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 100 Witmer Road, Horsham, Pennsylvania 19044, as seller
("GMACM" or the "Seller") and Residential Asset Mortgage Products, Inc., a
Delaware corporation, having an office at 8400 Normandale Lake Boulevard,
Minneapolis, Minnesota 55437 (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.
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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
