EXECUTION COPY
===============================================================================
GMAC MORTGAGE CORPORATION
as Servicer,
GMACM HOME EQUITY LOAN TRUST 2002-HE3,
as Issuer
and
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.
as Indenture Trustee
-------------------------
SERVICING AGREEMENT
Dated as of August 28, 2002
-------------------------
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE I Definitions...............................................................2
Section 1.01 Definitions........................................................2
Section 1.02 Other Definitional Provisions......................................2
Section 1.03 Interest Calculations..............................................2
ARTICLE II Representations and Warranties............................................3
Section 2.01 Representations and Warranties Regarding the Servicer..............3
Section 2.02 Representations and Warranties of the Issuer.......................4
Section 2.03 Enforcement of Representations and Warranties......................4
ARTICLE III Administration and Servicing of Mortgage Loans............................5
Section 3.01 The Servicer.......................................................5
Section 3.02 Collection of Certain Mortgage Loan Payments.......................8
Section 3.03 Withdrawals from the Custodial Account............................11
Section 3.04 Maintenance of Hazard Insurance; Property Protection Expenses.....13
Section 3.05 Modification Agreements...........................................14
Section 3.06 Trust Estate; Related Documents...................................14
Section 3.07 Realization Upon Defaulted Mortgage Loans.........................15
Section 3.08 Issuer and Indenture Trustee to Cooperate.........................16
Section 3.09 Servicing Compensation; Payment of Certain Expenses by
Servicer..........................................................17
Section 3.10 Annual Statement as to Compliance.................................18
Section 3.11 Annual Servicing Report...........................................18
Section 3.12 Access to Certain Documentation and Information Regarding
the Mortgage Loans................................................18
Section 3.13 Maintenance of Certain Servicing Insurance Policies...............19
Section 3.14 Information Required by the Internal Revenue Service and
Reports of Foreclosures and Abandonments of Mortgaged
Property..........................................................19
Section 3.15 Optional Repurchase or Transfer of Mortgage Loans.................19
Section 3.16 Reserved..........................................................21
Section 3.17 Pre-Funding Account...............................................21
Section 3.18 Funding Account...................................................22
Section 3.19 Capitalized Interest Account......................................24
Section 3.20 Reserve Sub-Account...............................................25
Section 3.21 Enforcement of Due-on-Sale Clauses; Assumption and
Modification Agreements; Certain Assignments......................25
ARTICLE IV Servicing Certificate....................................................26
Section 4.01 Statements to Securityholders.....................................26
Section 4.02 Tax Returns and 1934 Act Reports..................................27
ARTICLE V Note Payment Account.....................................................29
Section 5.01 Note Payment Account..............................................29
ARTICLE VI The Servicer.............................................................30
Section 6.01 Liability of the Servicer.........................................30
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer..................................................30
Section 6.03 Limitation on Liability of the Servicer and Others................31
Section 6.04 Servicer Not to Resign............................................31
Section 6.05 Delegation of Duties..............................................32
Section 6.06 Payment of Indenture Trustee's and Owner Trustee's Fees and
Expenses; Indemnification.........................................32
ARTICLE VII Default..................................................................33
Section 7.01 Servicing Default.................................................33
Section 7.02 Indenture Trustee to Act; Appointment of Successor................35
Section 7.03 Notification to Securityholders...................................37
ARTICLE VIII Miscellaneous Provisions.................................................37
Section 8.01 Amendment.........................................................37
Section 8.02 GOVERNING LAW.....................................................37
Section 8.03 Notices...........................................................37
Section 8.04 Severability of Provisions........................................38
Section 8.05 Third-Party Beneficiaries.........................................38
Section 8.06 Counterparts......................................................38
Section 8.07 Effect of Headings and Table of Contents..........................38
Section 8.08 Termination Upon Purchase by the Servicer or Liquidation of
All Mortgage Loans; Partial Redemption............................38
Section 8.09 Certain Matters Affecting the Indenture Trustee...................39
Section 8.10 Owner Trustee Not Liable for Related Documents....................39
EXHIBIT A - MORTGAGE LOAN SCHEDULE A-1
EXHIBIT B - LIMITED POWER OF ATTORNEY B-1
EXHIBIT C - FORM OF REQUEST FOR RELEASE C-1
This Servicing Agreement, dated as of August 28, 2002 (the "Agreement"),
is among GMAC Mortgage Corporation, as servicer (the "Servicer"), the GMACM Home
Equity Loan Trust 2002-HE3, as issuer (the "Issuer"), and ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as indenture trustee (the "Indenture Trustee").
WITNESSETH:
WHEREAS, pursuant to the terms of the Purchase Agreement (as defined
herein), GMAC Mortgage Corporation, as seller (in such capacity, "GMACM") and as
servicer and Walnut Grove Mortgage Loan Trust 2001-A, as seller (together with
GMACM, the "Sellers"), will sell to Residential Asset Mortgage Products, Inc.
("RAMP"), as purchaser (in such capacity, the "Purchaser"), the Initial Mortgage
Loans on the Closing Date, and may sell Subsequent Mortgage Loans on one or more
Subsequent Transfer Dates, together with the Related Documents on the Closing
Date and any Subsequent Transfer Date, and thereafter all Additional Balances
created on or after the Cut-Off Date and any such Subsequent Transfer Date;
WHEREAS, RAMP, as depositor (in such capacity, the "Depositor"), will
sell the Initial Mortgage Loans and assign all of its rights under the Purchase
Agreement to the Issuer, together with the Related Documents on the Closing
Date, and thereafter all Additional Balances relating thereto created on or
after the Cut-Off Date;
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; and
WHEREAS, pursuant to the terms of this Agreement, the Servicer will
service the Mortgage Loans directly or through one or more Subservicers.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1
ARTICLE I
Definitions
Section 1.01 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 August 28, 2002 (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 1.02 Other Definitional Provisions.
-----------------------------
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
2
Section 1.03 Interest Calculations. All calculations of interest hereunder that
are made in respect of the Principal Balance of a Mortgage Loan shall be made on
a daily basis using a 365-day year. All calculations of interest on the Notes
shall be made on the basis of the actual number of days in an Interest Period
and a year assumed to consist of 360-days. The calculation of the Servicing Fee
shall be made on the basis of a 360-day year consisting of twelve 30-day months.
All dollar amounts calculated hereunder shall be rounded to the nearest ▇▇▇▇▇
with one-half of one ▇▇▇▇▇ being rounded up.
ARTICLE II
Representations and Warranties
Section 2.01 Representations and Warranties Regarding the Servicer. The Servicer
represents and warrants to the Issuer and for the benefit of the Indenture
Trustee, as pledgee of the Mortgage Loans, as of the Closing Date:
(a) the Servicer is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania and has the
corporate power to own its assets and to transact the business in which it
is currently engaged. The Servicer is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which
the character of the business transacted by it or properties owned or
leased by it requires such qualification and in which the failure to so
qualify would have a material adverse effect (not in the ordinary course of
business) on the business, properties, assets, or condition (financial or
other) of the Servicer;
(b) the Servicer has the power and authority to make, execute, deliver and
perform 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. When executed and
delivered, this Servicing Agreement will constitute the legal, valid and
binding obligation of the Servicer enforceable in accordance with its
terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
(c) the Servicer is not required to obtain the consent of any other
Person or any consent, license, approval or authorization from,
or registration or declaration with, any governmental authority,
bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement, except
for such consent, license, approval or authorization, or
registration or declaration, as shall have been obtained or
filed, as the case may be;
(d) the execution and delivery of this Agreement and the performance
of the transactions contemplated hereby by the Servicer will not
violate any material provision of any existing law or regulation
or any order or decree of any court applicable to the Servicer or
any provision of the Articles of Incorporation or Bylaws of the
Servicer, or constitute a material breach of any material
mortgage, indenture, contract or other agreement to which the
Servicer is a party or by which the Servicer may be bound;
3
(e) no litigation or administrative proceeding of or before any
court, tribunal or governmental body is currently pending, or to
the knowledge of the Servicer threatened, against the Servicer or
any of its properties or with respect to this Agreement or the
Securities which in the opinion of the Servicer has a reasonable
likelihood of resulting in a material adverse effect on the
transactions contemplated by this Agreement;
(f) the Servicer is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of
MERS in connection with the servicing of the Mortgage Loans that
are registered with MERS; and
(g) the servicing of the Mortgage Loans has at all times been
conducted in material compliance with all applicable federal,
state and local laws, rules and regulations and there has been no
material violation of any such laws, rules or regulations arising
out of the servicing of the Mortgage Loans.
The foregoing representations and warranties shall survive any
termination of the Servicer hereunder.
Section 2.02 Representations and Warranties of the Issuer. The Issuer hereby
represents and warrants to the Servicer and for the benefit of the Indenture
Trustee, as pledgee of the Mortgage Loans, as of the Closing Date:
(a) the Issuer is a business trust duly formed and in good standing under the
laws of the State of Delaware and has full power, authority and legal right
to execute and deliver this Agreement and to perform its obligations under
this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement; and
(b) the execution and delivery by the Issuer of this Agreement and the
performance by the Issuer of its obligations under this Agreement will not
violate any provision of any law or regulation governing the Issuer or any
order, writ, judgment or decree of any court, arbitrator or governmental
authority or agency applicable to the Issuer or any of its assets. Such
execution, delivery, authentication and performance will not require the
authorization, consent or approval of, the giving of notice to, the filing
or registration with, or the taking of any other action with respect to,
any governmental authority or agency regulating the activities of limited
liability companies. Such execution, delivery, authentication and
performance will not conflict with, or result in a breach or violation of,
any mortgage, deed of trust, lease or other agreement or instrument to
which the Issuer is bound.
Section 2.03 Enforcement of Representations and Warranties. The Servicer, on
behalf of and subject to the direction of the Indenture Trustee, as pledgee of
the Mortgage Loans, or the Issuer, shall enforce the representations and
warranties of the Sellers pursuant to the Purchase Agreement. Upon the discovery
by the Sellers, the Depositor, the Servicer, the Indenture Trustee, the
Enhancer, the Issuer, or the Custodian of a breach of any of the representations
4
and warranties made by a Seller in the Purchase Agreement, in respect of any
Mortgage Loan which materially and adversely affects the interests of the
Securityholders or the Enhancer, the party discovering such breach shall give
prompt written notice to the other parties (the Custodian being so obligated
under the Custodial Agreement). The Servicer shall promptly notify such Seller
of such breach and request that, pursuant to the terms of the Purchase
Agreement, the Seller either (i) cure such breach in all material respects
within 90 days from the date the Seller was notified of such breach or (ii)
purchase such Mortgage Loan from the Issuer at the price and in the manner set
forth in Section 3.1(d) of the Purchase Agreement; provided, that the Seller
shall, subject to the conditions set forth in the Purchase Agreement, have the
option to substitute an Eligible Substitute Loan or Loans for such Mortgage
Loan. In the event that the Seller elects to substitute one or more Eligible
Substitute Loans pursuant to Section 3.1(d) of the Purchase Agreement, the
Seller shall deliver to the Custodian or the Servicer, in accordance with the
Purchase Agreement, with respect to such Eligible Substitute Loans, the original
Loan Agreement, the Mortgage, and such other documents and agreements as are
required by the Purchase Agreement. Payments due with respect to Eligible
Substitute Loans in the month of substitution shall not be transferred to the
Issuer and will be retained by the Servicer and remitted by the Servicer to such
Seller on the next succeeding Payment Date except to the extent that a payment
less than the applicable Minimum Monthly Payment has been received by the Issuer
for such month in respect of the Mortgage Loan to be removed. The Servicer shall
amend or cause to be amended the Mortgage Loan Schedule to reflect the removal
of such Mortgage Loan and the substitution of the Eligible Substitute Loans and
the Servicer shall promptly deliver the amended Mortgage Loan Schedule to the
Owner Trustee and Indenture Trustee.
It is understood and agreed that the obligation of the Sellers to cure
such breach or purchase or 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 Issuer and the Indenture Trustee, as
pledgee of the Mortgage Loans, against either Seller. In connection with the
purchase of or substitution for any such Mortgage Loan by such Seller, the
Issuer shall assign to such Seller all of its right, title and interest in
respect of the Purchase Agreement applicable to such Mortgage Loan. Upon receipt
of the Repurchase Price, or upon completion of such substitution, the Servicer
shall notify the Custodian, and the Custodian shall deliver the Loan Agreements
to the Servicer, together with all relevant endorsements and assignments
prepared by the Servicer that the Indenture Trustee shall execute.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01 The Servicer.
------------
(a) The Servicer shall service and administer the Mortgage Loans in a manner
generally consistent with the terms of the Program Guide and in a manner
consistent with the terms of this Agreement and that shall be normal and
usual in its general mortgage servicing activities and consistent with the
manner in which it services all other Mortgage Loans in its servicing
portfolio with characteristics similar to those of the Mortgage Loans. The
Servicer shall have full power and authority, acting alone or through a
5
Subservicer, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable, it being
understood, however, that the Servicer shall at all times remain
responsible to the Issuer and the Indenture Trustee, as pledgee of the
Mortgage Loans, for the performance of its duties and obligations hereunder
in accordance with the terms hereof and the Program Guide. Without limiting
the generality of the foregoing, the Servicer shall continue, and is hereby
authorized and empowered by the Issuer and the Indenture Trustee, as
pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself,
the Issuer, the Indenture Trustee or any of them, any and all instruments
of satisfaction or cancellation, or of partial or full release or discharge
and all other comparable instruments with respect to the Mortgage Loans and
the Mortgaged Properties. The Issuer, the Indenture Trustee and the
Custodian, as applicable, shall furnish the Servicer with any powers of
attorney and other documents necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder. In
addition, the Servicer may, at its own discretion and on behalf of the
Indenture Trustee, obtain credit information in the form of a "credit
score" from a credit repository. On the Closing Date, the Indenture Trustee
shall deliver to the Servicer a limited power of attorney substantially in
the form of Exhibit B hereto. The Servicer is further authorized and
empowered by the Issuer and the Indenture Trustee, on behalf of the
Noteholders and the Indenture Trustee, in its own name or in the name of
the Subservicer, when the Servicer or the Subservicer, as the case may be,
believes it appropriate in its best judgment to register any Mortgage Loan
on the MERS(R)System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R)System, to execute and deliver, on behalf of
the Indenture Trustee and the Noteholders or any of them, any and all
instruments of assignment and other comparable instruments with respect to
such assignment or re-recording of a Mortgage in the name of MERS, solely
as nominee for the Indenture Trustee and its successors and assigns. Any
expenses incurred in connection with the actions described in the preceding
sentence shall be borne by the Servicer, with no right of reimbursement.
