Exhibit 10.27
Execution Copy
MASTER MORTGAGE LOAN PURCHASE AND
SALE AGREEMENT
Residential Mortgage Loans and
Home Equity Loans /Lines of Credit
between
GMAC BANK
“Seller”
and
GMAC MORTGAGE, LLC
“Purchaser”
Amended and Restated as
of
[July 1, 2008]
MASTER MORTGAGE LOAN PURCHASE AND
SALE AGREEMENT
(Mortgage Loans and Home Equity Loans/Lines of
Credit-Flow Delivery)
MASTER MORTGAGE LOAN PURCHASE AND
SALE AGREEMENT (the
“Agreement”), amended and restated as of [July 1, 2008]
is by and between GMAC BANK, an industrial bank, with its principal
office at 6985 Union Park Center, Suite 435, Midvale, Utah 84047
(“Seller”), and GMAC MORTGAGE, LLC, a Delaware limited
liability company with offices at 1100 Virginia Drive, Fort
Washington, Pennsylvania 19034
(“Purchaser”).
RECITALS
1. Seller is engaged in, inter
alia , the purchase and sale of Mortgage Loans (as hereinafter
defined);
2. Seller desires to sell, from time
to time, and Purchaser desires to purchase, from time to time, all
right, title, and interest in and to certain Mortgage Loans in
accordance with the terms and conditions of this Agreement. This
Agreement shall apply to every sale transaction and transfer
between Purchaser and Seller with respect to Mortgage Loans, except
as otherwise agreed by the parties; and
3. Under Federal Reserve System
Regulation W (12 CFR §223.1 et. seq .), the Seller and
the Purchaser are affiliates of each other. The Seller and
Purchaser intend that this Agreement comply with requirements of
Sections 23A and 23B of the Federal Reserve Act (12 USC §221
et. seq .) and with implementing federal
regulations.
NOW, THEREFORE
, in consideration of the mutual
promises contained herein and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
Definitions
All words or phrases defined in this
Article I (except as herein otherwise expressly provided or unless
the context otherwise requires) shall, for the purposes of this
Agreement, have the respective meanings specified in this
Article.
1.1 Affiliate
means with respect to any party
hereto, any person or entity which controls, is controlled by, or
is under common control with, such party.
1.2 Agencies
means Fannie Mae and Freddie Mac, or
any successor organizations thereto.
1.3 Agreement
means this Master Mortgage Loan
Purchase and Sale Agreement, as amended and restated, and all
exhibits, schedules, amendments and supplements attached hereto,
and any written amendments or modifications hereto signed by both
Seller and Purchaser.
1.4 Applicable
Law means
(a) all federal, state and local legal and regulatory
requirements (including statutes, rules regulations and ordinances)
applicable to the Bank, (b) all other requirements and
guidelines of FDIC, The Utah Department of Financial Institutions,
and any other governmental body or officer having jurisdiction over
the Bank, (c) all judicial and administrative judgments,
orders, stipulations, awards, writs and injunctions applicable to
the Bank and (d) the Bank’s Affiliate Transaction
Policy, as it may be amended from time to time.
1.5 Assignment of
Mortgage means an
assignment of all of Seller’s right, title and interest in
and to a Mortgage, in a form acceptable to Purchaser, to be
executed by Seller in connection with each Mortgage Loan purchased
hereunder in the event such Mortgage Loan is not registered on the
MERS® System.
1.6 Business
Day means a day of
the week other than Saturday, Sunday, or a day which is a legal
holiday or a bank holiday in the Commonwealth of Pennsylvania or
the State of Utah.
1.7 Closing Date means, with respect
to each purchase of Mortgage Loans hereunder, the date on which
such purchase shall occur and the applicable Purchase Price shall
be paid, all as specified in the related Confirmation.
1.8
Confirmation means
a written confirmation letter delivered by Purchaser to Seller
which shall provide, with respect to a purchase of Mortgage Loans
hereunder, a Mortgage Loan Schedule, the Purchase Price to be paid
by Purchaser for each Mortgage Loan to be purchased, additional
terms and conditions pertaining to the purchase of Mortgage Loans,
and the scheduled Closing Date. A form of Confirmation is attached
hereto as Exhibit A.
1.8A Construction Loan
means a First Lien Mortgage Loan for the purpose of construction or
substantial rehabilitation of real property that, upon completion
of the construction or rehabilitation, converts to a permanent
First Lien Mortgage Loan.
1.9 Cost Basis
means, with respect to a Mortgage
Loan, its net carrying value, as defined by accounting principles
generally accepted in the United States of America (as amended) to
include without limitation the unpaid principal balance of such
Mortgage Loan, plus or minus any premium or discount paid, net
deferral fees or costs, accrued interest and basis adjustments from
derivative loan commitments, hedge accounting or lower of cost or
market adjustments.
1.10 Cutoff
Date means, with
respect to a purchase of Mortgage Loans, the last Business Day of
the month preceding the month in which the Closing Date
occurs.
1.11 First Lien Mortgage
Loan means an
individual Mortgage Loan which is secured by a Mortgage that
creates a first priority lien upon the related Mortgaged Property,
including without limitation a Construction Loan or a Lot
Loan.
1.12 FDIC
. FDIC means the Federal Deposit
Insurance Corporation.
1.12A Lot Loan
means a First Lien Mortgage Loan,
for which the Mortgaged Property consists of unimproved real
property.
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1.13 Market
Value means, with
respect to a Second Lien Mortgage Loan, the market value of such
Second Lien Mortgage Loan, as determined by the Seller with
reference to independent pricing sources.
1.14 MERS
means Mortgage Electronic
Registration Systems, Inc., a corporation organized and existing
under the laws of the State of Delaware, or any successor
thereto.
1.15 MERS®
System means the
system of recording transfers of Mortgages electronically
maintained by MERS.
1.16 Mortgage
means a valid and enforceable
mortgage, deed of trust, or other security instrument creating a
first or second lien, as applicable, upon described real property
improved by a one-to-four family dwelling which secures a Mortgage
Note.
1.17 Mortgage
File means the
Mortgage Loan Documents, records and other items pertaining to a
particular Mortgage Loan. Except to the extent required by
Applicable Law, the Mortgage File may be retained in microfilm,
microfiche, optical storage or magnetic media in lieu of hard
copy.
1.18 Mortgage
Loan means an
individual mortgage loan, home equity line of credit or home equity
loan which is secured by an interest in residential (1 to 4 family)
real estate, as well as Construction and Lot Loans which are
subject to purchase commitment under this Agreement.
1.19 Mortgage Loan
Documents means the
Mortgage Notes, Mortgages and all accompanying instruments,
insurance policies, if applicable, evidence of compliance with
Applicable Law, and other writings that document, evidence or
relate to the Mortgage Loans purchased hereunder which include,
without limitation, all documents required to be delivered by
Seller to Purchaser pursuant to the terms of this Agreement and the
related Confirmation.
1.20 Mortgage
Note means a written
promise by a Mortgagor to pay a sum of money at a stated interest
rate during a specified term that evidences a Mortgage
Loan.
1.21 Mortgage Loan
Schedule means a list
of Mortgage Loans to be purchased by Purchaser, as may be
supplemented or amended from time to time, and which is attached as
an Exhibit to the Confirmation.
1.22 Mortgaged
Property means the
real property and any improvements subject to a Mortgage,
constituting security for repayment of the debt evidenced by the
related Mortgage Note.
1.23 Mortgagor
means the Mortgagor on a Mortgage
Note.
1.24 Purchase
Price means
(a) with respect to a First Lien Mortgage Loan, the Cost Basis
associated with such First Lien Mortgage Loan, and (b) with
respect to a Second Lien Mortgage Loan, the Market Value for such
Second Lien Mortgage Loan.
1.25 Second Lien Mortgage
Loan means an
individual Mortgage Loan which is (a) secured by a Mortgage
that creates a second priority lien upon the related Mortgaged
Property and/or (b) a home equity line of credit.
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1.26 Wire
Transfer means
(a) a bank wire transfer of immediately available funds or
(b) an ACH transaction resulting in availability of funds on
the same date as would have been the case had a bank wire transfer
of immediately available funds been employed.
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ARTICLE II
Sale and Delivery of Mortgage
Loans
2.1 Commitment.
Seller hereby confirms its agreement
to sell, and Purchaser confirms its agreement to purchase, on a
non-recourse basis, from time to time during the term of this
Agreement, on a mandatory delivery basis, any and all Mortgage
Loans to be originated or acquired by Seller that are classified on
the balance sheet of the Seller as “held for sale” or
with respect to Construction and Lot Loans, held in any balance
sheet category. Such Mortgage Loans will be sold by Seller at the
applicable Purchase Price as whole loans, subject to the terms and
conditions of this Agreement. Mortgage Loans may be sold on a
servicing-retained or servicing-released basis, as specified in the
applicable Mortgage Loan Schedule and Confirmation.
2.2 Offer and
Acceptance.
(a) Seller shall provide Purchaser
with access to loan-level information relating to Seller’s
inventory of mortgage loans held for sale. Such access will be
provided solely for the purposes of facilitating Purchaser’s
evaluation of mortgage loans for purchase by Purchaser. Access will
be provided subject to Applicable Law and regulations pertaining to
consumer privacy, including without limitation, the
Gramm-Leach-Bliley Act.
(b) With respect to Mortgage Loans
from time to time during the term of this agreement, Purchaser
shall notify Seller of Purchaser’s intent to purchase
Mortgage Loans pursuant to the commitment set forth in
Section 2.1 of this Agreement. Such notice shall be
accompanied by a proposed Mortgage Loan Schedule and Confirmation.
Seller may consent to the consummation of the transaction by
electronic acceptance of the Confirmation in accordance with the
requirement of Section 2.2(d) of this agreement.
(c) On or about
June 15 th of each calendar year, Seller
may elect to provide Purchaser with a report listing all Mortgage
Loans subject to the Commitment set forth in Section 2.1 above
that have aged for a period of one hundred and eighty
(180) days or more (“Aged Mortgage Loans). Purchaser
will promptly purchase each such Aged Mortgage Loan for the
Purchase Price, calculated as of the preceding month-end plus
accrued interest to the transfer date.
(d) Notwithstanding anything
contained in Section 8.4 of this Agreement, it is understood
and agreed that (i) Purchaser may transmit notices, proposed
Mortgage Loan Schedules and Confirmations to Seller by e-mail to
the attention of Seller’s designated Mortgage Loan Operations
Officer, and (ii) Seller may transmit its acceptance of any
Confirmation by e-mail to the attention of Purchaser’s
designated Capital Markets Trading Officer.
(e) Purchaser agrees that it shall
not use adverse selection procedures in its selection of Mortgage
Loans for purchase hereunder.
(f) With respect to First Lien
Mortgage loans, from time to time Seller will provide Purchaser
with a report listing all Mortgage Loans subject to the Commitment
set forth in Section 2.1 above that have been delinquent for a
period of sixty (60) days or more as of the date of such
report (“Delinquent First Mortgage Loans). Purchaser will
promptly purchase each such Delinquent First Mortgage Loan for the
Purchase Price, calculated as of the preceding
month-end.
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2.3 [RESERVED]
2.4 Closing
.
(a) Prior to each Closing Date,
Purchaser shall prepare a final Mortgage Loan Schedule detailing
the Mortgage Loans to be purchased on the Closing Date.
(b) On each Closing Date hereunder,
subject to, and upon the terms and conditions of, this Agreement,
Seller shall sell, transfer, assign, transfer, convey and deliver
to Purchaser, on a servicing-retained or servicing-released basis,
as applicable, and Purchaser shall purchase, all right, title and
interest in and to the Mortgage Loans.
(c) On the Closing Date, the
Purchaser shall deposit funds in an amount equal to the Purchase
Price by Wire Transfer, (i) in accordance with the terms of
any bailee letter delivered to Purchaser by Seller, (ii) in
the absence of any such bailee letter, to a bank account to be
designated in writing by Seller, or (iii) as otherwise agreed
upon in writing by the parties.
(d) Upon payment of the Purchase
Price, title to the Mortgage Loans, Mortgage Loan Documents, and
all rights, benefits, collateral, payments, recoveries, proceeds
and obligations arising from or in connection with the Mortgage
Loans shall vest in Purchaser.
2.5 Computation;
Adjustment . It is
understood and agreed that:
(a) All wiring instructions and
Purchase Price information necessary to effect payment of the
Purchase Price shall be provided to Purchaser at least two Business
Days prior to the date of payment.
(b) If the principal balance of any
of the Mortgage Loans used in computing the payment of the Purchase
Price shall be found to be incorrectly computed, the Purchase Price
shall be promptly and appropriately adjusted and payment promptly
made by the appropriate party.
ARTICLE III
General Representations and
Warranties of Seller
As an inducement to Purchaser to
enter into this Agreement, Seller represents and warrants as
follows, as of each Closing Date:
3.1 Due Organization and Good
Standing . The
Seller is an industrial bank duly organized, validly existing and
in good standing under the laws of the State of Utah during the
time of its activities with respect to the Mortgage
Loans.
3.2 Authority and Capacity
. Seller has all
requisite power, authority and capacity to enter into this
Agreement and to perform the obligations require
