the Noteholders, the Certificateholders or the Enhancer in
such Mortgage Loan, including the Seller's failure to deliver any document
required to be delivered to the Custodian on behalf of the Indenture Trustee
(provided, that a Mortgage File will not be deemed to contain a defect for an
unrecorded assignment under clause (iv) above if the Seller has submitted such
assignment for recording pursuant to the terms of the following paragraph), the
Seller shall cure such defect, repurchase the related Mortgage Loan at the
Repurchase Price or substitute an Eligible Substitute Loan therefor upon the
same terms and conditions set forth in Section 3.1 hereof for breaches of
representations and warranties as to the Mortgage Loans.
In instances where an original Mortgage or any original intervening
assignment of Mortgage was not, in accordance with clauses (ii) or (iv) above,
delivered by the Seller to the Custodian contemporaneously with the execution
and delivery of this Agreement, the Seller will deliver or cause to be delivered
the originals or certified copies of such documents to the Custodian promptly
upon receipt thereof.
Upon sale of the Initial Mortgage Loans, the ownership of each Loan
Agreement, each related Mortgage and the contents of the related Mortgage File
shall be vested in the Purchaser and the ownership of all records and documents
with respect to the Initial Mortgage Loans that are prepared by or that come
into the possession of the Seller as seller of the Initial Mortgage Loans
hereunder or in its capacity as Servicer under the Servicing Agreement shall
immediately vest in the Purchaser, and shall be retained and maintained in trust
by the Seller or the Servicer at the will of the Purchaser, in such custodial
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capacity only. In the event that any original document held by the Seller
hereunder in its capacity as Servicer is required pursuant to the terms of this
Section to be part of a Mortgage File, such document shall be delivered promptly
to the Custodian. The Seller's records will accurately reflect the sale of each
Initial Mortgage Loan to the Purchaser.
The Purchaser hereby acknowledges its acceptance of all right, title and
interest to the property conveyed to it pursuant to this Section 2.1.
(d) The parties hereto intend that the transactions set forth herein constitute
a sale by the Seller to the Purchaser of all the Seller's right, title and
interest in and to the Initial Mortgage Loans and other property as and to the
extent described above. In the event the transactions set forth herein are
deemed not to be a sale, the Seller hereby grants to the Purchaser a security
interest in all of the Seller's right, title and interest in, to and under all
accounts, chattel papers, general intangibles, contract rights, certificates of
deposit, deposit accounts, instruments, documents, letters of credit, money,
advices of credit, investment property, goods and other property consisting of,
arising under or related to the Initial Mortgage Loans and such other property,
to secure all of the Seller's obligations hereunder, and this Agreement shall
and hereby does constitute a security agreement under applicable law. The Seller
agrees to take or cause to be taken such actions and to execute such documents,
including without limitation the filing of any continuation statements with
respect to the UCC-1 financing statements filed with respect to the Initial
Mortgage Loans by the Purchaser on the Closing Date, and any amendments thereto
required to reflect a change in the name or corporate structure of the Seller or
the filing of any additional UCC-1 financing statements due to the change in the
principal office of the Seller, as are necessary to perfect and protect the
Purchaser's interests in each Initial Mortgage Loan and the proceeds thereof.
Section 2.2 Sale of Subsequent Mortgage Loans.
(a) Subject to the conditions set forth in paragraphs (b) and (c) below (the
satisfaction of which (other than the conditions specified in paragraphs (b)(i),
(b)(ii), (b)(iii), (b)(vi), (b)(vii) and (c)(iii)) shall be evidenced by an
Officer's Certificate of the Seller dated the date of the related Subsequent
Transfer Date), in consideration of the Issuer's payment of the purchase price
provided for in Section 2.6 on one or more Subsequent Transfer Dates using
amounts on deposit in the Pre-Funding Account, the Custodial Account (to the
extent permitted by the Servicing Agreement) or the Funding Account, the Seller
may, on the related Subsequent Transfer Date, sell, transfer, assign, set over
and convey without recourse to the Issuer but subject to the other terms and
provisions of this Agreement all of the right, title and interest of the Seller
in and to (i) Subsequent Mortgage Loans identified on the related Mortgage Loan
Schedule attached to the related Subsequent Transfer Agreement delivered by the
Seller on such Subsequent Transfer Date (including the Subsequent Cut-Off Date
Principal Balance then existing and all Additional Balances thereafter arising
thereunder to and including the date immediately preceding the commencement of
the Rapid Amortization Period), (ii) all money due or to become due on such
Subsequent Mortgage Loan and after the related Subsequent Cut-Off Date and (iii)
all items with respect to such Subsequent Mortgage Loans to be delivered
pursuant to Section 2.1 above and the other items in the related Mortgage Files;
provided, however, that the Seller reserves and retains all right, title and
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interest in and to principal received and interest accruing on any Subsequent
Mortgage Loan prior to the related Subsequent Cut-Off Date. Any transfer to the
Issuer by the Seller of Subsequent Mortgage Loans shall be absolute, and is
intended by the Issuer and the Seller to constitute and to be treated as a sale
of such Subsequent Mortgage Loans by the Seller to the Issuer. In the event that
any such transaction is deemed not to be a sale, the Seller hereby grants to the
Issuer as of each Subsequent Transfer Date a security interest in all of the
Seller's right, title and interest in, to and under all accounts, chattel
papers, general intangibles, contract rights, certificates of deposit, deposit
accounts, instruments, documents, letters of credit, money, advices of credit,
investment property, goods and other property consisting of, arising under or
related to the related Subsequent Mortgage Loans and such other property, to
secure all of the Seller's obligations hereunder, and this Agreement shall
constitute a security agreement under applicable law. The Seller agrees to take
or cause to be taken such actions and to execute such documents, including the
filing of all necessary UCC-1 financing statements filed in the State of
Delaware and the Commonwealth of Pennsylvania (which shall be submitted for
filing as of the related Subsequent Transfer Date), any continuation statements
with respect thereto and any amendments thereto required to reflect a change in
the name or corporate structure of the Seller or the filing of any additional
UCC-1 financing statements due to the change in the principal office of the
Seller, as are necessary to perfect and protect the interests of the Issuer and
its assignees in each Subsequent Mortgage Loan and the proceeds thereof.
The Issuer on each Subsequent Transfer Date shall acknowledge its
acceptance of all right, title and interest to the related Subsequent Mortgage
Loans and other property, existing on the Subsequent Transfer Date and
thereafter created, conveyed to it pursuant to this Section 2.2.
The Issuer shall be entitled to all scheduled principal payments due
after each Subsequent Cut-Off Date, all other payments of principal due and
collected after each Subsequent Cut-Off Date, and all payments of interest on
any related Subsequent Mortgage Loans, minus that portion of any such interest
payment that is allocable to the period prior to the related Subsequent Cut-Off
Date. No scheduled payments of principal due on Subsequent Mortgage Loans on or
before the related Subsequent Cut-Off Date and collected after such Subsequent
Cut-Off Date shall belong to the Issuer pursuant to the terms of this Agreement.
(b) The Seller may transfer to the Issuer Subsequent Mortgage Loans and the
other property and rights related thereto described in Section 2.2(a) above
during the Pre-Funding Period, and the Issuer shall cause to be released from
the Pre-Funding Account or during the Revolving Period, upon the release of
funds on deposit in the Custodial Account or the Funding Account, respectively,
in accordance with the Servicing Agreement, only upon the satisfaction of each
of the following conditions on or prior to the related Subsequent Transfer Date:
(i) the Seller shall have provided the Indenture Trustee, the Rating Agencies
and the Enhancer with a timely Addition Notice substantially in the form of
Exhibit 3, which notice shall be given no later than seven Business Days
prior to the related Subsequent Transfer Date, and shall designate the
Subsequent Mortgage Loans to be sold to the Issuer, the aggregate Principal
Balance of such Subsequent Mortgage Loans as of the related Subsequent
Cut-Off Date, the Loan Group or Groups to which such Subsequent Mortgage
Loans have been assigned, which shall be the Loan Group or Groups to which
the money on deposit in the Pre-Funding Account relates or from which the
Collections used to pay the Purchase Price of such Mortgage Loans were
derived and any other information reasonably requested by the Indenture
Trustee or the Enhancer with respect to such Subsequent Mortgage Loans;
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(ii) the Seller shall have delivered to the Indenture Trustee and the
Enhancer a duly executed Subsequent Transfer Agreement substantially in
the form of Exhibit 2, (A) confirming the satisfaction of each condition
precedent and representations specified in this Section 2.2(b) and in
Section 2.2(c) and in the related Subsequent Transfer Agreement and (B)
including a Mortgage Loan Schedule listing the Subsequent Mortgage
Loans;
(iii) as of each Subsequent Transfer Date, as evidenced by delivery to the
Indenture Trustee of the Subsequent Transfer Agreement in the form of
Exhibit 2, the Seller shall not be insolvent, made insolvent by such
transfer or aware of any pending insolvency;
(iv) such sale and transfer shall not result in a material adverse tax
consequence to the Issuer or, due to any action or inaction on the part
of the Seller to the Securityholders or the Enhancer;
(v) the Revolving Period shall not have terminated; and
(vi) the Enhancer shall have approved the sale of the Subsequent Mortgage
Loans (which approval shall not be unreasonably withheld) within five
(5) Business Days of receipt of the Mortgage Loan Schedule reflecting
the Subsequent Mortgage Loans; provided, that if the Enhancer shall not
have notified the Seller within five (5) Business Days that the Enhancer
does not so approve, such sale of Subsequent Mortgage Loans shall be
deemed approved by the Enhancer.
In addition, the Seller shall have delivered to the Issuer, the
Indenture Trustee and the Enhancer an Opinion of Counsel with respect to certain
bankruptcy matters relating to the transfers of Subsequent Mortgage Loans, which
Opinion of Counsel shall be substantially in the form of the Opinion of Counsel
delivered to the Enhancer and the Rating Agencies and the Indenture Trustee on
the Closing Date regarding certain bankruptcy matters, within 30 days after the
end of the Pre-Funding Period relating to all Subsequent Mortgage Loans
transferred to the Trust during the Pre-Funding Period, and within 30 days after
the end of the Revolving Period, relating to all Subsequent Mortgage Loans
transferred to the Trust during the Revolving Period, other than Subsequent
Mortgage Loans purchased from funds on deposit in the Pre-Funding Account.
(c) The obligation of the Issuer to purchase a Subsequent Mortgage Loan on any
Subsequent Transfer Date is subject to the following conditions: (i) each such
Subsequent Mortgage Loan must satisfy the representations and warranties
specified in the related Subsequent Transfer Agreement and this Agreement; (ii)
the Seller will select such Subsequent Mortgage Loans only in a manner that it
reasonably believes is not adverse to the interests of the Noteholders or the
Enhancer; (iii) the Seller will deliver to the Enhancer and the Indenture
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Trustee certain Opinions of Counsel described in Section 2.2(b) and acceptable
to the Enhancer and the Indenture Trustee with respect to the conveyance of such
Subsequent Mortgage Loans; and (iv) as of the related Subsequent Cut-Off Date
each Subsequent Mortgage Loan will satisfy the following criteria: (A) such
Subsequent Mortgage Loan may not be 30 or more days contractually delinquent as
of the related Subsequent Cut-Off Date; (B) the original stated term to maturity
of such Subsequent Mortgage Loan will not exceed 360 months; (C) such Subsequent
Mortgage Loan must have an outstanding Principal Balance of at least $1,000 and
not more than $780,000 as of the related Subsequent Cut-Off Date; (D) such
Subsequent Mortgage Loan will be underwritten substantially in accordance with
the criteria set forth under "Description of the Mortgage Loans -- Underwriting
Standards" in the Prospectus Supplement; (E) such Subsequent Mortgage Loan must
have a CLTV at origination of no more than 100.00%; (F) the remaining term to
stated maturity of such Subsequent Mortgage Loan must be no later than 360
months; (G) such Subsequent Mortgage Loan shall not provide for negative
amortization; and (H) following the purchase of such Subsequent Mortgage Loans
by the Issuer, the Mortgage Loans included in the Trust Estate must have a
weighted average interest rate, a weighted average remaining term to maturity
and a weighted average CLTV at origination, as of each Subsequent Cut-Off Date,
that does not vary materially from the Initial Mortgage Loans included initially
in the Trust Estate, and the percentage of Mortgage Loans (by aggregate
principal balance) that are secured by second liens on the related Mortgaged
Properties shall be no greater than the percentage of Initial Mortgage Loans.
Subsequent Mortgage Loans with characteristics materially varying from those set
forth above may be purchased by the Issuer and included in the Trust Estate if
they are acceptable to the Enhancer, in its reasonable discretion; provided,
however, that the addition of such Subsequent Mortgage Loans will not materially
affect the aggregate characteristics of the Mortgage Loans in the Trust Estate.
The Seller shall not transfer Subsequent Mortgage Loans with the intent to
mitigate losses on Mortgage Loans previously transferred. Upon the end of the
Revolving Period, the Enhancer may increase the Outstanding
Overcollateralization Amount pursuant to Section 2.2(e) herein.
(d) Within five Business Days after each Subsequent Transfer Date, the Seller
shall deliver to the Rating Agencies, the Indenture Trustee and the Enhancer a
copy of the updated Mortgage Loan Schedule reflecting the Subsequent Mortgage
Loans in electronic format (to be followed by a hard copy).
(e) In the event that a mortgage loan is not acceptable to the Enhancer as a
Subsequent Mortgage Loan pursuant to Section 2.2(b)(vi) hereof, the Enhancer and
the Seller may mutually agree to the transfer of such mortgage loan to the
Issuer as a Subsequent Mortgage Loan, subject to any increase in the Outstanding
Overcollateralization Amount that may be agreed to by the Seller and the
Enhancer pursuant to the Indenture, in which event the Seller shall deliver to
the Issuer and the Indenture Trustee, with a copy to the Enhancer, an Officer's
Certificate confirming the agreement to the transfer of such Subsequent Mortgage
Loan and specifying the amount of such increase in the Outstanding
Overcollateralization Amount, which additional Overcollateralization Amount may
not be contributed by the Seller.
Section 2.3 [Reserved]
Section 2.4 [Reserved]
Section 2.5 [Reserved]
Section 2.6 Payment of Purchase Price.
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(a) The sale of the Initial Mortgage Loans shall take place on the Closing Date,
subject to and simultaneously with the deposit of the Initial Mortgage Loans
into the Trust Estate, the deposit of the Original Pre-Funded Amount and the
Interest Coverage Amount into the Pre-Funding Account and the Capitalized
Interest Account, respectively, and the issuance of the Securities. The purchase
price (the "Purchase Price") for the Initial Mortgage Loans to be paid by the
Purchaser to the Seller on the Closing Date shall be an amount equal to
$385,055,551.09 in immediately available funds, together with the Certificates,
in respect of the Cut-Off Date Principal Balances thereof. The Purchase Price
paid for any Subsequent Mortgage Loan by the Indenture Trustee, at the direction
of the Issuer, shall be one-hundred percent (100%) of the Subsequent Cut-Off
Date Principal Balance thereof (as identified on the Mortgage Loan Schedule
attached to the related Subsequent Transfer Agreement provided by the Seller).
In the case of each Additional Balance transferred hereunder created on or after
the Cut-Off Date (or the Subsequent Cut-Off Date in the case of a Subsequent
Mortgage Loan) and prior to the commencement of the Rapid Amortization Period,
the Purchase Price thereof shall be the principal amount of the related Draw
under the related Loan Agreement on the later of the Closing Date (or the
related Subsequent Transfer Date in the case of a Subsequent Mortgage Loan) and
the date of the creation of such Additional Balance.
(b) In consideration of the sale of the Initial Mortgage Loans by the Seller to
the Purchaser on the Closing Date, the Purchaser shall pay to the Seller on the
Closing Date by wire transfer of immediately available funds to a bank account
designated by the Seller, the amount specified above in paragraph (a) for each
Initial Mortgage Loan; provided, that such payment may be on a net funding basis
if agreed by the Seller and the Purchaser. In consideration of the sale of any
Subsequent Mortgage Loan by the Seller to the Issuer, the Issuer shall pay to
the Seller by wire transfer of immediately available funds to a bank account
designated by the Seller, the amount specified above in paragraph (a) for each
Subsequent Mortgage Loan. With respect to each Additional Balance transferred
hereunder with respect to any Initial Mortgage Loan or Subsequent Mortgage Loan,
the Issuer as assignee of the Purchaser shall pay or cause to be paid to the
Seller or its designee the Purchase Price specified above for such Additional
Balance in one of the following ways, as applicable: (i) a cash payment pursuant
to Section 3.03(b) of the Servicing Agreement and Section 2.6(a) hereof in an
amount equal to the related Draw, if then available from Principal Collections
during the related Collection Period on the Mortgage Loans, or from funds on
deposit in the Funding Account, and (ii) to the extent aggregate Draws exceed
Principal Collections and the amount on deposit in the Funding Account for such
Collection Period, an increase in the Variable Funding Balance of the Variable
Funding Notes of the related Class or an issuance of new Variable Funding Notes,
as of the Payment Date corresponding to the Collection Period in which such
Additional Balances were created, equal to the amount of such excess.
Section 2.7 Variable Funding Notes on or after the Closing Date. Subject to
Section 4.01(d) of the Indenture, if at any time, the Seller or an Affiliate of
the Seller holds Variable Funding Notes that have reached their Maximum Variable
Funding Balance, and to the extent that the same are exchanged for Capped
Funding Notes in accordance with Section 4.01(d) of the Indenture, the Seller
may cause such Capped Funding Notes to be resold in a private offering pursuant
to a private placement memorandum. Any such private placement memorandum shall
not include any information with respect to the Enhancer, except for information
approved by the Enhancer for use therein.
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Section 2.8 Draws During Rapid Amortization Period. During the Rapid
Amortization Period, any Draws made on the HELOCs (each, an "Excluded Amount")
shall not be Additional Balances, and the ownership of the related balances
shall be retained by the Seller. On any Payment Date during the Rapid
Amortization Period, with respect to the related Collection Period, all
Collections in respect of each HELOC shall be allocated pro rata as between the
Issuer and the Seller, based on the relative proportions of the Principal
Balance and the Excluded Amount thereof, respectively, as of the end of the
calendar month immediately prior to such Collection Period. During the Rapid
Amortization Period, any losses incurred with respect to a HELOC shall be
allocated pro rata between the Issuer and the Seller, based on the Principal
Balance and the Excluded Amount thereof, respectively, as of the date of
liquidation of such HELOC. Notwithstanding any other provision hereof or of the
Servicing Agreement, payments and collections allocable to an Excluded Amount
shall not be deposited into the Custodial Account, the Distribution Account or
the Note Payment Account, and shall be distributed by the Servicer to the Seller
no less frequently than monthly in accordance with reasonable instructions
provided by the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 Seller Representations and Warranties. The Seller represents and
warrants to the Purchaser, as of the Closing Date and as of each Subsequent
Transfer Date (or if otherwise specified below, as of the date so specified):
(a) As to the Seller:
(i) The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction governing its creation and
existence 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;
(ii) The Seller has the power and authority to make, execute, deliver and
perform its obligations under this Agreement and each Subsequent
Transfer Agreement and all of the transactions contemplated under this
Agreement and each Subsequent Transfer Agreement, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement and each Subsequent Transfer Agreement;
(iii) The Seller is not required to obtain the consent of any other Person or
any consents, licenses, approvals or authorizations from, or
registrations or declarations with, any governmental authority, bureau
or agency in connection with the execution, delivery, performance,
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validity or enforceability of this Agreement or any Subsequent Transfer
Agreement, except for such consents, licenses, approvals or
authorizations, or registrations or declarations, as shall have been
obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement by the Seller and its
performance and compliance with the terms of this Agreement will not
violate the Seller'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 the Seller is a party or which may be applicable to
the Seller or any of its assets;
(v) No litigation before any court, tribunal or governmental body is
currently pending, or to the knowledge of the Seller threatened, against
the Seller or with respect to this Agreement or any Subsequent Transfer
Agreement that in the opinion of the Seller has a reasonable likelihood
of resulting in a material adverse effect on the transactions
contemplated by this Agreement or any Subsequent Transfer Agreement;
(vi) [Reserved];
(vii)This Agreement and each Subsequent Transfer Agreement constitutes a legal,
valid and binding obligation of the Seller, enforceable against the Seller
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;
(viii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of the Seller in and to the
Initial Mortgage Loans (including the Cut-Off Balance now existing and
all Additional Balances thereafter arising to and including the day
immediately preceding the Rapid Amortization Period, all monies due or
to become due with respect thereto, and all proceeds of such Cut-Off
Date Principal Balances with respect to the Initial Mortgage Loans; and
this Agreement and the related Subsequent Transfer Agreement, when
executed, will constitute a valid transfer and assignment to the Issuer
of all right, title and interest of the Seller in and to the Subsequent
Mortgage Loans (including the Cut-Off Balances existing on the related
Subsequent Cut-Off Date and thereafter arising to and including the date
immediately preceding the Rapid Amortization Period), all monies due or
to become due with respect thereto, and all proceeds of such Subsequent
Cut-Off Date Principal Balances and such funds as are from time to time
deposited in the Custodial Account (excluding any investment earnings
thereon) as assets of the Trust and all other property specified in the
definition of "Trust" as being part of the corpus of the Trust conveyed
to the Purchaser by the Seller, and upon payment for the Additional
Balances, will constitute a valid transfer and assignment to the
Purchaser (or the Issuer in the case of any Additional Balances relating
to Subsequent Mortgage Loans) of all right, title and interest of the
Seller in and to the Additional Balances, all monies due or to become
due with respect thereto, and all proceeds of such Additional Balances
and all other property specified in the definition of "Trust" relating
to the Additional Balances; and
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(ix) 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
otherwise) or operations of the Seller or its properties or might have
consequences that would materially adversely affect its performance
hereunder;
(b) As to each Initial Mortgage Loan as of the Closing Date and with respect to
each Subsequent Mortgage Loan as of the related Subsequent Transfer Date (except
as otherwise specified below):
(i) The information set forth in the Mortgage Loan Schedule with respect to
each Mortgage Loan or the Mortgage Loans is true and correct in all
material respects as of the date or dates respecting which such
information is initially furnished;
(ii) The Cut-Off Date Principal Balances or Subsequent Cut-Off Date Principal
Balances have not been assigned or pledged, the Seller has good title
thereto and the Seller is the sole owner and holder of such Cut-Off Date
Principal Balances and Subsequent Cut-Off Date Principal Balances free and
clear of any and all liens, encumbrances, pledges, security interests
(other than, with respect to any Mortgage Loan in a second lien position,
the lien of the related first mortgage) of any nature and has full right
and authority, under all governmental and regulatory bodies having
jurisdiction over the ownership of the applicable Mortgage Loans to sell
and assign the same pursuant to this Agreement;
(iii)(A) The related Loan Agreement and the Mortgage have not been assigned or
pledged, (B) immediately prior to the assignment of the Mortgage Loans to
the Trustee the Seller has good title thereto and (C) the Seller is the
sole owner and holder of the Mortgage Loan free and clear of any and all
liens, encumbrances, pledges, or security interests (other than, with
respect to any Mortgage Loan in a second lien position, the lien of the
related first mortgage) of any nature and has full right and authority,
under all governmental and regulatory bodies having jurisdiction over the
ownership of the applicable Mortgage Loans to sell and assign the same
pursuant to this Agreement or the related Subsequent Transfer Agreement, as
applicable;
(iv) To the best of the Seller's knowledge, there is no valid offset, defense
or counterclaim of any obligor under any Loan Agreement or Mortgage;
(v) To the best of the Seller's knowledge, there is no delinquent recording or
other tax or fee or assessment lien against any related Mortgaged Property;
(vi) To the best of the Seller's knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the related
Mortgaged Property;
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(vii) To the best of the Seller'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 or equal to, or subordinate with, the lien of the related
Mortgage, except liens which are fully insured against by the title
insurance policy referred to in clause (xi);
(viii) As of the Cut-Off Date or related Subsequent Cut-Off Date, no Mortgage
Loan was 30 days or more delinquent in payment of principal or interest;
(ix) For each Mortgage Loan, the related Mortgage File contains or will
contain, in accordance with Section 2.1(c)(ii), each of the documents
and instruments specified to be included therein;
(x) To the best of the Seller's knowledge, the related Loan Agreement and
the related Mortgage at the time it was made complied in all material
respects with applicable local, state and federal laws;
(xi) A title search or other assurance of title customary in the relevant
jurisdiction was obtained with respect to each Mortgage Loan;
(xii)None of the Mortgaged Properties is a mobile home or a manufactured housing
unit that is not permanently attached to its foundation;
(xiii) As of the Cut-Off Date, no more than approximately 35.82% and 12.78% of
the Initial HELOCs, by Cut-Off Date Principal Balance, are secured by
Mortgaged Properties located in California and Michigan, respectively,
and no more than approximately 42.77% and 5.44% of the Initial HELs, by
Cut-Off Date Principal Balance, are secured by Mortgaged Properties
located in California and Texas. No more than approximately 4.62% of the
Initial HELOCs and approximately 3.31% of the Initial HELs, by Cut-Off
Date Principal Balance, are secured by Mortgaged Properties located in
planned unit developments;
(xiv) As of the Cut-Off Date or Subsequent Cut-Off Date, the Combined
Loan-to-Value Ratio for each Mortgage Loan was not in excess of 103%;
(xv) As of the Cut-Off Date, no more than approximately 20% of the Initial
Mortgage Loans, by Cut-Off Date Principal Balance, are secured by
Mortgaged Properties which may have been appraised using the statistical
property evaluation method of ▇▇▇▇▇▇▇.▇▇▇;
(xvi) The Seller has not transferred the Initial Mortgage Loans to the
Purchaser or any Subsequent Mortgage Loans to the Issuer with any intent
to hinder, delay or defraud any of its creditors;
(xvii) The minimum monthly payment with respect to any Mortgage Loan is not
less than the interest accrued at the applicable Loan Rate on the
average daily Principal Balance during the interest period relating to
the date on which such minimum monthly payment is due;
