EXECUTION COPY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Purchaser,
GMAC MORTGAGE CORPORATION,
as Seller and Servicer,
WALNUT GROVE MORTGAGE LOAN TRUST 2003-A,
as Seller,
GMACM HOME EQUITY LOAN TRUST 2004-HE3,
as Issuer,
and
XXXXX FARGO BANK, N.A.,
as Indenture Trustee
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MORTGAGE LOAN PURCHASE AGREEMENT
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Dated as of June 30, 2004
This Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
June 30, 2004, is made among GMAC Mortgage Corporation, as seller ("GMACM") and
as servicer (in such capacity, the "Servicer"), Walnut Grove Mortgage Loan Trust
2003-A, as seller ("WG Trust 2003" and, together with GMACM, each a "Seller" and
collectively, the "Sellers"), Residential Asset Mortgage Products, Inc., as
purchaser (the "Purchaser"), GMACM Home Equity Loan Trust 2004-HE3, as issuer
(the "Issuer"), and Xxxxx Fargo Bank, N.A., as indenture trustee (the "Indenture
Trustee").
WITNESSETH:
WHEREAS, GMACM, in the ordinary course of its business acquires and
originates home equity loans and acquired or originated all of the home equity
loans listed on the Mortgage Loan Schedule attached as Exhibit 1 hereto (the
"Initial Mortgage Loans");
WHEREAS, GMACM sold a portion of the Initial Mortgage Loans (the "WG
Trust 2003 Initial Mortgage Loans") and intends to sell a portion of the
Subsequent Mortgage Loans to be sold by WG Trust 2003 hereunder, to Walnut Grove
Funding, Inc ("Walnut Grove"), pursuant to a Mortgage Loan Purchase Agreement
(the "Walnut Grove Purchase Agreement"), dated as of January 31, 2003 (each date
of sale, a "Prior Transfer Date") among Walnut Grove, as purchaser, GMACM, as
seller, WG Trust 2003, as Issuer and Bank One, National Association, as trustee;
WHEREAS, Walnut Grove sold the WG Trust 2003 Initial Mortgage Loans to
WG Trust 2003 pursuant to a Trust Agreement, dated as of January 31, 2003,
between Walnut Grove, as depositor and Wilmington Trust Company, as owner
trustee;
WHEREAS, GMACM owns the Cut-Off Date Principal Balances and the Related
Documents for the portion of Initial Mortgage Loans identified on the Mortgage
Loan Schedule-A attached as Exhibit 1-A hereto (the "GMACM Initial Mortgage
Loans"), including rights to (a) any property acquired by foreclosure or deed in
lieu of foreclosure or otherwise, and (b) the proceeds of any insurance policies
covering the GMACM Initial Mortgage Loans;
WHEREAS, WG Trust 2003 owns the Cut-Off Date Principal Balances and the
Related Documents for the WG Trust 2003 Initial Mortgage Loans identified on the
Mortgage Loan Schedule-B attached as Exhibit 1-B hereto, including rights to (a)
any property acquired by foreclosure or deed in lieu of foreclosure or
otherwise, and (b) the proceeds of any insurance policies covering the WG Trust
2003 Initial Mortgage Loans;
WHEREAS, the parties hereto desire that: (i) GMACM sell the Cut-Off Date
Principal Balances of the GMACM Initial Mortgage Loans to the Purchaser on the
Closing Date pursuant to the terms of this Agreement together with the Related
Documents, and thereafter all Additional Balances relating to the GMACM Initial
Mortgage Loans created on or after the Cut-Off Date and prior to the Rapid
Amortization Period, (ii) WG Trust 2003 sell the Cut-Off Date Principal Balances
of the WG Trust 2003 Initial Mortgage Loans to the Purchaser on the Closing Date
pursuant to the terms of this Agreement together with the Related Documents, and
thereafter all Additional Balances relating to the WG Trust 2003 Initial
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Mortgage Loans created on or after the Cut-Off Date and prior to the Rapid
Amortization Period, (iii) the Sellers may sell Subsequent Mortgage Loans to the
Issuer on one or more Subsequent Transfer Dates pursuant to the terms of the
related Subsequent Transfer Agreement, and (iv) the related Seller and GMACM
make certain representations and warranties on the Closing Date and on each
Subsequent Transfer Date;
WHEREAS, pursuant to the Trust Agreement, the Purchaser will sell the
Initial Mortgage Loans and transfer all of its rights under this Agreement to
the Issuer on the Closing Date;
WHEREAS, pursuant to the terms of the Servicing Agreement, the Servicer
will service the Mortgage Loans;
WHEREAS, pursuant to the terms of the Trust Agreement, the Issuer will
issue the Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer will issue
the Notes, secured by the Trust Estate;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided herein or unless the context otherwise requires, capitalized
terms not otherwise defined herein shall have the meanings assigned to such
terms in the Definitions contained in Appendix A to the indenture dated as of
June 30, 2004 (the "Indenture"), between the Issuer and the Indenture Trustee,
which is incorporated by reference herein. All other capitalized terms used
herein shall have the meanings specified herein.
Section 1.2 Other Definitional Provisions. All terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
As used in this Agreement and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document,
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; Section and Exhibit references
contained in this Agreement are references to Sections and Exhibits in or to
this Agreement unless otherwise specified; the term "including" shall mean
"including without limitation"; "or" shall include "and/or"; and the term
"proceeds" shall have the meaning ascribed thereto in the UCC.
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The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to herein or in
any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
ARTICLE II
SALE OF MORTGAGE LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Initial Mortgage Loans.
(a) GMACM, by the execution and delivery of this Agreement, does hereby sell,
assign, set over, and otherwise convey to the Purchaser, without recourse, all
of its right, title and interest in, to and under the following, wherever
located: (i) the GMACM Initial Mortgage Loans (including the Cut-Off Date
Principal Balances now existing and all Additional Balances thereafter arising
thereunder to and including the date immediately preceding the commencement of
the Rapid Amortization Period relating thereto; provided, however, that any
Principal Balance represented by a Draw made during the Rapid Amortization
Period and interest thereon and money due or to become due in respect thereof
will not be or deemed to be transferred to the Purchaser, and GMACM in such
event shall retain ownership of each Principal Balance represented by each such
Draw and interest thereon and money due or to become due in respect thereof),
all interest accruing thereon, all monies due or to become due thereon, and all
collections in respect thereof received on or after the Cut-Off Date (other than
interest due thereon prior to the Cut-Off Date); (ii) the interest of GMACM in
any insurance policies in respect of the GMACM Initial Mortgage Loans; and (iii)
all proceeds of the foregoing; provided, however, that the Purchaser does not
assume the obligation under each Loan Agreement relating to a Mortgage Loan to
fund Draws to the Mortgagor thereunder, and the Purchaser shall not be obligated
or permitted to fund any such Draws, it being agreed that GMACM will retain the
obligation to fund future Draws. Such conveyance shall be deemed to be made: (1)
with respect to the Cut-Off Date Principal Balances, as of the Closing Date; and
(2) with respect to the amount of each Additional Balance created on or after
the Cut-Off Date and prior to the commencement of the Rapid Amortization Period,
as of the later of the Closing Date and the date that the corresponding Draw was
made pursuant to the related Loan Agreement, subject to the receipt by GMACM of
consideration therefor as provided herein under clause (a) of Section 2.3.
(b) Reserved.
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(c) WG Trust 2003, by the execution and delivery of this Agreement, does hereby
sell, assign, set over, and otherwise convey to the Purchaser, without recourse,
all of its right, title and interest in, to and under the following, and
wherever located: (i) the WG Trust 2003 Initial Mortgage Loans (including the
Cut-Off Date Principal Balances now existing and its rights to acquire all
Additional Balances and Excluded Amounts thereafter arising thereunder, all
interest accruing thereon, all monies due or to become due thereon, and all
collections in respect thereof received on or after the Cut-Off Date (other than
interest thereon in respect of any period prior to the Cut-Off Date)); (ii) the
WG Trust 2003's interest in any insurance policies in respect of the WG Trust
2003 Initial Mortgage Loans; and (iii) all proceeds of the foregoing; provided,
however, that the Purchaser does not assume the obligation under each Loan
Agreement relating to a Mortgage Loan to fund Draws to the Mortgagor thereunder,
and the Purchaser shall not be obligated or permitted to fund any such Draws, it
being agreed that GMACM will retain the obligation to fund future Draws pursuant
to the applicable Walnut Grove Purchase Agreement. Such conveyance shall be
deemed to be made: (1) with respect to the Cut-Off Date Principal Balances, as
of the Closing Date; and (2) with respect to the amount of each Additional
Balance created on or after the Cut-Off Date and prior to the commencement of
the Rapid Amortization Period, as of the later of the Closing Date and the date
that the corresponding Draw was made pursuant to the related Loan Agreement,
subject to the receipt by GMACM of consideration therefor as provided herein
under clause (a) of Section 2.3.
(d) In connection with the conveyance by GMACM of the GMACM Initial Mortgage
Loans and any Subsequent Mortgage Loans, GMACM further agrees, at its own
expense, on or prior to the Closing Date with respect to the Principal Balances
of the GMACM Initial Mortgage Loans and on or prior to the related Subsequent
Cut-Off Date in the case of such Subsequent Mortgage Loans sold by it, to
indicate in its books and records that the GMACM Initial Mortgage Loans have
been sold to the Purchaser pursuant to this Agreement, and, in the case of the
Subsequent Mortgage Loans, to the Issuer pursuant to the related Subsequent
Transfer Agreement, and to deliver to the Purchaser true and complete lists of
all of the Mortgage Loans sold by GMACM specifying for each Mortgage Loan (i)
its account number and (ii) its Cut-Off Date Principal Balance or Subsequent
Cut-Off Date Principal Balance. The Mortgage Loan Schedule indicating such
information with respect to the Mortgage Loans sold by GMACM shall be marked as
Exhibit 1-A to this Agreement and is hereby incorporated into and made a part of
this Agreement.
(e) In connection with the conveyance by WG Trust 2003 of the WG Trust Initial
Mortgage Loans and any Subsequent Mortgage Loans, such Seller further agrees, at
its own expense, on or prior to the Closing Date with respect to the Principal
Balances of such WG Trust Initial Mortgage Loans and on or prior to the related
Subsequent Cut-Off Date in the case of such Subsequent Mortgage Loans sold by
it, to indicate in its books and records that the respective WG Trust Initial
Mortgage Loans have been sold to the Purchaser pursuant to this Agreement, and,
in the case of the Subsequent Mortgage Loans, to the Issuer pursuant to the
related Subsequent Transfer Agreement. GMACM, as Servicer of the Mortgage Loans
sold by WG Trust 2003, agrees to deliver to the Purchaser true and complete
lists of all of the Mortgage Loans sold by each Seller specifying for each
Mortgage Loan (i) its account number and (ii) its Cut-Off Date Principal Balance
or Subsequent Cut-Off Date Principal Balance. The Mortgage Loan Schedule
indicating such information with respect to the Mortgage Loans sold by WG Trust
2003 shall be marked as Exhibit 1-B to this Agreement and is hereby incorporated
into and made a part of this Agreement.
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(f) In connection with the conveyance by GMACM of the GMACM Initial Mortgage
Loans and any Subsequent Mortgage Loans sold by it and the conveyance by WG
Trust 2003 of the WG Trust Initial Mortgage Loans and any Subsequent Mortgage
Loans sold by such Seller, GMACM shall, (A) with respect to each Mortgage Loan,
on behalf of the Purchaser deliver to, and deposit with the Custodian, at least
five (5) Business Days before the Closing Date in the case of an Initial
Mortgage Loan, and, on behalf of the Issuer, three (3) Business Days prior to
the related Subsequent Transfer Date in the case of a Subsequent Mortgage Loan,
the original Loan Agreement endorsed or assigned without recourse in blank
(which endorsement shall contain either an original signature or a facsimile
signature of an authorized officer of GMACM or GMAC Bank) or, with respect to
any Mortgage Loan as to which the original Loan Agreement has been permanently
lost or destroyed and has not been replaced, a Lost Note Affidavit, and any
modification agreement or amendment to such Loan Agreement and (B) except as
provided in clause (A) with respect to the Loan Agreements, deliver the Mortgage
Files to the Servicer.
Within the time period for the review of each Loan Agreement set forth
in Section 2.2 of the Custodial Agreement, if a material defect in any Loan
Agreement is discovered which may materially and adversely affect the value of
the related Mortgage Loan, or the interests of the Indenture Trustee (as pledgee
of the Mortgage Loans), the Noteholders, the Certificateholders or the Enhancer
in such Mortgage Loan, including GMACM's failure to deliver the Loan Agreement
to the Custodian on behalf of the Indenture Trustee, GMACM shall cure such
defect, repurchase the related Mortgage Loan at the Repurchase Price or
substitute an Eligible Substitute Loan therefor upon the same terms and
conditions set forth in Section 3.1 hereof for breaches of representations and
warranties as to the Mortgage Loans. If a material defect in any of the
documents in the Mortgage File held by the Servicer is discovered which may
materially and adversely affect the value of the related Mortgage Loan, or the
interests of the Indenture Trustee (as pledgee of the Mortgage Loans), the
Noteholders, the Certificateholders or the Enhancer in such Mortgage Loan,
including GMACM's failure to deliver such documents to the Servicer on behalf of
the Indenture Trustee, GMACM shall cure such defect, repurchase the related
Mortgage Loan at the Repurchase Price or substitute an Eligible Substitute Loan
therefor upon the same terms and conditions set forth in Section 3.1 hereof for
breaches of representations and warranties as to the Mortgage Loans.
Upon sale of the Initial Mortgage Loans, the ownership of each Loan
Agreement, each related Mortgage and the contents of the related Mortgage File
shall be vested in the Purchaser and the ownership of all records and documents
with respect to the Initial Mortgage Loans that are prepared by or that come
into the possession of any Seller, as a seller of the Initial Mortgage Loans
hereunder or by GMACM in its capacity as Servicer under the Servicing Agreement
shall immediately vest in the Purchaser, and shall be promptly delivered to the
Servicer in the case of the documents in possession of WG Trust 2003 and
retained and maintained in trust by GMACM as the Servicer (except for the Loan
Agreements, which shall be retained by the Custodian) at the will of the
Purchaser, in such custodial capacity only. Each Seller's records will
accurately reflect the sale of each Initial Mortgage Loan sold by it to the
Purchaser.
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The Purchaser hereby acknowledges its acceptance of all right, title and
interest to the property conveyed to it pursuant to this Section 2.1.
(g) The parties hereto intend that the transactions set forth herein constitute
a sale by the Sellers to the Purchaser of each of the Sellers' right, title and
interest in and to their respective Initial Mortgage Loans and other property as
and to the extent described above. In the event the transactions set forth
herein are deemed not to be a sale, each Seller hereby grants to the Purchaser a
security interest in all of such Seller's right, title and interest in, to and
under all accounts, chattel papers, general intangibles, contract rights,
payment intangibles, certificates of deposit, deposit accounts, instruments,
documents, letters of credit, money, advices of credit, investment property,
goods and other property consisting of, arising under or related to the Initial
Mortgage Loans and such other property, to secure all of such Seller's
obligations hereunder, and this Agreement shall and hereby does constitute a
security agreement under applicable law. Each Seller agrees to take or cause to
be taken such actions and to execute such documents, including the filing of any
continuation statements with respect to the UCC-1 financing statements filed
with respect to the Initial Mortgage Loans by the Purchaser on the Closing Date,
and any amendments thereto required to reflect a change in the name or corporate
structure of such Seller or the filing of any additional UCC-1 financing
statements due to the change in the principal office or jurisdiction of
incorporation of such Seller, as are necessary to perfect and protect the
Purchaser's and its assignees' interests in each Initial Mortgage Loan and the
proceeds thereof. The Servicer shall file any such continuation statements on a
timely basis.
(h) In connection with the assignment of any Mortgage Loan registered on the
MERS(R) System, GMACM further agrees that it will cause, at GMACM's own expense,
as soon as practicable after the Closing Date, the MERS(R) System to indicate
that such Mortgage Loan has been assigned by GMACM to the Indenture Trustee in
accordance with this Agreement or the Trust Agreement for the benefit of the
Noteholders by including (or deleting, in the case of Mortgage Loans which are
repurchased in accordance with this Agreement) in such computer files (a) the
specific code which identifies the Indenture Trustee as the assignee of such
Mortgage Loan and (b) the series specific code in the field "Pool Field" which
identifies the series of the Notes issued in connection with such Mortgage
Loans. GMACM agrees that it will not alter the codes referenced in this
paragraph with respect to any Mortgage Loan during the term of this Agreement
unless and until such Mortgage Loan is repurchased in accordance with the terms
of this Agreement.
Section 2.2 Sale of Subsequent Mortgage Loans.
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(a) Subject to the conditions set forth in paragraphs (b) and (c) below (the
satisfaction of which (other than the conditions specified in paragraphs (b)(i),
(b)(ii) and (b)(iii)) shall be evidenced by an Officer's Certificate of GMACM
dated the date of the related Subsequent Transfer Date), in consideration of the
Issuer's payment of the purchase price provided for in Section 2.3 on one or
more Subsequent Transfer Dates using amounts on deposit in the Custodial
Account, the Pre-Funding Account, the Funding Account or the Reserve Sub-Account
(in each case to the extent permitted by the Servicing Agreement), each Seller
may, on the related Subsequent Transfer Date, sell, transfer, assign, set over
and convey without recourse to the Issuer but subject to the other terms and
provisions of this Agreement all of the right, title and interest of such Seller
in and to (i) Subsequent Mortgage Loans identified on the related Mortgage Loan
Schedule attached to the related Subsequent Transfer Agreement delivered by
GMACM on such Subsequent Transfer Date (including the Subsequent Cut-Off Date
Principal Balance then existing and all Additional Balances and Excluded Amounts
thereafter arising thereunder to and including the date immediately preceding
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the commencement of the Rapid Amortization Period); provided that Excluded
Amounts shall not be conveyed to the Issuer and shall be retained by GMACM, (ii)
all money due or to become due on such Subsequent Mortgage Loan and all
collections received on or after the related Subsequent Cut-Off Date and (iii)
all items with respect to such Subsequent Mortgage Loans to be delivered
pursuant to Section 2.1 above and the other items in the related Mortgage Files;
provided, however, that the Seller of a Subsequent Mortgage Loan reserves and
retains all right, title and interest in and to principal received and interest
accruing on such Subsequent Mortgage Loan prior to the related Subsequent
Cut-Off Date. Any transfer to the Issuer by a Seller of Subsequent Mortgage
Loans shall be absolute, and is intended by the Issuer and such Seller to
constitute and to be treated as a sale of such Subsequent Mortgage Loans by such
Seller to the Issuer. In the event that any such transaction is deemed not to be
a sale, GMACM and WG Trust 2003, as the case may be, hereby grant to the Issuer
as of each Subsequent Transfer Date a security interest in all of such Seller's
right, title and interest in, to and under all accounts, chattel papers, general
intangibles, payment intangibles, contract rights, certificates of deposit,
deposit accounts, instruments, documents, letters of credit, money, advices of
credit, investment property, goods and other property consisting of, arising
under or related to the related Subsequent Mortgage Loans and such other
property, to secure all of such Seller's obligations hereunder, and this
Agreement shall constitute a security agreement under applicable law. Each
Seller agrees to take or cause to be taken such actions and to execute such
documents, including the filing of all necessary UCC-1 financing statements
filed in the State of Delaware and the Commonwealth of Pennsylvania (which shall
be submitted for filing as of the related Subsequent Transfer Date), any
continuation statements with respect thereto and any amendments thereto required
to reflect a change in the name or corporate structure of such Seller or the
filing of any additional UCC-1 financing statements due to the change in the
principal office or jurisdiction of incorporation of such Seller, as are
necessary to perfect and protect the interests of the Issuer and its assignees
in each Subsequent Mortgage Loan and the proceeds thereof. The Servicer shall
file any such continuation statements on a timely basis.
The Issuer on each Subsequent Transfer Date shall acknowledge its
acceptance of all right, title and interest to the related Subsequent Mortgage
Loans and other property, existing on the Subsequent Transfer Date and
thereafter created, conveyed to it pursuant to this Section 2.2.
The Issuer shall be entitled to all scheduled principal payments due on
and after each Subsequent Cut-Off Date, all other payments of principal due and
collected on and after each Subsequent Cut-Off Date, and all payments of
interest on any related Subsequent Mortgage Loans, minus that portion of any
such interest payment that is allocable to the period prior to the related
Subsequent Cut-Off Date and any payment relating to any Excluded Amounts as
provided in Section 2.5.
(b) Any Seller may transfer to the Issuer Subsequent Mortgage Loans and the
other property and rights related thereto described in Section 2.2(a) above, and
the Issuer shall cause to be released funds during the Revolving Period, upon
the release of funds on deposit in the Custodial Account or the Funding Account,
or during the Managed Amortization Period, following a Funding Event, upon the
release of funds on deposit in the Reserve Sub-Account, respectively, in
accordance with the Servicing Agreement, only upon the satisfaction of each of
the following conditions on or prior to the related Subsequent Transfer Date:
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(i) such Seller or GMACM, as Servicer, shall have provided the Indenture
Trustee, the Rating Agencies and the Enhancer with a timely Addition Notice
substantially in the form of Exhibit 3, which notice shall be given no later
than seven Business Days prior to the related Subsequent Transfer Date, and
shall designate the Subsequent Mortgage Loans to be sold to the Issuer, the
aggregate Principal Balance of such Subsequent Mortgage Loans as of the related
Subsequent Cut-Off Date and any other information reasonably requested by the
Indenture Trustee or the Enhancer with respect to such Subsequent Mortgage
Loans;
(ii) such Seller shall have delivered to the Indenture Trustee and the Enhancer
a duly executed Subsequent Transfer Agreement substantially in the form of
Exhibit 2, (A) confirming the satisfaction of each condition precedent and
representations specified in this Section 2.2(b) and in Section 2.2(c) and in
the related Subsequent Transfer Agreement and (B) including a Mortgage Loan
Schedule listing the Subsequent Mortgage Loans;
(iii) as of each Subsequent Transfer Date, as evidenced by delivery to the
Indenture Trustee of the Subsequent Transfer Agreement in the form of Exhibit 2,
the respective Seller shall not be insolvent, made insolvent by such transfer or
aware of any pending insolvency;
(iv) such sale and transfer shall not result in a material adverse tax
consequence to the Issuer or, due to any action or inaction on the part of the
respective Seller, to the Securityholders or the Enhancer;
(v) the Revolving Period shall not have terminated or, if during the Managed
Amortization Period, a Funding Event shall have occurred; and
(vi) the Enhancer shall have approved the sale of the Subsequent Mortgage Loans
(which approval shall not be unreasonably withheld) within five (5) Business
Days of receipt of an electronic file containing the same fields of information
regarding the Subsequent Mortgage Loans that was delivered to the Enhancer prior
to the Closing Date with respect to the Initial Mortgage Loans; provided, that
if the Enhancer shall not have notified the respective Seller or GMACM within
such five (5) Business Days that the Enhancer does not so approve, such sale of
Subsequent Mortgage Loans shall be deemed approved by the Enhancer.
The obligation of the Issuer to purchase a Subsequent Mortgage Loan on
any Subsequent Transfer Date is subject to the following conditions: (i) each
such Subsequent Mortgage Loan must satisfy the representations and warranties
specified in the related Subsequent Transfer Agreement and this Agreement; (ii)
no such Seller has selected such Subsequent Mortgage Loans in a manner that it
reasonably believes is adverse to the interests of the Noteholders or the
Enhancer; (iii) GMACM will deliver to the Enhancer and the Indenture Trustee
certain Opinions of Counsel described in Section 2.2(b) and acceptable to the
Enhancer and the Indenture Trustee with respect to the conveyance of such
Subsequent Mortgage Loans; and (iv) as of the related Subsequent Cut-Off Date
each Subsequent Mortgage Loan will satisfy the following criteria: (A) such
Subsequent Mortgage Loan may not be 30 or more days contractually delinquent as
of the related Subsequent Cut-Off Date; (B) the original stated term to maturity
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of such Subsequent Mortgage Loan will not exceed 360 months; (C) such Subsequent
Mortgage Loan must have an outstanding Principal Balance of at least $1,000 and
not more than $800,000 as of the related Subsequent Cut-Off Date and will not
have a Credit Limit in excess of $800,000 as of the related Subsequent Cut-Off
Date; (D) such Subsequent Mortgage Loan will be underwritten substantially in
accordance with the criteria set forth under "Description of the Mortgage Loans
-- Underwriting Standards" in the Prospectus Supplement; (E) such Subsequent
Mortgage Loan must have a CLTV at origination of no more than 100.00%; (F) the
remaining term to stated maturity of such Subsequent Mortgage Loan must be no
later than 360 months; (G) such Subsequent Mortgage Loan shall not provide for
negative amortization; (H) following the purchase of such Subsequent Mortgage
Loans by the Issuer, the Mortgage Loans included in the Trust Estate must have a
weighted average interest rate, a weighted average remaining term to maturity
and a weighted average CLTV at origination, as of each Subsequent Cut-Off Date,
that does not vary materially from the Initial Mortgage Loans included initially
in the Trust Estate, and the percentage of Mortgage Loans (by aggregate
principal balance) that are secured by second liens on the related Mortgaged
Properties shall be no greater than the percentage of Initial Mortgage Loans;
and (I) following the purchase of such Subsequent Mortgage Loans by the Issuer,
the percentage of Mortgage Loans (by aggregate principal balance) that are
secured by Mortgaged Properties that are manufactured housing properties shall
be no greater than 0.15%. Subsequent Mortgage Loans with characteristics
materially varying from those set forth above may be purchased by the Issuer and
included in the Trust Estate if they are acceptable to the Enhancer, in its
reasonable discretion; provided, however, that the addition of such Subsequent
Mortgage Loans will not materially affect the aggregate characteristics of the
Mortgage Loans in the Trust Estate. Neither of the Sellers shall transfer
Subsequent Mortgage Loans with the intent to mitigate losses on Mortgage Loans
previously transferred. Upon the end of the Revolving Period, the Enhancer may
increase the Overcollateralization Amount pursuant to Section 2.2(d) herein.
(c) Within five Business Days after each Subsequent Transfer Date, GMACM shall
deliver to the Rating Agencies, the Indenture Trustee and the Enhancer a copy of
the a Mortgage Loan Schedule reflecting the Subsequent Mortgage Loans in
electronic format.
(d) In the event that a mortgage loan is not acceptable to the Enhancer as a
Subsequent Mortgage Loan pursuant to Section 2.2(b)(v) hereof, the Enhancer and
GMACM may mutually agree to the transfer of such mortgage loan to the Issuer as
a Subsequent Mortgage Loan, subject to any increase in the Overcollateralization
Amount that may be agreed to by GMACM and the Enhancer pursuant to the
Indenture, in which event GMACM shall deliver to the Issuer and the Indenture
Trustee, with a copy to the Enhancer, an Officer's Certificate confirming the
agreement to the transfer of such Subsequent Mortgage Loan and specifying the
amount of such increase in the Overcollateralization Amount, which additional
Overcollateralization Amount may not be contributed by GMACM.
Section 2.3 Payment of Purchase Price.
(a) The sale of the Initial Mortgage Loans shall take place on the Closing Date,
subject to and simultaneously with the deposit of the Initial Mortgage Loans
into the Trust Estate and the issuance of the Securities. The purchase price
(the "Purchase Price") for the GMACM Initial Mortgage Loans to be paid by the
Purchaser to GMACM on the Closing Date shall be an amount equal to
$505,877,238.44 in immediately available funds, together with the Certificates,
in respect of the Cut-Off Date Principal Balances thereof. The Purchase Price
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for the WG Trust 2003 Initial Mortgage Loans to be paid by the Purchaser to WG
Trust 2003 on the Closing Date shall be an amount equal to $254,900,161.48 in
immediately available funds, in respect of the Cut-Off Date Principal Balances
thereof. The Purchase Price paid for any Subsequent Mortgage Loan by the
Indenture Trustee from funds on deposit in the Funding Account, at the direction
of the Issuer, shall be one-hundred percent (100%) of the Subsequent Cut-Off
Date Principal Balance thereof (as identified on the Mortgage Loan Schedule
attached to the related Subsequent Transfer Agreement provided by GMACM). In the
case of each Additional Balance transferred hereunder created on or after the
Cut-Off Date (or the Subsequent Cut-Off Date in the case of a Subsequent
Mortgage Loan) and prior to the commencement of the Rapid Amortization Period,
the Purchase Price thereof shall be the principal amount of the related Draw
under the related Loan Agreement on the later of the Closing Date (or the
related Subsequent Transfer Date in the case of a Subsequent Mortgage Loan) and
the date of the creation of such Additional Balance.
(b) In consideration of the sale of the GMACM Initial Mortgage Loans by GMACM to
the Purchaser on the Closing Date, the Purchaser shall pay to GMACM on the
Closing Date by wire transfer of immediately available funds to a bank account
designated by GMACM, the amount specified above in paragraph (a) for the GMACM
Initial Mortgage Loans; provided, that such payment may be on a net funding
basis if agreed by GMACM and the Purchaser. In consideration of the sale of any
Subsequent Mortgage Loan by GMACM to the Issuer, the Issuer shall pay to GMACM
by wire transfer of immediately available funds to a bank account designated by
GMACM, the amount specified above in paragraph (a) for each Subsequent Mortgage
Loan sold by GMACM.
