EXECUTION COPY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Purchaser,
GMAC MORTGAGE, LLC,
as Seller and Servicer,
WALNUT GROVE MORTGAGE LOAN TRUST 2003-A,
as Seller,
GMACM HOME EQUITY LOAN TRUST 2006-HE5,
as Issuer,
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Indenture Trustee
____________________________________________
MORTGAGE LOAN PURCHASE AGREEMENT
____________________________________________
Dated as of November 29, 2006
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
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH..........10
Section 3.1 Representations and Warranties.........................10
ARTICLE IV SELLERS' COVENANTS...........................................20
Section 4.1 Covenants of the Sellers...............................20
ARTICLE V SERVICING....................................................20
Section 5.1 Servicing..............................................20
ARTICLE VI LIMITATION ON LIABILITY OF THE SELLERS.......................20
Section 6.1 Limitation on Liability of the Sellers.................20
ARTICLE VII TERMINATION..................................................21
Section 7.1 Termination............................................21
ARTICLE VIII MISCELLANEOUS PROVISIONS.....................................21
Section 8.1 Amendment..............................................21
Section 8.2 Governing Law..........................................21
Section 8.3 Notices................................................21
Section 8.4 Severability of Provisions.............................22
Section 8.5 Relationship of Parties................................23
Section 8.6 Counterparts...........................................23
Section 8.7 Further Agreements.....................................23
Section 8.8 Intention of the Parties...............................23
Section 8.9 Successors and Assigns; Assignment of this
Agreement..............................................23
Section 8.10 Survival...............................................24
Section 8.11 Third Party Beneficiary................................24
This Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
November 29, 2006, is made among GMAC Mortgage, LLC, 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
2006-HE5, as issuer (the "Issuer"), and The Bank of New York Trust Company,
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 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 relating to the GMACM Initial Mortgage Loans created on or
after the Cut-Off Date, (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 relating to the WG Trust 2003 Initial Mortgage Loans
created on or after the Cut-Off Date, (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 November 29, 2006 (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.
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 of the GMACM Initial Mortgage Loans now
existing), 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 interest of GMACM in any insurance policies in
respect of the GMACM Initial Mortgage Loans; and (iii) all proceeds of the
foregoing.
(b) Reserved.
(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 Initial Mortgage Loans
(including the Cut-Off Date Principal Balances of the WG Initial Mortgage
Loans now existing), 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.
(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.
(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 Mortgage Note 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, with respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost or destroyed and has not been
replaced, a Lost Note Affidavit, and any modification agreement or amendment
to such Mortgage Note and (B) except as provided in clause (A) with respect
to the Mortgage Notes, deliver the Mortgage Files to the Servicer.
Within the time period for the review of each Mortgage Note set forth
in Section 2.2 of the Custodial Agreement, if a material defect in any
Mortgage Note 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 Mortgage Note 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, provided that a
Seller shall have the option to substitute an Eligible Substitute Mortgage
Loan or Loans for such Mortgage Loan only if such substitution occurs within
two years following the Closing Date. 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, provided that a Seller shall have the option to substitute an
Eligible Substitute Mortgage Loan or Loans for such Mortgage Loan only if
such substitution occurs within two years following the Closing Date.
Upon sale of the Initial Mortgage Loans, the ownership of each Mortgage
Note, 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 Mortgage Notes, 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.
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.
(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 Pre-Funding Account), 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, (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.
(b) Any Seller may transfer to the Issuer Subsequent Mortgage Loans to a
Loan Group and the other property and rights related thereto described in
Section 2.2(a) above, and during the Pre-Funding Period, upon the release of
funds on deposit in the related Pre-Funding Account, 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:
(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 two 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; and
(v) 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 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 as of the related Subsequent Cut-Off Date each
Subsequent Mortgage Loan will satisfy the following conditions: (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 of such Subsequent Mortgage Loan will not exceed 360 months; (C)
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; (D) such
Subsequent Mortgage Loan must have a CLTV at origination of no more than
100.00%; (E) such Subsequent Mortgage Loan shall not provide for negative
amortization; (F) following the purchase of such Subsequent Mortgage Loans by
the Issuer, the Mortgage Loans in the related Loan Group 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 in the related Loan Group included initially in the Trust
Estate, and the percentage of Mortgage Loans (by aggregate principal balance)
in the related Loan Group that are secured by second liens on the related
Mortgaged Properties shall be no greater than the percentage of Initial
Mortgage Loans in the related Loan Group; (G) such Subsequent Mortgage Loan
must be secured by a mortgage in a first or second lien position; (H) such
Subsequent Mortgage Loan must not have an interest rate below 5.600% with
respect to the Loan Group I, and 5.617% with respect to the Loan Group II;
(J) following the purchase of such Subsequent Mortgage Loan by the Issuer,
the Subsequent Mortgage Loans included in the Trust Estate must have a
weighted average interest rate of at least 8.992% with respect to the Loan
Group I, and 8.922% with respect to the Loan Group II, a weighted average
Principal Balance of not more than $45,000 with respect to the Loan Group I,
and $62,000 with respect to the Loan Group II, a concentration in any one
state of more than 20.00% with respect to the Loan Group I, and 30.00% with
respect to the Loan Group II; (K) the remaining term to stated maturity of
such Subsequent Mortgage Loan must not extend beyond January 1, 2037 and (L)
each Subsequent Mortgage Loan for Loan Group I must have a conforming balance
in accordance with the guidelines of ▇▇▇▇▇▇▇ Mac.
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.
(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 the related Loan Group 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)(vi) 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, the deposit of the Original Pre-Funded Amount
and the Interest Coverage Amount into the Pre Funding Account and the
Capitalized Interest Account, respectively, and the issuance of the
Securities. 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 $148,271,736.81 in immediately available funds, together with the
Certificates, in respect of the Cut-Off Date Principal Balances thereof. The
purchase price 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
$779,926,871.85 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 related
Pre-Funding Account, at the direction of the Issuer, pursuant to the terms
hereunder 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).
(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.
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 an organization 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;
(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 with
respect to the GMACM Initial Mortgage Loans, 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
Cut-off Date Principal Balances existing on the related Subsequent Cut-Off
Date and all monies due or to become due with respect thereto, and all
proceeds of each Subsequent Cut-Off Date Principal Balances; and
(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 Mortgage Note 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 Mortgage Note 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 Mortgage Note 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;
(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
Mortgage Note 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) The related Mortgage Note 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 other assurance of title customary in the relevant
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 16.07%,
7.25%, 5.37% and 5.22% of the Initial Mortgage Loans that are Group I Loans,
by Cut-Off Date Principal, are secured by Mortgaged Properties located in
California, Florida, New Jersey and Michigan, respectively, and no more than
approximately 29.23% and 5.09% of the Initial Mortgage Loans that are Group
II Loans, by Cut-Off Date Principal, are secured by Mortgaged Properties
located in California and Florida, 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 54.06% 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); no
more than approximately 3.67% of the Initial Mortgage Loans, by Cut-Off Date
Principal Balance, are secured by Mortgaged Properties which may have been
appraised using the GMACM Stated Value method; no more than approximately
0.70% of the Initial Mortgage Loans, by Cut-Off Date Principal Balance, are
secured by Mortgaged Properties which may have been appraised using a tax
assessment; no more than approximately 1.92% of the Initial Mortgage Loans,
by Cut-Off Date Principal Balance, are secured by Mortgaged Properties which
may have been appraised using a broker price opinion; no more than
approximately 24.24% of the Initial Mortgage Loans, by Cut-Off Date Principal
Balance, are secured by Mortgaged Properties which may have been appraised
using a URAR Form 1004; no more than approximately 2.44% of the Initial
Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged
Properties which may have been appraised using a Drive-By Form 704; no more
than approximately 12.89% of the Initial Mortgage Loans, by Cut-Off Date
Principal Balance, are secured by Mortgaged Properties which may have been
appraised using Form 2055 (Exterior Only); no more than approximately 0.09%
of the Initial Mortgage Loans, by Cut-Off Date Principal Balance, are secured
by Mortgaged Properties which may have been appraised using a Form 2055 (with
Interior Inspection); and none of the Initial Mortgage Loans, by Cut-Off Date
Principal Balance, are secured by Mortgaged Properties which may have been
appraised using a Form 2065;
(xvii) Within a loan type, and except as required by applicable law,
each Mortgage Note and each Mortgage is an enforceable obligation of the
related Mortgagor;
(xviii) To the best knowledge of GMACM, the physical property subject to
each Mortgage is free of material damage and is in acceptable repair;
(xix) 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;
(xx) None of the Mortgage Loans is a reverse mortgage loan;
(xxi) No Initial Mortgage Loan has an original term to maturity in excess of
360 months;
(xxii) As of the Cut-Off Date, all of the Initial Mortgage Loans are
fixed rate. As of the Cut-Of Date, approximately 17.93% of the Initial
Mortgage Loans that are Group I Loans, and 36.52% of the Initial Mortgage
Loans that are Group II Loans, in each case by Cut-Off Date Principal, are
Balloon Mortgage Loans. As of the Cut-Off Date, the Loan Rates on the
