EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement") dated as of
June 15, 2004 between GMAC Mortgage Corporation, a Pennsylvania corporation,
having an office at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, as seller
("GMACM" or the "Seller") and Residential Asset Mortgage Products, Inc., a
Delaware corporation, having an office at 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 (the "Purchaser").
WHEREAS, the Seller, in the ordinary course of its business acquires and
originates mortgage loans and acquired or originated all of the mortgage loans
listed on the Mortgage Loan Schedule attached as Schedule I hereto (the
"Mortgage Loans");
WHEREAS, the Seller owns the Cut-off Date Principal Balances of the
Mortgage Loans;
WHEREAS, the parties hereto desire that the Seller sell the Cut-off Date
Principal Balances of the Mortgage Loans to the Purchaser on the Closing Date
pursuant to the terms of this Agreement; and
WHEREAS, the parties hereto desire that the Seller continue servicing
the Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
The following terms are defined as follows:
Aggregate Principal Balance
(as of the Cut-off Date): $350,038,494.55 (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:
June 15, 2004, or such other date
as may be agreed upon by the
parties hereto.
Cut-off Date:
June 1, 2004.
Mortgage Loan:
A fixed rate, fully-amortizing,
first lien, residential
conventional mortgage loan having
a term of not more than 30 years
and secured by Mortgaged
Property.
Mortgaged Property:
A single parcel of real property
on which is located a detached or
attached single-family residence,
a one-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 June 15,
2004, among Residential Asset
Mortgage Products, Inc., as
company, GMAC Mortgage
Corporation, as servicer and
JPMorgan Chase Bank, as trustee
(the "Trustee"), related to the
Series 2004-J3 Certificates.
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 the
Mortgage Loans having an aggregate principal balance equal to the Aggregate
Principal Balance of the Mortgage Loans.
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, attached hereto as Schedule I ("Mortgage Loan
Schedule").
SECTION 3. Purchase Price of Mortgage Loans. The purchase price to be paid to
the Seller by the Purchaser for the Mortgage Loans shall be the sum of (i)
$333,162,839.09, (ii) the Class PO, the Class IO Certificates and (iii) a 0.02%
Percentage Interest in each of the Class R-I Certificates and Class R-II
Certificates issued pursuant to the Pooling and Servicing Agreement. The cash
portion of the purchase price due to the Seller 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 the Seller's 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
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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 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
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) GMACM 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
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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 related
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
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 the
Seller's possession shall be held by GMACM in a custodial capacity only for the
benefit of the Purchaser. GMACM 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, in connection with the conveyance by
the Seller of the Mortgage Loans, 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,
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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.
(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.
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(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.
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SECTION 7.01 Representations and Warranties of Seller. The Seller
represents, warrants and covenants to the Purchaser that as of the Closing Date
or as of such date specifically provided herein:
(a) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania and is or will
be in compliance with the laws of each state in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan;
(b) The Seller has the power and authority to make, execute, deliver and
perform its obligations under this Agreement and all of the transactions
contemplated under this Agreement, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement; this
Agreement constitutes a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity) or by public policy with respect
to indemnification under applicable securities laws;
(c) The execution and delivery of this Agreement by the Seller and its
performance and compliance with the terms of this Agreement will not violate the
Seller's Certificate of Incorporation or Bylaws or constitute a material default
(or an event which, with notice or lapse of time, or both, would constitute a
material default) under, or result in the material breach of, any material
contract, agreement or other instrument to which the Seller is a party or which
may be applicable to the Seller or any of its assets;
(d) No litigation before any court, tribunal or governmental body is
currently pending, nor to the knowledge of the Seller is threatened against the
Seller, nor is there any such litigation currently pending, nor to the knowledge
of the Seller threatened against the Seller with respect to this Agreement that
in the opinion of the Seller has a reasonable likelihood of resulting in a
material adverse effect on the transactions contemplated by this Agreement;
(e) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement,
the sale of the Mortgage Loans or the consummation of the transactions
contemplated by this Agreement except for consents, approvals, authorizations
and orders which have been obtained;
(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;
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(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 Xxxxxx Xxx and Xxxxxxx Mac. The Seller is in good standing to sell mortgage
loans to and service mortgage loans for Xxxxxx Mae and Xxxxxxx Mac and no event
has occurred which would make the Seller unable to comply with eligibility
requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx
Mac; and
(j) No written statement, report or other document furnished or to be
furnished pursuant to the Agreement contains or will contain any statement that
is or will be inaccurate or misleading in any material respect.
SECTION 7.02 Representations and Warranties as to Individual Mortgage
Loans. The Seller hereby represents and warrants to the Purchaser, as to each
Mortgage Loan (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 Closing 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 related Mortgage Loan;
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(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 the 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
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 Xxxxxx Mae and Xxxxxxx 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 Xxxxxx Mae and Xxxxxxx
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
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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 thereto 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
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 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
within 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);
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(q) The Mortgage Loan was originated by the Seller or by an eligible
correspondent of the Seller. The Mortgage Loan complies in all material respects
with all the terms, conditions and requirements of the Seller's underwriting
standards in effect at the time of origination of such Mortgage Loan. The
Mortgage Notes and Mortgages are on uniform Xxxxxx Xxx/Xxxxxxx Mac instruments
or are on forms acceptable to Xxxxxx Mae or Xxxxxxx Mac;
(r) The Mortgage Loan contains the usual and enforceable provisions of the
originator at the time of origination for the acceleration of the payment of the
unpaid principal amount if the related Mortgaged Property is sold without the
prior consent of the mortgagee thereunder. The Mortgage Loan has an original
term to maturity of not more than 30 years, with interest payable in arrears on
the first day of each month. Except as otherwise set forth on the Mortgage Loan
Schedule, the Mortgage Loan does not contain terms or provisions which would
result in negative amortization nor contain "graduated payment" features or
"buydown" features;
(s) To the Seller's knowledge, the Mortgaged Property at origination of the
Mortgage Loan was and currently is free of damage and waste and at origination
of the Mortgage Loan there was, and there currently is, no proceeding pending
for the total or partial condemnation thereof;
(t) The related Mortgage contains enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided thereby,
including, (1) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (2) otherwise by judicial foreclosure. To the Seller's
knowledge, there is no homestead or other exemption available to the Mortgagor
which would interfere with the right to sell the Mortgaged Property at a
trustee's sale or the right to foreclose the Mortgage;
(u) If the Mortgage constitutes a deed of trust, a trustee, duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed of
trust, except in connection with a trustees sale or attempted sale after default
by the Mortgagor;
(v) If required by the applicable processing style, the Mortgage File
contains an appraisal of the related Mortgaged Property made and signed prior to
the final approval of the mortgage loan application by an appraiser that is
acceptable to Xxxxxx Mae or Xxxxxxx Mac and approved by the Seller. The
appraisal, if applicable, is in a form generally acceptable to Xxxxxx Mae or
Xxxxxxx 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 one- 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 Xxxxxx Mae or Xxxxxxx Mac
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requirements regarding such dwellings or is covered by a waiver confirming that
such condominium unit or planned unit development is acceptable to Xxxxxx Mae or
Xxxxxxx 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 Xxxxxx Mae and Xxxxxxx 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 collection and servicing practices with respect to each Mortgage
Note and Mortgage have been in all material respects legal, normal and usual in
GMACM's general mortgage servicing activities. With respect to escrow deposits
and payments that GMACM collects, all such payments are in the possession of, or
under the control of, GMACM, 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;
(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;
(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; and
(cc) The Mortgage Loan is not subject to the Home Ownership and Equity
Protection Act of 1994 ("HOEPA").
(dd) The Mortgage Loan (i) is not a "high-cost home loan" as defined in the
Georgia Act, Georgia Fair Lending Act, as amended, the New York Act, New York
Predatory Lending Law, codified as N.Y. Banking Law ss.6-I, N.Y. Gen. Bus. Law
ss.771-a, and N.Y. Real Prop. Acts Law ss.1302, the Arkansas Home Loan
Protection Act, as amended, or the Kentucky Revised Statutes ss.360.100, as
amended, the Florida Fair Lending Act, as amended, the Washington, DC Act, the
Home Loan Protection Act of 2002, as amended, the Home Ownership Security Act of
New Jersey, as amended, or the Home Loan Protection Act of New Mexico, as
amended, or under the applicable laws of the State of Maine, codified as Maine
Laws 2003, House Xxxx 383, as amended, the applicable laws of the State of
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Nevada, codified as Nev. A.B. 284 (2003), as amended, the applicable laws of the
City of Los Angeles, codified as L.A. Mun. Code ss. 162.00 et seq., as amended,
or under the applicable laws of the City of New York, codified as N.Y. City Xxxx
67-A (2002) and (ii) is not 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) The Mortgage Loan, if originated after October 1, 2002, and before March 7,
2003, is not 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 or the examination of any Mortgage File. Upon
discovery by the Seller or the Purchaser of a breach of the 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 such Person was notified of such breach or (ii) repurchase such
Mortgage Loan at the related Purchase Price within 90 days from the date such
Person 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 the Seller at the Purchase Price
or substituted 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, such Person 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.
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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) forward or cause to be
forwarded 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 the 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.
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.
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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.
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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, as Seller
By:_________________________________
Name:
Title:
RESIDENTIAL ASSET MORTGAGE PRODUCTS,
INC., as Purchaser
By:_________________________________
Name:
Title:
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SCHEDULE I
MORTGAGE LOAN SCHEDULE
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