MORTGAGE LOAN PURCHASE AGREEMENT
This is a Mortgage Loan Purchase Agreement (the "Agreement") dated as of
September 29, 2003 between GMAC Mortgage Corporation, a Pennsylvania
corporation, having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
as seller ("GMACM" or the "Seller") and Residential Asset Mortgage Products,
Inc., a Delaware corporation, having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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;
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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): $402,790,461.32 (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:
September 29, 2003, or such other
date as may be agreed upon by the
parties hereto.
Cut-off Date:
September 1, 2003.
Mortgage Loan:
A fixed rate, fully-amortizing,
first lien, residential
conventional mortgage loan having
a term of not more than 30 years
and secured by Mortgaged
Property.
Mortgaged Property:
A single parcel of real property
on which is located a detached
single-family residence, a
two-to-four family dwelling, a
townhouse, an individual
condominium unit, or an
individual unit in a planned unit
development, or a proprietary
lease in a unit in a
cooperatively-owned apartment
building and stock in the related
cooperative corporation.
Pooling and Servicing Agreement:
The pooling and servicing
agreement, dated as of September
29, 2003, among Residential Asset
Mortgage Products, Inc., as
company, GMAC Mortgage
Corporation, as servicer and Bank
One, National Association, as
trustee (the "Trustee"), related
to the Series 2003-J6
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.
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All capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement. The parties
intend hereby to set forth the terms and conditions upon which the proposed
transactions will be effected and, in consideration of the premises and the
mutual agreements set forth herein, agree as follows:
SECTION 1. Agreement to Sell and Purchase Mortgage Loans. The Seller agrees to
sell to the Purchaser and the Purchaser agrees to purchase from the Seller 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)
$381,462,248.05, (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
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
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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
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.
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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,
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,
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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;
(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
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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
(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.
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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;
(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;
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(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
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
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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);
(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 ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇ 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 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
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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 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
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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 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, or under the applicable laws of the State of Maine,
codified as Maine Laws 2003, House ▇▇▇▇ 383.
(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
12
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.
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
13
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.
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:
SCHEDULE I
MORTGAGE LOAN SCHEDULE
(Attached Hereto)