EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement") dated as of
July 27, 2004 by and between GMAC Mortgage Corporation, a Pennsylvania
corporation, having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Seller") and Residential Asset Mortgage Products, Inc., a Delaware
corporation, and having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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):
$510,109,182.70 (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:
July 27, 2004, or such other date
as may be agreed upon by the
parties hereto.
Cut-Off Date: July 1, 2004.
Mortgage Loan:
A hybrid adjustable 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 July 27,
2004, among Residential Asset
Mortgage Products, Inc., as
company, GMAC Mortgage Corporation,
as servicer and JPMorgan Chase
Bank, as trustee (the "Trustee").
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Repurchase Event:
With respect to any Mortgage Loan
as to which the Seller delivers an
affidavit certifying that the
original Mortgage Note has been
lost or destroyed, a subsequent
default on such Mortgage Loan if
the enforcement thereof or of the
related Mortgage is materially and
adversely affected by the absence
of such original Mortgage Note.
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) $500,414,461.80 and (ii) a 0.01%
Percentage Interest in the Class R Certificates issued pursuant to the Pooling
and Servicing Agreement. The cash portion of the purchase price shall be paid by
wire transfer of immediately available funds on the Closing Date to the account
specified by the Seller.
The Purchaser and Seller intend that the conveyance by the Seller
to the Purchaser of all its right, title and interest in and to the Mortgage
Loans pursuant to this Agreement shall be, and be construed as, a sale of the
Mortgage Loans by the Seller to the Purchaser. It is, further, not intended that
such conveyance be deemed to be a grant of a security interest in 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 and hereby is a security agreement within the meaning of
Articles 9 of the Pennsylvania Uniform Commercial Code, the Delaware Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided for in this Section shall be deemed to
be, and hereby is, a grant by the Seller to the Purchaser of a security interest
in all of the Seller's right, title and interest, whether now owned or hereafter
acquired, in and to 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, (C) all proceeds of
the conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, (D) all accounts, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
goods, letters of credit, letter-of-credit rights, oil, gas, and other minerals,
and investment property consisting of, arising from or relating to any of the
foregoing and (E) all proceeds of the foregoing; (c) the possession by the
Trustee, the Custodian or any other agent of the Trustee of any of the foregoing
shall be deemed to be possession by the secured party, or possession by a
purchaser or a person holding for the benefit of such secured party, for
purposes of perfecting the security interest pursuant to the Pennsylvania
Uniform Commercial Code, the Delaware Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction (including, without
limitation, Sections 9-313 and 9-314 of each thereof); and (d) notifications to
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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, the Trustee (as applicable) 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 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 type or
jurisdiction of organization 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. 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
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the exclusive benefit of the Purchaser as the owner of the Mortgage Loans. On
and after the Closing Date, any portion of the related Mortgage Files or
servicing files related to the Mortgage Loans (the "Servicing Files") in
Seller's possession shall be held by Seller in a custodial capacity only for the
benefit of the Purchaser. The Seller shall release its custody of any contents
of the related Mortgage Files or Servicing Files only in accordance with written
instructions of the Purchaser or the Purchaser's designee.
SECTION 5. Books and Records. The sale of each Mortgage Loan has
been reflected on the Seller's balance sheet and other financial statements as a
sale of assets by the Seller. The Seller shall be responsible for maintaining,
and shall maintain, a complete set of books and records for the Mortgage Loans
which shall be appropriately identified in the Seller's computer system to
clearly reflect the ownership of the Mortgage Loans by the Purchaser.
SECTION 6. Delivery of Mortgage Notes.
(a) On or prior to the Closing Date, the Seller shall deliver to
the Purchaser or the Custodian, as directed by the Purchaser, the original
Mortgage Note, with respect to each Mortgage Loan so assigned, 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]." The delivery of each Mortgage
Note to the Purchaser or the Custodian is at the expense of the Seller.
In lieu of delivering the Mortgage Note relating to any Mortgage
Loan, the Seller may deliver or cause to be delivered 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 Purchaser 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.
(b) If any Mortgage Note is not delivered to the Purchaser (or
the Custodian as directed by the Purchaser) or the Purchaser discovers any
defect with respect to a Mortgage Note which materially and adversely affects
the interests of the Certificateholders in the related Mortgage Loan, the
Purchaser shall give prompt written specification of such defect or omission to
the Seller, and the Seller shall cure such defect or omission in all material
respects or repurchase such Mortgage Loan or substitute a Qualified Substitute
Mortgage Loan in the manner set forth in Section 7.03. 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,
or omission of, a Mortgage Note exists, shall constitute the sole remedy
respecting such material defect or omission available to the Purchaser,
Certificateholders or the Trustee on behalf of Certificateholders.
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(c) All other documents contained in the Mortgage File and any
original documents relating to the Mortgage Loans not contained in the Mortgage
File or delivered to the Purchaser, are and shall be retained by the Servicer in
trust as agent for the Purchaser.
In the event that in connection with any Mortgage Loan: (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) evidence of title insurance (together with all
riders thereto, if any) satisfying the requirements of clause (I)(ii), (iv),
(vi) or (vii) of the definition of Mortgage File, respectively, is not in the
possession of the Servicer concurrently with the execution and delivery hereof
because such document or documents have not been returned from the applicable
public recording office, or, in the case of each such interim assignment or
modification agreement, because the related Mortgage has not been returned by
the appropriate recording office, in the case of clause (I)(ii), (iv) or (vi) of
the definition of Mortgage File, or because the evidence of title insurance has
not been delivered to the Seller by the title insurer in the case of clause
(I)(vii) of the definition of Mortgage File, the Servicer shall use its best
efforts to obtain, (A) in the case of clause (I)(ii), (iv) or (vi) of the
definition of Mortgage File, such original Mortgage, such interim assignment, or
such modification agreement, 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, or (B) in the case of clause
(I)(vii) of the definition of Mortgage File, evidence of title insurance.
(d) If any of the documents held by the Servicer pursuant to
clause (c) above are missing or defective in any other respect and such missing
document or defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, 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. 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 or omission of a
constituent document exists, shall constitute the sole remedy respecting such
material defect or omission available to the Purchaser, Certificateholders or
the Trustee on behalf of Certificateholders.
(e) If any assignment is lost or returned unrecorded to the
Servicer 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.
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;
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(b) The Seller has the power and authority to make, execute,
deliver and perform its obligations under this Agreement and all of the
transactions contemplated under this Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Agreement; this Agreement constitutes a legal, valid and binding obligation of
the Seller, enforceable against the Seller in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity) or by public policy with respect
to indemnification under applicable securities laws;
(c) The execution and delivery of this Agreement by the Seller
and its performance and compliance with the terms of this Agreement will not
violate the Seller's Certificate of Incorporation or Bylaws or constitute a
material default (or an event which, with notice or lapse of time, or both,
would constitute a material default) under, or result in the material breach of,
any material contract, agreement or other instrument to which the Seller is a
party or which may be applicable to the Seller or any of its assets;
(d) No litigation before any court, tribunal or governmental body
is currently pending, nor to the knowledge of the Seller is threatened against
the Seller, nor is there any such litigation currently pending, nor to the
knowledge of the Seller threatened against the Seller with respect to this
Agreement that in the opinion of the Seller has a reasonable likelihood of
resulting in a material adverse effect on the transactions contemplated by this
Agreement;
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement,
the sale of the Mortgage Loans or the consummation of the transactions
contemplated by this Agreement except for consents, approvals, authorizations
and orders which have been obtained;
(f) The consummation of the transactions contemplated by this
Agreement is in the ordinary course of business of the Seller, and the transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages relating to
the Mortgage Loans 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 ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac. The Seller is in good standing to
sell mortgage loans to and service mortgage loans for ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac
and no event has occurred which would make the Seller unable to comply with
eligibility requirements or which would require notification to either ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac; and
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(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 (except as otherwise specified below), 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 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;
(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 Cut-Off Date, the Mortgage Loan is not
delinquent in payment more than 30 days and has not been dishonored; there are
no defaults under the terms of the Mortgage Loan; and the Seller has not
advanced funds, or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the Mortgaged Property subject to the
Mortgage, directly or indirectly, for the payment of any amount required by the
Mortgage Loan;
(d) There are no delinquent taxes which are due and payable,
ground rents, assessments or other outstanding charges affecting the related
Mortgaged Property;
(e) The Mortgage Note 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 by the Seller, or to the best of
Seller's knowledge, by any other person, 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
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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 ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇
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) Each Mortgage Loan as of the time of its origination complied
in all material respects with all applicable local, state and federal laws,
including, but not limited to, all applicable predatory lending laws;
(i) The Mortgage has not been satisfied, canceled or
subordinated, in whole or in part, or rescinded, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or in part nor has any
instrument been executed that would effect any such satisfaction, release,
cancellation, subordination or rescission;
(j) The Mortgage Note and the related Mortgage are original and
genuine and each is the legal, valid and binding obligation of the maker
thereof, enforceable in all respects in accordance with its terms subject to
bankruptcy, insolvency and other laws of general application affecting the
rights of creditors. All parties to the Mortgage Note and the Mortgage had the
legal capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage Note and the Mortgage. The Mortgage Note and the Mortgage have been
duly and properly executed by such parties. The proceeds of the Mortgage Note
have been fully disbursed and there is no requirement for future advances
thereunder;
(k) With respect to each Mortgage Loan, (A) immediately prior to
the transfer and assignment to the Purchaser, the Mortgage Note and the Mortgage
were not subject to an assignment or pledge, except for any assignment or pledge
that had been satisfied and released, (B) the Seller had good and marketable
title to and was the sole owner thereof and (C) the Seller 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
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affirmatively insures ingress and egress and against encroachments by or upon
the Mortgaged Property or any interest therein. The Seller is the sole insured
of such lender's title insurance policy, such title insurance policy has been
duly and validly endorsed to the Purchaser or the assignment to the Purchaser of
the Seller's interest therein does not require the consent of or notification to
the insurer and such lender's title insurance policy is in full force and effect
and will be in full force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder of the related Mortgage has done, by
act or omission, anything which would impair the coverage of such lender's title
insurance policy;
(m) To the Seller's knowledge, there is no default, breach,
violation or event of acceleration existing under the Mortgage or the related
Mortgage Note and no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a default, breach,
violation or event permitting acceleration; and neither the Seller nor any prior
mortgagee has waived any default, breach, violation or event permitting
acceleration;
(n) To the Seller's knowledge, there are no mechanics, or similar
liens or claims which have been filed for work, labor or material affecting the
related Mortgaged Property which are or may be liens prior to or equal to the
lien of the related Mortgage;
(o) To the Seller's knowledge, all improvements lie wholly within
the boundaries and building restriction lines of the Mortgaged Property (and
wholly with the project with respect to a condominium unit) and no improvements
on adjoining properties encroach upon the Mortgaged Property except those which
are insured against by the title insurance policy referred to in clause (l)
above and all improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(p) The Mortgage Loan is a "qualified mortgage" under Section
860(G)(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1);
(q) 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. The Mortgage Notes and
Mortgages are on uniform ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇ Mac instruments or are on forms
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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, to the Seller's knowledge, at origination of the Mortgage Loan there was,
and there currently is, no proceeding pending for the total or partial
condemnation thereof;
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(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 ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac and approved by the Seller. The
appraisal, if applicable, is in a form generally acceptable to ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac;
(w) To the Seller's knowledge, each of the Mortgaged Properties
consists of a single parcel of real property with a detached single-family
residence erected thereon, or a two- to four-family dwelling, a townhouse, an
individual condominium unit in a condominium project, an individual unit in a
planned unit development or a proprietary lease on a cooperatively owned
apartment and stock in the related cooperative corporation. Any condominium unit
or planned unit development either conforms with applicable ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac requirements regarding such dwellings or is covered by a waiver
confirming that such condominium unit or planned unit development is acceptable
to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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% or the excess over 80.00% is insured as to payment
defaults by a primary mortgage insurance policy issued by a primary mortgage
insurer acceptable to ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac;
(y) 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;
(z) 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;
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(aa) 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; and
(bb) If any of the Mortgage Loans are secured by a leasehold
interest, with respect to each leasehold interest: residential property in such
area consisting of leasehold estates is readily marketable; the lease is
recorded and is in full force and effect and is not subject to any prior lien or
encumbrance by which the leasehold could be terminated or subject to any charge
or penalty; and the remaining term of the lease does not terminate less than ten
years after the maturity date of such Mortgage Loan.
(cc) None of the Mortgage Loans are subject to the Home Ownership
and Equity Protection Act of 1994 ("HOEPA").
(dd) No Mortgage Loan is a "High Cost Loan" or a "Covered Loan"
(as such terms are defined in the version of Appendix E to the Standard & Poor's
LEVELS Glossary in effect as of the Closing Date);
(ee) No Mortgage Loan originated after October 1, 2002 and before
March 7, 2003 is secured by Mortgaged Property in the State of Georgia.
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 Loan documents to the Purchaser or its designees 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 representations and warranties made by the Seller, or upon the
occurrence of a Repurchase Event, in either case which materially and adversely
affects interests of the Purchaser or its assignee in any Mortgage Loan, the
party discovering such breach or occurrence shall give prompt written notice to
each of the other parties. 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 knowledge
of the Seller. Following discovery or receipt of notice of any such breach of a
representation or warranty made by the Seller or the occurrence of a Repurchase
Event, 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 within 90 days from
the date the Seller was notified of such breach; 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 or
occurrence 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
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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 Custodian with respect to such Qualified Substitute
Mortgage Loan or Loans, the original Mortgage Note endorsed as required by
Section 6, and the Seller shall deliver to the Servicer with respect to such
Qualified Substitute Mortgage Loan, 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 to be held by the Servicer pursuant to Section 6.
No substitution will be made in any calendar month after the Determination Date
for such month. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution shall not be part of the Trust Fund
and will be retained by the Servicer and remitted by the Servicer to the Seller
on the next succeeding Distribution Date. For the month of substitution,
distributions to the Certificateholders will include the Monthly Payment due on
a Deleted Mortgage Loan for such month and thereafter the Seller shall be
entitled to retain all amounts received in respect of such Deleted Mortgage
Loan. Upon such substitution, the Qualified Substitute Mortgage Loan or Loans
shall be subject to the terms of this Agreement in all respects, and 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 furtherance of the foregoing, if the
Seller repurchases or substitutes a Mortgage Loan and is no longer a member of
MERS and the Mortgage is registered on the MERS(R) System, the Purchaser, at the
expense of the Seller and without any right of reimbursement, shall cause MERS
to execute and deliver an assignment of the Mortgage in recordable form to
transfer the Mortgage from MERS to the Seller 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 of a repurchase by the Seller pursuant to this
Section 7.03, the Purchaser shall (i) 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, (ii)
cause the Servicer to release to the Seller any remaining documents in the
related Mortgage File which are held by the Servicer, and (iii) 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 respective designee title to any such Mortgage Loan (or with respect to
any Mortgage registered on the MERS(R) System, if the Seller is still a member
of MERS, the Purchaser shall cause MERS to show the Seller as the owner of
record). 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 the Trustee on
behalf of the Certificateholders.
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SECTION 8. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
deposited, postage prepaid, in the United States mail, if mailed by registered
or certified mail, return receipt requested, or when received, if delivered by
private courier to another party, at the related address shown on the first page
hereof, or such other address as may hereafter be furnished to the parties by
like notice.
SECTION 9. 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.
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.
[Signature Page Follows]
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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:
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SCHEDULE I
MORTGAGE LOAN SCHEDULE
(a copy can be obtained from the Trustee)
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