If the Mortgage did not have a Lien senior to the related Mortgage Loan
on the related Mortgaged Property as of the related Cut-Off Date, then the
Servicer, in such capacity, may not consent to the placing of a Lien senior to
that of the Mortgage on the related Mortgaged Property. If the Mortgage had a
Lien senior to the related Mortgage Loan on the related Mortgaged Property as of
the related Cut-Off Date, then the Servicer, in such capacity, may consent to
the refinancing of such prior senior Lien; provided, that (i) the resulting CLTV
of such Mortgage Loan is no higher than the greater of the CLTV prior to such
refinancing or a 70% CLTV (or a 80% CLTV for those borrowers with a FICO "credit
score" of 720 or greater) and (ii) the interest rate for the loan evidencing the
refinanced senior Lien is no higher than the interest rate on the loan
6
evidencing the existing senior Lien immediately prior to the date of such
refinancing (meaning, in the case of an adjustable rate loan, a substantially
similar index and a gross margin no higher than that of the existing senior
Lien); provided, however, that if the loan evidencing the existing senior Lien
prior to the date of refinancing is an adjustable rate loan and the loan
evidencing the refinanced senior Lien is a fixed rate loan, then the interest
rate on the loan evidencing the refinanced senior Lien may be up to 2.0% higher
than the then-current mortgage rate of the loan evidencing the existing senior
Lien and (iii) the loan evidencing the refinanced senior Lien is not subject to
negative amortization.
In connection with servicing the Mortgage Loans, the Servicer may take
reasonable actions to encourage or effect the termination of Loan Agreements
that have become dormant.
The relationship of the Servicer (and of any successor to the Servicer
as servicer under this Agreement) to the Issuer under this Agreement is intended
by the parties to be that of an independent contractor and not that of a joint
venturer, partner or agent.
(b) The Servicer may enter into Subservicing Agreements with Subservicers for
the servicing and administration of certain of the Mortgage Loans. The
Servicer shall provide notice to the Indenture Trustee upon entering into a
Subservicing Agreement. References in this Agreement to actions taken or to
be taken by the Servicer in servicing the Mortgage Loans include actions
taken or to be taken by a Subservicer on behalf of the Servicer and any
amount actually received by such Subservicer in respect of a Mortgage Loan
shall be deemed to have been received by the Servicer whether or not
actually received by the Servicer. Each Subservicing Agreement will be upon
such terms and conditions as are not inconsistent with this Agreement and
as the Servicer and the Subservicer have agreed. With the approval of the
Servicer, a Subservicer may delegate its servicing obligations to
third-party servicers, but such Subservicers will remain obligated under
the related Subservicing Agreements. The Servicer and the Subservicer may
enter into amendments to the related Subservicing Agreements; provided,
however, that any such amendments shall not cause the Mortgage Loans to be
serviced in a manner that would be materially inconsistent with the
standards set forth in this Agreement. The Servicer shall be entitled to
terminate any Subservicing Agreement in accordance with the terms and
conditions thereof and without any limitation by virtue of this Agreement;
provided, however, that in the event of termination of any Subservicing
Agreement by the Servicer or the Subservicer, the Servicer shall either act
as servicer of the related Mortgage Loan or enter into a Subservicing
Agreement with a successor Subservicer which will be bound by the terms of
the related Subservicing Agreement. The Servicer shall be entitled to enter
into any agreement with a Subservicer for indemnification of the Servicer
and nothing contained in this Agreement shall be deemed to limit or modify
such indemnification.
In the event that the rights, duties and obligations of the Servicer are
terminated hereunder, any successor to the Servicer in its sole discretion may,
to the extent permitted by applicable law, terminate the existing Subservicing
Agreement with any Subservicer in accordance with the terms of the applicable
Subservicing Agreement or assume the terminated Servicer's rights and
obligations under such subservicing arrangements which termination or assumption
will not violate the terms of such arrangements.
7
As part of its servicing activities hereunder, the Servicer, for the
benefit of the Indenture Trustee, the Enhancer and the Securityholders, shall
use reasonable efforts to enforce the obligations of each Subservicer under the
related Subservicing Agreement, to the extent that the non-performance of any
such obligation would have a material adverse effect on a Mortgage Loan. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Subservicing Agreements and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Servicer, in its good faith business judgment, would require were it
the owner of the related Mortgage Loans. The Servicer shall pay the costs of
such enforcement at its own expense, and shall be reimbursed therefor only (i)
from a general recovery resulting from such enforcement to the extent, if any,
that such recovery exceeds all amounts due in respect of the related Mortgage
Loan or (ii) from a specific recovery of costs, expenses or attorneys fees
against the party against whom such enforcement is directed.
(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 Custodian, if any, or the Indenture Trustee are and shall be
held by the Servicer in trust as agent for the Indenture Trustee on behalf of
the Noteholders.
Section 3.02 Collection of Certain Mortgage Loan Payments.
--------------------------------------------
(a) The Servicer shall make reasonable efforts to collect all payments called
for under the terms and provisions of the Mortgage Loans, and shall, to the
extent such procedures shall be consistent with this Agreement and
generally consistent with the Program Guide, follow such collection
procedures as shall be normal and usual in its general mortgage servicing
activities and consistent with the procedures the Servicer employs in
servicing all other Mortgage Loans in the servicing portfolio with
characteristics similar to those of the Mortgage Loans. Consistent with the
foregoing, and without limiting the generality of the foregoing, the
Servicer may in its discretion (i) waive any late payment charge, penalty
interest or other fees which may be collected in the ordinary course of
servicing a Mortgage Loan and (ii) arrange with a Mortgagor a schedule for
the payment of principal and interest due and unpaid; provided, that such
arrangement is consistent with the Servicer's policies with respect to home
equity mortgage loans; and provided further, that notwithstanding such
arrangement, such Mortgage Loans will be included in the information
regarding delinquent Mortgage Loans set forth in the Servicing Certificate.
The Servicer may also extend the Due Date for payment due on a Mortgage
Loan in accordance with the Program Guide; provided, however, that the
Servicer shall first determine that any such waiver or extension will not
impair the coverage of any related insurance policy or materially adversely
affect the Lien of the related Mortgage or the interests of the
Securityholders or the Enhancer, and the Servicer shall not grant any such
waiver or extension that would have any such effect. Consistent with the
terms of this Agreement, the Servicer may also:
(i) waive, modify or vary any term of any Mortgage Loan (including reduce
the Credit Limit);
8
(ii) consent to the postponement of strict compliance with any such term or
in any manner grant indulgence to any Mortgagor;
(iii) arrange with a Mortgagor a schedule for the payment of principal and
interest due and unpaid;
(iv) forgive any portion of the amounts contractually owed under the
Mortgage Loan;
(v) capitalize past due amounts owed under the Mortgage Loan by
adding any amounts in arrearage to the existing principal balance of the
Mortgage Loan (a "Capitalization Workout") which will result in an increased
monthly payment amount, provided that: (A) the amount added to the existing
principal balance of the Mortgage Loan (the "Capitalized Amount") shall be no
greater than five times the Mortgagor's current Minimum Monthly Payment amount;
and (B) the Servicer shall not enter into a Capitalization Workout unless the
CLTV of the Mortgage Loan prior to the Capitalization Workout equals or exceeds
80% and the Mortgagor has qualified for the Capitalization Workout under the
Servicer's servicing guidelines; or
(vi) reset the maturity date for the Mortgage Loan, but in no
event shall such reset date extend beyond the end of the Collection Period
preceding the Final Payment Date;
or any combination of the foregoing, if in the Servicer's
determination such waiver, modification, postponement or indulgence is not
materially adverse to the interests of the Securityholders or the Enhancer;
provided, however, that the Servicer may not modify or permit any Subservicer to
modify any Mortgage Loan (including without limitation any modification that
would change the Loan Rate, forgive the payment of any principal or interest
(unless in connection with the liquidation of the related Mortgage Loan) or
extend the final maturity date of such Mortgage Loan) unless such Mortgage Loan
is in default or, in the judgment of the Servicer, such default is reasonably
foreseeable. The general terms of any waiver, modification, forgiveness,
postponement or indulgence with respect to any of the Mortgage Loans will be
included in the Servicing Certificate, and such Mortgage Loans will not be
considered "delinquent" for the purposes of the Basic Documents so long as the
Mortgagor complies with the terms of such waiver, modification, forgiveness,
postponement or indulgence.
(b) The Servicer shall establish a Custodial Account, which shall be an Eligible
Account, titled "GMACM Home Equity Loan Trust Series 2002-HE3," in which the
Servicer shall deposit or cause to be deposited any amounts representing
payments and collections in respect of the Initial Mortgage Loans received by it
subsequent to or on the Cut-Off Date or, with respect to the Subsequent Mortgage
Loans, the Subsequent Cut-Off Date (other than in respect of the payments
referred to in the following paragraph), within two Business Days following
receipt thereof (or otherwise on or prior to the Closing Date), including the
following payments and collections received or made by it (without duplication):
(i) all payments of principal of or interest on the Mortgage Loans received or
advanced by the Servicer, net of any portion of the interest thereof
retained by any Subservicer as subservicing fees;
9
(ii) the aggregate Repurchase Price of the Mortgage Loans purchased by the
Servicer pursuant to Section 3.15;
(iii)Net Liquidation Proceeds, net of any related Foreclosure Profit and all
Subsequent Net Recovery Amounts;
(iv) all proceeds of any Mortgage Loans repurchased by a Seller pursuant to the
Purchase Agreement, and all Substitution Adjustment Amounts required to be
deposited in connection with the substitution of an Eligible Substitute
Loan pursuant to the Purchase Agreement;
(v) Insurance Proceeds, other than Net Liquidation Proceeds, resulting from any
insurance policy maintained on a Mortgaged Property; and
(vi) amounts required to be paid by the Servicer pursuant to Section 8.08;
provided, however, that with respect to each Collection Period, the Servicer
shall be permitted to retain from payments in respect of interest on the
Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing
requirements respecting deposits to the Custodial Account are exclusive, it
being understood that, without limiting the generality of the foregoing, the
Servicer need not deposit in the Custodial Account amounts representing
Foreclosure Profits, fees (including annual fees) or late charge penalties,
payable by Mortgagors (such amounts to be retained as additional servicing
compensation in accordance with Section 3.09 hereof), or amounts received by the
Servicer for the accounts of Mortgagors for application towards the payment of
taxes, insurance premiums, assessments and similar items. In the event any
amount not required to be deposited in the Custodial Account is so deposited,
the Servicer may at any time withdraw such amount from the Custodial Account,
any provision herein to the contrary notwithstanding. The Servicer shall retain
all Foreclosure Profits as additional servicing compensation.
The Servicer, in its sole discretion, may deposit into the Custodial
Account amounts representing installments of principal of or interest on
Mortgage Loans that were delinquent as of the end of any Collection Period,
provided that the Servicer reasonably believes that such amounts will be
recoverable from Collections on the related Mortgage Loan. If the Servicer makes
any such advances of delinquent principal and/or interest, the Servicer shall be
entitled to reimburse itself by withdrawing from the Custodial Account, as
provided herein, any amounts so advanced. The Servicer may cause the institution
maintaining the Custodial Account to invest any funds in the Custodial Account
in Permitted Investments (including obligations of the Servicer or any of its
Affiliates, if such obligations otherwise qualify as Permitted Investments),
which investments shall mature not later than the Business Day preceding the
next succeeding Payment Date, and which investments shall not be sold or
disposed of prior to maturity. In addition, no such Permitted Investment shall
be purchased at a price in excess of par. Except as provided above, all income
and gain realized from any such investment shall inure to the benefit of the
Servicer and shall be subject to its withdrawal or order from time to time. The
amount of any losses incurred in respect of the principal amount of any such
investments shall be deposited in the Custodial Account by the Servicer out of
its own funds immediately as realized.
10
(c) The Servicer shall require each Subservicer to hold all funds
constituting collections on the Mortgage Loans, pending
remittance thereof to the Servicer, in one or more accounts
meeting the requirements of an Eligible Account, and shall
require all such funds to be invested in Permitted Investments,
unless all such collections are remitted on a daily basis to the
Servicer for deposit into the Custodial Account.
Section 3.03 Withdrawals from the Custodial Account. The Servicer shall, from
time to time as provided herein, make withdrawals from the Custodial Account of
amounts on deposit therein pursuant to Section 3.02 that are attributable to the
Mortgage Loans for the following purposes:
(a) on each Determination Date, the Servicer shall determine the aggregate
amounts to be withdrawn from the Custodial Account and applied pursuant to
Section 3.05(a) of the Indenture and, prior to close of business on the
Business Day prior to the related Payment Date (provided, however, that the
Indenture Trustee shall not be required to invest any amounts deposited
into the Note Payment Account after 1:00 p.m.), shall withdraw such amounts
from the Custodial Account and deposit such amounts into the Note Payment
Account, Funding Account or Reserve Sub-Account, as applicable, to be
distributed by the Paying Agent in accordance with and in the order or
priority set forth in Section 3.05(a) of the Indenture for such Payment
Date, in accordance with the Servicing Certificate;
(b) to pay to itself any monthly payments received from the Mortgagors, the
amount of such payment that represents interest accrued on the related
Mortgage Loan for any period prior to the Cut-Off Date; prior to the
commencement of the Rapid Amortization Period, from Principal Collections
on the Mortgage Loans, and, if Principal Collections are not sufficient,
from Excess Spread, to pay to GMACM the amount of any Additional Balances
as and when created during the related Collection Period, and, prior to the
commencement of the Managed Amortization Period, to pay to the related
Seller the Purchase Price of any Subsequent Mortgage Loans on the related
Subsequent Transfer Date;
(c) to the extent deposited to the Custodial Account, to reimburse itself or
the related Subservicer for previously unreimbursed expenses incurred in
maintaining individual insurance policies pursuant to Section 3.04, or
Liquidation Expenses, paid pursuant to Section 3.07 or otherwise
reimbursable pursuant to the terms of this Agreement (to the extent not
payable pursuant to Section 3.09), such withdrawal right being limited to
amounts received on particular Mortgage Loans (other than any Repurchase
Price in respect thereof) that represent late recoveries of the payments
for which such advances were made, or from related Net Liquidation Proceeds
or the proceeds of the purchase of such Mortgage Loan;
(d) to pay to itself out of each payment received on account of interest on a
Mortgage Loan as contemplated by Section 3.09, an amount equal to the
related Servicing Fee and the Recovery Fee (to the extent not retained
pursuant to Section 3.02 or 3.07), and to pay to any Subservicer any
subservicing fees not previously withheld by such Subservicer;
11
(e) reserved;
(f) reserved;
(g) to the extent deposited in the Custodial Account, to pay to
itself as additional servicing compensation any (i) interest or
investment income earned on funds deposited in the Custodial
Account that it is entitled to withdraw pursuant to Sections
3.02(b) and 5.01, and (ii) Foreclosure Profits (to the extent
permitted by law);
(h) to pay to itself or the Seller, with respect to any Mortgage Loan
or property acquired in respect thereof that has been purchased
or otherwise transferred to such Seller, the Servicer or other
entity, all amounts received thereon and not required to be
distributed to Securityholders as of the date on which the
related Purchase Price or Repurchase Price is determined;
(i) to withdraw any other amount deposited in the Custodial Account that was
not required to be deposited therein pursuant to Section 3.02;
(j) to pay to itself, with respect to any Mortgage Loan for which it
has made an advance of delinquent principal and/or interest, any
previously unreimbursed advances of such amounts theretofore made
to the extent of receipts of late recoveries of such payments
from the related Mortgagors, out of related Net Liquidation
Proceeds or the proceeds of the purchase of such Mortgage Loans;
(k) to reimburse itself for the amount of any investment earnings
advanced prior to maturity pursuant to Section 3.17(c) or Section
5.01, to the extent not reimbursed from earnings received on the
related investment at maturity;
(l) at its option, for so long as it is the sole Certificateholder,
to pay to itself from amounts otherwise required to be remitted
to the Distribution Account in accordance with Section
3.05(a)(xvi) of the Indenture, all amounts payable to it as a
Certificateholder on the related Payment Date, and
(m) to reimburse itself for advances of delinquent principal and/or
interest on a Mortgage Loan or other advances that are made
pursuant to this Agreement that are not reimbursed pursuant to
clauses (c) or (j) of this Section 3.03.
Since, in connection with withdrawals pursuant to clauses (c), (d), (g),
(h) and (j), the Servicer's entitlement thereto is limited to collections or
other recoveries on the related Mortgage Loan, the Servicer shall keep and
maintain separate accounting, on a Mortgage Loan by Mortgage Loan basis, for the
purpose of justifying any withdrawal from the Custodial Account pursuant to such
clauses. Notwithstanding any other provision of this Agreement, the Servicer
shall be entitled to reimburse itself for any previously unreimbursed expenses
12
incurred pursuant to Section 3.07 or otherwise reimbursable pursuant to the
terms of this Agreement that the Servicer determines to be otherwise
nonrecoverable (except with respect to any Mortgage Loan as to which the
Repurchase Price has been paid), by withdrawal from the Custodial Account of
amounts on deposit therein attributable to the Mortgage Loans on any Business
Day prior to the Payment Date succeeding the date of such determination.
Section 3.04 Maintenance of Hazard Insurance; Property Protection Expenses. To
the extent permitted under the related Loan Agreement and Mortgage, and to the
extent the Servicer receives notice that a hazard insurance policy has been
cancelled, the Servicer shall cause to be maintained for each Mortgage Loan
hazard insurance naming the Servicer or related Subservicer as loss payee
thereunder providing extended coverage in an amount which is at least equal to
the lesser of (i) the maximum insurable value of the improvements securing such
Mortgage Loan from time to time or (ii) the combined principal balance owing on
such Mortgage Loan and any mortgage loan senior to such Mortgage Loan from time
to time; provided, however, that such coverage may not be less than the minimum
amount required to fully compensate for any loss or damage on a replacement cost
basis. The Servicer shall use its best efforts to monitor that hazard insurance
is maintained as described in the previous sentence in the same manner as it
would for mortgage loans in its own portfolio. The Servicer shall also cause to
be maintained on property acquired upon foreclosure, or deed in lieu of
foreclosure, of any Mortgage Loan, fire insurance with extended coverage in an
amount which is at least equal to the amount necessary to avoid the application
of any co-insurance clause contained in the related hazard insurance policy.
Amounts collected by the Servicer under any such policies (other than amounts to
be applied to the restoration or repair of the related Mortgaged Property or
property thus acquired or amounts released to the Mortgagor in accordance with
the Servicer's normal servicing procedures) shall be deposited in the Custodial
Account to the extent called for by Section 3.02. In cases in which any
Mortgaged Property is located at any time during the life of a Mortgage Loan in
a federally designated flood area, to the extent permitted under the related
Loan Agreement and Mortgage, and to the extent the Servicer receives notice that
the related flood insurance has been cancelled, the hazard insurance to be
maintained for the related Mortgage Loan shall include flood insurance (to the
extent available). All such flood insurance shall be in amounts equal to the
lesser of (i) the amount required to compensate for any loss or damage to the
related Mortgaged Property on a replacement cost basis and (ii) the maximum
amount of such insurance available for such Mortgaged Property under the
national flood insurance program (assuming that the area in which such Mortgaged
Property is located is participating in such program). The Servicer shall use
its best efforts to monitor such flood insurance as described in the previous
sentence in the same manner as it would for mortgage loans in its own portfolio.
The Servicer shall be under no obligation to require that any Mortgagor maintain
earthquake or other additional insurance and shall be under no obligation itself
to maintain any such additional insurance on property acquired in respect of a
Mortgage Loan, other than pursuant to such applicable laws and regulations as
shall at any time be in force and as shall require such additional insurance. If
the Servicer shall obtain and maintain a blanket policy consistent with its
general mortgage servicing activities insuring against hazard losses on all of
the Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section 3.04, it being
understood and agreed that such policy may contain a deductible clause, in which
case the Servicer shall, in the event that there shall not have been maintained
on the related Mortgaged Property a policy complying with the first sentence of
this Section 3.04 and there shall have been a loss which would have been covered
13
by such policy, deposit in the Custodial Account the amount not otherwise
payable under the blanket policy because of such deductible clause. Any such
deposit by the Servicer shall be made on the last Business Day of the Collection
Period in the month in which payments under any such policy would have been
deposited in the Custodial Account. In connection with its activities as
servicer of the Mortgage Loans, the Servicer agrees to present, on behalf of
itself, the Issuer and the Indenture Trustee, claims under any such blanket
policy.
Section 3.05 Modification Agreements. The Servicer or the related Subservicer,
as the case may be, shall be entitled to (a) execute assumption agreements,
substitution agreements, and instruments of satisfaction or cancellation or of
partial or full release or discharge, or any other document contemplated by this
Agreement and other comparable instruments with respect to the Mortgage Loans
and with respect to the related Mortgaged Properties (and the Issuer and the
Indenture Trustee each shall promptly execute any such documents on request of
the Servicer) and (b) approve the granting of an easement thereon in favor of
another Person, any alteration or demolition of such Mortgaged Properties or
other similar matters, if it has determined, exercising its good faith business
judgment in the same manner as it would if it were the owner of the related
Mortgage Loans, that the security for, and the timely and full collectability
of, such Mortgage Loans would not be adversely affected thereby. A partial
release pursuant to this Section 3.05 shall be permitted only if the CLTV for
the related Mortgage Loan after such partial release does not exceed the CLTV
for such Mortgage Loan as of the related Cut-Off Date. Any fee collected by the
Servicer or the related Subservicer for processing such request will be retained
by the Servicer or such Subservicer as additional servicing compensation.
Section 3.06 Trust Estate; Related Documents.
(a) When required by the provisions of this Agreement, the Issuer or the
Indenture Trustee shall execute instruments to release property from the
terms of the Trust Agreement, Indenture or Custodial Agreement, as
applicable, or convey the Issuer's or the Indenture Trustee's interest in
the same, in a manner and under circumstances that are not inconsistent
with the provisions of this Agreement. No party relying upon an instrument
executed by the Issuer or the Indenture Trustee as provided in this Section
3.06 shall be bound to ascertain the Issuer's or the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see
to the application of any moneys.
(b) If from time to time any written assurance, assumption agreement or
substitution agreement or other similar agreement shall be executed
pursuant to Section 3.05, the Servicer shall check that each of such
documents purports to be an original executed copy (or a copy of the
original executed document if the original executed copy has been submitted
for recording and has not yet been returned) and, if so, shall file such
documents, and upon receipt of the original executed copy from the
applicable recording office or receipt of a copy thereof certified by the
applicable recording office shall file such originals or certified copies,
with the Related Documents held by the Servicer.
(c) Upon receipt of a Request for Release from the Servicer, substantially in
the form of Exhibit C hereto, to the effect that a Mortgage Loan has been
the subject of a final payment or a prepayment in full and such Mortgage
Loan has been terminated or that substantially all Net Liquidation Proceeds
that have been determined by the Servicer in its reasonable judgment to be
finally recoverable have been recovered, and upon deposit to the Custodial
14
Account of such final monthly payment, prepayment in full together with
accrued and unpaid interest to the date of such payment with respect to
such Mortgage Loan or, if applicable, Net Liquidation Proceeds, the
Custodian shall promptly release the Related Documents held by the
Custodian to the Servicer. The Indenture Trustee shall execute such Related
Documents, along with such documents as the Servicer or the related
Mortgagor may request to evidence satisfaction and discharge of such
Mortgage Loan, upon request of the Servicer. If from time to time and as
appropriate for the servicing or foreclosure of any Mortgage Loan, the
Servicer requests the Custodian to release the Related Documents held by
the Custodian and delivers to the Custodian a trust receipt reasonably
satisfactory to the Custodian and signed by a Responsible Officer of the
Servicer, the Custodian shall release such Related Documents to the
Servicer. If such Mortgage Loans shall be liquidated and the Custodian
receives a certificate from the Servicer as provided above, then, upon
request of the Servicer, the Custodian shall release the trust receipt to
the Servicer.
Section 3.07 Realization Upon Defaulted Mortgage Loans. With respect to any
Mortgage Loan that comes into and continues in default, the Servicer shall
decide whether to (i) foreclose upon the related Mortgaged Property, (ii) write
off the unpaid Principal Balance thereof as bad debt, (iii) take a deed in lieu
of foreclosure, (iv) accept a short sale (a payoff of the Mortgage Loan for an
amount less than the total amount contractually owed in order to facilitate a
sale of the Mortgaged Property by the Mortgagor), (v) permit a short refinancing
(a payoff of the Mortgage Loan for an amount less than the total amount
contractually owed in order to facilitate refinancing transactions by the
Mortgagor not involving a sale of the Mortgaged Property), (vi) arrange for a
repayment plan, (vii) agree to a modification in accordance with this Agreement
or (viii) take an unsecured note in each case subject to the rights of any
related first Lien holder; provided, that in connection with the foregoing, if
the Servicer has actual knowledge that any Mortgaged Property is affected by
hazardous or toxic wastes or substances and that the acquisition of such
Mortgaged Property would not be commercially reasonable, then the Servicer shall
not cause the Issuer or the Indenture Trustee to acquire title to such Mortgaged
Property in a foreclosure or similar proceeding. In connection with such
decision, the Servicer shall follow such practices (including, in the case of
any default on a related senior mortgage loan, the advancing of funds to correct
such default if deemed to be appropriate by the Servicer) and procedures as it
shall deem necessary or advisable and as shall be normal and usual in its
general mortgage servicing activities and as shall be required or permitted by
the Program Guide; provided, that the Servicer shall not be liable in any
respect hereunder if the Servicer is acting in connection with any such
foreclosure or attempted foreclosure which is not completed or other conversion
in a manner that is consistent with the provisions of this Agreement. The
foregoing is subject to the proviso that the Servicer shall not be required to
expend its own funds in connection with any foreclosure or attempted foreclosure
which is not completed or towards the correction of any default on a related
senior mortgage loan or restoration of any property unless it shall determine
that such expenditure will increase the related Net Liquidation Proceeds. In the
event of a determination by the Servicer that any such expenditure previously
made pursuant to this Section 3.07 will not be reimbursable from Net Liquidation
Proceeds, the Servicer shall be entitled to reimbursement of its funds so
expended pursuant to Section 3.03.
15
Notwithstanding any provision of this Agreement, a Mortgage Loan may be
deemed to be finally liquidated if substantially all amounts expected by the
Servicer to be received in connection therewith have been received; provided,
however, that the Servicer may continue to pursue recovery of such Mortgage Loan
and any subsequent collections, minus any Recovery Fee, with respect to any such
Mortgage Loan shall be deposited into the Custodial Account. For purposes of
determining the amount of any Net Liquidation Proceeds, Insurance Proceeds or
other unscheduled collections, the Servicer may take into account minimal
amounts of additional receipts expected to be received or any estimated
additional liquidation expenses expected to be incurred in connection with such
Mortgage Loan.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Indenture Trustee, which shall hold the same on behalf of
the Issuer in accordance with Section 3.13 of the Indenture. Notwithstanding any
such acquisition of title and cancellation of the related Mortgage Loan, such
Mortgaged Property shall (except as otherwise expressly provided herein) be
considered to be an outstanding Mortgage Loan held as an asset of the Issuer
until such time as such property shall be sold. Consistent with the foregoing
for purposes of all calculations hereunder, so long as the related Mortgage Loan
shall be considered to be an outstanding Mortgage Loan, it shall be assumed
that, notwithstanding that the indebtedness evidenced by the related Loan
Agreement shall have been discharged, such Loan Agreement in effect at the time
of any such acquisition of title before any adjustment thereto by reason of any
bankruptcy or similar proceeding or any moratorium or similar waiver or grace
period will remain in effect.
Any proceeds from foreclosure proceedings or the purchase or repurchase
of any Mortgage Loan pursuant to the terms of this Agreement, as well as any
recovery resulting from a collection of Net Liquidation Proceeds or Insurance
Proceeds, shall be applied in the following order of priority: first, to
reimburse the Servicer or the related Subservicer in accordance with this
Section 3.07; second, to pay the Servicer or the related Subservicer all
Servicing Fees payable therefrom; third, to pay accrued and unpaid interest on
such Mortgage Loan, at the Net Loan Rate to the Payment Date on which such
amounts are to be deposited in the Note Payment Account or Distribution Account;
and fourth, as a recovery of principal on such Mortgage Loan. Any remaining
amount shall constitute Foreclosure Profits.
Section 3.08 Issuer and Indenture Trustee to Cooperate. On or before each
Payment Date, the Servicer will notify the Indenture Trustee or the Custodian,
with a copy to the Issuer, of the termination of or the payment in full and the
termination of any Mortgage Loan during the preceding Collection Period. Upon
receipt of payment in full, the Servicer is authorized to execute, pursuant to
the authorization contained in Section 3.01, an instrument of satisfaction
regarding the related Mortgage, which instrument of satisfaction shall be
recorded by the Servicer if required by applicable law and be delivered to the
Person entitled thereto and to cause the removal from the registration on the
MERS(R) System of such Mortgage. It is understood and agreed that any expenses
incurred in connection with such instrument of satisfaction or transfer shall be
reimbursed from amounts deposited in the Custodial Account. From time to time
and as appropriate for the servicing or foreclosure of any Mortgage Loan, the
Custodian shall, upon request of the Servicer and delivery to the Custodian,
16
with a copy to the Issuer, of a Request for Release, in the form attached hereto
as Exhibit C, signed by a Servicing Officer, release or cause to be released the
related Loan Agreement to the Servicer. The Issuer or Indenture Trustee shall
promptly execute such documents, in the forms provided by the Servicer, as shall
be necessary for the prosecution of any such proceedings or the taking of other
servicing actions. Such trust receipt shall obligate the Servicer to return such
Loan Agreement to the Custodian (as specified in such receipt) when the need
therefor by the Servicer no longer exists, unless the Mortgage Loan shall be
liquidated, in which case, upon receipt of a certificate of a Servicing Officer
similar to that specified above, such trust receipt shall be released to the
Servicer.
In order to facilitate the foreclosure of the Mortgage securing any
Mortgage Loan that is in default following recordation of the related Assignment
of Mortgage in accordance with the provisions of the Purchase Agreement, the
Indenture Trustee or the Issuer shall, if so requested in writing by the
Servicer, promptly execute an appropriate assignment in the form provided by the
Servicer to assign such Mortgage Loan for the purpose of collection to the
Servicer (any such assignment shall unambiguously indicate that the assignment
is for the purpose of collection only), and, upon such assignment, such assignee
for collection will thereupon bring all required actions in its own name and
otherwise enforce the terms of such Mortgage Loan and deposit or credit the Net
Liquidation Proceeds, exclusive of Foreclosure Profits, received with respect
thereto into the Custodial Account. In the event that all delinquent payments
due under any such Mortgage Loan are paid by the Mortgagor and any other
defaults are cured, then the assignee for collection shall promptly reassign
such Mortgage Loan to the Indenture Trustee and return all Related Documents to
the place where the related Mortgage File was being maintained.
In connection with the Issuer's obligation to cooperate as provided in
this Section 3.08 and all other provisions of this Agreement requiring the
Issuer to authorize or permit any actions to be taken with respect to the
Mortgage Loans, the Indenture Trustee, as pledgee of the Mortgage Loans and as
assignee of record of the Mortgage Loans on behalf of the Issuer pursuant to
Section 3.13 of the Indenture, expressly agrees, on behalf of the Issuer, to
take all such actions on behalf of the Issuer and to promptly execute and return
all instruments reasonably required by the Servicer in connection therewith;
provided, that if the Servicer requests a signature of the Indenture Trustee, on
behalf of the Issuer, then the Servicer shall deliver to the Indenture Trustee
an Officer's Certificate stating that such signature is necessary or appropriate
to enable the Servicer to carry out its servicing and administrative duties
under this Agreement.
Section 3.09 Servicing Compensation; Payment of Certain Expenses by Servicer.
The Servicer shall be entitled to receive the Servicing Fee in accordance with
Section 3.03 as compensation for its services in connection with servicing the
Mortgage Loans. Moreover, late payment charges and other receipts not required
to be deposited in the Custodial Account as specified in Section 3.02 shall be
retained by the Servicer as additional servicing compensation. The Servicer
shall be required to pay all expenses incurred by it in connection with its
activities hereunder (including payment of all other fees and expenses not
expressly stated hereunder to be for the account of the Securityholders),
including the fees and expenses of the Owner Trustee, Indenture Trustee and the
Custodian, and shall not be entitled to reimbursement therefor.
17
Section 3.10 Annual Statement as to Compliance.
---------------------------------
(a) The Servicer shall deliver to the Issuer, the Indenture Trustee, the
Depositor and the Underwriter, with a copy to the Enhancer, beginning March
31, 2003, and on or before March 31 of each year thereafter, an Officer's
Certificate stating that (i) a review of the activities of the Servicer
during the preceding calendar year and of its performance under any
servicing agreements to which it is a party, including this Agreement, has
been made under such officer's supervision and (ii) to the best of such
officer's knowledge, based on such review, the Servicer has complied in all
material respects with the minimum servicing standards set forth in the
Uniform Single Attestation Program for Mortgage Bankers and has fulfilled
all of its material obligations in all material respects throughout such
year, or, if there has been material noncompliance with such servicing
standards or a default in the fulfillment in all material respects of any
such obligation relating to this Servicing Agreement, such statement shall
include a description of such noncompliance or specify each such default,
as the case may be, known to such officer and the nature and status
thereof.
(b) The Servicer shall deliver to the Issuer and the Indenture
Trustee, with a copy to the Enhancer, promptly after having
obtained knowledge thereof, but in no event later than five
Business Days thereafter, written notice by means of an Officer's
Certificate of any event which with the giving of notice or the
lapse of time or both, would become a Servicing Default.
Section 3.11 Annual Servicing Report. Beginning March 31, 2003, and on or before
March 31 of each year thereafter, the Servicer at its expense shall cause a firm
of nationally recognized independent public accountants (which firm may also
render other services to the Servicer) to furnish a report to the Issuer, the
Indenture Trustee, the Depositor, the Underwriter, the Enhancer and each Rating
Agency stating its opinion that, on the basis of an examination conducted by
such firm substantially in accordance with standards established by the American
Institute of Certified Public Accountants, the assertions made pursuant to
Section 3.10 regarding compliance with the minimum servicing standards set forth
in the Uniform Single Attestation Program for Mortgage Bankers during the
preceding calendar year are fairly stated in all material respects, subject to
such exceptions and other qualifications that, in the opinion of such firm, such
accounting standards require it to report. In rendering such statement, such
firm may rely, as to matters relating to the direct servicing of Mortgage Loans
by Subservicers, upon comparable statements for examinations conducted by
independent public accountants substantially in accordance with standards
established by the American Institute of Certified Public Accountants (rendered
within one year of such statement) with respect to such Subservicers.
Section 3.12 Access to Certain Documentation and Information Regarding the
Mortgage Loans. Whenever required by statute or regulation, the Servicer shall
provide to the Enhancer, any Securityholder upon reasonable request (or a
regulator for a Securityholder) or the Indenture Trustee, reasonable access to
the documentation regarding the Mortgage Loans. Such access shall be afforded
without charge, but only upon reasonable request and during normal business
18
hours at the offices of the Servicer. Nothing in this Section 3.12 shall
derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding Mortgagors, and the failure of
the Servicer to provide access as provided in this Section 3.12 as a result of
such obligation shall not constitute a breach of this Section 3.12.
Section 3.13 Maintenance of Certain Servicing Insurance Policies. The Servicer
shall, during the term of its service as servicer, maintain in force and effect
(i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as Servicer hereunder and (ii) a fidelity bond in
respect of its officers, employees or agents. Each such policy or policies and
fidelity bond shall be at least equal to the coverage that would be required by
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, whichever is greater, for Persons performing
servicing for mortgage loans purchased by such entity.
Section 3.14 Information Required by the Internal Revenue Service and Reports of
Foreclosures and Abandonments of Mortgaged Property. The Servicer shall prepare
and deliver all federal and state information reports with respect to the
Mortgage Loans when and as required by all applicable state and federal income
tax laws. In particular, with respect to the requirement under Section 6050J of
the Code to the effect that the Servicer or Subservicer shall make reports of
foreclosures and abandonments of any mortgaged property for each year beginning
in 2002, the Servicer or Subservicer shall file reports relating to each
instance occurring during the previous calendar year in which the Servicer (a)
on behalf of the Issuer, acquired an interest in any Mortgaged Property through
foreclosure or other comparable conversion in full or partial satisfaction of a
Mortgage Loan, or (b) knew or had reason to know that any Mortgaged Property had
been abandoned. The reports from the Servicer or Subservicer shall be in form
and substance sufficient to meet the reporting requirements imposed by Section
6050J and Section 6050H (reports relating to mortgage interest received) of the
Code.
Section 3.15 Optional Repurchase or Transfer of Mortgage Loans.
-------------------------------------------------
(a) Notwithstanding any provision in Section 3.07 to the contrary,
the Servicer, at its option and in its sole discretion, may
repurchase any Mortgage Loan that is delinquent in payment by a
period of ninety (90) days or longer for a price equal to the
Repurchase Price, provided that any such repurchase shall occur
only during the 60-day period commencing on the first day of the
next calendar month.
(b) The Servicer, at its option and in its sole discretion, may repurchase any
Mortgage Loan for a price equal to the Repurchase Price (i) if the related
Mortgage did not have a Lien senior to it as of the related Cut-Off Date,
and, at the request of the related Mortgagor, the Servicer agrees to the
placement of a Lien on the related Mortgaged Property senior to that of
such Mortgage or (ii) at the request of the Mortgagor, the Servicer agrees
to an increase in the Credit Limit above the Credit Limit of such Mortgage
Loan as of the related Cut-Off Date or (iii) at the request of the
Mortgagor, the Servicer agrees to the refinancing of the Lien senior to
that of the related Mortgage resulting in a CLTV above the previous CLTV
for such Mortgage Loan.
(c) Subject to the conditions set forth below, the Servicer, upon receipt of
written notice and direction from the Issuer, shall cause the retransfer of
Mortgage Loans from the Trust Estate to the Issuer as of the close of
19
business on a Payment Date (the "Transfer Date"). On the fifth Business Day
(the "Transfer Notice Date") prior to the Transfer Date designated in such
notice, the Servicer shall give the Indenture Trustee, the Rating Agencies
and the Enhancer a notice of the proposed retransfer that contains a list
of the Mortgage Loans to be retransferred. Such retransfers of Mortgage
Loans shall be permitted upon satisfaction of the following conditions:
(i) No Rapid Amortization Event has occurred;
(ii) On the Transfer Date, the Overcollateralization Amount
(after giving effect to the removal from the Trust Estate
of the Mortgage Loans proposed to be retransferred) will
equal or exceed the Overcollateralization Target Amount;
(iii) The retransfer of any Mortgage Loans on any Transfer Date
during the Managed Amortization Period shall not, in the
reasonable belief of the Servicer, cause a Rapid
Amortization Event to occur or an event which with notice
or lapse of time or both would constitute a Rapid
Amortization Event;
(iv) On or before the Transfer Date, the Servicer shall have
delivered to the Indenture Trustee a revised Mortgage Loan
Schedule showing that the Mortgages Loans transferred to
the Certificateholders are no longer owned by the Trust
Estate;
(v) The Servicer shall represent and warrant that the Mortgage
Loans to be removed from the Trust Estate were selected at
random and the Servicer shall have received the consent of
the Enhancer as to the selection of the particular
Mortgage Loans to be removed; and
(vi) The Servicer shall have delivered to the Indenture Trustee
and the Enhancer an officer's certificate certifying that
the items set forth in subparagraphs (i) through (v),
inclusive, have been performed or are true and correct, as
the case may be. The Indenture Trustee may conclusively
rely on such officer's certificate, shall have no duty to
make inquiries with regard to the matters set forth
therein and shall incur no liability in so relying.
The Servicer shall not be permitted to effect the retransfer of any
Mortgage Loan except under the conditions specified above. Upon receiving the
requisite notice and direction from the Issuer, the Servicer shall perform in a
timely manner those acts required of it, as specified above. Upon satisfaction
of the above conditions, on the Transfer Date the Indenture Trustee shall
deliver, or cause to be delivered, to the Issuer a written itemization of each
Mortgage Loan being transferred, together with the Mortgage File for each such
Mortgage Loan, and the Indenture Trustee shall execute and deliver to the Issuer
or its designee such other documents prepared by the Servicer as shall be
reasonably necessary to transfer such Mortgage Loans to the Certificateholders.
Any such transfer of the Trust Estate's right, title and interest in and to
Mortgage Loans shall be without recourse, representation or warranty by or of
the Indenture Trustee or the Trust Estate to the Issuer or its designee.
20
Section 3.16 Reserved.
--------
Section 3.17 Pre-Funding Account.
(a) No later than the Closing Date, the Indenture Trustee shall establish and
maintain on behalf of itself one or more segregated trust accounts, which
shall be Eligible Accounts, titled "Pre-Funding Account, ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as Indenture Trustee for GMACM Home Equity Loan Trust
2002-HE3" (the "Pre-Funding Account"). On the Closing Date, GMACM shall
deposit into the Pre-Funding Account an amount equal to the Original
Pre-Funded Amount from the proceeds of the sale of the Securities. On each
Subsequent Transfer Date, the Servicer shall instruct the Indenture Trustee
in writing to withdraw from the Pre-Funding Account an amount equal to the
aggregate Principal Balance as of the related Subsequent Cut-Off Date of
the Subsequent Mortgage Loans to be sold to the Trust on such Subsequent
Transfer Date and allocate such withdrawal to amounts on deposit in the
Pre-Funding Account, and to pay such amount to or upon the order of the
related Seller upon satisfaction of the conditions set forth in this
Agreement, in the Purchase Agreement and in the related Subsequent Transfer
Agreement with respect thereto.
(b) If the Pre-Funded Amount has not been reduced to zero at the close of
business on the last day of the Pre-Funding Period, after giving effect to
any withdrawal therefrom on such day, any remaining Pre-Funded Amount,
shall be deposited into the Note Payment Account and applied as a principal
distribution on the Variable Pay Revolving Notes or, if not outstanding, to
each Class of Term Notes, on a pro rata basis in accordance with their
respective Note Balances, on the next succeeding Payment Date, except that
the amount on deposit in the Pre-Funding up to a maximum of $50,000, shall
be deposited in the Funding Account and withdrawn pursuant to Section
3.18(c) hereof.
(c) The Servicer may cause the institution maintaining the Pre-Funding Account
to invest any funds therein in Permitted Investments having a maturity of
up to 90 days or maturing or otherwise available not later than the
Business Day preceding the related Payment Date on which funds are
scheduled to be withdrawn to purchase Subsequent Mortgage Loans; provided,
that any investment in an obligation of the institution with which the
Pre-Funding Account is maintained may mature on or before 10:30 a.m., New
York time, on such Payment Date; and provided further, that no such
investment may be sold or disposed of prior to maturity. In addition, no
such Permitted Investment shall be purchased at a price in excess of par.
Notwithstanding the foregoing, in the event investment earnings have not
matured on any Payment Date, the amount of such earnings accrued as of such
Payment Date shall be advanced by the Servicer for deposit into the Note
Payment Account (which advance shall be reimbursed to the Servicer from
such investment earnings at maturity). At any time when the Indenture
Trustee is maintaining the Pre-Funding Account, any request by the Servicer
to invest funds on deposit therein shall be in writing, delivered to the
Indenture Trustee at or before 10:30 a.m., New York time, if such
investment is to be made on such day. The Servicer shall certify that the
21
requested investment is a Permitted Investment maturing at or prior to the
time required hereby. Any such investment shall be registered in the name
of the Indenture Trustee or its nominee, and to the extent that any such
investment is certificated, such investment shall be maintained with the
Indenture Trustee at its Corporate Trust Office. All net income or other
gain received from any such investment shall be deposited into or credited
to the Note Payment Account, and may be withdrawn therefrom in accordance
with Section 3.05 of the Indenture. In no event shall the Indenture Trustee
be liable for any investment losses on Permitted Investments held in or
credited to the Pre-Funding Account, provided that such investments are
made in accordance with the provisions of this Agreement and the Indenture
Trustee is not the obligor under the Permitted Investment.
(d) If on any Payment Date during the Pre-Funding Period, the amount of
Additional Balances created during the related Collection Period exceeds
the amount of Principal Collections on deposit in the Custodial Account and
the amount on deposit in Funding Account available to purchase Additional
Balances, the Servicer may withdraw from amounts on deposit in the
Pre-Funding Account, to the extent available and following the purchase of
Additional Balances from funds on deposit in the Custodial Account and
Funding Account, the amount of such excess and pay such amount to GMACM as
payment for such Additional Balances. Section 3.18 Funding Account.
---------------
(a) No later than the Closing Date, the Indenture Trustee shall establish and
maintain on behalf of itself one or more segregated trust accounts, which
shall be Eligible Accounts, titled "Funding Account, ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., as Indenture Trustee for GMACM Home Equity Loan Trust
2002-HE3" (the "Funding Account"). The Indenture Trustee shall establish
within the Funding Account a sub-account, titled "Reserve Sub-Account", as
set forth in Section 3.20 of this Agreement. On each Payment Date during
the Revolving Period, the Servicer shall withdraw from the Custodial
Account and deposit into the Funding Account (but not the Reserve
Sub-Account) the aggregate amount of Principal Collections remaining after
the purchase of all Additional Balances and/or Subsequent Mortgage Loans on
or prior to such Payment Date.
(b) The Servicer may cause the institution maintaining the Funding Account to
invest any funds therein in Permitted Investments having a maturity of up
to 90 days or maturing or otherwise available not later than the Business
Day preceding the related Payment Date on which funds are scheduled to be
withdrawn to purchase Subsequent Mortgage Loans; provided, that any
investment in an obligation of the institution with which the Funding
Account is maintained may mature on or before 10:30 a.m., New York time, on
such Payment Date; and provided further, that no such investment may be
sold or disposed of prior to maturity. In addition, no such Permitted
Investment shall be purchased at a price in excess of par. At any time when
the Indenture Trustee is maintaining the Funding Account, any request by
the Servicer to invest funds on deposit therein shall be in writing,
delivered to the Indenture Trustee at or before 10:30 a.m., New York time,
22
if such investment is to be made on such day. The Servicer shall certify
that the requested investment is a Permitted Investment maturing at or
prior to the time required hereby. Any such investment shall be registered
in the name of the Indenture Trustee or its nominee, and to the extent that
any such investment is certificated, such investment shall be maintained
with the Indenture Trustee at its Corporate Trust Office. All net income or
other gain received from any such investment shall be deposited into or
credited to the Note Payment Account.
(c) From time to time withdrawals shall be made from the Funding Account by the
Servicer as follows:
(i) on each Payment Date during the Revolving Period, any amounts on deposit in
the Funding Account, including Excess Spread, shall be withdrawn and
applied, to the extent available, in the following order:
(A) to GMACM, as payment for Additional Balances, if any, in an amount
equal to (1) the aggregate of all Draws during the related Collection
Period or (2) if the Servicer has applied amounts on deposit in the
Custodial Account representing Principal Collections received during
such Collection Period to the purchase of Additional Balances, the
excess, if any, of the aggregate of all Draws during the related
Collection Period over Principal Collections for such Collection
Period; and
(B) to each Seller, as payment for Subsequent Mortgage Loans, if any, in
an amount equal to (1) the aggregate Principal Balance of all such
Subsequent Mortgage Loans purchased from such Seller during the
related Collection Period or (2) if the Servicer has applied amounts
on deposit in the Custodial Account representing Principal Collections
for such Collection Period toward the purchase of Subsequent Mortgage
Loans, the excess, if any, of the aggregate Principal Balance of all
such Subsequent Mortgage Loans purchased from such Seller over such
Principal Collections;
(ii) on the last Payment Date during the Revolving Period, any amounts remaining
on deposit in the Funding Account, if any, after giving effect to clause
(i) above, shall be deposited into the Note Payment Account for payment to
the Noteholders pursuant to Section 3.05 of the Indenture.
23
Section 3.19 Capitalized Interest Account.
----------------------------
(a) No later than the Closing Date, the Indenture Trustee shall establish and
maintain on behalf of itself one or more segregated trust accounts, which
shall be Eligible Accounts, titled "Capitalized Interest Account, ▇▇▇▇▇
Fargo Bank Minnesota, N.A., as Indenture Trustee for GMACM Home Equity Loan
Trust 2002-HE3" (the "Capitalized Interest Account"). The Indenture Trustee
shall, promptly upon receipt, deposit in the Capitalized Interest Account
and retain therein the Interest Coverage Amount. If the Indenture Trustee
shall not have received an investment direction from GMACM, the Indenture
Trustee shall invest funds on deposit in the Capitalized Interest Account
in Permitted Investments of the kind described in clause (v) of the
definition of Permitted Investments having a maturity date no later than
the next succeeding Payment Date. In addition, no such Permitted Investment
shall be purchased at a price in excess of par. GMACM shall be entitled to
retain any investment earnings on amounts on deposit in the Capitalized
Interest Account and shall deposit into the Capitalized Interest Account
the amount of any net loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss without any right of
reimbursement therefor. GMACM shall be the owner of the Capitalized
Interest Account and shall report all items of income, deduction, gain or
loss arising therefrom.
(b) On each Payment Date during the Pre-Funding Period and on the Payment Date
immediately after the end of the Pre-Funding Period, the Indenture Trustee,
at the written direction of the Servicer, shall withdraw from the
Capitalized Interest Account and deposit into the Note Payment Account an
amount equal to the Capitalized Interest Requirement for such Payment Date.
(c) In connection with each Subsequent Transfer Date occurring in the
Pre-Funding Period, the Servicer, at its option, may recalculate the
Interest Coverage Amount taking into account the amount remaining in the
Pre-Funding Account following the sale of Subsequent Mortgage Loans to the
Trust on such date. The recomputed Interest Coverage Amount shall be not
less than the amount necessary to cover the Capitalized Interest
Requirement for each remaining Payment Date in the Pre-Funding Period. With
the written consent of the Enhancer (which consent shall not be
unreasonably withheld), on any such Subsequent Transfer Date, GMACM shall
instruct in writing the Indenture Trustee to pay to it from funds in the
Capitalized Interest Account the excess of the amount on deposit therein
over the recomputed Interest Coverage Amount.
(d) Upon the earlier of (i) termination of the Trust Agreement in accordance
with Section 8.01 thereof and (ii) the Payment Date following the end of
the Pre-Funding Period, any amount remaining on deposit in the Capitalized
Interest Account shall be withdrawn by the Indenture Trustee and paid to
GMACM.
24
Section 3.20 Reserve Sub-Account.
On or after the Closing Date, the Indenture Trustee shall establish and
maintain a sub-account within the Funding Account (the "Reserve Sub-Account").
On each Business Day following each Determination Date, the Servicer, in
accordance with the requirements of Sections 3.05(a), 3.05(b) and 3.05(c) of the
Indenture, shall determine the amount, if any, to be withdrawn from the
Custodial Account and deposited into the Reserve Sub-Account. From time to time
withdrawals shall be made from the Reserve Sub-Account by the Indenture Trustee
in the amounts and for the purposes set forth in Sections 3.05(a), 3.05(b) and
3.05(c) of the Indenture. In addition, if a Funding Event has occurred during
the Managed Amortization Period, any amount in the Reserve Sub-Account over
$2,000,000 may be applied to purchase Subsequent Mortgage Loans in the manner
set forth in the Purchase Agreement. Funds on deposit in the Reserve Sub-Account
may be invested in Permitted Investments in accordance with Section 3.18(b)
hereof.
Section 3.21 Enforcement of Due-on-Sale Clauses; Assumption and Modification
Agreements; Certain Assignments.
(a) When any Mortgaged Property is conveyed by the Mortgagor, the
Servicer or Subservicer, to the extent it has knowledge of such
conveyance, shall enforce any due-on-sale clause contained in any
Loan Agreement or Mortgage, to the extent permitted under
applicable law and governmental regulations, but only to the
extent that such enforcement will not adversely affect or
jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing:
(i) the Servicer shall not be deemed to be in default under this Section
3.21(a) by reason of any transfer or assumption which the Servicer is
restricted by law from preventing; and
(ii) if the Servicer determines that it is reasonably likely that any
Mortgagor will bring, or if any Mortgagor does bring, legal action to
declare invalid or otherwise avoid enforcement of a due-on-sale clause
contained in any Loan Agreement or Mortgage, the Servicer shall not be
required to enforce the due-on-sale clause or to contest such action.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause to
the extent set forth in Section 3.21(a), in any case in which a
Mortgaged Property is to be conveyed to a Person by a Mortgagor, and
such Person is to enter into an assumption or modification agreement
or supplement to the Loan Agreement or Mortgage which requires the
signature of the Indenture Trustee, or if an instrument of release
signed by the Indenture Trustee is required releasing the Mortgagor
from liability on the Mortgage Loan, the Servicer is authorized,
subject to the requirements of the sentence next following, to execute
and deliver, on behalf of the Indenture Trustee, the assumption
agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Loan
Agreement or Mortgage or other instruments as are reasonable or
necessary to carry out the terms of the Loan Agreement or Mortgage or
otherwise to comply with any applicable laws regarding assumptions or
the transfer of the Mortgaged Property to such Person. The Servicer
shall execute and deliver such documents only if it reasonably
determines that (i) its execution and delivery thereof will not
conflict with or violate any terms of this Agreement or cause the
unpaid balance and interest on the Mortgage Loan to be uncollectible
25
in whole or in part, (ii) any required consents of insurers under any
Required Insurance Policies have been obtained and (iii) subsequent to
the closing of the transaction involving the assumption or transfer
(A) such transaction will not adversely affect the coverage under any
Required Insurance Policies, (B) the Mortgage Loan will fully amortize
over the remaining term thereof, (C) no material term of the Mortgage
Loan (including the interest rate on the Mortgage Loan) will be
altered nor will the term of the Mortgage Loan be changed and (D) if
the seller/transferor of the Mortgaged Property is to be released from
liability on the Mortgage Loan, such release will not (based on the
Servicer's or Subservicer's good faith determination) adversely affect
the collectability of the Mortgage Loan. Upon receipt of appropriate
instructions from the Servicer in accordance with the foregoing, the
Indenture Trustee shall execute any necessary instruments for such
assumption or substitution of liability as directed in writing by the
Servicer. Upon the closing of the transactions contemplated by such
documents, the Servicer shall cause the originals or true and correct
copies of the assumption agreement, the release (if any), or the
modification or supplement to the Loan Agreement or Mortgage to be
delivered to the Indenture Trustee or the Custodian and deposited with
the Mortgage File for such Mortgage Loan. Any fee collected by the
Servicer or such related Subservicer for entering into an assumption
or substitution of liability agreement will be retained by the
Servicer or such Subservicer as additional servicing compensation.
ARTICLE IV
Servicing Certificate
Section 4.01 Statements to Securityholders.
(a) With respect to each Payment Date, on the Business Day following the
related Determination Date, the Servicer shall forward the Servicing
Certificate to the Indenture Trustee, and the Indenture Trustee, pursuant
to Section 3.26 of the Indenture, shall make such Servicing Certificate
available to each Certificateholder, each Noteholder, the Depositor, the
Owner Trustee, the Certificate Paying Agent and each Rating Agency, with a
copy to the Enhancer. The Servicing Certificate shall set forth the
following information as to the Notes and Certificates, to the extent
applicable:
(i) the aggregate amount of (a) Interest Collections, (b) Principal Collections
(and, with respect to any Payment Date relating to the Managed Amortization
Period, Net Principal Collections) and (c) Substitution Adjustment Amounts
for such Collection Period;
26
(ii) the amount of such distribution as principal to the Noteholders of each
Class of Notes;
(iii)the amount of such distribution as interest to the Noteholders of each
Class of Notes, the amount thereof, if any, payable in respect of unpaid
Interest Shortfalls, and the amount of any Interest Shortfalls for the
related Payment Date;
(iv) each Policy Draw Amount, if any, for such Payment Date and the aggregate
amount of prior draws on the Policy thereunder not yet reimbursed;
(v) the amount of such distribution to the Certificateholders;
(vi) the amount of any Additional Balance Increase Amount payable to the
Certificateholders;
(vii)the aggregate Principal Balance of the Mortgage Loans as of the end of the
preceding Collection Period;
(viii) the number and aggregate Principal Balances of Mortgage Loans (a) as to
which the Minimum Monthly Payment is delinquent for 30-59 days, 60-89 days,
90-119 days, 120-149 days and 150-179 days, respectively, (b) the related
Mortgaged Property of which has been foreclosed upon and (c) as to which
the related Mortgaged Property has become REO Property, in each case as of
the end of the preceding Collection Period; provided, however, that such
information shall not be provided on the statements relating to the first
Payment Date;
(ix) the number and aggregate Principal Balance of Mortgage
Loans repurchased pursuant to Section 3.15(a) herein
during such Collection Period;
(x) the Net WAC Rate for the related Collection Period;
(xi) prior to the second Determination Date following the
commencement of the Rapid Amortization Period, the
aggregate amount of Additional Balances created during the
previous Collection Period and conveyed to the Issuer
prior to the commencement of such Rapid Amortization
Period;
(xii) the aggregate Liquidation Loss Amounts with respect to the
related Collection Period, the amount distributed as
principal to Noteholders in respect of Liquidation Loss
Amounts and the aggregate of the Liquidation Loss Amounts
(minus any Subsequent Net Recovery Amounts) from all
Collection Periods to date expressed as dollar amount and
as a percentage of the aggregate Cut-Off Date Principal
Balances of the Mortgage Loans;
27
(xiii) the aggregate Note Balance of each Class of Notes and the
Certificate Balance of each Class of the Certificates
after giving effect to the distribution of principal on
such Payment Date;
(xiv) the balance of the Pre-Funding Account, Funding Account,
the Reserve Sub-Account and Capitalized Interest Account
as of the end of the preceding Collection Period;
(xv) the Percentage Interest applicable to each of the Securities, after
application of payments made on such Payment Date;
(xvi)the Overcollateralization Amount as of the end of the preceding Collection
Period; and
(xvii) the aggregate Principal Balance of Subsequent Mortgage
Loans transferred to the Trust Estate.
In the case of information furnished pursuant to clauses (ii) and (iii)
above, the amounts shall be expressed as an aggregate dollar amount per Note or
Certificate, as applicable, with a $25,000 denomination and per Certificate with
a denomination equal to a 100% Percentage Interest.
If a Rapid Amortization Event or a Servicing Default shall occur, on the
Business Day following the related Determination Date, the Servicer shall
forward to the Indenture Trustee, a statement to such effect, including the
nature of such Rapid Amortization Event or Servicing Default. Upon the
Servicer's becoming aware of any Early Amortization Event, the Servicer shall
forward to the Indenture Trustee, a statement to such effect, including the
nature of such Early Amortization Event. The Indenture Trustee, pursuant to
Section 3.26 of the Indenture, shall deliver or cause to be delivered by mail to
each Certificateholder, each Noteholder, the Enhancer, the Depositor, the Owner
Trustee, the Certificate Paying Agent and each Rating Agency, notice of such
Rapid Amortization Event, Early Amortization Event or Servicing Default,
including, the nature thereof. Such statement may be included in, or separate
from, the regular statement sent to Securityholders.
The Indenture Trustee will make the Servicing Certificate (and, at its
option, any additional files containing the same information in an alternative
format) available each month to Securityholders, and other parties to this
Agreement via the Indenture Trustee's internet website. The Indenture Trustee's
internet website shall initially be located at "▇▇▇.▇▇▇▇▇▇▇.▇▇▇". Assistance in
using the website can be obtained by calling the Indenture Trustee's customer
service desk at (▇▇▇) ▇▇▇-▇▇▇▇. Parties that are unable to use the above
distribution options are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The
Indenture Trustee shall have the right to change the way the statements to
Securityholders are distributed in order to make such distribution more
convenient and/or more accessible to the above parties and the Indenture Trustee
shall provide timely and adequate notification to all above parties regarding
any such changes. The Indenture Trustee may require registration and the
acceptance of a disclaimer in connection with access to its website.
28
(b) The Servicer shall forward to the Indenture Trustee any other information
reasonably requested by the Indenture Trustee necessary to make distributions
pursuant to Section 3.05 of the Indenture. Prior to the close of business on the
Business Day next succeeding each Determination Date, the Servicer shall furnish
a written statement to the Certificate Paying Agent and the Indenture Trustee
setting forth the aggregate amounts required to be withdrawn from the Custodial
Account and the Reserve Sub-Account and deposited into the Note Payment Account,
Reserve Sub-Account, Funding Account and/or Distribution Account on the Business
Day preceding the related Payment Date pursuant to Section 3.03. The
determination by the Servicer of such amounts shall, in the absence of obvious
error, be deemed to be presumptively correct for all purposes hereunder, and the
Owner Trustee and the Indenture Trustee shall be protected in relying upon the
same without any independent check or verification. In addition, upon the
Issuer's written request, the Servicer shall promptly furnish such information
reasonably requested by the Issuer that is reasonably available to the Servicer
to enable the Issuer to perform its federal and state income tax reporting
obligations.
(c) If the Note Balance of the Variable Pay Revolving Notes is to be reduced on
any Payment Date pursuant to the terms of the Indenture, the Servicer shall, not
later than 12:00 Noon (New York time) on the second Business Day prior to such
Payment Date, deliver a written notice to the Administrative Agent specifying
the amount of such reduction.
Section 4.02 Tax Returns and 1934 Act Reports
(a) The Servicer will act as the Tax Matters Partner or the agent for
the Tax Matters Partner pursuant to the Trust Agreement and the
Indenture. The Servicer agrees to perform the obligations of the
Servicer set forth in Section 8.02 of the Trust Agreement and the
obligations of the Tax Matters Partner set forth in Article XI of
the Indenture. The Servicer will prepare and file or cause to be
prepared and filed all tax and information returns of the Trust
Estate.
(b) The Servicer shall prepare all reports on behalf of the Trust
Estate, including, but not limited to, all Forms 8-K, Forms 10-K
and, when applicable, a Form 15 that are required under the
Securities Exchange Act of 1934, as amended. The Servicer shall
continue to file all Forms 8-K and Forms 10-K with respect to the
Trust Estate until directed by the Depositor in writing to
discontinue such filings.
ARTICLE V
Note Payment Account
Section 5.01 Note Payment Account. The Indenture Trustee shall establish and
maintain an Eligible Account entitled "▇▇▇▇▇ Fargo Bank Minnesota, N.A., as
Indenture Trustee, for the benefit of the Securityholders, the Certificate
Paying Agent and the Enhancer, pursuant to the Indenture, dated as of August 28,
2002, between GMACM Home Equity Loan Trust 2002-HE3 and ▇▇▇▇▇ Fargo Bank
Minnesota, N.A." (the "Note Payment Account"). On each Payment Date, amounts on
deposit in the Note Payment Account shall be distributed by the Indenture
Trustee in accordance with Section 3.05 of the Indenture. In addition, the
Indenture Trustee shall deposit in the Note Payment Account, the amount of any
Advance received from the holder of a Variable Pay Revolving Note in accordance
with Section 2.03 of the Indenture, or the proceeds of the sale and issuance of
a Variable Pay Revolving Note issued pursuant to the Indenture after the Closing
Date, to be applied as a distribution of principal of the related Class of Term
Notes on its respective Targeted Final Payment Date. The Indenture Trustee shall
29
invest or cause the institution maintaining the Note Payment Account to invest
the funds therein in Permitted Investments selected in writing by the Servicer
and designated in the name of the Indenture Trustee, which investments shall
mature not later than the Business Day next preceding the Payment Date next
following the date of such investment (except that any investment in the
institution with which the Note Payment Account is maintained may mature on such
Payment Date and shall not be sold or disposed of prior to maturity). In
addition, no such Permitted Investment shall be purchased at a price in excess
of par. All income and gain realized from any such investment shall be for the
benefit of the Servicer and shall be subject to its withdrawal or order from
time to time. The amount of any losses incurred in respect of any such
investments shall be deposited in the Note Payment Account by the Servicer out
of its own funds immediately as realized.
ARTICLE VI
The Servicer
Section 6.01 Liability of the Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
upon and undertaken by the Servicer herein.
Section 6.02 Merger or Consolidation of, or Assumption of the Obligations of,
the Servicer. Any corporation into which the Servicer may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Servicer shall be a party, or
any corporation succeeding to the business of the Servicer, shall be the
successor of the Servicer hereunder, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
The Servicer may assign its rights and delegate its duties and
obligations under this Agreement; provided, that the Person accepting such
assignment or delegation shall be a Person qualified to service mortgage loans,
is reasonably satisfactory to the Enhancer (provided, that such consent to
assignment may not be unreasonably withheld), is willing to service the Mortgage
Loans and executes and delivers to the Issuer (with a copy to the Enhancer) an
agreement, in form and substance reasonably satisfactory to the Enhancer, that
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Servicer under this Agreement; and provided further, that no Rating Event will
occur as a result of such assignment and delegation (as evidenced by a letter to
such effect from each Rating Agency), if determined without regard to the
Policy; and provided further, that the Owner Trustee shall receive an Opinion of
Counsel to the effect that such assignment or delegation will not cause the
Issuer to be treated as an association (or a publicly-traded partnership)
taxable as a corporation for federal income tax purposes.
30
Section 6.03 Limitation on Liability of the Servicer and Others. Neither the
Servicer nor any of the directors or officers or employees or agents of the
Servicer shall be under any liability to the Issuer, the Owner Trustee, the
Indenture Trustee or the Securityholders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Agreement;
provided, however, that this provision shall not protect the Servicer or any
such Person against any liability that would otherwise be imposed by reason of
its willful misfeasance, bad faith or gross negligence in the performance of its
duties hereunder or by reason of its reckless disregard of its obligations and
duties hereunder. The Servicer and any director or officer or employee or agent
of the Servicer 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. The Servicer and any director, officer, employee or agent of the
Servicer shall be indemnified by the Issuer and held harmless against any loss,
liability or expense incurred in connection with any legal action relating to
this Agreement or the Securities, including any amount paid to the Owner Trustee
or the Indenture Trustee pursuant to Section 6.06(b), other than any loss,
liability or expense related to any specific Mortgage Loan or Mortgage Loans
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) and any loss, liability or expense incurred by
reason of its willful misfeasance, bad faith or gross negligence in the
performance of its duties hereunder or by reason of its reckless disregard of
its obligations and duties hereunder. The Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement, and that in its opinion may involve it in any expense or liability;
provided, however, that the Servicer may in its sole discretion undertake any
such action that it may deem necessary or desirable in respect of this
Agreement, the rights and duties of the parties hereto and the interests of the
Securityholders. In such event, the reasonable legal expenses and costs of such
action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Issuer, and the Servicer shall be entitled to be reimbursed
therefor. The Servicer's right to indemnity or reimbursement pursuant to this
Section 6.03 shall survive any resignation or termination of the Servicer
pursuant to Section 6.04 or 7.01 with respect to any losses, expenses, costs or
liabilities arising prior to such resignation or termination (or arising from
events that occurred prior to such resignation or termination).
Section 6.04 Servicer Not to Resign. Subject to the provisions of Section 6.02,
the Servicer shall not resign from the obligations and duties hereby imposed on
it except (a) upon determination that the performance of its obligations or
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it or its subsidiaries or Affiliates, the other activities of the Servicer
so causing such a conflict being of a type and nature carried on by the Servicer
or its subsidiaries or Affiliates at the date of this Agreement or (b) upon
satisfaction of the following conditions: (i) the Servicer shall have proposed a
successor servicer to the Issuer and the Indenture Trustee in writing and such
proposed successor servicer is reasonably acceptable to the Issuer, the
Indenture Trustee and the Enhancer; (ii) each Rating Agency shall have delivered
a letter to the Issuer, the Enhancer and the Indenture Trustee prior to the
appointment of the successor servicer stating that the proposed appointment of
such successor servicer as Servicer hereunder will not cause a Rating Event, if
determined without regard to the Policy; and (iii) such proposed successor
servicer is reasonably acceptable to the Enhancer, as evidenced by a letter to
the Issuer and the Indenture Trustee; provided, however, that no such
resignation by the Servicer shall become effective until such successor servicer
31
or, in the case of (a) above, the Indenture Trustee, as pledgee of the Mortgage
Loans, shall have assumed the Servicer's responsibilities and obligations
hereunder or the Indenture Trustee, as pledgee of the Mortgage Loans, shall have
designated a successor servicer in accordance with Section 7.02. Any such
resignation shall not relieve the Servicer of responsibility for any of the
obligations specified in Sections 7.01 and 7.02 as obligations that survive the
resignation or termination of the Servicer. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel to
such effect delivered to the Indenture Trustee and the Enhancer.
Section 6.05 Delegation of Duties. In the ordinary course of business, the
Servicer at any time may delegate any of its duties hereunder to any Person,
including any of its Affiliates, that agrees to conduct such duties in
accordance with standards comparable to those with which the Servicer complies
pursuant to Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 6.04.
Section 6.06 Payment of Indenture Trustee's and Owner Trustee's Fees and
Expenses; Indemnification.
(a) After the Closing Date, the Servicer covenants and agrees to pay to the
Owner Trustee, the Indenture Trustee and any co-trustee of the Indenture
Trustee or the Owner Trustee from time to time, and the Owner Trustee, the
Indenture Trustee and any such co-trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust and, in the case of
the Indenture Trustee, for so long as GMAC Mortgage Corporation is the
Servicer shall be as set forth in the letter agreement between the
Indenture Trustee and the Servicer dated as of August 28, 2002) for all
services rendered by each of them in the execution of the trusts created
under the Trust Agreement and the Indenture and in the exercise and
performance of any of the powers and duties under the Trust Agreement or
the Indenture, as the case may be, of the Owner Trustee, the Indenture
Trustee and any co-trustee, and the Servicer will pay or reimburse the
Indenture Trustee and any co-trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Indenture
Trustee or any co-trustee in accordance with any of the provisions of this
Agreement, the Indenture or the Trust Agreement except any such expense,
disbursement or advance as may arise from its negligence, willful
misfeasance or bad faith. In addition, the Indenture Trustee shall be
entitled to be reimbursed from the Servicer for all reasonable costs
associated with the transfer of servicing from the predecessor servicer
pursuant to Section 7.02 hereunder, including, without limitation, any
reasonable costs or expenses associated with the complete transfer of all
servicing data and the completion, correction or manipulation of such
servicing data as may be required by the Indenture Trustee to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
Indenture Trustee to service the Mortgage Loans properly and effectively.
(b) The Servicer agrees to indemnify the Indenture Trustee and the Owner
Trustee for, and to hold the Indenture Trustee and the Owner Trustee, as
the case may be, harmless against, any loss, liability or expense incurred
32
without negligence, bad faith or willful misconduct on the part of the
Indenture Trustee or the Owner Trustee, as the case may be, arising out of,
or in connection with, the acceptance and administration of the Issuer and
the assets thereof, including the costs and expenses (including reasonable
legal fees and expenses) of defending the Indenture Trustee or the Owner
Trustee, as the case may be, against any claim in connection with the
exercise or performance of any of its powers or duties under any Basic
Document; provided that:
(i) with respect to any such claim, the Indenture Trustee or
Owner Trustee, as the case may be, shall have given the
Servicer written notice thereof promptly after the
Indenture Trustee or Owner Trustee, as the case may be,
shall have actual knowledge thereof;
(ii) while maintaining control over its own defense, the
Issuer, the Indenture Trustee or Owner Trustee, as the
case may be, shall cooperate and consult fully with the
Servicer in preparing such defense; and
(iii) notwithstanding anything in this Agreement to the
contrary, the Servicer shall not be liable for settlement
of any claim by the Indenture Trustee or the Owner
Trustee, as the case may be, entered into without the
prior consent of the Servicer.
No termination of this Agreement or resignation or removal of the Indenture
Trustee shall affect the obligations created by this Section 6.06 of the
Servicer to indemnify the Indenture Trustee and the Owner Trustee under the
conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Servicer in this Section 6.06(b) shall not pertain to any loss, liability or
expense of the Indenture Trustee or the Owner Trustee, including the costs and
expenses of defending itself against any claim, incurred in connection with any
actions taken by the Indenture Trustee or the Owner Trustee at the direction of
the Noteholders or Certificateholders, as the case may be, pursuant to the terms
of this Agreement.
ARTICLE VII
Default
Section 7.01 Servicing Default.
-----------------
(a) If a Servicing Default shall occur and be continuing, then, and in every
such case, so long as a Servicing Default shall not have been remedied by the
Servicer, either the Issuer, the Indenture Trustee, upon actual knowledge of the
occurrence of a Servicing Default and with the consent of the Enhancer, or the
Enhancer, by notice then given in writing to the Servicer, the Issuer and the
Indenture Trustee, may terminate all of the rights and obligations of the
Servicer as servicer under this Agreement other than its right to receive
servicing compensation and expenses for servicing the Mortgage Loans hereunder
during any period prior to the date of such termination, and the Issuer, the
Enhancer or the Indenture Trustee (with the consent of the Enhancer), may
exercise any and all other remedies available at law or equity. Any such notice
to the Servicer shall also be given to each Rating Agency, the Enhancer and the
33
Issuer. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Securities or the Mortgage Loans or otherwise, shall pass to and be
vested in the Indenture Trustee, subject to Section 7.02 hereof, as pledgee of
the Mortgage Loans, pursuant to and under this Section 7.01; and, without
limitation, the Indenture Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of each Mortgage
Loan and related documents, or otherwise. The Servicer agrees to cooperate with
the Issuer, the Enhancer and Indenture Trustee, as the case may be, in effecting
the termination of the responsibilities and rights of the Servicer hereunder,
including, without limitation, the transfer to the Indenture Trustee for the
administration by it of all cash amounts relating to the Mortgage Loans that
shall at the time be held by the Servicer and to be deposited by it in the
Custodial Account, or that have been deposited by the Servicer in the Custodial
Account or thereafter received by the Servicer with respect to the Mortgage
Loans, the recordation of Assignments of Mortgages to the Indenture Trustee if
MERS is not the mortgagee of a Mortgage Loan, and the delivery of the Mortgage
Files in its possession to the Indenture Trustee. All reasonable costs and
expenses (including, but not limited to, attorneys' fees) incurred in connection
with amending this Agreement to reflect such succession as Servicer pursuant to
this Section 7.01 shall be paid by the predecessor Servicer (or if the
predecessor Servicer is the Indenture Trustee, the initial Servicer) upon
presentation of reasonable documentation of such costs and expenses.
(b) Notwithstanding any termination of the activities of the Servicer hereunder,
the Servicer shall be entitled to receive, out of any late collection of a
payment on a Mortgage Loan which was due prior to the notice terminating the
Servicer's rights and obligations hereunder and received after such notice, that
portion to which the Servicer would have been entitled pursuant to Sections 3.03
and 3.09 as well as its Servicing Fee in respect thereof, and any other amounts
payable to the Servicer hereunder the entitlement to which arose prior to the
termination of its activities hereunder.
Notwithstanding the foregoing, a delay in or failure of performance
under clause (i) or (ii) of the definition of Servicing Default, after the
applicable grace periods specified therein, shall not constitute a Servicing
Default if such delay or failure could not be prevented by the exercise of
reasonable diligence by the Servicer and such delay or failure was caused by an
act of God or the public enemy, acts of declared or undeclared war, public
disorder, rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, earthquakes, floods or similar causes. The preceding sentence shall
not relieve the Servicer from using reasonable efforts to perform its respective
obligations in a timely manner in accordance with the terms of this Agreement.
The Servicer shall provide the Indenture Trustee, the Enhancer and the
Securityholders with notice of any such failure or delay by it, together with a
description of its efforts to so perform its obligations. The Servicer shall
immediately notify the Indenture Trustee, the Enhancer and the Issuer in writing
of any Servicing Default.
34
Section 7.02 Indenture Trustee to Act; Appointment of Successor.
--------------------------------------------------
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01 or sends a notice pursuant to Section 6.04, the
Indenture Trustee as pledgee of the Mortgage Loans shall itself become, or
shall appoint an affiliate of the Indenture Trustee to become the successor
in all respects to the Servicer in its capacity as servicer under this
Agreement and the transactions set forth or provided for herein and shall
immediately assume all of the obligations of the Servicer to make advances
on Mortgage Loans under Section 3.02(b) and will be subject to all other
responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof as soon as practicable, but in
no event later than 90 days after the Indenture Trustee becomes successor
servicer. During such 90 day period, the Indenture Trustee, with the
consent of the Enhancer, may require the Servicer being terminated to
continue to perform such servicing responsibilities (other than making
advances on the Mortgage Loans under Section 3.02(b)) as the Indenture
Trustee deems appropriate. In such event, the Servicer being terminated
shall provide such services as directed by the Indenture Trustee until the
earliest of the date the Indenture Trustee notifies such Servicer to
discontinue providing such services, the date on which a successor servicer
or the Indenture Trustee has assumed all responsibilities, duties and
liabilities of the Servicer hereunder or the expiration of the 90 day
period. The Servicer shall be entitled to the Servicing Fee hereunder for
any period during which the Servicer is obligated to provide such services
as if no termination of the Servicer had occurred. Nothing in this
Agreement or in the Trust Agreement shall be construed to permit or require
the Indenture Trustee to (i) succeed to the responsibilities, duties and
liabilities of the initial Servicer in its capacity as Seller under the
Purchase Agreement, (ii) be responsible or accountable for any act or
omission of the Servicer prior to the issuance of a notice of termination
hereunder, (iii) require or obligate the Indenture Trustee, in its capacity
as successor Servicer, to purchase, repurchase or substitute any Mortgage
Loan, (iv) fund any Additional Balances with respect to any Mortgage Loan,
(v) fund any losses on any Permitted Investment directed by any other
Servicer, or (vi) be responsible for the representations and warranties of
the Servicer. As compensation therefor, the Indenture Trustee shall be
entitled to such compensation as the Servicer would have been entitled to
hereunder if no such notice of termination had been given. Notwithstanding
the foregoing, if the Indenture Trustee is (x) unwilling to act as
successor Servicer itself or to appoint an affiliate to become successor
Servicer, or (y) legally unable so to act, the Indenture Trustee as pledgee
of the Mortgage Loans may (in the situation described in clause (x)) or
shall (in the situation described in clause (y)) appoint or petition a
court of competent jurisdiction to appoint any established housing and home
finance institution, bank or other mortgage loan servicer having a net
worth of not less than $10,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the Servicer hereunder; provided, that any such
successor Servicer shall be acceptable to the Enhancer, as evidenced by the
Enhancer's prior written consent, which consent shall not be unreasonably
withheld; and provided further, that the appointment of any such successor
Servicer will not result in a Rating Event, if determined without regard to
the Policy. Pending appointment of a successor to the Servicer hereunder,
unless the Indenture Trustee is prohibited by law from so acting, the
Indenture Trustee itself shall act or appoint an affiliate to act in such
capacity as provided above. In connection with such appointment and
assumption, the successor shall be entitled to receive compensation out of
payments on Mortgage Loans in an amount equal to the compensation that the
35
Servicer would otherwise have received pursuant to Section 3.09 (or such
other compensation as the Indenture Trustee and such successor shall
agree). The appointment of a successor Servicer shall not affect any
liability of the predecessor Servicer that may have arisen under this
Agreement prior to its termination as Servicer (including the obligation to
purchase Mortgage Loans pursuant to Section 3.01, to pay any deductible
under an insurance policy pursuant to Section 3.04 or to indemnify the
Indenture Trustee pursuant to Section 6.06), nor shall any successor
Servicer be liable for any acts or omissions of the predecessor Servicer or
for any breach by such Servicer of any of its representations or warranties
contained herein or in any related document or agreement. The Indenture
Trustee and such successor shall take such action, consistent with this
Agreement and the requirements (including any notice requirements) of
applicable law, as shall be necessary to effectuate any such succession.
Notwithstanding the foregoing, the Indenture Trustee, in its capacity as
successor Servicer, shall not be responsible for the lack of information
and/or documents that it cannot obtain through reasonable efforts or for
failing to take any action that the Indenture Trustee is legally prohibited
from taking by applicable law.
(b) Any successor, including the Indenture Trustee, to the Servicer as servicer
shall during its term as Servicer (i) continue to service and administer
the Mortgage Loans for the benefit of the Securityholders, (ii) maintain in
force a policy or policies of insurance covering errors and omissions in
the performance of its obligations as Servicer hereunder and a fidelity
bond in respect of its officers, employees and agents to the same extent as
the Servicer is so required pursuant to Section 3.13 and (iii) be bound by
the terms of the Insurance Agreement.
