EXECUTION COPY
RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC.,
as Purchaser,
GMAC MORTGAGE CORPORATION,
as Seller and Servicer,
WALNUT GROVE HOME EQUITY LOAN TRUST 2000-A,
as Seller,
GMACM HOME LOAN TRUST 2000-CL1,
as Issuer,
and
XXXXX FARGO BANK MINNESOTA, N.A.,
as Indenture Trustee
--------------------------------------------
HOME LOAN PURCHASE AGREEMENT
--------------------------------------------
Dated as of September 28, 2000
TABLE OF CONTENTS
Page
-I-
ARTICLE I DEFINITIONS...............................................................2
Section 1.1 Definitions...........................................................2
Section 1.2 Other Definitional Provisions.........................................2
ARTICLE II SALE OF HOME LOANS AND RELATED PROVISIONS.................................3
Section 2.1 Sale of Initial Home Loans............................................3
Section 2.2 Sale of Subsequent Home Loans.........................................6
Section 2.3 Payment of Purchase Price.............................................9
ARTICLE III REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH......................10
Section 3.1 Seller Representations and Warranties................................10
ARTICLE IV SELLER'S COVENANTS.......................................................18
Section 4.1 Covenants of the Seller..............................................18
ARTICLE V SERVICING................................................................18
Section 5.1 Servicing............................................................18
ARTICLE VI INDEMNIFICATION BY THE SELLER WITH RESPECT TO THE MORTGAGE LOANS.........18
Section 6.1 Indemnification with Respect to the Home Loans.......................18
Section 6.2 Limitation on Liability of the Seller................................18
ARTICLE VII TERMINATION..............................................................19
Section 7.1 Termination..........................................................19
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................................19
Section 8.1 Amendment............................................................19
Section 8.2 GOVERNING LAW........................................................19
Section 8.3 Notices..............................................................19
Section 8.4 Severability of Provisions...........................................20
Section 8.5 Relationship of Parties..............................................20
Section 8.6 Counterparts.........................................................20
Section 8.7 Further Agreements...................................................21
Section 8.8 Intention of the Parties.............................................21
Section 8.9 Successors and Assigns; Assignment of This Agreement.................21
Section 8.10 Survival.............................................................22
Section 8.11 Third Party Beneficiary..............................................22
EXHIBIT 1 HOME LOAN SCHEDULE...............................................................1
EXHIBIT 2 FORM OF SUBSEQUENT TRANSFER AGREEMENT............................................1
EXHIBIT 3 FORM OF ADDITION NOTICE..........................................................1
This Home Loan Purchase Agreement (the "Agreement"), dated as of
September 28, 2000, is made among GMAC Mortgage Corporation, as seller ("GMACM")
and as servicer (in such capacity, the "Servicer"), Walnut Grove Home Equity
Loan Trust 2000-A, as seller ("WG Trust" and, together with GMACM, each a
"Seller" and collectively, the "Sellers"), Residential Asset Mortgage Products,
Inc., as purchaser (the "Purchaser"), GMACM Home Loan Trust 2000-CL1, as issuer
(the "Issuer"), and Xxxxx Fargo Bank Minnesota, 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 originated all of the home equity loans listed
on the Home Loan Schedule attached as Exhibit 1 hereto (the "Initial Home
Loans");
WHEREAS, GMACM sold a portion of the Initial Home Loans (the "WG Trust
Initial Home Loans"), to Walnut Grove Funding, Inc. ("Walnut Grove"), pursuant
to a Mortgage Loan Purchase Agreement (the "Walnut Grove Purchase Agreement"),
dated as of June 1, 2000, among Walnut Grove, as purchaser, GMACM, as seller, WG
Trust, as Issuer and Bank One, National Association, as trustee (each date of
sale, a "Prior Transfer Date");
WHEREAS, Walnut Grove sold the WG Trust Initial Home Loans to WG Trust
pursuant to a Trust Agreement, dated as of June 1, 2000, 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 Home Loans indicated on the Home Loan
Schedule -A attached as Exhibit 1-A hereto (the "GMACM Initial Home 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 Home Loans;
WHEREAS, WG Trust owns the Cut-Off Date Principal Balances and the
Related Documents for the WG Trust Initial Home Loans indicated on the Home 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 Initial Home Loans;
WHEREAS, the parties hereto desire that: (i) GMACM sell the Cut-Off Date
Principal Balances of the GMACM Initial Home Loans to the Purchaser on the
Closing Date pursuant to the terms of this Agreement together with the Related
Documents, (ii) WG Trust sell the Cut-Off Date Principal Balances of the WG
Trust Initial Home Loans to the Purchaser on the Closing Date pursuant to the
terms of this Agreement together with the Related Documents, (iii) GMACM may
sell Subsequent Home Loans to the Issuer on one or more Subsequent Transfer
Dates pursuant to the terms of the related Subsequent Transfer Agreement, and
(iv) each Seller make certain representations and warranties on the Closing Date
and GMACM make certain representations and warranties on each Subsequent
Transfer Date;
WHEREAS, pursuant to the Trust Agreement, the Purchaser will sell the
Initial Home 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 Home 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
September 28, 2000 (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 HOME LOANS AND RELATED PROVISIONS
Section 2.1 Sale of Initial Home 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, and wherever
located: (i) the GMACM Initial Home Loans (including the Cut-Off Date Principal
Balances), 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 Home Loans; and (iii) all proceeds of the foregoing. Such
conveyance shall be deemed to be made: with respect to the Cut-Off Date
Principal Balances, as of the Closing Date, subject to the receipt by GMACM of
consideration therefor as provided herein under clause (a) of Section 2.3.
(b) WG Trust, 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 Home Loans (including the Cut-Off Date
Principal Balances), 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 WG Trust in any insurance policies in
respect of the WG Trust Initial Home Loans; and (iii) all proceeds of the
foregoing. Such conveyance shall be deemed to be made: with respect to the
Cut-Off Date Principal Balances, as of the Closing Date, subject to the receipt
by WG Trust of consideration therefor as provided herein under clause (a) of
Section 2.3.
In addition, the Issuer shall deposit with the Indenture Trustee
from proceeds of the issuance of the Securities on the Closing Date (i) the
Original Pre-Funded Amount for deposit in the Pre-Funding Account and (ii) the
Interest Coverage Amount for deposit in the Capitalized Interest Account.
(c) In connection with the conveyance by GMACM of the GMACM Initial Home Loans
and any Subsequent Home 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 Home Loans and on or prior to the related Subsequent Cut-Off Date in the
case of any Subsequent Home Loans, to indicate in its books and records that the
GMACM Initial Home Loans have been sold to the Purchaser pursuant to this
Agreement, and, in the case of the Subsequent Home 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 Home Loans specifying for each Home Loan
(i) its account number and (ii) its Cut-Off Date Principal Balance or Subsequent
Cut-Off Date Principal Balance. Home Loan Schedule -A, which forms part of the
Home Loan Schedule, shall be marked as Exhibit 1-A to this Agreement and is
hereby incorporated into and made a part of this Agreement.
(d) In connection with the conveyance by WG Trust of the WG Trust Initial Home
Loans, WG Trust further agrees, at its own expense, on or prior to the Closing
Date with respect to the Principal Balances of the WG Trust Initial Home Loans,
to indicate in its books and records that the WG Trust Initial Home Loans have
been sold to the Purchaser pursuant to this Agreement. GMACM, as Servicer of the
WG Trust Initial Home Loans, agrees, and to deliver to the Purchaser true and
complete lists of all of the Home Loans specifying for each Home Loan (i) its
account number and (ii) its Cut-Off Date Principal Balance. Home Loan Schedule
-B, which forms part of the Home Loan Schedule, shall be marked as Exhibit 1-B
to this Agreement and is hereby incorporated into and made a part of this
Agreement.
(e) In connection with the conveyance by GMACM of the GMACM Initial Home Loans
and any Subsequent Home Loans and the conveyance by WG Trust of the WG Trust
Initial Home Loans, GMACM shall 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 Home Loan, and, on behalf of the Issuer, three
(3) Business Days prior to the related Subsequent Transfer Date in the case of a
Subsequent Home Loan, with respect to (i) below, or within 90 days of the
Closing Date or the Subsequent Transfer Date, as the case may be, with respect
to (ii) through (v) below, the following documents or instruments with respect
to each related Home Loan of the related Seller:
(i) the original Mortgage Note endorsed without recourse in blank (which
endorsement shall contain either an original signature or a facsimile signature
of an authorized officer of the related Seller) or, with respect to any Home
Loan as to which the original Mortgage Note has been permanently lost or
destroyed and has not been replaced, a Lost Note Affidavit;
(ii) the original Mortgage with evidence of recording thereon, or, if the
original Mortgage has not yet been returned from the public recording office, a
copy of the original Mortgage certified by the related Seller that such Mortgage
has been sent for recording, or a county certified copy of such Mortgage in the
event the recording office keeps the original or if the original is lost;
(iii) assignments (which may be included in one or more blanket assignments if
permitted by applicable law) of the Mortgage in recordable form from GMACM or WG
Trust to "Xxxxx Fargo Bank Minnesota, N.A., as Indenture Trustee under that
certain Indenture dated as of September 28, 2000, for GMACM Home Loan Trust
2000-CL1, Home Loan-Backed Term Notes" c/o the Servicer at an address specified
by the Servicer;
(iv) originals of any intervening assignments of the Mortgage from the
originator to GMACM or WG Trust, with evidence of recording thereon, or, if the
original of any such intervening assignment has not yet been returned from the
public recording office, a copy of such original intervening assignment
certified by GMACM that such original intervening assignment has been sent for
recording; and
(v) a true and correct copy of each assumption, modification, consolidation or
substitution agreement, if any, relating to such Home Loan.
Within the time period for the review of each Mortgage File set forth in
Section 2.2 of the Custodial Agreement, if a material defect in any Mortgage
File is discovered which may materially and adversely affect the value of the
related Home Loan, or the interests of the Indenture Trustee (as pledgee of the
Home Loans), the Noteholders, the Certificateholders or the Credit Enhancer in
such Home Loan, including GMACM's failure to deliver any document required to be
delivered to the Custodian on behalf of the Indenture Trustee (provided, that a
Mortgage File will not be deemed to contain a defect for an unrecorded
assignment under clause (iv) above if GMACM has submitted such assignment for
recording pursuant to the terms of the following paragraph), GMACM shall cure
such defect, repurchase the related Home 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 Home Loans.
In instances where an original Mortgage or any original intervening
assignment of Mortgage was not, in accordance with clauses (ii) or (iv) above,
delivered by GMACM or WG Trust to the Custodian contemporaneously with the
execution and delivery of this Agreement, GMACM or WG Trust will deliver or
cause to be delivered the originals or certified copies of such documents to the
Custodian promptly upon receipt thereof.
Upon sale of the Initial Home 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 Home Loans that are prepared by or that come into the
possession of either Seller, as a seller of the Initial Home 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 documents in possession of WG Trust and retained and
maintained in trust by GMACM as the Servicer at the will of the Purchaser, in
such custodial capacity only. In the event that any original document held by
GMACM hereunder in its capacity as Servicer is required pursuant to the terms of
this Section to be part of a Mortgage File, such document shall be delivered
promptly to the Custodian. Each Seller's records will accurately reflect the
sale of each Seller's respective Initial Home Loan 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.
(f) 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 Home 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,
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 Home 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 without limitation the filing of any continuation
statements with respect to the UCC-1 financing statements filed with respect to
the Initial Home 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 interests in each
Initial Home Loan and the proceeds thereof.
Section 2.2 Sale of Subsequent Home 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), (b)(iii), (b)(vi), (b)(vii) and (c)(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, GMACM 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 GMACM in and to (i) Subsequent Home Loans
identified on the related Home 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 Home Loan and after the related
Subsequent Cut-Off Date and (iii) all items with respect to such Subsequent Home
Loans to be delivered pursuant to Section 2.1 above and the other items in the
related Mortgage Files; provided, however, that GMACM reserves and retains all
right, title and interest in and to principal received and interest accruing on
any Subsequent Home Loan prior to the related Subsequent Cut-Off Date. Any
transfer to the Issuer by GMACM of Subsequent Home Loans shall be absolute, and
is intended by the Issuer and GMACM to constitute and to be treated as a sale of
such Subsequent Home Loans by GMACM to the Issuer. In the event that any such
transaction is deemed not to be a sale, GMACM hereby grants to the Issuer as of
each Subsequent Transfer Date a security interest in all of GMACM'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, advices of credit, investment property,
goods and other property consisting of, arising under or related to the related
Subsequent Home Loans and such other property, to secure all of GMACM's
obligations hereunder, and this Agreement shall constitute a security agreement
under applicable law. GMACM 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 GMACM
or the filing of any additional UCC-1 financing statements due to the change in
the principal office of GMACM, as are necessary to perfect and protect the
interests of the Issuer and its assignees in each Subsequent Home Loan and the
proceeds thereof.
The Issuer on each Subsequent Transfer Date shall acknowledge its
acceptance of all right, title and interest to the related Subsequent Home 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
after each Subsequent Cut-Off Date, all other payments of principal due and
collected after each Subsequent Cut-Off Date, and all payments of interest on
any related Subsequent Home Loans, minus that portion of any such interest
payment that is allocable to the period prior to the related Subsequent Cut-Off
Date. No scheduled payments of principal due on Subsequent Home Loans on or
before the related Subsequent Cut-Off Date and collected after such Subsequent
Cut-Off Date shall belong to the Issuer pursuant to the terms of this Agreement.
(b) GMACM may transfer to the Issuer Subsequent Home Loans and the other
property and rights related thereto described in Section 2.2(a) above during the
Pre-Funding Period, and the Issuer shall cause to be released funds from the
Pre-Funding Account, only upon the satisfaction of each of the following
conditions on or prior to the related Subsequent Transfer Date:
(i) GMACM shall have provided the Indenture Trustee, the Rating Agencies and the
Credit Enhancer with a timely Addition Notice substantially in the form of
Exhibit 3, which notice shall be given no later than seven Business Days prior
to the related Subsequent Transfer Date, and shall designate the Subsequent Home
Loans to be sold to the Issuer, the aggregate Principal Balance of such
Subsequent Home Loans as of the related Subsequent Cut-Off Date and any other
information reasonably requested by the Indenture Trustee or the Credit Enhancer
with respect to such Subsequent Home Loans;
(ii) GMACM shall have delivered to the Indenture Trustee and the Credit 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 Home Loan Schedule
listing the Subsequent Home 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,
GMACM 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 GMACM
to the Securityholders; and
(v) the Credit Enhancer shall have approved the sale of the Subsequent Home
Loans (which approval shall not be unreasonably withheld) within five (5)
Business Days of receipt of the Home Loan Schedule reflecting the Subsequent
Home Loans; provided, that if the Credit Enhancer shall not have notified GMACM
within five (5) Business Days that the Credit Enhancer does not so approve, such
sale of Subsequent Home Loans shall be deemed approved by the Credit Enhancer.
In addition, GMACM shall have delivered to the Issuer, the Indenture
Trustee and the Credit Enhancer an Opinion of Counsel with respect to certain
bankruptcy matters relating to the transfers of Subsequent Home Loans, which
Opinion of Counsel shall be substantially in the form of the Opinion of Counsel
delivered to the Credit Enhancer and the Rating Agencies and the Indenture
Trustee on the Closing Date regarding certain bankruptcy matters, within 30 days
after the end of the Pre-Funding Period relating to all Subsequent Home Loans
transferred to the Trust during the Pre-Funding Period and purchased, from funds
on deposit in the Pre-Funding Account.
The obligation of the Issuer to purchase a Subsequent Home Loan on any
Subsequent Transfer Date is subject to the following conditions: (i) each such
Subsequent Home Loan must satisfy the representations and warranties specified
in the related Subsequent Transfer Agreement and this Agreement; (ii) GMACM will
not select such Subsequent Home Loans in a manner that it reasonably believes is
adverse to the interests of the Noteholders or the Credit Enhancer; (iii) GMACM
will deliver to the Credit Enhancer and the Indenture Trustee certain Opinions
of Counsel described in Section 2.2(b) and acceptable to the Credit Enhancer and
the Indenture Trustee with respect to the conveyance of such Subsequent Home
Loans; and (iv) as of the related Subsequent Cut-Off Date each Subsequent Home
Loan will satisfy the following criteria: (A) such Subsequent Home Loan may not
be 30 or more days contractually delinquent as of the related Subsequent Cut-Off
Date; (B) such Subsequent Home Loan must be secured by a mortgage in a first or
second lien position; (C) such Subsequent Home Loan must have a CLTV at
origination of no more than 110.00%; (D) such Subsequent Home Loan must have an
original term to maturity of not more than 300 months and a remaining term to
maturity which does not extend beyond September 1, 2025; (E) such Subsequent
Home Loan must have a Loan Rate of less than 10.00%; (F) such Subsequent Home
Loan must have a principal balance not in excess of $50,000; (G) such Subsequent
Home Loan may not have a credit score less than 580; (H) such Subsequent Home
Loan may not be secured by non-owner occupied investment properties or secondary
residences; (I) such Subsequent Home Loan must be underwritten in accordance
with a full documentation underwriting program; and (J) following the purchase
of such Subsequent Home Loans by the Issuer, as of each Subsequent Cut-Off Date,
the Home Loans included in the Trust Estate (by aggregate Principal Balance)
must have the following characteristics: (i) a weighted average Loan Rate of not
less than 15.900%, (ii) may not include balloon loans, (iii) the percentage of
Home Loans secured by single family residences or residences located in PUDs may
not be less than 89%, (iv) may not have a concentration in the State of
California in excess of 25.00%, (v) the percentage of Home Loans made to
borrowers with a credit score less than 580 shall not exceed 2%, (vi) will have
a weighted average credit score (excluding Home Loans for which a credit score
is not available) of at least 615, (vii) will have a weighted average CLTV at
origination of not more than 104.00%, and (viii) the percentage of Home Loans
that are REMIC Ineligible Loans shall not be less than 60%. Subsequent Home
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 Credit Enhancer, in its reasonable discretion; provided, however, that
the addition of such Subsequent Home Loans will not materially affect the
aggregate characteristics of the Home Loans in the Trust Estate. GMACM shall not
transfer Subsequent Home Loans with the intent to mitigate losses on Home 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 Credit Enhancer a
copy of the updated Home Loan Schedule reflecting the Subsequent Home Loans in
electronic format (to be followed by a hard copy).
(d) In the event that a home equity loan is not acceptable to the Credit
Enhancer as a Subsequent Home Loan pursuant to Section 2.2(b)(v) hereof, the
Credit Enhancer and GMACM may mutually agree to the transfer of such home equity
loan to the Issuer as a Subsequent Home Loan, subject to any increase in the
Overcollateralization Amount that may be agreed to by GMACM and the Credit
Enhancer pursuant to the Indenture, in which event GMACM shall deliver to the
Issuer and the Indenture Trustee, with a copy to the Credit Enhancer, an
Officer's Certificate confirming the agreement to the transfer of such
Subsequent Home 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 Home Loans shall take place on the Closing Date,
subject to and simultaneously with the deposit of the Initial Home 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
(the "Purchase Price") for the GMACM Initial Home Loans to be paid by the
Purchaser to GMACM on the Closing Date shall be an amount equal to
$178,739,223.85 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 Initial Home Loans to be paid by the Purchaser to WG Trust on
the Closing Date shall be an amount equal to $54,100,548.35 in immediately
available funds, in respect of the Cut-Off Date Principal Balances thereof. The
Purchase Price paid for any Subsequent Home Loan by the Indenture Trustee from
funds on deposit in the Pre-Funding Account, at the direction of the Issuer,
shall be one-hundred percent (100%) of the Subsequent Cut-Off Date Principal
Balance thereof (as identified on the Home Loan Schedule attached to the related
Subsequent Transfer Agreement provided by GMACM).
(b) In consideration of the sale of the GMACM Initial Home 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 each GMACM
Initial Home Loan; 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 Home 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 Home
Loan.
(c) In consideration of the sale of the WG Trust Initial Home Loans by WG Trust
to the Purchaser on the Closing Date, the Purchaser shall pay to WG Trust on the
Closing Date by wire transfer of immediately available funds to a bank account
designated by WG Trust, the amount specified above in paragraph (a) for each WG
Trust Initial Home Loan; provided, that such payment may be on a net funding
basis if agreed by WG Trust and the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR BREACH
Section 3.1 GMACM Representations and Warranties. GMACM represents and warrants
to the Purchaser, as of the Closing Date and as of each Subsequent Transfer Date
(or if otherwise specified below, as of the date so specified):
(a) As to GMACM:
(i) GMACM is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction governing its creation and existence and is
or will be in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of each
Home Loan;
(ii) GMACM has the power and authority to make, execute, deliver and perform its
obligations under this Agreement and each Subsequent Transfer Agreement and all
of the transactions contemplated under this Agreement and each Subsequent
Transfer Agreement, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement and each 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 by GMACM and its performance
and compliance with the terms of this 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 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
Home Loans, including the Cut-Off Date Principal Balances with respect to the
GMACM Initial Home 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 Home 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 Subsequent Home
Loans, including the Cut-Off Date Principal Balances of the Subsequent Home
Loans, all monies due or to become due with respect thereto, and all proceeds of
such Subsequent Cut-Off Date Principal Balances and such funds as are from time
to time deposited in the Custodial Account (excluding any investment earnings
thereon) as assets of the Trust and all other property specified in the
definition of "Trust" as being part of the corpus of the Trust conveyed to the
Purchaser by GMACM; and
(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 Home Loan (except as otherwise specified below) as of the
Closing Date, or with respect to each Subsequent Home Loan as of the related
Subsequent Transfer Date (except as otherwise specified below):
(i) The information set forth in the Home Loan Schedule with respect to each
Home Loan or the Home 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 Home Loans, as of each
respective Prior Transfer Date: (A) the related Mortgage Note and the Mortgage
had not been assigned or pledged, except for any assignment or pledge that had
been satisfied and released, (B) immediately prior to the assignment of such
Home 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 Home Loan
free and clear of any and all liens, encumbrances, pledges, or security
interests (other than, with respect to any Home 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 Home Loan, to sell and assign the same pursuant
to the Walnut Grove Purchase Agreement;
(iii) With respect to the GMACM Initial Home Loans: (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 Home Loans to the Purchaser, GMACM has good title
thereto and (C) GMACM is the sole owner and holder of the Home Loan free and
clear of any and all liens, encumbrances, pledges, or security interests (other
than, with respect to any Home 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 Home 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 Home Loan
was 30 days or more delinquent in payment of principal or interest;
(ix) With respect to the GMACM Initial Home Loans, the related Mortgage File
contain or will contain, in accordance with Section 2.1(c)(ii), each of the
documents and instruments specified to be included therein;
(x) To the best of the GMACM's knowledge, 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;
(xi) A title search or other assurance of title customary in the relevant
jurisdiction was obtained with respect to each Home 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, no more than approximately 24.58% and 5.34% of
the Home Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged
Properties located in California and New Jersey, respectively;
(xiv) As of the Cut-Off Date or Subsequent Cut-Off Date, the Combined
Loan-to-Value Ratio for each Home Loan was not in excess of 110%;
(xv) As of the Cut-Off Date, not less than 64.04% of the Home Loans, by Cut-Off
Date Principal Balance, are REMIC Ineligible Loans;
(xvi) GMACM has not transferred the GMACM Initial Home Loans to the Purchaser or
any Subsequent Home Loans to the Issuer with any intent to hinder, delay or
defraud any of its creditors;
(xvii) Reserved;
(xviii) 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;
(xix) To the best knowledge of GMACM, the physical property subject to each
Mortgage is free of material damage and is in acceptable repair;
(xx) GMACM has not received a notice of default of any senior mortgage loan
related to a Mortgaged Property which has not been cured by a party other than
the Servicer;
(xxi) Reserved;
(xxii) None of the Home Loans is a reverse mortgage loan; (xxiii) No Home Loan
has an original term to maturity in excess of 300 months;
(xxiv) All of the Home Loans are fixed rate and are fully amortizing. As of the
Cut-off Date, the Loan Rates on the Home Loans range between 10.000% per annum
and 18.500% per annum. The weighted average remaining term to stated maturity of
the Home Loans as of the Cut-off Date is approximately 251 months;
(xxv) (A) Each Mortgaged Property consists of a single parcel of real property
with a single family or an individual condominium unit; and (B) with respect to
the Home Loans (a) approximately 6.97% (by Cut-Off Date Principal Balance) are
secured by real property improved by individual condominium units, and (b)
approximately 87.43% (by Cut-Off Date Principal Balance) are secured by real
property with a single family residence erected thereon;
(xxvi) As of the Cut-Off Date no Initial Home Loan had a principal balance in
excess of $64,971.01;
(xxvii) No more than approximately 99.60% of the Initial Home Loans, by
aggregate Principal Balance as of the Cut-Off Date, are secured by second liens;
(xxviii) A policy of hazard insurance and flood insurance, if applicable, was
required from the Mortgagor for the Home Loan when the Home Loan was originated;
(xxix) Other than with respect to a payment default, there is no material
default, breach, violation or event of acceleration existing under the terms of
any 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 Home Loan;
(xxx) To the best knowledge of GMACM, no instrument of release or waiver has
been executed in connection with the Home Loans, and no Mortgagor has been
released, in whole or in part from its obligations in connection therewith;
(xxxi) With respect to each Home Loan secured by a second lien, either (a) no
consent for such Home 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 Home Loan was required by relevant law;
and
(xxxii) With respect to each Home 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 Home Loan in the event the
related Mortgaged Property is sold without the prior consent of the mortgagee
thereunder.
With respect to this Section 3.1(b), representations made by
GMACM with respect to the WG Trust Initial Home Loans, made as of the Cut-Off
Date or the Closing Date, are made by GMACM in its capacity as Servicer.
Representations made by GMACM with respect to the WG Trust Initial Home Loans,
made as of any other date, are made by GMACM in its capacity as Seller.
(c) WG Trust Representations and Warranties. WG Trust represents and
warrants to the Purchaser, as of the Closing Date:
(i) As to WG Trust:
(i) WG Trust is a Delaware business trust duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(ii) WG Trust has the power and authority to make, execute, deliver and perform
its obligations under this Agreement and all of the transactions contemplated
under this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
(iii) WG Trust 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, 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 by WG Trust and its
performance and compliance with the terms of this Agreement will not violate WG
Trust'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 is a party or which may be
applicable to WG Trust 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 threatened, against WG Trust or with
respect to this Agreement that in the opinion of WG Trust has a reasonable
likelihood of resulting in a material adverse effect on the transactions
contemplated by this Agreement;
(vi) This Agreement constitutes a legal, valid and binding obligation of WG
Trust, enforceable against WG Trust 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 in and to the WG Trust
Initial Home Loans, including the Cut-Off Date Principal Balances with respect
to the WG Trust Initial Home 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 Initial Home Loans; and
(viii) WG Trust 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 or its properties or might have consequences that would materially
adversely affect its performance hereunder.
(ii) As to the WG Trust Initial Home Loans:
(i) With respect to the WG Trust Initial Home Loans: (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 Home Loans to the Purchaser, WG Trust had good title
thereto and (C) WG Trust is the sole owner and holder of the Home Loan free and
clear of any and all liens, encumbrances, pledges, or security interests (other
than, with respect to any Home 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 Home Loans to sell and assign the same pursuant to this
Agreement;
(ii) For each WG Trust Initial Home Loan, the related Mortgage File contains or
will contain, in accordance with Section 2.1(c)(ii), each of the documents and
instruments specified to be included therein;
(iii) WG Trust has not transferred the WG Trust Initial Home 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 in
connection with the WG Trust Initial Home Loans, and no Mortgagor has been
released by WG Trust, in whole or in part, from its obligations in connection
therewith.
(d) Upon discovery by either Seller or upon notice from the Purchaser,
the Credit Enhancer, the Issuer, the Owner Trustee, the Indenture Trustee or the
Custodian, as applicable, of a breach of such Seller's respective
representations or warranties in paragraph (a) or (c)(i) above that materially
and adversely affects the interests of the Securityholders or the Credit
Enhancer, as applicable, in any Home Loan, GMACM or WG Trust, 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 Home Loan or a Related Document, either (A)
repurchase such Home Loan from the Issuer at the Repurchase Price, or (B)
substitute one or more Eligible Substitute Loans for such Home Loan, in each
case in the manner and subject to the conditions and limitations set forth
below.
Upon discovery by either Seller or upon notice from the Purchaser, the
Credit Enhancer, the Issuer, the Owner Trustee, the Indenture Trustee or the
Custodian, as applicable, of a breach of such Seller's respective
representations or warranties in paragraphs (b) or (c) above, with respect to
any Home Loan, or upon the occurrence of a Repurchase Event, that materially and
adversely affects the interests of the Securityholders, the Credit Enhancer or
the Purchaser in such Home Loan (notice of which shall be given to the Purchaser
by the respective Seller, if it discovers the same), notwithstanding such
Seller's lack of knowledge with respect to the substance of such representation
and warranty, such Seller shall, within 90 days after the earlier of its
discovery or receipt of notice thereof, either cure such breach or Repurchase
Event in all material respects or either (i) repurchase such Home Loan from the
Issuer at the Repurchase Price, or (ii) substitute one or more Eligible
Substitute Loans for such Home Loan, in each case in the manner and subject to
the conditions set forth below. The Repurchase Price for any such Home Loan
repurchased by such Seller shall be deposited or caused to be deposited by the
Servicer into the Custodial Account.
In the event that either 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 and all other
documents and agreements as are required by Section 2.1(c), with the Mortgage
Note endorsed as required by Section 2.1(c). 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 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 Home 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 Home Loan Schedule to the Owner Trustee, the Indenture
Trustee and the Credit 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, such Seller 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 (xiii), (xiv),
(xxiv), (xxv) and (xxvii) thereof), with respect to GMACM, or the
representations and warranties set forth in Section 3.1(c), with respect to WG
Trust, each as of the date of substitution and a representation and warranty
that each Home Loan so substituted is an Eligible Substitute Loan as of the date
of substitution, and such Seller 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.
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 release to such Seller the related Mortgage File
for the Home Loan being repurchased or substituted for and 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 its designee such Home Loan released
pursuant hereto and thereafter such Home Loan shall not be an asset of the
Issuer.
It is understood and agreed that the obligation of each Seller to cure
any breach, or to repurchase or substitute for any Home 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.
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive delivery of the respective Mortgage
Files to the Issuer or the Custodian.
ARTICLE IV
SELLERS' COVENANTS
Section 4.1 Covenants of the Sellers. Each Seller hereby covenants that, except
for the transfer hereunder and, with respect to GMACM, as of any Subsequent
Transfer Date, neither Seller will sell, pledge, assign or transfer to any other
Person, or grant, create, incur or assume any Lien on any Home Loan, or any
interest therein. Each Seller shall notify the Issuer (in the case of the
Initial Home Loans, as assignee of the Purchaser), of the existence of any Lien
(other than as provided above) on any Home Loan immediately upon discovery
thereof; and each Seller shall defend the right, title and interest of the
Issuer (in the case of the Initial Home Loans, as assignee of the Purchaser) in,
to and under the Home 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 either 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 Home Loans pursuant to the terms
and conditions of the Servicing Agreement and the Program Guide and shall
service the Home Loans directly or through one or more sub-servicers in
accordance therewith.
ARTICLE VI
INDEMNIFICATION BY THE SELLERS
WITH RESPECT TO THE MORTGAGE LOANS
Section 6.1 Limitation on Liability of the Sellers. None of the directors,
officers, employees or agents of either GMACM or WG Trust shall be under any
liability to the Purchaser, 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 shall not be under any liability to the Issuer,
the Owner Trustee, the Indenture Trustee or the Securityholders. GMACM, WG Trust
and any director, officer, employee or agent of GMACM or WG Trust, 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 Credit
Enhancer (which consent shall not be unreasonably withheld).
Section 8.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 8.3 Notices. All demands, notices and communications hereunder shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by registered mail, postage prepaid, addressed as follows:
(i) if to the GMACM:
GMAC Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxx, Senior Vice President
Re: GMACM Home Loan Trust 2000-CL1;
(ii) if to WG Trust:
=========================
-------------------------
Attention: __________________________
Re:GMACM Home Loan Trust 2000-CL1;
(iii) if to the Purchaser:
Residential Asset Mortgage Products, Inc.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:President
Re: GMACM Home Loan Trust 2000-CL1;
(iv) if to the Indenture Trustee:
Xxxxx Fargo Bank Minnesota, N.A.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: GMACM Home Loan Trust 2000-CL1;
(v) if to the Issuer:
c/o Wilmington Trust Company, as Owner Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: GMACM Home Loan Trust 2000-CL1; or
(vi) if to the Credit Enhancer:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:Consumer Asset-Backed Securities Group
Re: GMACM Home Loan Trust 2000-CL1;
or, with respect to any of the foregoing Persons, at such other address as may
hereafter be furnished to the other foregoing Persons in writing.
Section 8.4 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be held invalid for any
reason whatsoever, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and shall in no way affect the validity of enforceability of
the other provisions of this Agreement.
Section 8.5 Relationship of Parties. Nothing herein contained shall be deemed or
construed to create a partnership or joint venture among the parties hereto, and
the services of the GMACM shall be rendered as an independent contractor and not
as agent for the Purchaser.
Section 8.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts, together, shall constitute one and the same agreement.
Section 8.7 Further Agreements. The parties hereto each agree to execute and
deliver to the other such additional documents, instruments or agreements as may
be necessary or appropriate to effectuate the purposes of this Agreement.
Section 8.8 Intention of the Parties. It is the intention of the parties hereto
that the Purchaser will be purchasing on the Closing Date, and the Sellers will
be selling on the Closing Date, the Initial Home Loans, rather than the
Purchaser providing a loan to the Sellers secured by the Initial Home Loans on
the Closing Date; and that the Issuer will be purchasing on each Subsequent
Transfer Date, and GMACM will be selling on each Subsequent Transfer Date, the
related Subsequent Home Loans, rather than the Issuer providing a loan to GMACM
secured by the related Subsequent Home 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 Home Loans on the Closing Date and (ii) a sale by
GMACM, and a purchase by the Issuer, of the related Subsequent Home Loans on
each Subsequent Transfer Date. The Purchaser and the Issuer shall each have the
right to review the Home Loans and the Related Documents to determine the
characteristics of the Home Loans which will affect the federal income tax
consequences of owning the Home 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 Credit Enhancer and the Purchaser
(and the Issuer with respect to the transfer of any Subsequent Home 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 Home 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 Home Loans for the
purpose of contributing them to the GMACM Home Loan Trust 2000-CL1 and (ii) the
Issuer is acquiring the Subsequent Home Loans for the purpose of pledging the
Subsequent Home Loans to the Indenture Trustee for the benefit of the
Noteholders and the Credit Enhancer.
(b) As an inducement to the Purchaser and the Issuer to purchase the Initial
Home Loans and to the Issuer to purchase any Subsequent Home Loans, each Seller
acknowledges and consents to (i) the assignment by the Purchaser to the Issuer
of all of the Purchaser's rights against each Seller pursuant to this Agreement
insofar as such rights relate to the Initial Home Loans transferred to the
Issuer and to the enforcement or exercise of any right or remedy against either
Seller pursuant to this Agreement by the Issuer, (ii) the enforcement or
exercise of any right or remedy against either Seller 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 either Seller following an Event of
Default under the Indenture. Such enforcement of a right or remedy by the
Issuer, the Owner Trustee, the Credit 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 Home Loans hereunder and any transfer of Subsequent Home Loans pursuant
to this Agreement and the related Subsequent Transfer Agreement.
Section 8.11 Third Party Beneficiary. The Credit 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 Home 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: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
GMAC MORTGAGE CORPORATION,
as Seller and Servicer
By: /s/ Xxxxxx X. X'Xxxx
Name: Xxxxxx X. X'Xxxx
Title: Vice President
WALNUT GROVE HOME EQUITY LOAN TRUST 2000-A, as
Seller
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as
Owner Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
GMACM HOME LOAN TRUST 2000-CL1, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as
Owner Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
XXXXX FARGO BANK MINNESOTA, N.A., as Indenture
Trustee
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
EXHIBIT 1
HOME LOAN SCHEDULE
[See Exhibit A to the Servicing Agreement]
EXHIBIT 2
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement No. (the "Agreement"),
dated as of , , between GMAC Mortgage Corporation, as seller (the "Seller"), and
GMACM Home Loan Trust 2000-CL1, as issuer (the "Issuer"), and pursuant to the
loan purchase agreement dated as of September 28, 2000 (the "Home Loan Purchase
Agreement"), among the Seller, as a seller and servicer, Walnut Grove Home
Equity Loan Trust 2000-A, as a seller, Residential Asset Mortgage Products,
Inc., as purchaser (the "Purchaser"), the Issuer and Xxxxx Fargo Bank Minnesota,
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 Home Loans (the "Subsequent
Home Loans").
Capitalized terms used and not defined herein have their respective
meanings as set forth in Appendix A to the indenture dated as of September 28,
2000, 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 Home 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 Home Loans, all principal received and interest accruing on the
Subsequent Home Loans on and after the Subsequent Cut-Off Date, all monies due
or to become due relating to such Subsequent Home Loans and all items with
respect to the Subsequent Home Loans to be delivered pursuant to Section 2.2 of
the Home 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 Home 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 Home Loan Purchase Agreement.
The transfer to the Issuer by the Seller of the Subsequent Home Loans
identified on the Home 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 Home 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,
advices of credit, investment property, goods and other property consisting of,
arising under or related to the Subsequent Home 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
of the Seller, as are necessary to perfect and protect the Issuer's interests in
each Subsequent Home Loan and the proceeds thereof.
(b) The expenses and costs relating to the delivery of the Subsequent
Home Loans, this Agreement and the Home 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 set
forth in Section 3.1 of the Home Loan Purchase Agreement that relate to the
Seller or the Subsequent Home Loans as of the date hereof. The Seller hereby
confirms that each of the conditions set forth in Section 2.2(b) of the Home
Loan Purchase Agreement are satisfied as of the date hereof and further
represents and warrants that each Subsequent Home Loan complies with the
requirements of this Agreement and Section 2.2(c) of the Home 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 Home Loan Purchase Agreement
relating to the Subsequent Home 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 Home 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 Majority Noteholders or the Credit 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
Credit Enhancer or is necessary for the administration or servicing of the
Subsequent Home 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.
GMAC MORTGAGE CORPORATION,
as Seller
By:
Name:
Title:
GMACM HOME LOAN TRUST 2000-CL1, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as
Owner Trustee
By:
Name:
Title:
Attachments
A. Additional terms of sale.
B. Schedule of Subsequent Home Loans.
C. Seller's Officer's Certificate.
D. Seller's Officer's Certificate (confirmation of Credit Enhancer approval).
3
GMACM HOME LOAN TRUST 2000-CL1
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 Home Loans as of
the Subsequent Cut-Off Date:
5. Purchase Price: 100.00%
B.
As to all Subsequent Home Loans:
1. Longest stated term to maturity: months
----------
2. Minimum Loan Rate: %
----------
3. Maximum Loan Rate: %
----------
4. WAC of all Subsequent Home Loans: %
----------
5. WAM of all Subsequent Home 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 Home Loans with respect to $
which the Mortgagor is an employee of GMACM or an affiliate of
GMACM:
13. Number of Subsequent Home Loans with respect to which the
Mortgagor is an employee of GMACM or an affiliate of GMACM:
EXHIBIT 3
FORM OF ADDITION NOTICE
DATE:
Xxxxx Fargo Bank Minnesota, X.X. Xxxxx'x Investors Service, Inc.
00000 Xxxxxx Xxxx Xxxxxxx 00 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Ambac Assurance Corporation Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Consumer Asset-Backed Securities
Group
Re: GMACM Home Loan Trust 2000-CL1;
Standard & Poor's, a division of The Wilmington Trust Company
XxXxxx-Xxxx Companies, Inc. 0000 Xxxxx Xxxxxx Xxxxxx
26 Broadway Wilmington, Delaware 19890
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: GMACM Home Loan Trust 2000-CL1
Ladies and Gentlemen:
Pursuant to Section 2.2 of the home loan purchase agreement dated as of
September 28, 2000 (the "Purchase Agreement"), among GMAC Mortgage Corporation,
as Seller and Servicer, Walnut Grove Home Equity Loan Trust 2000-A, as Seller,
Residential Asset Mortgage Products, Inc., as Purchaser, GMACM Home Loan Trust
2000-CL1, as Issuer and Xxxxx Fargo Bank Minnesota, N.A., as Indenture Trustee,
the Seller has designated the Subsequent Home Loans identified on the Home 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 September 28,
2000, 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,
GMAC MORTGAGE CORPORATION,
as Seller
By:
Name:
Title:
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK MINNESOTA, N.A.,
as Indenture Trustee
By:
Name:
Title:
