exv10w8






Exhibit 10.8




SERVICER ADVANCE RECEIVABLES FACTORING AGREEMENT




GMAC MORTGAGE, LLC




and




RESIDENTIAL FUNDING COMPANY, LLC




(Sellers)




and




GMAC COMMERCIAL FINANCE LLC




(Purchaser)




Dated as of June 17, 2008




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	Section 1.

	 	Definitions.
	 	 	1	 
	Section 2.

	 	Purchase and Sale, Settlement, Collections.
	 	 	15	 
	Section 3.

	 	Conditions Precedent.
	 	 	22	 
	Section 4.

	 	Sellers as Purchaser’s Agents and Appointment of Purchaser as
Attorney-in-Fact.
	 	 	24	 
	Section 5.

	 	Representations, Warranties and Certain Covenants of Sellers.
	 	 	24	 
	Section 6.

	 	Specific Remedies Upon Breach of Representations, Warranties and Covenants
Concerning the Receivables.
	 	 	29	 
	Section 7.

	 	General Covenants of Sellers.
	 	 	30	 
	Section 8.

	 	Termination Events; Purchase Suspension; Purchase Termination.
	 	 	32	 
	Section 9.

	 	Grant Clause.
	 	 	34	 
	Section 10.

	 	Miscellaneous.
	 	 	35	 
	 
	 	 	 	 	 	 
	Schedule 1

	 	Schedule of Designated Servicing Agreements	 	 	 	 
	Schedule 2

	 	Schedule of Accounts — Seller Account and Purchaser Remittance Account	 	 	 	 
	Schedule 3

	 	Reporting Schedule	 	 	 	 
	Schedule 4

	 	Closing Checklist Schedule	 	 	 	 
	Schedule 5

	 	Post-Closing Undertakings Schedule	 	 	 	 
	 
	 	 	 	 	 	 
	Exhibit A

	 	Form of Assignment of Purchased Receivables	 	 	 	 
	Exhibit B

	 	Form of Release Agreement	 	 	 	 
	Exhibit C

	 	Form of Trustee Notice	 	 	 	 






(i)






 









 








SERVICER ADVANCE RECEIVABLES FACTORING AGREEMENT




     This SERVICER ADVANCE RECEIVABLES FACTORING AGREEMENT (this “Agreement”) is made as of
June 17, 2008, by and among GMAC MORTGAGE, LLC, a Delaware limited liability company (together with
any successors, “GMAC Mortgage”), RESIDENTIAL FUNDING COMPANY, LLC, a Delaware limited
liability company (together with any successors, “RFC”; and together with GMAC Mortgage,
each a “Seller” and collectively the “Sellers”, as hereinafter further defined) and
GMAC COMMERCIAL FINANCE LLC, a Delaware limited liability company (the “Purchaser”).



RECITALS




     A. Pursuant to certain Servicing Agreements (as hereinafter defined), each of the Sellers
services pools of Loans (as hereinafter defined) for and on behalf of an Owner (as hereinafter
defined).



     B. Pursuant to the applicable Designated Servicing Agreement (as hereinafter defined), GMAC
Mortgage or RFC (in its capacity as the servicer for a Loan) makes Advances from time to time for
the benefit of the related Owner of different Advance Types. Upon making an Advance, GMAC Mortgage
or RFC, as applicable, becomes the owner of a contractual right to be reimbursed for such Advance
in accordance with the terms of the related Designated Servicing Agreement.



     C. Pursuant to the terms hereof, each of GMAC Mortgage and RFC, as owners of these rights to
reimbursement, desires to sell, assign, transfer and otherwise convey to the Purchaser, and
Purchaser desires, on and subject to the terms and conditions hereof, to purchase, take, assume and
acquire from each of the Sellers, on a non-recourse basis to the extent provided herein, all of
each such Seller’s right, title and interest in and to such Seller’s rights to be reimbursed in
respect of Advances made by each such Seller as Servicer, from time to time, under the Designated
Servicing Agreements together with related rights.



AGREEMENT




     NOW, THEREFORE, in consideration of the above premises and of the mutual promises hereinafter
set forth, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:



     Section 1. Definitions.



     For all purposes of this Agreement, except as otherwise expressly provided or unless the
context otherwise requires:



     (1) the terms defined in this Section have the meanings assigned to them in this Section, and
include the plural as well as the singular;



 









 





     (2) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles and, except as otherwise herein expressly
provided, the term “generally accepted accounting principles” with respect to any computation
required or permitted hereunder means such accounting principles as are generally accepted in the
United States of America at the date of such computation;



     (3) all references in this Agreement to designated “Sections” and other subsections or
subdivisions are to the designated Sections and other subsections or subdivisions of this
Agreement. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Section or other subsection or subdivision; and



     (4) “including” and words of similar import will be deemed to be followed by “without
limitation.”



     “Added Servicing Agreement” has the meaning assigned to that term in Section 2(e) of
this Agreement.



     “Additional Purchased Receivables” has the meaning assigned such term in Section
2(a)(1)(B) of this Agreement.



     “Advance” means a P&I Advance, T&I Advance or Corporate Advance, or other Advance Type
or Advance Types that may be specified from time to time in an amendment to this Agreement entered
into as provided in Section 10(b).



     “Advance Reimbursement Amount” means any amount which the related Servicer collects
with respect to a Loan (including amounts collected in connection with the liquidation of related
Mortgaged Property), withdraws from an Owner Collection Account, or receives from an MBS Trustee,
to reimburse an Advance made by such Servicer (including reimbursement of P&I Advances which were
advanced by such Servicer using Amounts Held for Future Distribution) pursuant to a Designated
Servicing Agreement.



     “Advance Type” refers to the distinction among Advances as being one of the following
types: (a) P&I Advances, (b) T&I Advances or (c) Corporate Advances, or any other type or types of
Advances that may be specified from time to time in an amendment to this Agreement entered into as
provided in Section 10(b); provided, that any such additional Advance Types shall be reflected on
(i) Attachment A to the applicable Assignment of Purchased Receivables and (ii) the books and
records of the applicable Seller.



     “Adverse Claim” means a Lien or set off right or other right or claim of any Person.



     “Affiliate” means any Person: (a) directly or indirectly controlling, controlled by,
or under common control with, either Seller; (b) directly or indirectly owning or holding five
percent (5%) or more of any equity interest in such Seller; (c) five percent (5%) or more of whose
stock or other equity interest having ordinary voting power for the election of directors or the
power to direct or cause the direction of management, is directly or indirectly owned or held by
such Seller; or (d) which has a senior officer who is also a senior officer of such Seller. For
purposes of this definition, “control” (including with correlative meanings, the terms
“controlling”, “controlled by” and “under common control with”) means the possession directly or
indirectly of the power to direct or cause



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the direction of the management and policies of a Person, whether through the ownership of
voting securities or other equity interest, or by contract or otherwise.



     “Amounts Held For Future Distribution” means, with respect to an MBS Servicing
Agreement, amounts representing early receipt of scheduled payments of principal and interest on a
Loan which pursuant to such MBS Servicing Agreement are amounts held on deposit in the applicable
MBS Trust Collection Account for distribution to the MBS Trustee in a future month but which
amounts may be remitted by the Servicer to the MBS Trustee earlier as part of such Servicer’s
monthly P&I Advances.



     “Ancillary Rights” has the meaning assigned to such term in Section 2(a)(1)(C).



     “Assignment of Purchased Receivables” means an Assignment of Purchased Receivables,
substantially in the form of Exhibit A attached hereto, by and between a Seller and the
Purchaser, delivered in accordance with Section 2 of this Agreement.



     “Business Day” means any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York, the State of California, the State of Minnesota or
the Commonwealth of Pennsylvania, or is a day on which either the Purchaser is closed or banking
institutions located in the State of New York, the State of California, the State of Minnesota or
the Commonwealth of Pennsylvania are closed.



     “Change of Control” means, (a) with respect to either Seller, the failure of ResCap to
own, directly or indirectly, more than fifty percent (50%) of the aggregate issued and outstanding
voting stock of such Seller, and (b) with respect to ResCap, the failure of GMAC, LLC to own,
directly or indirectly, more than fifty percent (50%) of the aggregate issued and outstanding
voting stock of ResCap.



     “Collections” has the meaning set forth in Section 2(b)(1) of this Agreement.



     “Collections Report” means the report described in Section 2(b)(1) of this Agreement.



     “Collections Settlement Date” has the meaning set forth in Section 2(b)(2) of this
Agreement.



     “Corporate Advance” means, collectively, (a) an advance (other than those described in
clause (b) below) made by a Seller as Servicer pursuant to a Designated Servicing Agreement to
inspect, protect, preserve or repair properties that secure a defaulted Loan or that have been
acquired through foreclosure or deed in lieu of foreclosure or other similar action pending
disposition thereof, or for similar or related purposes, including, but not limited to, necessary
legal fees and costs expended or incurred by such Seller as Servicer in connection with
foreclosure, bankruptcy, eviction or litigation actions with or involving the related Obligors on
such defaulted Loan, as well as costs to obtain clear title to such a property, to protect the
priority of the lien created by such Loan on the related property, and to dispose of properties
taken through foreclosure or by deed in lieu thereof or other similar action, (b) an advance made
by a Seller as Servicer pursuant to a Designated Servicing Agreement to foreclose or undertake
similar action with respect to a Loan, and (c) any other out of pocket expenses incurred by a
Seller as Servicer pursuant to a Designated Servicing Agreement (including, for example, costs and
expenses incurred in loss mitigation efforts and in processing



3









 







assumptions of Loans in the ordinary course of business to maintain or maximize the value of
such Loan or the related Mortgaged Property).



     “Corporate Advance Receivable” means any Receivable representing the right to be
reimbursed for a Corporate Advance.



     “Cross-Default” shall mean (a) an event which, after the expiration of all applicable
grace periods (if any), constitutes a default by the applicable Seller under any agreement
relating to Indebtedness between such Seller and the Purchaser in excess of $50,000,000, or (b)
an event which, after the expiration of all applicable grace periods (if any), constitutes a
default by the applicable Seller under the Senior Secured Credit Facility, which default is not
waived by the ResCap Senior Secured Credit Facility Agents, and which default could result in the
acceleration or the exercise of the ResCap Senior Secured Credit Facility Agents’ remedies
relating to such Indebtedness.



     “Designated Servicing Agreement Schedule” has the meaning assigned to such term in
Section 2(d) of this Agreement, as the same may be amended, restated, supplemented or otherwise
modified from time to time.



     “Designated Servicing Agreements” means, collectively, each of the Servicing
Agreements identified by unique investor identifying numbers on Schedule 1 (Schedule of
Designated Servicing Agreements) hereto, as such Schedule may be supplemented or amended from time
to time in accordance with the terms and conditions hereunder, subject to the provisions of
Section 2 of this Agreement. If a Seller is a subservicer pursuant to and as permitted by the
terms of any Service Agreement listed on Schedule 1 (Schedule of Designated Servicing
Agreements) hereto, as such Schedule may be supplemented or amended from time to time in accordance
with the terms and conditions hereunder, under which the other Seller is the master servicer, the
term “Designated Servicing Agreements” also includes the Servicing Agreement pursuant to
which such Seller acts in the capacity as subservicer.



     “Effective Date” means the date this Agreement is executed by each of the parties
hereto and on which all of the conditions precedent set forth in Section 3 hereof are satisfied.



     “Eligible Receivable” means a Receivable which meets the following criteria (as of the
Effective Date with respect to an Initial Purchased Receivable and as of the applicable Settlement
Date with respect to an Additional Purchased Receivable):




     (a) it constitutes a “general intangible” within the meaning of Section 9-102(a)(42)
(or the corresponding provision in effect in a particular jurisdiction) of the UCC in all
applicable jurisdictions; and




     (b) it is denominated in U.S. dollars and is payable in the United States of America;
and




     (c) it arises and was authorized pursuant to the terms of a Designated Servicing
Agreement, complies with all requirements for reimbursement thereunder and, at the time the
Advance was made by the Servicer, it was reasonably determined by the related Seller as
Servicer to be ultimately recoverable from the proceeds of the related Loan or related pool
of



4









 






Loans, related liquidation proceeds or otherwise from the proceeds of or collections
with respect to the related Loan or related pool of Loans, the related Mortgaged Property or
escrow accounts related to such Loan or related pool of Loans; and




     (d) neither Seller in any capacity has (1) taken any action that would impair the
right, title and interest of the Purchaser therein, or (2) failed to take any action that
was necessary to avoid impairing the Purchaser’s right, title or interest therein; and




     (e) the Advance related to such Receivable has been fully funded by the related
Servicer using its own funds; and




     (f) it arises under a Designated Servicing Agreement pursuant to which GMAC Mortgage or
RFC is the Servicer and such Designated Servicing Agreement remains in full force and
effect, and GMAC Mortgage or RFC, as the case may be, has not received any (x) notice of the
occurrence of an Unmatured Servicer Termination Event or (y) notice of any Servicer
Termination Event or (z) written notice of any intent to terminate it as a Servicer; and




(g) (i) it arises under a Designated Servicing Agreement that provides that the
Servicer is entitled to reimburse itself for each Advance made thereunder out of
late collections, insurance proceeds and liquidation proceeds from the Loan with
respect to which such Advance was made, prior to the distributions of payments on
any related securities, and prior to payment of any party subrogated to the rights
of the holders of such securities (such as a reimbursement right of a credit
enhancer) or any hedge or derivative termination fees, or to the related Owner; and




     (ii) in the case of any such Receivable, if the Servicer determines that the
related Advance will not be recoverable out of late collections of the amounts
advanced or out of insurance proceeds or liquidation proceeds from the Loan with
respect to which the Advance was made, the Servicer (A) in the case of MBS Servicing
Agreements, has the right to reimburse itself for such Advance out of any funds in
the related MBS Trust Collection Account, or out of general collections received by
the Servicer with respect to any Loans serviced under the same Servicing Agreement,
prior to any payment of any holders of any notes, certificates or other securities
backed by the related Loan pool, and prior to payment of any party subrogated to the
rights of the holders of such securities (such as a reimbursement right of a credit
enhancer) or any hedge or derivative termination fees, or to the related Owner, and
(B) in the case of an Advance other than an Advance described in clause (A), has the
right to reimburse itself at any time out of any funds in the related Owner
Collection Account; and




     (h) such Receivable does not arise under a Designated Servicing Agreement which
prohibits or purports to prohibit the assignment by the Servicer of its rights to be
reimbursed for Advances and, if such Designated Servicing Agreement under which such
Receivable arises conditions or purports to condition the Servicer’s rights to assign such
rights, all such conditions have been fully satisfied (including, without limitation, the



5









 






obtaining of written consents from any parties entitled to consent thereto or to
withhold consent therefrom); and




     (i) such Receivable does not arise under a GSE Servicing Agreement; and




     (j) it is owned by the related Seller as Servicer, free and clear of any Adverse Claim
in favor of any Person and with respect to the related Designated Servicing Agreement a
notice in the form attached hereto as Exhibit C has been sent by the applicable
Seller to the applicable trustee (with respect to a MBS Servicing Agreement), the applicable
bond insurer (the respect to a MBS Servicing Agreement that has a bond insurer) and the
applicable Owner (with respect to Designated Servicing Agreements that are not MBS Servicing
Agreements); and




     (k) it arises under a Designated Servicing Agreement which, as of the end of the most
recently concluded calendar month, has an unpaid principal balance of the Loans serviced
under such Servicing Agreement of at least $1,000,000.



     “Fair Value” means with respect to the Purchased Assets, the fair market value of such
Purchased Assets (determined as of the date a binding commitment to effect the sale of such
Purchased Assets was entered into and taking into account, among other things, current market
conditions).



     “Fannie Mae” means the Federal National Mortgage Association, and its successors.



     “Freddie Mac” means Federal Home Loan and Mortgage Corporation, and its successors.



     “Full P&I Tracking Date” means the date upon which the Sellers have developed the
capability to track and report P&I Advances, P&I Advance Receivables and Collections in the manner
required by Schedule 5 (Post-Closing Undertakings Schedule) attached hereto, or, if
earlier, the date that is ninety (90) days after the Effective Date.



     “GAAP” means United States generally accepted accounting principles inclusive of, but
not limited to, applicable statements set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board, its predecessors and
successors and Securities and Exchange Commission Staff Accounting Guidance, as in effect from time
to time applied on a consistent basis that are applicable to the circumstances as of the date of
determination.



     “Ginnie Mae” means the Government National Mortgage Association, and its successors.



     “Governmental Authority” means any federal, state or municipal court or other
governmental department, commission, board, bureau, agency or instrumentality, governmental or
quasi-governmental, domestic or foreign.



     “Grant Clause” means Section 9 of this Agreement.



     “GSE” means Ginnie Mae, Fannie Mae or Freddie Mac (“government sponsored
enterprises”).



6









 





     “GSE Servicing Agreement” means a Servicing Agreement between GMAC Mortgage or RFC or
any other Person, as Servicer, and a GSE, as Owner.



     “Incipient Termination Event” means a condition, state of facts, act or event that
does, or would, after notice or lapse of time or both, constitute a Termination Event if that
condition, state of facts, act or event were not cured or removed within any applicable grace or
cure period.



     “Indebtedness” shall mean, with respect to any Person at any date, the amount
outstanding on such date under notes, bonds, debentures, or other similar evidences of indebtedness
for money borrowed (including, without limitation, indebtedness for borrowed money evidenced by a
loan account).



     “Initial Ownership Amount” means, with respect to one or more Receivables and related
Ancillary Rights with respect to which Purchaser has purchased an Ownership Interest hereunder, an
amount equal to (a) the aggregate Receivable Balances of such Receivables, determined as of the
Effective Date or as of a later Settlement Date upon which the purchase of such Ownership Interest
by Purchaser is Settled hereunder, less (b) that portion of the Advances giving rise to such
Receivables that was not funded with Seller’s own funds, including, in the case of P&I Advance
Receivables, any portion of such Advances funded with Amounts Held for Future Distribution that
have not yet been restored by the Seller from its own funds to the related MBS Trust Collection
Account.



     “Initial Purchased Receivables” has the meaning assigned to that term in
Section 2(a)(1)(A) of this Agreement.



     “Insolvency Event” means, with respect to a specified Person, (a) an involuntary case
or other proceeding under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect shall be commenced against any Person or substantial part of its property, or a
petition shall be filed against such Person in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, seeking the appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for
any substantial part of its property, or the winding-up or liquidation of such Person’s business
and (i) such case or proceeding shall continue undismissed and unstayed and in effect for a period
of 60 days or (ii) an order for relief in respect of such Person shall be entered in such case or
proceeding under such laws or a decree or order granting such other requested relief shall be
granted; or (b) the commencement by such Person of a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such
Person to the entry of an order for relief in an involuntary case under any such law, or the
consent by such Person to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts as such debts become
due or the admission by such Person of its inability to pay its debts generally as they become due.



     “Insolvency Proceeding” means any proceeding of the sort described in the definition
of Insolvency Event.



7









 





     “Interim Collections Settlement” means an interim settlement and remittance by a
Seller as Servicer and as Purchaser’s Agent of Collections on a Collections Settlement Date, as
provided in Section 2(b) of this Agreement.



     “Interim P&I Settlement Percentage” means, as to Purchaser with respect to Advance
Reimbursement Amounts relating to P&I Advance Receivables arising under a given Designated
Servicing Agreement in which Purchaser has purchased on or after the Effective Date an Ownership
Interest, a fraction, expressed as a percentage, (a) the numerator of which shall be the aggregate
Initial Ownership Amounts of all Ownership Interests of Purchaser in such P&I Advance Receivables
purchased on and after the Effective Date through the date of an Interim Collections Settlement,
and (b) the denominator of which shall be the aggregate amount of P&I Advances giving rise to such
P&I Advance Receivables.



     “Lien” means any security interest, mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, equity interest, encumbrance, lien (statutory or other),
preference, participation interest, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever, including any conditional sale or other title
retention agreement, or any financing lease having substantially the same economic effect as any of
the foregoing.



     “Loan” means any home equity loan, home equity line of credit, manufactured housing
contract or other mortgage loan or installment sales contract or similar asset serviced by the
Servicer pursuant to a Designated Servicing Agreement.



     “Material Adverse Effect” means a material adverse effect upon (a) the business,
operations, prospects, properties, assets or condition (financial or otherwise) of either Seller,
whether on an individual basis or taken as a whole, or (b) the ability of either Seller to perform
its obligations under this Agreement or any Purchase Document to which it is a party or of the
Purchaser to enforce or collect any of the Obligations.



     “Maximum Purchase Amount” means the limitation on the aggregate Net Cash Investment by
Purchaser in outstanding Ownership Interests purchased by Purchaser hereunder, such that the
aggregate Net Cash Investment may not exceed $600,000,000 in the aggregate with respect to all such
Ownership Interests at any one time outstanding.



     “MBS Loan” means a Loan serviced by a Servicer under a MBS Servicing Agreement.



     “MBS Servicing Agreement” means a Servicing Agreement under which a Servicer services
Loans on behalf of an MBS Trustee, which Loans underlie or secure one or more issues of
asset-backed securities.



     “MBS Trust” means any of the bankruptcy-remote trusts or trust estates in which the
Loans being serviced by a Servicer pursuant to the Designated Servicing Agreements that are MBS
Servicing Agreements, are held by the related MBS Trustee.



     “MBS Trust Collection Account” means, collectively, any account(s) into which a
Servicer is required to deposit collections on MBS Loans, pending remittance of such collections to
the related MBS Trust, pursuant to the related MBS Servicing Agreement.



8









 





     “MBS Trustee” means a trustee or indenture trustee for an MBS Trust (not including a
GSE).



     “Mortgaged Property” means the real property securing a Loan.



     “Net Cash Investment” means, at any time, with respect to an Ownership Interest in one
or more Receivables and related Ancillary Rights purchased by Purchaser hereunder, an amount, not
less than zero, equal to (a) the Purchase Price paid by Purchaser for such Ownership Interest,
minus (b) all Collections remitted in good funds to Purchaser in respect of its Ownership
Interest, after giving effect to any adjustments in Collections made on or prior to such time
pursuant to the reconciliation and adjustment provisions of Section 2(c) of this Agreement.



     “Net Settlement Amount” has the meaning assigned to such term in Section 2(a)(4) of
this Agreement.



     “Non-Purchased Interest” means, with respect to one or more Receivables and related
Ancillary Rights with respect to which Purchaser has purchased an Ownership Interest representing
an Ownership Percentage of less than 100%, the undivided fractional absolute ownership interest in
such Receivables and related Ancillary Rights not purchased by Purchaser.



     “Non-Purchased Seller Interest” means, with respect to one or more Receivables and
related Ancillary Rights in which Purchaser has purchased an Ownership Interest, any Non-Purchased
Interest retained by a Seller to the extent it has funded, with its own funds, the Advances giving
rise to such Receivables and related Ancillary Rights or, in the case of P&I Receivables arising
from P&I Advances funded by such Seller as Servicer with Amounts Held for Future Distribution, to
the extent such Seller as Servicer has deposited its own funds into the related MBS Trust
Collection Account in order to reimburse such MBS Trust Collection Account for such Amounts Held
for Future Distribution used to make such P&I Advance.



     “Obligations” shall mean and include all debts, liabilities, obligations, covenants,
duties and amounts of any nature whatsoever arising under this Agreement, for which either Seller
is now or hereafter obligated to Purchaser, of every kind and description (whether or not evidenced
by any note or other instrument and whether or not for the payment of money or the performance or
nonperformance of any act), direct or indirect, absolute or contingent, due or to become due,
contractual or tortious, liquidated or unliquidated, whether arising under this or any other
present or future agreement or other documentation, or by operation of law or otherwise, now
existing or hereafter arising (whether before or after the filing of any petition in bankruptcy by
or against such Seller or the commencement of any other insolvency proceeding, including but not
limited to an assignment for the benefit of creditors), including, without limitation, any debt,
liability or obligation now or hereafter owing from either Seller to others, and including without
limitation, all charges or any other payments Sellers are required to make to Purchaser, together
with all expenses and attorneys’ fees and costs chargeable to either Seller’s account or incurred
by Purchaser in connection with either Seller’s account, whether provided for herein or in any such
other agreement or documentation.



     “Obligor” means any Person who owes or may be liable for payments under a Loan.



     “100% Ownership Interest” means an Ownership Interest where the Ownership Percentage
equals 100%.



9









 





     “Owner” means (a) any MBS Trust or (b) any owner of a Loan being serviced by a
Servicer pursuant to a Designated Servicing Agreement other than a Person described in clause (a).



     “Owner Collection Account” means any MBS Trust Collection Account or any other
account(s) into which a Servicer is required to deposit collections on Loans, pending remittance of
such collections to the related Owner, pursuant to the related Servicing Agreement.



     “Ownership Amount” means, with respect to one or more Receivables and related
Ancillary Rights with respect to which Purchaser has purchased an Ownership Interest hereunder, an
amount, determined as of any date, equal to the sum of the products of (i) the aggregate
outstanding Receivable Balance of each such Receivable as of such date, and (ii) the applicable
Ownership Percentage determined as to each such Receivable as provided in Section 2(a)(2) hereof.



     “Ownership Interest” means (a) with respect to a Corporate Advance or T&I Advance an
undivided 100% ownership interest in a Purchased Receivable and related Ancillary Rights sold to
and purchased by Purchaser hereunder, (b) with respect to a P&I Advance made after the Full P&I
Tracking Date an undivided 100% ownership interest in a Receivable and related Ancillary Rights
sold to and purchased by Purchaser hereunder and (c) with respect to a P&I Advance made prior to
the Full P&I Tracking Date, an undivided fractional absolute ownership interest in a Purchased
Receivable and related Ancillary Rights sold to and purchased by Purchaser hereunder. If the
Ownership Percentage is 100% with respect to any such Receivables and related Ancillary Rights, the
term “Ownership Interest” means full absolute ownership of such Receivables and related Ancillary
Rights.



     “Ownership Percentage” means, with respect to one or more Receivables and related
Ancillary Rights with respect to which Purchaser has purchased an Ownership Interest hereunder,
100% or such lesser percentage ownership that the undivided fractional interest comprising the
Ownership Interest represents with respect to a Receivable and related Ancillary Rights, determined
as provided in Section 2(a)(2) of this Agreement.



     “P&I Advance” means any advance made by a Seller as a Servicer pursuant to any
Designated Servicing Agreement, of delinquent interest and/or principal that have not been timely
paid by Obligors, including, in any case where the Servicer uses any Amounts Held for Future
Distribution on deposit in a related MBS Trust Collection Account to make such disbursement in
accordance with the related Designated Servicing Agreement in lieu of making a P & I Advance with
its own funds, the rights to be reimbursed for amounts subsequently deposited by the Servicer into
such MBS Trust Collection Account from its own funds in order to reimburse such MBS Trust
Collection Account for such Amounts Held for Future Distribution so used to make such P&I Advance.



     “P&I Advance Receivable” means any Receivable representing the right to be reimbursed
for a P&I Advance.



     “P&I Advance Reimbursement Amount” means any amount collected under any Designated
Servicing Agreement from Loan Obligors or other Owner or otherwise, which amount, by the terms of
such Designated Servicing Agreement, is payable to the related Servicer to reimburse it for P&I
Advances made by such Servicer.



10









 





     “Person” means any individual, corporation, estate, partnership, limited liability
company, limited liability partnership, joint venture, association, joint-stock company, business
trust, trust, unincorporated organization, government or any agency or political subdivision
thereof, bank, savings and loan institution or other entity of a similar nature.



     “Post-Closing Undertakings” means each of the requirements set forth on
Schedule 5 (Post-Closing Undertakings Schedule) attached hereto and made a part hereof, as
such Schedule may be amended, supplemented or otherwise modified from time to time.



     “Purchase Documents” means this Agreement, each Schedule and Exhibit hereto, each
Assignment of Purchased Receivables, each Release Agreement and all other agreements, documents,
schedules, certificates and instruments at any time executed or delivered hereunder or pursuant
hereto.



     “Purchase Price” means, with respect to an Ownership Interest in a Receivable and
related Ancillary Rights purchased by Purchaser hereunder, a dollar amount equal to (a) the product
of (i) the Initial Ownership Amount of the Ownership Interest being purchased with respect to such
Receivable and related Ancillary Rights, and (ii) the applicable Purchase Price Rate with respect
to the Advance Type of the Advance giving rise to such Receivable. After the Effective Date, the
Purchase Price may be adjusted from time to time by the parties for subsequent purchases of
Purchased Receivables pursuant to and in accordance with Section 2(a)(3).



     “Purchase Price Rate” means, with respect to the purchase on the Effective Date of an
Ownership Interest in any Initial Purchased Receivable and related Ancillary Rights, the percentage
set forth below for each Advance Type:



	 	 	 	 	 
	Advance Type 	 	Purchase Price Rate
	P&I Advances
	 	 	85	%
	T&I Advances
	 	 	85	%
	Corporate Advances
	 	 	85	%





With respect to the purchase after the Effective Date of an Ownership Interest in any Additional
Purchased Receivable and related Ancillary Rights, the Purchase Price Rate for each such Advance
Type may be adjusted from time to time by the parties pursuant to and in accordance with Section
2(a)(3) and the applicable Purchase Price Rate for each Advance Type included in such subsequent
purchase shall be determined prior to the applicable Settlement Date and shall be set forth on the
Assignment of Purchased Receivables for such Settlement Date.




     “Purchased Assets” has the meaning assigned to that term in Section 2(a)(1)(C) of this
Agreement.



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     “Purchased Receivables” has the meaning assigned to that term in Section 2(a)(1)(B) of
this Agreement.



     “Purchaser’s Agent” has the meaning assigned to that term in Section 4.



     “Purchaser Remittance Account” means the account identified as the Purchaser
Remittance Account in Schedule 2 (Schedule of Accounts — Seller Account and Purchaser
Remittance Account) to this Agreement.



     “Receivable” means the contractual right to reimbursement pursuant to the terms of a
Designated Servicing Agreement for an Advance made by a Seller as Servicer pursuant to such
Designated Servicing Agreement, which Advance has not previously been reimbursed, and including all
rights of the Servicer to enforce payment of such obligation under the Designated Servicing
Agreement and otherwise. A “Receivable” is not deemed to have been converted into cash, except to
the extent that its Receivable Balance is reduced in accordance with the definition of Receivable
Balance.



     “Receivable Balance” means as of any date of determination and with respect to any
Receivable, the outstanding balance of such Receivable, which shall only be reduced to the extent
that cash in respect of reimbursement of the Advance giving rise to that Receivable has been the
subject of settlement in accordance with the provisions of Section 2(b) of this Agreement.



