EXECUTION COPY
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RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Purchaser,
GMAC MORTGAGE CORPORATION,
as Seller and Servicer,
GMACM MORTGAGE LOAN TRUST 2003-GH2,
as Issuer,
and
JPMORGAN CHASE BANK,
as Indenture Trustee
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 22, 2003
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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 Seller Representations and Warranties.............................6
ARTICLE IV SELLER'S COVENANTS.............................................................14
Section 4.1 Covenants of the Seller..........................................14
ARTICLE V SERVICING.......................................................................14
Section 5.1 Servicing........................................................14
ARTICLE VI INDEMNIFICATION BY THE SELLER WITH RESPECT TO THE MORTGAGE LOANS...............14
Section 6.1 Limitation on Liability of the Seller............................14
ARTICLE VII TERMINATION...................................................................14
Section 7.1 Termination......................................................14
ARTICLE VIII MISCELLANEOUS PROVISIONS.....................................................15
Section 8.1 Amendment........................................................15
Section 8.2 GOVERNING LAW....................................................15
Section 8.3 Notices..........................................................15
Section 8.4 Severability of Provisions.......................................16
Section 8.5 Relationship of Parties..........................................16
Section 8.6 Counterparts.....................................................16
Section 8.7 Further Agreements...............................................16
Section 8.8 Intention of the Parties.........................................16
Section 8.9 Successors and Assigns; Assignment of this Agreement.............16
Section 8.10 Survival.........................................................17
EXHIBIT 1-- MORTGAGE LOAN SCHEDULE
EXHIBIT 2-- MORTGAGE FILES WITH MISSING DOCUMENTS
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
December 22, 2003, is made among GMAC Mortgage Corporation, as seller (the
"Seller") and as servicer (in such capacity, the "Servicer"), Residential Asset
Mortgage Products, Inc., as purchaser (the "Purchaser"), GMACM Mortgage Loan
Trust 2003-GH2, as issuer (the "Issuer"), and JPMorgan Chase Bank, as indenture
trustee (the "Indenture Trustee").
WITNESSETH:
WHEREAS, the Seller in the ordinary course of its business acquires and
originates mortgage loans and acquired or originated all of the mortgage loans
listed on the Mortgage Loan Schedule attached as Exhibit 1 hereto (the "Mortgage
Loans");
WHEREAS, the parties hereto desire that: the Seller sell the Cut-off
Date Principal Balances of the Mortgage Loans to the Purchaser on the Closing
Date pursuant to the terms of this Agreement;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue the Certificates; and
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
December 22, 2003 (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
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definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; the term "including" shall mean
"including without limitation"; "or" shall include "and/or"; and the term
"proceeds" shall have the meaning ascribed thereto in the UCC.
The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to herein or in
any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Mortgage Loans.
(a) The Seller, by the execution and delivery of this Agreement, does hereby
sell, assign, set over, and otherwise convey to the Purchaser, without recourse,
all of its right, title and interest in, to and under the following, and
wherever located: (i) the Mortgage Loans (including the Cut-Off Date Principal
Balances of the 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 principal and interest due thereon on or
prior to the Cut-Off Date); (ii) the interest of the Seller in any insurance
policies in respect of the 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 the Seller of consideration therefor as provided herein under clause (a) of
Section 2.3.
(b) In connection with the conveyance by the Seller of the Mortgage Loans, the
Seller further agrees, at its own expense, on or prior to the Closing Date with
respect to the Stated Principal Balances of the Mortgage Loans, to indicate in
its books and records that the 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 specifying for each Mortgage Loan (i) its
account number and (ii) its Cut-Off Date Principal Balance. Such lists, which
form the Mortgage Loan Schedule, shall be marked as Exhibit 1 to this Agreement
and are hereby incorporated into and made a part of this Agreement.
(c) Except for Missing Documents identified in Exhibit 2 hereto, in connection
with the conveyance by the Seller of the Mortgage Loans sold by it, the Seller
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
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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 the Seller ) 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 (B) except as provided in clause (A) with respect to the Mortgage
Notes and except for Missing Documents identified in Exhibit 2 hereto, 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 or the Certificateholders in such Mortgage
Loan, including the Seller's failure to deliver any document required to be
delivered to the Custodian on behalf of the Indenture Trustee (provided, that a
Mortgage Note will not be deemed to contain a defect if it is listed on Exhibit
2 hereto and the defect related thereto is a Missing Document), the Seller shall
cure such defect, repurchase the related Mortgage Loan at the Repurchase Price
or substitute an Eligible Substitute Loan therefor upon the same terms and
conditions set forth in Section 3.1 hereof for breaches of representations and
warranties as to the Mortgage Loans, 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.
Notwithstanding anything contained herein, the Seller or Servicer shall
not be required to repurchase any Mortgage Loan due to the failure to deliver to
the Custodian any Missing Documents. However, the Seller will be required to
repurchase any such Mortgage Loan if: (i) foreclosure proceedings have been
commenced with respect to such Mortgage Loan and (ii) the failure to possess a
Missing Document described under the definition of Mortgage File (I)(i), (ii),
(iii), (iv), (vi) or (II) materially and adversely affects the Servicer's
ability to foreclose on the related Mortgage Loan or to establish the full
amount of principal and interest owing on the related Mortgage Note. Exhibit 2
hereto shall be delivered by the Seller to the Indenture Trustee not later than
30 days from 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 the Seller in its capacity as seller of the Mortgage Loans
hereunder or by the Servicer in its capacity as servicer under the Servicing
Agreement shall immediately vest in the Purchaser and shall be retained and
maintained in trust by GMACM as the Servicer (except for the Mortgage Notes,
which shall be delivered to and retained by the Custodian at the will of the
Purchaser, in such custodial capacity only). The 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.
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(d) The parties hereto intend that the transactions set forth herein constitute
a sale by the Seller to the Purchaser of the Seller's 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, the Seller hereby grants to the Purchaser a security
interest in all of the Seller's right, title and interest in, to and under all
accounts, chattel papers, general intangibles, 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 the Seller's obligations hereunder, and
this Agreement shall and hereby does constitute a security agreement under
applicable law. The Seller agrees to take or cause to be taken such actions and
to execute such documents, including without limitation the filing of any
continuation statements with respect to the UCC-1 financing statements filed
with respect to the Mortgage Loans by the Purchaser on the Closing Date, and any
amendments thereto required to reflect a change in the name or corporate
structure of the Seller or the filing of any additional UCC-1 financing
statements due to the change in the principal office or jurisdiction of
incorporation of the 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.
(e) In connection with the assignment of any Mortgage Loan registered on the
MERS(R) System, the Seller further agrees that it will cause, at the Seller 's
own expense, as soon as practicable after the Closing Date, the MERS(R) System
to indicate that such Mortgage Loans have been assigned by the Seller 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 specific code which identifies the Indenture Trustee as
the assignor of such Mortgage Loan and (b) the series specific code in the field
"Pool Field" which identifies the series of the Notes issued in connection with
such Mortgage Loans. The Seller 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.
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 Mortgage Loans to be paid by the Purchaser to the Seller on the
Closing Date shall be an amount equal to $304,933,144.75 in immediately
available funds, together with the Certificates, in respect of the Cut-Off Date
Principal Balances thereof.
(b) In consideration of the sale of the Mortgage Loans by the Seller to the
Purchaser on the Closing Date, the Purchaser shall pay to the Seller on the
Closing Date by wire transfer of immediately available funds to a bank account
designated by the Seller, the amount specified above in paragraph (a) for the
Mortgage Loans; provided, that such payment may be on a net funding basis if
agreed by the Seller and the Purchaser.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 Seller Representations and Warranties.
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(a) The Seller represents and warrants to the Purchaser, as of the Closing Date
(or if otherwise specified below, as of the date so specified):
(i) The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction governing its creation and existence
and is or will be in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan;
(ii) The Seller has the power and authority to make, execute, deliver and
perform its obligations under this Agreement and 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) The Seller is not required to obtain the consent of any other Person or
any consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, 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 the Seller and its
performance and compliance with the terms of this Agreement will not violate the
Seller 's Certificate of Incorporation or Bylaws or constitute a material
default (or an event which, with notice or lapse of time, or both, would
constitute a material default) under, or result in the material breach of, any
material contract, agreement or other instrument to which the Seller is a party
or which may be applicable to the Seller or any of its assets;
(v) No litigation before any court, tribunal or governmental body is currently
pending, or to the knowledge of the Seller threatened, against the Seller or
with respect to this Agreement 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;
(vi) 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;
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(vii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of the Seller in and to the Mortgage
Loans, including the Cut-Off Date Principal Balances with respect to the
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 Mortgage
Loans; and
(viii) The Seller is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or otherwise) or operations of the
Seller or its properties or might have consequences that would materially
adversely affect its performance hereunder;
(b) As to each Mortgage Loan as of the Closing Date (except as otherwise
specified below):
(i) The information set forth in the Mortgage Loan Schedule with respect to each
Mortgage Loan or the Mortgage Loans is true and correct in all material respects
as of the date or dates respecting which such information is initially
furnished;
(ii) With respect to each Mortgage Loan: (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
the Mortgage Loans to the Purchaser, the Seller has good title thereto and (C)
the Seller is the sole owner and holder of the Mortgage Loan free and clear of
any and all liens, encumbrances, pledges, or security interests of any nature
and has full right and authority, under all governmental and regulatory bodies
having jurisdiction over the ownership of the applicable Mortgage Loans to sell
and assign the same pursuant to this Agreement;
(iii) To the best of the Seller 's knowledge, there is no valid offset, defense
or counterclaim of any obligor under any Mortgage Note or Mortgage;
(iv) To the best of the Seller 's knowledge, there is no delinquent recording or
other tax or fee or assessment lien against any related Mortgaged Property;
(v) To the best of the Seller 's knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the related Mortgaged
Property;
(vi) To the best of the Seller's knowledge, there are no mechanics' or similar
liens or claims which have been filed for work, labor or material affecting the
related Mortgaged Property which are, or may be liens prior or equal to, or
subordinate with, the lien of the related Mortgage, except liens which are fully
insured against by the title insurance policy referred to in clause (x);
(vii) As of the Cut-Off Date, not more than 3.55% of the Mortgage Loans by
Cut-Off Date Principal Balance are 30 to 59 days delinquent in payment of
principal or interest. As of the Cut-Off Date, none of the Mortgage Loans are
over 60 days delinquent in payment of principal or interest
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(viii) Except for any Missing Documents, with respect to the Mortgage Loans, the
related Mortgage File contains, in accordance with the definition of Mortgage
File, 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);
(ix) To the best of the Seller '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, including, but not limited to,
applicable predatory lending laws;
(x) A title search or other assurance of title customary in the relevant
jurisdiction was obtained with respect to each Mortgage Loan;
(xi) None of the Mortgaged Properties is a mobile home or a manufactured housing
unit that is not permanently attached to its foundation;
(xii) As of the Cut-Off Date, no more than approximately 25.54%, 10.17% and
8.10% of the Mortgage Loans by Cut-Off Date Principal Balance are secured by
Mortgaged Properties located in New York, Massachusetts and California,
respectively;
(xiii) As of the Cut-Off Date, except for approximately 2.77% of the Mortgage
Loans by Cut-Off Date Principal Balance, the LTV Ratio for each Mortgage Loan
was not in excess of 100.00%;
(xiv) The Seller has not transferred the Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud any of its creditors;
(xv) 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;
(xvi) To the best knowledge of the Seller, the physical property subject to each
Mortgage is free of material damage and is in acceptable repair;
(xvii) The Seller has not received a notice of default of any mortgage loan
related to a Mortgaged Property which has not been cured by a party other than
the Servicer;
(xviii) None of the Mortgage Loans are "high cost loans", subject to the Home
Ownership and Equity Protection Act of 1994;
(xix) No Mortgage Loan is a "high-cost home loan" as defined in the Georgia Act,
Georgia Fair Lending Act, as amended, the New York Act, New York Predatory
Lending Law, codified as N.Y. Banking Law ss.6-I, N.Y. Gen. Bus. Law ss.771-a,
and N.Y. Real Prop. Acts Law ss.1302, the Arkansas Home Loan Protection Act, as
amended, or the Kentucky Revised Statutes ss.360.100, as amended, or a
"high-rate, high-fee mortgage" as defined in the Maine Revised Statutes
Annotated ss.360.100, as amended and no Mortgage Loan secured by property
located in the City of New York and originated on or after February 20, 2003 is
subject to New York City Local Law No. 36 (2002);
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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 414 months
or a maturity date later than November 1, 2033;
(xxii) As of the Cut-Off Date, approximately 83.16% of the Mortgage Loans by
Cut-Off Date Principal Balance are fixed rate and approximately 16.83% of the
Mortgage Loans by Cut-Off Date Principal Balance are adjustable rate. As of the
Cut-Off Date, the Loan Rates on the Mortgage Loans range between 2.500% per
annum and 13.625% per annum. The weighted average remaining term to stated
maturity of the Mortgage Loans as of the Cut-Off Date is approximately 275
months;
(xxiii) Except for the Land Loans, with respect to the Mortgage Loans (a)
approximately 69.93% (by Cut-Off Date Principal Balance) are secured by real
property with a single family residence erected thereon, (b) approximately 6.80%
(by Cut-Off Date Principal Balance) are secured by real property improved by
two- to four- family properties, (c) approximately 6.23% (by Cut-Off Date
Principal Balance) are secured by real property improved by planned unit
developments, and (d) approximately 6.22% (by Cut-Off Date Principal Balance)
are secured by real property improved by condominium units;
(xxiv) As of the Cut-Off Date no Mortgage Loan had a principal balance in excess
of $3,222,293.21;
(xxv) As of the Cut-Off Date, the percentage of Mortgage Loans that are balloon
loans is not in excess of approximately 9.73%;
(xxvi) 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);
(xxvii) 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 the Seller 's knowledge, no
event which, with notice and expiration of any grace or cure period, would
constitute a material default, breach, violation or event of acceleration under
the terms of any Mortgage Note or Mortgage, and no such material default,
breach, violation or event of acceleration has been waived by the Seller
involved in originating or servicing the related Mortgage Loan;
(xxviii) No instrument of release or waiver has been executed by the Seller or,
to the best knowledge of the Seller, by any other person, in connection with the
Mortgage Loans, and no Mortgagor has been released by the Seller or, to the best
knowledge of the Seller, in whole or in part from its obligations in connection
therewith;
(xxix) The original Mortgage creates a first lien on an estate in fee simple or
a leasehold interest in real property securing the related Mortgage Note, free
and clear of all adverse claims, liens and encumbrances having priority over the
first lien of the Mortgage subject only to (1) the lien of non-delinquent
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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;
(xxx) 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;
(xxxi) Assuming no prepayments, delinquencies or losses on the Mortgage Loans,
the aggregate amount of principal that will be outstanding upon the final
maturity of the Mortgage Loans that (1) result from Monthly Payments being
insufficient to fully amortize the Mortgage Loans that are not balloon loans or
(2) had Monthly Payments applied in a manner that reduced the rate of principal
amortization will not exceed $100,000.00;
(xxxii) 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 (xxix) (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;
(xxxiii) If any of the Mortgage Loans are secured by a leasehold interest the
remaining term of the lease does not terminate less than ten years after the
maturity date of such Mortgage Loan;
(xxxiv) To the best of the Seller's knowledge, any escrow arrangements
established with respect to any Mortgage Loan are in compliance with all
applicable local, state and federal laws and are in compliance with the terms of
the Mortgage Note;
(xxxv) If required by the applicable processing style and except for any Missing
Documents, the Mortgage File contains an appraisal, or land report with respect
to the Land Loans, of the related Mortgaged Property made and signed prior to
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the final approval of the mortgage loan application by an appraiser who meets
the minimum qualifications for appraisers as specified by the Seller 's
underwriting standards;
(xxxvi) To the best of the Seller 's knowledge, 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
trustee's sale or attempted sale after default by the Mortgagor;
(xxxvii) 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;
(xxxviii) Except for the Land Loans, 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 Xxx and Xxxxxxx
Mac;
(xxxix) (1) The proceeds of each Mortgage Loan have been fully disbursed and (2)
to the best of the Seller 's knowledge, there is no requirement for future
advances thereunder and any and all requirements as to completion of any on-site
or off-site improvements and as to disbursements of any escrow funds thereof
(including and escrow funds held to make Monthly Payments pending completion of
such improvements) have been complied with. All fees and expenses incurred in
making, closing or recording the Mortgagee Loans were paid;
(xl) [reserved];
(xli) Except for the Land Loans, each Mortgage Loan is covered by a standard
hazard insurance policy;
(xlii) With respect to a Mortgage Loan that is a Cooperative Mortgage Loan, the
Cooperative Stock that is pledged as security for the Mortgage Loan is held by a
person as a tenant-stockholder (as defined in Section 216 of the Code) in a
cooperative housing corporation (as defined in Section 216 of the Code);
(xliii) None of the Mortgage Loans are secured by Mortgaged Properties located
in the State of Georgia if such Mortgage Loan was originated on or after October
1, 2002 and before March 7, 2003; and
(xliv) With respect to each Land Loan, such loan is secured by land on which
building one- to four- family residential units is permitted.
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(c) Remedies. Upon discovery by the Seller or upon notice from the Purchaser,
the Issuer, the Owner Trustee, the Indenture Trustee or the Custodian, as
applicable, of a breach of the Seller's representations or warranties in Section
3.1(a) that materially and adversely affects the interests of the
Securityholders in any Mortgage Loan, the Seller shall, within 90 days of its
discovery or its receipt of notice of such breach, either (i) cure such breach
in all material respects or (ii) to the extent that such breach is with respect
to a Mortgage Loan or a Related Document, either (A) repurchase such Mortgage
Loan from the Issuer at the Repurchase Price, or (B) substitute one or more
Eligible Substitute Loans for such Mortgage Loan, in each case in the manner and
subject to the conditions and limitations set forth below.
Upon discovery by the Seller or upon notice from the Purchaser,
the Issuer, the Owner Trustee, the Indenture Trustee or the Custodian, as
applicable, of a breach of the Seller's or representations or warranties in
Section 3.1(b), with respect to any Mortgage Loan, or upon the occurrence of a
Repurchase Event, that materially and adversely affects the interests of the
Securityholders or the Purchaser in such Mortgage Loan (notice of which shall be
given to the Purchaser by the Seller, if it discovers the same), notwithstanding
the Seller's lack of knowledge with respect to the substance of such
representation and warranty, the Seller, shall, within 90 days after the earlier
of its discovery or receipt of notice thereof 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 the Seller, the Servicer, 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 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 the
Seller 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 the Seller.
In furtherance of the foregoing, if the Seller is not a member of
MERS and the Mortgage is registered on the MERS(R) System, the Seller, 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 the Seller, 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 the Seller elects to substitute an Eligible
Substitute Loan or Loans for a Deleted Loan pursuant to this Section 3.1, the
Seller shall deliver to the Custodian on behalf of the Issuer, with respect to
such Eligible Substitute Loan or Loans, the original 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 the Seller on the next
succeeding Payment Date, provided that a payment equal to the applicable Monthly
12
Payment for such month in respect of the Deleted Loan has been received by the
Issuer. For the month of substitution, distributions to the Note Payment Account
pursuant to the Servicing Agreement will include the Monthly Payment due on a
Deleted Loan for such month and thereafter the Seller shall be entitled to
retain all amounts received in respect of such Deleted Loan. The Servicer shall
amend or cause to be amended the Mortgage Loan Schedule to reflect the removal
of such Deleted Loan and the substitution of the Eligible Substitute Loan or
Loans and the Servicer shall deliver the amended Mortgage Loan Schedule to the
Owner Trustee, the Indenture Trustee. Upon such substitution, the Eligible
Substitute Loan or Loans shall be subject to the terms of this Agreement and the
Servicing Agreement in all respects, the Seller shall be deemed to have made the
representations and warranties with respect to the Eligible Substitute Loan
contained herein set forth in Section 3.1(b), other than clauses (vii), (xii),
(xiii), (xxii), (xxiii), (xxiv) and (xxv) thereof, as of the date of
substitution, and the 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, the Seller shall be obligated to
repurchase or substitute for any Eligible Substitute Loan as to which a
Repurchase Event has occurred as provided herein. In connection with the
substitution of one or more Eligible Substitute Loans for one or more Deleted
Loans, the Servicer shall determine the amount (such amount, a "Substitution
Adjustment Amount"), if any, by which the aggregate principal balance of all
such Eligible Substitute Loans as of the date of substitution is less than the
aggregate principal balance of all such Deleted Loans (after application of the
principal portion of the Monthly Payments due in the month of substitution that
are to be distributed to the Note Payment Account in the month of substitution).
The Seller shall deposit the amount of such shortfall into the Custodial Account
on the date of substitution, without any reimbursement therefor.
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 the Seller
the related Mortgage Note for the Mortgage Loan being repurchased or substituted
for, (ii) cause the Servicer to release to the 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 the Seller 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 the Seller to
cure any breach, or to repurchase or substitute for any Mortgage Loan as to
which such a breach has occurred and is continuing, shall constitute the sole
remedy respecting such breach available to the Purchaser, the Issuer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against the Seller.
It is understood and agreed that the representations and
warranties set forth in this Section 3.1 shall survive delivery of the
respective Mortgage Notes to the Issuer or the Custodian.
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ARTICLE IV
SELLER'S COVENANTS
Section 4.1 Covenants of the Seller. The Seller hereby covenants that, except
for the transfer hereunder, that 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. The Seller shall notify the Issuer (in the case
of the Mortgage Loans, as assignee of the Purchaser) of the existence of any
Lien (other than as provided above) on any Mortgage Loan immediately upon
discovery thereof; and the Seller shall defend the right, title and interest of
the Issuer (in the case of the Mortgage Loans, as assignee of the Purchaser) in,
to and under the Mortgage Loans against all claims of third parties claiming
through or under the Seller; provided, however, that nothing in this Section 4.1
shall be deemed to apply to any Liens for municipal or other local taxes and
other governmental charges if such taxes or governmental charges shall not at
the time be due and payable or if the Seller shall currently be contesting the
validity thereof in good faith by appropriate Proceedings.
ARTICLE V
SERVICING
Section 5.1 Servicing. The Seller shall service the Mortgage Loans pursuant to
the terms and conditions of the Servicing Agreement.
ARTICLE VI
INDEMNIFICATION BY THE SELLER
WITH RESPECT TO THE MORTGAGE LOANS
Section 6.1 Limitation on Liability of the Seller. None of the directors,
officers, employees or agents of the Seller shall be under any liability to the
Purchaser or the Issuer, it being expressly understood that all such liability
is expressly waived and released as a condition of, and as consideration for,
the execution of this Agreement. Except as and to the extent expressly provided
in the Servicing Agreement and the Seller shall not be under any liability to
the Issuer, the Owner Trustee, the Indenture Trustee or the Securityholders. The
Seller and any director, officer, employee or agent of the Seller may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
ARTICLE VII
TERMINATION
Section 7.1 Termination. The obligations and responsibilities of the parties
hereto shall terminate upon the termination of the Trust Agreement.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement may be amended from time to time by the
parties hereto by written agreement), provided that the Servicer and the
Indenture Trustee 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 AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 8.3 Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, postage prepaid, addressed as follows:
(i) if to the Seller:
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxx, Executive Vice President
Re: GMACM Mortgage Loan Trust 2003-GH2;
(ii) if to the Purchaser:
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:President
Re: GMACM Mortgage Loan Trust 2003-GH2;
(iii) if to the Indenture Trustee:
JPMorgan Chase Bank
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: GMACM Mortgage Loan Trust 2003-GH2;
(iv) 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 Mortgage Loan Trust 2003-GH2;
15
or, with respect to any of the foregoing Persons, at such other address as may
hereafter be furnished to the other foregoing Persons in writing.
Section 8.4 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be held invalid for any
reason whatsoever, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity of enforceability of
the other provisions of this Agreement.
Section 8.5 Relationship of Parties. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture among the parties hereto, and
the services of the Seller shall be rendered as an independent contractor and
not as agent for the Purchaser.
Section 8.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts, together, shall constitute one and the same agreement.
Section 8.7 Further Agreements. The parties hereto each agree to execute and
deliver to the other such additional documents, instruments or agreements as may
be necessary or appropriate to effectuate the purposes of this Agreement.
Section 8.8 Intention of the Parties. It is the intention of the parties hereto
that the Purchaser will be purchasing on the Closing Date, and the Seller will
be selling on the Closing Date, the Mortgage Loans, rather than the Purchaser
providing a loan to the Seller 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 a sale by the Seller, 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 the
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 the Seller under this Agreement cannot be assigned or delegated
to a third party without the consent of the Purchaser, which consent shall be at
the Purchaser's sole discretion; provided, that the Seller may assign its
obligations hereunder to any Affiliate of the Seller, to any Person succeeding
to the business of the Seller, to any Person into which the Seller is merged and
to any Person resulting from any merger, conversion or consolidation to which
the Seller is a party. The parties hereto acknowledge that the Purchaser is
acquiring the Mortgage Loans for the purpose of contributing them to the GMACM
Mortgage Loan Trust 2003-GH2.
(b) As an inducement to the Purchaser and the Issuer to purchase the Mortgage
Loans, the Seller acknowledges and consents to (i) the assignment by the
Purchaser to the Issuer of all of the Purchaser's rights against the Seller
pursuant to this Agreement insofar as such rights relate to the Mortgage Loans
transferred to the Issuer and to the enforcement or exercise of any right or
remedy against the Seller pursuant to this Agreement by the Issuer, (ii) the
16
enforcement or exercise of any right or remedy against the Seller pursuant to
this Agreement by or on behalf of the Issuer and (iii) the Issuer's pledge of
its interest in this Agreement to the Indenture Trustee and the enforcement by
the Indenture Trustee of any such right or remedy against the Seller following
an Event of Default under the Indenture. Such enforcement of a right or remedy
by the Issuer, the Owner Trustee or the Indenture Trustee, as applicable, shall
have the same force and effect as if the right or remedy had been enforced or
exercised by the Purchaser or the Issuer directly.
Section 8.10 Survival. The representations and warranties made herein by the
Seller and the provisions of Article VI hereof shall survive the purchase of the
Mortgage Loans hereunder.
[SIGNATURE PAGE FOLLOWS]
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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:
GMACM MORTGAGE LOAN TRUST 2003-GH2, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as
Owner Trustee
By:
---------------------------------------
Name:
Title:
JPMORGAN CHASE BANK., as Indenture Trustee
By:
---------------------------------------
Name:
Title:
18
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
[On File with the Seller and Servicer]
EXHIBIT 2
MORTGAGE FILES WITH MISSING DOCUMENTS
[On File with the Seller and Servicer]
