EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This is a
Mortgage Loan Purchase
Agreement (the
"Agreement") dated as
of
July 27, 2004 by and between GMAC Mortgage Corporation, a Pennsylvania
corporation, having an office at 100 Witmer
Road, Horsham,
Pennsylvania 19044
(the "Seller") and Residential Asset Mortgage Products, Inc., a Delaware
corporation, and having an office at 8400 Normandale Lake Boulevard,
Minneapolis, Minnesota 55437 (the
"Purchaser").
The Seller
agrees to sell to the
Purchaser and the Purchaser agrees to
purchase from the Seller certain mortgage
loans on a servicing-retained basis as
described herein (the "Mortgage Loans"). The following terms are defined as
follows:
Aggregate Principal Balance
(as of the Cut-Off Date):
$510,109,182.70 (after deduction of
scheduled principal payments due on
or before the Cut-Off Date, whether
or not collected, but without
deduction of
prepayments that
may
have been made but not
reported to
the Seller
as of the close of
business on such date).
Closing
Date:
July 27, 2004,
or such other date
as may be agreed upon by the
parties hereto.
Cut-Off Date:
July 1, 2004.
Mortgage Loan:
A hybrid
adjustable
rate,
fully-amortizing, first lien,
residential
conventional
mortgage
loan having a term of not more than
30 years and secured
by Mortgaged
Property.
Mortgaged Property:
A single parcel of real property on
which is
located
a detached
single-family residence,
a
two-to-four
family dwelling,
a
townhouse, an
individual
condominium unit, or
an individual
unit in a planned unit development,
or a proprietary lease in a unit in
a
cooperatively-owned apartment
building and stock in
the related
cooperative corporation.
Pooling and Servicing Agreement:
The
pooling
and
servicing
agreement, dated
as of July 27,
2004, among
Residential
Asset
Mortgage
Products,
Inc., as
company, GMAC Mortgage Corporation,
as servicer
and JPMorgan Chase
Bank, as trustee (the "Trustee").
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Repurchase Event:
With respect to any
Mortgage Loan
as to which the Seller
delivers an
affidavit
certifying that
the
original Mortgage
Note has been
lost or destroyed, a subsequent
default on such
Mortgage Loan if
the enforcement
thereof or of the
related Mortgage is
materially and
adversely affected
by the absence
of such original Mortgage Note.
All capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Pooling and
Servicing Agreement. The parties intend
hereby to set forth the terms and conditions upon which the proposed
transactions will be effected and, in consideration of the premises and the
mutual agreements set forth herein, agree
as follows:
SECTION 1. Agreement
to Sell and Purchase
Mortgage Loans.
The
Seller agrees to sell to the Purchaser and
the Purchaser agrees to purchase from
the Seller certain Mortgage Loans having an aggregate amount equal to the
Aggregate Principal Balance as of the
Cut-Off Date.
SECTION 2. Mortgage Loan Schedule. The Seller has provided to
the
Purchaser a schedule setting forth all of the Mortgage
Loans to be purchased on
the Closing Date under this Agreement, which shall be attached hereto as
Schedule I (the "Mortgage Loan
Schedule").
SECTION 3. Purchase Price of Mortgage Loans. The purchase price
(the "Purchase Price") to be paid to the Seller by the Purchaser for the
Mortgage Loans shall be the sum of (i) $500,414,461.80 and (ii) a 0.01%
Percentage Interest in the Class R
Certificates issued
pursuant to the Pooling
and Servicing Agreement. The cash portion
of the purchase price shall be paid by
wire transfer of immediately available funds on the Closing
Date to the account
specified by the Seller.
The Purchaser and Seller intend that the conveyance by the
Seller
to the Purchaser of all its right, title and interest in and to the
Mortgage
Loans pursuant to this Agreement shall be, and be construed as, a
sale of the
Mortgage Loans by the Seller to the
Purchaser. It is, further, not intended that
such conveyance be deemed to be a grant
of a security interest
in the Mortgage
Loans by the Seller to the Purchaser to
secure a debt or other obligation of the
Seller. However, in the event that the
Mortgage Loans are held to be property of
the Seller, or if for any reason this
Agreement is held or deemed to create a
security interest in the Mortgage Loans, then it is intended that (a) this
Agreement shall be and hereby is a
security agreement within the meaning of
Articles 9 of the Pennsylvania Uniform Commercial Code, the Delaware Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; (b) the conveyance provided
for in this Section shall be deemed to
be, and hereby is, a grant by the Seller to
the Purchaser of a security interest
in all of the Seller's right, title and
interest, whether now owned or hereafter
acquired, in and to the following:
(A) the Mortgage
Loans, including (i)
with
respect to each Cooperative Loan, the
related Mortgage Note, Security Agreement,
Assignment of Proprietary Lease, Cooperative Stock Certificate, Cooperative
Lease, (ii) with respect to each Mortgage
Loan other than a
Cooperative Loan,
the related Mortgage Note and Mortgage and
(iii) any insurance
policies and all
other documents in the related Mortgage File, (B) all amounts
payable pursuant
to the Mortgage Loans in accordance with
the terms thereof, (C)
all proceeds of
the conversion, voluntary or involuntary, of the foregoing into cash,
instruments, securities or other property, (D) all accounts, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
goods, letters of credit, letter-of-credit
rights, oil, gas, and other minerals,
and investment property consisting of, arising from or
relating to any of the
foregoing and (E) all proceeds of the foregoing; (c) the possession by the
Trustee, the Custodian or any other agent
of the Trustee of any of the foregoing
shall be deemed to be possession by the secured party, or possession by a
purchaser or a person holding for the benefit of such secured party, for
purposes of perfecting the security interest pursuant to the Pennsylvania
Uniform Commercial Code, the Delaware
Uniform Commercial Code and the
Uniform
Commercial Code of any other applicable jurisdiction (including, without
limitation, Sections 9-313 and 9-314 of each
thereof); and (d) notifications to
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persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, securities intermediaries,
bailees or agents of, or persons
holding for, the
Trustee (as
applicable) for
the purpose of perfecting such security interest under applicable law. The
Seller shall, to the extent consistent with
this Agreement, take such reasonable
actions as may be necessary to ensure that,
if this Agreement were determined to
create a security interest in the Mortgage Loans and the other property
described above, such security interest would be determined to be
a perfected
security interest of first priority under
applicable law and will be maintained
as such throughout the term of this
Agreement. Without
limiting the
generality
of the foregoing, the Seller shall prepare
and deliver to the Purchaser not less
than 15 days prior to any filing date,
and the Purchaser shall file, or shall
cause to be filed, at the expense of the Seller, all filings necessary to
maintain the effectiveness of any original
filings necessary
under the Uniform
Commercial Code as in effect in any
jurisdiction
to perfect
the Purchaser's
security interest in the Mortgage Loans, including without limitation (x)
continuation statements, and (y) such other statements as
may be occasioned by
(1) any change of name of the Seller or the
Purchaser, (2) any change of type or
jurisdiction of organization of the Seller,
or (3) any transfer of
any interest
of the Seller in any Mortgage Loan.
Notwithstanding the foregoing, (i) the Seller in its capacity
as
Servicer shall retain all servicing rights (including, without limitation,
primary servicing and master servicing) relating to or arising out of the
Mortgage Loans, and all rights to receive
servicing fees,
servicing income
and
other payments made as compensation
for such servicing
granted to it under
the
Pooling and Servicing Agreement pursuant to the terms and
conditions set forth
therein (collectively, the "Servicing
Rights") and (ii) the Servicing Rights are
not included in the collateral in which the Seller
grants a security
interest
pursuant to the immediately preceding
paragraph.
SECTION 4. Record Title and Possession of Mortgage Files. The
Seller hereby sells, transfers, assigns,
sets over and conveys to the Purchaser,
without recourse, but subject to the terms of this
Agreement and the Seller
hereby acknowledges that the Purchaser,
subject to the terms
of this Agreement,
shall have all the right, title and interest of the Seller in and to the
Mortgage Loans. From the Closing Date, but
as of the Cut-off Date, the ownership
of each Mortgage Loan, including the Mortgage Note, the
Mortgage, the
contents
of the related Mortgage File and all
rights, benefits,
proceeds and obligations
arising therefrom or in connection
therewith, has been
vested in the Purchaser.
All rights arising out of the Mortgage
Loans including, but
not limited to, all
funds received on or in connection
with the Mortgage
Loans and all records
or
documents with respect to the Mortgage Loans
prepared by or which come into the
possession of the Seller shall be received and held by the
Seller in trust for
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the exclusive benefit of the Purchaser as the
owner of the Mortgage
Loans. On
and after the Closing Date, any portion of the related Mortgage Files or
servicing files related to the Mortgage Loans (the "Servicing Files") in
Seller's possession shall be held by Seller
in a custodial capacity only for the
benefit of the Purchaser. The Seller shall release its
custody of any contents
of the related Mortgage Files or Servicing
Files only in accordance with written
instructions of the Purchaser or the
Purchaser's designee.
SECTION 5. Books and Records. The sale of each Mortgage Loan
has
been reflected on the Seller's balance
sheet and other financial statements as a
sale of assets by the Seller. The Seller shall be responsible
for maintaining,
and shall maintain, a complete set of books and
records for the Mortgage Loans
which shall be appropriately identified in the Seller's computer system to
clearly reflect the ownership of the
Mortgage Loans by the Purchaser.
SECTION 6. Delivery of
Mortgage Notes.
(a) On or prior to the Closing Date, the Seller shall deliver to
the Purchaser or the Custodian, as directed by the Purchaser, the original
Mortgage Note, with respect to each
Mortgage Loan so assigned, endorsed without
recourse in blank, or in the name of the Trustee as trustee, and signed by an
authorized officer (which endorsement shall
contain either an original signature
or a facsimile signature of an authorized
officer of the Seller,
and if in the
form of an allonge, the allonge shall be
stapled to the Mortgage Note), with all
intervening endorsements showing a complete chain of title
from the originator
to the Seller. If the Mortgage Loan was acquired by the endorser
in a merger,
the endorsement must be by "____________, successor by merger to [name of
predecessor]". If the Mortgage Loan was acquired or originated by
the endorser
while doing business under another name, the endorsement must be by
"____________ formerly known as [previous
name]." The delivery of each Mortgage
Note to the Purchaser or the Custodian is
at the expense of the Seller.
In lieu of delivering
the Mortgage Note relating to any Mortgage
Loan, the Seller may deliver or cause to be
delivered a lost note affidavit from
the Seller stating that the original Mortgage Note was lost, misplaced or
destroyed, and, if available, a copy of each original Mortgage
Note; provided,
however, that in the case of Mortgage Loans which have been prepaid in full
after the Cut-off Date and prior to the Closing
Date, the Seller, in lieu of
delivering the above documents,
may deliver to the
Purchaser a certification to
such effect and shall deposit all amounts paid in
respect of such Mortgage Loan
in the Payment Account on the Closing
Date.
(b) If any Mortgage
Note is not delivered
to the Purchaser
(or
the Custodian as directed by the
Purchaser)
or the Purchaser discovers any
defect with respect to a Mortgage Note
which materially
and adversely
affects
the interests of the Certificateholders in the related Mortgage Loan, the
Purchaser shall give prompt written
specification of such
defect or omission to
the Seller, and the Seller shall cure such defect or omission
in all material
respects or repurchase such Mortgage Loan or substitute a
Qualified
Substitute
Mortgage Loan in the manner set forth in
Section 7.03.
It is understood and
agreed that the obligation of the Seller to cure a material defect in, or
substitute for, or purchase any Mortgage Loan
as to which a material defect in,
or omission of, a Mortgage Note exists, shall constitute the sole remedy
respecting such material defect or omission available to the Purchaser,
Certificateholders or the Trustee on behalf
of Certificateholders.
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(c) All other
documents contained in
the Mortgage File and
any
original documents relating to the Mortgage
Loans not contained in the Mortgage
File or delivered to the Purchaser, are and
shall be retained by the Servicer in
trust as agent for the Purchaser.
In the event that in connection with any Mortgage Loan: (a) the
original recorded Mortgage (or evidence of
submission to the recording office),
(b) all interim recorded assignments, (c) the original recorded modification
agreement, if required, or (d) evidence of title insurance
(together with all
riders thereto, if any) satisfying the
requirements of clause
(I)(ii), (iv),
(vi) or (vii) of the definition of Mortgage File,
respectively,
is not in the
possession of the Servicer concurrently with the execution and delivery
hereof
because such document or documents
have not been
returned from the
applicable
public recording office, or, in the case of each such
interim assignment
or
modification agreement, because the related Mortgage has not been returned
by
the appropriate recording office, in the
case of clause (I)(ii), (iv) or (vi) of
the definition of Mortgage File, or because
the evidence of title
insurance has
not been delivered to the Seller by the title insurer in the case of clause
(I)(vii) of the definition of Mortgage
File, the Servicer shall use its best
efforts to obtain, (A) in the case of clause (I)(ii), (iv) or (vi) of the
definition of Mortgage File, such original
Mortgage, such interim assignment, or
such modification agreement, with evidence of recording
indicated thereon upon
receipt thereof from the public recording
office, or a copy thereof, certified,
if appropriate, by the relevant recording office, or (B) in the
case of clause
(I)(vii) of the definition of Mortgage
File, evidence of title insurance.
(d) If any of the
documents held by the
Servicer pursuant to
clause (c) above are missing or defective
in any other respect
and such missing
document or defect materially and adversely affects the interests of the
Certificateholders in the related Mortgage Loan, the Seller shall cure or
repurchase such Mortgage Loan or substitute
a Qualified Substitute Mortgage Loan
in the manner set forth in Section 7.03.
It is understood and agreed that the
obligation of the Seller to cure a material
defect in, or
substitute
for, or
purchase any Mortgage Loan as to which a material
defect in or omission
of a
constituent document exists, shall constitute the sole remedy
respecting such
material defect or omission available to the Purchaser,
Certificateholders
or
the Trustee on behalf of
Certificateholders.
(e) If any assignment
is lost or returned unrecorded to the
Servicer because of any defect therein, the Seller shall prepare a
substitute
assignment or cure such defect, as the case
may be, and the Servicer shall cause
such assignment to be recorded in
accordance with this Section.
SECTION 7. Representations and Warranties.
SECTION 7.01.
Representations
and Warranties of Seller. The
Seller represents, warrants and covenants to the Purchaser that as of the
Closing Date or as of such date
specifically provided herein:
(a) The Seller is a corporation duly organized, validly existing
and in good standing under the laws of the
Commonwealth of
Pennsylvania and
is
or will be in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary
to ensure the enforceability of each
Mortgage Loan;
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(b) The Seller
has the power and
authority to make, execute,
deliver and perform its obligations under this Agreement and all of the
transactions contemplated under this Agreement, and has taken all necessary
corporate action to authorize the execution,
delivery and
performance of
this
Agreement; this Agreement constitutes a legal, valid and
binding obligation of
the Seller, enforceable against the Seller in
accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as
such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in
equity) or by public policy with respect
to indemnification under applicable
securities laws;
(c) The execution
and delivery of this
Agreement by the
Seller
and its performance and compliance with the terms of this Agreement
will not
violate the Seller's Certificate of Incorporation or Bylaws or constitute a
material default (or an event which, with notice or lapse of time,
or both,
would constitute a material default) under,
or result in the material breach of,
any material contract, agreement or other instrument to which the Seller is
a
party or which may be applicable to the
Seller or any of its assets;
(d) No litigation before any court, tribunal or governmental
body
is curren
