RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Purchaser,
GMAC MORTGAGE CORPORATION,
as Seller and Servicer,
WALNUT GROVE MORTGAGE LOAN TRUST 2001-A,
as Seller,
GMACM HOME EQUITY LOAN TRUST 2002-HE4,
as Issuer,
and
XXXXX FARGO BANK MINNESOTA, N.A.,
as Indenture Trustee
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MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------------------
Dated as of October 30, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...............................................................2
Section 1.1 Definitions.......................................................2
Section 1.2 Other Definitional Provisions.....................................2
ARTICLE II SALE OF MORTGAGE LOANS AND RELATED PROVISIONS.............................3
Section 2.1 Sale of Mortgage Loans............................................3
Section 2.2 Payment of Purchase Price.........................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH.......................6
Section 3.1 Representations and Warranties....................................6
ARTICLE IV SELLERS' COVENANTS.......................................................15
Section 4.1 Covenants of the Sellers.........................................15
ARTICLE V SERVICING................................................................15
Section 5.1 Servicing........................................................15
ARTICLE VI LIMITATION ON LIABILITY OF THE SELLERS...................................15
Section 6.1 Limitation on Liability of the Sellers...........................15
ARTICLE VII TERMINATION..............................................................15
Section 7.1 Termination......................................................15
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................................16
Section 8.1 Amendment........................................................16
Section 8.2 GOVERNING LAW....................................................16
Section 8.3 Notices..........................................................16
Section 8.4 Severability of Provisions.......................................17
Section 8.5 Relationship of Parties..........................................17
Section 8.6 Counterparts.....................................................17
Section 8.7 Further Agreements...............................................17
Section 8.8 Intention of the Parties.........................................17
Section 8.9 Successors and Assigns; Assignment of this Agreement.............18
Section 8.10 Survival.........................................................18
Section 8.11 Third Party Beneficiary..........................................18
i
This Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
October 30, 2002, is made among GMAC Mortgage Corporation, as seller ("GMACM")
and as servicer (in such capacity, the "Servicer"), Walnut Grove Mortgage Loan
Trust 2001-A, as seller ("WG Trust" and, together with GMACM, each a "Seller"
and collectively, the "Sellers"), Residential Asset Mortgage Products, Inc., as
purchaser (the "Purchaser"), GMACM Home Equity Loan Trust 2002-HE4, as issuer
(the "Issuer"), and Xxxxx Fargo Bank Minnesota, N.A., as indenture trustee (the
"Indenture Trustee").
WITNESSETH:
WHEREAS, GMACM, in the ordinary course of its business acquires and
originates home equity loans and acquired or originated all of the home equity
loans listed on the Mortgage Loan Schedule attached as Exhibit 1 hereto (the
"Mortgage Loans");
WHEREAS, GMACM sold a portion of the Mortgage Loans (the "WG Trust
Mortgage Loans") to Walnut Grove Funding, Inc. ("Walnut Grove"), pursuant to a
Mortgage Loan Purchase Agreement (the "Walnut Grove Purchase Agreement"), dated
as of May 1, 2001, as amended, among Walnut Grove, as purchaser, GMACM, as
seller, WG Trust, as Issuer and Bank One, National Association, as trustee (each
date of sale, a "Prior Transfer Date");
WHEREAS, Walnut Grove sold the WG Trust Mortgage Loans to WG Trust
pursuant to a Trust Agreement, dated as of May 1, 2001, between Walnut Grove, as
depositor and Wilmington Trust Company, as owner trustee;
WHEREAS, GMACM owns the Cut-Off Date Principal Balances and the Related
Documents for the portion of Mortgage Loans identified on the Mortgage Loan
Schedule -A attached as Exhibit 1-A hereto (the "GMACM Mortgage Loans"),
including rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise, and (b) the proceeds of any insurance policies
covering the GMACM Mortgage Loans;
WHEREAS, WG Trust owns the Cut-Off Date Principal Balances and the
Related Documents for the WG Trust Mortgage Loans identified on the Mortgage
Loan Schedule -B attached as Exhibit 1-B hereto, including rights to (a) any
property acquired by foreclosure or deed in lieu of foreclosure or otherwise,
and (b) the proceeds of any insurance policies covering the WG Trust Mortgage
Loans;
WHEREAS, the parties hereto desire that: (i) GMACM sell the Cut-Off Date
Principal Balances of the GMACM Mortgage Loans to the Purchaser on the Closing
Date pursuant to the terms of this Agreement together with the Related
Documents, (ii) WG Trust sell the Cut-Off Date Principal Balances of the WG
Trust Mortgage Loans to the Purchaser on the Closing Date pursuant to the terms
of this Agreement together with the Related Documents, (iii) the related Seller
and GMACM make certain representations and warranties on the Closing Date;
WHEREAS, pursuant to the Trust Agreement, the Purchaser will sell the
Mortgage Loans and transfer all of its rights under this Agreement to the Issuer
on the Closing Date;
WHEREAS, pursuant to the terms of the Servicing Agreement, the Servicer
will service the Mortgage Loans;
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WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue the Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue the
Notes, secured by the Trust Estate;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1....Definitions. For all purposes of this Agreement, except as
otherwise expressly provided herein or unless the context otherwise requires,
capitalized terms not otherwise defined herein shall have the meanings assigned
to such terms in the Definitions contained in Appendix A to the indenture dated
as of October 30, 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 1.2....Other Definitional Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document,
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; the term "including" shall mean
"including without limitation"; "or" shall include "and/or"; and the term
"proceeds" shall have the meaning ascribed thereto in the UCC.
The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to herein or in
any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
2
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1....Sale of Mortgage Loans.