(c) In consideration of the sale of the WG Trust 2003 Initial Mortgage Loans by
WG Trust 2003 to the Purchaser on the Closing Date, the Purchaser shall pay to
WG Trust 2003 on the Closing Date by wire transfer of immediately available
funds to a bank account designated by WG Trust 2003, the amount specified above
in paragraph (a) for the WG Trust 2003 Initial Mortgage Loans; provided, that
such payment may be on a net funding basis if agreed by WG Trust 2003 and the
Purchaser. In consideration of the sale of any Subsequent Mortgage Loan by WG
Trust 2003 to the Issuer, the Issuer shall pay to WG Trust 2003 by wire transfer
of immediately available funds to a bank account designated by WG Trust 2003,
the amount specified above in paragraph (a) for each Subsequent Mortgage Loan
sold by WG Trust 2003.
(d) With respect to each Additional Balance transferred hereunder with respect
to any Initial Mortgage Loan or Subsequent Mortgage Loan, the Issuer as assignee
of the Purchaser shall pay or cause to be paid to GMACM or its designee the
Purchase Price specified above for such Additional Balance in one of the
following ways, as applicable, a cash payment pursuant to Section 3.03(b) of the
Servicing Agreement and Section 2.3(a) hereof in an amount equal to the related
Draw, if then available from Principal Collections during the related Collection
Period on the Mortgage Loans, or from funds on deposit in the Funding Account or
from the payment of the Additional Balance Increase Amount pursuant to Section
3.05 of the Indenture.
10
Section 2.4 [Reserved].
Section 2.5 Draws During Rapid Amortization Period. During the Rapid
Amortization Period, any Draws made on the Mortgage Loans (each, an "Excluded
Amount") shall not be Additional Balances, and the ownership of the related
balances shall be retained by GMACM. On any Payment Date during the Rapid
Amortization Period, with respect to the related Collection Period, all
Collections in respect of each Mortgage Loan shall be allocated pro rata as
between the Issuer and GMACM, based on the relative proportions of the Principal
Balance and the Excluded Amount thereof, respectively, as of the end of the
calendar month immediately prior to such Collection Period. During the Rapid
Amortization Period, any losses incurred with respect to a Mortgage Loan shall
be allocated pro rata between the Issuer and GMACM, based on the Principal
Balance and the Excluded Amount thereof, respectively, as of the date of
liquidation of such Mortgage Loan. Notwithstanding any other provision hereof or
of the Servicing Agreement, payments and collections allocable to an Excluded
Amount shall not be deposited into the Custodial Account, the Distribution
Account or the Note Payment Account, and shall be distributed by the Servicer to
GMACM no less frequently than monthly in accordance with reasonable instructions
provided by the Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 Representations and Warranties. GMACM represents and warrants to the
Purchaser, as of the Closing Date and as of each Subsequent Transfer Date (or if
otherwise specified below, as of the date so specified):
(a) As to GMACM:
(i) GMACM is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction governing its creation and existence 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;
(ii) GMACM has the power and authority to make, execute, deliver and perform its
obligations under this Agreement and each Subsequent Transfer Agreement to which
it is a party and all of the transactions contemplated under this Agreement and
each such Subsequent Transfer Agreement, and has taken all necessary corporate
action to authorize the execution, delivery and performance of this Agreement
and each such Subsequent Transfer Agreement;
(iii) GMACM is not required to obtain the consent of any other Person or any
consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement or any Subsequent Transfer Agreement, except for such consents,
licenses, approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be;
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(iv) The execution and delivery of this Agreement and any Subsequent Transfer
Agreement by GMACM and its performance and compliance with the terms of this
Agreement and each such Subsequent Transfer Agreement will not violate GMACM'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 GMACM is a party or which may be
applicable to GMACM or any of its assets;
(v) No litigation before any court, tribunal or governmental body is currently
pending, or to the knowledge of GMACM threatened, against GMACM or with respect
to this Agreement or any Subsequent Transfer Agreement that in the opinion of
GMACM has a reasonable likelihood of resulting in a material adverse effect on
the transactions contemplated by this Agreement or any Subsequent Transfer
Agreement;
(vi) Reserved;
(vii) This Agreement and each Subsequent Transfer Agreement to which it is a
party, constitutes a legal, valid and binding obligation of GMACM, enforceable
against GMACM 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;
(viii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of GMACM in and to the GMACM Initial
Mortgage Loans, including the Cut-Off Date Principal Balances now existing and
all Additional Balances thereafter arising to and including the day immediately
preceding the Rapid Amortization Period, all monies due or to become due with
respect thereto, and all proceeds of such Cut-Off Date Principal Balances with
respect to the GMACM Initial Mortgage Loans; and this Agreement and the related
Subsequent Transfer Agreement, when executed, will constitute a valid transfer
and assignment to the Issuer of all right, title and interest of GMACM in and to
the related Subsequent Mortgage Loans, including the Cut-Off Date Principal
Balances existing on the related Subsequent Cut-Off Date and thereafter all
Additional Balances arising to and including the day immediately preceding the
Rapid Amortization Period, all monies due or to become due with respect thereto,
and all proceeds of such Subsequent Cut-Off Date Principal Balances and such
funds as are from time to time deposited in the Custodial Account (excluding any
investment earnings thereon) as assets of the Trust and all other property
specified in the definition of "Trust" as being part of the corpus of the Trust
conveyed to the Purchaser by GMACM, and upon payment for the Additional Balances
with respect to any of the Mortgage Loans, will constitute a valid transfer and
assignment to the Purchaser (or the Issuer in the case of any Additional
Balances relating to Subsequent Mortgage Loans) of all right, title and interest
of GMACM in and to the Additional Balances, all monies due or to become due with
respect thereto, and all proceeds of such Additional Balances and all other
property specified in the definition of "Trust" relating to the Additional
Balances; and
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(ix) GMACM is not in default with respect to any order or decree of any court or
any order, regulation or demand of any federal, state, municipal or governmental
agency, which default might have consequences that would materially and
adversely affect the condition (financial or otherwise) or operations of GMACM
or its properties or might have consequences that would materially adversely
affect its performance hereunder;
(b) As to each Initial Mortgage Loan (except as otherwise specified
below) as of the Closing Date, or with respect to each Subsequent Mortgage Loan
as of the related Subsequent Transfer Date (except as otherwise specified
below):
(i) The information set forth in the Mortgage Loan Schedule with respect to each
Mortgage Loan or the Mortgage Loans is true and correct in all material respects
as of the date or dates respecting which such information is initially
furnished;
(ii) With respect to each of the WG Trust Initial Mortgage Loans or, as
applicable, any the Subsequent Mortgage Loans sold by WG Trust 2003 as of each
Prior Transfer Date: (A) the related Loan Agreement and the Mortgage had not
been assigned or pledged, except for any assignment or pledge that has been
satisfied and released, (B) immediately prior to the assignment of such Mortgage
Loans to Walnut Grove, GMACM had good title thereto and (C) immediately prior to
such assignment, GMACM was the sole owner and holder of the Mortgage Loan free
and clear of any and all liens, encumbrances, pledges, or security interests
(other than, with respect to any Mortgage Loan in a second lien position, the
lien of the related first mortgage) of any nature and had full right and
authority, under all governmental and regulatory bodies having jurisdiction over
the ownership of the applicable Mortgage Loan, to sell and assign the same
pursuant to the related Walnut Grove Purchase Agreement;
(iii) With respect to the GMACM Initial Mortgage Loans or, as applicable, any
Subsequent Mortgage Loans sold by GMACM as of each respective Subsequent
Transfer Date: (A) the related Loan Agreement and the Mortgage have not been
assigned or pledged, except for any assignment or pledge that has been satisfied
and released, (B) immediately prior to the assignment of the Mortgage Loans to
the Purchaser(or to the Issuer in the case of the Subsequent Mortgage Loans sold
by GMACM), GMACM had good title thereto and (C) GMACM is the sole owner and
holder of the Mortgage Loan free and clear of any and all liens, encumbrances,
pledges, or security interests (other than, with respect to any Mortgage Loan in
a second lien position, the lien of the related first mortgage) of any nature
and has full right and authority, under all governmental and regulatory bodies
having jurisdiction over the ownership of the applicable Mortgage Loans to sell
and assign the same pursuant to this Agreement or the related Subsequent
Transfer Agreement, as applicable;
(iv) To the best of GMACM's knowledge, there is no valid offset, defense or
counterclaim of any obligor under any Loan Agreement or Mortgage;
(v) To the best of GMACM's knowledge, there is no delinquent recording or other
tax or fee or assessment lien against any related Mortgaged Property;
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(vi) To the best of GMACM's knowledge, there is no proceeding pending or
threatened for the total or partial condemnation of the related Mortgaged
Property;
(vii) To the best of GMACM'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 or equal to, or
subordinate with, the lien of the related Mortgage, except liens which are fully
insured against by the title insurance policy referred to in clause (xi);
(viii) As of the Cut-Off Date or related Subsequent Cut-Off Date, no Mortgage
Loan was 30 days or more delinquent in payment of principal or interest;
(ix) With respect to the GMACM Initial Mortgage Loans or, as applicable, any
Subsequent Mortgage Loans sold by GMACM, the related Mortgage File contains or
will contain, in accordance with the definition of "Mortgage File" in Appendix A
to the Indenture, each of the documents and instruments specified to be included
therein (it being understood that the Custodian maintains the Loan Agreement
related to each Mortgage File and the Servicer maintains the remainder of the
items to be included in the Mortgage File pursuant to the terms of this
Agreement);
(x) To the best of the GMACM's knowledge, the related Loan Agreement and the
related Mortgage at the time it was made complied in all material respects with
applicable local, state and federal laws, including, but not limited to,
applicable predatory lending laws;
(xi) A title search or in any jurisdiction in which a title search is not
available, other appropriate assurance of title customary in such jurisdiction,
was obtained with respect to each Mortgage Loan;
(xii) None of the Mortgaged Properties is a mobile home or a manufactured
housing unit that is not permanently attached to its foundation;
(xiii) As of the Cut-Off Date, (a) no more than approximately 19.69%, 18.59%,
8.99% and 6.89% of the Initial Mortgage Loans, by Cut-Off Date Principal, are
secured by Mortgaged Properties located in California, Michigan, Massachusetts
and Illinois, respectively;
(xiv) As of the Cut-Off Date or Subsequent Cut-Off Date, the Combined
Loan-to-Value Ratio for each Mortgage Loan was not in excess of 100.00%;
(xv) GMACM has not transferred the GMACM Initial Mortgage Loans to the Purchaser
or any Subsequent Mortgage Loans to the Issuer with any intent to hinder, delay
or defraud any of its creditors;
(xvi) As of the Cut-Off Date, no more than approximately 70% of the Initial
Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged
Properties which may have been appraised using a statistical property evaluation
method and all of the appraisals on such Mortgaged Properties have been
delivered by Basis100 Inc. (also known as Solimar);
14
(xvii) The minimum monthly payment with respect to any Mortgage Loan is not less
than the interest accrued at the applicable Loan Rate on the average daily
Principal Balance during the interest period relating to the date on which such
minimum monthly payment is due;
(xviii) Within a loan type, and except as required by applicable law, each Loan
Agreement and each Mortgage is an enforceable obligation of the related
Mortgagor;
(xix) To the best knowledge of GMACM, the physical property subject to each
Mortgage is free of material damage and is in acceptable repair;
(xx) GMACM has not received a notice of default of any senior mortgage loan
related to a Mortgaged Property which has not been cured by a party other than
the Servicer;
(xxi) Each Mortgage Loan has a substantially similar definition of the prime
rate as the Index applicable to the related Loan Rate;
(xxii) None of the Mortgage Loans is a reverse mortgage loan;
(xxiii) No Initial Mortgage Loan has an original term to maturity in excess of
360 months. Interest rate adjustments for the Mortgage Loans prior to the
Cut-Off Date or Subsequent Cut-Off Date were made in compliance with the related
Mortgage and Loan Agreement. Over the term of any Mortgage Loan, the Loan Rate
may not exceed the related Maximum Loan Rate, if any;
(xxiv) As of the Cut-Off Date, the Initial Mortgage Loans have Maximum Loan
Rates which range between 12.000% and the maximum interest rate allowed under
the applicable state law. The current Gross Margins for the Initial Mortgage
Loans range between -1.500% (not including teaser rates) and 6.375%, and the
weighted average Gross Margin for the Mortgage Loans is approximately 1.05% (not
including teaser rates) as of the Cut-Off Date. As of the Cut-Off Date, the Loan
Rates on the Initial Mortgage Loans range between 2.500% (not including teaser
rates) and 10.375%. As of the Cut-Off Date, the weighted average Loan Rate for
the Initial Mortgage Loans is approximately 5.039% (not including teaser rates).
The weighted average remaining term to scheduled maturity of the Initial
Mortgage Loans on a contractual basis as of the Cut-Off Date is approximately
238 months;
(xxv) (A) Each Mortgaged Property consists of a single parcel of real property
with a single family or two- to four-family residence erected thereon, or an
individual condominium unit, planned unit development unit or manufactured
housing unit. (B) With respect to the Initial Mortgage Loans, (a) approximately
77.74% (by Cut-Off Date Principal Balance) are secured by real property with a
single family residence erected thereon, (b) approximately 11.61% (by Cut-Off
Date Principal Balance) are secured by real property improved by planned
development units, (c) approximately 9.42% (by Cut-Off Date Principal Balance)
are secured by real property improved by individual condominium units, (d)
approximately 1.07% (by Cut-Off Date Principal Balance) are secured by real
property with a two- to four-family residence erected thereon, (e) approximately
0.11% (by Cut-Off Date Principal Balance) are secured by real property improved
by townhouses, and (d) 0.05% are secured by real property improved by
manufactured housing;
15
(xxvi) As of the Cut-Off Date, (A) the Credit Limits range between approximately
$1,000 and $800,000 with an average of $54,088.60, and (B) no Initial Mortgage
Loan had a principal balance in excess of $519,633.00;
(xxvii) No more than approximately 91.02% of the Initial Mortgage Loans, by
aggregate Principal Balance as of the Cut-Off Date, are secured by second liens;
(xxviii) A policy of hazard insurance and flood insurance, if applicable, was
required from the Mortgagor for the Mortgage Loan when the Mortgage Loan was
originated;
(xxix) Other than with respect to a payment default, there is no material
default, breach, violation or event of acceleration existing under the terms of
any Loan Agreement or Mortgage and, to the best of GMACM's knowledge, no event
which, with notice and expiration of any grace or cure period, would constitute
a material default, breach, violation or event of acceleration under the terms
of any Loan Agreement or Mortgage, and no such material default, breach,
violation or event of acceleration has been waived by GMACM involved in
originating or servicing the related Mortgage Loan;
(xxx) No instrument of release or waiver has been executed by GMACM or, to the
best knowledge of GMACM, by any other person, in connection with the Mortgage
Loans, and no Mortgagor has been released by GMACM or, to the best knowledge of
GMACM, by any other person, in whole or in part from its obligations in
connection therewith;
(xxxi) With respect to each Mortgage Loan secured by a second lien, either (a)
no consent for such Mortgage Loan was required by the holder or holders of the
related prior lien, (b) such consent has been obtained and is contained in the
related Mortgage File or (c) no consent for such Mortgage Loan was required by
relevant law;
(xxxii) With respect to each Mortgage Loan, to the extent permitted by
applicable law, the related Mortgage contains a customary provision for the
acceleration of the payment of the unpaid Principal Balance of the Mortgage Loan
in the event the related Mortgaged Property is sold without the prior consent of
the mortgagee thereunder;
(xxxiii) Reserved;
(xxxiv) None of the Mortgage Loans are "high cost loans" subject to the Home
Ownership and Equity Protection Act of 1994;
(xxxv) No Mortgage Loan is (i) 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
16
383, as amended, the applicable laws of the State of 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)
or (ii) 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);
(xxxvi) None of the Initial Mortgage Loans are secured by Mortgaged Properties
located in the State of Georgia and no Subsequent Mortgage Loan shall be secured
by Mortgaged Properties located in the State of Georgia if such Mortgage Loan
was originated prior to June 7, 2003 and subsequent to October 1, 2002; and
(xxxvii) GMACM used no selection procedures that identified the Mortgage Loans
as being less desirable or valuable than other comparable mortgage loans
originated or acquired by GMACM under the GMACM Home Equity Program. The
Mortgage Loans are representative of GMACM's portfolio of adjustable rate
mortgage loans that were originated under the GMACM Home Equity Program.
With respect to this Section 3.1(b), representations made by
GMACM with respect to the WG Trust Initial Mortgage Loans, made as of the
Cut-Off Date or the Closing Date or with respect to the Subsequent Mortgage
Loans sold by WG Trust 2003 and made as of the Subsequent Cut-Off Date or the
Subsequent Transfer Date, are made by GMACM in its capacity as Servicer.
Representations made by GMACM with respect to the WG Trust Initial Mortgage
Loans or the Subsequent Mortgage Loans sold by WG Trust 2003 and made as of any
other date, are made by GMACM in its capacity as Seller.
(c) [Reserved].
(d) WG Trust 2003 Representations and Warranties. WG Trust 2003
represents and warrants to the Purchaser, as of the Closing Date and as of each
Subsequent Transfer Date:
(I) As to WG Trust 2003:
(i) WG Trust 2003 is a Delaware statutory trust duly organized, validly existing
and in good standing under the laws of the State of Delaware;
17
(ii) WG Trust 2003 has the power and authority to make, execute, deliver and
perform its obligations under this Agreement and each Subsequent Transfer
Agreement to which it is a party and all of the transactions contemplated under
this Agreement and each such Subsequent Transfer Agreement, and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and each such Subsequent Transfer Agreement;
(iii) WG Trust 2003 is not required to obtain the consent of any other Person or
any consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement or any Subsequent Transfer Agreement, except for such consents,
licenses, approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and any Subsequent Transfer
Agreement by WG Trust 2003 and its performance and compliance with the terms of
this Agreement and each such Subsequent Transfer Agreement will not violate WG
Trust 2003's organizational documents 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 WG Trust 2003 is a party or which may be
applicable to WG Trust 2003 or any of its assets;
(v) No litigation before any court, tribunal or governmental body is currently
pending, or to the knowledge of WG Trust 2003 threatened, against WG Trust 2003
or with respect to this Agreement or any Subsequent Transfer Agreement that in
the opinion of WG Trust 2003 has a reasonable likelihood of resulting in a
material adverse effect on the transactions contemplated by this Agreement or
any Subsequent Transfer Agreement;
(vi) This Agreement and each Subsequent Transfer Agreement to which it is a
party constitutes a legal, valid and binding obligation of WG Trust 2003,
enforceable against WG Trust 2003 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;
(vii) This Agreement constitutes a valid transfer and assignment to the
Purchaser of all right, title and interest of WG Trust 2003 in and to the WG
Trust 2003 Initial Mortgage Loans, including the Cut-Off Date Principal Balances
with respect to the WG Trust 2003 Initial Mortgage Loans, all Additional
Balances thereafter arising, all monies due or to become due with respect
thereto, and all proceeds of such Cut-Off Date Principal Balances with respect
to the WG Trust 2003 Initial Mortgage Loans; and this Agreement and the related
Subsequent Transfer Agreement, when executed, will constitute a valid transfer
and assignment to the Issuer of all right, title and interest of WG Trust 2003
in and to the related Subsequent Mortgage Loans, including the Cut-Off Date
Principal Balances existing on the related Subsequent Cut-Off Date and all
Additional Balances thereafter arising, all monies due or to become due with
respect thereto, and all proceeds thereof and such funds as are from time to
time deposited in the Custodial Account (excluding any investment earnings
thereon) as assets of the Trust and all other property specified in the
definition of "Trust" as being part of the corpus of the Trust conveyed to the
Purchaser by WG Trust 2003; and
(viii) WG Trust 2003 is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or otherwise) or operations of WG
Trust 2003 or its properties or might have consequences that would materially
adversely affect its performance hereunder.
18
(II) As to the WG Trust 2003 Initial Mortgage Loans as of the Closing
Date, or with respect to each Subsequent Mortgage Loan as of the related
Subsequent Transfer Date:
(i) With respect to the WG Trust 2003 Initial Mortgage Loans or, as applicable,
any Subsequent Mortgage Loans sold by WG Trust 2003: (A) the related Loan
Agreement and the Mortgage have not been assigned or pledged, except for any
assignment or pledge that has been satisfied and released, (B) immediately prior
to the assignment of such Mortgage Loans to the Purchaser (or to the Issuer in
the case of the Subsequent Mortgage Loans sold by WG Trust 2003), WG Trust 2003
had good title thereto and (C) WG Trust 2003 is the sole owner and holder of the
Mortgage Loan free and clear of any and all liens, encumbrances, pledges, or
security interests (other than, with respect to any Mortgage Loan in a second
lien position, the lien of the related first mortgage) of any nature and has
full right and authority, under all governmental and regulatory bodies having
jurisdiction over the ownership of the applicable Mortgage Loans to sell and
assign the same pursuant to this Agreement;
(ii) For each WG Trust 2003 Initial Mortgage Loans or, as applicable, any
Subsequent Mortgage Loans sold by WG Trust 2003, the related Mortgage File
contains or will contain each of the documents and instruments specified to be
included therein in the definition of "Mortgage File" in Appendix A to the
Indenture (it being understood that the Custodian maintains the Loan Agreement
related to each Mortgage File and the Servicer maintains the remainder of the
items to be included in the Mortgage File pursuant to the terms of this
Agreement);
(iii) WG Trust 2003 has not transferred the WG Trust 2003 Initial Mortgage Loans
to the Purchaser with any intent to hinder, delay or defraud any of its
creditors; and
(iv) No instrument of release or waiver has been executed by WG Trust 2003 in
connection with the WG Trust Initial Mortgage Loans, and no Mortgagor has been
released by WG Trust 2003, in whole or in part, from its obligations in
connection therewith.
(e) Remedies. Upon discovery by any Seller or GMACM or upon notice from
the Purchaser, the Enhancer, the Issuer, the Owner Trustee, the Indenture
Trustee or the Custodian, as applicable, of a breach of such Seller's or GMACM's
respective representations or warranties in paragraphs (a) or (d)(I) above that
materially and adversely affects the interests of the Securityholders or the
Enhancer, as applicable, in any Mortgage Loan, GMACM or WG Trust 2003, as
applicable, shall, within 90 days of its discovery or its receipt of notice of
such breach, either (i) cure such breach in all material respects or (ii) to the
extent that such breach is with respect to a Mortgage Loan or a Related
Document, either (A) repurchase such Mortgage Loan from the Issuer at the
Repurchase Price, or (B) substitute one or more Eligible Substitute Loans for
such Mortgage Loan, in each case in the manner and subject to the conditions and
limitations set forth below.
19
Upon discovery by any Seller or GMACM or upon notice from the Purchaser,
the Enhancer, the Issuer, GMACM, the Owner Trustee, the Indenture Trustee or the
Custodian, as applicable, of a breach of a Seller's or GMACM's representations
or warranties in paragraphs (b) or (d)(II) above, with respect to any Mortgage
Loan, or upon the occurrence of a Repurchase Event, that materially and
adversely affects the interests of the Securityholders, the Enhancer or the
Purchaser in such Mortgage Loan (notice of which shall be given to the Purchaser
by the respective Seller or GMACM, if it discovers the same), notwithstanding
such Seller's or GMACM's lack of knowledge with respect to the substance of such
representation and warranty, such Seller or GMACM, as the case may be, shall,
within 90 days after the earlier of its discovery or receipt of notice thereof,
either cure such breach or Repurchase Event in all material respects or either
(i) repurchase such Mortgage Loan from the Issuer at the Repurchase Price, or
(ii) substitute one or more Eligible Substitute Loans for such Mortgage Loan, in
each case in the manner and subject to the conditions set forth below. The
Repurchase Price for any such Mortgage Loan repurchased by such Seller or GMACM
shall be deposited or caused to be deposited by the Servicer into the Custodial
Account. Any purchase of a Mortgage Loan due to a Repurchase Event shall be the
obligation of GMACM.
In furtherance of the foregoing, if GMACM or the Seller that repurchases
or substitutes a Mortgage Loan is not a member of MERS and the Mortgage is
registered on the MERS(R) System, GMACM, at its own expense 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 GMACM or
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 that any Seller elects to substitute an Eligible Substitute
Loan or Loans for a Deleted Loan pursuant to this Section 3.1, such Seller shall
deliver to the Custodian on behalf of the Issuer, with respect to such Eligible
Substitute Loan or Loans, the original Loan Agreement, with the Loan Agreement
endorsed as required under the definition of "Mortgage File" and shall deliver
the other documents required to be part of the Mortgage File to the Servicer. No
substitution will be made in any calendar month after the Determination Date for
such month. Minimum Monthly Payments due with respect to Eligible Substitute
Loans in the month of substitution shall not be part of the Trust Estate and
will be retained by the Servicer and remitted by the Servicer to such Seller on
the next succeeding Payment Date, provided that a payment at least equal to the
applicable Minimum Monthly Payment for such month in respect of the Deleted Loan
has been received by the Issuer. For the month of substitution, distributions to
the Note Payment Account pursuant to the Servicing Agreement will include the
Minimum Monthly Payment due on a Deleted Loan for such month and thereafter such
Seller shall be entitled to retain all amounts received in respect of such
Deleted Loan. The Servicer shall amend or cause to be amended the Mortgage Loan
Schedule to reflect the removal of such Deleted Loan and the substitution of the
Eligible Substitute Loan or Loans and the Servicer shall deliver the amended
Mortgage Loan Schedule to the Owner Trustee, the Indenture Trustee and the
Enhancer. Upon such substitution, the Eligible Substitute Loan or Loans shall be
subject to the terms of this Agreement and the Servicing Agreement in all
respects, GMACM shall be deemed to have made the representations and warranties
with respect to the Eligible Substitute Loan contained herein set forth in
Section 3.1(b) (other than clauses (viii) (xiii), (xxiv), (xxv)(B), (xxvi) and
(xxvii) thereof and other than clauses (iii) and (ix) thereof in the case of
Eligible Substitute Loans substituted by WG Trust 2003); if the Seller is WG
Trust 2003, WG Trust 2003 shall be deemed to have made the representations and
warranties set forth in Section 3.1(d)(II); in each case, as of the date of
substitution, and the related Seller shall be deemed to have made a
representation and warranty that each Mortgage Loan so substituted is an
Eligible Substitute Loan as of the date of substitution. In addition, GMACM
shall be obligated to repurchase or substitute for any Eligible Substitute Loan
as to which a Repurchase Event has occurred as provided herein. In connection
with the substitution of one or more Eligible Substitute Loans for one or more
Deleted Loans, the Servicer shall determine the amount (such amount, a
"Substitution Adjustment Amount"), if any, by which the aggregate principal
balance of all such Eligible Substitute Loans as of the date of substitution is
20
less than the aggregate principal balance of all such Deleted Loans (after
application of the principal portion of the Minimum Monthly Payments due in the
month of substitution that are to be distributed to the Note Payment Account in
the month of substitution). Such Seller shall deposit the amount of such
shortfall into the Custodial Account on the date of substitution, without any
reimbursement therefor.
Upon receipt by the Indenture Trustee on behalf of the Issuer and the
Custodian of written notification, signed by a Servicing Officer, of the deposit
of such Repurchase Price or of such substitution of an Eligible Substitute Loan
(together with the complete related Mortgage File) and deposit of any applicable
Substitution Adjustment Amount as provided above, the Custodian, on behalf of
the Indenture Trustee, shall (i) release to such Seller or GMACM, as the case
may be, the related Loan Agreement for the Mortgage Loan being repurchased or
substituted for, (ii) cause the Servicer to release to such Seller any remaining
documents in the related Mortgage File which are held by the Servicer, and (iii)
the Indenture Trustee on behalf of the Issuer shall execute and deliver such
instruments of transfer or assignment prepared by the Servicer, in each case
without recourse, as shall be necessary to vest in such Seller or GMACM, as the
case may be, or its respective designee such Mortgage Loan released pursuant
hereto and thereafter such Mortgage Loan shall not be an asset of the Issuer.
It is understood and agreed that the obligation of each Seller and GMACM
to cure any breach, or to repurchase or substitute for any 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, the Issuer, the
Certificateholders (or the Owner Trustee on behalf of the Certificateholders)
and the Noteholders (or the Indenture Trustee on behalf of the Noteholders)
against such Seller and GMACM.
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive delivery of the respective Mortgage
Files to the Issuer or the Custodian.
ARTICLE IV
SELLERS' COVENANTS
Section 4.1 Covenants of the Sellers. Each Seller hereby covenants that, except
for the transfer hereunder and as of any Subsequent Transfer Date, it will not
sell, pledge, assign or transfer to any other Person, or grant, create, incur or
assume any Lien on any Mortgage Loan, or any interest therein, except with
respect to any Excluded Amount. Each Seller shall notify the Issuer (in the case
of the Initial Mortgage Loans, as assignee of the Purchaser), of the existence
of any Lien (other than as provided above) on any Mortgage Loan immediately upon
discovery thereof; and each Seller shall defend the right, title and interest of
the Issuer (in the case of the Initial Mortgage Loans, as assignee of the
21
Purchaser) in, to and under the Mortgage Loans against all claims of third
parties claiming through or under such Seller; provided, however, that nothing
in this Section 4.1 shall be deemed to apply to any Liens for municipal or other
local taxes and other governmental charges if such taxes or governmental charges
shall not at the time be due and payable or if any Seller shall currently be
contesting the validity thereof in good faith by appropriate Proceedings.
ARTICLE V
SERVICING
Section 5.1 Servicing. GMACM shall service the Mortgage Loans pursuant to the
terms and conditions of the Servicing Agreement and the Program Guide and shall
service the Mortgage Loans directly or through one or more sub-servicers in
accordance therewith.
ARTICLE VI
LIMITATION ON LIABILITY OF THE SELLERS
Section 6.1 Limitation on Liability of the Sellers. None of the directors,
officers, employees or agents of GMACM or WG Trust 2003 shall be under any
liability to the Purchaser or the Issuer, it being expressly understood that all
such liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement and any Subsequent Transfer
Agreement. Except as and to the extent expressly provided in the Servicing
Agreement, GMACM and WG Trust 2003 shall not be under any liability to the
Issuer, the Owner Trustee, the Indenture Trustee or the Securityholders. GMACM
or WG Trust 2003 and any director, officer, employee or agent of GMACM or WG
Trust 2003 may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder.
ARTICLE VII
TERMINATION
Section 7.1 Termination. The obligations and responsibilities of the parties
hereto shall terminate upon the termination of the Trust Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Amendment. This Agreement may be amended from time to time by the
parties hereto by written agreement with the prior written consent of the
Enhancer (which consent shall not be unreasonably withheld.
Section 8.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND 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
SUCH LAWS.
22
Section 8.3 Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, postage prepaid, addressed as follows:
(a) if to the GMACM:
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxx, Executive Vice President
Re: GMACM Home Equity Loan Trust 2004-HE3;
(b) if to WG Trust 2003:
Walnut Grove Mortgage Loan Trust 2003-A
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Walnut Grove Mortgage Loan Trust 2003-A
Re: GMACM Home Equity Loan Trust 2004-HE3;
(c) if to the Purchaser:
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:President
Re: GMACM Home Equity Loan Trust 2004-HE3;
(d) if to the Indenture Trustee:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services -
GMACM Home Equity Loan Trust
2004-HE3;
(e) if to the Issuer:
c/o Wilmington Trust Company, as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telecopier: 000-000-0000
Re: Corporate Trust Services -
GMACM Home Equity Loan Trust
2004-HE3; or
23
(f) if to the Enhancer:
Financial Security Assurance Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Director - Transaction Oversight,
Re: GMACM
Home Equity Loan Trust 2004 HE3, Policy No. 51527-N
Telecopier: (000) 000-0000
Confirmation Phone: (000) 000-0000;
or, with respect to any of the foregoing Persons, at such other address as may
hereafter be furnished to the other foregoing Persons in writing.
Section 8.4 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be held invalid for any
reason whatsoever, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity of enforceability of
the other provisions of this Agreement.
Section 8.5 Relationship of Parties. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture among the parties hereto, and
the services of the GMACM shall be rendered as an independent contractor and not
as agent for the Purchaser.
Section 8.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts, together, shall constitute one and the same agreement.
Section 8.7 Further Agreements. The parties hereto each agree to execute and
deliver to the other such additional documents, instruments or agreements as may
be necessary or appropriate to effectuate the purposes of this Agreement.
Section 8.8 Intention of the Parties. It is the intention of the parties hereto
that the Purchaser will be purchasing on the Closing Date, and the Sellers will
be selling on the Closing Date, the Initial Mortgage Loans, rather than the
Purchaser providing a loan to the Sellers secured by the Initial Mortgage Loans
on the Closing Date; and that the Issuer will be purchasing on each Subsequent
Transfer Date, and the Sellers will be selling on each Subsequent Transfer Date,
the related Subsequent Mortgage Loans, rather than the Issuer providing a loan
to the Sellers secured by the related Subsequent Mortgage Loans on each
Subsequent Transfer Date. Accordingly, the parties hereto each intend to treat
this transaction for federal income tax purposes as (i) a sale by the Sellers,
and a purchase by the Purchaser, of the Initial Mortgage Loans on the Closing
Date and (ii) a sale by the Sellers, and a purchase by the Issuer, of the
related Subsequent Mortgage Loans on each Subsequent Transfer Date. The
24
Purchaser and the Issuer shall each have the right to review the Mortgage Loans
and the Related Documents to determine the characteristics of the Mortgage Loans
which will affect the federal income tax consequences of owning the Mortgage
Loans, and each Seller shall cooperate with all reasonable requests made by the
Purchaser or the Issuer in the course of such review.
Section 8.9 Successors and Assigns; Assignment of this Agreement.
----------------------------------------------------
(a) This Agreement shall bind and inure to the benefit of and be enforceable by
the parties hereto and their respective permitted successors and assigns. The
obligations of each Seller under this Agreement cannot be assigned or delegated
to a third party without the consent of the Enhancer and the Purchaser (and the
Issuer with respect to the transfer of any Subsequent Mortgage Loans), which
consent shall be in the Enhancer's or the Purchaser's sole discretion, as
applicable, (and the Issuer's sole discretion with respect to the transfer of
any Subsequent Mortgage Loans). The parties hereto acknowledge that (i) the
Purchaser is acquiring the Initial Mortgage Loans for the purpose of
contributing them to the GMACM Home Equity Loan Trust 2004-HE3 and (ii) the
Issuer is acquiring the Subsequent Mortgage Loans for the purpose of pledging
the Subsequent Mortgage Loans to the Indenture Trustee for the benefit of the
Noteholders and the Enhancer.
(b) As an inducement to the Purchaser and the Issuer to purchase the Initial
Mortgage Loans and to the Issuer to purchase any Subsequent Mortgage Loans, each
Seller acknowledges and consents to (i) the assignment by the Purchaser to the
Issuer of all of the Purchaser's rights against any Seller pursuant to this
Agreement insofar as such rights relate to the Initial Mortgage Loans
transferred to the Issuer and to the enforcement or exercise of any right or
remedy against any of the Sellers pursuant to this Agreement by the Issuer, (ii)
the enforcement or exercise of any right or remedy against any of the Sellers
pursuant to this Agreement by or on behalf of the Issuer and (iii) the Issuer's
pledge of its interest in this Agreement to the Indenture Trustee and the
enforcement by the Indenture Trustee of any such right or remedy against any
Seller following an Event of Default under the Indenture. Such enforcement of a
right or remedy by the Issuer, the Owner Trustee, the Enhancer or the Indenture
Trustee, as applicable, shall have the same force and effect as if the right or
remedy had been enforced or exercised by the Purchaser or the Issuer directly.
Section 8.10 Survival. The representations and warranties made herein by each
Seller and the provisions of Article VI hereof shall survive the purchase of the
Initial Mortgage Loans hereunder and any transfer of Subsequent Mortgage Loans
pursuant to this Agreement and the related Subsequent Transfer Agreement.
Section 8.11 Third Party Beneficiary. The Enhancer shall be a third party
beneficiary hereof and shall be entitled to enforce the provisions of this
Agreement as if a party hereto.
25
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above written.
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., as
Purchaser
By:
---------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
GMAC MORTGAGE CORPORATION,
as Seller and Servicer
By:
---------------------------------------
Name:
Title:
WALNUT GROVE MORTGAGE LOAN
TRUST 2003-A, as Seller
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as
Owner Trustee
By:
---------------------------------------
Name:
Title:
26
GMACM HOME EQUITY LOAN TRUST 2004-HE3, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as
Owner Trustee
By:
---------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A., as Indenture Trustee
By:
---------------------------------------
Name:
Title:
27
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement No. (the "Agreement"),
dated as of , , between [_________], as seller (the "Seller"), and GMACM Home
Equity Loan Trust 2004-HE3, as issuer (the "Issuer"), and pursuant to the
mortgage loan purchase agreement dated as of June 30, 2004 (the "Mortgage Loan
Purchase Agreement"), among GMAC Mortgage Corporation, as a seller and servicer,
Walnut Grove Mortgage Loan Trust 2003-A, as a Seller, Residential Asset Mortgage
Products, Inc., as purchaser (the "Purchaser"), the Issuer and Xxxxx Fargo Bank,
N.A., as indenture trustee (the "Indenture Trustee"), the Seller and the Issuer
agree to the sale by the Seller and the purchase by the Issuer of the mortgage
loans listed on the attached Schedule of Subsequent Mortgage Loans (the
"Subsequent Mortgage Loans").
Capitalized terms used and not defined herein have their respective
meanings as set forth in Appendix A to the indenture dated as of June 30, 2004,
between the Issuer and the Indenture Trustee, which meanings are incorporated by
reference herein. All other capitalized terms used herein shall have the
meanings specified herein.
Section 1. Sale of Subsequent Mortgage Loans.
(a) The Seller does hereby sell, transfer, assign, set over and convey
to the Issuer, without recourse, all of its right, title and interest in and to
the Subsequent Mortgage Loans (including the Subsequent Cut-Off Date Principal
Balance now existing and all Additional Balances thereafter arising to and
including the date immediately preceding the commencement of the Rapid
Amortization Period), all principal received and interest thereon on and after
the Subsequent Cut-Off Date, all monies due or to become due thereon and all
items with respect to the Subsequent Mortgage Loans to be delivered pursuant to
Section 2.2 of the Mortgage Loan Purchase Agreement; provided, however, that the
Seller reserves and retains all right, title and interest in and to principal
received and interest accruing on the Subsequent Mortgage Loans prior to the
Subsequent Cut-Off Date. The Seller, contemporaneously with the delivery of this
Agreement, has delivered or caused to be delivered to the Indenture Trustee each
item set forth in Section 2.2 of the Mortgage Loan Purchase Agreement.
The transfer to the Issuer by the Seller of the Subsequent Mortgage
Loans identified on the Mortgage Loan Schedule shall be absolute and is intended
by the parties hereto to constitute a sale by the Seller to the Issuer on the
Subsequent Transfer Date of all the Seller's right, title and interest in and to
the Subsequent Mortgage Loans, and other property as and to the extent described
above, and the Issuer hereby acknowledges such transfer. In the event the
transactions set forth herein shall be deemed not to be a sale, the Seller
hereby grants to the Issuer as of the Subsequent Transfer Date a security
interest in all of the Seller's right, title and interest in, to and under all
accounts, chattel papers, general intangibles, contract rights, certificates of
deposit, deposit accounts, instruments, documents, letters of credit, money,
payment intangibles, advices of credit, investment property, goods and other
property consisting of, arising under or related to the Subsequent Mortgage
Loans, and such other property, to secure all of the Issuer's obligations
hereunder, and this Agreement shall constitute a security agreement under
applicable law. The Seller agrees to take or cause to be taken such actions and
to execute such documents, including the filing of all necessary UCC-1 financing
statements filed in the State of Delaware and the Commonwealth of Pennsylvania
(which shall be submitted for filing as of the Subsequent Transfer Date), any
continuation statements with respect thereto and any amendments thereto required
to reflect a change in the name or corporate structure of the Seller or the
filing of any additional UCC-1 financing statements due to the change in the
principal office or jurisdiction of incorporation of the Seller, as are
necessary to perfect and protect the Issuer's interests in each Subsequent
Mortgage Loan and the proceeds thereof.
(b) The expenses and costs relating to the delivery of the Subsequent
Mortgage Loans, this Agreement and the Mortgage Loan Purchase Agreement shall be
borne by the Seller.
(c) Additional terms of the sale are set forth on Attachment A hereto.
Section 2. Representations and Warranties; Conditions Precedent.
----------------------------------------------------
(a) The Seller hereby affirms the representations and warranties made by
it and set forth in Section 3.1 of the Mortgage Loan Purchase Agreement that
relate to the Seller or the Subsequent Mortgage Loans as of the date hereof. The
Seller hereby confirms that each of the conditions set forth in Section 2.2(b)
of the Mortgage Loan Purchase Agreement are satisfied as of the date hereof and
further represents and warrants that each Subsequent Mortgage Loan complies with
the requirements of this Agreement and Section 2.2(c) of the Mortgage Loan
Purchase Agreement. GMACM, as Servicer of the Subsequent Mortgage Loans hereby
affirms the representations and warranties made by it regarding the Subsequent
Mortgage Loans as set forth in Section 3.1 of the Mortgage Loan Purchase
Agreement.
(b) The Seller is solvent, is able to pay its debts as they become due
and has capital sufficient to carry on its business and its obligations
hereunder; it will not be rendered insolvent by the execution and delivery of
this Instrument or by the performance of its obligations hereunder nor is it
aware of any pending insolvency; no petition of bankruptcy (or similar
insolvency proceeding) has been filed by or against the Seller prior to the date
hereof.
(c) All terms and conditions of the Mortgage Loan Purchase Agreement
relating to the Subsequent Mortgage Loans are hereby ratified and confirmed;
provided, however, that in the event of any conflict the provisions of this
Agreement shall control over the conflicting provisions of the Mortgage Loan
Purchase Agreement.
Section 3. Recordation of Instrument. To the extent permitted by
applicable law or a memorandum thereof if permitted under applicable law, this
Agreement is subject to recordation in all appropriate public offices for real
property records in all of the counties or other comparable jurisdictions in
which any or all of the properties subject to the related Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Servicer at the Noteholders' expense on
direction of the Noteholders of Notes representing not less than a majority of
the aggregate Note Balance of the Notes or the Enhancer, but only when
accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Noteholders or the
Enhancer or is necessary for the administration or servicing of the Subsequent
Mortgage Loans.
Section 4. GOVERNING LAW. THIS INSTRUMENT 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
SUCH LAWS.
Section 5. Counterparts. This Instrument may be executed in
counterparts, each of which, when so executed, shall be deemed to be an original
and together shall constitute one and the same instrument.
Section 6. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Seller and the Issuer and their respective
successors and assigns.
[----------------------------------],
as Seller
By:
---------------------------------------
Name:
Title:
GMACM HOME EQUITY LOAN TRUST 2004-HE3, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as
Owner Trustee
By:
---------------------------------------
Name:
Title:
GMAC MORTGAGE CORPORATION,
as Servicer
By:
---------------------------------------
Name:
Title:
Attachments
A. Additional terms of sale.
B. Schedule of Subsequent Mortgage Loans.
C. Seller's Officer's Certificate.
D. Seller's Officer's Certificate (confirmation of Enhancer approval).
GMACM HOME EQUITY LOAN TRUST 2004-HE3
ATTACHMENT A TO FORM OF SUBSEQUENT TRANSFER AGREEMENT
------------, ----
A.
1. Subsequent Cut-Off Date: 2. Pricing Date: 3. Subsequent Transfer Date:
4. Aggregate Principal Balance of the Subsequent Mortgage Loans as of the
Subsequent Cut-Off Date:
5. Purchase Price: 100.00%
B.
As to all Subsequent Mortgage Loans:
1. Longest stated term to maturity: months
----------
2. Minimum Loan Rate: %
----------
3. Maximum Loan Rate: %
----------
4. WAC of all Subsequent Mortgage Loans: %
----------
5. WAM of all Subsequent Mortgage Loans: %
----------
6. Largest Principal Balance: $
7. Non-owner occupied Mortgaged Properties: %
----------
8. California zip code concentrations: % and %
---- ----
9. Condominiums: %
----------
10. Single-family: %
----------
11. Weighted average term since origination: %
----------
12. Principal balance of Subsequent Mortgage Loans with respect to $
which the Mortgagor is an employee of GMACM or an affiliate of
GMACM:
13. Number of Subsequent Mortgage Loans with respect to which the
Mortgagor is an employee of GMACM or an affiliate of GMACM:
EXHIBIT 3
FORM OF ADDITION NOTICE
DATE:
Xxxxx Fargo Bank, X.X. Xxxxx'x Investors Service, Inc.
0000 Xxx Xxxxxxxxx Xxxx 00 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
..
Financial Security Assurance Inc. Standard & Poor's, a division of The
000 Xxxx Xxxxxx XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx
Attention: Managing Director - Transaction Xxx Xxxx, Xxx Xxxx 00000-0000
Oversight, Re: GMACM Home Equity Loan Trust
2004 HE3, Policy No. 51527-N
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Re: GMACM Home Equity Loan Trust 2004-HE3
Ladies and Gentlemen:
Pursuant to Section 2.2 of the mortgage loan purchase agreement dated as
of June 30, 2004 (the "Purchase Agreement"), among GMAC Mortgage Corporation, as
a Seller and Servicer, Walnut Grove Mortgage Loan Trust 2003-A, as a Seller,
Residential Asset Mortgage Products, Inc., as Purchaser, GMACM Home Equity Loan
Trust 2004-HE3, as Issuer and Xxxxx Fargo Bank, N.A., as Indenture Trustee, the
Seller has designated the Subsequent Mortgage Loans identified on the Mortgage
Loan Schedule attached hereto to be sold to the Issuer on , , with an aggregate
Principal Balance of $ . Capitalized terms not otherwise defined herein have the
meaning set forth in the Appendix A to the indenture dated as of June 30, 2004,
between the Issuer and the Indenture Trustee.
Please acknowledge your receipt of this notice by countersigning the
enclosed copy in the space indicated below and returning it to the attention of
the undersigned.
Very truly yours,
[----------------------------],
as Seller
By:
-----------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK, N.A.,
as Indenture Trustee
By:
--------------------------------
Name:
Title:
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...............................................................2
Section 1.1 Definitions...........................................................2
Section 1.2 Other Definitional Provisions.........................................2
ARTICLE II SALE OF MORTGAGE LOANS AND RELATED PROVISIONS.............................3
Section 2.1 Sale of Initial Mortgage Loans........................................3
Section 2.2 Sale of Subsequent Mortgage Loans.....................................6
Section 2.3 Payment of Purchase Price.............................................9
Section 2.4 [Reserved]...........................................................11
Section 2.5 Draws During Rapid Amortization Period...............................11
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH......................11
Section 3.1 Representations and Warranties.......................................11
ARTICLE IV SELLERS' COVENANTS.......................................................21
Section 4.1 Covenants of the Sellers.............................................21
ARTICLE V SERVICING................................................................22
Section 5.1 Servicing............................................................22
ARTICLE VI LIMITATION ON LIABILITY OF THE SELLERS...................................22
Section 6.1 Limitation on Liability of the Sellers...............................22
ARTICLE VII TERMINATION..............................................................22
Section 7.1 Termination..........................................................22
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................................22
Section 8.1 Amendment............................................................22
Section 8.2 Governing Law........................................................22
Section 8.3 Notices..............................................................23
Section 8.4 Severability of Provisions...........................................24
Section 8.5 Relationship of Parties..............................................24
Section 8.6 Counterparts.........................................................24
Section 8.7 Further Agreements...................................................24
Section 8.8 Intention of the Parties.............................................24
Section 8.9 Successors and Assigns; Assignment of this Agreement.................25
Section 8.10 Survival.............................................................25
Section 8.11 Third Party Beneficiary..............................................25
EXHIBIT 1 MORTGAGE LOAN SCHEDULE............................................................0
EXHIBIT 2 FORM OF SUBSEQUENT TRANSFER AGREEMENT.............................................1
EXHIBIT 3 FORM OF ADDITION NOTICE...........................................................1
