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 Freddie 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
assigne