Initial Mortgage Loans that are Group I Loans range between 5.600% to 17.775%
and the Loan Rates on the Initial Mortgage Loans that are Group II Loans
range between 5.617% to 16.075%. As of the Cut-Off Date, the weighted
average Loan Rate for the Initial Mortgage Loans that are Group I loans is
approximately 8.991% and the weighted average Loan Rate for the Initial
Mortgage Loans that are Group II loans is approximately 8.923%. The weighted
average remaining term to scheduled maturity of the Initial Mortgage Loans
that are Group I Loans on a contractual basis as of the Cut-Off Date is
approximately 225 months and the weighted average remaining term to scheduled
maturity of the Initial Mortgage Loans that are Group II Loans on a
contractual basis as of the Cut-Off Date is approximately 227 months;
(xxiii) (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,
manufactured housing unit or a townhouse. (B) With respect to the Initial
Mortgage Loans that are Group I Loans, (a) approximately 87.00% (by Cut-Off
Date Principal Balance) are secured by real property with a single family
residence erected thereon, (b) approximately 6.15% (by Cut-Off Date Principal
Balance) are secured by real property improved by planned development units,
(c) approximately 5.54% (by Cut-Off Date Principal Balance) are secured by
real property improved by individual condominium units, (d) approximately
1.27% (by Cut-Off Date Principal Balance) are secured by real property with a
two- to four-family residence erected thereon, and (e) approximately 0.04%
(by Cut-Off Date Principal Balance) are secured by real property improved by
townhouses. (C) With respect to the Initial Mortgage Loans that are Group II
Loans, (a) approximately 85.18% (by Cut-Off Date Principal Balance) are
secured by real property with a single family residence erected thereon,
(b) approximately 8.66% (by Cut-Off Date Principal Balance) are secured by
real property improved by planned development units, (c) approximately 4.99%
(by Cut-Off Date Principal Balance) are secured by real property improved by
individual condominium units, (d) approximately 1.16% (by Cut-Off Date
Principal Balance) are secured by real property with a two- to four-family
residence erected thereon, and (e) approximately 0.01% (by Cut-Off Date
Principal Balance) are secured by real property improved by townhouses;
(xxiv) As of the Cut-Off Date, no Initial Mortgage Loan that is a Group
I Loan had a principal balance in excess of $360,000 and no Initial Mortgage
Loan that is a Group II Loan had a principal balance in excess of $500,000.
(xxv) No more than approximately 93.96% of the Initial Mortgage Loans that
are Group I Loans and no more than approximately 96.92% of the Initial
Mortgage Loans that are Group II Loans, in each case, by aggregate Principal
Balance as of the Cut-Off Date, are secured by second liens;
(xxvi) A lender placed hazard insurance policy is in effect for the
Mortgage Loan. A policy of flood insurance, if applicable, was required from
the Mortgagor for the Mortgage Loan when the Mortgage Loan was originated;
(xxvii) 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 Mortgage Note 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 Mortgage Note 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;
(xxviii) 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;
(xxix) 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;
(xxx) 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;
(xxxi) No Mortgage Loan provides for payments that are subject to
reduction by withholding taxes levied by foreign (non-United States)
sovereign government;
(xxxii) None of the Mortgage Loans are "high cost loans"
subject to the Home Ownership and Equity Protection Act of 1994;
(xxxiii) As of the Cut-Off Date, none of the Mortgage Loans are "High
Cost Loans" or "Covered Loans" (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);
(xxxiv) 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;
(xxxv) Each Initial Mortgage Loan constitutes a "qualified mortgage"
under Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1);
(xxxvi) 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 home
equity lines of credit that were originated under the GMACM Home Equity
Program;
(xxxvii) The Servicer for each Mortgage Loan has fully furnished, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis;
(xxxviii) The originator of each Group I Loan offered the related borrower
mortgage loan products for which the borrower qualified and the Seller is are
not aware that the originator encouraged or required the borrower to select a
mortgage loan product that is a higher cost product designed for less
creditworthy borrowers;
(xxxix) The originator of the Group I Loans adequately considered the
borrower's ability to make payments by employing underwriting techniques that
considered a variety of factors, such as: the borrower's income, assets and
liabilities, and not solely the collateral value, in deciding to extend the
credit at the time of origination;
(xl) No borrower under a Group I Loan in the trust was charged "points and
fees" in an amount greater than (a) $1,000 or (b) 5% of the principal amount
of such Mortgage Loan, whichever is greater. For purposes of this
representation, "points and fees" (x) include origination, underwriting,
broker and finder's fees and charges that the lender imposed as a condition
of making the Mortgage Loan, whether they are paid to the lender or a third
party; and (y) exclude bona fide discount points, fees paid for actual
services rendered in connection with the origination of the mortgage (such as
attorney's fees, notaries fees and fees paid for property appraisals, credit
reports, surveys, title examinations and extracts, flood and tax
certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood
insurance policies; state and local transfer taxes or fees; escrow deposits
for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges, which miscellaneous fee and charges, in total
do not exceed 0.25 percent of the loan amount;
(xli) The principal balance at origination for each Group I Mortgage Loan
that is secured by a single family property located in any state other than
the States of Hawaii or Alaska did not exceed $417,000. The principal
balance at origination for each Group I Mortgage Loan that is secured by a
single family property located in the States of Hawaii or Alaska or the
Territories of Guam or the Virgin Islands did not exceed $625,500. The
principal balance at origination for each Group I Mortgage Loan that is
secured by a two-, three- or four-family property located in any state other
than the States of Hawaii or Alaska did not exceed $553,850, $645,300 or
$801,950, respectively. The principal balance at origination for each Group
II Mortgage Loan that is secured by a two-, three- or four-family property
located in the States of Hawaii or Alaska or the Territories of Guam or the
Virgin Islands did not exceed $800,775, $967,950 and $1,202,925, respectively;
(xlii) With respect to any Group I Loan that is a subordinate lien
mortgage loan: (a) such lien is on a one- to four-family residence that is
the principal residence of the Mortgagor; (b) no subordinate lien mortgage
loan has an original principal balance that exceeds one-half of the one-unit
limitation for first lien mortgage loans, i.e. $208,500 (in Alaska, Guam,
Hawaii or Virgin Islands: $312,750), without regard to the number of units;
and (c) the original principal balance of the first lien mortgage loan plus
the original principal balance of any subordinate lien mortgage loans
relating to the same mortgaged property does not exceed the applicable
▇▇▇▇▇▇▇ Mac loan limit for first lien mortgage loans for that property type
(as set out in Section (xli) above);
(xliii) No Group I Loan contains a provision permitting imposition of a
penalty upon a prepayment.
(xliv) (i) With respect to each Group I Mortgage Loan, the Seller
represents, warrants and covenants that the related Mortgage Note contains a
mandatory arbitration clause (that is, a clause that requires the Mortgagor
to submit to arbitration to resolve any dispute arising out of or relating in
any way to the Mortgage Loan). The Seller will send the Mortgagor written
notice of a "waiver provision" within 120 days of the Closing Date that
states (a) neither the Seller nor the Servicer shall require that the
Mortgagor to submit to arbitration to resolve any dispute arising out of or
relating in any way to the mortgage loan transaction, and (b) which notice
will contain substantially the following language in bold, capital letters,
in clear and conspicuous type-face: PURSUANT TO YOUR MORTGAGE LOAN DOCUMENTS,
WE ARE HEREBY NOTIFYING YOU THAT AN INTEREST IN YOUR LOAN HAS BEEN SOLD TO
▇▇▇▇▇▇▇ MAC AND THEREFORE THE MANDATORY ARBITRATION CLAUSE OF YOUR MORTGAGE
LOAN, REQUIRING THAT YOU SUBMIT TO ARBITRATION TO RESOLVE ANY DISPUTE ARISING
OUT OF OR RELATING IN ANY WAY TO THE YOUR MORTGAGE LOAN, IS IMMEDIATELY NULL
AND VOID. YOU ARE FREE TO CHOOSE TO EXERCISE ANY OF YOUR RIGHTS OR ENFORCE
ANY REMEDIES UNDER YOUR MORTGAGE LOAN THROUGH THE COURT SYSTEM;
(xlv) No Group I Loan is "seasoned" (a seasoned mortgage loan is one where
the date of the mortgage note is more than 1 year before the date of issuance
of the related security); and
(xlvi) With respect to each Group I Loan, no borrower obtained a prepaid
single-premium credit-life, credit disability, credit unemployment or credit
property insurance policy in connection with the origination of the Mortgage
Loan.
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;
(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 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, 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.
(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 Mortgage Note 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 Mortgage Note
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.
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, or, if such breach has the effect of
making the Mortgage Loan fail to be a "qualified mortgage" within the meaning
of Section 860G of the Internal Revenue Code, within 90 days after the
discovery thereof by either such Seller, the Servicer, the Issuer, the Owner
Trustee, the Indenture Trustee or the Purchaser 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, provided that a Seller
shall have the option to substitute an Eligible Substitute Mortgage Loan or
Loans for such Mortgage Loan only if such substitution occurs within two
years following the Closing Date. Notwithstanding the foregoing, it is
understood by the parties hereto that a breach of the representations and
warranties made in any of clauses (x), (xii), (xxxiii), (xxxiv), (xxxv) and
(xxxviii) through (xlvi) of this Section 3.1(b) with respect to any Group I
Loan will be deemed to materially and adversely affect the interests of the
Holders of the Class I-A-1 Notes. 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 Mortgage
Note, with the Mortgage Note 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. 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 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 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 less than the aggregate principal balance
of all such Deleted Loans (after application of the principal portion of the
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.
Notwithstanding the foregoing, with respect to any Mortgage Loan for
which a breach of Section 3.1(b)(xv) has occurred, no substitutions will be
allowed unless GMACM or WG Trust pays to the Servicer, an amount sufficient
to indemnify the Trust Fund, Purchaser, Issuer, Enhancer and Indenture
Trustee against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and other
costs and expenses resulting from any claim, demand, defense or assertion
based on or grounded upon, or resulting from, a breach of such representation.
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 Mortgage Note 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
Notes 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. 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
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), provided that
the Servicer, the Enhancer and the Indenture Trustee shall have received an
Opinion of Counsel to the effect that such amendment will not result in an
Adverse REMIC Event).
Section 8.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF, OTHER THAN SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 8.3 Notices. Where this Agreement provides for notice, certificates,
opinions, reports or similar delivery to be given to any transaction party or
to a Rating Agency, a copy of such document shall be contemporaneously sent
to the Enhancer. 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, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Executive Vice President
Re: GMACM Home Equity Loan Trust 2006-HE5;
(b) if to WG Trust 2003:
Walnut Grove Mortgage Loan Trust 2003-A
c/o Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Walnut Grove Mortgage Loan Trust 2003-A
Re: GMACM Home Equity Loan Trust 2006-HE5;
(c) if to the Purchaser:
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Re: GMACM Home Equity Loan Trust 2006-HE5;
(d) if to the Indenture Trustee:
The Bank of New York Trust Company, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Structured Finance Services - GMACM Home Equity
Loan Trust 2006-HE5;
(e) if to the Issuer:
c/o Wilmington Trust Company, as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Re: Corporate Trust Services - GMACM Home Equity Loan
Trust 2006-HE5; or
(f) if to the Enhancer:
Financial Guaranty Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Surveillance
Re: GMACM Home Equity Loan Trust 2006-HE5;
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
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 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 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 at the Purchaser's sole
discretion (and the Issuer's sole discretion with respect to the transfer of
any Subsequent Mortgage Loans); provided, that each Seller may assign its
obligations hereunder to any Affiliate of such Seller, to any Person
succeeding to the business of such Seller, to any Person into which such
Seller is merged and to any Person resulting from any merger, conversion or
consolidation to which such Seller is a party. 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
2006-HE5 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.
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: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GMAC MORTGAGE, LLC,
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:
[Signatures Continue On Following Page]
GMACM HOME EQUITY LOAN TRUST 2006-HE5, as
Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as
Owner Trustee
By: _________________________________
Name:
Title:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
not in its individual capacity but solely
as Indenture Trustee
By: ________________________________
Name:
Title:
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
[On file with the Servicer]
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
2006-HE5, as issuer (the "Issuer"), and pursuant to the mortgage loan
purchase agreement dated as of November 29, 2006 (the "Mortgage Loan Purchase
Agreement"), among GMAC Mortgage, LLC, 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 The Bank of New York
Trust Company, 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 November 29,
2006, 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, 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 without limitation 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 2006-HE5, as
Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as
Owner Trustee
By: __________________________________
Name:
Title:
GMAC MORTGAGE, LLC,
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 2006-HE5
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:
The Bank of New York Trust Company, ▇.▇. ▇▇▇▇▇'▇ Investors Service, Inc.
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Structured Finance Services
Financial Guaranty Insurance Company Standard & Poor's, a division of The
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Re: GMACM Home Equity Loan Trust New York, New York 10041-0003
2006-HE5
Wilmington Trust Company
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Re: GMACM Home Equity Loan Trust 2006-HE5
Ladies and Gentlemen:
Pursuant to Section 2.2 of the mortgage loan purchase agreement dated
as of November 29, 2006 (the "Purchase Agreement"), among GMAC Mortgage, LLC,
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 2006-HE5, as Issuer and The Bank of New York Trust Company,
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 November 29,
2006, 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:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Indenture Trustee
By:
Name:
Title:
