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 Xxxxxxx 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 Xxxxxxx 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
XXXXXXX 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.
(xlvii) For each Mortgage Loan, GMACM will fully furnish, 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.
(xlviii) No refinance or purchase money mortgage loan in the trust has an APR or total
points and fees that exceed the thresholds set by the Home Ownership and Equity Protection
Act of 1994 ("HOEPA") and its implementing regulations, including 12 CFRss. 226.32(a)(1)(i)
and (ii).
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 (xlviii) 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
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxx, 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
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
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.
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Structured Finance Services - GMACM Home Equity Loan Trust
2006-HE5;
(e) if to the Issuer:
c/o Wilmington Trust Company, as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telecopier: 000-000-0000
Re: Corporate Trust Services - GMACM Home Equity Loan Trust
2006-HE5; or
(f) if to the Enhancer:
Financial Guaranty Insurance Company
000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention:Structured Finance Surveillance
Re: GMACM Home Equity Loan Trust 2006-HE5;
Telecopier: (000) 000-0000;
or, with respect to any of the foregoing Persons, at such other address as may hereafter be
furnished to the other foregoing Persons in writing.
Section 8.4 Severability of Provisions. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be held invalid for any reason whatsoever, then
such covenants, agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way affect the
validity of enforceability of the other provisions of this Agreement.
Section 8.5 Relationship of Parties. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture among the parties hereto, and the
services of 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: Xxxxxxxx X. Xxxxxx
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]
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, X.X. Xxxxx'x Investors Service, Inc.
0 Xxxxx XxXxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 10007
Xxxxxxx, XX 00000
Attn: Structured Finance Services
Financial Guaranty Insurance Company Standard & Poor's, a division of The
000 Xxxx Xxxxxx, XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx
Re: GMACM Home Equity Loan Trust 0000-XX0 Xxx Xxxx, Xxx Xxxx 00000-0000
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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:
