EXECUTION COPY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Purchaser,
GMAC MORTGAGE CORPORATION,
as Seller,
GMACM MORTGAGE LOAN TRUST 2002-GH1,
as Issuer,
and
BANK ONE, NATIONAL ASSOCIATION,
as Indenture Trustee
--------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------------------
Dated as of March 27, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...............................................................2
Section 1.1 Definitions.......................................................2
Section 1.2 Other Definitional Provisions.....................................2
ARTICLE II SALE OF MORTGAGE LOANS AND RELATED PROVISIONS.............................3
Section 2.1 Sale of Mortgage Loans............................................3
Section 2.2 Payment of Purchase Price.........................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH.......................6
Section 3.1 Seller Representations and Warranties.............................6
ARTICLE IV SELLERS' COVENANTS.......................................................15
Section 4.1 Covenants of the Sellers.........................................15
ARTICLE V SERVICING................................................................16
Section 5.1 Servicing........................................................16
ARTICLE VI INDEMNIFICATION BY THE SELLER WITH RESPECT TO THE MORTGAGE LOANS.........16
Section 6.1 Limitation on Liability of the Sellers...........................16
ARTICLE VII TERMINATION..............................................................16
Section 7.1 Termination......................................................16
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................................16
Section 8.1 Amendment........................................................16
Section 8.2 GOVERNING LAW....................................................16
Section 8.3 Notices..........................................................17
Section 8.4 Severability of Provisions.......................................17
Section 8.5 Relationship of Parties..........................................18
Section 8.6 Counterparts.....................................................18
Section 8.7 Further Agreements...............................................18
Section 8.8 Intention of the Parties.........................................18
Section 8.9 Successors and Assigns; Assignment of this Agreement.............18
Section 8.10 Survival.........................................................19
EXHIBIT 1 MORTGAGE LOAN SCHEDULE..........................................Exhibit 1-1
EXHIBIT 2 MORTGAGE FILES WITH MISSING DOCUMENTS...........................Exhibit 2-1
This Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
March 27, 2002, is made among GMAC Mortgage Corporation, as seller ("GMACM") and
as servicer (in such capacity, the "Servicer"), Xxxxxx Funding LLC, as seller
("Xxxxxx" and, together with GMACM, each a "Seller" and collectively, the
"Sellers") Residential Asset Mortgage Products, Inc., as purchaser (the
"Purchaser"), GMACM Mortgage Loan Trust 2002-GH1, as issuer (the "Issuer"), and
Bank One, National Association, as indenture trustee (the "Indenture Trustee").
WITNESSETH:
WHEREAS, GMACM, 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 Schedule I hereto (the
"Mortgage Loans");
WHEREAS, GMACM sold a portion of the Mortgage Loans (the "Xxxxxx
Mortgage Loans"), to Xxxxxx, pursuant to the Amended and Restated Mortgage Loan
Purchase and Servicing Agreement (the "Xxxxxx Purchase Agreement"), dated as of
January 15, 2002, among Xxxxxx, as purchaser, GMACM, as seller and servicer,
GMAC Bank, as seller, and GMAC Residential Holding Corp., as performance
guarantor (each date of sale, a "Prior Transfer Date");
WHEREAS, GMACM owns the Cut-off Date Principal Balances for the portion
of Mortgage Loans identified on the Mortgage Loan Schedule attached as Schedule
I-A hereto (the "GMACM Mortgage Loans");
WHEREAS, Xxxxxx owns the Cut-off Date Principal Balances of the Xxxxxx
Mortgage Loans identified on the Mortgage Loan Schedule attached as Schedule I-B
hereto (the "Xxxxxx Mortgage Loans");
WHEREAS, the parties hereto desire that: (i) GMACM sell the Cut-off Date
Principal Balances of the GMACM Mortgage Loans to the Purchaser on the Closing
Date pursuant to the terms of this Agreement, and (ii) Xxxxxx sell the Cut-off
Date Principal Balances of the Xxxxxx Mortgage Loans to the Purchaser on the
Closing Date pursuant to the terms of this Agreement;
WHEREAS, the parties hereto desire that GMACM continue servicing the
Xxxxxx Mortgage Loans and the GMACM Mortgage Loans; and
WHEREAS, GMACM has entered into an Amended and Restated Limited
Liability Company Agreement (the "LLC Agreement") dated as of October 31, 2001
with Xxxxxx Member Corp. and Bank One, National Association pursuant to which
GMACM has been appointed the administrator of Xxxxxx (the "Administrator"),
pursuant to which GMACM is authorized to execute documents on behalf of Xxxxxx
and cause Xxxxxx to deliver or perform the obligations of Xxxxxx set forth in
such documents;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue the Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue the
Notes, secured by the Trust Estate;
1
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
March 27, 2002 (the "Indenture"), between the Issuer and the Indenture Trustee,
which is incorporated by reference herein. All other capitalized terms used
herein shall have the meanings specified herein.
Section 1.2 Other Definitional Provisions. All terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document,
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; the term "including" shall mean
"including without limitation"; "or" shall include "and/or"; and the term
"proceeds" shall have the meaning ascribed thereto in the UCC.
The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to herein or in
any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
2
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Mortgage Loans.
(a) GMACM, by the execution and delivery of this Agreement, does hereby sell,
assign, set over, and otherwise convey to the Purchaser, without recourse, all
of its right, title and interest in, to and under the following, and wherever
located: (i) the GMACM Mortgage Loans (including the Cut-Off Date Principal
Balances of the GMACM 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 GMACM in any insurance policies
in respect of the GMACM Mortgage Loans; and (iii) all proceeds of the foregoing.
Such conveyance shall be deemed to be made: with respect to the Cut-Off Date
Principal Balances, as of the Closing Date, subject to the receipt by GMACM of
consideration therefor as provided herein under clause (a) of Section 2.3.
(b) Xxxxxx, 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 Xxxxxx Mortgage Loans (including the Cut-Off Date Principal
Balances of Xxxxxx 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 Xxxxxx in any insurance
policies in respect of the Xxxxxx 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 Xxxxxx of consideration therefor as provided herein under clause (a) of
Section 2.3.
(c) In connection with the conveyance by GMACM of the GMACM Mortgage Loans,
GMACM further agrees, at its own expense, on or prior to the Closing Date with
respect to the Stated Principal Balances of the GMACM Mortgage Loans, to
indicate in its books and records that the GMACM Mortgage Loans have been sold
to the Purchaser pursuant to this Agreement, and to deliver to the Purchaser
true and complete lists of all of the GMACM Mortgage Loans specifying for each
GMACM Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal
Balance. Such lists, which form part of the GMACM Mortgage Loan Schedule, shall
be marked as Exhibit 1-A to this Agreement and are hereby incorporated into and
made a part of this Agreement.
(d) In connection with the conveyance by Xxxxxx of the Xxxxxx Mortgage Loans,
Xxxxxx further agrees, at its own expense, on or prior to the Closing Date with
respect to the Stated Principal Balances of the Xxxxxx Mortgage Loans, to
indicate in its books and records that the Xxxxxx 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 Xxxxxx Mortgage Loans specifying for each
Xxxxxx Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal
Balance. Such lists, which form part of the Xxxxxx Mortgage Loan Schedule, shall
be marked as Exhibit 1-B to this Agreement and are hereby incorporated into and
made a part of this Agreement.
(e) Except for Missing Documents identified in Exhibit 2 hereto, in connection
with the conveyance by GMACM of the GMACM Mortgage Loans sold by it and the
conveyance by Xxxxxx of the Xxxxxx Mortgage Loans sold by it, GMACM shall, (A)
with respect to each related Mortgage Loan, on behalf of the Purchaser deliver
to, and deposit with the Custodian, at least five (5) Business Days before the
3
Closing Date, the original Mortgage Note endorsed or assigned without recourse
in blank (which endorsement shall contain either an original signature or a
facsimile signature of an authorized officer of GMACM or GMAC Bank) or, with
respect to any Mortgage Loan as to which the original Mortgage Note has been
permanently lost or destroyed and has not been replaced, a Lost Note Affidavit
and (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), GMACM shall cure
such defect, repurchase the related Mortgage Loan at the Repurchase Price or
substitute an Eligible Substitute Loan therefor upon the same terms and
conditions set forth in Section 3.1 hereof for breaches of representations and
warranties as to the Mortgage Loans, provided that a Seller shall have the
option to substitute an Eligible Substitute Mortgage Loan or Loans for such
Mortgage Loan only if such substitution occurs within two years following the
Closing Date.
Notwithstanding anything contained herein, the related 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 GMACM 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 either Seller as seller of the Mortgage Loans hereunder or by
GMACM in its capacity as Servicer under the Servicing Agreement shall
immediately vest in the Purchaser, and shall be promptly delivered to the
Servicer in the case of the documents in possession of Xxxxxx and retained and
maintained in trust by GMACM as the Servicer (except for the Mortgage Notes,
which shall be retained by the Custodian) at the will of the Purchaser, in such
custodial capacity only. Each Seller's records will accurately reflect the sale
of each Mortgage Loan sold by it to the Purchaser.
The Purchaser hereby acknowledges its acceptance of all right, title and
interest to the property conveyed to it pursuant to this Section 2.1. (f) The
parties hereto intend that the transactions set forth herein constitute a sale
4
by the Sellers to the Purchaser of each of the Sellers' right, title and
interest in and to their respective Mortgage Loans and other property as and to
the extent described above. In the event the transactions set forth herein are
deemed not to be a sale, each Seller hereby grants to the Purchaser a security
interest in all of such Seller's right, title and interest in, to and under all
accounts, chattel papers, general intangibles, payment intangibles, contract
rights, certificates of deposit, deposit accounts, instruments, documents,
letters of credit, money, advices of credit, investment property, goods and
other property consisting of, arising under or related to the Mortgage Loans and
such other property, to secure all of such Seller's obligations hereunder, and
this Agreement shall and hereby does constitute a security agreement under
applicable law. Each Seller agrees to take or cause to be taken such actions and
to execute such documents, including without limitation the filing of any
continuation statements with respect to the UCC-1 financing statements filed
with respect to the Mortgage Loans by the Purchaser on the Closing Date, and any
amendments thereto required to reflect a change in the name or corporate
structure of such Seller or the filing of any additional UCC-1 financing
statements due to the change in the principal office or jurisdiction of
incorporation of such Seller, as are necessary to perfect and protect the
Purchaser's and its assignees' interests in each Mortgage Loan and the proceeds
thereof. The Servicer shall file any such continuation statements on a timely
basis.
(g) In connection with the assignment of any Mortgage Loan registered on the
MERS(R) System, GMACM further agrees that it will cause, at GMACM's own expense,
as soon as practicable after the Closing Date, the MERS(R) System to indicate
that such Mortgage Loans have been assigned by GMACM to the Indenture Trustee in
accordance with this Agreement or the Trust Agreement for the benefit of the
Noteholders by including (or deleting, in the case of Mortgage Loans which are
repurchased in accordance with this Agreement) in such computer files (a) the
code "[IDENTIFY INDENTURE TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE
FIELD NAME FOR INDENTURE TRUSTEE]" which identifies the Indenture Trustee and
(b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field"
which identifies the series of the Notes issued in connection with such Mortgage
Loans. GMACM agrees that it will not alter the codes referenced in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the terms
of this Agreement.
Section 2.2 Payment of Purchase Price.
-------------------------
(a) The sale of the Mortgage Loans shall take place on the Closing Date, subject
to and simultaneously with the deposit of the Mortgage Loans into the Trust
Estate and the issuance of the Securities. The purchase price (the "Purchase
Price") for the GMACM Mortgage Loans to be paid by the Purchaser to GMACM on the
Closing Date shall be an amount equal to $355,072,732.47 in immediately
available funds, together with the Certificates, in respect of the Cut-Off Date
Principal Balances thereof. The Purchase Price for the Xxxxxx Mortgage Loans to
be paid by the Purchaser to Xxxxxx on the Closing Date shall be an amount equal
to $109,881,441.06 in immediately available funds in respect of the Cut-Off Date
Principal Balances thereof.
(b) In consideration of the sale of the GMACM Mortgage Loans by GMACM to the
Purchaser on the Closing Date, the Purchaser shall pay to GMACM on the Closing
Date by wire transfer of immediately available funds to a bank account
5
designated by GMACM, the amount specified above in paragraph (a) for the GMACM
Mortgage Loans; provided, that such payment may be on a net funding basis if
agreed by GMACM and the Purchaser.
(c) In consideration of the sale of the Xxxxxx Mortgage Loans by Xxxxxx to the
Purchaser on the Closing Date, the Purchaser shall pay to Xxxxxx on the Closing
Date by wire transfer of immediately available funds to a bank account
designated by Xxxxxx, the amount specified above in paragraph (a) for the Xxxxxx
Mortgage Loans; provided, that such payment may be on a net funding basis if
agreed by Xxxxxx and the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 Seller Representations and Warranties. GMACM represents and warrants
to the Purchaser, as of the Closing Date (or if otherwise specified below, as of
the date so specified):
(a) As to GMACM:
(i) GMACM is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction governing its creation and existence and is
or will be in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of each
Mortgage Loan;
(ii) GMACM has the power and authority to make, execute, deliver and perform its
obligations under this Agreement and all of the transactions contemplated under
this Agreement, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement;
(iii) GMACM is not required to obtain the consent of any other Person or any
consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or authorizations, or
registrations or declarations, as shall have been obtained or filed, as the case
may be;
(iv) The execution and delivery of this Agreement by GMACM and its performance
and compliance with the terms of this Agreement will not violate GMACM's
Certificate of Incorporation or Bylaws or constitute a material default (or an
event which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the material breach of, any material contract,
agreement or other instrument to which GMACM is a party or which may be
applicable to GMACM or any of its assets;
(v) No litigation before any court, tribunal or governmental body is currently
pending, or to the knowledge of GMACM threatened, against GMACM or with respect
to this Agreement that in the opinion of GMACM has a reasonable likelihood of
resulting in a material adverse effect on the transactions contemplated by this
Agreement;
6
(vi) This Agreement constitutes a legal, valid and binding obligation of GMACM,
enforceable against GMACM in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a proceeding at law or in
equity) or by public policy with respect to indemnification under applicable
securities laws;
(vii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of GMACM in and to the GMACM Mortgage
Loans, including the Cut-Off Date Principal Balances with respect to the GMACM
Mortgage Loans, all monies due or to become due with respect thereto, and all
proceeds of such Cut-Off Date Principal Balances with respect to the GMACM
Mortgage Loans; and
(viii) GMACM is not in default with respect to any order or decree of any court
or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or otherwise) or operations of
GMACM or its properties or might have consequences that would materially
adversely affect its performance hereunder;
(b) As to each Mortgage Loan 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 of the Xxxxxx Mortgage Loans as of each respective
Prior Transfer Date: (A) the related Mortgage Note and the Mortgage had not been
assigned or pledged, except for any assignment or pledge that had been satisfied
and released, (B) immediately prior to the assignment of such Mortgage Loans to
Xxxxxx, GMACM had good title thereto and (C) immediately prior to such
assignment, GMACM was the sole owner and holder of the Mortgage Loan free and
clear of any and all liens, encumbrances, pledges, or security interests of any
nature and had full right and authority, under all governmental and regulatory
bodies having jurisdiction over the ownership of the applicable Mortgage Loan,
to sell and assign the same pursuant to the Xxxxxx Purchase Agreement;
(iii) With respect to each GMACM 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 GMACM has good title thereto
and (C) GMACM is the sole owner and holder of the Mortgage Loan free and clear
of any and all liens, encumbrances, pledges, or security interests of any nature
and has full right and authority, under all governmental and regulatory bodies
having jurisdiction over the ownership of the applicable Mortgage Loans to sell
and assign the same pursuant to this Agreement;
(iv) To the best of GMACM's knowledge, there is no valid offset, defense or
counterclaim of any obligor under any Mortgage Note or Mortgage;
7
(v) To the best of GMACM's knowledge, there is no delinquent recording or other
tax or fee or assessment lien against any related Mortgaged Property;
(vi) To the best of GMACM's knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the related Mortgaged
Property;
(vii) To the best of GMACM's knowledge, there are no mechanics' or similar liens
or claims which have been filed for work, labor or material affecting the
related Mortgaged Property which are, or may be liens prior or equal to, or
subordinate with, the lien of the related Mortgage, except liens which are fully
insured against by the title insurance policy referred to in clause (xi);
(viii) As of the Cut-Off Date, not more than 2.93% and 0.58% , respectively, of
the Mortgage Loans by Cut-Off Date Principal Balance are (i) 30 to 59 days, or
(ii) 60-89 days delinquent in payment of principal or interest. As of the
Cut-Off Date, none of the Mortgage Loans are over 90 days delinquent in payment
of principal or interest
(ix) Except for any Missing Documents, with respect to the GMACM 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);
(x) To the best of GMACM's knowledge, the related Mortgage Note and the related
Mortgage at the time it was made complied in all material respects with
applicable local, state and federal laws;
(xi) A title search or other assurance of title customary in the relevant
jurisdiction was obtained with respect to each Mortgage Loan;
(xii) None of the Mortgaged Properties is a mobile home or a manufactured
housing unit that is not permanently attached to its foundation;
(xiii) As of the Cut-Off Date, no more than approximately 13.93% and 12.98% of
the Mortgage Loans by Cut-Off Date Principal Balance are secured by Mortgaged
Properties located in California and Massachusetts, respectively;
(xiv) As of the Cut-Off Date, except for approximately 1.99% of the Mortgage
Loans by Cut-Off Date Principal Balance, the LTV Ratio for each Mortgage Loan
was not in excess of 100.00%;
(xv) GMACM has not transferred the GMACM Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud any of its creditors;
(xvi) 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;
8
(xvii) To the best knowledge of GMACM, the physical property subject to each
Mortgage is free of material damage and is in acceptable repair;
(xviii) GMACM 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;
(xix) None of the Mortgage Loans are "high cost loans", subject to the Home
Ownership and Equity Protection Act of 1994;
(xx) None of the Mortgage Loans is a reverse mortgage loan;
(xxi) No Mortgage Loan has an original term to maturity in excess of 372 months
or a maturity date later than February 1, 2033;
(xxii) As of the Cut-Off Date, approximately 78.16% of the Mortgage Loans by
Cut-Off Date Principal Balance are fixed rate and approximately 21.84% 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 3.875% per
annum and 13.750% per annum. The weighted average remaining term to stated
maturity of the Mortgage Loans as of the Cut-Off Date is approximately 281
months;
(xxiii) (A) Except for the Land Loans, each Mortgaged Property consists of a
single parcel of real property with a single family or an individual condominium
unit; (B) Except for the Land Loans, with respect to the Mortgage Loans (a)
approximately 7.97% (by Cut-Off Date Principal Balance) are secured by real
property improved by individual condominium units, (b) approximately 62.96% (by
Cut-Off Date Principal Balance) are secured by real property with a single
family residence erected thereon, and (c) 9.13% (by Cut-Off Date Principal
Balance) are secured by two to four-family properties;
(xxiv) As of the Cut-Off Date no Mortgage Loan had a principal balance in excess
of $2,073,415.50;
(xxv)As of the Cut-Off Date, the percentage of Mortgage Loans that are balloon
loans is not in excess of approximately 14.13%;
(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 GMACM's knowledge, no event
which, with notice and expiration of any grace or cure period, would constitute
a material default, breach, violation or event of acceleration under the terms
of any Mortgage Note or Mortgage, and no such material default, breach,
violation or event of acceleration has been waived by GMACM involved in
originating or servicing the related Mortgage Loan;
(xxviii) No instrument of release or waiver has been executed by GMACM or, to
the best knowledge of GMACM, by any other person, in connection with the
Mortgage Loans, and no Mortgagor has been released by GMACM or, to the best
knowledge of GMACM, in whole or in part from its obligations in connection
therewith;
9
(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
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) GMACM, 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. GMACM 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
GMACM'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 GMACM'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;
10
(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
the final approval of the mortgage loan application by an appraiser who meets
the minimum qualifications for appraisers as specified by GMACM's underwriting
standards;
(xxxvi) To the best of GMACM'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 GMACM'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) No Mortgage Loan provides for payments that are subject to reduction by
withholding taxes levied by foreign (non-United States) sovereign government;
(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); and
(xliii) With respect to each Land Loan, such loan is secured by land on which
building one- to four- family residential units is permitted.
11
With respect to this Section 3.1(b), representations made by
GMACM with respect to the Xxxxxx Mortgage Loans, made as of the Cut-Off Date or
the Closing Date, are made by GMACM in its capacity as Servicer. Representations
made by GMACM with respect to the Xxxxxx Mortgage Loans and made as of any other
date, are made by GMACM in its capacity as Seller.
(c) Xxxxxx Representations and Warranties. Xxxxxx represents and warrants
to the Purchaser, as of the Closing Date:
(i) As to Xxxxxx:
(i) Xxxxxx is a limited liability company duly formed, validly existing and in
good standing under the laws of the State of Delaware;
(ii) Xxxxxx 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 limited liability company
action to authorize the execution, delivery and performance of this Agreement;
this Agreement constitutes a legal, valid and binding obligation of Xxxxxx,
enforceable against Xxxxxx 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;
(iii) The execution and delivery of this Agreement by Xxxxxx and its performance
and compliance with the terms of this Agreement will not violate Xxxxxx'x
Certificate of Formation or the LLC Agreement 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 Xxxxxx is a party or which may
be applicable to Xxxxxx or any of its assets;
(iv) No litigation before any court, tribunal or governmental body is currently
pending, nor to the knowledge of Xxxxxx is threatened against Xxxxxx, nor is
there any such litigation currently pending, nor to the knowledge of Xxxxxx
threatened against Xxxxxx with respect to this Agreement that in the opinion of
Xxxxxx has a reasonable likelihood of resulting in a material adverse effect on
the transactions contemplated by this Agreement;
(v) No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by Xxxxxx
of or compliance by Xxxxxx 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;
(vi) The consummation of the transactions contemplated by this Agreement is in
the ordinary course of business of Xxxxxx, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages relating to the Xxxxxx
Mortgage Loans by Xxxxxx pursuant to this Agreement are not subject to bulk
transfer or any similar statutory provisions in effect in any applicable
jurisdiction; and
12
(vii) Xxxxxx 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.
(ii) As to the Xxxxxx Mortgage Loans:
(i) With respect to the Xxxxxx Mortgage Loans: (A) the related Mortgage Note and
the Mortgage have not been assigned or pledged, except for any assignment or
pledge that has been satisfied and released, (B) immediately prior to the
assignment of such Mortgage Loans to the Purchaser, Xxxxxx had good title
thereto and (C) Xxxxxx 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;
(ii) Except for any Missing Documents, with respect to the Xxxxxx 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);
(iii) Xxxxxx has not transferred the Xxxxxx Mortgage Loans to the Purchaser with
any intent to hinder, delay or defraud any of its creditors; and
(iv) No instrument of release or waiver has been executed by Xxxxxx in
connection with the Xxxxxx Mortgage Loans, and no Mortgagor has been released by
Xxxxxx, in whole or in part, from its obligations in connection therewith.
(d) Remedies. Upon discovery by either Seller or GMACM or upon notice
from the Purchaser, the Issuer, the Owner Trustee, the Indenture Trustee or the
Custodian, as applicable, of a breach of such Seller's or GMACM's respective
representations or warranties in paragraphs (a) or (c)(i) above that materially
and adversely affects the interests of the Securityholders in any Mortgage Loan,
GMACM or Xxxxxx, as applicable, shall, within 90 days of its discovery or its
receipt of notice of such breach, either (i) cure such breach in all material
respects or (ii) to the extent that such breach is with respect to a Mortgage
Loan or a Related Document, either (A) repurchase such Mortgage Loan from the
Issuer at the Repurchase Price, or (B) substitute one or more Eligible
Substitute Loans for such Mortgage Loan, in each case in the manner and subject
to the conditions and limitations set forth below.
Upon discovery by either Seller or GMACM or upon notice from the
Purchaser, the Issuer, GMACM, the Owner Trustee, the Indenture Trustee or the
Custodian, as applicable, of a breach of a Seller's or GMACM's representations
or warranties in paragraphs (b) or (c)(ii) above, with respect to any Mortgage
Loan, or upon the occurrence of a Repurchase Event, that materially and
adversely affects the interests of the Securityholders or the Purchaser in such
Mortgage Loan (notice of which shall be given to the Purchaser by the respective
Seller or GMACM, if it discovers the same), notwithstanding such Seller's or
GMACM's lack of knowledge with respect to the substance of such representation
and warranty, such Seller or GMACM, as the case may be, shall, within 90 days
after the earlier of its discovery or receipt of notice thereof or, if such
13
breach has the effect of making the Mortgage Loan fail to be a "qualified
mortgage" within the meaning of Section 860G of the Internal Revenue Code,
within 90 days after the discovery thereof by either such Seller, the Servicer,
the 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 such Seller or GMACM shall be deposited or caused to be
deposited by the Servicer into the Custodial Account. Any purchase of a Mortgage
Loan due to a Repurchase Event shall be the obligation of GMACM.
In furtherance of the foregoing, if GMACM or the Seller that repurchases
or substitutes a Mortgage Loan is not a member of MERS and the Mortgage is
registered on the MERS(R) System, GMACM, at its own expense and without any
right of reimbursement, shall cause MERS to execute and deliver an assignment of
the Mortgage in recordable form to transfer the Mortgage from MERS to GMACM or
the Seller and shall cause such Mortgage to be removed from registration on the
MERS(R) System in accordance with MERS' rules and regulations.
In the event that either Seller elects to substitute an Eligible
Substitute Loan or Loans for a Deleted Loan pursuant to this Section 3.1, such
Seller shall deliver to the Custodian on behalf of the Issuer, with respect to
such Eligible Substitute Loan or Loans, the original Mortgage Note, endorsed as
required under the definition of "Mortgage File" and shall deliver the other
documents required to be part of the Mortgage File to the Servicer. No
substitution will be made in any calendar month after the Determination Date for
such month. Monthly Payments due with respect to Eligible Substitute Loans in
the month of substitution shall not be part of the Trust Estate and will be
retained by the Servicer and remitted by the Servicer to such Seller on the next
succeeding Payment Date, provided that a payment equal to the applicable Monthly
Payment for such month in respect of the Deleted Loan has been received by the
Issuer. For the month of substitution, distributions to the Note Payment Account
pursuant to the Servicing Agreement will include the Monthly Payment due on a
Deleted Loan for such month and thereafter such Seller shall be entitled to
retain all amounts received in respect of such Deleted Loan. The Servicer shall
amend or cause to be amended the Mortgage Loan Schedule to reflect the removal
of such Deleted Loan and the substitution of the Eligible Substitute Loan or
Loans and the Servicer shall deliver the amended Mortgage Loan Schedule to the
Owner Trustee, the Indenture Trustee. Upon such substitution, the Eligible
Substitute Loan or Loans shall be subject to the terms of this Agreement and the
Servicing Agreement in all respects, GMACM shall be deemed to have made the
representations and warranties with respect to the Eligible Substitute Loan
contained herein set forth in Section 3.1(b) (other than clauses (xiii), (xxii)
and (xxiii)(B) and (xxiv) thereof and other than clauses (iii) and (ix) thereof
in the case of Eligible Substitute Loans substituted by Xxxxxx), and, if the
Seller is Xxxxxx, Xxxxxx shall be deemed to have made the representations and
warranties set forth in Section 3.1(c)(ii), in each case, as of the date of
substitution, and the related Seller shall be deemed to have made a
representation and warranty that each Mortgage Loan so substituted is an
Eligible Substitute Loan as of the date of substitution. In addition, GMACM
shall be obligated to repurchase or substitute for any Eligible Substitute Loan
as to which a Repurchase Event has occurred as provided herein. In connection
with the substitution of one or more Eligible Substitute Loans for one or more
14
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). Such Seller shall deposit the amount of such shortfall into
the Custodial Account on the date of substitution, without any reimbursement
therefor.
Upon receipt by the Indenture Trustee on behalf of the Issuer and the
Custodian of written notification, signed by a Servicing Officer, of the deposit
of such Repurchase Price or of such substitution of an Eligible Substitute Loan
(together with the complete related Mortgage File) and deposit of any applicable
Substitution Adjustment Amount as provided above, the Custodian, on behalf of
the Indenture Trustee, shall (i) release to such Seller or GMACM, as the case
may be, the related Mortgage Note for the Mortgage Loan being repurchased or
substituted for, (ii) cause the Servicer to release to such Seller any remaining
documents in the related Mortgage File which are held by the Servicer, and(iii)
the Indenture Trustee on behalf of the Issuer shall execute and deliver such
instruments of transfer or assignment prepared by the Servicer, in each case
without recourse, as shall be necessary to vest in such Seller or GMACM, as the
case may be, or its respective designee such Mortgage Loan released pursuant
hereto and thereafter such Mortgage Loan shall not be an asset of the Issuer.
It is understood and agreed that the obligation of each Seller to cure
any breach, or to repurchase or substitute for any Mortgage Loan as to which
such a breach has occurred and is continuing, shall constitute the sole remedy
respecting such breach available to the Purchaser, the Issuer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against such Seller.
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.
ARTICLE IV
SELLERS' COVENANTS
Section 4.1 Covenants of the Sellers. Each 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. Each 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 such Seller; provided, however, that nothing in this Section
4.1 shall be deemed to apply to any Liens for municipal or other local taxes and
other governmental charges if such taxes or governmental charges shall not at
the time be due and payable or if such Seller shall currently be contesting the
validity thereof in good faith by appropriate Proceedings.
15
ARTICLE V
SERVICING
Section 5.1 Servicing. GMACM 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 Sellers. None of the directors,
officers, employees or agents of GMACM or Xxxxxx shall be under any liability to
the Purchaser or the Issuer, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement. Except as and to the extent
expressly provided in the Servicing Agreement, GMACM and Xxxxxx shall not be
under any liability to the Issuer, the Owner Trustee, the Indenture Trustee or
the Securityholders. GMACM, Xxxxxx and any director, officer, employee or agent
of GMACM or Xxxxxx may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder.
ARTICLE VII
TERMINATION
Section 7.1 Termination. The obligations and responsibilities of the parties
hereto shall terminate upon the termination of the Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement may be amended from time to time by the
parties hereto by written agreement), 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.
16
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 GMACM:
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxx, Senior Vice President
Re: GMACM Mortgage Loan Trust 2002-GH1;
(ii) if to the Purchaser:
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:President
Re: GMACM Mortgage Loan Trust 2002-GH1;
(iii) if to the Indenture Trustee:
Bank One, National Association
0 Xxxx Xxx Xxxxx, Xxxxx 0X0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: GMACM Mortgage Loan Trust 2002-GH1;
(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 2002-GH1; or
(v) if to Xxxxxx:
c/o GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention:Xxxxx Xxxx, Senior Vice President
Re: GMACM Mortgage Loan Trust 2002-GH1;
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.
17
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 GMACM shall be rendered as an independent contractor and not as
agent for the Purchaser.
Section 8.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts, together, shall constitute one and the same agreement.
Section 8.7 Further Agreements. The parties hereto each agree to execute and
deliver to the other such additional documents, instruments or agreements as may
be necessary or appropriate to effectuate the purposes of this Agreement.
Section 8.8 Intention of the Parties. It is the intention of the parties hereto
that the Purchaser will be purchasing on the Closing Date, and the Sellers will
be selling on the Closing Date, the Mortgage Loans, rather than the Purchaser
providing a loan to the Sellers secured by the Mortgage Loans on the Closing
Date. Accordingly, the parties hereto each intend to treat this transaction for
federal income tax purposes as a sale by the Sellers, and a purchase by the
Purchaser, of the Mortgage Loans on the Closing Date. The Purchaser and the
Issuer shall each have the right to review the Mortgage Loans and the Related
Documents to determine the characteristics of the Mortgage Loans which will
affect the federal income tax consequences of owning the Mortgage Loans, and the
Sellers shall cooperate with all reasonable requests made by the Purchaser or
the Issuer in the course of such review.
Section 8.9 Successors and Assigns; Assignment of this Agreement.
----------------------------------------------------
(a) This Agreement shall bind and inure to the benefit of and be enforceable by
the parties hereto and their respective permitted successors and assigns. The
obligations of each Seller under this Agreement cannot be assigned or delegated
to a third party without the consent of the Purchaser, which consent shall be at
the Purchaser's sole discretion; provided, that each Seller may assign its
obligations hereunder to any Affiliate of such Seller, to any Person succeeding
to the business of such Seller, to any Person into which such Seller is merged
and to any Person resulting from any merger, conversion or consolidation to
which such Seller is a party. The parties hereto acknowledge that the Purchaser
is acquiring the Mortgage Loans for the purpose of contributing them to the
GMACM Mortgage Loan Trust 2002-GH1.
(b) As an inducement to the Purchaser and the Issuer to purchase the Mortgage
Loans, each Seller acknowledges and consents to (i) the assignment by the
Purchaser to the Issuer of all of the Purchaser's rights against either 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 either Seller pursuant to this Agreement by the Issuer, (ii) the
enforcement or exercise of any right or remedy against such 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
18
the Indenture Trustee of any such right or remedy against either Seller
following an Event of Default under the Indenture. Such enforcement of a right
or remedy by the Issuer, the Owner Trustee or the Indenture Trustee, as
applicable, shall have the same force and effect as if the right or remedy had
been enforced or exercised by the Purchaser or the Issuer directly.
Section 8.10 Survival. The representations and warranties made herein by each
Seller and the provisions of Article VI hereof shall survive the purchase of the
Mortgage Loans hereunder.
19
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., as
Purchaser
By:
---------------------------------------
Name:
Title:
GMAC MORTGAGE CORPORATION,
as Seller
By:
---------------------------------------
Name:
Title:
XXXXXX FUNDING LLC, as Seller
By: GMAC Mortgage Corporation
By:
---------------------------------------
Name: Xxxxx Xxxx
Title: Executive Vice President
GMACM MORTGAGE LOAN TRUST 2002-GH1, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as
Owner Trustee
By:
---------------------------------------
Name:
Title:
BANK ONE, NATIONAL ASSOCIATION., as Indenture
Trustee
By:
---------------------------------------
Name:
Title:
20
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
[On File with GMACM and Servicer]
21
EXHIBIT 2
MORTGAGE FILES WITH MISSING DOCUMENTS
[On File with GMACM and Servicer]
22