     “Receivable R&W Breach Notice” has the meaning assigned to that term in Section 6(a)
of this Agreement.



     “Receivable R&W Cure Notice” has the meaning assigned to that term in Section 6(a) of
this Agreement.



     “Release Agreement” means a Release Agreement substantially in the form attached
hereto as Exhibit B.



     “Removed Servicing Agreement” has the meaning assigned to that term in Section 2(f) of
this Agreement.



     “Reporting Schedule” has the meaning assigned to that term in Section 7(a) of this
Agreement, and includes each of the financial statements and reports and other items listed in such
Schedule 3 (Reporting Schedule) attached hereto, as the same may be amended, modified or
supplemented from time to time.



     “ResCap” means Residential Capital, LLC, a Delaware limited liability company.



     “ResCap 8.50% Noteholders’ Lien” means any Lien upon the Receivables and related
Ancillary Rights granted by RFC and GMAC Mortgage to the ResCap 2010 Indenture Trustee for the
benefit of the noteholders under the ResCap 2010 Indenture in or upon any of the Receivables or any
monies due or to become due or amounts received or receivable with respect to any Receivables, or
any proceeds (including “proceeds” as defined in the UCC) thereof, or any rights of RFC or GMAC
Mortgage to enforce any rights to reimbursement constituting any Receivables.



12









 





     “ResCap 9.625% Noteholders’ Lien” means any Lien upon the Receivables and related
Ancillary Rights granted by RFC and GMAC Mortgage to the ResCap 2015 Indenture Trustee for the
benefit of the noteholders under the ResCap 2015 Indenture in or upon any of the Receivables or any
monies due or to become due or amounts received or receivable with respect to any Receivables, or
any proceeds (including “proceeds” as defined in the UCC) thereof, or any rights of RFC or GMAC
Mortgage to enforce any rights to reimbursement constituting any Receivables.



     “ResCap Senior Secured Credit Facility” means that certain $3,500,000,000 Loan
Agreement, dated as of June 4, 2008, by and among each of RFC and GMAC Mortgage as “Borrowers”,
Residential Capital, LLC and other affiliates of RFC and GMAC Mortgage as “Guarantors” and
“Obligors” thereunder, GMAC LLC, as “Lender Agent” and Wells Fargo Bank, N.A. in its capacity as
“First Priority Collateral Agent”, as the same may be amended, supplemented, amended and restated
or otherwise modified from time to time.



     “ResCap Senior Secured Credit Facility Agents” means each of GMAC LLC, as “Lender
Agent” and Wells Fargo Bank, N.A. in its capacity as “First Priority Collateral Agent”, under the
ResCap Senior Secured Credit Facility and, in each case, any successor thereto in such capacity.



     “ResCap Senior Secured Lien” means any Lien upon the Receivables and related Ancillary
Rights granted by RFC and GMAC Mortgage for the benefit of the Lenders party to the ResCap Senior
Secured Credit Facility in or upon any of the Receivables or any monies due or to become due or
amounts received or receivable with respect to any Receivables, or any proceeds (including
“proceeds” as defined in the UCC) thereof, or any rights of RFC or GMAC Mortgage to enforce any
rights to reimbursement constituting any Receivables.



     “ResCap 2010 Indenture” means that certain Indenture, dated as of June 6, 2008,
governing the rights and duties of ResCap under its 8.50% Senior Secured Guaranteed Notes due 2010,
as amended, supplemented, amended and restated or otherwise modified from time to time.



     “ResCap 2010 Indenture Trustee” means the trustee under the ResCap 2010 Indenture, or
any successor thereto in such capacity.



     “ResCap 2015 Indenture” means that certain Indenture, dated as of June 6, 2008,
governing the rights and duties of ResCap under its 9.625% Junior Secured Guaranteed Notes due
2015, as amended, supplemented, amended and restated or otherwise modified from time to time.



     “ResCap 2015 Indenture Trustee” means the trustee under the ResCap 2015 Indenture, or
any successor thereto in such capacity.



     “Seller” means, with respect to a Receivable that is sold and purchased by Purchaser
hereunder, the party whose funds were disbursed in making the Advance that gave rise to such
Eligible Receivable and, if the funds were disbursed by GMAC Mortgage in its capacity as a
subservicer under a Designated Service Agreement under which RFC is the servicer, then
“Seller” shall mean RFC and GMAC Mortgage to the extent of their respective rights, title
and interests in and to such Receivable.



13









 





     “Seller Account” means the account of the Sellers identified as the Seller Account in
Schedule 2 (Schedule of Accounts — Seller Account and Purchaser Remittance Account) to this
Agreement.



     “Seller Financing Agreements” means, collectively, the ResCap Senior Secured Credit
Facility, the ResCap 2010 Indenture and the ResCap 2015 Indenture.



     “Servicer” means either GMAC Mortgage or RFC, as the case may be, in its capacity as
servicer or subservicer of Loans for and on behalf of an Owner under any particular Designated
Servicing Agreement. In the case of a Designated Servicing Agreement under which GMAC Mortgage is
a subservicer and RFC is the servicer, the term “Servicer” shall mean and include GMAC
Mortgage and RFC, individually and collectively.



     “Servicer Termination Event” means, with respect to any Designated Servicing
Agreement, the occurrence of any events or conditions, and the passage of any cure periods and
giving to and receipt by the Servicer of any required notices, as a result of which any Person has
the current right to terminate the Servicer as Servicer under such Designated Servicing Agreement,
or any actual or purported suspension, termination, removal or resignation by or with respect to
GMAC Mortgage or RFC, as the case may be, as the Servicer under such Designated Servicing
Agreement.



     “Servicing Agreement” means any pooling and servicing agreement, sale and servicing
agreement, servicing agreement, subservicing agreement or similar agreement pursuant to which a
Servicer is servicing Loans for and on behalf of an MBS Trust or other Owner, each as amended,
modified or supplemented from time to time. In the case of a subservicing agreement (however
denominated) under which GMAC Mortgage is the subservicer and with respect to which RFC is the
servicer under the related master servicing agreement (however denominated), the term “related
Servicing Agreement”, or words of similar import, shall mean and include such subservicing
agreement and also such related master servicing agreement.



     “Settle” and, with correlative meaning, the terms “Settled” and
“Settlement” means the process of completing the purchase and payment for Purchased
Receivables and related Ancillary Rights on the Effective Date and on any subsequent Settlement
Date in accordance with this Agreement.



     “Settlement Date” means (a) with respect to the Initial Purchased Receivables, the
Effective Date and (b) after the Effective Date, with respect to any Additional Purchased
Receivables, the date on which the sale and purchase of such Additional Purchased Receivable is
Settled pursuant to the terms of this Agreement. Unless otherwise mutually agreed by the Sellers
and Purchaser, each Settlement Date (other than the Effective Date) shall occur on a Business Day
following the Effective Date and prior to the Termination Date and, in the case of P&I Advance
Receivables, shall occur on one Business Day during each month, which Business Day shall be
mutually agreed upon by Sellers and Purchaser from month to month; provided, that as to
each Settlement Date, Sellers have provided Purchaser with all required documentation and
information with respect to the Purchased Receivables to be Settled on such date by no later than
2: 00 P.M. New York City time on the immediately preceding Business Day.



     “Solvent” has the meaning assigned to such term in Section 5(a)(7) of this Agreement.



14









 





     “Stop Event” shall mean any Servicer Termination Event or Unmatured Servicer
Termination Event.



     “T&I Advance” means an advance made by a Seller as Servicer with respect to a Loan
pursuant to such Servicer’s obligation to do so under the applicable Designated Servicing
Agreement, of real estate taxes and assessments, or of hazard, flood or primary mortgage insurance
premiums, which were not timely paid by the related Obligor under the terms of the related Loan.



     “T&I Advance Receivable” means any Receivable representing or relating to the right to
be reimbursed for a T&I Advance.



     “Termination Date” has the meaning provided in Section 10(a).



     “Termination Event” has the meaning assigned to such term in Section 8 of this
Agreement.



     “Trustee” means, as applicable, the ResCap 2010 Indenture Trustee and the ResCap 2015
Indenture Trustee.



     “Trustee Notice” means a Trustee Notice substantially in the form attached hereto as
Exhibit C.



     “UCC” means the Uniform Commercial Code, as in effect in the State of New York.



     “Unmatured Servicer Termination Event” means, with respect to any Designated Servicing
Agreement, the occurrence of any event or the existence of any state of facts or condition which,
with notice and/or the passage of any applicable time period, will result in a Servicer Termination
Event.



     Section 2. Purchase and Sale, Settlement, Collections.




     (a) (1) Purchase and Sale of Initial Purchased Receivables and Additional Purchased
Receivables. On the Effective Date of this Agreement, and subject to the provisions of this
Agreement (including, without limitation, the Maximum Purchase Amount and the satisfaction
of each of the conditions precedent set forth in Section 3 hereof), pursuant to duly
executed Assignments of Purchased Receivables delivered on the Effective Date and on each
Settlement Date thereafter, each of the Sellers hereby sells, assigns, transfers and
otherwise conveys to, and the Purchaser hereby purchases and acquires from each such Seller,
without recourse except as provided herein:




     (A) as of the Effective Date, Ownership Interests, each with an
Ownership Percentage calculated as provided in Section 2(a)(2) below, in all
of such Seller’s right, title and interest, whether now owned or hereafter
acquired, in, to and under its Receivables existing as of the Effective Date
with respect to all Advances made by such Seller as Servicer under the
Designated Servicing Agreements identified on Attachment A to
Schedule 1 (Schedule of Designated Servicing Agreements) hereto
(such Ownership Interests described in this clause (A), the “Initial
Purchased Receivables”),



15









 






     (B) Ownership Interests, each with an Ownership Percentage calculated
as provided in Section 2(a)(2) below, in all of such Seller’s right, title
and interest, whether now owned or hereafter acquired, in, to and under its
Receivables existing as of each Settlement Date after the Effective Date
with respect to any Advances made by such Seller as Servicer under any
Designated Servicing Agreement, to the extent (but only to the extent) such
Receivables have not previously been the subject of purchase and Settlement
hereunder and are identified on the Assignment of Purchased Receivables
delivered by such Seller to the Purchaser on the applicable Settlement Date
(such Ownership Interests in the Receivables described in this clause (B),
the “Additional Purchased Receivables” and, together with the
Initial Purchased Receivables, the “Purchased Receivables”), and




     (C) all monies due or to become due and all amounts received or
receivable with respect to the Purchased Receivables, and all proceeds
(including “proceeds” as defined in the UCC) thereof, together with all
rights of such Seller to enforce such rights to reimbursement constituting
such Purchased Receivables, including, without limitation, the rights to
access and use all books and records related to the Purchased Receivables
(all of the foregoing monies and amounts, proceeds, and rights to enforce,
collectively, the “Ancillary Rights” and, together with the
Purchased Receivables, collectively, the “Purchased Assets”).




In the event that the Maximum Purchase Amount would be exceeded on any Settlement Date,
Purchaser shall have the sole right to designate the Receivables that will be the subject of
the Ownership Interests purchased and Settled on such date within such limits.




          (2) Applicable Ownership Percentage of Ownership Interest. With respect to each
Ownership Interest purchased by Purchaser hereunder, the applicable Ownership Percentage
shall be the fraction, expressed as a percentage, the numerator of which is the Initial
Ownership Amount, and the denominator of which is the Receivable Balance of the Receivable
with respect to which, together with related Ancillary Rights, such Ownership Interest is
purchased.




          (3) Purchase Price. In consideration of the sale, assignment, transfer and conveyance
to the Purchaser of the Purchased Assets upon the terms and subject to the conditions set
forth in this Agreement, the Purchaser shall pay to the Sellers by wire transfer to the
Seller Account (A) in the case of the Initial Purchased Receivables and Ancillary Rights
relating thereto, on the Effective Date, in immediately available funds, an amount equal to
the Purchase Price with respect to the Initial Purchased Receivables, and (B) after the
Effective Date, in the case of each Additional Purchased Receivable and Ancillary Rights
relating thereto, on the related Settlement Date, an amount in immediately available funds
equal to the aggregate Purchase Price for such Purchased Assets transferred on such date.
The computation of the Purchase Price for the Initial Purchased Assets shall assume no
subsequent purchase by Purchaser of Additional Purchased Assets. The Purchase Price for the
Additional Purchased Assets (i) shall be payable on a Settlement Date mutually agreed to by
such Seller and the Purchaser and (ii) shall be an amount equal to the Purchase Price as



16









 






may be adjusted to reflect such factors, if any, as such Seller and the Purchaser
mutually agree will result in a Purchase Price for the Purchased Assets on each such
Settlement Date determined to be the Fair Value of such Purchased Assets. Notwithstanding
any other provision of this Agreement, neither of the Sellers shall be obligated to continue
to sell Purchased Assets to the Purchaser to the extent that such Seller is not paid the
Purchase Price therefore as provided herein.




          (4) Calculation of Net Settlement Amount. To arrive at the net settlement amount (the
“Net Settlement Amount”) for any Settlement Date, the following adjustments shall be
applied by Seller (and verified by Purchaser) to the Purchase Price for the Purchased Assets
being purchased and Settled on such Settlement Date:




     (A) the amount of any adjustment to the Purchase Price agreed upon
pursuant to Section 2(a)(3) shall be deducted in arriving at the Net
Settlement Amount; and




     (B) any amount due Purchaser in respect of the Interim Collections
Settlement for such Settlement Date shall be deducted in arriving at the Net
Settlement Amount.




If the Net Settlement Amount is positive, then, by no later than 3:30 P.M. New York City
time on the Settlement Date, Purchaser shall pay to the Sellers by wire transfer to the
Seller Account for the benefit of Sellers, as their interests may appear, the Net Settlement
Amount. If the Net Settlement Amount is negative, then, by no later than 3:30 P.M. New York
City time on the Settlement Date, the Sellers shall wire transfer to the Purchaser
Remittance Account, in immediately available funds, the amount by which the Net Settlement
Amount is less than zero. The respective obligations of Purchaser and Sellers to perform
wire transfers of the Net Settlement Amount as set forth in the immediately preceding two
sentences are dependent upon a determination and communication to both parties of the then
applicable Net Settlement Amount on or before 2:00 p.m. New York City time on the date on
which such wire transfer is expected to be made, provided that, if such
determination and communication occurs after 2:00 p.m. New York City time of such date, the
applicable wire transfer shall be made on or before 12:00 p.m. New York City time of the
succeeding Business Day.




          (5) Purchaser Remittance Account and Purchased Assets Property of Purchaser.
Notwithstanding any other provision of this Agreement to the contrary, all funds in the
Purchaser Remittance Account shall be the sole property of Purchaser and Purchaser may
withdraw as its own property all or any funds in the Purchaser Remittance Account or at any
time without notice to Sellers.




          (6) No Assumption of Obligations By Purchaser. Any purchase, sale, assignment,
transfer and conveyance hereunder does not constitute an assumption by the Purchaser of any
obligations of the Sellers or any other Person to any Obligor or Owner or to any other
Person in connection with the Purchased Receivables or any other agreement or instrument
relating to the Purchased Receivables or any Non-Purchased Interest in any Receivables or
related Ancillary Rights.



17









 






          (7) Maximum Purchased Amount; Suspension of Purchaser’s Obligations; Suspension of
Seller’s Obligation to Sell. Notwithstanding any other provision of this Agreement to the
contrary, the Purchaser shall not be obligated to purchase or Settle the purchase of, and
Seller shall not be obligated to sell, any Ownership Interests in Receivables or related
rights or interests (A) to the extent such purchase or Settlement would result in the
Maximum Purchase Amount being exceeded, or (B) if the Seller and Purchaser do not agree upon
(i) an adjustment to the Purchase Price on any Settlement Date, if applicable, or (ii) in
the case of the Purchase Price for the first purchase of Ownership Interests in T&I Advance
Receivables or Corporate Advance Receivables, the Purchase Price Rate applicable thereto.




In the event (x) the Purchaser or either Seller exercises its rights hereunder to cease or
suspend its purchase or sale of any Receivables (including, without limitation, by reason of
any Incipient Termination Event or Stop Event or failure to agree upon the applicable
Purchase Price or any adjustments thereto or (y) the purchase of any Ownership Interests in
any Receivables cannot be or is not for any reason Settled on the next succeeding Settlement
Date after such Receivables arise (including, without limitation, to avoid exceeding the
Maximum Purchase Amount) other than by reason of an event described in the foregoing clause
(x), then, upon and after any such event under the foregoing clauses (x) or (y), the
Purchaser shall have no obligation to purchase, Settle or otherwise pay for or complete the
purchase of, and the related Seller shall have no obligation to sell or transfer, any
Ownership Interest in such Receivables or related Ancillary Rights with respect to such
Receivables, and, at the request of the related Seller, Purchaser shall release and reassign
to the related Seller, without representation or warranty of any kind, nature or
description, and without recourse, any right, title or interest in such Receivables and
related Ancillary Rights theretofore created under this Agreement or any other Purchase
Document.




     (b) (1) Interim Collections Settlements; Delivery of Collections Reports. Sellers as
Purchaser’s Agent, shall prepare and deliver to Purchaser a Collections Report with respect
to all Advance Reimbursement Amounts relating to Receivables arising from Advances made
under each Designated Servicing Agreement with respect to which Purchaser has purchased an
Ownership Interest, to the extent such Advance Reimbursement Amounts are in its possession
or under its control, including any such amounts permitted to be withdrawn from the related
Owner Collection Accounts (such amounts, the “Collections”). Until the Full P&I
Tracking Date with respect to a given Designated Servicing Agreement, such Collections
Report with respect to Collections relating to P&I Advance Receivables shall only be
required to be delivered on the same date in each month following the Effective Date or
other date upon which Purchaser first Settles its purchase of an Ownership Interest in any
P&I Advance Receivables arising under such Designated Servicing Agreement. After the Full
P&I Tracking Date with respect to a Designated Servicing Agreement, and, in any event with
respect to Collections relating to T&I Advance Receivables or Corporate Advance Receivables,
the Collections Report shall be delivered each Business Day.




          (2) Collections Settlement Date; Remittances to Purchaser’s Remittance Account. By no
later than 2:00 P.M. New York City time on each day when a Collections Report is required to
be delivered under Section 2(b)(1) (each such day, a “Collections 



18









 






Settlement Date”), Sellers, as Purchaser’s Agent, shall effect a remittance to
the Purchaser Remittance Account, in immediately available funds (A) out of the Collections
attributable to P&I Advance Receivables arising under a given Designated Servicing
Agreement, an amount thereof equal to the product of (i) the Interim P&I Settlement
Percentage determined as of such Collections Settlement Date with respect to such Designated
Servicing Agreement and (ii) the amount of such Collections attributable to P&I Advance
Receivables arising under such Designated Servicing Agreement, and (B) out of the
Collections attributable to T&I Advance Receivables or Corporate Advance Receivables, the
full amount thereof in which Purchaser has purchased an Ownership Interest; provided, that
any amount otherwise to be remitted to the Purchaser Remittance Account under this
Section 2(b)(2) may instead be applied as a deduction in arriving at the Net Settlement
Amount as provided in Section 2(a)(4) if the Collections Settlement Date is also a
Settlement Date for the purchase of any Purchased Receivables by Purchaser.




          (3) Remittances to MBS Collection Accounts. Sellers as Servicers shall also remit or
otherwise restore to the applicable MBS Trust Collection Accounts, such portions of the
Collections as are attributable to the Non-Purchased Interests in P&I Advance Receivables
that were funded with Amounts Held for Future Distribution previously withdrawn by a Seller
as Servicer under the related Designated Servicing Agreements on each date and as required
pursuant to the applicable Designated Servicing Agreement, and Sellers shall remit to the
applicable Owners or Owner Collection Accounts, such portions of the Collections as are
attributable to any other Non-Purchased Interest in any Receivable that is not a
Non-Purchased Seller Interest on each date and as required pursuant to the applicable
Designated Servicing Agreement, provided, that nothing herein contained shall direct or
restrict the disposition of any portion of the Collections that is attributable to any
Non-Purchased Seller Interest.




          (4) No Withdrawal or Transfers by Sellers Between Collection Settlement Dates. During
any period between Collections Settlement Dates, Sellers shall not withdraw or transfer any
Collections from any Owner Collection Account, and such portions of the Collections as are
attributable to the Purchased Receivables shall be deemed held in trust by Sellers as
Purchaser’s Agent for the benefit of Purchaser.




     (c) Reconciliation of Interim Collections Settlements. Sellers and Purchaser mutually
agree and acknowledge that the procedures for allocating Collections in respect of P&I
Advance Receivables set forth in Section 2(b) are interim settlements only that are based on
the parties’ reasonable estimates of the relative interests in Collections relating to P&I
Advance Receivables with respect to which Purchaser has purchased an Ownership Interest.
All interim settlements shall be subject to reconciliation and adjustment by the parties to
give effect to the actual Ownership Interests in P&I Advance Receivables purchased by
Purchaser from Sellers and any Non-Purchased Interests therein, as well as, to the extent
applicable, the allocation requirements of the Designated Servicing Agreements. Such
reconciliation and the making of adjusting payments between the Sellers, on the one hand,
and the Purchaser, on the other hand, shall be effected as soon as practicable following the
Full P&I Tracking Date for each Designated Servicing Agreement. If any other adjustments
are necessary in order to give effect to the Ownership Interests purchased by



19









 






Purchaser in any other Receivables, the parties shall cooperate with each other and
make adjustment payments as appropriate.




     (d) Initial Designated Servicing Agreements. The Designated Servicing Agreements as of
the Effective Date are identified on Attachment A to Schedule 1 (Schedule of
Designated Servicing Agreements) attached hereto by a unique identifying number. Such
Schedule 1 hereto is referred to herein as the “Designated Servicing Agreement
Schedule”.




     (e) Added Servicing Agreements. At its option, and with the consent of the Purchaser,
the Sellers may designate additional Servicing Agreements as Designated Servicing Agreements
under this Agreement (each such Servicing Agreement so designated being sometimes referred
to herein as an “Added Servicing Agreement”), by execution and delivery by the
Sellers and the Purchaser of an Assignment of Purchased Receivables, substantially in the
form of Exhibit A attached hereto, together with a Schedule of Designated Servicing
Agreements, substantially in the form of Schedule 1 attached thereto (it being understood
and agreed that the Designated Servicing Agreement Schedule shall be so supplemented).
Subject to the provisions of this Agreement (including, without limitation, the Maximum
Purchase Amount and the satisfaction of each of the conditions precedent set forth in
Section 3 hereof), upon execution by each of the Sellers and the Purchaser of the related
Assignment of Purchased Receivables, the Sellers shall thereupon be deemed to sell, transfer
and otherwise convey to the Purchaser, without recourse except as set forth herein, all of
such Seller’s right, title and interest in, to and under the Purchased Receivables and
related Ancillary Rights arising from or relating to Advances made by Sellers as Servicers
under such Added Servicing Agreements. Such sale and purchase shall be Settled on each
Settlement Date occurring thereafter in accordance with the provisions of Section 2 to the
same extent as applicable to the Purchased Receivables and related Ancillary Rights arising
from or relating to Advances made by Sellers as Servicers under the Designated Servicing
Agreements listed on Attachment A to Schedule 1 (Schedule of Designated Servicing
Agreements) hereto on the Effective Date, including, without limitation, satisfaction of
each of the conditions precedent set forth in Section 3 hereof.




     (f) Removal of Servicing Agreements. Upon the occurrence or existence of a Stop Event
with respect to a Designated Servicing Agreement, Purchaser shall have the right to require
the removal of such Servicing Agreement as a Designated Servicing Agreement under this
Agreement immediately upon such occurrence or existence or at any time thereafter by written
notice to the Seller who is the Servicer thereunder, and, immediately upon the giving of
such notice, such Servicing Agreement shall be deemed so removed (each such Servicing
Agreement so removed being sometimes referred to herein as a “Removed Servicing
Agreement”). As soon as possible, and in any event prior to the next Settlement Date
following such notice, the Purchaser and the Sellers shall execute and deliver to each other
an updated Designated Servicing Agreements Schedule. Upon such removal, the Purchaser shall
automatically and immediately have no obligation to purchase, Settle or otherwise pay for or
complete the purchase of any Ownership Interests in Receivables arising from Advances made
under the Removed Servicing Agreement or as to any related Ancillary Rights with respect to
such Receivables, and, at the request of the related Seller, Purchaser shall release and
reassign to the related Seller, without representation or warranty of any kind, nature or
description, and without recourse, any right, title or interest in such



20









 






Receivables and related Ancillary Rights theretofore created under this Agreement or
any other Purchase Document but as to which Settlement has not yet occurred.




     (g) Books and Records. Each of the Sellers shall, at its own expense, on or prior to
the (A) Effective Date, in the case of the Initial Purchased Receivables, and (B) the
applicable Settlement Date, in the case of Additional Purchased Receivables, deliver to
Purchaser an Assignment of Purchased Receivables applicable to such Settlement Date and
indicate in its books and records (including its computer files) that all Purchased
Receivables created in connection with such Designated Servicing Agreements and the related
Ancillary Rights have been sold to the Purchaser in accordance with this Agreement. Each of
the Sellers agrees that it shall not alter the indication referenced in this paragraph with
respect to any Designated Servicing Agreement. If a third party, including a potential
purchaser of Receivables, should inquire, such Seller will promptly indicate that the
Purchased Receivables and related Ancillary Rights have been sold, assigned and transferred
in accordance with this Agreement and will claim no ownership interest therein.




     (h) Designated Servicing Agreements Schedule. The Designated Servicing Agreement
Schedule, as supplemented and amended, collectively shall be marked as Schedule 1
(Schedule of Designated Servicing Agreements) to this Agreement, shall be incorporated into
and made a part of this Agreement and shall be updated by the Sellers on each date on which
a Designated Servicing Agreement is added or removed.




     (i) Assignment of Purchased Receivables. On each Settlement Date on which the
Purchaser shall pay the related Purchase Price or otherwise Settle for any Purchased
Receivables and related Ancillary Rights, each of the Sellers and the Purchaser shall
execute an Assignment of Purchased Receivables which shall identify the Receivables with
respect to the Designated Servicing Agreements described therein and any related Ancillary
Rights that are the subject to the purchase by Purchaser of an Ownership Interest in
accordance with provisions hereof and any other Purchase Document as of such Settlement
Date.




     (j) Fair Value. Sellers and Purchaser acknowledge, confirm and agree that the Purchase
Price paid for the Purchased Receivables purchased by Purchaser from each Seller constitutes
Fair Value. Without limiting the foregoing, each of the Sellers and Purchaser agree that
such Purchase Price paid constitutes reasonably equivalent value and fair consideration for
the sale and transfer by each Seller to the Purchaser of such Purchased Receivables and the
related Ancillary Rights, no such purchase and sale has been or is being made for or on
account of an antecedent debt and no such purchase and sale has been or is being or will be
made with any intent to hinder, delay or defraud any of such Seller’s creditors.




     (k) No Purchaser Liability; Indemnification by Sellers. Nothing contained in this
Agreement shall impose upon Purchaser any duty to see to the proper treatment or handling by
Sellers as Servicers of Advances, Collections or otherwise, nor shall Purchaser have any
liability for any act or omission by Sellers as Servicers with respect to the proper
treatment or handling by Sellers of Advances, Collections or otherwise. Each of the Sellers
shall indemnify and hold Purchaser, and its officers, directors, employees, shareholders,
agents and attorneys (each and “Indemnitee” and, collectively, the
“Indemnitees”) harmless, from



21









 






and against any claim, liability, loss, damage, cost or expense, including reasonable
attorneys’ fees and legal expenses in any way arising out of or relating to any breach of
any of such Seller’s representations, warranties or covenants under this Agreement or any
other Purchase Document.




     (l) No Conflict With Sellers’ Obligations as Servicer Under Servicing Agreements.
Nothing contained in this Agreement shall require either Seller as Servicer under any
Servicing Agreement to take any action or omit to take any action which is expressly
prohibited under such Servicing Agreement; it being acknowledged by Sellers that Sellers
shall promptly notify Purchaser in writing if any such prohibition exists at any time and
from time to time.



          Section 3. Conditions Precedent.





     The obligation of the Purchaser to purchase, and the obligation of Sellers to sell, any
Receivables and the Purchased Assets in accordance with the terms of this Agreement, on the
Effective Date and on each Settlement Date thereafter, is subject to the prior fulfillment of each
of the following conditions set forth below and the accuracy of all the representations and
warranties of each of the Sellers set forth herein and in the Purchase Documents.




          (a) Conditions Precedent to Effectiveness and Purchaser’s Obligation to Purchase the Initial
Purchased Receivables. In addition to the conditions precedent set forth in Section 3(b) below, the
obligation of the Purchaser to purchase the Initial Purchased Receivables on the Effective Date is
subject to the following conditions precedent:




               (1) Execution of this Agreement. The parties hereto shall have executed this
Agreement.




               (2) Closing Deliveries. The Purchaser shall have received, in form and substance
satisfactory to the Purchaser, all documents, instruments and information identified on
Schedule 4 (Closing Checklist Schedule) attached hereto and all other agreements,
notes, certificates, orders, authorizations, financing statements and other documents which
the Purchaser may at any time reasonably request.




               (3) Maximum Purchase Amount. After giving effect to the purchase of the Initial
Purchased Receivables, the Maximum Purchase Amount will not be exceeded.




               (4) Performance of Agreements. Each Seller shall have performed in all material
respects all agreements and satisfied all conditions which any Purchase Document provides
shall be performed by it on or before such date.




               (5) No Prohibition. No order, judgment or decree of any court, arbitrator or
Governmental Authority shall purport to enjoin or restrain the Purchaser or either Seller
from entering into this Agreement or any other Purchase Document and/or from effecting any
purchase and sale of any Receivable or Purchased Asset as contemplated hereby.



22









 






               (6) Delivery of Release Agreement. The Purchaser shall have received a duly executed
copy of a Release Agreement from each of the ResCap Senior Secured Credit Facility Agents.




               (7) Delivery of Consent Agreement. The Purchaser shall have received a duly executed
copy of a Consent Agreement to the Purchase Documents and the transactions contemplated
hereunder and thereunder from the ResCap Senior Secured Credit Facility Agents, in form and
content satisfactory to Purchaser.




               (8) UCC Searches. The Purchaser shall have received certified copies of UCC Searches,
or other evidence satisfactory to it, listing all effective financing statements which name
any of the Sellers (under such Seller’s present name, any previous name or any trade or
doing business name) as debtor and covering all such jurisdictions as the Purchaser shall
reasonably determine.




               (9) UCC-1s, etc. The Purchaser shall have received evidence satisfactory to it that,
upon the filing and recording of instruments delivered by each of the Sellers, the Purchaser
for its own benefit and the benefit of any of its assigns shall have a valid and perfected
ownership interest in the Purchased Receivables and all Ancillary Rights, free and clear of
all Adverse Claims, including copies of UCC and other applicable personal property Lien
search reports and all effective financing statements listed therein, in each case as may be
reasonably required by the Purchaser.




               (10) Release of Liens. The Purchaser shall be satisfied that immediately before or
simultaneously with giving effect to the purchase of such Receivables by Purchaser, all
Liens on and in respect of such Receivables shall be have released.




               (11) Payment of Purchaser’s Costs and Expenses. The Purchaser shall have received, in
accordance with Section 10(c), payment of all reasonable costs and expenses requested by the
Purchaser to be paid or reimbursed by the Sellers on or prior to the Effective Date.




          (b) Conditions Precedent to Purchaser’s Obligations to Purchase any Purchased Receivables.
The obligation of the Purchaser to purchase any Ownership Interest in a Receivable is subject to
the further conditions precedent that on the date of such purchase the following statements shall
be true and correct:




               (1) All of the representations and warranties of each of the Sellers under Section 5(a)
of this Agreement shall be true and correct at such time in all material respects as if made
at such time, both before and immediately after giving effect to such purchase and the
application of the proceeds therefrom, and after giving effect to any updates to information
provided to the Purchaser in accordance with the terms of such representations and
warranties; and




               (2) No Incipient Termination Event or Termination Event has occurred and is continuing,
or would result from such purchase or from the application of any proceeds therefrom; and



23









 






               (3) The Purchaser shall have received such other certificates, reports, statements,
opinions of counsel or other documents as the Purchaser may reasonably request.




     Section 4. Sellers as Purchaser’s Agents and Appointment of Purchaser as Attorney-in-Fact.




     Sellers as Purchaser’s Agents. The servicing, administering and collection of the Receivables
shall be conducted by the applicable Seller as Servicer as agent of the Purchaser (in such
capacity, individually and collectively, “Purchaser’s Agent”), in accordance with this
Agreement and the terms and conditions of each applicable Designated Servicing Agreement. Each
Purchaser’s Agent hereby agrees to perform, take or cause to be taken all such action as may be
necessary or advisable (or as instructed by the Purchaser) to collect each Receivable from time to
time all in accordance with the terms and conditions of the applicable Designated Servicing
Agreement and applicable laws, rules and regulations and with the care and diligence which each
Purchaser’s Agent employs in servicing similar receivables for its own account. The Purchaser
hereby appoints each Purchaser’s Agent as its agent to enforce the Purchaser’s rights and interests
in, to and under the Receivables and the Purchased Assets with respect thereto. The Purchaser may
revoke and terminate the appointment of either or both of the Sellers as the Purchaser’s Agent at
any time upon thirty (30) days prior written notice to the applicable Seller or Sellers and Owner
or Owners.




     Section 5. Representations, Warranties and Certain Covenants of Sellers.




     Each of the Sellers hereby makes on its own behalf (severally and not jointly) the following
representations and warranties for the benefit of the Purchaser and its assignees, on which the
Purchaser is relying in purchasing and accepting the Purchased Receivables and Purchased Assets and
in executing this Agreement. The representations and warranties in Section 5(a) are made as of the
date of this Agreement, and as of each Settlement Date. The representations and warranties in
Section 5(b) are made on the Effective Date with respect to the Initial Purchased Receivables and
as of the applicable Settlement Date with respect to the Additional Purchased Receivables that are
purchased on such Settlement Date. Such representations and warranties shall survive the sale,
assignment, transfer and conveyance of any Purchased Receivables to the Purchaser and are as
follows:




          (a) General Representations, Warranties and Covenants.




          (1) Organization and Good Standing. Such Seller (A) is duly formed, validly existing
and in good standing under the laws of the jurisdiction in which it was formed, (B) has all
governmental licenses, authorizations, consents and approvals, necessary to own its assets
and carry on its business as now being or as proposed to be conducted, (C) is qualified to
do business and is in good standing in all other jurisdictions in which the nature of the
business conducted by it makes such qualification necessary, and (D) is in compliance in
with all requirements of law, except where the failure to licensed, qualified or in good
standing in any jurisdiction, or where the failure to be in compliance with the laws of any
jurisdiction, would not reasonably be expected to have a Material Adverse Effect.



24









 






          (2) Power and Authority; Binding Obligation. Such Seller has all necessary limited
liability company or other power, authority and legal right to execute, deliver and perform
its obligations under this Agreement and each other Purchase Document to which it is a
party; the execution, delivery and performance by such Seller of this Agreement to which it
is a party has been duly authorized by all necessary limited liability company or other
action on its part; and this Agreement and each other Purchase Document has been duly and
validly executed and delivered by such Seller and constitutes a legal, valid and binding
obligation of such Seller, enforceable against such Seller in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency marshalling and
other similar laws governing the rights of creditors generally and by general principles of
equity.




          (3) No Violation. Neither (A) the execution and delivery of this Agreement or any
other Purchase Document to which such Seller is a party, nor (B) the consummation of the
transactions herein and therein contemplated in compliance with the terms and provisions
hereof and/or thereof, as the case may be, will conflict with or result in a breach of the
limited liability company agreement or other constitutive documents, as applicable, of
either Seller, or any applicable law, rule or regulation, or any order, writ, injunction or
decree of any governmental authority, or other agreement or instrument to which such Person,
or any of its subsidiaries, is a party or by which any of them or any of their property is
bound or to which any of them or their property is subject, or constitute a default under
any such agreement or instrument, or (except for the liens created or permitted pursuant to
this Agreement or any other Purchase Document to which such Seller is a party) result in the
creation or imposition of any lien upon any property of such Person, pursuant to the terms
of any such agreement or instrument, except where such conflict or breach, default or lien
would not reasonably be expected to have a Material Adverse Effect.




          (4) No Proceedings. There are no proceedings or investigations pending or, to the best
knowledge of such Seller, threatened, against such Seller before any governmental authority
(A) asserting the invalidity of this Agreement or any other Purchase Document, (B) seeking
to prevent the consummation of any of the transactions contemplated by this Agreement or any
other Purchase Document, (C) seeking any determination or ruling that, in the reasonable
judgment of such Seller, would materially and adversely affect the performance by such
Seller of its obligations under this Agreement or any other Purchase Document, or (D)
seeking any determination or ruling that, in the reasonable judgment of such Seller, would
materially and adversely affect the validity or enforceability of this Agreement or any
other Purchase Document.




          (5) No Consents Required. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and performance by such
Seller of or compliance by such Seller with this Agreement, the sale of the Receivables or
the consummation of the transactions contemplated by this Agreement, except for consents,
approvals, authorizations and orders which have been obtained, except for filings and
recordings in respect of this Agreement.




          (6) Information. No written statement, report or other document furnished or to be
furnished pursuant to this Agreement (including, without limitation, any




25











 






Schedule hereto) contains or will contain any statement that is or will be inaccurate
or misleading in any material respect. There are no facts relating to and known by such
Seller which when taken as a whole may impair the ability of such Seller to perform its
obligations under this Agreement or any other Purchase Document, which have not been
disclosed herein or in the certificates and other documents furnished by or on behalf of
such Seller pursuant hereto or thereto specifically for use in connection with the
transactions contemplated hereby or thereby. Without limiting the foregoing, all
information for Loan-level tracking, reporting and reconciliation as to Advances,
Receivables and Collections is currently captured on the Sellers’ books and records, except
that, prior to the Full P&I Tracking Date, some of the necessary information may not exist
in a readily accessible form or system to permit daily Loan-level tracking, reporting and
reconciliation as to P&I Advances, P&I Advance Receivables and Collections relating thereto.




          (7) Solvency. Each of the Sellers is Solvent. The amount of consideration being
received by each Seller upon its sale and transfer of any Receivable to the Purchaser
constitutes reasonably equivalent value and fair consideration for such Receivable. No
Seller is selling or transferring any Receivable with any intent to hinder, delay or defraud
any of its creditors. As used herein, the term “Solvent” means, with respect to
each of the Sellers on a particular day, that on such date (i) the value of the assets of
such Seller, taking into account the fair value of assets accounted for on a fair value
basis and the carrying value of other assets, is greater than the total amount of the
liabilities of such Seller (including the fair value of liabilities), (ii) such Seller is
able to realize upon its assets and pay its debts and other liabilities as they mature,
assuming an orderly disposition, and (iii) such Seller does not have unreasonably small
capital with which to conduct its business..




          (8) Remittance Requirements to MBS Collection Accounts. Each Designated Servicing
Agreement expressly requires the Sellers as Servicers to remit or otherwise restore to the
applicable MBS Trust Collection Accounts such portions of the Collections as are
attributable to the P&I Advance Receivables that are funded with Amounts Held for Future
Distribution withdrawn by a Seller as Servicer under the applicable Designated Servicing
Agreement.



          (b) Representations, Warranties and Covenants Concerning the Receivables.





          (1) Eligible Receivables. Each Receivable is an Eligible Receivable, and each
Receivable and all Ancillary Rights related thereto conveyed to the Purchaser has been
conveyed to the Purchaser free and clear of any Adverse Claim (other than any lien for
municipal or other local taxes of such Seller if such taxes are not then due and payable).
This Agreement in the case of the Initial Purchased Receivables and all Ancillary Rights
related thereto and, in the case of any Additional Purchased Receivables and all Ancillary
Rights related thereto, the applicable Assignment of Purchased Receivables, constitutes an
absolute sale to the Purchaser of all of such Seller’s absolute ownership in, to and under
such Receivables and related Ancillary Rights, and such sale is perfected under the
applicable UCC.




          (2) Title to Receivables. Immediately prior to the transfer and sale to the Purchaser
as herein contemplated (or, in case of any Receivable subject to the ResCap Senior



26









 







Secured Lien, the ResCap 8.50% Noteholders’ Lien or the ResCap 9.625% Noteholders’
Lien, contemporaneously with the purchase thereof by the Purchaser hereunder the release of
all such Liens), such Seller had good and marketable title to each Receivable, free and
clear of all Adverse Claims.




          (3) Assignment Permitted under Servicing Agreements. The rights to reimbursement for
the Advances under each Designated Servicing Agreement may be assigned to the Purchaser as
contemplated hereunder and such assignment will not violate the terms or require any consent
under the related Designated Servicing Agreement or any other document or agreement to which
such Seller is a party or to which its assets or properties are subject.




          (4) Information Set Forth in Schedules. The information set forth in any Schedule to
this Agreement, any Schedule of Designated Servicing Agreements and in any Schedule attached
to any Assignment of Purchased Receivables is true and correct with respect to any
Receivables in existence as of its date.




          (5) No Defenses. As of the applicable Settlement Date, each Receivable represents
valid entitlement to be paid, has not been repaid in whole or in part or been compromised,
adjusted, extended, satisfied, subordinated, rescinded, waived, amended or modified, and is
not subject to compromise, adjustment, extension, satisfaction, subordination, rescission,
set-off, counterclaim, defense, waiver, amendment or modification by any Person.




          (6) No Government Receivables. No Receivable is due from the United States of America
or any State or from any agency, department or instrumentality of the United States of
America or any State.




          (7) No Pending Proceedings. There are no proceedings pending, or, to the best of such
Seller’s knowledge, threatened, wherein any governmental agency has (A) alleged that any
Receivable is illegal or unenforceable, (B) asserted the invalidity of any Receivable or (C)
sought any determination or ruling that might adversely affect the payment or enforceability
of any Receivable.




          (8) Sellers’ Reporting Obligations. With respect to each Receivable, such Seller is
not aware of any respect in which such Seller may be unable to perform its reporting
obligations as set forth herein.




          (9) Enforceability; Compliance with Laws. Each Receivable is enforceable in accordance
with its terms set forth in the related Designated Servicing Agreement. Each Advance
complies with all applicable laws, including those relating to consumer protection, is valid
and enforceable and is not subject to any set-off, counterclaim or other defense to payment
by the Obligor, the related Owner or any other Person.




          (10) No Consent Required. Each Receivable is assignable by such Seller and its
successors and assigns, without the consent of any other Person (except any such consent
that shall have been obtained).



27









 





          (c) Representations and Warranties of the Purchaser. As of the Effective Date and each
Settlement Date, the Purchaser hereby represents and warrants to, and agrees with, the Sellers
that:





          (1) Organization and Good Standing. The Purchaser is a limited liability company duly
formed and validly existing under the laws of the State of Delaware, and has, in all
material respects, full power and authority to own its properties and conduct its business
as such properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement.




          (2) Due Authorization. The execution and delivery by the Purchaser of this Agreement
and any other document or instrument delivered pursuant hereto, including any Assignment of
Purchased Receivables, to which the Purchaser is a party, and the consummation by the
Purchaser of the transactions provided for in this Agreement and any such Assignment of
Purchased Receivables, have been duly authorized by the Purchaser by all necessary company
action on part of the Purchaser.




          (3) No Conflict or Violation. The execution and delivery by the Purchaser of this
Agreement, the performance by the Purchaser of the transactions contemplated by this
Agreement and the fulfillment by the Purchaser of the terms of this Agreement applicable to
the Purchaser, will not conflict with or violate any law applicable to the Purchaser or
conflict with, result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust or other instrument to which the
Purchaser is a party or by which it or any of its properties are bound.




          (4) No Proceedings. There are no proceedings or investigations pending or, to the best
knowledge of the Purchaser, threatened, against the Purchaser before any governmental
authority (A) asserting the invalidity of this Agreement or any other Purchase Document, (B)
seeking to prevent the consummation of any of the transactions contemplated by this
Agreement or any other Purchase Document, (C) seeking any determination or ruling that, in
the reasonable judgment of the Purchaser, would materially and adversely affect the
performance by the Purchaser of its obligations under this Agreement or any other Purchase
Document, or (D) seeking any determination or ruling that, in the reasonable judgment of the
Purchaser, would materially and adversely affect the validity or enforceability of this
Agreement or any other Purchase Document.




          (5) All Consents. All authorizations, consents, orders or approvals of or
registrations or declarations with any governmental authority required to be obtained,
effected or given by the Purchaser in connection with the execution and delivery by the
Purchaser of this Agreement and the performance by the Purchaser of the transactions
contemplated by this Agreement have been duly obtained, effected or given and are in full
force and effect.



          (d) Survival. It its understood and agreed that the representations and warranties and
covenants set forth in this Section 5 shall survive sale of the Purchased Assets to the Purchaser.
Upon discovery by any Seller of a breach of any of the foregoing representations and warranties in




28









 




this Section 5, such Seller shall give written notice to the Purchaser within three (3)
Business Days following such discovery.




     Section 6. Specific Remedies Upon Breach of Representations, Warranties and Covenants
Concerning the Receivables.



          (a) The Sellers shall notify the Purchaser and its assignees promptly and, in any event, no
later than five (5) days (it being acknowledged and agreed that any failure to provide such notice
or any failure to provide such notice within such time shall be an Incipient Termination Event
hereunder) in writing (or, in the event such discovery is by the Purchaser, the Purchaser shall
notify the Sellers in writing promptly), upon the discovery of any breach of a Seller’s
representations and warranties in Section 5(b) above that pertain to a Receivable, which breach
materially and adversely affects the interests of the Purchaser and its assignees in the related
Receivables (such written notice being referred to herein as a “Receivable R&W Breach
Notice”). Unless such breach shall have been waived in writing by the Purchaser or such breach
shall have been cured (to the extent, and only to the extent, such breach is curable) within ten
(10) days after the Purchaser’s receipt or delivery to the Sellers (as the case may be) of such
Receivable R&W Breach Notice, such that the relevant representation and warranty shall be true and
correct in all material respects as if made on such day, and the Sellers shall have delivered to
the Purchaser and its designees an Officer’s Certificate describing the nature of such breach and
the manner in which the relevant representation and warranty became true and correct (such written
notice being referred to herein as a “Receivable R&W Cure Notice”), the Sellers shall
repurchase the Ownership Interest in each affected Receivable from the Purchaser or its assignee
for a repurchase price equal to the Ownership Amount of the Purchaser’s Ownership Interests
affected Receivable.




          (b) The Sellers shall accept reassignment of any Purchased Receivables described in Section
6(a) from the Purchaser on the date on which such Purchased Receivables are reassigned to the
Purchaser pursuant to such Section, and shall pay for such reassigned Purchased Receivables by
paying to the Purchaser in immediately available funds an amount equal to the unpaid balance of
such Purchased Receivables. Upon reassignment of such Purchased Receivables, the Purchaser shall
automatically and without further action sell, transfer, assign, set-over and otherwise convey to
the applicable Seller, without recourse, representation or warranty, all the right, title and
interest of the Purchaser in and to such Purchased Receivables, all monies due or to become due and
all amounts received or receivable after the date of reassignment with respect thereto, all
collections after the date of reassignment with respect thereto, and all proceeds (including
“proceeds” as defined in the UCC) thereof. Such reassigned Purchased Receivables shall be treated
by the Purchaser as collected in full as of the date on which they were reassigned. The Purchaser
shall execute such documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by the Sellers to effect the conveyance of such Purchased
Receivables and other property pursuant to this Section 6(b).




          (c) The Purchaser’s obligation (if any) to purchase any Ownership Interest in Receivables
shall automatically be suspended (and any purchases of any Ownership Interest in Receivables shall
be at the sole discretion of the Purchaser) during the period beginning upon the earlier of (1) the
date of Purchaser’s receipt (or the date of Purchaser’s delivery to the Sellers, as the case may
be) of a Receivable R&W Breach Notice and (2) the date upon which such Receivable R&W Breach Notice
was required to be delivered by the Sellers pursuant to Section 6(a) and ending




29









 




on the earlier of (A) the date the Purchaser receives a Receivable R&W Cure Notice with
respect thereto and (B) the date the Sellers shall have repurchased such affected Receivable.




     Section 7. General Covenants of Sellers.



     Each of the Sellers covenants and agrees that from the date of this Agreement until the
termination of this Agreement:



          (a) Information; Reporting. The Sellers shall provide the Purchaser with the financial
statements, reports and other items identified on Schedule 3 (Reporting Schedule) attached
to this Agreement (as the same may be amended, modified or supplemented from time to time by the
Purchaser, the “Reporting Schedule”).




          (b) No Liens, Etc. Against Receivables and Trust Property. Such Seller hereby covenants that,
except for the transfers hereunder and as of any date on which Ownership Interests in Receivables
are purchased, it will not sell, pledge, assign or transfer to any other Person, or grant, create,
incur or assume any Lien on any of the Receivables or related Ancillary Rights, or any interest
therein. Such Seller shall notify the Purchaser and its designees of the existence of any Lien
(other than as provided above) on or Adverse Claim with respect to any Purchased Receivable or any
of the other Purchased Assets immediately upon discovery thereof; and such Seller shall defend the
right, title and interest of the Purchaser and its assignees in, to and under the Purchased
Receivables and the other Purchased Assets against all claims of third parties claiming through or
under such Seller. Such Seller shall take all actions as may be necessary to ensure that the
ownership of the Purchased Receivables and the other Purchased Assets is conveyed to the Purchaser
pursuant to this Agreement. In addition, such Seller shall take all actions as may be necessary to
ensure that, if this Agreement were deemed to create, or does create, a security interest in any
Purchased Receivables or any of the other Purchased Assets, such security interest would be a
perfected security interest of first priority under applicable law and will be maintained as such.




          (c) Prior Notice of Change of Name, Locations, etc. Such Seller shall provided the Purchaser
with at least thirty (30) days advance written notice of any: (1) change of name or of any new
trade name or fictitious business name of such Seller, (2) change of principal place of business of
such Seller, (3) change in the location of such Seller’s books and records, (4) new location for
such Seller’s books and records, or (5) changes in either Seller’s state or other jurisdiction of
organization or its organizational identification number.




          (d) Keeping of Records and Books of Account. Such Seller shall maintain accurate, complete
and correct documents, books, records and other information which is reasonably necessary for the
collection of all Receivables arising under a Designated Servicing Agreement (including, without
limitation, records adequate to permit the prompt identification of each new Receivable and all
collections of, and adjustments to, each existing Receivable).




          (e) Inspection. Such Seller shall permit the Purchaser and any authorized representatives
designated by the Purchaser to visit and inspect any of the properties of such Seller or any of its
subsidiaries, including their financial and accounting records (including all documents, books,
records and information referred to in the foregoing Section 7(f)), and, in conjunction with such
inspection, to make copies and take extracts therefrom, and to discuss their affairs, finances and





30









 







business with their officers and such Seller’s accountants, at such reasonable times during
normal business hours and as often as may be reasonably requested.




          (f) Taking of Necessary Actions. Such Seller shall perform all actions necessary or
reasonably requested by Purchaser to sell, transfer, convey and absolutely assign the Purchased
Receivables and the other Purchased Assets to the Purchaser and its assigns, including, without
limitation, any necessary notifications to the MBS Trustees, such other Owner or other parties.




          (g) No Alteration of Payment Terms. Such Seller shall not, and shall not exercise any right
to (whether contractual, pursuant to any Designated Servicing Agreement, any applicable law or
otherwise), without the prior written consent of the Purchaser (which consent shall be at the sole
and absolute discretion of the Purchaser) modify in any way the priority of payment or payment
right of any Purchased Receivable as contemplated hereunder and as provided under the applicable
Designated Servicing Agreements in any manner that would have a material adverse effect on the
ability of the Seller to ultimately recover the related Purchased Receivables.




          (h) Sale Treatment. Such Seller will not (1) account for (including for financial accounting
and tax purposes), or otherwise treat, the transactions contemplated by this Agreement in any
manner other than as a sale of Ownership Interests in Receivables by such Seller to Purchaser, or
(2) account for or otherwise treat the transactions contemplated hereby in any manner other than as
a sale of Ownership Interests in Receivables. In addition, each such Seller shall disclose (in a
footnote or otherwise) in all of its financial statements (including any such financial statements
consolidated with any other Person’s financial statements) the existence and nature of the
transaction contemplated hereby and the interest of Purchaser in the Purchased Receivables and the
other Purchased Assets, collections and proceeds with respect thereto.




          (i) Further Assurances. Promptly upon request from the Purchaser, each of the Sellers will
(1) correct any material defect or error that may be discovered in this Agreement or any Purchase
Document or in the execution, acknowledgment, filing or recordation thereof, and (2) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such
further acts, deeds, certificates, assurances and other instruments as Purchaser may reasonably
request from time to time in order to carry out more effectively the purposes of this Agreement and
the other Purchase Documents.




          (j) Compliance with Servicing Agreements. Each Seller will comply with the terms and
conditions of the Servicing Agreements to which it is a party, except for where failure to so
comply would not have a Material Adverse Effect and would not impair the right, title or interest
of Purchaser in any Purchased Assets or impair the collectibility of any Purchased Receivables.




          (k) Post-Closing Obligations. Such Seller shall comply with each of the Post-Closing
Undertakings set forth on Schedule 5 (“Post-Closing Undertakings Schedule”) attached hereto
on or before the date referred to with respect to such requirement.




          (l) No Deposit Account Control Agreements. No Seller shall, with respect to any deposit
account at any time maintained by a Seller or any Affiliate of a Seller to, in or through which any
Advance Reimbursement Amounts are deposited or transferred, grant, execute or suffer to exist in
favor of any Person a control agreement with respect to any such deposit account. Sellers





31









 







acknowledge, confirm and agree that in the event of the occurrence of a Change of Control,
Sellers shall advise any successor entity to any Seller of the existence of this covenant, Section
7(1), and obtain such successor entity’s agreement to be bound hereby. In the event of any
Seller’s failure to comply with the foregoing sentence, without limiting Purchaser’s right to cease
or suspend its obligation to purchase Receivables as contemplated herein, Purchaser shall have the
right to notify such successor entity of the existence of this Section 7(1).




     Section 8. Termination Events; Purchase Suspension; Purchase Termination.



          (a) Termination Events. A “Termination Event” shall mean the occurrence or existence
of any one or more of the following (for each subsection a different grace or cure period may be
specified, if no grace or cure period is specified, such occurrence or existence constitutes an
immediate Termination Event):





          (1) Payment. Failure of either Seller to make payment to the Purchaser of any of the
Obligations when due; or




          (2) Breach of Warranty. Any representation, warranty, certification or other statement
made by either Seller in this Agreement or in any statement or certificate at any time given
by such Seller in writing pursuant or in connection with this Agreement is false in any
material respect on the date made; or




          (3) Other Defaults Under Purchase Documents. Either Seller defaults on any obligation
or covenant contained in this Agreement other than those otherwise set forth in this
Section 8(a), or defaults on any obligation or covenant contained in the other Purchase
Documents and such default is not remedied or waived within ten (10) days after notice from
the Purchaser to the Sellers of such default; or




          (4) Merger, Consolidation or Acquisition of Seller. (A) Either Seller is merged,
amalgamated or consolidated with or into, or liquidated or dissolved into, any other Person
or (B) any other Person succeeds (by operation of law or otherwise) to the business of
either Seller, or (C) any other Person acquires all or substantially all of the assets of
either Seller, unless (in the case of any of the foregoing clauses (A), (B) and (C)) such
other Person (i) is reasonably acceptable to the Purchaser and (ii) executes an assignment
and assumption agreement in form and substance reasonably satisfactory to the Purchaser
pursuant to which such Person assumes all of the obligations of such Seller under this
Agreement and each other Purchase Document, and the Purchaser shall have received such
opinions of counsel and other documentation as the Purchaser may reasonably require; or




          (5) The occurrence of a Cross-Default with respect to either Seller; or




          (6) Involuntary Bankruptcy; Appointment of Receiver, etc. (A) A court enters a decree
or order for relief with respect to either Seller in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in effect, which
decree or order is not stayed or other similar relief is not granted under any applicable
federal or state law; or (B) the continuance of any of the following events for sixty (60)
days unless dismissed, bonded or discharged: (i) an involuntary case is commenced against
either Seller, under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect;



32









 






or (ii) a receiver, liquidator, sequestrator, trustee, custodian or other fiduciary
having similar powers over either Seller or over all or a substantial part of their
respective property, is appointed; or




          (7) Voluntary Bankruptcy; Appointment of Receiver, etc. (A) Either Seller commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an involuntary case
or to the conversion of an involuntary case to a voluntary case under any such law or
consents to the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or (B) either Seller makes any
assignment for the benefit of creditors; or (C) the board of directors of either Seller
adopts any resolution or otherwise authorizes action to approve any of the actions referred
to in this Section 8(a)(6); or




          (8) Failure to Maintain Service Status. GMAC Mortgage (or RFC, if RFC is the Servicer
on any GSE Servicing Agreement) ceases to be an approved servicer of residential mortgage
Loans for Fannie Mae or Freddie Mac; or




          (9) U.S. Withholding Tax; Tax Liens, etc. Any U.S. withholding tax is imposed on
payments with respect to the Receivables, or a tax, ERISA or government lien is placed on
the Receivables or any property of either of the Sellers; or




          (10) Servicer Termination Events Under Designated Servicing Agreements. The occurrence
of one or more Unmatured Servicer Termination Events or Servicer Termination Events under
Designated Servicing Agreements included in the facility provided under this Agreement
representing 5% or more (by either Loan balance or by Receivable Balance of Purchased
Receivables, in each case as of the date of termination) of all Designated Servicing
Agreements then included in the facility; or




          (11) Liens. Any Lien, levy or assessment is filed or recorded with respect to or
otherwise imposed upon all or any part of the Receivables or related Ancillary Rights by the
United States or any department or instrumentality thereof or by any state, county,
municipality or other governmental agency and such lien, levy or assessment is not stayed,
vacated, paid or discharged within ten (10) days; or




          (12) Dissolution. Any order, judgment or decree is entered against either Seller or
any of its subsidiaries decreeing the dissolution or split up of such Seller or such
subsidiary and such order remains undischarged or unstayed for a period in excess of twenty
(20) days, but in any event not later than five (5) days prior to the date of any proposed
dissolution or split up; or




          (13) Invalidity of this Agreement or other Purchase Documents. Any of this Agreement
or the other Purchase Documents for any reason, other than a partial or full release in
accordance with the terms thereof, ceases to be in full force and effect or is declared to
be null and void, or either Seller denies that it has any further liability under this
Agreement or such other Purchase Document to which it is party, or gives notice to such
effect; or



33









 






          (14) Defect in Title. The Purchaser, on behalf of itself and its assigns, does not
have or ceases to have a valid and perfected ownership interest in the Purchased Assets free
of all Adverse Claims, in each case, for any reason other than the failure of the Purchaser
to take any action within its control; or



          (b) Suspension of Purchase Obligation. Upon the occurrence of any Incipient Termination Event
or Stop Event, notwithstanding any grace period or right to cure, the Purchaser may, without
notice, immediately cease purchasing and Settling the purchase of Ownership Interests in
Receivables and the Purchaser’s commitments hereunder to purchase or Settle the purchase of
Ownership Interests in Receivables shall be suspended.




          (c) Termination. Upon the occurrence of any Termination Event described in the foregoing
subsections 8(a)(6) or 8(a)(7), this Agreement shall automatically terminate and all Obligations
due Purchaser hereunder from the Sellers shall automatically become immediately due and payable,
without presentment, demand, protest or other requirements of any kind, all of which are hereby
expressly waived by each Seller, and all of the Purchaser’s commitments hereunder to purchase or
Settle the purchase of Receivables shall thereupon terminate. Upon the occurrence and during the
continuance of any other Termination Event, the Purchaser may, by written notice to the Sellers,
declare this Agreement terminated and declare all or any portion of the Obligations (excluding
amount owing under Receivables, which amounts may not be accelerated by Purchaser) due Purchaser
hereunder from the Sellers to be, and the same shall forthwith become, immediately due and payable
and the Purchaser’s agreements hereunder to purchase or Settle the purchase of Ownership Interests
in Receivables shall thereupon terminate.




          (d) Effect of Termination. Notwithstanding the foregoing, the termination of this Agreement
pursuant to this Section 8 shall not discharge any Person (other than the Purchaser) from any
obligations incurred prior to such termination, including, without limitation, any obligations to
make any payments with respect to any Purchased Receivable sold prior to such termination. No
termination, rejection or failure to assume the executory obligations of this Agreement in any
Insolvency Event or Insolvency Proceeding with respect to the Sellers or the Purchaser shall be
deemed to impair or affect the obligations pertaining to any executed sale or executed obligations,
including, without limitation, pre-termination breaches of representations and warranties by the
Sellers or the Purchaser. Without limiting the foregoing, prior to termination, the failure of the
Sellers to deliver computer records of Purchased Receivables or any reports regarding the Purchased
Receivables shall not render such transfer or obligation executory, nor shall the continued duties
of the parties pursuant to this Agreement render an executed sale executory.




          (e) Reserved..




     Section 9. Grant Clause.



     The parties hereto intend that the conveyance of each of the Seller’s right, title and
interest in and to the Purchased Assets shall constitute an absolute sale, conveying good title
free and clear of any liens, claims, encumbrances or rights of others, from such Seller to the
Purchaser. It is the intention of the parties hereto that the arrangements with respect to the
Purchased Assets shall constitute a purchase and sale of such Purchased Assets and not a loan,
including for accounting purposes. In the event, however, that it were to be determined that the
transactions evidenced hereby



34









 







constitute a loan and not a purchase and sale, it is the intention of the parties hereto that
this Agreement shall constitute a security agreement under applicable law, and that each of the
Sellers shall be deemed to have granted, and each such Seller does hereby grant, to the Purchaser a
first priority perfected security interest in all of such Seller’s right, title and interest,
whether now owned or hereafter acquired, in, to and under the Purchased Assets to secure the
obligations of such Seller hereunder, and the term “Ownership Interest” as used in this Agreement
shall be deemed to mean and refer to such first priority perfected security interest in favor of
Purchaser.



     To the extent that either of the Sellers retains any interest in the Purchased Assets, each of
the Sellers hereby grants to the Purchaser a security interest in all of such Seller’s right, title
and interest, whether now owned or hereafter acquired, in, to and under the Purchased Assets, to
secure the performance of all of the obligations of such Seller hereunder. With respect to such
security interest, the Purchaser shall have all of the rights that it has under this Agreement.
The Purchaser shall also have all of the rights of a secured creditor under the UCC.



     Each of the Sellers hereby agree that the Purchaser is irrevocably and unconditionally
authorized to file UCC financing statements naming the Purchaser, for the benefit of itself and any
of it assigns, as secured party and such Seller or Sellers, as the case may be, as debtor(s) with
respect to such security interest and such collateral.



     Section 10. Miscellaneous.



          (a) Term. This Agreement shall commence as of the Effective Date and shall continue in full
force and effect until the earlier of (1) the date which is one (1) year from the Effective Date,
(2) the occurrence of any Termination Event or (3) such date as may be mutually agreed upon by the
parties hereto (the earliest of any such date being the “Termination Date”).




          (b) Amendments. This Agreement may not be amended or otherwise modified except by an
instrument in writing signed by each of the Sellers and the Purchaser.




          (c) Costs and Expenses. The Sellers shall pay to Purchaser on demand all reasonable costs and
expenses (including, without limitation, all reasonable fees, disbursements and other charges of
counsel to the Purchaser, the allocated costs of the Purchaser’s internal legal staff and fees of
accountants and other professionals retained by the Purchaser), filing fees and taxes paid or
payable in connection with the preparation, negotiation, execution, delivery, recording,
syndication, administration, collection, liquidation, enforcement and defense of this Agreement and
each other Purchase Document, each of the transactions related hereto or thereto, the Purchased
Assets and the Purchased Receivables, Purchaser’s rights in the Purchased Assets, the Purchased
Receivables and all other documents related hereto or thereto, including any amendments,
supplements or consents which may hereafter be contemplated (whether or not executed) or entered
into in respect hereof and thereof, including: (1) all costs and expenses of filing or recording
(including UCC financing statement filings, taxes and fees, documentary taxes, intangibles taxes
and mortgage recording taxes and fees, if applicable); and (2) otherwise enforcing the provisions
of this Agreement and any other Purchase Document or defending any claims made or threatened
against the Purchaser arising out of the transactions contemplated hereby and thereby (including
preparations for and consultations concerning any such matters); (3) all out of pocket expenses and




35









 




costs heretofore and from time to time hereafter incurred by the Purchaser during the course
of periodic field examinations.




          (d) Binding Nature; Assignment. The covenants, agreements, rights and obligations contained
in this Agreement shall be binding upon the successors and permitted assigns of each of the Sellers
and shall inure to the benefit of the successors and permitted assigns of the Purchaser, and all
persons claiming by, through or under the Purchaser; provided, that, the Sellers may not assign any
of their interests or rights under this Agreement to any other Person without the prior written
consent of the Purchaser (such consent being in the sole and absolute discretion of the Purchaser)
and any attempted assignment without such consent shall be null and void. Notwithstanding anything
to the contrary herein, the Purchaser may enter freely into participation agreements with respect
to or otherwise grant participations in its Purchased Receivables and Purchased Assets to one or
more Persons, and may, with the prior written consent of each of the Sellers (such consent not to
be unreasonably withheld, delayed or conditioned), assign any or all of its rights, title and
interests in and to the Purchased Receivables and Purchased Assets to one or more Persons.




          (e) Entire Agreement. This Agreement contains the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or
written, of any nature whatsoever with respect to the subject matter hereof. The express terms
hereof control and supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof.




          (f) Severability of Provisions. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or legality of such provision
in any other jurisdiction.




          (g) Governing Law; Consent to Jurisdiction. This Agreement is made in the State of New York
and shall be interpreted according to the laws of such State, without giving effect to the
principles of conflict of laws. Each of the parties hereto agrees that all actions and proceedings
arising out of or relating directly or indirectly to this Agreement or any related agreement
(including any other Purchase Document) or any of their rights or obligations shall be litigated in
the United States District Court for the Southern District of New York or the Supreme Court of New
York, County of New York County, State of New York, and that such courts are convenient forums, and
that each of the parties hereto submits to the personal jurisdiction of such courts. Each of the
parties hereto hereby further consents to the service of process therein by registered or certified
mail, return receipt requested, directed to such party at its address set forth hereinbelow, and
each party hereto agrees that service so made shall be deemed complete five (5) days after the date
of mailing.




          (h) WAIVER OF JURY TRIAL. EACH PARTY WAIVES THE RIGHT OF TRIAL BY JURY IN ANY LITIGATION
RELATING TO TRANSACTIONS ARISING UNDER OR IN RELATION TO THIS AGREEMENT, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE.




36









 








          (i) Notices. Unless otherwise specifically provided herein, all notices shall be in writing
addressed to the respective party as set forth below and may be personally served, faxed,
telecopied or sent by overnight courier service or United States mail and shall be deemed to have
been given: (1) if delivered in person, when delivered; (2) if delivered by fax or telecopy, on the
date of transmission if transmitted on a Business Day before 4:00 p.m. New York City time or, if
not, on the next succeeding Business Day; (3) if delivered by overnight courier, two (2) days after
delivery to such courier properly addressed; or (4) if by U.S. Mail, four (4) Business Days after
depositing in the United States mail, with postage prepaid and properly addressed.




	 	 	 	 	 
	 

	 	If to RFC:
	 	Residential Funding Company, LLC
	 

	 	 	 	One Meridian Crossings
	 

	 	 	 	Suite 100
	 

	 	 	 	Minneapolis, MN 55423
	 

	 	 	 	Attn: John Peterson
	 

	 	 	 	Fax/Telecopy No.: (952) 921-4230
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Orrick, Herrington & Sutcliffe, LLP
	 

	 	 	 	777 South Figueroa Street
	 

	 	 	 	Suite 3200
	 

	 	 	 	Los Angeles, California 90017
	 

	 	 	 	Attn: Martin Howard, Esq.
	 

	 	 	 	Fax/Telecopy No.: (213) 612-2499
	 
	 	 	 	 
	 

	 	 	 	And
	 
	 	 	 	 
	 

	 	 	 	Residential Capital, LLC
	 

	 	 	 	7501 Wisconsin Avenue
	 

	 	 	 	Suite 900
	 

	 	 	 	Bethesda, MD 20814
	 

	 	 	 	Attn: Hu Benton, Managing Director, VP
	 

	 	 	 	          and Associate Counsel
	 

	 	 	 	Fax/Telecopy No.: (301) 664-6999
	 
	 	 	 	 
	 

	 	If to GMAC Mortgage:
	 	GMAC Mortgage, LLC
	 

	 	 	 	c/o Residential Funding Company, LLC
	 

	 	 	 	One Meridian Crossings
	 

	 	 	 	Suite 100
	 

	 	 	 	Minneapolis, MN 55423
	 

	 	 	 	Attn: John Peterson
	 

	 	 	 	Fax/Telecopy No.: (952) 921-4230






37









 






	 	 	 	 	 
	 

	 	With a copy to:
	 	Orrick, Herrington & Sutcliffe, LLP
	 

	 	 	 	777 South Figueroa Street
	 

	 	 	 	Suite 3200
	 

	 	 	 	Los Angeles, California 90017
	 

	 	 	 	Fax/Telecopy No.: (213) 612-2499
	 
	 	 	 	 
	 

	 	 	 	And
	 
	 	 	 	 
	 

	 	 	 	Residential Capital, LLC
	 

	 	 	 	7501 Wisconsin Avenue
	 

	 	 	 	Suite 900
	 

	 	 	 	Bethesda, MD 20814
	 

	 	 	 	Attn: Hu Benton, Managing Director, VP
	 

	 	 	 	          and Associate Counsel
	 

	 	 	 	Fax/Telecopy No.: (301) 664-6999
	 
	 	 	 	 
	 

	 	If to Purchaser:
	 	GMAC COMMERCIAL FINANCE LLC.
	 

	 	 	 	1290 Avenue of the Americas, 3rd Floor
	 

	 	 	 	New York, New York 10104
	 

	 	 	 	Attn: Mr. Kevin Boland
	 

	 	 	 	Fax/Telecopy No.: (212) 884-7189
	 
	 	 	 	 
	 

	 	With a copy to:
	 	OTTERBOURG, STEINDLER, HOUSTON & ROSEN, P.C.
	 

	 	 	 	230 Park Avenue
	 

	 	 	 	New York, New York 10169
	 

	 	 	 	Attn: Richard L. Stehl, Esq.
	 

	 	 	 	Fax/Telecopy No.: (212) 682-6104






          (j) Counterparts. This Agreement and any amendments, waivers, consents, or supplements hereto
may be executed via telecopier or facsimile transmission in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all of which counterparts together shall constitute one and the
same instrument. Any counterpart hereof signed by a party against whom enforcement of this
Agreement is sought shall be admissible into evidence as an original hereof to prove the contents
thereof.




          (k) Survival of Representations and Warranties and Certain Agreements. All agreements,
representations and warranties made herein shall survive the execution and delivery of this
Agreement and the purchase of any Purchased Receivables and any other Purchased Assets hereunder.
Notwithstanding anything in this Agreement or implied by law to the contrary, the agreements of
each Seller and the Purchaser set forth in Sections 4, 6 and 7 (with respect to each of the
Sellers) and Sections 10(c), 10(g), 10(h), 10(k) and 10(m) (with respect to each of the Sellers and
the Purchaser), shall survive the purchase of the Purchased Receivables and the other Purchased
Assets and the termination of this Agreement, and shall survive for so long as any Purchased
Receivable or other Purchased Asset remains outstanding.




38









 








          (l) Indulgences; No Waivers. Neither the failure nor any delay on the part of a party to
exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude
any other or future exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party asserted to have
granted such waiver.




          (m) Table of Contents and Headings. The Table of Contents and the headings of the various
sections and subsections used in this Agreement are for convenience only and shall not in any way
modify or amend any of the terms or provisions hereof, nor be used in connection with the
interpretation of any provision hereof.




          (n) Benefits of Agreement. Nothing in this Agreement, express or implied, shall give to any
Person, other than the parties to this Agreement and their successors hereunder, any benefit of any
legal or equitable right, power, remedy or claim under this Agreement.




          (o) Contract Interpretation; Joint Draftspersons. The parties hereto each hereby acknowledge
and agree that this Agreement and each of the other Purchase Documents is the result of a joint
work product among the parties and that the Sellers, on the one hand, and the Purchaser, on the
other, shared an equal amount of responsibility in the preparation, negotiation and finalization of
the terms hereof and thereof. Each party hereto hereby further acknowledges and agrees that this
Agreement and each of the other Purchase Documents shall be read and interpreted according to its
plain meaning and any ambiguity herein or therein shall not be construed against either Sellers, on
the one hand, or Purchaser, on the other hand; it being expressly agreed by each of the parties
hereto that any judicial rule of construction that a document should be more strictly construed
against the draftsperson thereof shall not apply to any provision of this Agreement or to any
provision of any other Purchase Document.




[Signature Page Follows]




39









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	GMAC MORTGAGE, LLC, as a Seller

 	 
	 	By:  	/s/ James N. Young
 	 
	 	 	Name:  	James N. Young 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	RESIDENTIAL FUNDING COMPANY, LLC, as a Seller

 	 
	 	By:  	/s/ James N. Young
 	 
	 	 	Name:  	James N. Young 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 
	 	GMAC COMMERCIAL FINANCE LLC, as Purchaser

 	 
	 	By:  	/s/ William C. Hall, Jr.
 	 
	 	 	Name:  	William C. Hall, Jr. 	 
	 	 	Title:  	President & CEO 	 
	 



[Signature Page for Servicer Advance Receivables Purchase and Sale Agreement]





 









 





SCHEDULE 1




SCHEDULE OF DESIGNATED SERVICING AGREEMENTS




     Dated as of                      ___, 2008



     This Schedule of Designated Servicing Agreements (the “Schedule”) is a schedule to and
is hereby incorporated by this reference into a certain Servicer Advance Receivables Factoring
Agreement, dated as of June 17, 2008 (the “Agreement”), by and among GMAC Mortgage, LLC, a
Delaware limited liability company (together with any successors, “GMAC Mortgage”),
Residential Funding Company, LLC, a Delaware limited liability company (together with any
successors, “RFC”; and together with GMAC Mortgage, each a “Seller:” and
collectively, the “Sellers”) and GMAC Commercial Finance LLC, a Delaware limited liability
company (the “Purchaser”). All capitalized terms used herein shall have the meanings set
forth in, or referred to in, the Agreement.



     Sellers hereby deliver this Schedule to Purchaser to notify Purchaser that Sellers intends to
request Purchaser to enter into an Assignment of Purchased Receivables, dated as of the date
hereof, pursuant to which Sellers shall sell, assign, convey and transfer to the Purchaser and its
assignees, without recourse, except to the extent provided in the Agreement, but subject in all
respects to the terms of the Agreement, Ownership Interests in such Seller’s right, title and
interest in, to and under its Receivables arising from Advances made by such Seller as Servicer and
existing as of the above date of conveyance under each Designated Servicing Agreement referenced on
Attachment A annexed hereto, and all of the Ancillary Rights related to such Receivables,
including, without limitation, Advance Reimbursement Amounts that are deposited by such Seller into
the Owner Collection Accounts identified in Attachment B annexed hereto, as Servicer, under
each such Designated Servicing Agreement.