(a) GMACM, by the execution and delivery of this Agreement, does hereby sell,
assign, set over, and otherwise convey to the Purchaser, without recourse, all
of its right, title and interest in, to and under the following, and wherever
located: (i) the GMACM Mortgage Loans (including the Cut-Off Date Principal
Balances), all interest accruing thereon, all monies due or to become due
thereon, and all collections in respect thereof received on or after the Cut-Off
Date (other than interest thereon in respect of any period prior to the Cut-Off
Date); (ii) the interest of GMACM in any insurance policies in respect of the
GMACM Mortgage Loans; and (iii) all proceeds of the foregoing. Such conveyance
shall be deemed to be made, with respect to the Cut-Off Date Principal Balances,
as of the Closing Date, subject to the receipt by GMACM of consideration
therefor as provided herein under clause (a) of Section 2.3.
(b) WG Trust, by the execution and delivery of this Agreement, does hereby sell,
assign, set over, and otherwise convey to the Purchaser, without recourse, all
of its right, title and interest in, to and under the following, and wherever
located: (i) the WG Trust Mortgage Loans (including the Cut-Off Date Principal
Balances), all interest accruing thereon, all monies due or to become due
thereon, and all collections in respect thereof received on or after the Cut-Off
Date (other than interest thereon in respect of any period prior to the Cut-Off
Date); (ii) the interest of WG Trust in any insurance policies in respect of the
WG Trust Mortgage Loans; and (iii) all proceeds of the foregoing. Such
conveyance shall be deemed to be made, with respect to the Cut-Off Date
Principal Balances, as of the Closing Date, subject to the receipt by WG Trust
of consideration therefor as provided herein under clause (a) of Section 2.3.
(c) In connection with the conveyance by GMACM of the GMACM Mortgage Loans,
GMACM further agrees, at its own expense, on or prior to the Closing Date with
respect to the Principal Balances of the GMACM Mortgage Loans to indicate in its
books and records that the GMACM Mortgage Loans have been sold to the Purchaser
pursuant to this Agreement, and to deliver to the Purchaser true and complete
lists of all of the Mortgage Loans sold by GMACM specifying for each Mortgage
Loan (i) its account number and (ii) its Cut-Off Date Principal Balance. The
Mortgage Loan Schedule indicating such information with respect to the Mortgage
Loans sold by GMACM shall be marked as Exhibit 1-A to this Agreement and is
hereby incorporated into and made a part of this Agreement.
(d) In connection with the conveyance by WG Trust of the WG Trust Mortgage
Loans, WG Trust further agrees, at its own expense, on or prior to the Closing
Date with respect to the Principal Balances of the WG Trust Mortgage Loans to
indicate in its books and records that the WG Trust Mortgage Loans have been
sold to the Purchaser pursuant to this Agreement. GMACM, as Servicer of the
Mortgage Loans sold by WG Trust, agrees to deliver to the Purchaser true and
complete lists of all of the Mortgage Loans sold by WG Trust specifying for each
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Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal
Balance. The Mortgage Loan Schedule indicating such information with respect to
the Mortgage Loans sold by WG Trust shall be marked as Exhibit 1-B to this
Agreement and is hereby incorporated into and made a part of this Agreement.
(e) In connection with the conveyance by GMACM of the GMACM Mortgage Loans and
the conveyance by WG Trust of the WG Trust Mortgage Loans, GMACM shall, (A) with
respect to each related Mortgage Loan, on behalf of the Purchaser deliver to,
and deposit with the Custodian, at least five (5) Business Days before the
Closing Date the original Mortgage Note endorsed or assigned without recourse in
blank (which endorsement shall contain either an original signature or a
facsimile signature of an authorized officer of GMACM or GMAC Bank) or, with
respect to any Mortgage Loan as to which the original Mortgage Note has been
permanently lost or destroyed and has not been replaced, a Lost Note Affidavit,
and any modification agreement or amendment to such Mortgage Note, and (B)
except as provided in clause (A) with respect to the Mortgage Notes, deliver the
Mortgage Files to the Servicer.
Within the time period for the review of each Mortgage Note set forth in
Section 2.2 of the Custodial Agreement, if a material defect in any Mortgage
Note is discovered which may materially and adversely affect the value of the
related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of
the Mortgage Loans), the Noteholders, the Certificateholders or the Enhancer in
such Mortgage Loan, including GMACM's failure to deliver the Mortgage Note to
the Custodian on behalf of the Indenture Trustee, GMACM shall cure such defect,
repurchase the related Mortgage Loan at the Repurchase Price or substitute an
Eligible Substitute Loan therefor upon the same terms and conditions set forth
in Section 3.1 hereof for breaches of representations and warranties as to the
Mortgage Loans, provided that a Seller shall have the option to substitute an
Eligible Substitute Mortgage Loan or Loans for such Mortgage Loan only if such
substitution occurs within two years following the Closing Date. If a material
defect in any of the documents in the Mortgage File held by the Servicer is
discovered which may materially and adversely affect the value of the related
Mortgage Loan, or the interests of the Indenture Trustee (as pledgee of the
Mortgage Loans), the Noteholders, the Certificateholders or the Enhancer in such
Mortgage Loan, including GMACM's failure to deliver such documents to the
Servicer on behalf of the Indenture Trustee, GMACM shall cure such defect,
repurchase the related Mortgage Loan at the Repurchase Price or substitute an
Eligible Substitute Loan therefor upon the same terms and conditions set forth
in Section 3.1 hereof for breaches of representations and warranties as to the
Mortgage Loans, provided that a Seller shall have the option to substitute an
Eligible Substitute Mortgage Loan or Loans for such Mortgage Loan only if such
substitution occurs within two years following the Closing Date.
Upon sale of the Mortgage Loans, the ownership of each Mortgage Note,
each related Mortgage and the contents of the related Mortgage File shall be
vested in the Purchaser and the ownership of all records and documents with
respect to the Mortgage Loans that are prepared by or that come into the
possession of either Seller, as a seller of the Mortgage Loans hereunder or by
GMACM in its capacity as Servicer under the Servicing Agreement shall
immediately vest in the Purchaser, and shall be promptly delivered to the
Servicer in the case of the documents in possession of WG Trust and retained and
maintained in trust by GMACM as the Servicer (except for the Mortgage Notes,
which shall be retained by the Custodian) at the will of the Purchaser, in such
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custodial capacity only. Each Seller's records will accurately reflect the sale
of each Mortgage Loan sold by it to the Purchaser.
