EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement") dated as of
October 27, 2000 by and between GMAC Mortgage Corporation, a Pennsylvania
corporation, having an office at 100 Witmer Road, Horsham, Pennsylvania 19044
(the "Seller") and Residential Asset Mortgage Products, Inc., a Delaware
corporation, and having an office at 8400 Normandale Lake Boulevard,
Minneapolis, Minnesota 55437 (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): $124,918,786.14 (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: October 27, 2000, or such other date as may be agreed upon by the
parties hereto.
Cut-Off Date: October 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 Agreement: The pooling and servicing agreement, dated as
of October 27, 2000, among Residential Asset Mortgage Products, Inc., as
company, GMAC Mortgage Corporation, as servicer and Wells Fargo Bank
Minnesota, N.A., as trustee (the "Trustee").
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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 sum of (i) $112,672,558.20 and (ii) the Class SB Certificates and a 0.04%
Percentage Interest in each of the Class R-I Certificates and Class R-II
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 (including the power to convey title thereto),
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, (ii) with
respect to each Mortgage Loan other than a Cooperative Loan, the related
Mortgage Note and Mortgage and (iii) any insurance policies and all other
documents in the related Mortgage File, (B) all amounts payable pursuant to the
Mortgage Loans in accordance with the terms thereof and (C) 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
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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.
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,
benefits, 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
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"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 Files. Within five (5) Business Days prior to
the Closing Date, the Seller 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):
(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 "Wells Fargo Bank
Minnesota, N.A., as Trustee under that certain Pooling and Servicing
Agreement dated as of October 27, 2000, for GMACM Mortgage Pass-Through
Certificates, Series 2000-J5" c/o the Servicer at an address specified by
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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;
(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 Fannie Mae or Freddie
Mac, in accordance with the Fannie Mae Seller/Servicer Guide or Freddie 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:
(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;
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(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) 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
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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 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
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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:
(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;
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(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;
(i) The Seller is an approved seller/servicer of residential
mortgage loans for Fannie Mae and Freddie Mac. The Seller is in good standing to
sell mortgage loans to and service mortgage loans for Fannie Mae and Freddie Mac
and no event has occurred which would make the Seller unable to comply with
eligibility requirements or which would require notification to either Fannie
Mae or Freddie 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:
(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
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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;
(g) All buildings upon the Mortgaged Property are insured by a
generally acceptable insurer pursuant to standard hazard policies conforming to
the requirements of Fannie Mae and Freddie 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 Fannie Mae and Freddie
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
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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;
(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
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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);
(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 Fannie Mae/Freddie Mac instruments or are on forms
acceptable to Fannie Mae or Freddie 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 Fannie Mae or Freddie Mac and approved by the Seller. The
appraisal, if applicable, is in a form generally acceptable to Fannie Mae or
Freddie Mac;
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(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 Fannie Mae or
Freddie Mac requirements regarding such dwellings or is covered by a waiver
confirming that such condominium unit or planned unit development is acceptable
to Fannie Mae or Freddie Mac or is otherwise "warrantable" with respect thereto.
No such residence is a mobile home or manufactured dwelling;
(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%, after application of the amount of the Pledged Assets
to reduce such Loan-to-Value Ratio in the case of a Pledged Asset Mortgage Loan,
or the excess over 80.00%, after application of the amount of the Pledged Assets
to reduce such Loan-to-Value Ratio in the case of a Pledged Asset Mortgage Loan,
is insured as to payment defaults by a primary mortgage insurance policy issued
by a primary mortgage insurer acceptable to Fannie Mae and Freddie 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;
(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;
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(cc) Each Assigned Contract relating to each Pledged Asset
Mortgage Loan is a valid, binding and legally enforceable obligation of the
parties thereto, enforceable in accordance with terms, except as limited by
bankruptcy, insolvency or other similar laws affecting generally the enforcement
of creditor's rights;
(dd) The Seller is the holder of all of the right, title and
interest as owner of each Pledged Asset Mortgage Loan in and to each of the
Assigned Contracts delivered and sold to the Purchaser hereunder, and the
assignment hereof by the Seller validly transfers such right, title and interest
to the Purchaser free and clear of any pledge, lien, or security interest or
other encumbrance of any Person; and
(ee) The full amount of the Pledge Amount with respect to such
Pledged Asset Mortgage Loan has been deposited with the custodian under the
Credit Support Pledge Agreement and is on deposit in the custodial account held
thereunder as of the date hereof.
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 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
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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.
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. Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction 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
jurisdiction 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.
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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.
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 assignment 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:
Name:
Title:
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.
By:
Name:
Title:
<PAGE>
SCHEDULE I
MORTGAGE LOAN SCHEDULE
(See Exhibit E under Pooling & Servicing Agreement)
<PAGE>