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(xviii) Within a loan type, and except as required by applicable law, each Loan
Agreement and each Mortgage is an enforceable obligation of the related
Mortgagor;
(xix) To the best knowledge of the Seller, the physical property subject to
each Mortgage is free of material damage and is in acceptable repair;
(xx) The Seller has not received a notice of default of any senior mortgage
loan related to a Mortgaged Property which has not been cured by a party
other than the Servicer;
(xxi)Each of the HELOCs has a substantially similar definition of the prime
rate as the Index applicable to the related Loan Rate;
(xxii) None of the Mortgage Loans is a reverse mortgage loan;
(xxiii) No Initial HELOC has an original term to maturity in excess of 300
months. Interest rate adjustments for HELOCs prior to the Cut-Off Date
or Subsequent Cut-Off Date were made in compliance with the related
Mortgage and Loan Agreement. Over the term of any HELOC, the Loan Rate
may not exceed the related Maximum Loan Rate, if any;
(xxiv) As of the Cut-Off Date, the Initial HELOCs have Maximum Loan Rates which
range between 15.00% and 19.50%. The current Gross Margins for the
Initial HELOCs range between -1.00% and 5.50%, and the weighted average
Gross Margin for the Initial HELOCs is approximately 1.07% as of the
Cut-Off Date. As of the Cut-Off Date, the Loan Rates on the Initial
HELOCs range between 9.00% (not including teaser rates) and 15.00% and
on the Initial HELs range between 5.99% and 15.5%, and the weighted
average Loan Rate is approximately 11.36% (not including teaser rates)
for the Initial HELOCs and 11.027% for the Initial HELs. The weighted
average remaining term to scheduled maturity of the Initial Mortgage
Loans on a contractual basis as of the Cut-Off Date is approximately
195.77 months for the Initial HELOCs and 172.24 months for the Initial
HELs;
(xxv)(A) Each Mortgaged Property consists of a single parcel of real property
with a single family or two- to four-family residence erected thereon, or
an individual condominium unit, planned unit development unit; (B) (1)With
respect to the Initial HELOCs (a) approximately 11.47% (by Cut-Off Date
Principal Balance) are secured by real property improved by individual
condominium units and planned development units, (b) approximately 88.20%
(by Cut-Off Date Principal Balance) are secured by real property with a
single family residence erected thereon, (c) approximately 0.29% (by
Cut-Off Date Principal Balance) are secured by real property with a two- to
four-family residence erected thereon and (d) 0.04% are secured by real
property improved by manufactured housing and (2) With respect to the
Initial HELs, (a) approximately 9.36% (by Cut-Off Date Principal Balance)
are secured by real property improved by individual condominium units and
planned development units, (b) approximately 88.99% (by Cut-Off Date
Principal Balance) are secured by real property with a single family
residence erected thereon, (c) approximately 1.65% (by Cut-Off Date
Principal Balance) are secured by real property with a two- to four-family
residence erected thereon and (d) none are secured by real property
improved by manufactured housing;
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(xxvi) As of the Cut-Off Date, (A) the Credit Limits on the Initial HELOCs
range between approximately $5,000.00 and $852,000.00 with an average of
$40,075.38, and (B) no Initial Mortgage Loan had a principal balance in
excess of $780,000;
(xxvii) No more than approximately 94.61% of the Initial Mortgage Loans, by
aggregate Principal Balance as of the Cut-Off Date, are secured by
second liens;
(xxviii)A policy of hazard insurance and flood insurance, if applicable, has
been required from the Mortgagor for the Mortgage Loan when the Mortgage
Loan was originated;
(xxix) Other than with respect to a payment default, there is no material
default, breach, violation or event of acceleration existing under the
terms of any Loan Agreement or Mortgage and, to the best of the Seller's
knowledge, no event which, with notice and expiration of any grace or
cure period, would constitute a material default, breach, violation or
event of acceleration under the terms of any Loan Agreement or Mortgage,
and no such material default, breach, violation or event of acceleration
has been waived by the Seller involved in originating or servicing the
related Mortgage Loan;
(xxx) No instrument of release or waiver has been executed in connection with
the Mortgage Loans, and no Mortgagor has been released, in whole or in
part from its obligations in connection therewith;
(xxxi) With respect to each Mortgage Loan secured by a second lien, either (a)
no consent for such Mortgage Loan was required by the holder or holders
of the related prior lien, (b) such consent has been obtained and is
contained in the related Mortgage File or (c) no consent for such
Mortgage Loan was required by relevant law;
(xxxii) To the extent permitted by applicable law, the Mortgage contains a
customary provision for the acceleration of the payment of the unpaid
Principal Balance of the Mortgage Loan in the event the related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder; and
(xxxiii)The Seller used no selection procedures that identified Mortgage Loans
as being less desirable or valuable than other comparable mortgage loans
originated or acquired by the Seller under the GMACM Home Equity
Program. The Mortgage Loans are representative of the Seller's portfolio
of fixed rate and adjustable rate mortgage loans that were originated
under the GMACM Home Equity Program.
15
Upon discovery by the Seller or upon notice from the Purchaser, the
Enhancer, the Issuer, the Owner Trustee, the Indenture Trustee or the Custodian,
as applicable, of a breach of any representation or warranty in paragraph (a)
above that materially and adversely affects the interests of the Securityholders
or the Enhancer, as applicable, in any Mortgage Loan, the Seller shall, within
90 days of its discovery or its receipt of notice of such breach, either (i)
cure such breach in all material respects or (ii) to the extent that such breach
is with respect to a Mortgage Loan or a Related Document, either (A) repurchase
such Mortgage Loan from the Issuer at the Repurchase Price, or (B) substitute
one or more Eligible Substitute Loans for such Mortgage Loan, in each case in
the manner and subject to the conditions and limitations set forth below.
Upon discovery by the Seller or upon notice from the Purchaser, the
Enhancer, the Issuer, the Owner Trustee, the Indenture Trustee or the Custodian,
as applicable, of a breach of any representation or warranty in this paragraph
(b) above with respect to any Mortgage Loan, or upon the occurrence of a
Repurchase Event, that materially and adversely affects the interests of the
Securityholders, the Enhancer or the Purchaser in such Mortgage Loan (notice of
which shall be given to the Purchaser by the Seller, if it discovers the same),
notwithstanding the Seller's lack of knowledge with respect to the substance of
such representation and warranty, the Seller shall, within 90 days after the
earlier of its discovery or receipt of notice thereof, either cure such breach
or Repurchase Event in all material respects or either (i) repurchase such
Mortgage Loan from the Issuer at the Repurchase Price, or (ii) substitute one or
more Eligible Substitute Loans for such Mortgage Loan, in each case in the
manner and subject to the conditions set forth below. The Repurchase Price for
any such Mortgage Loan repurchased by the Seller shall be deposited or caused to
be deposited by the Servicer into the Custodial Account.
In the event that the Seller elects to substitute an Eligible Substitute
Loan or Loans for a Deleted Loan pursuant to this Section 3.1, the Seller shall
deliver to the Custodian on behalf of the Issuer, with respect to such Eligible
Substitute Loan or Loans, the original Loan Agreement and all other documents
and agreements as are required by Section 2.1(c), with the Loan Agreement
endorsed as required by Section 2.1(c). No substitution will be made in any
calendar month after the Determination Date for such month. Minimum Monthly
Payments due with respect to Eligible Substitute Loans in the month of
substitution shall not be part of the Trust Estate and will be retained by the
Servicer and remitted by the Servicer to the Seller on the next succeeding
Payment Date, provided that a payment at least equal to the applicable Minimum
Monthly Payment for such month in respect of the Deleted Loan has been received
by the Issuer. For the month of substitution, distributions to the Note Payment
Account pursuant to the Servicing Agreement will include the Monthly Payment due
on a Deleted Loan for such month and thereafter the Seller shall be entitled to
retain all amounts received in respect of such Deleted Loan. The Servicer shall
amend or cause to be amended the Mortgage Loan Schedule to reflect the removal
of such Deleted Loan and the substitution of the Eligible Substitute Loan or
Loans and the Servicer shall deliver the amended Mortgage Loan Schedule to the
Owner Trustee, the Indenture Trustee and the Enhancer. Upon such substitution,
the Eligible Substitute Loan or Loans shall be subject to the terms of this
Agreement and the Servicing Agreement in all respects, the Seller shall be
deemed to have made the representations and warranties with respect to the
Eligible Substitute Loan contained herein set forth in Section 3.1(b) (other
than clauses (viii), (xiii), (xiv), (xxiv), (xxv)(B)(1), (xxv)(B)(2) and (xxvi)
thereof) as of the date of substitution and a representation and warranty that
each Mortgage Loan is an Eligible Substitute Loan as of the date of
substitution, and the Seller shall be obligated to repurchase or substitute for
any Eligible Substitute Loan as to which a Repurchase Event has occurred as
provided herein. In connection with the substitution of one or more Eligible
Substitute Loans for one or more Deleted Loans, the Servicer shall determine the
amount (such amount, a "Substitution Adjustment Amount"), if any, by which the
aggregate principal balance of all such Eligible Substitute Loans as of the date
of substitution is less than the aggregate principal balance of all such Deleted
Loans (after application of the principal portion of the Monthly Payments due in
the month of substitution that are to be distributed to the Note Payment Account
in the month of substitution). The Seller shall deposit the amount of such
shortfall into the Custodial Account on the date of substitution, without any
reimbursement therefor.
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Upon receipt by the Indenture Trustee on behalf of the Issuer and the
Custodian of written notification, signed by a Servicing Officer, of the deposit
of such Repurchase Price or of such substitution of an Eligible Substitute Loan
(together with the complete related Mortgage File) and deposit of any applicable
Substitution Adjustment Amount as provided above, the Custodian, on behalf of
the Indenture Trustee, shall release to the Seller the related Mortgage File for
the Mortgage Loan being repurchased or substituted for and the Indenture Trustee
on behalf of the Issuer shall execute and deliver such instruments of transfer
or assignment prepared by the Servicer, in each case without recourse, as shall
be necessary to vest in the Seller or its designee such Mortgage Loan released
pursuant hereto and thereafter such Mortgage Loan shall not be an asset of the
Issuer.
It is understood and agreed that the obligation of the Seller to cure
any breach, or to repurchase or substitute for any 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, the Issuer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against the Seller.
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive delivery of the respective Mortgage
Files to the Issuer or the Custodian.
ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller. The Seller hereby covenants that, except
for the transfer hereunder and as of any Subsequent Transfer Date, the Seller
will not sell, pledge, assign or transfer to any other Person, or grant, create,
incur or assume any Lien on any Mortgage Loan, or any interest therein, except
with respect to any Excluded Amount. The Seller shall notify the Issuer (in the
case of the Initial Mortgage Loans, as assignee of the Purchaser), of the
existence of any Lien (other than as provided above) on any Mortgage Loan
immediately upon discovery thereof; and the Seller shall defend the right, title
and interest of the Issuer (in the case of the Initial Mortgage Loans, as
assignee of the Purchaser) in, to and under the Mortgage Loans against all
claims of third parties claiming through or under the Seller; provided, however,
that nothing in this Section 4.1 shall be deemed to apply to any Liens for
municipal or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
Proceedings.
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ARTICLE V
SERVICING
Section 5.1 Servicing. The Seller shall service the Mortgage Loans pursuant to
the terms and conditions of the Servicing Agreement and the Program Guide and
shall service the Mortgage Loans directly or through one or more sub-servicers
in accordance therewith.
ARTICLE VI
INDEMNIFICATION BY THE SELLER
WITH RESPECT TO THE MORTGAGE LOANS
Section 6.1 Limitation on Liability of the Seller. None of the directors,
officers, employees or agents of the Seller shall be under any liability to the
Purchaser or the Issuer, it being expressly understood that all such liability
is expressly waived and released as a condition of, and as consideration for,
the execution of this Agreement and any Subsequent Transfer Agreement. Except as
and to the extent expressly provided in the Servicing Agreement, the Seller
shall not be under any liability to the Issuer, the Owner Trustee, the Indenture
Trustee or the Securityholders. The Seller and any director, officer, employee
or agent of the Seller may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
Section 6.2 Indemnification with Respect to the Mortgage Loans. The Seller shall
indemnify and hold harmless the Purchaser and the Issuer (with respect to the
Initial mortgage Loans, as assignee of the Purchaser) from and against any loss,
liability or expense arising from any breach by the Seller of its
representations and warranties in Section 3.1 of this Agreement that materially
and adversely affects the Purchaser's interest in any Initial Mortgage Loan or
the Issuer's interest in any Mortgage Loan or from the failure by the Seller to
perform its obligations under this Agreement or any Subsequent Transfer
Agreement in any material respect; provided, that the Seller shall have no
obligation to indemnify the Purchaser in respect of any loss, liability or
expense that arises as a result of the Purchaser's willful malfeasance, bad
faith or negligence or as a result of the breach by the Purchaser of its
obligations hereunder; nor shall the Seller shall have any obligation to
indemnify the Issuer in respect of any loss, liability or expense that arises as
a result of the Issuer's willful malfeasance, bad faith or negligence.
ARTICLE VII
TERMINATION
Section 7.1 Termination. The obligations and responsibilities of the
parties hereto shall terminate upon the termination of the Trust Agreement.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement may be amended from time to time by the
parties hereto by written agreement with the prior written consent of the
Enhancer (which consent shall not be unreasonably withheld).
Section 8.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND 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
SUCH LAWS.
Section 8.3 Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, postage prepaid, addressed as follows:
(i) if to the Seller:
GMAC Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Senior Vice President
Re: GMACM Home Equity Loan Trust 2000-HE2;
(ii) if to the Purchaser:
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:President
Re: GMACM Home Equity Loan Trust 2000-HE2;
(iii) if to the Indenture Trustee:
Norwest Bank Minnesota, National Association
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: GMACM Home Equity Loan Trust 2000-HE2,
Copy to the Corporate Trust Office of the Indenture
Trustee;
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(iv) if to the Issuer:
c/o Wilmington Trust Company, as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: GMACM Home Equity Loan Trust 2000-HE2; or
(v) if to the Enhancer:
MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:Insured Portfolio Management -
Structured Finance
Re: GMACM Home Equity Loan Trust 2000-HE2;
or, with respect to any of the foregoing Persons, at such other address as may
hereafter be furnished to the other foregoing Persons in writing.
Section 8.4 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be held invalid for any
reason whatsoever, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity of enforceability of
the other provisions of this Agreement.
Section 8.5 Relationship of Parties. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture among the parties hereto, and
the services of the Seller shall be rendered as an independent contractor and
not as agent for the Purchaser.
Section 8.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts, together, shall constitute one and the same agreement.
Section 8.7 Further Agreements. The parties hereto each agree to execute and
deliver to the other such additional documents, instruments or agreements as may
be necessary or appropriate to effectuate the purposes of this Agreement.
Section 8.8 Intention of the Parties. It is the intention of the parties hereto
that the Purchaser will be purchasing on the Closing Date, and the Seller will
be selling on the Closing Date, the Initial Mortgage Loans, rather than the
Purchaser providing a loan to the Seller secured by the Initial Mortgage Loans
on the Closing Date; and that the Issuer will be purchasing on each Subsequent
Transfer Date, and the Seller will be selling on each Subsequent Transfer Date,
the related Subsequent Mortgage Loans, rather than the Issuer providing a loan
to the Seller secured by the related Subsequent Mortgage Loans on each
Subsequent Transfer Date. Accordingly, the parties hereto each intend to treat
this transaction for federal income tax purposes as (i) a sale by the Seller,
and a purchase by the Purchaser, of the Initial Mortgage Loans on the Closing
Date and (ii) a sale by the Seller, and a purchase by the Issuer, of the related
Subsequent Mortgage Loans on each Subsequent Transfer Date. The Purchaser and
the Issuer shall each have the right to review the Mortgage Loans and the
Related Documents to determine the characteristics of the Mortgage Loans which
will affect the federal income tax consequences of owning the Mortgage Loans,
and the Seller shall cooperate with all reasonable requests made by the
Purchaser or the Issuer in the course of such review.
20
Section 8.9 Successors and Assigns; Assignment of This Agreement.
(a) This Agreement shall bind and inure to the benefit of and be enforceable by
the parties hereto and their respective permitted successors and assigns. The
obligations of the Seller under this Agreement cannot be assigned or delegated
to a third party without the consent of the Enhancer and the Purchaser (and the
Issuer with respect to the transfer of any Subsequent Mortgage Loans), which
consent shall be at the Purchaser's sole discretion (and the Issuer's sole
discretion with respect to the transfer of any Subsequent Mortgage Loans);
provided, that the Seller may assign its obligations hereunder to any Affiliate
of the Seller, to any Person succeeding to the business of the Seller, to any
Person into which the Seller is merged and to any Person resulting from any
merger, conversion or consolidation to which the Seller is a party. The parties
hereto acknowledge that (i) the Purchaser is acquiring the Initial Mortgage
Loans for the purpose of contributing them to the GMACM Home Equity Loan Trust
2000-HE2 and (ii) the Issuer is acquiring the Subsequent Mortgage Loans for the
purpose of pledging the Subsequent Mortgage Loans to the Indenture Trustee for
the benefit of the Noteholders and the Enhancer.
(b) As an inducement to the Purchaser and the Issuer to purchase the Initial
Mortgage Loans and to the Issuer to purchase any Subsequent Mortgage Loans, the
Seller acknowledges and consents to (i) the assignment by the Purchaser to the
Issuer of all of the Purchaser's rights against the Seller pursuant to this
Agreement insofar as such rights relate to the Initial Mortgage Loans
transferred to the Issuer and to the enforcement or exercise of any right or
remedy against the Seller pursuant to this Agreement by the Issuer, (ii) the
enforcement or exercise of any right or remedy against the Seller pursuant to
this Agreement by or on behalf of the Issuer and (iii) the Issuer's pledge of
its interest in this Agreement to the Indenture Trustee and the enforcement by
the Indenture Trustee of any such right or remedy against the Seller following
an Event of Default under the Indenture. Such enforcement of a right or remedy
by the Issuer, the Owner Trustee, the Enhancer or the Indenture Trustee, as
applicable, shall have the same force and effect as if the right or remedy had
been enforced or exercised by the Purchaser or the Issuer directly.
Section 8.10 Survival. The representations and warranties made herein by the
Seller and the provisions of Article VI hereof shall survive the purchase of the
Initial Mortgage Loans hereunder and any transfer of Subsequent Mortgage Loans
pursuant to this Agreement and the related Subsequent Transfer Agreement.
Section 8.11 Third Party Beneficiary. The Enhancer shall be a third party
beneficiary hereof and shall be entitled to enforce the provisions of this
Agreement as if a party hereto.
21
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., as
Purchaser
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GMAC MORTGAGE CORPORATION,
as Seller
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
GMACM HOME EQUITY LOAN TRUST 2000-HE2, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as
Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
2-1
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
[See Exhibit A of Exhibit 4.1]
EXHIBIT 2
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement No.___ (the "Agreement"),
dated as of __________, ___________, between GMAC Mortgage Corporation, as
seller (the "Seller"), and GMACM Home Equity Loan Trust 2000-HE2, as issuer (the
"Issuer"), and pursuant to the mortgage loan purchase agreement dated as of June
29, 2000 (the "Mortgage Loan Purchase Agreement"), among the Seller, Residential
Asset Mortgage Products, Inc., as purchaser (the "Purchaser"), the Issuer and
Norwest Bank Minnesota, National Association, as indenture trustee (the
"Indenture Trustee"), the Seller and the Issuer agree to the sale by the Seller
and the purchase by the Issuer of the mortgage loans listed on the attached
Schedule of Subsequent Mortgage Loans (the "Subsequent Mortgage Loans").
Capitalized terms used and not defined herein have their respective
meanings as set forth in Appendix A to the indenture dated as of June 29, 2000,
between the Issuer and the Indenture Trustee, which meanings are incorporated by
reference herein. All other capitalized terms used herein shall have the
meanings specified herein.
Section 1. Sale of Subsequent Mortgage Loans.
(a) The Seller does hereby sell, transfer, assign, set over and convey
to the Issuer, without recourse, all of its right, title and interest in and to
the Subsequent Mortgage Loans (including the Subsequent Cut-Off Date Principal
Balance now existing and thereafter arising to and including the date
immediately preceding the commencement of the Rapid Amortization Period), all
principal received and interest accruing on the Subsequent Mortgage Loans on and
after the Subsequent Cut-Off Date, all monies due or to become due relating to
such Subsequent Mortgage Loans and all items with respect to the Subsequent
Mortgage Loans to be delivered pursuant to Section 2.2 of the Mortgage Loan
Purchase Agreement; provided, however, that the Seller reserves and retains all
right, title and interest in and to principal received and interest accruing on
the Subsequent Mortgage Loans prior to the Subsequent Cut-Off Date. The Seller,
contemporaneously with the delivery of this Agreement, has delivered or caused
to be delivered to the Indenture Trustee each item set forth in Section 2.2 of
the Mortgage Loan Purchase Agreement.
The transfer to the Issuer by the Seller of the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule shall be absolute and is intended
by the parties hereto to constitute a sale by the Seller to the Issuer on the
Subsequent Transfer Date of all the Seller's right, title and interest in and to
the Subsequent Mortgage Loans, and other property as and to the extent described
above, and the Issuer hereby acknowledges such transfer. In the event the
transactions set forth herein shall be deemed not to be a sale, the Seller
hereby grants to the Issuer as of the Subsequent Transfer Date a security
interest in all of the Seller's right, title and interest in, to and under all
accounts, chattel papers, general intangibles, contract rights, certificates of
deposit, deposit accounts, instruments, documents, letters of credit, money,
advices of credit, investment property, goods and other property consisting of,
arising under or related to the Subsequent Mortgage Loans, and such other
property, to secure all of the Issuer's obligations hereunder, and this
Agreement shall constitute a security agreement under applicable law. The Seller
agrees to take or cause to be taken such actions and to execute such documents,
including without limitation the filing of all necessary UCC-1 financing
statements filed in the State of Delaware and the Commonwealth of Pennsylvania
(which shall be submitted for filing as of the Subsequent Transfer Date), any
continuation statements with respect thereto and any amendments thereto required
to reflect a change in the name or corporate structure of the Seller or the
filing of any additional UCC-1 financing statements due to the change in the
principal office of the Seller, as are necessary to perfect and protect the
Issuer's interests in each Subsequent Mortgage Loan and the proceeds thereof.
(b) The expenses and costs relating to the delivery of the Subsequent
Mortgage Loans, this Agreement and the Mortgage Loan Purchase Agreement shall be
borne by the Seller.
(c) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Representations and Warranties; Conditions Precedent.
(a) The Seller hereby affirms the representations and warranties set
forth in Section 3.1 of the Mortgage Loan Purchase Agreement that relate to the
Seller or the Subsequent Mortgage Loans as of the date hereof. The Seller hereby
confirms that each of the conditions set forth in Section 2.2(b) of the Mortgage
Loan Purchase Agreement are satisfied as of the date hereof and further
represents and warrants that each Subsequent Mortgage Loan complies with the
requirements of this Agreement and Section 2.2(c) of the Mortgage Loan Purchase
Agreement.
(b) The Seller is solvent, is able to pay its debts as they become due
and has capital sufficient to carry on its business and its obligations
hereunder; it will not be rendered insolvent by the execution and delivery of
this Instrument or by the performance of its obligations hereunder nor is it
aware of any pending insolvency; no petition of bankruptcy (or similar
insolvency proceeding) has been filed by or against the Seller prior to the date
hereof.
(c) All terms and conditions of the Mortgage Loan Purchase Agreement
relating to the Subsequent Mortgage Loans are hereby ratified and confirmed;
provided, however, that in the event of any conflict the provisions of this
Agreement shall control over the conflicting provisions of the Mortgage Loan
Purchase Agreement.
Section 3. Recordation of Instrument. To the extent permitted by
applicable law or a memorandum thereof if permitted under applicable law, this
Agreement is subject to recordation in all appropriate public offices for real
property records in all of the counties or other comparable jurisdictions in
which any or all of the properties subject to the related Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at the Noteholders' expense on
direction of the Majority Noteholders or the Enhancer, but only when accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Noteholders or the Enhancer or is
necessary for the administration or servicing of the Subsequent Mortgage Loans.
Section 4. GOVERNING LAW. THIS INSTRUMENT 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
SUCH LAWS.
Section 5. Counterparts. This Instrument may be executed in counterparts,
each of which, when so executed, shall be deemed to be an original and together
shall constitute one and the same instrument.
Section 6. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Issuer and their respective
successors and assigns.
GMAC MORTGAGE CORPORATION,
as Seller
By:
Name:
Title:
GMACM HOME EQUITY LOAN TRUST 2000-HE2, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as
Owner Trustee
By:
Name:
Title:
Attachments
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
C. Seller's Officer's Certificate.
D. Seller's Officer's Certificate (confirmation of Enhancer approval).
GMACM HOME EQUITY LOAN TRUST 2000-HE2
ATTACHMENT A TO FORM OF SUBSEQUENT TRANSFER AGREEMENT
------------, ----
A.
1. Subsequent Cut-Off Date:
2. Pricing Date:
3. Subsequent Transfer Date:
4. Aggregate Principal Balance of the Subsequent Mortgage Loans as
of the Subsequent Cut-Off Date:
5. Purchase Price: 100.00%
B.
As to all Subsequent Mortgage Loans:
1. Longest stated term to maturity: months
----------
2. Minimum Loan Rate: %
----------
3. Maximum Loan Rate: %
----------
4. WAC of all Subsequent Mortgage Loans: %
----------
5. WAM of all Subsequent Mortgage Loans: %
----------
6. Largest Principal Balance: $
7. Non-owner occupied Mortgaged Properties: %
----------
8. California and Michigan zip code concentrations: % and %
---- ----
9. Condominiums: %
----------
10. Single-family: %
----------
11. Weighted average term since origination: %
----------
12. Principal balance of Subsequent Mortgage Loans with respect to $
which the Mortgagor is an employee of GMACM or an affiliate of
GMACM:
13. Number of Subsequent Mortgage Loans with respect to which the
Mortgagor is an employee of GMACM or an affiliate of GMACM:
EXHIBIT 3
FORM OF ADDITION NOTICE
DATE:
Norwest Bank Minnesota, ▇▇▇▇▇'▇ Investors Service, Inc.
National Association ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
11000 Broken Land Parkway New York, New York 10007
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MBIA Insurance Corporation Wilmington Trust Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Insured Portfolio
Management-Structured Finance (GMACM Home
Equity Loan Trust 2000-HE2)
Standard & Poor's, a division of The Fitch, Inc.
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: GMACM Home Equity Loan Trust 2000-HE2
Ladies and Gentlemen:
Pursuant to Section 2.2 of the mortgage loan purchase agreement dated as
of June 29, 2000 (the "Purchase Agreement"), among GMAC Mortgage Corporation, as
Seller, Residential Asset Mortgage Products, Inc., as Purchaser, GMACM Home
Equity Loan Trust 2000-HE2, as Issuer and Norwest Bank Minnesota, National
Association, as Indenture Trustee, the Seller has designated the Subsequent
Mortgage Loans identified on the Mortgage Loan Schedule attached hereto to be
sold to the Issuer on , , with an aggregate Principal Balance of $ . Capitalized
terms not otherwise defined herein have the meaning set forth in the Appendix A
to the indenture dated as of June 29, 2000, between the Issuer and the Indenture
Trustee.
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
GMAC MORTGAGE CORPORATION,
as Seller
By:
Name:
Title:
ACKNOWLEDGED AND AGREED:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Indenture Trustee
By:
Name:
Title: