Exhibit 10.12
AMENDMENT NO. 5 TO
THE
LOAN AND SECURITY
AGREEMENT
Dated as of October 3,
2008
AMENDMENT NO. 5 TO THE LOAN AND
SECURITY AGREEMENT (this
“ Amendment ”) by and between Residential
Funding Company, LLC, a Delaware limited liability company, as
borrower (“ RFC ”), GMAC Mortgage, LLC, a
Delaware limited liability company, as borrower (“
GMACM ” and together with RFC, each a “
Borrower ” and collectively, the “
Borrowers ”) and GMAC LLC, a Delaware limited
liability company, as lender (the “ Lender
”).
PRELIMINARY
STATEMENTS:
(1) The Borrowers and the Lender
have entered into a Loan and Security Agreement dated as of
April 18, 2008 (the “ Loan and Security Agreement
”). Capitalized terms not otherwise defined in this Amendment
have the same meanings as specified in the Loan and Security
Agreement.
(2) The Borrowers and the Lender
have entered into an Amendment No. 1 to the Loan and Security
Agreement dated May 21, 2008.
(3) The Borrowers and the Lender
have entered into an Amendment No. 2 to the Loan and Security
Agreement dated May 22, 2008.
(4) The Borrowers and the Lender
have entered into an Amendment No. 3 to the Loan and Security
Agreement dated June 2, 2008.
(5) The Borrowers and the Lender
have entered into an Amendment No. 4 to the Loan and Security
Agreement dated July 25, 2008
(6) The Borrowers have requested the
Lender to amend, and the Lender has agreed to amend, the Loan and
Security Agreement on the terms and conditions set forth
herein.
For good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Amendments to the Loan
and Security Agreement . The Loan and Security Agreement is,
effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2 hereof,
hereby amended as follows:
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(a)
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Section 7.01(q) is hereby amended and
restated in full to read as follows:
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“With respect to each
Servicing Contract, it shall, upon the request of the Lender, use
its best efforts to obtain from the relevant MBS Trustee, Investors
and, if applicable, any bond insurers, a consent to the assignment
of the MSRs arising
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thereunder by the Lender to a third
party purchaser; provided , however, that the Lender shall
not assign any MSRs except upon the occurrence and during the
continuation of an Event of Default. The consents must be
acceptable to the Lender in its sole and absolute
discretion.”
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(b)
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Section 7.03(e) is hereby amended and
restated in full to read as follows:
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“ Adverse Servicing
Event . As soon as possible, but in any event within two
Business Days, after it becomes aware of any Adverse Servicing
Event or any event or circumstance that could be expected to cause
an Adverse Servicing Event, including the receipt of any notice
related to any such event or circumstance, it shall give written
notice thereof to the Lender;”
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(c)
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Section 8.01(m) is hereby amended and
restated in full to read as follows:
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“An Adverse Servicing Event
shall have occurred and the Lender, in its sole discretion, shall
have notified a Borrower in writing that such Adverse Servicing
Event shall constitute an Event of Default;”
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(d)
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The following
definition is hereby added to Schedule I:
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“‘ Adverse Servicing
Event ’ means (1) the failure of either Borrower to
be an approved servicer under any Servicing Contract with respect
to which any Eligible Servicing Rights pledged under this Agreement
relate, (2) either Borrower fails to service in accordance
with any Servicing Contract in any material respect,
(3) either Borrower is terminated as servicer with respect to
any Eligible Servicing Rights (except if the provisions of
Section 7.01(m)(iii)(a)-(c) are met), or
(4) receipt by either Borrower of a notice from any MBS
Trustee indicating material breach, default or material
non-compliance by such Borrower which the Lender reasonably
determines may entitle such MBS Trustee to terminate such Borrower,
which notice has not been rescinded or nullified within five
(5) Business Days of its receipt by such Borrower or such
lesser time as Lender believes is necessary to protect its interest
and provides such Borrower with written notice thereof, as the case
may be.”
SECTION 2. Consent to
Modification of Servicing Contracts . The Lender hereby
consents to the modification, in the form set forth on Exhibit
A hereto, of one or more Servicing Contracts for Mortgage Loans
as to which Financial Guaranty Insurance Company is a surety
provider, such consent to be effective as of the date of such
modification.
SECTION 3. Conditions of
Effectiveness . This Amendment shall become effective as of the
date first above written when, and only when, the Lender shall have
received:
(a) A copy of this Amendment, duly
executed by the parties hereto;
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(b) A copy of the letter agreement
attached as Exhibit B hereto relating to that certain Loan
Agreement (as amended, the “ Senior Loan Agreement
”) dated as of June 4, 2008 among Residential Funding
Company, LLC and GMAC Mortgage, LLC as borrowers, Residential
Capital, LLC, GMAC Residential Holding Company, LLC, GMAC-RFC
Holding Company, LLC, Homecomings Financial, LLC, as guarantors,
certain other affiliates of the Borrowers party thereto, Wells
Fargo Bank, N.A. as first priority collateral agent and GMAC LLC as
lender agent and as initial lender, duly executed by the parties
thereto (the “ Letter Agreement ”);
(c) $146,681,798 from the amounts
currently on deposit in the Sales Proceeds Account (as defined in
the Senior Loan Agreement), as a prepayment on the loans
outstanding pursuant to the Senior Credit Agreement, in accordance
with the provisions of the Letter Agreement; and
(d) A certificate signed by a
Responsible Officer of each Borrower stating that:
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(i)
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The
representations and warranties contained in Section 5
hereof are correct on and as of the date of such certificate as
though made on and as of such date; and
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(ii)
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No event has
occurred and is continuing that constitutes a Default.
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SECTION 4. Reaffirmation of
Security Interest . Each Borrower hereby reaffirms and hereby
grants a lien on the Collateral (as such term is defined in the
Loan and Security Agreement) in favor of the Lender subject to all
of the terms set forth in the Loan and Security Agreement, as
amended.
SECTION 5. Representations and
Warranties of the Borrower . Each Borrower represents and
warrants as follows:
(a) It is a limited liability
company duly organized or formed, validly existing and in good
standing under the laws of Delaware.
(b) The execution, delivery and
performance by it of this Amendment and the Loan and Security
Agreement, as amended hereby, and the consummation of the
transactions contemplated hereby and thereby will not conflict
with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice, lapse of time or both) a
default under its organizational documents, or any material
indenture, loan agreement, mortgage, deed of trust, or other
material agreement or instrument to which it is a party or by which
it is otherwise bound, or result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any
such indenture, loan agreement, mortgage, deed of trust, or other
agreement or instrument, other than this Agreement, or violate any
Requirements of Law applicable to it of any Governmental Authority
having jurisdiction over it or any of its properties if such
violation, individually, or in the aggregate, is reasonably likely
to have a Material Adverse Effect.
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(c) No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with,
any Governmental Authority or any other Person is necessary or
required in connection with execution, delivery or performance by
it of this Amendment or the Loan and Security Agreement, as amended
hereby.
(d) This Amendment has been duly
executed and delivered by it. This Amendment and the Loan and
Security Agreement, as amended hereby, constitute, its legal, valid
and binding obligations enforceable against it in accordance with
its respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors’ rights generally and
by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
(e) There are no proceedings or
investigations pending, or to the best of its knowledge threatened
in writing, against it before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of any Facility
Document, (ii) seeking to prevent the consummation of any of
the transactions contemplated by any Facility Document, or
(iii) seeking any determination or ruling that could
reasonably be expected to have a Material Adverse
Effect.
SECTION 6. Reference to and
Effect on the Loan Documents . (a) On and after the
effectiveness of this Amendment, each reference in the Loan and
Security Agreement to “this Agreement,”
“hereunder,” “hereof” or words of like
import referring to the Loan and Security Agreement, and each
reference in the Note and the other Facility Documents to
“the Loan and Security Agreement,”
“thereunder,” “thereof” or words of like
import referring to the Loan and Security Agreement, shall mean and
be a reference to the Loan and Security Agreement, as amended by
this Amendment.
(b) The Loan and Security Agreement,
the Guarantee, the Note and the other Facility Documents, as
specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified
and confirmed.
(c) The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy
of the Lender under any of Facility Documents, nor constitute a
waiver of any provision of any of the Facility
Documents.
SECTION 7. Execution in
Counterparts . This Amendment may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute but
one and the same agreement. Delivery of an executed counterpart of
a signature page to this Amendment by telecopier shall be effective
as delivery of a manually executed counterpart of this
Amendment.
SECTION 8. GOVERNING LAW;
SUBMISSION TO JURISDICTION . THIS AGREEMENT SHALL BE
GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
(BUT WITH REFERENCE TO SECTION 5-1401 OF THE NEW YORK OBLIGATION
LAW, WHICH BY ITS TERMS APPLIES TO THIS AGREEMENT).
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IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first
above written.
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GMAC
LLC
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a Delaware
limited liability company
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By:
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Name:
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David
Walker
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Title:
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Group VP and
Treasurer
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RESIDENTIAL CAPITAL, LLC
a Delaware limited liability
company
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By:
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Name:
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John M.
Peterson
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Title:
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Assistant
Treasurer
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RESIDENTIAL FUNDING COMPANY, LLC
a Delaware limited liability
company
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By:
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Name:
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John M.
Peterson
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Title:
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Assistant
Treasurer
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GMAC MORTGAGE, LLC
a Delaware limited liability
company
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By:
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Name:
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John M.
Peterson
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Title:
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Assistant
Treasurer
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S-1
EXHIBIT A
Form of Servicing Contract
Amendment
A-1
E XECUTION C OPY
GMAC MORTGAGE, LLC
as Servicer,
GMACM HOME EQUITY LOAN TRUST
2005-HE1,
as Issuer
and
WELLS FARGO BANK, N.A.
as Indenture Trustee
AMENDMENT NO. 1
TO
SERVICING AGREEMENT
Dated as of September 23,
2008
THIS AMENDMENT NO. 1 TO SERVICING
AGREEMENT dated as of September 23, 2008 (this
“Amendment”), is among GMAC Mortgage, LLC, formerly
known as GMAC Mortgage Corporation “GMACM”), in its
capacity as servicer (in such capacity, the
“Servicer”), the GMACM Home Equity Loan Trust 2005-HE1,
as issuer (the “Issuer”), and Wells Fargo Bank, N.A.,
in its capacity as indenture trustee (the “Indenture
Trustee”). Capitalized terms used in this Amendment and not
otherwise defined herein will have the meanings assigned to them in
the Servicing Agreement dated as of March 29, 2005, among the
Servicer, the Issuer and the Indenture Trustee (the
“Servicing Agreement”).
W I T N E S
S E T H
WHEREAS, the Servicer, the Issuer
and the Indenture Trustee entered into the Servicing Agreement, and
the Servicer, the Issuer and the Indenture Trustee desire to amend
the Servicing Agreement as set forth herein;
WHEREAS, a Servicing Default has
occurred and is continuing under clause (vii) of the
definition thereof;
WHEREAS, Section 7.01 of the
Servicing Agreement provides that, upon the occurrence of a
Servicing Default, the Financial Guaranty Insurance Company (the
“Enhancer”) may terminate all the rights and
obligations of the Servicer as servicer under the Servicing
Agreement;
WHEREAS, in consideration for the
Enhancer not exercising its right to terminate immediately GMACM as
Servicer as a result of the occurrence of such Servicing Default,
the Servicer has agreed to amend the Servicing Agreement as set
forth below to provide that from and after the date hereof GMACM
shall continue to act as Servicer solely on a term basis of two
month terms which are renewable at the election and sole discretion
of the Enhancer unless and until otherwise terminated as provided
in the Servicing Agreement and subject to the terms of this
Amendment;
WHEREAS, Section 8.01 of the
Servicing Agreement provides that the Servicing Agreement may be
amended by the parties thereto provided that any such amendment
shall be accompanied by a letter from each Rating Agency to the
effect that such amendment will not result in a Rating Event; and
provided further, that the Enhancer and the Indenture Trustee shall
consent to such amendment;
WHEREAS, each Rating Agency has
provided a letter to the effect that this Amendment No. 1 will
not result in a Rating Event, and by executing this Amendment, each
of the Enhancer and the Indenture Trustee has provided its consent
to this Amendment No. 1; and
WHEREAS, the execution of this
Amendment No. 1 has been duly authorized by the Servicer, the
Issuer and the Indenture Trustee;
NOW, THEREFORE, the Servicer, the
Issuer and the Indenture Trustee hereby agree as
follows:
SECTION 1. Amendment
.
(a) Section 7.01 of the
Servicing Agreement is hereby amended effective as of the date
hereof by adding subsection (c) thereto, as
follows:
(c) If a Servicing Default shall
occur, unless and until the Servicer has been removed as provided
in clause (a) of this Section 7.01, the Servicer
covenants and agrees to act as the Servicer for a term from the
occurrence of the Servicing Default to October 31, 2008, which
term may, at the Enhancer’s sole discretion, be extended by
written notice to the Issuer, the Indenture Trustee and the
Servicer for successive terms of two (2) calendar months each
thereafter (a “Servicing Extension Term”). Any such
notice by the Enhancer shall be in writing and shall be sent via
Federal Express or certified mail, return receipt requested and
also by facsimile or email to the addresses for the Servicer and
the Indenture Trustee set forth in Schedule A attached hereto. Any
such notice to the Issuer shall be sent to the address set forth in
Section 8.03. The Servicer will, upon the receipt of each such
notice of extension from the Enhancer (a “Servicer Extension
Notice”) become bound for the duration of the Servicing
Extension Term covered by such Servicer Extension Notice to
continue as Servicer subject to and in accordance with this
Servicing Agreement. If, as of the twentieth (20th) day prior
to the last day of any Servicing Extension Term, the Servicer shall
not have received any Servicer Extension Notice from the Enhancer,
the Servicer shall, within five (5) days thereafter, give
written notice of such non-receipt to the Enhancer. Any such notice
by the Servicer shall be in writing and shall be sent via Federal
Express or certified mail, return receipt requested and also by
telephone, facsimile or email to the addresses for the Enhancer set
forth in Schedule A attached hereto. If no Servicer Extension
Notice is received by the Issuer, the Servicer and the Indenture
Trustee prior to the last day of the Servicing Extension Term, and
provided that no Enhancer Default has occurred and is continuing
then all rights and obligations of the Servicer under the Servicing
Agreement shall automatically terminate without any action of any
party; and the Indenture Trustee or such other servicer appointed
by the Enhancer or by the Indenture Trustee with the consent of the
Enhancer shall act as successor Servicer as provided in
Section 7.02 hereof. If an Enhancer Default has occurred and
is continuing on the last day of a Servicer Extension Term, and no
Servicing Extension Notice has been given by the Enhancer to extend
such Servicing Extension Term, then an automatic termination of the
Servicer shall not occur under this Section 7.01(c), and the
Servicing Extension Term shall be deemed to have been extended for
so long as an Enhancer Default has occurred and is continuing, and
to be further extended to the end of the second month following the
month in which all Enhancer Defaults have been cured. Nothing in
this Section 7.01(c) shall derogate from or otherwise impair
(i) the Enhancer’s right to remove the Servicer pursuant
to Section 7.01(a) or any other rights of the Enhancer under
this Agreement or (ii) the Servicer’s rights pursuant to
Sections 7.01 and 7.02 or any other rights of the Servicer under
this Agreement. Notwithstanding anything to the contrary set forth
herein, the provisions of this Section 7.01(c) shall not apply
to Wells Fargo Bank, N.A. (“Wells”) in the event that
Wells becomes the successor Servicer. The Servicer and the Enhancer
shall notify each other, the Issuer and the Indenture Trustee in
writing of any changes to the contact information set forth on
Schedule A. Additionally, upon the written request of GMAC, the
Enhancer shall confirm that Schedule A contains accurate
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and up to date information with
respect to the name and contact information of current employees of
the Enhancer who are responsible for the transactions contemplated
by this Amendment.
(b) Section 7.02(a) of the
Servicing Agreement is hereby amended effective as of the date of
the Amendment by adding the phrase “, fails to receive a
Servicer Extension Notice as specified in
Section 7.01(c)” after the phrase “Section
7.01” in the first sentence of such Section.
SECTION 2. Effect of
Amendment .
Upon execution of this Amendment,
the Servicing Agreement shall be, and be deemed to be, modified and
amended in accordance herewith and the respective rights,
limitations, obligations, duties, liabilities and immunities of the
parties thereto shall hereafter be determined, exercised and
enforced subject in all respects to such modifications and
amendments, and all the terms and conditions of this Amendment
shall be deemed to be part of the terms and conditions of the
Servicing Agreement (as applicable) for any and all purposes.
Except as modified and expressly amended by this Amendment, the
Servicing Agreement is in all respects ratified and confirmed, and
all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
SECTION 3. Binding Effect
.
The provisions of this Amendment
shall be binding upon and inure to the benefit of the parties
hereto, any Securityholder, the Enhancer and each of their
respective successors and assigns.
SECTION 4. Governing Law
.
This Amendment shall be governed by
and construed in accordance with the laws of the State of New York,
without regard to the conflict of law principles thereof, other
than Sections 5-1401 and 5-1402 of the New York General Obligations
Law, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such
laws.
SECTION 5. Severability of
Provisions .
If any one or more of the covenants,
agreements, provisions or terms of this Amendment shall be for any
reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions of this Amendment or of the Securities or the rights of
the Enhancer, the Securityholders or the Owner Trustee.
SECTION 6. Section Headings
.
The section headings herein are for
convenience of reference only, and shall not limit or otherwise
affect the meaning hereof.
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SECTION 7. Counterparts
.
This Amendment may be executed in
several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Servicer,
the Issuer and the Indenture Trustee have caused their names to be
signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
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GMAC MORTGAGE,
LLC, formerly known
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as GMAC
Mortgage Corporation, as Servicer
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By:
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Name:
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Patricia C.
Taylor
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Title:
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Vice
President
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GMACM HOME
EQUITY LOAN TRUST 2005-HE1, as Issuer
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By: Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee
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By:
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Name:
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Roseline K.
Maney
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Title:
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Vice
President
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WELLS FARGO
BANK, N.A., as Indenture Trustee
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By:
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Name:
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Darron C.
Woodus
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Title:
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Assistant Vice
President
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Agreed to and approved this 23rd day of
September, 2008
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FINANCIAL
GUARANTY INSURANCE COMPANY, as Enhancer
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By:
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Name:
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Title:
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SCHEDULE A
GMAC MORTGAGE, LLC: (Fed Ex or
certified mail)
Joe Pensabene
EVP - Chief Servicing Officer
GMAC Mortgage, LLC
Mail Code: 190-FTW-K05
1100 Virginia Drive
Ft. Washington, PA 19034
William Maguire
Director - Investor Reporting
GMAC Mortgage, LLC
Mail Code: 190-FTW-C70
1100 Virginia Drive
Ft. Washington, PA 19034
GMAC Mortgage , LLC
Bond Administration
Mail code: 190-FTW-C65
1100 Virginia Dr.
Fort Washington, PA 19034
Patricia Taylor
Vice President – Securitization
Management
GMAC Mortgage, LLC
Mail Code: 190-FTW-A05
1100 Virginia Drive
Ft. Washington, PA 19034
GMAC MORTGAGE, LLC
(Email) :
Jeff.Demshock@gmacm.com
Dennis.Hagerty@gmacm.com
Kulli.Marotto@gmacm.com
Tamra.Chase@gmacm.com
Patty.Taylor@gmacm.com
WELLS FARGO BANK, N.A. :
Client Services Manager Corporate
Trust Services
GMACM Home Equity Loan Trust 2005-HE1
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, MD 21045-1951
ph: 410-884-2000
fax:410-715-2380
FINANCIAL GUARANTY INSURANCE
COMPANY:
Individuals Required to Receive
Notice under 7.01(c) :
Jeffrey Kert
Managing Director, Senior Counsel
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-3203
Email: Jeffrey.kert@fgic.com
Ellen Gordon
Managing Director
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-2734
Email: ellen.gordon@fgic.com
Diane Westerback
Managing Director
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-3446
Email:
diane.westerback@fgic.com
Alternate FGIC Contacts (Notice Not Required
under 7.01(c) :
Marty Joyce
Managing Director, Senior Counsel
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-3029
Email: martin.joyce@fgic.com
Laura Kegg
Managing Director, Senior Counsel
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-3079
Email: laura.kegg@fgic.com
E XECUTION C OPY
GMAC MORTGAGE, LLC
as Servicer,
GMACM HOME EQUITY LOAN TRUST
2006-HE1,
as Issuer
and
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., successor to
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
successor to
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION
as Indenture Trustee
AMENDMENT NO. 1
TO
SERVICING AGREEMENT
Dated as of September 23,
2008
THIS AMENDMENT NO. 1 TO SERVICING
AGREEMENT dated as of September 23, 2008 (this
“Amendment”), is among GMAC Mortgage, LLC, formerly
known as GMAC Mortgage Corporation “GMACM”), in its
capacity as servicer (in such capacity, the
“Servicer”), the GMACM Home Equity Loan Trust 2006-HE1,
as issuer (the “Issuer”), and The Bank of New York
Mellon Trust Company, N.A., successor to The Bank of New York Trust
Company, N.A., successor to JPMorgan Chase Bank, National
Association, in its capacity as indenture trustee (the
“Indenture Trustee”). Capitalized terms used in this
Amendment and not otherwise defined herein will have the meanings
assigned to them in the Servicing Agreement dated as of
March 30, 2006, among the Servicer, the Issuer and the
Indenture Trustee (the “Servicing
Agreement”).
W I T N E S
S E T H
WHEREAS, the Servicer, the Issuer
and the Indenture Trustee entered into the Servicing Agreement, and
the Servicer, the Issuer and the Indenture Trustee desire to amend
the Servicing Agreement as set forth herein;
WHEREAS, a Servicing Default has
occurred and is continuing under clause (vii) of the
definition thereof;
WHEREAS, Section 7.01 of the
Servicing Agreement provides that, upon the occurrence of a
Servicing Default, the Financial Guaranty Insurance Company (the
“Enhancer”) may terminate all the rights and
obligations of the Servicer as servicer under the Servicing
Agreement;
WHEREAS, in consideration for the
Enhancer not exercising its right to terminate immediately GMACM as
Servicer as a result of the occurrence of such Servicing Default,
the Servicer has agreed to amend the Servicing Agreement as set
forth below to provide that from and after the date hereof GMACM
shall continue to act as Servicer solely on a term basis of two
month terms which are renewable at the election and sole discretion
of the Enhancer unless and until otherwise terminated as provided
in the Servicing Agreement and subject to the terms of this
Amendment;
WHEREAS, Section 8.01 of the
Servicing Agreement provides that the Servicing Agreement may be
amended by the parties thereto provided that any such amendment
shall be accompanied by a letter from each Rating Agency to the
effect that such amendment will not result in a Rating Event; and
provided further, that the Enhancer and the Indenture Trustee shall
consent to such amendment;
WHEREAS, each Rating Agency has
provided a letter to the effect that this Amendment No. 1 will
not result in a Rating Event, and by executing this Amendment, each
of the Enhancer and the Indenture Trustee has provided its consent
to this Amendment No. 1; and
WHEREAS, the execution of this
Amendment No. 1 has been duly authorized by the Servicer, the
Issuer and the Indenture Trustee;
NOW, THEREFORE, the Servicer, the
Issuer and the Indenture Trustee hereby agree as
follows:
SECTION 1. Amendment
.
(a) Section 7.01 of the
Servicing Agreement is hereby amended effective as of the date
hereof by adding subsection (c) thereto, as
follows:
(c) If a Servicing Default shall
occur, unless and until the Servicer has been removed as provided
in clause (a) of this Section 7.01, the Servicer
covenants and agrees to act as the Servicer for a term from the
occurrence of the Servicing Default to October 31, 2008, which
term may, at the Enhancer’s sole discretion, be extended by
written notice to the Issuer, the Indenture Trustee and the
Servicer for successive terms of two (2) calendar months each
thereafter (a “Servicing Extension Term”). Any such
notice by the Enhancer shall be in writing and shall be sent via
Federal Express or certified mail, return receipt requested and
also by facsimile or email to the addresses for the Servicer and
the Indenture Trustee set forth in Schedule A attached hereto. Any
such notice to the Issuer shall be sent to the address set forth in
Section 8.03. The Servicer will, upon the receipt of each such
notice of extension from the Enhancer (a “Servicer Extension
Notice”) become bound for the duration of the Servicing
Extension Term covered by such Servicer Extension Notice to
continue as Servicer subject to and in accordance with this
Servicing Agreement. If, as of the twentieth (20th) day prior
to the last day of any Servicing Extension Term, the Servicer shall
not have received any Servicer Extension Notice from the Enhancer,
the Servicer shall, within five (5) days thereafter, give
written notice of such non-receipt to the Enhancer. Any such notice
by the Servicer shall be in writing and shall be sent via Federal
Express or certified mail, return receipt requested and also by
telephone, facsimile or email to the addresses for the Enhancer set
forth in Schedule A attached hereto. If no Servicer Extension
Notice is received by the Issuer, the Servicer and the Indenture
Trustee prior to the last day of the Servicing Extension Term, and
provided that no Enhancer Default has occurred and is continuing,
then all rights and obligations of the Servicer under the Servicing
Agreement shall automatically terminate without any action of any
party; and the Indenture Trustee or such other servicer appointed
by the Enhancer or by the Indenture Trustee with the consent of the
Enhancer shall act as successor Servicer as provided in
Section 7.02 hereof. If an Enhancer Default has occurred and
is continuing on the last day of a Servicer Extension Term, and no
Servicing Extension Notice has been given by the Enhancer to extend
such Servicing Extension Term, then an automatic termination of the
Servicer shall not occur under this Section 7.01(c), and the
Servicing Extension Term shall be deemed to have been extended for
so long as an Enhancer Default has occurred and is continuing, and
to be further extended to the end of the second month following the
month in which all Enhancer Defaults have been cured. Nothing in
this Section 7.01(c) shall derogate from or otherwise impair
(i) the Enhancer’s right to remove the Servicer pursuant
to Section 7.01(a) or any other rights of the Enhancer under
this Agreement or (ii) the Servicer’s rights pursuant to
Sections 7.01 and 7.02 or any other rights of the Servicer under
this Agreement. The Servicer and the Enhancer shall notify each
other, the Issuer and the Indenture Trustee in writing of any
changes to the contact information set forth on Schedule A.
Additionally, upon the written request of GMAC, the Enhancer
shall
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confirm that Schedule A contains
accurate and up to date information with respect to the name and
contact information of current employees of the Enhancer who are
responsible for the transactions contemplated by this
Amendment.
(b) Section 7.02(a) of the
Servicing Agreement is hereby amended effective as of the date of
the Amendment by adding the phrase “, fails to receive a
Servicer Extension Notice as specified in
Section 7.01(c)” after the phrase “Section
7.01” in the first sentence of such Section.
SECTION 2. Effect of
Amendment .
Upon execution of this Amendment,
the Servicing Agreement shall be, and be deemed to be, modified and
amended in accordance herewith and the respective rights,
limitations, obligations, duties, liabilities and immunities of the
parties thereto shall hereafter be determined, exercised and
enforced subject in all respects to such modifications and
amendments, and all the terms and conditions of this Amendment
shall be deemed to be part of the terms and conditions of the
Servicing Agreement (as applicable) for any and all purposes.
Except as modified and expressly amended by this Amendment, the
Servicing Agreement is in all respects ratified and confirmed, and
all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
SECTION 3. Binding Effect
.
The provisions of this Amendment
shall be binding upon and inure to the benefit of the parties
hereto, any Securityholder, the Enhancer and each of their
respective successors and assigns.
SECTION 4. Governing Law
.
This Amendment shall be governed by
and construed in accordance with the laws of the State of New York,
without regard to the conflict of law principles thereof, other
than Sections 5-1401 and 5-1402 of the New York General Obligations
Law, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such
laws.
SECTION 5. Severability of
Provisions .
If any one or more of the covenants,
agreements, provisions or terms of this Amendment shall be for any
reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions of this Amendment or of the Securities or the rights of
the Enhancer, the Securityholders or the Owner Trustee.
SECTION 6. Section Headings
.
The section headings herein are for
convenience of reference only, and shall not limit or otherwise
affect the meaning hereof.
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SECTION 7. Counterparts
.
This Amendment may be executed in
several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
[Signature Pages Follow]
4
IN WITNESS WHEREOF, the Servicer,
the Issuer and the Indenture Trustee have caused their names to be
signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
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GMAC MORTGAGE, LLC, formerly known
as GMAC Mortgage Corporation, as
Servicer
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By:
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Name:
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Patricia C.
Taylor
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Title:
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Vice
President
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GMACM HOME
EQUITY LOAN TRUST 2006-HE1, as Issuer
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By: Wilmington
Trust Company, not in its individual capacity but solely as Owner
Trustee
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By:
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Name:
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Roseline K.
Maney
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Title:
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Vice
President
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THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A., successor to THE BANK OF NEW YORK
TRUST COMPANY, N.A., successor to JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Indenture Trustee
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By:
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Name:
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Keith
Richardson
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Title:
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Vice
President
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Agreed to and approved this 23rd day of
September, 2008
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FINANCIAL GUARANTY INSURANCE
COMPANY, as Enhancer
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By:
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Name:
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Title:
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SCHEDULE A
GMAC MORTGAGE, LLC: (Fed Ex or
certified mail)
Joe Pensabene
EVP - Chief Servicing Officer
GMAC Mortgage, LLC
Mail Code: 190-FTW-K05
1100 Virginia Drive
Ft. Washington, PA 19034
William Maguire
Director - Investor Reporting
GMAC Mortgage, LLC
Mail Code: 190-FTW-C70
1100 Virginia Drive
Ft. Washington, PA 19034
GMAC Mortgage , LLC
Bond Administration
Mail code: 190-FTW-C65
1100 Virginia Dr.
Fort Washington, PA 19034
Patricia Taylor
Vice President – Securitization
Management
GMAC Mortgage, LLC
Mail Code: 190-FTW-A05
1100 Virginia Drive
Ft. Washington, PA 19034
GMAC MORTGAGE, LLC
(Email) :
Jeff.Demshock@gmacm.com
Dennis.Hagerty@gmacm.com
Kulli.Marotto@gmacm.com
Tamra.Chase@gmacm.com
Patty.Taylor@gmacm.com
THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A. :
Keith R. Richardson
Vice President
The Bank of New York Mellon Trust Company,
N.A.
2 North LaSalle Street, Suite 1020
Chicago, IL 60602
Telephone: (312) 827-8572
Mobile: (312) 659-4401
Facsimile: (312) 827-8562/3
E-Mail:
keith.richardson@bnymellon.com
FINANCIAL GUARANTY INSURANCE
COMPANY:
Individuals Required to Receive
Notice under 7.01(c) :
Jeffrey Kert
Managing Director, Senior Counsel
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-3203
Email: Jeffrey.kert@fgic.com
Ellen Gordon
Managing Director
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-2734
Email: ellen.gordon@fgic.com
Diane Westerback
Managing Director
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-3446
Email:
diane.westerback@fgic.com
Alternate FGIC Contacts (Notice Not Required
under 7.01(c) :
Marty Joyce
Managing Director, Senior Counsel
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-3029
Email: martin.joyce@fgic.com
Laura Kegg
Managing Director, Senior Counsel
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Telephone: (212) 312-3079
Email: laura.kegg@fgic.com
E XECUTION C OPY
GMAC MORTGAGE, LLC
as Servicer,
GMACM HOME EQUITY LOAN TRUST
2006-HE2,
as Issuer
and
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., successor to
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
successor to
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION
as Indenture Trustee
AMENDMENT NO. 1
TO
SERVICING AGREEMENT
Dated as of September 23,
2008
THIS AMENDMENT NO. 1 TO SERVICING
AGREEMENT dated as of September 23rd, 2008 (this
“Amendment”), is among GMAC Mortgage, LLC, formerly
known as GMAC Mortgage Corporation “GMACM”), in its
capacity as servicer (in such capacity, the
“Servicer”), the GMACM Home Equity Loan Trust 2006-HE2,
as issuer (the “Issuer”), and The Bank of New York
Mellon Trust Company, N.A., successor to The Bank of New York Trust
Company, N.A., successor to JPMorgan Chase Bank, National
Association, in its capacity as indenture trustee (the
“Indenture Trustee”). Capitalized terms used in this
Amendment and not otherwise defined herein will have the meanings
assigned to them in the Servicing Agreement dated as of
June 29, 2006, among the Servicer, the Issuer and the
Indenture Trustee (the “Servicing
Agreement”).
W I T N E S
S E T H
WHEREAS, the Servicer, the Issuer
and the Indenture Trustee entered into the Servicing Agreement, and
the Servicer, the Issuer and the Indenture Trustee desire to amend
the Servicing Agreement as set forth herein;
WHEREAS, a Servicing Default has
occurred and is continuing under clause (vii) of the
definition thereof;
WHEREAS, Section 7.01 of the
Servicing Agreement provides that, upon the occurrence of a
Servicing Default, the Financial Guaranty Insurance Company (the
“Enhancer”) may terminate all the rights and
obligations of the Servicer as servicer under the Servicing
Agreement;
WHEREAS, in consideration for the
Enhancer not exercising its right to terminate immediately GMACM as
Servicer as a result of the occurrence of such Servicing Default,
the Servicer has agreed to amend the Servicing Agreement as set
forth below to provide that from and after the date hereof GMACM
shall continue to act as Servicer solely on a term basis of two
month terms which are renewable at the election and sole discretion
of the Enhancer unless and until otherwise terminated as provided
in the Servicing Agreement and subject to the terms of this
Amendment;
WHEREAS, Section 8.01 of the
Servicing Agreement provides that the Servicing Agreement may be
amended by the parties thereto provided that any such amendment
shall be accompanied by a letter from each Rating Agency to the
effect that such amendment will not result in a Rating Event; and
provided further, that the Enhancer and the Indenture Trustee shall
consent to such amendment;
WHEREAS, each Rating Agency has
provided a letter to the effect that this Amendment No. 1 will
not result in a Rating Event, and by executing this Amendment, each
of the Enhancer and the Indenture Trustee has provided its consent
to this Amendment No. 1; and
WHEREAS, the execution of this
Amendment No. 1 has been duly authorized by the Servicer, the
Issuer and the Indenture Trustee;
NOW, THEREFORE, the Servicer, the
Issuer and the Indenture Trustee hereby agree as
follows:
SECTION 1. Amendment
.
(a) Section 7.01 of the
Servicing Agreement is hereby amended effective as of the date
hereof by adding subsection (c) thereto, as
follows:
(c) If a Servicing Default shall
occur, unless and until the Servicer has been removed as provided
in clause (a) of this Section 7.01, the Servicer
covenants and agrees to act as the Servicer for a term from the
occurrence of the Servicing Default to October 31, 2008, which
term may, at the Enhancer’s sole discretion, be extended by
written notice to the Issuer, the Indenture Trustee and the
Servicer for successive terms of two (2) calendar months each
thereafter (a “Servicing Extension Term”). Any such
notice by the Enhancer shall be in writing and shall be sent via
Federal Express or certified mail, return receipt requested and
also by facsimile or email to the addresses for the Servicer and
the Indenture Trustee set forth in Schedule A attached hereto. Any
such notice to the Issuer shall be sent to the address set forth in
Section 8.03. The Servicer will, upon the receipt of each such
notice of extension from the Enhancer (a “Servicer Extension
Notice”) become bound for the duration of the Servicing
Extension Term covered by such Servicer Extension Notice to
continue as Servicer subject to and in accordance with this
Servicing Agreement. If, as of the twentieth (20th) day prior
to the last day of any Servicing Extension Term, the Servicer shall
not have received any Servicer Extension Notice from the Enhancer,
the Servicer shall, within five (5) days thereafter, give
written notice of such non-receipt to the Enhancer. Any such notice
by the Servicer shall be in writing and shall be sent via Federal
Express or certified mail, return receipt requested and also by
telephone, facsimile or email to the addresses for the Enhancer set
forth in Schedule A attached hereto. If no Servicer Extension
Notice is received by the Issuer, the Servicer and the Indenture
Trustee prior to the last day of the Servicing Extension Term, and
provided that no Enhancer Default has occurred and is continuing,
then all rights and obligations of the Servicer under the Servicing
Agreement shall automatically terminate without any action of any
party; and the Indenture Trustee or such other servicer appointed
by the Enhancer or by the Indenture Trustee with the consent of the
Enhancer shall act as successor Servicer as provided in
Section 7.02 hereof. If an Enhancer Default has occurred and
is continuing on the last day of a Servicer Extension Term, and no
Servicing Extension Notice has been given by the Enhancer to extend
such Servicing Extension Term, then an automatic termination of the
Servicer shall not occur under this Section 7.01(c), and the
Servicing Extension Term shall be deemed to have been extended for
so long as an Enhancer Default has occurred and is continuing, and
to be further extended to the end of the second month following the
month in which all Enhancer Defaults have been cured. Nothing in
this Section 7.01(c) shall derogate from or otherwise impair
(i) the Enhancer’s right to remove the Servicer pursuant
to Section 7.01(a) or any other rights of the Enhancer under
this Agreement or (ii) the Servicer’s rights