The Purchaser hereby acknowledges its acceptance of all right, title and
interest to the property conveyed to it pursuant to this Section 2.1. (f) The
parties hereto intend that the transactions set forth herein constitute a sale
by the Sellers to the Purchaser of each of the Sellers' right, title and
interest in and to their respective Mortgage Loans and other property as and to
the extent described above. In the event the transactions set forth herein are
deemed not to be a sale, each Seller hereby grants to the Purchaser a security
interest in all of such Seller's right, title and interest in, to and under all
accounts, chattel papers, general intangibles, payment intangibles, contract
rights, certificates of deposit, deposit accounts, instruments, documents,
letters of credit, money, advices of credit, investment property, goods and
other property consisting of, arising under or related to the Mortgage Loans and
such other property, to secure all of such Seller's obligations hereunder, and
this Agreement shall and hereby does constitute a security agreement under
applicable law. Each Seller agrees to take or cause to be taken such actions and
to execute such documents, including without limitation the filing of any
continuation statements with respect to the UCC-1 financing statements filed
with respect to the Mortgage Loans by the Purchaser on the Closing Date, and any
amendments thereto required to reflect a change in the name or corporate
structure of such Seller or the filing of any additional UCC-1 financing
statements due to the change in the principal office or jurisdiction of
incorporation of such Seller, as are necessary to perfect and protect the
Purchaser's and its assignees' interests in each Mortgage Loan and the proceeds
thereof. The Servicer shall file any such continuation statements on a timely
basis.
(g) In connection with the assignment of any Mortgage Loan registered on the
MERS(R) System, GMACM further agrees that it will cause, at GMACM's own expense,
as soon as practicable after the Closing Date, the MERS(R) System to indicate
that such Mortgage Loans has been assigned by GMACM to the Indenture Trustee in
accordance with this Agreement or the Trust Agreement for the benefit of the
Noteholders by including (or deleting, in the case of Mortgage Loans which are
repurchased in accordance with this Agreement) in such computer files (a) the
code "[IDENTIFY INDENTURE TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE
FIELD NAME FOR INDENTURE TRUSTEE]" which identifies the Indenture Trustee and
(b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field"
which identifies the series of the Notes issued in connection with such Mortgage
Loans. GMACM agrees that it will not alter the codes referenced in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the terms
of this Agreement. Unless it shall be appointed successor Servicer hereunder,
the Indenture Trustee shall have no ongoing responsibility to check the status
of the Mortgage Loan in the MERS(R) System.
(h) Although the parties to the Walnut Grove Purchase Agreement intend that each
transfer of one or more WG Trust Mortgage Loans described therein constitute a
sale by GMACM to Walnut Grove of all of GMACM's right, title and interest in and
to such WG Trust Mortgage Loans and other property as and to the extent
described therein, in the event any transfer of one or more WG Trust Mortgage
Loans pursuant to the Walnut Grove Purchase Agreement is deemed not to be a sale
and GMACM is deemed to retain any legal or equitable ownership interest in such
5
WG Trust Mortgage Loans, GMACM, by the execution and delivery of this Agreement,
does hereby sell, assign, set over, and otherwise convey to the Purchaser,
without recourse, any right, title and interest in, to and under, the following
with respect to such WG Trust Mortgage Loans, wherever located, to the extent
GMACM may be deemed to retain any interest therein: (i) the Cut-Off Date
Principal Balances of such WG Trust Mortgage Loans, all interest accruing
thereon, all monies due or to become due thereon, and all collections in respect
thereof received on or after the Cut-Off Date (other than interest thereon in
respect of any period prior to the Cut-Off Date); (ii) the interest of GMACM in
any insurance policies in respect of such WG Trust Mortgage Loans; and (iii) all
proceeds of the foregoing. Such conveyance shall be deemed to be made subject to
the receipt by GMACM of consideration therefor as provided herein under clause
(a) of Section 2.3.
Section 2.2....Payment of Purchase Price.
-------------------------
(a) The sale of the Mortgage Loans shall take place on the Closing Date, subject
to and simultaneously with the deposit of the Mortgage Loans into the Trust
Estate and the issuance of the Securities. The purchase price (the "Purchase
Price") for the GMACM Mortgage Loans to be paid by the Purchaser to GMACM on the
Closing Date (and any interest of GMACM in any portion of the WG Trust Mortgage
Loans transferred pursuant to Section 2.01(h) above) shall be an amount equal to
$45,687,312.52 in immediately available funds, together with the Certificates,
in respect of the Cut-Off Date Principal Balances thereof. The Purchase Price
for the WG Trust Mortgage Loans to be paid by the Purchaser to WG Trust on the
Closing Date shall be an amount equal to $567,287,125.50 in immediately
available funds, in respect of the Cut-Off Date Principal Balances thereof.
(b) In consideration of the sale of the GMACM Mortgage Loans by GMACM to the
Purchaser on the Closing Date, the Purchaser shall pay to GMACM on the Closing
Date by wire transfer of immediately available funds to a bank account
designated by GMACM, the amount specified above in paragraph (a) for the GMACM
Mortgage Loans; provided, that such payment may be on a net funding basis if
agreed by GMACM and the Purchaser.
(c) In consideration of the sale of the WG Trust Mortgage Loans by WG Trust to
the Purchaser on the Closing Date, the Purchaser shall pay to WG Trust on the
Closing Date by wire transfer of immediately available funds to a bank account
designated by WG Trust, the amount specified above in paragraph (a) for the WG
Trust Mortgage Loans; provided, that such payment may be on a net funding basis
if agreed by WG Trust and the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1....Representations and Warranties. GMACM represents and warrants to
the Purchaser, as of the Closing Date (or if otherwise specified below, as of
the date so specified):
(a) As to GMACM:
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(i) GMACM is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction governing its creation and existence and is
or will be in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of each
Mortgage Loan;
(ii) GMACM has the power and authority to make, execute, deliver and perform its
obligations under this Agreement and all of the transactions contemplated under
this Agreement and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement;
(iii) GMACM is not required to obtain the consent of any other Person or any
consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or authorizations, or
registrations or declarations, as shall have been obtained or filed, as the case
may be;
(iv) The execution and delivery of this Agreement by GMACM and its performance
and compliance with the terms of this Agreement will not violate GMACM's
Certificate of Incorporation or Bylaws or constitute a material default (or an
event which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the material breach of, any material contract,
agreement or other instrument to which GMACM is a party or which may be
applicable to GMACM or any of its assets;
(v) No litigation before any court, tribunal or governmental body is currently
pending, or to the knowledge of GMACM threatened, against GMACM or with respect
to this Agreement that in the opinion of GMACM has a reasonable likelihood of
resulting in a material adverse effect on the transactions contemplated by this
Agreement;
(vi) This Agreement to which it is a party, constitutes a legal, valid and
binding obligation of GMACM, enforceable against GMACM in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity) or by public policy with respect
to indemnification under applicable securities laws;
(vii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of GMACM in and to the GMACM Mortgage
Loans, including the Cut-Off Date Principal Balances with respect to the GMACM
Mortgage Loans, all monies due or to become due with respect thereto, and all
proceeds of such Cut-Off Date Principal Balances with respect to the GMACM
Mortgage Loans; and such funds as are from time to time deposited in the
Custodial Account (excluding any investment earnings thereon) as assets of the
Trust and all other property specified in the definition of "Trust" as being
part of the corpus of the Trust conveyed to the Purchaser by GMACM; and
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(viii) GMACM is not in default with respect to any order or decree of any court
or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or otherwise) or operations of
GMACM or its properties or might have consequences that would materially
adversely affect its performance hereunder;
(b) As to each Mortgage Loan (except as otherwise specified below) as of the
Closing Date:
(i) The information set forth in the Mortgage Loan Schedule with respect to each
Mortgage Loan or the Mortgage Loans is true and correct in all material respects
as of the date or dates respecting which such information is initially
furnished;
(ii) With respect to each of the WG Trust Mortgage Loans, as of each respective
Prior Transfer Date: (A) the related Mortgage Note and the Mortgage had not been
assigned or pledged, except for any assignment or pledge that had been satisfied
and released, (B) immediately prior to the assignment of such Mortgage Loans to
Walnut Grove, GMACM had good title thereto and (C) immediately prior to such
assignment, GMACM was the sole owner and holder of the Mortgage Loan free and
clear of any and all liens, encumbrances, pledges, or security interests (other
than, with respect to any Mortgage Loan in a second lien position, the lien of
the related first mortgage) of any nature and had full right and authority,
under all governmental and regulatory bodies having jurisdiction over the
ownership of the applicable Mortgage Loan, to sell and assign the same pursuant
to the Walnut Grove Purchase Agreement;
(iii) With respect to each of the GMACM Mortgage Loans (A) the related Mortgage
Note and the Mortgage have not been assigned or pledged, except for any
assignment or pledge that has been satisfied and released, (B) immediately prior
to such assignment of the Mortgage Loans to the Purchaser GMACM had good title
thereto and (C) GMACM is the sole owner and holder of the Mortgage Loan free and
clear of any and all liens, encumbrances, pledges, or security interests (other
than, with respect to any Mortgage Loan in a second lien position, the lien of
the related first mortgage) of any nature and has full right and authority,
under all governmental and regulatory bodies having jurisdiction over the
ownership of the applicable Mortgage Loans, to sell and assign the same pursuant
to this Agreement;
(iv) To the best of GMACM's knowledge, there is no valid offset, defense or
counterclaim of any obligor under any Mortgage Note or Mortgage;
(v) To the best of GMACM's knowledge, there is no delinquent recording or other
tax or fee or assessment lien against any related Mortgaged Property;
(vi) To the best of GMACM's knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the related Mortgaged
Property;
(vii) To the best of GMACM's knowledge, there are no mechanics' or similar liens
or claims which have been filed for work, labor or material affecting the
related Mortgaged Property which are, or may be liens prior or equal to, or
subordinate with, the lien of the related Mortgage, except liens which are fully
insured against by the title insurance policy referred to in clause (xi);
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(viii) As of the Cut-Off Date, no Mortgage Loan was 30 days or more delinquent
in payment of principal or interest;
(ix) With respect to the GMACM Mortgage Loans, the related Mortgage File
contains or will contain, in accordance with the definition of "Mortgage File"
in Appendix A to the Indenture, each of the documents and instruments specified
to be included therein (it being understood that the Custodian maintains the
Mortgage Note related to each Mortgage File and the Servicer maintains the
remainder of the items to be included in the Mortgage File pursuant to the terms
of this Agreement);
(x) To the best of the GMACM's knowledge, the related Mortgage Note and the
related Mortgage at the time it was made complied in all material respects with
applicable local, state and federal laws; (xi) A title search or other assurance
of title customary in the relevant jurisdiction was obtained with respect to
each Mortgage Loan;
(xii) None of the Mortgaged Properties is a mobile home or a manufactured
housing unit that is not permanently attached to its foundation;
(xiii) As of the Cut-Off Date, no more than approximately 35.32%, 5.81%, 5.64%
and 5.59% of the Mortgage Loans, by Cut-Off Date Principal Balance, are secured
by Mortgaged Properties located in California, Florida, New York and New Jersey,
respectively;
(xiv) As of the Cut-Off Date, the Combined Loan-to-Value Ratio for each Mortgage
Loan was not in excess of 100.00%;
(xv) GMACM has not transferred the GMACM Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud any of its creditors;
(xvi) As of the Cut-Off Date, no more than approximately 70% of the Mortgage
Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged Properties
which may have been appraised using a statistical property evaluation method and
all of the appraisals on such Mortgaged Properties have been delivered by
Basis100 Inc. (also known as Solimar);
(xvii) Within a loan type, and except as required by applicable law, each
Mortgage Note and each Mortgage is an enforceable obligation of the related
Mortgagor;
(xviii) .......To the best knowledge of GMACM, the physical property subject to
each Mortgage is free of material damage and is in acceptable repair;
(xix) GMACM has not received a notice of default of any senior mortgage loan
related to a Mortgaged Property which has not been cured by a party other than
the Servicer;
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(xx) None of the Mortgage Loans is a reverse mortgage loan;
(xxi) No Mortgage Loan has an original term to maturity in excess of 360 months;
(xxii) All of the Mortgage Loans are fixed rate and are fully amortizing. As of
the Cut-off Date, the Loan Rates on the Mortgage Loans range between 5.650% per
annum and 14.375% per annum. As of the Cut-Off Date, the weighted average Loan
Rate for the Mortgage Loans is approximately 8.800% per annum. The weighted
average remaining term to stated maturity of the Mortgage Loans as of the
Cut-Off Date is approximately 217 months;
(xxiii) .......(A) Each Mortgaged Property consists of a single parcel of real
property with a single family or two- to four-family residence erected thereon,
or an individual condominium unit, a unit in a planned development or a
townhouse; (B) with respect to the Mortgage Loans (a) approximately 12.48% (by
Cut-Off Date Principal Balance) are secured by real property improved by
individual condominium units or a unit in a planned development, (b)
approximately 86.13% (by Cut-Off Date Principal Balance) are secured by real
property with a single family residence erected thereon, (c) approximately 1.28%
(by Cut-Off Date Principal Balance) are secured by real property with a two- to
four-family residence erected thereon, (d) no mortgage loans are secured by real
property with a townhouses erected thereon and (e) 0.10% are secured by real
property improved by manufactured housing;
(xxiv) As of the Cut-Off Date no Mortgage Loan had a principal balance in excess
of $274,692.76;
(xxv) Approximately 90.83% of the Mortgage Loans, by aggregate Principal Balance
as of the Cut-Off Date, are secured by second liens;
(xxvi) A policy of hazard insurance and flood insurance, if applicable, was
required from the Mortgagor for the Mortgage Loan when the Mortgage Loan was
originated;
(xxvii) ....... To the best of GMACM's knowledge, without investigation, no
improvement located on or being part of the Mortgaged Property is in violation
of any applicable zoning law or regulation, and all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including but not limited to certificates of occupancy, have been made or
obtained from the appropriate authorities and the Mortgaged Property is lawfully
occupied under applicable law;
(xxviii) ......Other than with respect to a payment default, there is no
material default, breach, violation or event of acceleration existing under the
terms of any Mortgage Note or Mortgage and, to the best of GMACM's knowledge, no
event which, with notice and expiration of any grace or cure period, would
constitute a material default, breach, violation or event of acceleration under
the terms of any Mortgage Note or Mortgage, and no such material default,
breach, violation or event of acceleration has been waived by GMACM involved in
originating or servicing the related Mortgage Loan;
10
(xxix) No instrument of release or waiver has been executed by GMACM or, to the
best knowledge of GMACM, by any other person, in connection with the Mortgage
Loans, and no Mortgagor has been released by GMACM or, to the best knowledge of
GMACM, by any other person, in whole or in part from its obligations in
connection therewith;
(xxx) With respect to each Mortgage Loan secured by a second lien, either (a) no
consent for such Mortgage Loan was required by the holder or holders of the
related prior lien, (b) such consent has been obtained and is contained in the
related Mortgage File or (c) no consent for such Mortgage Loan was required by
relevant law;
(xxxi) None of the Mortgage Loans are "high cost loans", subject to the Home
Ownership and Equity Protection Act of 1994;
(xxxii) .......Each Mortgage Loan constitutes a "qualified mortgage" under
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1);
(xxxiii) ......GMACM used no selection procedures that identified Mortgage Loans
as being less desirable or valuable than other comparable mortgage loans
originated or acquired by GMACM under the GMACM Home Equity Program. The
Mortgage Loans are representative of GMACM's portfolio of fixed rate mortgage
loans that were originated under the GMACM Home Equity Program; and
(xxxiv) .......With respect to each Mortgage Loan, to the extent permitted by
applicable law, the related Mortgage contains a customary provision for the
acceleration of the payment of the unpaid Principal Balance of the Mortgage Loan
in the event the related Mortgaged Property is sold without the prior consent of
the mortgagee thereunder.
With respect to this Section 3.1(b), representations made by GMACM with
respect to the WG Trust Mortgage Loans, made as of the Cut-Off Date or the
Closing Date are made by GMACM in its capacity as Servicer. Representations made
by GMACM with respect to the WG Trust Mortgage Loans are made by GMACM in its
capacity as Servicer of the WG Trust Mortgage Loans under the Servicing
Agreement, dated as of May 1, 2001, by and between GMACM, Walnut Grove Loan
Trust 2001-A and Bank One, National Association.
(c) WG Trust Representations and Warranties. WG Trust represents and
warrants to the Purchaser, as of the Closing Date:
(I) As to WG Trust:
(i) WG Trust is a Delaware statutory trust duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(ii) WG Trust has the power and authority to make, execute, deliver and perform
its obligations under this Agreement and all of the transactions contemplated
under this Agreement and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
11
(iii) WG Trust is not required to obtain the consent of any other Person or any
consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or authorizations, or
registrations or declarations, as shall have been obtained or filed, as the case
may be;
(iv) The execution and delivery of this Agreement by WG Trust and its
performance and compliance with the terms of this Agreement will not violate WG
Trust's organizational documents or constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the material breach of, any material contract,
agreement or other instrument to which WG Trust is a party or which may be
applicable to WG Trust or any of its assets;
(v) No litigation before any court, tribunal or governmental body is currently
pending, or to the knowledge of WG Trust threatened, against WG Trust or with
respect to this Agreement that in the opinion of WG Trust has a reasonable
likelihood of resulting in a material adverse effect on the transactions
contemplated by this Agreement;
(vi) This Agreement to which it is a party constitutes a legal, valid and
binding obligation of WG Trust, enforceable against WG Trust in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors' rights in general and except as
such enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity) or by public policy with respect
to indemnification under applicable securities laws;
(vii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of WG Trust in and to the WG Trust
Mortgage Loans, including the Cut-Off Date Principal Balances with respect to
the WG Trust Mortgage Loans, all monies due or to become due with respect
thereto, and all proceeds of such Cut-Off Date Principal Balances with respect
to the WG Trust Mortgage Loans and such funds as are from time to time deposited
in the Custodial Account (excluding any investment earnings thereon) as assets
of the Trust and all other property specified in the definition of "Trust" as
being part of the corpus of the Trust conveyed to the Purchaser by WG Trust; and
(viii) WG Trust is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or otherwise) or operations of WG
Trust or its properties or might have consequences that would materially
adversely affect its performance hereunder.
(II) As to the WG Trust Mortgage Loans:
(i) With respect to the WG Trust Mortgage Loans (A) the related Mortgage Note
and the Mortgage have not been assigned or pledged, except for any assignment or
pledge that has been satisfied and released, (B) immediately prior to the
assignment of such Mortgage Loans to the Purchaser WG Trust had good title
12
thereto and (C) WG Trust is the sole owner and holder of the Mortgage Loan free
and clear of any and all liens, encumbrances, pledges, or security interests
(other than, with respect to any Mortgage Loan in a second lien position, the
lien of the related first mortgage) of any nature and has full right and
authority, under all governmental and regulatory bodies having jurisdiction over
the ownership of the applicable Mortgage Loans, to sell and assign the same
pursuant to this Agreement;
(ii) For each WG Trust Mortgage Loan the related Mortgage File contains or will
contain each of the documents and instruments specified to be included therein
in the definition of "Mortgage File" in Appendix A to the Indenture (it being
understood that the Custodian maintains the Mortgage Note related to each
Mortgage File and the Servicer maintains the remainder of the items to be
included in the Mortgage File pursuant to the terms of this Agreement);
(iii) WG Trust has not transferred the WG Trust Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of its creditors; and
(iv) No instrument of release or waiver has been executed by WG Trust in
connection with the WG Trust Mortgage Loans, and no Mortgagor has been released
by WG Trust, in whole or in part, from its obligations in connection therewith.
(d) Remedies. Upon discovery by either Seller or GMACM or upon notice from the
Purchaser, the Enhancer, the Issuer, the Owner Trustee, the Indenture Trustee or
the Custodian, as applicable, of a breach of such Seller's or GMACM's respective
representations or warranties in paragraphs (a) or (c)(I) above that materially
and adversely affects the interests of the Securityholders or the Enhancer, as
applicable, in any Mortgage Loan, GMACM or WG Trust, as applicable, shall,
within 90 days of its discovery or its receipt of notice of such breach, either
(i) cure such breach in all material respects or (ii) to the extent that such
breach is with respect to a Mortgage Loan or a Related Document, either (A)
repurchase such Mortgage Loan from the Issuer at the Repurchase Price, or (B)
substitute one or more Eligible Substitute Loans for such Mortgage Loan, in each
case in the manner and subject to the conditions and limitations set forth
below.
Upon discovery by either Seller or GMACM or upon notice from the
Purchaser, the Enhancer, the Issuer, GMACM, the Owner Trustee, the Indenture
Trustee or the Custodian, as applicable, of a breach of a Seller's or GMACM's
representations or warranties in paragraphs (b) or (c)(II) above, with respect
to any Mortgage Loan, or upon the occurrence of a Repurchase Event, that
materially and adversely affects the interests of the Securityholders, the
Enhancer or the Purchaser in such Mortgage Loan (notice of which shall be given
to the Purchaser by the respective Seller or GMACM, if it discovers the same),
notwithstanding such Seller's or GMACM's lack of knowledge with respect to the
substance of such representation and warranty, such Seller or GMACM, as the case
may be, shall, within 90 days after the earlier of its discovery or receipt of
notice thereof or, if such breach has the effect of making the Mortgage Loan
fail to be a "qualified mortgage" within the meaning of Section 860G of the
Internal Revenue Code, within 90 days after the discovery thereof by either such
Seller, the Servicer, the Enhancer, the Issuer, the Owner Trustee, the Indenture
Trustee or the Purchaser, either cure such breach or Repurchase Event in all
material respects or either (i) repurchase such Mortgage Loan from the Issuer at
13
the Repurchase Price, or (ii) substitute one or more Eligible Substitute Loans
for such Mortgage Loan, in each case in the manner and subject to the conditions
set forth below, provided that the Seller shall have the option to substitute an
Eligible Substitute Mortgage Loan or Loans for such Mortgage Loan only if such
substitution occurs within two years following the Closing Date. The Repurchase
Price for any such Mortgage Loan repurchased by such Seller or GMACM shall be
deposited or caused to be deposited by the Servicer into the Custodial Account.
Any purchase of a Mortgage Loan due to a Repurchase Event shall be the
obligation of GMACM.
In furtherance of the foregoing, if GMACM or the Seller that repurchases
or substitutes a Mortgage Loan is not a member of MERS and the Mortgage is
registered on the MERS(R) System, GMACM, at its own expense and without any
right of reimbursement, shall cause MERS to execute and deliver an assignment of
the Mortgage in recordable form to transfer the Mortgage from MERS to GMACM or
the Seller and shall cause such Mortgage to be removed from registration on the
MERS(R) System in accordance with MERS' rules and regulations.
In the event that either Seller elects to substitute an Eligible
Substitute Loan or Loans for a Deleted Loan pursuant to this Section 3.1, such
Seller shall deliver to the Custodian on behalf of the Issuer, with respect to
such Eligible Substitute Loan or Loans, the original Mortgage Note, endorsed as
required under the definition of "Mortgage File" and shall deliver the other
documents required to be part of the Mortgage File to the Servicer. No
substitution will be made in any calendar month after the Determination Date for
such month. Monthly Payments due with respect to Eligible Substitute Loans in
the month of substitution shall not be part of the Trust Estate and will be
retained by the Servicer and remitted by the Servicer to such Seller on the next
succeeding Payment Date, provided that a payment equal to the applicable Monthly
Payment for such month in respect of the Deleted Loan has been received by the
Issuer. For the month of substitution, distributions to the Note Payment Account
pursuant to the Servicing Agreement will include the Monthly Payment due on a
Deleted Loan for such month and thereafter such Seller shall be entitled to
retain all amounts received in respect of such Deleted Loan. The Servicer shall
amend or cause to be amended the Mortgage Loan Schedule to reflect the removal
of such Deleted Loan and the substitution of the Eligible Substitute Loan or
Loans and the Servicer shall deliver the amended Mortgage Loan Schedule to the
Owner Trustee, the Indenture Trustee and the Enhancer. Upon such substitution,
the Eligible Substitute Loan or Loans shall be subject to the terms of this
Agreement and the Servicing Agreement in all respects, GMACM shall be deemed to
have made the representations and warranties with respect to the Eligible
Substitute Loan contained herein set forth in Section 3.1(b) (other than clauses
(xiii), (xxii), (xxiii)(B), (xxiv) and (xxv) thereof and other than clauses
(iii) and (ix) thereof in the case of Eligible Substitute Loans substituted by
WG Trust), and, if the Seller is WG Trust, WG Trust shall be deemed to have made
the representations and warranties set forth in Section 3.1(c)(II), in each
case, as of the date of substitution, and the related Seller shall be deemed to
have made a representation and warranty that each Mortgage Loan so substituted
is an Eligible Substitute Loan as of the date of substitution. In addition,
GMACM shall be obligated to repurchase or substitute for any Eligible Substitute
Loan as to which a Repurchase Event has occurred as provided herein. In
connection with the substitution of one or more Eligible Substitute Loans for
one or more Deleted Loans, the Servicer shall determine the amount (such amount,
a "Substitution Adjustment Amount"), if any, by which the aggregate principal
balance of all such Eligible Substitute Loans as of the date of substitution is
less than the aggregate principal balance of all such Deleted Loans (after
14
application of the principal portion of the Monthly Payments due in the month of
substitution that are to be distributed to the Note Payment Account in the month
of substitution). Such Seller shall deposit the amount of such shortfall into
the Custodial Account on the date of substitution, without any reimbursement
therefor.
Upon receipt by the Indenture Trustee on behalf of the Issuer and the
Custodian of written notification, signed by a Servicing Officer, of the deposit
of such Repurchase Price or of such substitution of an Eligible Substitute Loan
(together with the complete related Mortgage File) and deposit of any applicable
Substitution Adjustment Amount as provided above, the Custodian, on behalf of
the Indenture Trustee, shall (i) release to such Seller or GMACM, as the case
may be, the related Mortgage Note for the Mortgage Loan being repurchased or
substituted for, (ii) cause the Servicer to release to such Seller any remaining
documents in the related Mortgage File which are held by the Servicer, and (iii)
the Indenture Trustee on behalf of the Issuer shall execute and deliver such
instruments of transfer or assignment prepared by the Servicer, in each case
without recourse, as shall be necessary to vest in such Seller or GMACM, as the
case may be, or its respective designee such Mortgage Loan released pursuant
hereto and thereafter such Mortgage Loan shall not be an asset of the Issuer.
It is understood and agreed that the obligation of each Seller and GMACM
to cure any breach, or to repurchase or substitute for any Mortgage Loan as to
which such a breach has occurred and is continuing, shall constitute the sole
remedy respecting such breach available to the Purchaser, the Issuer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against such Seller and GMACM.
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive delivery of the respective Mortgage
Files to the Issuer or the Custodian.
ARTICLE IV
SELLERS' COVENANTS
Section 4.1....Covenants of the Sellers. Each Seller hereby covenants that,
except for the transfer hereunder it will not sell, pledge, assign or transfer
to any other Person, or grant, create, incur or assume any Lien on any Mortgage
Loan, or any interest therein. Each Seller shall notify the Issuer, as assignee
of the Purchaser, of the existence of any Lien (other than as provided above) on
any Mortgage Loan immediately upon discovery thereof; and each Seller shall
defend the right, title and interest of the Issuer (in the case of the Mortgage
Loans, as assignee of the Purchaser) in, to and under the Mortgage Loans against
all claims of third parties claiming through or under such Seller; provided,
however, that nothing in this Section 4.1 shall be deemed to apply to any Liens
for municipal or other local taxes and other governmental charges if such taxes
or governmental charges shall not at the time be due and payable or if either
Seller shall currently be contesting the validity thereof in good faith by
appropriate Proceedings.
ARTICLE V
SERVICING
15
Section 5.1....Servicing. GMACM shall service the Mortgage Loans pursuant to the
terms and conditions of the Servicing Agreement and the Program Guide and shall
service the Mortgage Loans directly or through one or more sub-servicers in
accordance therewith.
ARTICLE VI
LIMITATION ON LIABILITY OF THE SELLERS
Section 6.1....Limitation on Liability of the Sellers. None of the directors,
officers, employees or agents of either GMACM or WG Trust shall be under any
liability to the Purchaser or the Issuer, it being expressly understood that all
such liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement. Except as and to the extent
expressly provided in the Servicing Agreement, GMACM and WG Trust shall not be
under any liability to the Issuer, the Owner Trustee, the Indenture Trustee or
the Securityholders. GMACM, WG Trust and any director, officer, employee or
agent of GMACM or WG Trust, 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.
ARTICLE VII
TERMINATION
Section 7.1....Termination. The obligations and responsibilities of the parties
hereto shall terminate upon the termination of the Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1....Amendment. This Agreement may be amended from time to time by the
parties hereto by written agreement with the prior written consent of the
Enhancer (which consent shall not be unreasonably withheld), provided that the
Servicer, the Indenture Trustee and the Enhancer shall have received an Opinion
of Counsel to the effect that such amendment will not result in an Adverse REMIC
Event.
Section 8.2....GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF OR OF ANY OTHER JURISDICTION (EXCEPT
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW) AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 8.3....Notices. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, postage prepaid, addressed as
follows:
(i) if to the GMACM:
16
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxx, Senior Vice President
Re:GMACM Home Equity Loan Trust 2002-HE4;
(ii) if to WG Trust:
Walnut Grove Mortgage Loan Trust 2001-A
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Walnut Grove Mortgage Loan
Trust 2001-A
Re:GMACM Home Equity Loan Trust 2002-HE4;
(iii) if to the Purchaser:
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:President
Re:GMACM Home Equity Loan Trust 2002-HE4;
(iv) if to the Indenture Trustee:
Xxxxx Fargo Bank Minnesota, N.A
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services - GMACM Home
Equity Loan Trust 2002-HE4;
(v) if to the Issuer:
c/o Wilmington Trust Company, as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re:GMACM Home Equity Loan Trust 2002-HE4; or
(vi) if to the Enhancer:
Financial Guaranty Insurance Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re:GMACM Home Equity Loan Trust 2002-HE4;
17
or, with respect to any of the foregoing Persons, at such other address as may
hereafter be furnished to the other foregoing Persons in writing.
Section 8.4....Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be held invalid for any
reason whatsoever, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity of enforceability of
the other provisions of this Agreement.
Section 8.5....Relationship of Parties. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture among the parties hereto,
and the services of the GMACM shall be rendered as an independent contractor and
not as agent for the Purchaser.
Section 8.6....Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts, together, shall constitute one and the same agreement.
Section 8.7....Further Agreements. The parties hereto each agree to execute and
deliver to the other such additional documents, instruments or agreements as may
be necessary or appropriate to effectuate the purposes of this Agreement.
Section 8.8....Intention of the Parties. It is the intention of the parties
hereto that the Purchaser will be purchasing on the Closing Date, and the
Sellers will be selling on the Closing Date, the Mortgage Loans, rather than the
Purchaser providing a loan to the Sellers secured by the Mortgage Loans on the
Closing Date. Accordingly, the parties hereto each intend to treat this
transaction for federal income tax purposes as (i) a sale by the Sellers, and a
purchase by the Purchaser, of the Mortgage Loans on the Closing Date. The
Purchaser and the Issuer shall each have the right to review the Mortgage Loans
and the Related Documents to determine the characteristics of the Mortgage Loans
which will affect the federal income tax consequences of owning the Mortgage
Loans, and each Seller shall cooperate with all reasonable requests made by the
Purchaser or the Issuer in the course of such review.
Section 8.9....Successors and Assigns; Assignment of this Agreement.
(a) This Agreement shall bind and inure to the benefit of and be enforceable by
the parties hereto and their respective permitted successors and assigns. The
obligations of each Seller under this Agreement cannot be assigned or delegated
to a third party without the consent of the Enhancer and the Purchaser which
consent shall be at the Purchaser's sole discretion; provided, that each Seller
may assign its obligations hereunder to any Affiliate of such Seller, to any
Person succeeding to the business of such Seller, to any Person into which such
Seller is merged and to any Person resulting from any merger, conversion or
consolidation to which such Seller is a party. The parties hereto acknowledge
that the Purchaser is acquiring the Mortgage Loans for the purpose of
contributing them to the GMACM Home Equity Loan Trust 2002-HE4.
(b) As an inducement to the Purchaser and the Issuer to purchase the Mortgage
Loans each Seller acknowledges and consents to (i) the assignment by the
Purchaser to the Issuer of all of the Purchaser's rights against each Seller
pursuant to this Agreement insofar as such rights relate to the Mortgage Loans
18
transferred to the Issuer and to the enforcement or exercise of any right or
remedy against either Seller pursuant to this Agreement by the Issuer, (ii) the
enforcement or exercise of any right or remedy against either Seller pursuant to
this Agreement by or on behalf of the Issuer and (iii) the Issuer's pledge of
its interest in this Agreement to the Indenture Trustee and the enforcement by
the Indenture Trustee of any such right or remedy against either Seller
following an Event of Default under the Indenture. Such enforcement of a right
or remedy by the Issuer, the Owner Trustee, the Enhancer or the Indenture
Trustee, as applicable, shall have the same force and effect as if the right or
remedy had been enforced or exercised by the Purchaser or the Issuer directly.
Section 8.10...Survival. The representations and warranties made herein by each
Seller and the provisions of Article VI hereof shall survive the purchase of the
Mortgage Loans hereunder.
Section 8.11...Third Party Beneficiary. The Enhancer shall be a third party
beneficiary hereof and shall be entitled to enforce the provisions of this
Agreement as if a party hereto.
19
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., as
Purchaser
By:
----------------------------------------------
Name:
Title:
GMAC MORTGAGE CORPORATION,
as Seller and Servicer
By:
---------------------------------------------
Name:
Title:
WALNUT GROVE MORTGAGE LOAN TRUST 2001-A, as Seller
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:
---------------------------------------------
Name:
Title:
GMACM HOME EQUITY LOAN TRUST 2002-HE4, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:
---------------------------------------------
Name:
Title:
S-1
XXXXX FARGO BANK MINNESOTA, N.A., as Indenture
Trustee
By:
----------------------------------------------
Name:
Title:
S-2
