EXHIBIT 10.2
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement") dated as of April
28, 2000 by and between GMAC Mortgage Corporation, a Pennsylvania corporation,
having an office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the "Seller")
and Residential Asset Mortgage Products, Inc., a Delaware corporation, and
having an office at 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000
(the "Purchaser").
The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase
from the Seller certain mortgage loans on a servicing-retained basis as
described herein (the "Mortgage Loans"). The following terms are defined as
follows:
Aggregate Principal Balance
(as of the Cut-Off Date): $256,338,579.67 (after deduction
of scheduled principal payments
due on or before the Cut-Off
Date, whether or not collected,
but without deduction of
prepayments that may have been
made but not reported to the
Seller as of the close of
business on such date).
Closing Date: April 28, 2000, or such other
date as may be agreed upon by
the parties hereto.
Cut-Off Date: April 1, 2000.
Mortgage Loan: A fixed rate, fully-amortizing,
first lien, residential conventional mortgage
loan having a term of not more than 30 years
and secured by Mortgaged Property.
Mortgaged Property: A single parcel of real property
on which is located a detached
single-family residence, a
two-to-four family dwelling, a
townhouse, an individual
condominium unit, or an
individual unit in a planned
unit development, or a
proprietary lease in a unit in a
cooperatively-owned apartment
building and stock in the
related cooperative corporation.
Pooling and Servicing The pooling and servicing
Agreement: agreement, dated as of April 28,
2000, among Residential Asset
Mortgage Products, Inc., as
company, GMAC Mortgage
Corporation, as servicer and
Norwest Bank Minnesota, National
Association, as trustee (the
"Trustee").
All capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement. The parties intend
hereby to set forth the terms and conditions upon which the proposed
transactions will be effected and, in consideration of the premises and the
mutual agreements set forth herein, agree as follows:
Section 1. Agreement to Sell and Purchase Mortgage Loans. The Seller agrees to
sell to the Purchaser and the Purchaser agrees to purchase from the Seller
certain Mortgage Loans having an aggregate amount equal to the Aggregate
Principal Balance as of the Cut-Off Date.
Section 2. Mortgage Loan Schedule. The Seller has provided to the Purchaser a
schedule setting forth all of the Mortgage Loans to be purchased on the Closing
Date under this Agreement, which shall be attached hereto as Schedule I (the
"Mortgage Loan Schedule").
Section 3. Purchase Price of Mortgage Loans. The purchase price (the "Purchase
Price") to be paid to the Seller by the Purchaser for the Mortgage Loans shall
be the sume of(i) $247,576,895.78 and (ii) the Class IO Certificates, the Class
PO Certificates, and a 0.01% Percentage Interest in the Class R Certificates
issued pursuant to the Pooling and Servicing Agreement. The cash portion of the
purchase price shall be paid by wire transfer of immediately available funds on
the Closing Date to the account specified by the Seller.
The Purchaser and Seller intend that the conveyance by the Seller to the
Purchaser of all its right, title and interest in and to the Mortgage Loans
pursuant to this Agreement shall be, and be construed as, a sale of the Mortgage
Loans by the Seller to the Purchaser. It is, further, not intended that such
conveyance be deemed to be a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that the Mortgage Loans are held to be property of the Seller, or if for
any reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans, then it is intended that (a) this Agreement shall be a security
agreement within the meaning of Articles 8 and 9 of the Pennsylvania Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in this Section shall be deemed to
be, and hereby is, a grant by the Seller to the Purchaser of a security interest
in all of the Seller's right, title and interest, whether now owned or hereafter
acquired, in and to any and all general intangibles, accounts, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property consisting of,
arising from or relating to any of the following: (A) the Mortgage Loans,
including (i) with respect to each Cooperative Loan, the related Mortgage Note,
Security Agreement, Assignment of Proprietary Lease, Cooperative Stock
Certificate, Cooperative Lease, any insurance policies and all other documents
in the related Mortgage File and (ii) with respect to each Mortgage Loan other
than a Cooperative Loan, the related Mortgage Note, the Mortgage, any insurance
policies and all other documents in the related Mortgage File, (B) all monies
due or to become due pursuant to the Mortgage Loans in accordance with the terms
thereof and (C)
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all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts from time to time held or invested in the Payment Account or the
Custodial Account, whether in the form of cash, instruments, securities or other
property; (c) the possession by the Trustee, the Custodian or any other agent of
the Trustee of Mortgage Notes or such other items of property as constitute
instruments, money, negotiable documents, letters of credit, advices of credit,
investment property or chattel paper shall be deemed to be "possession by the
secured party," or possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security interest pursuant to the
Pennsylvania Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction (including, without limitation, Sections 8-106,
9-305 and 9-115 thereof); and (d) notifications to persons holding such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for, (as applicable) the Trustee for the purpose of perfecting such
security interest under applicable law. The Seller shall, to the extent
consistent with this Agreement, take such reasonable actions as may be necessary
to ensure that, if this Agreement were determined to create a security interest
in the Mortgage Loans and the other property described above, such security
interest would be determined to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. Without limiting the generality of the foregoing, the Seller
shall prepare and deliver to the Purchaser not less than 15 days prior to any
filing date, and the Purchaser shall file, or shall cause to be filed, at the
expense of the Seller, all filings necessary to maintain the effectiveness of
any original filings necessary under the Uniform Commercial Code as in effect in
any jurisdiction to perfect the Purchaser's security interest in or lien on the
Mortgage Loans, including without limitation (x) continuation statements, and
(y) such other statements as may be occasioned by (1) any change of name of the
Seller or the Purchaser, (2) any change of location of the place of business or
the chief executive office of the Seller, or (3) any transfer of any interest of
the Seller in any Mortgage Loan.
Notwithstanding the foregoing, (i) the Seller in its capacity as Servicer shall
retain all servicing rights (including, without limitation, primary servicing
and master servicing) relating to or arising out of the Mortgage Loans, and all
rights to receive servicing fees, servicing income and other payments made as
compensation for such servicing granted to it under the Pooling and Servicing
Agreement pursuant to the terms and conditions set forth therein (collectively,
the "Servicing Rights") and (ii) the Servicing Rights are not included in the
collateral in which the Seller grants a security interest pursuant to the
immediately preceding paragraph.
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Section 4. Record Title and Possession of Mortgage Files. The Seller hereby
sells, transfers, assigns, sets over and conveys to the Purchaser, without
recourse, but subject to the terms of this Agreement and the Seller hereby
acknowledges that the Purchaser, subject to the terms of this Agreement, shall
have all the right, title and interest of the Seller in and to the Mortgage
Loans. The delivery of each Mortgage File (as defined below) to the Purchaser or
its designee is at the expense of the Seller. From the Closing Date, but as of
the Cut-off Date, the ownership of each Mortgage Loan, including the Mortgage
Note, the Mortgage, the contents of the related Mortgage File and all rights,
benfits, proceeds and obligations arising therefrom or in connection therewith,
has been vested in the Purchaser. All rights arising out of the Mortgage Loans
including, but not limited to, all funds received on or in connection with the
Mortgage Loans and all records or documents with respect to the Mortgage Loans
prepared by or which come into the possession of the Seller shall be received
and held by the Seller in trust for the exclusive benefit of the Purchaser as
the owner of the Mortgage Loans. On and after the Closing Date, any portion of
the related Mortgage Files or servicing files related to the Mortgage Loans (the
"Servicing Files") in Seller's possession shall be held by Seller in a custodial
capacity only for the benefit of the Purchaser. The Seller shall release its
custody of any contents of the related Mortgage Files or Servicing Files only in
accordance with written instructions of the Purchaser or the Purchaser's
designee.
Section 5. Books and Records. The sale of each Mortgage Loan has been reflected
on the Seller's balance sheet and other financial statements as a sale of assets
by the Seller. The Seller shall be responsible for maintaining, and shall
maintain, a complete set of books and records for the Mortgage Loans which shall
be appropriately identified in the Seller's computer system to clearly reflect
the ownership of the Mortgage Loans by the Purchaser.
Section 6. Delivery of Mortgage FilesS. Within five (5) Business Days prior to
the Closing Date, the Sekker will deliver the Mortgage File with respect to each
Mortgage Loan to the Purchaser or its designee, as directed by the Purchaser.
The "Mortgage File" means, (I) with respect to each Mortgage Loan (other than a
Cooperative Loan):
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(a) The original Mortgage Note, endorsed without recourse in blank, or in
the name of the Trustee as trustee, and signed by an authorized
officer (which endorsement shall contain either an original signature
or a facsimile signature of an authorized officer of the Seller, and
if in the form of an allonge, the allonge shall be stapled to the
Mortgage Note), with all intervening endorsements showing a complete
chain of title from the originator to the Seller. If the Mortgage Loan
was acquired by the endorser in a merger, the endorsement must be by "
____________________, successor by merger to [name of predecessor]".
If the Mortgage Loan was acquired or originated by the endorser while
doing business under another name, the endorsement must be by
"___________________ formerly known as [previous name]";
(b) The original Mortgage, noting the presence of the MIN of the Mortgage
Loan, if the Mortgage is registered on the MERS(R) System, and
language indicating that the Mortgage Loan is a MOM Loan if the
Mortgage Loan is a MOM Loan, with evidence of recording indicated
thereon or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded;
(c) The original of any guarantee executed in connection with the Mortgage
Note, if applicable;
(d) Any rider or the original of any modification agreement executed in
connection with the related Mortgage Note or Mortgage, with evidence
of recording if required by applicable law;
(e) Unless the Mortgage Loan is registered on the MERS(R) System, an
original Assignment or Assignments of the Mortgage (which may be
included in a blanket assignment or assignments) from the Seller to
"Norwest Bank Minnesota, National Association, as Trustee under that
certain Pooling and Servicing Agreement dated as of April 28, 2000,
for GMACM Mortgage Pass-Through Certificates, Series 2000-J1" c/o the
Servicer at an address specified by the Servicer, and signed by an
authorized officer, which assignment shall be in form and substance
acceptable for recording. If the Mortgage Loan was acquired by the
assignor in a merger, the assignment must be by "_________________ ,
successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the assignor while doing business under
another name, the assignment must be by "_________________ formerly
known as [previous name]";
(f) Originals of all intervening assignments of mortgage, which together
with the Mortgage shows a complete chain of title from the originator
to the Seller (or to MERS, if the Mortgage Loan is registered on the
MERS(R) System, and which notes the presence of a MIN), with evidence
of recording thereon;
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(g) The original mortgagee policy of title insurance, including riders and
endorsements thereto, or if the policy has not yet been issued, (i) a
written commitment or interim binder for title issued by the title
insurance or escrow company dated as of the date the Mortgage Loan was
funded, with a statement by the title insurance company or closing
attorney that the priority of the lien of the related Mortgage during
the period between the date of the funding of the related Mortgage
Loan and the date of the related title policy (which title policy
shall be dated the date of recording of the related Mortgage) is
insured, (ii) a preliminary title report issued by a title insurer in
anticipation of issuing a title insurance policy which evidences
existing liens and gives a preliminary opinion as to the absence of
any encumbrance on title to the Mortgaged Property, except liens to be
removed on or before purchase by the Mortgagor or which constitute
customary exceptions acceptable to lenders generally or (iii) other
evidence of title insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac,
in accordance with the Xxxxxx Mae Seller/Servicer Guide or Xxxxxxx Mac
Seller/Servicer Guide, respectively;
(h) A certified true copy of any power of attorney, if applicable; and
(i) Originals of any security agreement, chattel mortgage or the
equivalent executed in connection with the Mortgage, if any;
and (II) with respect to each Cooperative Loan:
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(a) The original Mortgage Note, endorsed without recourse to the order of
the Trustee and showing an unbroken chain of endorsements from the
originator thereof to the Seller;
(b) A counterpart of the Cooperative Lease and the Assignment of
Proprietary Lease to the originator of the Cooperative Loan with
intervening assignments showing an unbroken chain of title from such
originator to the Trustee;
(c) The related Cooperative Stock Certificate, representing the related
Cooperative Stock pledged with respect to such Cooperative Loan,
together with an undated stock power (or other similar instrument)
executed in blank;
(d) The original recognition agreement by the Cooperative of the
interests of the mortgagee with respect to the related
Cooperative Loan;
(e) The Security Agreement;
(f) Copies of the original UCC-1 financing statement, and any continuation
statements, filed by the originator of such Cooperative Loan as
secured party, each with evidence of recording thereof, evidencing the
interest of the originator under the Security Agreement and the
Assignment of Proprietary Lease;
(g) Copies of the filed UCC-3 assignments of the security interest
referenced in clause (f) above showing an unbroken chain of title from
the originator to the Trustee, each with evidence of recording
thereof, evidencing the interest of the originator under the Security
Agreement and the Assignment of Proprietary Lease;
(h) An executed assignment of the interest of the originator in the
Security Agreement, Assignment of Proprietary Lease and the
recognition agreement referenced in clause (d) above, showing an
unbroken chain of title from the originator to the Trustee;
(i) The original of each modification, assumption agreement or preferred
loan agreement, if any, relating to such Cooperative Loan; and
(j) An executed UCC-1 financing statement showing the Seller as debtor,
the Purchaser as secured party and the Trustee as assignee and an
executed UCC-1 financing statement showing the Purchaser as debtor and
the Trustee as secured party, each in a form sufficient for filing,
evidencing the interest of such debtors in the Cooperative Loans.
In the event that in connection with any Mortgage Loan the Seller cannot deliver
(a) the original recorded Mortgage (or evidence of submission to the recording
office), (b) all interim recorded assignments, (c) the original recorded
modification agreement, if required, or (d) the original lender's title
insurance policy (together with all riders thereto) satisfying the requirements
of clause (I)(b), (d), (f) or (g) above, respectively, concurrently with the
execution and delivery hereof because such document or documents have not been
returned from the applicable public recording office in the case of clause
(I)(b), (d) or (f) above, or because the title policy has not been delivered to
either the Purchaser or the Seller by the title insurer in the case of clause
(I)(g)
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above, the Seller shall use its best efforts to deliver to the Custodian, if
any, or the Trustee, in the case of clause (I)(b), (d) or (f) above, such
original Mortgage, such interim assignment, with evidence of recording indicated
thereon upon receipt thereof from the public recording office, or a copy
thereof, certified, if appropriate, by the relevant recording office, but in no
event shall any such delivery of the original Mortgage and each such interim
assignment or a copy thereof, certified, if appropriate, by the relevant
recording office, or the original lender's title policy be made later than one
(1) year following the Closing Date; provided, however, in the event the Seller
is unable to deliver by such dates each Mortgage and each such interim
assignment by reason of the fact that any such documents have not been returned
by the appropriate recording office, or, in the case of each such interim
assignment, because the related Mortgage has not been returned by the
appropriate recording office, the Seller shall deliver such documents to the
Custodian, if any, or the Trustee as promptly as possible upon receipt thereof
and, in any event, within 540 days following the Closing Date. In lieu of the
Mortgage Notes relating to the Mortgage Loans, each as identified in the list
delivered by the Seller to the Trustee or Custodian on the Closing Date, the
Seller may deliver a lost note affidavit from the Seller stating that the
original Mortgage Note was lost, misplaced or destroyed, and, if available, a
copy of each original Mortgage Note; provided, however, that in the case of
Mortgage Loans which have been prepaid in full after the Cut-off Date and prior
to the Closing Date, the Seller, in lieu of delivering the above documents, may
deliver to the Custodian, if any, or the Trustee a certification to such effect
and shall deposit all amounts paid in respect of such Mortgage Loan in the
Payment Account on the Closing Date. In any event, if such documents are not
delivered by the 540th day after the Closing Date, the Seller shall repurchase
the related Mortgage Loans at the Purchase Price or substitute for such Mortgage
Loans one or more Qualified Substitute Mortgage Loans in accordance with Section
7.03 hereof.
In connection with any Mortgage Loan, if the Seller cannot deliver the Mortgage,
any assignment, modification, assumption agreement or preferred loan agreement
(or copy thereof certified by the public recording office) with evidence of
recording thereon concurrently with the execution and delivery of this Agreement
because of (i) a delay caused by the public recording office where such
Mortgage, assignment, modification, assumption agreement or preferred loan
agreement as the case may be, has been delivered for recordation, or (ii) a
delay in the receipt of certain information necessary to prepare the related
assignments, the Seller shall deliver or cause to be delivered to the Custodian,
if any, or the Trustee a true and correct photocopy of such Mortgage,
assignment, modification, assumption agreement or preferred loan agreement.
If any assignment is lost or returned unrecorded to the Trustee or Custodian
because of any defect therein, the Seller shall prepare a substitute assignment
or cure such defect, as the case may be, and the Servicer shall cause such
assignment to be recorded in accordance with this Section.
If the Purchaser discovers any defect with respect to a Mortgage File, the
Purchaser shall give prompt written specification of such defect to the Seller,
and the Seller shall cure or repurchase such Mortgage Loan or substitute a
Qualified Substitute Mortgage Loan in the manner set forth in Section 7.03.
If the Seller is notified that any document or documents constituting a part of
a Mortgage File are missing or defective in any material respect, the Seller
shall cure any such defect within 90 days
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from the date on which the Seller was notified of such defect, and if the Seller
does not cure such defect in all material respects during such period, upon
receipt of a request by the Trustee on behalf of the Certificateholders, the
Seller shall either (i) substitute for such Mortgage Loan a Qualified Substitute
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 7.03 herein, or (ii) purchase
such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days
after the date on which the Seller was notified of such defect; provided that if
such defect would cause the Mortgage Loan to be other than a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code, any such cure,
substitution or repurchase must occur within 90 days from the date such breach
was discovered. It is understood and agreed that the obligation of the Seller to
cure a material defect in, or substitute for, or purchase any Mortgage Loan as
to which a material defect in a constituent document exists shall constitute the
sole remedy respecting such defect available to Certificateholders or the
Trustee on behalf of Certificateholders.
Section 7. REPRESENTATIONS AND WARRANTIES.
Section 7.01 Representations and Warranties of Seller.
The Seller represents, warrants and covenants to the Purchaser that as of
the Closing Date or as of such date specifically provided herein:
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(a) The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania and is or will be in
compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan;
(b) The Seller has the power and authority to make, execute, deliver and perform
its obligations under this Agreement and all of the transactions contemplated
under this Agreement, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement; this Agreement
constitutes a legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a proceeding at law or in
equity) or by public policy with respect to indemnification under applicable
securities laws;
(c) The execution and delivery of this Agreement by the Seller and its
performance and compliance with the terms of this Agreement will not violate the
Seller's Certificate of Incorporation or Bylaws or constitute a material default
(or an event which, with notice or lapse of time, or both, would constitute a
material default) under, or result in the material breach of, any material
contract, agreement or other instrument to which the Seller is a party or which
may be applicable to the Seller or any of its assets;
(d) No litigation before any court, tribunal or governmental body is currently
pending, nor to the knowledge of the Seller is threatened against the Seller,
nor is there any such litigation currently pending, nor to the knowledge of the
Seller threatened against the Seller with respect to this Agreement that in the
opinion of the Seller has a reasonable likelihood of resulting in a material
adverse effect on the transactions contemplated by this Agreement;
(e) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by the
Seller of or compliance by the Seller with this Agreement, the sale of the
Mortgage Loans or the consummation of the transactions contemplated by this
Agreement except for consents, approvals, authorizations and orders which have
been obtained;
(f) The consummation of the transactions contemplated by this Agreement is in
the ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to
this Agreement are not subject to bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(g) The Seller did not select such Mortgage Loans in a manner that it reasonably
believed was adverse to the interests of the Purchaser based on the Seller's
portfolio of conventional non-conforming Mortgage Loans;
(h) The Seller will treat the sale of the Mortgage Loans to the Purchaser as a
sale for reporting and accounting purposes and, to the extent appropriate, for
federal income tax purposes;
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(i) The Seller is an approved seller/servicer of residential mortgage loans for
Xxxxxx Mae and Xxxxxxx Mac. The Seller is in good standing to sell mortgage
loans to and service mortgage loans for Xxxxxx Mae and Xxxxxxx Mac and no event
has occurred which would make the Seller unable to comply with eligibility
requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx
Mac; and
(j) No written statement, report or other document furnished or to be furnished
pursuant to the Agreement contains or will contain any statement that is or will
be inaccurate or misleading in any material respect.
Section 7.02 Representations and Warranties as to Individual Mortgage Loans.
The Seller hereby represents and warrants to the Purchaser, as to each Mortgage
Loan, as of the Closing Date, as follows:
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(a) The information set forth in the Mortgage Loan Schedule is true, complete
and correct in all material respects as of the Cut-Off Date;
(b) The original mortgage, deed of trust or other evidence of indebtedness (the
"Mortgage") creates a first lien on an estate in fee simple in real property
securing the related Mortgage Note, free and clear of all adverse claims, liens
and encumbrances having priority over the first lien of the Mortgage subject
only to (1) the lien of non-delinquent current real property taxes and
assessments not yet due and payable, (2) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date of
recording which are acceptable to mortgage lending institutions generally, and
(3) other matters to which like properties are commonly subject which do not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property;
(c) The Mortgage Loan has not been delinquent thirty (30) days or more at any
time during the twelve (12) month period prior to the Cut-off Date for such
Mortgage Loan. As of the Closing Date, the Mortgage Loan is not delinquent in
payment more than 30 days and has not been dishonored; there are no defaults
under the terms of the Mortgage Loan; and the Seller has not advanced funds, or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the Mortgaged Property subject to the Mortgage, directly or
indirectly, for the payment of any amount required by the Mortgage Loan;
(d) There are no delinquent taxes which are due and payable, ground rents,
assessments or other outstanding charges affecting the related Mortgaged
Property;
(e) The terms of the note or other evidence of indebtedness (the "Mortgage
Note") of the related obligor (the "Mortgagor") and the Mortgage have not been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation is
required by applicable law or is necessary to protect the interests of the
Purchaser, and which have been approved by the title insurer and the primary
mortgage insurer, as applicable, and copies of which written instruments are
included in the Mortgage File. No other instrument of waiver, alteration or
modification has been executed, and no Mortgagor has been released, in whole or
in part, from the terms thereof except in connection with an assumption
agreement, which assumption agreement is part of the Mortgage File and the terms
of which are reflected on the Mortgage Loan Schedule;
(f) The Mortgage Note and the Mortgage are not subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of the Mortgage Note and the
Mortgage, or the exercise of any right thereunder, render the Mortgage Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto;
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(g) All buildings upon the Mortgaged Property are insured by a generally
acceptable insurer pursuant to standard hazard policies conforming to the
requirements of Xxxxxx Xxx and Xxxxxxx Mac. All such standard hazard policies
are in effect and on the date of origination contained a standard mortgagee
clause naming the Seller and its successors in interest as loss payee and such
clause is still in effect. If the Mortgaged Property is located in an area
identified by the Federal Emergency Management Agency as having special flood
hazards under the Flood Disaster Protection Act of 1973, as amended, such
Mortgaged Property is covered by flood insurance by a generally acceptable
insurer in an amount not less than the requirements of Xxxxxx Mae and Xxxxxxx
Mac. The Mortgage obligates the Mortgagor thereunder to maintain all such
insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to
do so, authorizes the holder of the Mortgage to maintain such insurance at the
Mortgagor's cost and expense and to seek reimbursement therefor from the
Mortgagor;
(h) Any and all requirements of any federal, state or local law including,
without limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity or disclosure laws
applicable to the Mortgage Loan have been complied with in all material
respects;
(i) The Mortgage has not been satisfied, canceled or subordinated, in whole or
in part, or rescinded, and the Mortgaged Property has not been released from the
lien of the Mortgage, in whole or in part nor has any instrument been executed
that would effect any such satisfaction, release, cancellation, subordination or
rescission;
(j) The Mortgage Note and the related Mortgage are original and genuine and each
is the legal, valid and binding obligation of the maker thereof, enforceable in
all respects in accordance with its terms subject to bankruptcy, insolvency and
other laws of general application affecting the rights of creditors. All parties
to the Mortgage Note and the Mortgage had the legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage. The
Mortgage Note and the Mortgage have been duly and properly executed by such
parties. The proceeds of the Mortgage Note have been fully disbursed and there
is no requirement for future advances thereunder;
(k) Immediately prior to the transfer and assignment to the Purchaser, the
Mortgage Note and the Mortgage were not subject to an assignment or pledge, and
the Seller had good and marketable title to and was the sole owner thereof and
had full right to transfer and sell the Mortgage Loan to the Purchaser free and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest;
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(l) The Mortgage Loan is covered by an ALTA lender's title insurance policy or
other generally acceptable form of policy of insurance, with all necessary
endorsements, issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject to the
exceptions contained in clause (b) (1), (2) and (3) above) the Seller, its
successors and assigns, as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan. Such title insurance policy
affirmatively insures ingress and egress and against encroachments by or upon
the Mortgaged Property or any interest therein. The Seller is the sole insured
of such lender's title insurance policy, such title insurance policy has been
duly and validly endorsed to the Purchaser or the assignment to the Purchaser of
the Seller's interest therein does not require the consent of or notification to
the insurer and such lender's title insurance policy is in full force and effect
and will be in full force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the related Mortgage has done, by
act or omission, anything which would impair the coverage of such lender's title
insurance policy;
(m) To the Seller's knowledge, there is no default, breach, violation or event
of acceleration existing under the Mortgage or the related Mortgage Note and no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event
permitting acceleration; and neither the Seller nor any prior mortgagee has
waived any default, breach, violation or event permitting acceleration;
(n) To the Seller's knowledge, there are no mechanics, or similar liens or
claims which have been filed for work, labor or material affecting the related
Mortgaged Property which are or may be liens prior to or equal to the lien of
the related Mortgage;
(o) To the Seller's knowledge, all improvements lie wholly within the boundaries
and building restriction lines of the Mortgaged Property (and wholly with the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (l) above and all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(p) The Mortgage Loan is a "qualified mortgage" under Section 860(G)(a)(3)(A) of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
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(q) The Mortgage Loan was originated by the Seller or by an eligible
correspondent of the Seller. The Mortgage Loan complies in all material respects
with all the terms, conditions and requirements of the Seller's underwriting
standards in effect at the time of origination of such Mortgage Loan. Except as
otherwise set forth on the Mortgage Loan Schedule, the Mortgage Loans were
originated with full or alternative documentation. The Mortgage Notes and
Mortgages are on uniform Xxxxxx Xxx/Xxxxxxx Mac instruments or are on forms
acceptable to Xxxxxx Mae or Xxxxxxx Mac;
(r) The Mortgage Loan contains the usual and enforceable provisions of the
originator at the time of origination for the acceleration of the payment of the
unpaid principal amount if the related Mortgaged Property is sold without the
prior consent of the mortgagee thereunder. The Mortgage Loan has an original
term to maturity of not more than 30 years, with interest payable in arrears on
the first day of each month. Except as otherwise set forth on the Mortgage Loan
Schedule, the Mortgage Loan does not contain terms or provisions which would
result in negative amortization nor contain "graduated payment" features or
"buydown" features;
(s) To the Seller's knowledge, the Mortgaged Property at origination of the
Mortgage Loan was and currently is free of damage and waste and at origination
of the Mortgage Loan there was, and there currently is, no proceeding pending
for the total or partial condemnation thereof;
(t) The related Mortgage contains enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (1) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (2) otherwise by judicial foreclosure. To the Seller's
knowledge, there is no homestead or other exemption available to the Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage;
(u) If the Mortgage constitutes a deed of trust, a trustee, duly qualified if
required under applicable law to act as such, has been properly designated and
currently so serves and is named in the Mortgage, and no fees or expenses are or
will become payable by the Purchaser to the trustee under the deed of trust,
except in connection with a trustees sale or attempted sale after default by the
Mortgagor;
(v) If required by the applicable processing style, the Mortgage File contains
an appraisal of the related Mortgaged Property made and signed prior to the
final approval of the mortgage loan application by an appraiser that is
acceptable to Xxxxxx Mae or Xxxxxxx Mac and approved by the Seller. The
appraisal, if applicable, is in a form generally acceptable to Xxxxxx Mae or
Xxxxxxx Mac;
(w) To the Seller's knowledge, each of the Mortgaged Properties consists of a
single parcel of real property with a detached single-family residence erected
thereon, or a two- to four-family dwelling, a townhouse, an individual
condominium unit in a condominium project, an individual unit in a planned unit
development or a proprietary lease on a cooperatively owned apartment and stock
in the related cooperative corporation. Any condominium unit or planned unit
development either conforms with applicable Xxxxxx Mae or Xxxxxxx Mac
requirements regarding such dwellings or is covered by a waiver confirming that
such condominium unit or planned unit development is acceptable to Xxxxxx Mae or
Xxxxxxx Mac or is otherwise "warrantable" with respect thereto. No such
residence is a mobile home or manufactured dwelling;
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(x) The ratio of the original outstanding principal amount of the Mortgage Loan
to the lesser of the appraised value (or stated value if an appraisal was not a
requirement of the applicable processing style) of the Mortgaged Property at
origination or the purchase price of the Mortgaged Property securing each
Mortgage Loan (the "Loan-to-Value Ratio") is not in excess of 95.00%. The
original Loan-to-Value Ratio of each Mortgage Loan either was not more than
80.00% or the excess over 80.00% is insured as to payment defaults by a primary
mortgage insurance policy issued by a primary mortgage insurer acceptable to
Xxxxxx Mae and Xxxxxxx Mac;
(y) The Assignment of Mortgage is in recordable form and is acceptable for
recording under the laws of the jurisdiction in which the Mortgaged Property is
located;
(z) The Seller is either, and each Mortgage Loan was originated by, a savings
and loan association, savings bank, commercial bank, credit union, insurance
company or similar institution which is supervised and examined by a federal or
State authority, or by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Section 203 and 211 of the National Housing Act;
(aa) The origination, collection and servicing practices with respect to each
Mortgage Note and Mortgage have been in all material respects legal, normal and
usual in the Seller's general mortgage servicing activities. With respect to
escrow deposits and payments that the Seller collects, all such payments are in
the possession of, or under the control of, the Seller, and there exist no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or other charges or
payments due under the Mortgage Note have been capitalized under any Mortgage or
the related Mortgage Note; and
(bb) No fraud or misrepresentation of a material fact with respect to the
origination of a Mortgage Loan has taken place on the part of the Seller.
Section 7.03 Repurchase.
It is understood and agreed that the representations and warranties set forth in
Sections 7.01 and 7.02 shall survive the sale of the Mortgage Loans to the
Purchaser and delivery of the related Mortgage File to the Purchaser or its
designee and shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or qualified endorsement on any Mortgage Note or Assignment of
Mortgage or the examination of any Mortgage File. Upon discovery by either the
Seller or the Purchaser of a breach of any of the foregoing representations and
warranties which materially and adversely affects interests of the Purchaser or
its assignee in any Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other. If the substance of any representation or
warranty has been breached, the repurchase obligation set forth in the
provisions of this Section 7.03 shall apply notwithstanding any qualification as
to the Seller's knowledge. Following discovery or receipt of notice of any such
breach, the Seller shall either (i) cure such breach in all material respects
within 90 days from the date the Seller was notified of such breach or (ii)
repurchase such Mortgage Loan at the related Purchase Price; provided, however,
that the Seller shall have the option to substitute a Qualified Substitute
Mortgage Loan or Loans for such Mortgage Loan if such substitution occurs within
two years following the Closing Date; and provided further that if the breach
would cause the Mortgage Loan to be other than a "qualified mortgage" as defined
in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution
must occur within 90 days from the earlier of the date the breach was discovered
or receipt of notice of any such breach. In the event that any such breach shall
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involve any representation or warranty set forth in Section 7.01 or those
relating to the Mortgage Loans or a portion thereof in the aggregate, and such
breach cannot be cured within ninety days of the earlier of either discovery by
or notice to the Seller of such breach, all Mortgage Loans affected by the
breach shall, at the option of the Purchaser, be repurchased by the Seller at
the Purchase Price or substituted for in accordance with this Section 7.03. If
the Seller elects to substitute a Qualified Substitute Mortgage Loan or Loans
for a Deleted Mortgage Loan pursuant to this Section 7.03, the Seller shall
deliver to the Purchaser with respect to such Qualified Substitute Mortgage Loan
or Loans, the original Mortgage Note, the Mortgage, an Assignment of the
Mortgage in recordable form if required pursuant to Section 6, and such other
documents and agreements as are required by Section 6, with the Mortgage Note
endorsed as required by Section 6. No substitution will be made in any calendar
month after the Determination Date for such month. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of substitution
shall not be part of the Trust Fund and will be retained by the Servicer and
remitted by the Servicer to the Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to the Certificateholders will
include the Monthly Payment due on a Deleted Mortgage Loan for such month and
thereafter the Seller shall be entitled to retain all amounts received in
respect of such Deleted Mortgage Loan. Upon such substitution, the Qualified
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, the Seller shall be deemed to have made the
representations and warranties contained in this Agreement with respect to the
Qualified Substitute Mortgage Loan or Loans and that such Mortgage Loans so
substituted are Qualified Substitute Mortgage Loans as of the date of
substitution.
In the event of a repurchase by the Seller pursuant to this Section 7.03, the
Purchaser shall forward or cause to be forwarded the Mortgage File for the
related Mortgage Loan to the Seller, which shall include the Mortgage Note
endorsed without recourse to the Seller or its designee, an assignment in favor
of the Seller or its designee of the Mortgage in recordable form and acceptable
to the Seller in form and substance and such other documents or instruments of
transfer or assignment as may be necessary to vest in the Seller or its designee
title to any such Mortgage Loan. The Purchaser shall cause the related Mortgage
File to be forwarded to Seller immediately after receipt of the related Purchase
Price by wire transfer of immediately available funds to an account specified by
the Purchaser.
It is understood and agreed that the obligation of the Seller to cure such
breach or purchase (or to substitute for) such Mortgage Loan as to which such a
breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Purchaser or its assignee.
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Section 8. Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given when deposited, postage
prepaid, in the United States mail, if mailed by registered or certified mail,
return receipt requested, or when received, if delivered by private courier to
another party, at the related address shown on the first page hereof, or such
other address as may hereafter be furnished to the parties by like notice.
Section 9. Separability Clause. Any provision of this Agreement which is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdication shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdicition as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
Section 10. Counterparts; Entire Agreement. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original, and all such counterparts shall constitute one and the same
instrument. This Agreement is the entire Agreement between the parties relating
to the subject matter hereof and supersedes any prior Agreement or
communications between the parties.
Section 11. Place of Delivery and Governing Law. This Agreement shall be deemed
in effect when counterparts hereof have been executed by each of the parties
hereto. This Agreement shall be deemed to have been made in the State of New
York. This Agreement shall be construed in accordance with the laws of the State
of New York and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with the laws of the State of New York,
without giving effect to its conflict of law rules.
Section 12. Successors and Assigns; Assignment of Agreement. This Agreement
shall bind and inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns; provided that this Agreement may
not be assigned, pledged or hypothecated by the Seller to a third party without
the prior written consent of the Purchaser.
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Section 13. Waivers; Other Agreements. No term or provision of this Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by the party against whom such waiver or modification is sought to be
enforced.
Section 14. Survival. The provisions of this Agreement shall survive the Closing
Date and the delivery of the Mortgage Loans, and for so long thereafter as is
necessary (including, subsequent to the assignement of the Mortgage Loans) to
permit the parties to exercise their respective rights or perform their
respective obligations hereunder.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
date first above written.
GMAC MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
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SCHEDULE I
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MORTGAGE LOAN SCHEDULE
See Exhibit E of Exhibit 10.1
