EXHIBIT 10.1
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 EQUITY LOAN TRUST 2001-HE1,
as Issuer,
and
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Indenture Trustee
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HOME LOAN PURCHASE AGREEMENT
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Dated as of March 29, 2001
This Home Loan Purchase Agreement (the "Agreement"), dated as of March
29, 2001, 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 Equity Loan Trust 2001-HE1, as issuer
(the "Issuer"), and ▇▇▇▇▇ 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") and intends to sell a portion of the Subsequent Home Loans
to be sold by WG Trust hereunder, 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, as amended, 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 identified 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 identified 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) the Sellers
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) the related Seller and GMACM make certain representations and warranties on
the Closing Date and on each Subsequent Transfer Date;
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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
March 29, 2001 (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.
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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 such Subsequent Home Loans sold by it, to indicate in its books and
records that the GMACM Initial Home Loans have been sold to the Purchaser
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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 sold by GMACM
specifying for each Home Loan (i) its account number, (ii) its Cut-Off Date
Principal Balance or Subsequent Cut-Off Date Principal Balance and (iii) the
Loan Group or Loan Groups to which such Home Loans relate. 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 and any Subsequent 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 and on or prior to the related Subsequent
Cut-Off Date in the case of any Subsequent Home Loans sold by it, to indicate in
its books and records that the WG Trust Initial Home Loans have been sold to the
Purchaser pursuant to this Agreement, and, in the case of such Subsequent Home
Loans, to the Issuer pursuant to the related Subsequent Transfer Agreement.
GMACM, as Servicer of the Home Loans sold by WG Trust, agrees to deliver to the
Purchaser true and complete lists of all of the Home Loans sold by WG Trust
specifying for each Home Loan (i) its account number, (ii) its Cut-Off Date
Principal Balance or Subsequent Cut-Off Date Principal Balance and (iii) the
Loan Group or Loan Groups to which such Home Loan relates. 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 sold by it and the conveyance by WG Trust of the
WG Trust Initial Home Loans and any Subsequent Home Loans sold by it, 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 GMACM) 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, noting the presence of the MIN of the Home Loan, if
the Mortgage is registered on the MERS(R) System, and language indicating that
the Home Loan is a MOM Loan if the Home Loan is a MOM Loan, 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 GMACM
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;
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(iii) unless the Home Loan is registered on the MERS(R) System, original
assignments (which may be included in one or more blanket assignments if
permitted by applicable law) of the Mortgage in recordable form from GMACM to
"▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Indenture Trustee under that certain
Indenture dated as of March 29, 2001, for GMACM Home Equity Loan Trust 2001-HE1,
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 to MERS, if the Home Loan is registered on the MERS(R)
System, and which notes the presence of a MIN), 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 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, including that the Seller shall have the option
to substitute an Eligible Substitute Home Loan or Loans for such Home Loan only
if such substitution occurs within two years following the Closing Date.
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 to the Custodian contemporaneously with the execution and
delivery of this Agreement, GMACM 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
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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 Initial Home 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.
(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 and its assignees'
interests in each Initial Home Loan and the proceeds thereof. The Servicer shall
file any such continuation statements on a timely basis.
(g) In connection with the assignment of any Home Loan registered on the MERS(R)
System, GMACM further agrees that it will cause, at GMACM's own expense, at any
time that an Assignment of Mortgage is required to be recorded pursuant to
Section 3.16 of the Servicing Agreement, the MERS(R) System to indicate that
such Home Loans 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 Home Loans which are
repurchased in accordance with this Agreement) in such computer files (a) the
code "[IDENTIFY INDENTURE TRUSTEE SPECIFIC CODE]" in the field "[IDENTIFY THE
FIELD NAME FOR INDENTURE TRUSTEE]" which identifies the Indenture Trustee and
(b) the code "[IDENTIFY SERIES SPECIFIC CODE NUMBER]" in the field "Pool Field"
which identifies the series of the Notes issued in connection with such Home
Loans. GMACM agrees that it will not alter the codes referenced in this
paragraph with respect to any Home Loan during the term of this Agreement unless
and until such Home Loan is repurchased in accordance with the terms of this
Agreement.
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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) 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 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 the Seller of a Subsequent Home Loan
reserves and retains all right, title and interest in and to principal received
and interest accruing on such Subsequent Home Loan prior to the related
Subsequent Cut-Off Date. Any transfer to the Issuer by a Seller of Subsequent
Home 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 Home 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 hereby grant to the Issuer as of each Subsequent
Transfer Date a security interest in all of GMACM's or WG Trust's, as
applicable, 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 or WG Trust'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 of such
Seller, 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
Servicer shall file any such continuation statements on a timely basis.
GMACM hereby designates $123,353,157.71 of the Original Pre-Funded
Amount for Loan Group I and $21,035,209.55 of the Original Pre-Funded Amount for
Loan Group II.
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
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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) Either Seller 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) 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 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, the Loan Group or Groups to which such Subsequent Home
Loans have been assigned, which shall be the Loan Group or Groups to which the
money on deposit in the Pre-Funding Account relates, and any other information
reasonably requested by the Indenture Trustee or the Enhancer with respect to
such Subsequent Home 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 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,
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 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 Enhancer shall not have notified the respective Seller or
GMACM within five (5) Business Days that the Enhancer does not so approve, such
sale of Subsequent Home Loans shall be deemed approved by the Enhancer.
In addition, GMACM shall have delivered to the Issuer, the Indenture
Trustee and the 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 Enhancer and the Rating Agencies and the Indenture Trustee on
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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) neither
Seller has selected such Subsequent Home Loans in a manner that it reasonably
believes is adverse to the interests of the Noteholders or the Enhancer; (iii)
GMACM will deliver to the Enhancer and the Indenture Trustee certain Opinions of
Counsel described in Section 2.2(b) and acceptable to the 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 Loan Rate of less than
5.950%; (D) such Subsequent Home Loan must have a CLTV at origination of no more
than 100.00%; (E) the remaining term to stated maturity of such Subsequent Home
Loan may not extend beyond June 1 2031; (E) 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) in Loan
Group I and Loan Group II must have a weighted average Loan Rate of not less
than 10.244% and 10.124%, respectively, an average principal balance of not more
than $33,500.00, a weighted average CLTV at origination of not more than 79.00%,
a concentration in any one state not in excess of 36.00%, and the percentage of
Home Loans (by aggregate Principal Balance) that are secured by second liens on
the related Mortgaged Properties shall be no greater than the percentage of
Initial Home Loans that are secured by second liens; and (F)(i) if the
Subsequent Home Loan is included in Loan Group I, such Subsequent Home Loan will
comply with the restrictions applicable to Loan Group I set forth in the fourth
paragraph under "Description of the Mortgage Loans-Initial Mortgage Loans" in
the Prospectus Supplement, and (ii) if the Subsequent Home Loan is included in
Loan Group II, such Subsequent Home Loan will comply with the restrictions
applicable to Loan Group II set forth in the fourth paragraph under "Description
of the Mortgage Loans-Initial Mortgage Loans" in the Prospectus Supplement.
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 Enhancer, in its reasonable discretion; provided,
however, that (1) the addition of such Subsequent Home Loans will not materially
affect the aggregate characteristics of the Home Loans in the Trust Estate, (2)
the Servicer has received confirmation from each Rating Agency that the
inclusion of such Home Loans will not cause a Rating Event and (3) the Servicer
has received an Opinion of Counsel that the inclusion of such Home Loans will
not result in an Adverse REMIC Event. 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 Enhancer a copy of
the updated Home Loan Schedule reflecting the Subsequent Home Loans in
electronic format (to be followed by a hard copy).
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(d) In the event that a home equity loan is not acceptable to the Enhancer as a
Subsequent Home Loan pursuant to Section 2.2(b)(v) hereof, the 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 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 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
$119,968,677.18 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 $396,067,187.23 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 the GMACM
Initial Home 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 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
sold by GMACM.
(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 the WG
Trust Initial Home Loans; provided, that such payment may be on a net funding
basis if agreed by WG Trust and the Purchaser. In consideration of the sale of
any Subsequent Home Loan by WG Trust to the Issuer, the Issuer shall pay to WG
Trust by wire transfer of immediately available funds to a bank account
designated by WG Trust, the amount specified above in paragraph (a) for each
Subsequent Home Loan sold by WG Trust.
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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 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
11
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 or, as applicable,
any the Subsequent Home Loans sold by WG Trust, 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;
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(iii) With respect to each of the GMACM Initial Home Loans or, as applicable,
any Subsequent Home Loans sold by GMACM as of each respective Subsequent
Transfer Date: (A) the related Mortgage Note and the Mortgage have not been
assigned or pledged, except for any assignment or pledge that has been satisfied
and released, (B) immediately prior to such assignment of the Home Loans to the
Purchaser (or to the Issuer in the case of the Subsequent Home Loans sold by
GMACM), 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 or, as applicable, any
Subsequent Home Loans sold by GMACM, the related Mortgage File contains or will
contain, in accordance with Section 2.1(e), 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 29.86% and 5.79% of
the Home Loans in Loan Group I, by Cut-Off Date Principal Balance, are secured
by Mortgaged Properties located in California and New York, respectively, and no
more than approximately 51.14% and 6.01% of the Home Loans in Loan Group II, by
Cut-Off Date Principal Balance, are secured by Mortgaged Properties located in
California and New Jersey, respectively;
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(xiv) As of the Cut-Off Date or Subsequent Cut-Off Date, the Combined
Loan-to-Value Ratio for each second lien Home Loan was not in excess of 100.00%,
with the exception of one Home Loan in Loan Group II, which has a Combined
Loan-to-Value Ratio of 101.03%;
(xv) Intentionally Omitted;
(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) As of the Cut-Off Date, no more than approximately 50% of the Initial
Home Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged
Properties which may have been appraised using the statistical property
evaluation method of ▇▇▇▇▇▇▇.▇▇▇;
(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 360 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 in Loan Group I range between
5.990% per annum and 14.175% per annum and the Loan Rates on Home Loans in Loan
Group II range between 5.990% per annum and 14.475% per annum. The weighted
average remaining term to stated maturity of the Home Loans in Loan Group I as
of the Cut-off Date is approximately 214 months and the weighted average
remaining term to stated maturity of the Home Loans in Loan Group II as of the
Cut-off Date is approximately 248 months;
(xxv) (A) Each Mortgaged Property consists of a single parcel of real property
with a single family or two- to four-family residence erected thereon, or an
individual condominium unit or a unit in a planned development; (B) with respect
to the Home Loans in Loan Group I (a) approximately 7.47% (by Cut-Off Date
Principal Balance) are secured by real property improved by individual
14
condominium units or a unit in a planned development, (b) approximately 90.69%
(by Cut-Off Date Principal Balance) are secured by real property with a single
family residence erected thereon, (c) approximately 1.83% (by Cut-Off Date
Principal Balance) are secured by real property with a two- to four-family
residence erected thereon and (d) 0.01% are secured by real property improved by
manufactured housing and (C) with respect to the Home Loans in Loan Group II (a)
approximately 5.36% (by Cut-Off Date Principal Balance) are secured by real
property improved by individual condominium units or a unit in a planned
development, (b) approximately 87.29% (by Cut-Off Date Principal Balance) are
secured by real property with a single family residence erected thereon, (c)
approximately 1.30% (by Cut-Off Date Principal Balance) are secured by real
property with a two- to four-family residence erected thereon and (d) none are
secured by real property improved by manufactured housing;
(xxvi) As of the Cut-Off Date no Initial Home Loan in Loan Group I had a
principal balance in excess of $134,860.90 and no Initial Home Loan in Loan
Group II had a principal balance in excess of $299,516.84;
(xxvii) Approximately 94.89% 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) No instrument of release or waiver has been executed by GMACM or, to the
best knowledge of GMACM, by any other person, in connection with the Home Loans,
and no Mortgagor has been released by GMACM or, to the best knowledge of GMACM,
by any other person, in whole or in part from its obligations in connection
therewith;
(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;
(xxxii) None of the Home Loans are "high cost loans", subject to the Home
Ownership and Equity Protection Act of 1994;
(xxxiii) Each Home Loan constitutes a "qualified mortgage" under Section
860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1);
15
(xxxiv) GMACM used no selection procedures that identified Home Loans as being
less desirable or valuable than other comparable mortgage loans originated or
acquired by GMACM under the GMACM Home Equity Program. The Mortgage Loans are
representative of GMACM's portfolio of fixed rate mortgage loans that were
originated under the GMACM Home Equity Program; and
(xxxv) 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 or with respect to the Subsequent Home Loans sold by WG
Trust and made as of the Subsequent Cut-Off Date or the Subsequent Transfer
Date, are made by GMACM in its capacity as Servicer. Representations made by
GMACM with respect to the WG Trust Initial Home Loans or the Subsequent Home
Loans sold by WG Trust and 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 and as of each Subsequent
Transfer 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 each Subsequent Transfer Agreement to
which it is a party and all of the transactions contemplated under this
Agreement and each such Subsequent Transfer Agreement, and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and each such Subsequent Transfer Agreement;
(iii) WG Trust is not required to obtain the consent of any other Person or any
consents, licenses, approvals or authorizations from, or registrations or
declarations with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement or any Subsequent Transfer Agreement, except for such consents,
licenses, approvals or authorizations, or registrations or declarations, as
shall have been obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and any Subsequent Transfer
Agreement by WG Trust and its performance and compliance with the terms of this
Agreement and each such Subsequent Transfer 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;
16
(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 or any Subsequent Transfer 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 or any
Subsequent Transfer Agreement;
(vi) This Agreement and each Subsequent Transfer Agreement to which it is a
party constitutes a legal, valid and binding obligation of WG Trust, 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 this Agreement and the related
Subsequent Transfer Agreement, when executed, will constitute a valid transfer
and assignment to the Issuer of all right, title and interest of WG Trust in and
to the related 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 WG Trust; 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 or, as applicable, any
Subsequent Home Loans sold by WG Trust: (A) the related Mortgage Note and the
Mortgage have not been assigned or pledged, except for any assignment or pledge
that has been satisfied and released, (B) immediately prior to the assignment of
such Home Loans to the Purchaser (or to the Issuer in the case of the Subsequent
Home Loans sold by WG Trust), 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;
17
(ii) For each WG Trust Initial Home Loan or, as applicable, any Subsequent Home
Loans sold by WG Trust, the related Mortgage File contains or will contain, in
accordance with Section 2.1(e), 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 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 (a) or (c)(i) above that materially
and adversely affects the interests of the Securityholders or the 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
Enhancer, the Issuer, the Owner Trustee, the Indenture Trustee or the Custodian,
as applicable, of a breach of a Seller's or GMACM's representations or
warranties in paragraphs (b) or (c)(ii) 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 Enhancer or the Purchaser in such Home
Loan (notice of which shall be given to the Purchaser by the respective Seller
or GMACM, if it discovers the same), notwithstanding such Seller's or GMACM's
lack of knowledge with respect to the substance of such representation and
warranty, such Seller or GMACM, as the case may be, shall, within 90 days after
the earlier of its discovery or receipt of notice thereof or, if such breach has
the effect of making the Home Loan fail to be a "qualified mortgage" within the
meaning of Section 860G of the Internal Revenue Code, within 90 days after the
discovery thereof by either such Seller, the Servicer, the Enhancer, the Issuer,
the Owner Trustee, the Indenture Trustee or the Purchaser, either cure such
breach or Repurchase Event in all material respects or either (i) repurchase
such 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, provided that the Seller shall
have the option to substitute an Eligible Substitute Home Loan or Loans for such
Home Loan only if such substitution occurs within two years following the
Closing Date. 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. Any purchase of a Home Loan due to a Repurchase Event shall
be the obligation of GMACM.
18
In furtherance of the foregoing, if GMACM or the Seller that repurchases
or substitutes a Home Loan is not a member of MERS and the Mortgage is
registered on the MERS(R) System, GMACM, at its own expense and without any
right of reimbursement, shall cause MERS to execute and deliver an assignment of
the Mortgage in recordable form to transfer the Mortgage from MERS to GMACM or
the Seller and shall cause such Mortgage to be removed from registration on the
MERS(R) System in accordance with MERS' rules and regulations.
In the event that 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 Enhancer. Upon such substitution, the Eligible Substitute Loan
or Loans shall be subject to the terms of this Agreement and the Servicing
Agreement in all respects, GMACM shall be deemed to have made the
representations and warranties with respect to the Eligible Substitute Loan
contained herein set forth in Section 3.1(b) (other than clauses (xiii), (xxiv),
(xxv), (xxvi) and (xxvii) thereof and other than clauses (iii) and (ix) thereof
in the case of Eligible Substitute Loans substituted by WG Trust), and, if the
Seller is WG Trust, WG Trust shall be deemed to have made the representations
and warranties set forth in Section 3.1(c)(ii), in each case, as of the date of
substitution, and the related Seller shall be deemed to have made a
representation and warranty that each Home Loan so substituted is an Eligible
Substitute Loan as of the date of substitution. In addition, GMACM shall be
obligated to repurchase or substitute for any Eligible Substitute Loan as to
which a Repurchase Event has occurred as provided herein. In connection with the
substitution of one or more Eligible Substitute Loans for one or more Deleted
Loans, the Servicer shall determine the amount (such amount, a "Substitution
Adjustment Amount"), if any, by which the aggregate principal balance of all
such Eligible Substitute Loans as of the date of substitution is less than the
aggregate principal balance of all such Deleted Loans (after application of the
principal portion of the Monthly Payments due in the month of substitution that
are to be distributed to the Note Payment Account in the month of substitution).
Such Seller shall deposit the amount of such shortfall into the Custodial
Account on the date of substitution, without any reimbursement therefor.
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
19
the Indenture Trustee, shall release to such Seller or GMACM, as the case may
be, 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 GMACM, as
the case may be, or its respective 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 and GMACM
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 and GMACM.
It is understood and agreed that the representations and warranties set
forth in this Section 3.1 shall survive delivery of the respective Mortgage
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, 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.
20
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 or the Issuer, it being expressly understood that all
such liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement and any Subsequent Transfer
Agreement. Except as and to the extent expressly provided in the Servicing
Agreement, GMACM and WG Trust 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
Enhancer (which consent shall not be unreasonably withheld), provided that the
Servicer, the Indenture Trustee and the Enhancer shall have received an Opinion
of Counsel to the effect that such amendment will not result in an Adverse REMIC
Event.
Section 8.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK 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:
21
(i) if to the GMACM:
GMAC Mortgage Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Senior Vice President
Re: GMACM Home Equity Loan Trust 2001-HE1;
(ii) if to WG Trust:
Walnut Grove Home Equity Loan Trust
2000-A
c/o Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Walnut Grove Home Equity Loan
Trust 2000-A
Re:GMACM Home Equity Loan Trust 2001-HE1;
(iii) if to the Purchaser:
Residential Asset Mortgage Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:President
Re: GMACM Home Equity Loan Trust 2001-HE1;
(iv) if to the Indenture Trustee:
▇▇▇▇▇ Fargo Bank Minnesota, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: GMACM Home Equity Loan Trust 2001-HE1;
(v) if to the Issuer:
c/o Wilmington Trust Company, as Owner Trustee
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: GMACM Home Equity Loan Trust 2001-HE1; or
22
(vi) if to the Enhancer:
MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:Insured Portfolio Management - Structured Finance
Re: GMACM Home Equity Loan Trust 2001-HE1;
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 the Sellers will be selling on each Subsequent Transfer Date,
the related Subsequent Home Loans, rather than the Issuer providing a loan to
the Sellers 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 the Sellers, 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.
23
(a) This Agreement shall bind and inure to the benefit of and be enforceable by
the parties hereto and their respective permitted successors and assigns. The
obligations of each Seller under this Agreement cannot be assigned or delegated
to a third party without the consent of the Enhancer and the Purchaser (and the
Issuer with respect to the transfer of any Subsequent 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 Equity Loan Trust 2001-HE1 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 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 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 Enhancer shall be a third party
beneficiary hereof and shall be entitled to enforce the provisions of this
Agreement as if a party hereto.
24
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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GMAC MORTGAGE CORPORATION,
as Seller and Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇
Title: Senior 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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Financial Services Officer
25
GMACM HOME EQUITY LOAN TRUST 2001-HE1, as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Financial Services Officer
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A., as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
26
EXHIBIT 1
HOME LOAN SCHEDULE
EXHIBIT 2
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement No. (the "Agreement"),
dated as of , , between ___________________, as seller (the "Seller"), and GMACM
Home Equity Loan Trust 2001-HE1, as issuer (the "Issuer"), and pursuant to the
loan purchase agreement dated as of March 29, 2001 (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 ▇▇▇▇▇ 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 March 29, 2001,
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
2-1
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 made by
it and 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. GMACM, as Servicer of the Subsequent Home Loans hereby affirms the
representations and warranties made by it regarding the Subsequent Home Loans as
set forth in Section 3.1 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 Enhancer, but only when accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Noteholders or the Enhancer or is
necessary for the administration or servicing of the Subsequent 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.
2-2
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 EQUITY LOAN TRUST 2001-HE1, 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 Enhancer approval).
2-3
GMACM HOME EQUITY LOAN TRUST 2001-HE1
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:
2-4
EXHIBIT 3
FORM OF ADDITION NOTICE
DATE:
▇▇▇▇▇ Fargo Bank Minnesota, ▇.▇. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
MBIA Insurance Corporation Wilmington Trust Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Insured Portfolio
Management-Structured Finance
Re: GMACM Home Equity Loan Trust 2001-HE1;
Standard & Poor's, a division of The Fitch, Inc.
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: GMACM Home Equity Loan Trust 2001-HE1
Ladies and Gentlemen:
Pursuant to Section 2.2 of the home loan purchase agreement dated as of
March 29, 2001 (the "Purchase Agreement"), among GMAC Mortgage Corporation, as a
Seller and Servicer, Walnut Grove Home Equity Loan Trust 2000-A, as Seller,
Residential Asset Mortgage Products, Inc., as Purchaser, GMACM Home Equity Loan
Trust 2001-HE1, as Issuer and ▇▇▇▇▇ 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 March 29, 2001, 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:
▇▇▇▇▇ FARGO BANK MINNESOTA, N.A.,
as Indenture Trustee
By:
--------------------------------
Name:
Title:
TABLE OF CONTENTS
Page
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.......................................................19
Section 4.1 Covenants of the Seller..............................................19
ARTICLE V SERVICING................................................................19
Section 5.1 Servicing............................................................19
ARTICLE VI INDEMNIFICATION BY THE SELLER WITH RESPECT TO THE MORTGAGE LOANS.........19
Section 6.1 Indemnification with Respect to the Home Loans.......................19
Section 6.2 Limitation on Liability of the Seller................................19
ARTICLE VII TERMINATION..............................................................20
Section 7.1 Termination..........................................................20
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................................20
Section 8.1 Amendment............................................................20
Section 8.2 GOVERNING LAW........................................................20
Section 8.3 Notices..............................................................20
Section 8.4 Severability of Provisions...........................................21
Section 8.5 Relationship of Parties..............................................21
Section 8.6 Counterparts.........................................................22
Section 8.7 Further Agreements...................................................22
Section 8.8 Intention of the Parties.............................................22
Section 8.9 Successors and Assigns; Assignment of This Agreement.................22
Section 8.10 Survival.............................................................23
Section 8.11 Third Party Beneficiary..............................................23
EXHIBIT 1 HOME LOAN SCHEDULE...............................................................0
EXHIBIT 2 FORM OF SUBSEQUENT TRANSFER AGREEMENT............................................1
EXHIBIT 3 FORM OF ADDITION NOTICE..........................................................2