(c) Any successor Servicer, including the Indenture Trustee, shall not be
deemed in default or to have breached its duties hereunder if the
predecessor Servicer shall fail to deliver any required deposit to the
Custodial Account or otherwise cooperate with any required servicing
transfer or succession hereunder.
(d) In connection with the termination or resignation of the Servicer
hereunder, either (i) the successor Servicer, including the Indenture
Trustee if the Indenture Trustee is acting as successor Servicer, shall
represent and warrant that it is a member of MERS in good standing and
shall agree to comply in all material respects with the rules and
procedures of MERS in connection with the servicing of the Mortgage Loans
that are registered with MERS, in which case the predecessor Servicer shall
cooperate with the successor Servicer in causing MERS to revise its records
to reflect the transfer of servicing to the successor Servicer as necessary
under MERS' rules and regulations, or (ii) the predecessor Servicer shall
cooperate with the successor Servicer in causing MERS to execute and
deliver an assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Indenture Trustee and to execute and deliver such
other notices, documents and other instruments as may be necessary or
desirable to effect a transfer of such Mortgage Loan or servicing of such
Mortgage Loan on the MERS(R)System to the successor Servicer. The
36
predecessor Servicer shall file or cause to be filed any such assignment in
the appropriate recording office. The predecessor Servicer shall bear any
and all fees of MERS, costs of preparing any assignments of Mortgage, and
fees and costs of filing any assignments of Mortgage that may be required
under this subsection (d). The successor Servicer shall cause such
assignment to be delivered to the Indenture Trustee or the Custodian
promptly upon receipt of the original with evidence of recording thereon or
a copy certified by the public recording office in which such assignment
was recorded.
Section 7.03 Notification to Securityholders. Upon any termination of or
appointment of a successor to the Servicer pursuant to this Article VII or
Section 6.04, the Indenture Trustee shall give prompt written notice thereof to
the Securityholders, the Enhancer, the Issuer and each Rating Agency.
ARTICLE VIII
Miscellaneous Provisions
Section 8.01 Amendment. This Agreement may be amended from time to time by the
parties hereto; provided, that any such amendment shall be accompanied by a
letter from each Rating Agency to the effect that such amendment will not result
in a Rating Event, if determined without regard to the Policy; and provided
further, that the Enhancer and the Indenture Trustee shall consent thereto.
Section 8.02 GOVERNING LAW. 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 SUCH LAWS.
Section 8.03 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 certified mail, return receipt requested, to (a) in the case of
the Servicer, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇, (b) in the case of the Enhancer, MBIA Insurance Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇: Attention: Insured Portfolio Management -
Structured Finance (GMACM Home Equity Loan Trust 2002-HE3), (c) in the case of
▇▇▇▇▇'▇, Home Mortgage Loan Monitoring Group, 4th Floor, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (d) in the case of Standard & Poor's, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Residential Mortgage Surveillance Group, (e) in
the case of Fitch, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Residential Mortgage Group, (f) in the case of the Owner Trustee, Wilmington
Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and (g) in the case of the Issuer, GMACM Home Equity Loan
Trust 2002-HE3, c/o the Owner Trustee at the address set forth in clause (e)
above, and (g) in the case of the Indenture Trustee, at the Corporate Trust
Office of the Indenture Trustee; or, with respect to each of the foregoing
Persons, at such other address as shall be designated by such Person in a
written notice to the other foregoing Persons. Any notice required or permitted
37
to be mailed to a Securityholder shall be given by first class mail, postage
prepaid, at the address of such Securityholder as shown in the Note Register or
Certificate Register, as the case may be. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the related Securityholder receives such notice. Any
notice or other document required to be delivered or mailed by the Indenture
Trustee to any Rating Agency shall be given on a reasonable efforts basis and
only as a matter of courtesy and accommodation, and the Indenture Trustee shall
have no liability for failure to deliver any such notice or document to any
Rating Agency.
Section 8.04 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, 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 or
enforceability of the other provisions of this Agreement or the Securities or
the rights of the Securityholders.
Section 8.05 Third-Party Beneficiaries. This Agreement shall inure to the
benefit of and be binding upon the parties hereto, the Securityholders, the
Enhancer, the Owner Trustee and their respective successors and permitted
assigns. Except as otherwise provided in this Agreement, no other Person shall
have any right or obligation hereunder.
Section 8.06 Counterparts. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 8.07 Effect of Headings and Table of Contents. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 8.08 Termination Upon Purchase by the Servicer or Liquidation of All
Mortgage Loans; Partial Redemption.
(a) The respective obligations and responsibilities of the Servicer, the Issuer
and the Indenture Trustee created hereby shall terminate upon the last
action required to be taken by the Issuer pursuant to the Trust Agreement
and by the Indenture Trustee pursuant to the Indenture following the
earlier of:
(i) the date on or before which the Indenture or the Trust Agreement is
terminated, or
(ii) the purchase by the Servicer from the Issuer of all Mortgage Loans and REO
Property in accordance with Section 8.08(b).
(b) The Servicer shall have the right to purchase from the Issuer all of the
Mortgage Loans and related REO Property if the aggregate Note Balance of
the Notes as of any Payment Date is less than 10% of the aggregate Note
Balance of the Notes as of the Closing Date (provided that a draw on the
Policy would not occur as a result of such purchase and provided further
that the purchase price will provide sufficient funds to pay the
38
outstanding Note Balance and accrued and unpaid interest on the Notes to
the Payment Date on which such amounts are to be distributed to the
Securityholders), at a price equal to 100% of the aggregate unpaid
Principal Balance of all such remaining Mortgage Loans, plus accrued and
unpaid interest thereon at the weighted average of the Loan Rates thereon
up to the date preceding the Payment Date on which such amounts are to be
distributed to the Securityholders (and in the case of REO Property, the
fair market value of the REO Property), plus any amounts due and owing to
the Enhancer under the Insurance Agreement related to the Mortgage Loans or
the Notes (and any unpaid Servicing Fee relating to the Mortgage Loans
shall be deemed to have been paid at such time), plus any Interest
Shortfall and interest owed thereon to the Noteholders.
The Servicer shall send written notice to the Enhancer of its
intent to exercise its right to purchase any of the Mortgage Loans pursuant to
this Section 8.08(b).
If such right is exercised by the Servicer, the Servicer shall
deposit the amount calculated pursuant to this Section 8.08(b) with the
Indenture Trustee pursuant to Section 4.10 of the Indenture and, upon the
receipt of such deposit, the Indenture Trustee or Custodian shall release to the
Servicer, the files pertaining to the Mortgage Loans being purchased. The
Servicer, at its expense, shall prepare and deliver to the Indenture Trustee for
execution, at the time the related Mortgage Loans are to be released to the
Servicer, appropriate documents assigning each such Mortgage Loans from the
Indenture Trustee or the Issuer to the Servicer or the appropriate party.
Section 8.09 Certain Matters Affecting the Indenture Trustee. For all purposes
of this Agreement, in the performance of any of its duties or in the exercise of
any of its powers hereunder, the Indenture Trustee shall be subject to and
entitled to the benefits of Article VI of the Indenture.
Section 8.10 Owner Trustee Not Liable for Related Documents. The recitals
contained herein shall be taken as the statements of the Servicer, and the Owner
Trustee and the Indenture Trustee assume no responsibility for the correctness
thereof. The Owner Trustee and the Indenture Trustee make no representations as
to the validity or sufficiency of this Agreement, of any Basic Document or
Related Document, or of the Certificates (other than the signatures of the Owner
Trustee and the Indenture Trustee on the Certificates) or the Notes. The Owner
Trustee and the Indenture Trustee shall at no time have any responsibility or
liability with respect to the sufficiency of the Trust Estate or its ability to
generate the payments to be distributed to Certificateholders under the Trust
Agreement or the Noteholders under the Indenture, including the compliance by
the Depositor, the Sellers or the Servicer with any warranty or representation
made under any Basic Document or the accuracy of any such warranty or
representation, or any action of any person taken in the name of the Owner
Trustee or the Indenture Trustee.
39
IN WITNESS WHEREOF, the Servicer, the Issuer and the Indenture Trustee
have caused this Agreement to be duly executed by their respective officers or
representatives all as of the day and year first above written.
GMAC MORTGAGE CORPORATION,
as Servicer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
GMACM HOME EQUITY LOAN TRUST 2002-HE3, as
Issuer
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
40
EXHIBIT A
MORTGAGE LOAN SCHEDULE
EXHIBIT B
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PREMISES:
That ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as indenture trustee (the
"Indenture Trustee"), under the indenture dated as of August 28, 2002 (the
"Indenture"), between GMACM Home Equity Loan Trust 2002-HE3, as issuer and the
Indenture Trustee, a national banking association organized and existing under
the laws of the United States of America, and having its principal office
located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, hath made,
constituted and appointed, and does by these presents make, constitute and
appoint GMAC Mortgage Corporation, a corporation organized and existing under
the laws of the Commonwealth of Pennsylvania, its true and lawful
Attorney-in-Fact, with full power and authority to sign, execute, acknowledge,
deliver, file for record, and record any instrument on its behalf and to perform
such other act or acts as may be customarily and reasonably necessary and
appropriate to effectuate the following enumerated transactions in respect of
any of the Mortgages securing a Mortgage Loan and the related Loan Agreements
for which the undersigned is acting as Indenture Trustee for various
Securityholders (whether the undersigned is named therein as mortgagee or
beneficiary or has become mortgagee by virtue of endorsement of such Loan
Agreement secured by any such Mortgage) and for which GMAC Mortgage Corporation
is acting as Servicer pursuant to a Servicing Agreement dated as of August 28,
2002 (the "Servicing Agreement").
This appointment shall apply to the following enumerated transactions only:
1. The modification or re-recording of a Mortgage, where said modification
or re-recording is for the purpose of correcting the Mortgage to conform
same to the original intent of the parties thereto or to correct title
errors discovered after such title insurance was issued and said
modification or re-recording, in either instance, does not adversely
affect the Lien of the Mortgage as insured.
2. The subordination of the Lien of a Mortgage to an easement in favor of a
public utility company or a government agency or unit with powers of
eminent domain; this section shall include, without limitation, the
execution of partial satisfactions/releases, partial reconveyances or
the execution of requests to trustees to accomplish same.
3. With respect to a Mortgage, the foreclosure, the taking of a deed in
lieu of foreclosure, or the completion of judicial or non-judicial
foreclosure or termination, cancellation or rescission of any such
foreclosure, including, without limitation, any and all of the following
acts:
a. The substitution of trustee(s) serving under a Mortgage, in
accordance with state law and the Mortgage;
b. Statements of breach or non-performance;
c. Notices of default;
d. Cancellations/rescissions of notices of default and/or notices of
sale;
e. The taking of a deed in lieu of foreclosure; and
f. Such other documents and actions as may be necessary under the
terms of the Mortgage or state law to expeditiously complete said
transactions.
4. The conveyance of the properties to the mortgage insurer, or the closing
of the title to the property to be acquired as real estate owned, or
conveyance of title to real estate owned.
5. The completion of loan assumption agreements.
6. The full satisfaction/release of a Mortgage or full reconveyance upon
payment and discharge of all sums secured thereby, including, without
limitation, cancellation of the related Loan Agreement.
7. The assignment of any Mortgage and the related Loan Agreement, in
connection with the repurchase of the Mortgage Loan secured and evidenced
thereby.
8. The full assignment of a Mortgage upon payment and discharge of all sums
secured thereby in conjunction with the refinancing thereof, including,
without limitation, the endorsement of the related Loan Agreement.
9. The modification or re-recording of a Mortgage, where said modification or
re-recording is for the purpose of any modification pursuant to Section
3.01 of the Servicing Agreement.
10. The execution of partial satisfactions/releases pursuant to Section 3.01 of
the Servicing Agreement.
The undersigned gives said Attorney-in-Fact full power and authority to
execute such instruments and to do and perform all and every act and thing
necessary and proper to carry into effect the power or powers granted by or
under this Limited Power of Attorney as fully as the undersigned might or could
do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall
lawfully do or cause to be done by authority hereof.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in Appendix A to the Indenture.
Third parties without actual notice may rely upon the exercise of the
power granted under this Limited Power of Attorney; and may be satisfied that
this Limited Power of Attorney shall continue in full force and effect has not
been revoked unless an instrument of revocation has been made in writing by the
undersigned.
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
not in its individual capacity
but solely as Indenture Trustee
By:
------------------------------------
Name:
Title:
STATE OF )
SS.
COUNTY OF )
On this [___] day of August, 2002, before me the undersigned, Notary
Public of said State, personally appeared , personally known to me to be duly
authorized officers of ▇▇▇▇▇ Fargo Bank Minnesota, N.A. that executed the within
instrument and personally known to me to be the persons who executed the within
instrument on behalf of ▇▇▇▇▇ Fargo Bank Minnesota, N.A. therein named, and
acknowledged to me such ▇▇▇▇▇ Fargo Bank Minnesota, N.A. executed the within
instrument pursuant to its by-laws.
WITNESS my hand and official
seal.
Notary Public in and for the
State of
------------------------
After recording, please mail to:
Attn:
-------------------------------
EXHIBIT C
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with your administration of the Mortgage Loans, we request the
release of the Mortgage File described below.
Servicing Agreement Dated:
Series #:
Account #:
Pool #:
Loan #:
Borrower Name(s):
Reason for Document Request: (circle one) Mortgage Loan
Prepaid in Full Mortgage Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Servicing Agreement."
GMAC Mortgage Corporation
Authorized Signature
******************************************************************************
TO CUSTODIAN: Please acknowledge this request, and check off documents being
enclosed with a copy of this form. You should retain this form for your files in
accordance with the terms of the Servicing Agreement.
Enclosed Documents: [ ] Loan Agreement
Name
--------------------------------
Title
-------------------------------
Date
------------------