	 	 	 	 	 
	 	GMAC MORTGAGE, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	RESIDENTIAL FUNDING COMPANY, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





ATTACHMENT A

TO

SCHEDULE OF DESIGNATED SERVICING AGREEMENTS




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Designated
	 	 	 	 	 	 	Servicing Agreement
	Seller	 	Date of Advance	 	Advance Type	 	Identifying Number
	[RFC]

[GMAC Mortgage]

	 	[___/___/___]
	 	[P&I]

[T&I]	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





 









 





ATTACHMENT B

TO

SCHEDULE OF DESIGNATED SERVICING AGREEMENTS




Custodial Accounts (“Owner Collection Accounts”)




     [CUSTODIAL ACCOUNTS TO BE IDENTIFIED BY SELLER]



 









 





SCHEDULE 2




SCHEDULE OF ACCOUNTS — SELLER ACCOUNT

AND PURCHASER REMITTANCE ACCOUNT



Description Of Seller Account:





Wachovia Bank

ABA 031201467

GMAC of PA Residential P&I

Account #2100018445128


Description Of Purchaser Remittance Account:





RECEIVING BANK: Bank of America




ADDRESS: 901 Main Street

                     Dallas, Texas 75202




RECEIVING ACCOUNT: 3752004652




ABA/ROUTING: 026009593




BENEFICIARY: GMAC Commercial Finance




FINAL BENEFICIARY: GMAC Mortgage, LLC and Residential Funding Company, LLC




DETAIL OF PAYMENT: Servicer Advance Receivables Factoring Agreement, dated as of
June 17, 2008, among GMAC Mortgage, LLC and Residential Funding Company, LLC, as
sellers and GMAC Commercial Finance LLC, as purchaser



 









 





SCHEDULE 3




REPORTING SCHEDULE





	1.	 	On each Business Day, for the immediately preceding Business Day, in form and substance
reasonably satisfactory to Purchaser:






	 	a.	 	Gross Delinquent Bank Account Balances Report;
	 
	 	b.	 	Daily Custodial P&I Account Activity Report; and
	 
	 	c.	 	Summary Assignment Report.






	2.	 	As soon as available, but in any event, not later than the date of each month set forth in
the applicable Designated Servicing Agreement on which the below referenced reports are
required to be delivered, all in form and substance reasonably satisfactory to Purchaser:






	 	a.	 	Investor Loan Level Trial Balance Report;
	 
	 	b.	 	Investor Prepaid Report;
	 
	 	c.	 	Loans Removed Report;
	 
	 	d.	 	Curtailment Report; and
	 
	 	e.	 	Delinquent Report.





 









 





GMAC COMMERCIAL FINANCE LLC

with

RESIDENTIAL FUNDING COMPANY, LLC

and

GMAC MORTGAGE, LLC




SERVICER ADVANCE RECEIVABLES FACTORING AGREEMENT




CLOSING CHECKLIST SCHEDULE




as of June 17, 2008




PART I: PARTIES




	 	 	 
	Purchaser
	 	 
	 
	 	 
	GMAC Commercial Finance LLC

1290 Avenue of the Americas, 3rd Floor

New York, NY 10104

	 	“GMAC CF”
	 
	 	 
	Sellers
	 	 
	 
	 	 
	Residential Funding Company, LLC

One Meridian Crossings

Suite 100

Minneapolis, MN 55423

	 	“RFC”
	 
	 	 
	GMAC Mortgage, LLC 

c/o Residential Funding Company, LLC

One Meridian Crossings

Suite 100

Minneapolis, MN 55423

	 	“GMACM”
	 
	 	 
	Counsel to Purchaser
	 	 
	 
	 	 
	Otterbourg, Steindler, Houston & Rosen, P.C.

230 Park Avenue

New York, New York 10169

	 	“OSH&R”
	 
	 	 
	Counsel to Sellers
	 	 
	 
	 	 
	Orrick, Herrington & Sutcliffe LLP

777 South Figueroa Street

Suite 3200

Los Angeles, CA 90017

	 	“Orrick”






 









 






	 	 	 
	Other Parties
	 	 
	 
	 	 
	GMAC LLC (as “Initial Lender” under the

Senior Secured Credit Facility)

200 Renaissance Center

Detroit, MI 48265

	 	“GMAC”
	 
	 	 
	Wells Fargo Bank, N.A. (as “First Priority

Collateral Agent” under the Senior Secured

Credit Facility)

1015 10th Avenue SE

Minneapolis, MN 55414

	 	“Wells Fargo”
	 
	 	 
	Counsel to GMAC LLC
	 	 
	 
	 	 
	Mayer Brown LLP

71 S. Wacker Drive

Chicago, IL 60606

	 	“MB”






2









 






PART II: FACTORING DOCUMENTATION




	 	 	 	 	 	 	 
	 	 	 	 	 	 	Responsible
	 	 	Document	 	Signatories	 	Party
	A.
	 	Factoring Agreements	 	 	 	 
	 
	 	 	 	 	 	 
	1.
	 	Servicer Advance Receivables Factoring	 	GMAC CF	 	OSH&R
	 
	 	Agreement	 	RFC	 	 
	 
	 	 	 	GMACM	 	 
	 
	 	 	 	 	 	 
	 
	 	Schedule 1 - Form of Schedule of Designated	 	 	 	Sellers
	 
	 	Servicing Agreements	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Attachment A to Schedule 1 - Form of	 	 	 	Sellers
	 
	 	Schedule of Designated Servicing Agreements	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Attachment B to Schedule 1 - Form of	 	 	 	Sellers
	 
	 	Schedule of Owner Collection Accounts	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Schedule 2 - Schedule of Accounts - Seller	 	 	 	Sellers
	 
	 	Account and Purchaser Remittance Account	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Schedule 3 - Reporting Schedule	 	 	 	GMAC CF
	 
	 	 	 	 	 	 
	 
	 	Schedule 4 - Closing Document List	 	 	 	GMAC CF/
	 
	 	 	 	 	 	OSH&R
	 
	 	 	 	 	 	 
	 
	 	Schedule 5 - Post-Closing Undertakings	 	 	 	GMAC CF
	 
	 	 	 	 	 	 
	 
	 	Exhibit A - Form of Assignment of Purchased	 	 	 	OSH&R
	 
	 	Receivables	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Exhibit B - Form of Release Agreement	 	 	 	OSH&R
	 
	 	 	 	 	 	 
	 
	 	Exhibit C - Form of Trustee Notice	 	 	 	OSH&R
	 
	 	 	 	 	 	 
	2.
	 	Schedule 1 - Executed Schedule of	 	RFC	 	Sellers
	 
	 	Designated Servicing Agreements and	 	GMACM	 	 
	 
	 	Completed Attachments Thereto	 	 	 	 
	 
	 	 	 	 	 	 
	3.
	 	Assignment of Purchased Receivables	 	GMAC CF	 	Sellers
	 
	 	 	 	RFC	 	 
	 
	 	 	 	GMACM	 	 
	 
	 	 	 	 	 	 
	4.
	 	UCC-1 Financing Statements and addenda, by	 	 	 	OSH&R
	 
	 	and between each Seller, as debtor, and	 	 	 	 
	 
	 	GMAC CF, as secured party (see Exhibit A	 	 	 	 
	 
	 	hereto)	 	 	 	 






3









 






	 	 	 	 	 	 	 
	 	 	 	 	 	 	Responsible
	 	 	Document	 	Signatories	 	Party
	B.
	 	Authorization and Organization Documents	 	 	 	Orrick
	 
	 	 	 	 	 	 
	1.
	 	Assistant Secretary's Certificate of RFC	 	RFC	 	Orrick
	 
	 	 	 	 	 	 
	 
	 	Exhibit A   -   Certificate of Formation	 	 	 	Orrick
	 
	 	 	 	 	 	 
	 
	 	Exhibit B   -   Limited Liability Company	 	 	 	Orrick
	 
	 	Agreement	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Exhibit C   -   Certificate of Good Standing	 	 	 	Orrick
	 
	 	 	 	 	 	 
	 
	 	Exhibit D   -   Resolutions	 	 	 	Orrick
	 
	 	 	 	 	 	 
	2.
	 	Assistant Secretary's Certificate of GMACM	 	GMACM	 	Orrick
	 
	 	 	 	 	 	 
	 
	 	Exhibit A   -   Certificate of Formation	 	 	 	Orrick
	 
	 	 	 	 	 	 
	 
	 	Exhibit B   -   Limited Liability Company	 	 	 	Orrick
	 
	 	Agreement	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Exhibit C   -   Certificate of Good Standing	 	 	 	Orrick
	 
	 	 	 	 	 	 
	 
	 	Exhibit D   -   Resolutions	 	 	 	Orrick
	 
	 	 	 	 	 	 
	C.
	 	General	 	 	 	 
	 
	 	 	 	 	 	 
	1.
	 	UCC, federal and state tax lien, suits and	 	 	 	MB
	 
	 	judgment searches conducted against	 	 	 	 
	 
	 	Sellers1	 	 	 	 
	 
	 	 	 	 	 	 
	2.
	 	Opinion of counsel to Sellers addressed to	 	Orrick	 	Orrick
	 
	 	GMAC CF	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Legal Opinion with respect to RFC	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Legal Opinion with respect to GMACM	 	 	 	 
	 
	 	 	 	 	 	 
	D.
	 	Lien Release Documents for GMAC Senior	 	 	 	 
	 
	 	Secured Credit Facility	 	 	 	 
	 
	 	 	 	 	 	 
	1.
	 	Release Agreement with respect to Servicer	 	GMAC	 	Orrick (form
	 
	 	Advance Receivables	 	Wells Fargo	 	provided by OSH&R)
	 
	 	 	 	GMAC CF	 	 
	 
	 	 	 	RFC	 	 
	 
	 	 	 	GMACM	 	 








 




			
	1	 	Hard copies delivered to Purchaser.





4









 





	 	 	 	 	 	 	 
	 	 	 	 	 	 	Responsible
	 	 	Document	 	Signatories	 	Party
	2.
	 	UCC Amendments to reflect lien release of	 	 	 	OSH&R
	 
	 	“Purchased Receivables” under the Factoring	 	 	 	 
	 
	 	Agreement (see Exhibit B hereto)	 	 	 	 
	 
	 	 	 	 	 	 
	E.
	 	Lien Release Documents for 2010 Noteholders	 	 	 	 
	 
	 	and 2015 Noteholders	 	 	 	 
	 
	 	 	 	 	 	 
	1.
	 	Officer's Certificate with respect to UCC	 	Wells Fargo	 	 
	 
	 	Release	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Exhibit A - Officer's Certificate of	 	 	 	 
	 
	 	Residential Capital, LLC	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Exhibit B - Legal Opinions of Residential	 	 	 	 
	 
	 	Capital, LLC	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Exhibit C - Authorized UCC Amendments	 	 	 	 
	 
	 	 	 	 	 	 
	2.
	 	UCC Amendments to reflect lien release of	 	 	 	OSH&R
	 
	 	“Purchased Receivables” under the Factoring	 	 	 	 
	 
	 	Agreement (see Exhibit B hereto)	 	 	 	 







5











 





EXHIBIT A

to

TENTATIVE DOCUMENT LIST




UCC Financing Statements




	 	 	 	 	 	 	 	 	 
	Debtor/Jurisdiction	 	File No.	 	File Date
	1. Residential Funding
Company, LLC
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Delaware
	 	 	2008 2085213	 	 	 	6/18/08	 
	 
	 	 	 	 	 	 	 	 
	2. GMAC Mortgage, LLC
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Delaware
	 	 	2008 2085262	 	 	 	6/18/08	 







6









 








EXHIBIT B

to

TENTATIVE DOCUMENT LIST




UCC-3 Amendments




Secured Party: Wells Fargo Bank, N.A. (as First Priority Collateral Agent)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Initial UCC	 	Initial	 	UCC	 	File
	Name of Debtor	 	Jurisdiction	 	File No.	 	File Date	 	File No.	 	Date
	Residential Funding
Company, LLC
	 	Delaware	 	 	2008 1911500	 	 	 	6/4/08	 	 	 	 2008 2112512	 	 	 	6/19/08	 
	GMAC Mortgage, LLC
	 	Delaware	 	 	2008 1911518	 	 	 	6/4/08	 	 	 	2008 2112462	 	 	 	6/19/08	 






     Secured Party: Wells Fargo Bank, N.A. (as Second Priority Collateral Agent for the 2010
Noteholders)



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Initial UCC	 	Initial	 	UCC	 	File
	Name of Debtor	 	Jurisdiction	 	File No.	 	File Date	 	File No.	 	Date
	Residential Funding
Company, LLC
	 	Delaware	 	 	2008 1952983	 	 	 	6/6/08	 	 	 	2008 2181806	 	 	 	6/25/08	 
	GMAC Mortgage, LLC
	 	Delaware	 	 	2008 1952959	 	 	 	6/6/08	 	 	 	2008 2181893	 	 	 	6/25/08	 






     Secured Party: Wells Fargo Bank, N.A. (as Third Priority Collateral Agent for the 2015
Noteholders)



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Initial UCC	 	Initial	 	UCC	 	File
	Name of Debtor	 	Jurisdiction	 	File No.	 	File Date	 	File No.	 	Date
	Residential Funding Company, LLC
	 	Delaware	 	 	2008 1954245	 	 	 	6/6/08	 	 	 	2008 2181863	 	 	 	6/25/08	 
	GMAC Mortgage, LLC
	 	Delaware	 	 	2008 1954286	 	 	 	6/6/08	 	 	 	2008 2181947	 	 	 	6/25/08	 






D-1









 






SCHEDULE 5




POST-CLOSING UNDERTAKINGS SCHEDULE



1. Each Seller shall, at its own expense, (i) on or prior to (x) the Effective date, in the case of
the Initial Purchased Receivables, and (y) the applicable Settlement Date, in the case of any
Additional Purchased Receivables, indicate in its books and records (including its computer files)
that Receivables created in connection with such Designated Servicing Agreements and all Ancillary
Rights related thereto have been sold to the Purchaser in accordance with this Agreement and (ii)
on or prior to (x) the Effective Date, in the case of the Initial Purchased Receivables, and (y)
the applicable Settlement Date, in the case of any Additional Purchased Receivables, deliver to the
Purchaser an Assignment of Purchased Receivables purchased on such Settlement Date. The Seller
shall have indicated in its computer files that Receivables created in connection with such
Additional Purchased Receivables and all Ancillary Rights related thereto have been sold to the
Purchaser. The applicable Seller and the Purchaser shall have entered into a duly executed
Assignment of Purchased Receivables.



2. Within ninety (90) days after the Effective Date, Sellers will provide Purchaser with additional
information identifying the Designated Servicing Agreements. In addition within 90 days, Sellers
will provide, on a basis retroactive to the Effective Date, full P&I tracking on the Loan-level so
that provide the Purchaser will (a) with respect to each Purchased Receivable, indicate the date
the Advance related to such Receivable was made, (b) the aggregate amount of such Advance, (c) the
amount of such Advance that relates to Amounts Held For Future Distribution and (d) such other
information that may be reasonably required by the Purchaser from time to time. If at any time
requested by Purchaser, copies of all or any of the Designated Servicing Agreements, including all
parties, dates of the agreements Loan information and other pertinent information that will be
matched to the identifying number shown in the Designated Servicing Agreement Schedule.





 









 








EXHIBIT A




FORM OF ASSIGNMENT OF PURCHASED RECEIVABLES




Dated as of _______ __, 200__




     Reference is hereby made to that certain Servicer Advance Receivables Factoring Agreement,
dated as of June 17, 2008 (the “Agreement”), by and among GMAC Mortgage, LLC, a Delaware
limited liability company (together with any successors, “GMAC Mortgage”), Residential
Funding Company, LLC, a Delaware limited liability company (together with any successors,
“RFC”; and together with GMAC Mortgage, each a “Seller” and collectively, the
“Sellers”) and GMAC Commercial Finance LLC, a Delaware limited liability company (the
“Purchaser”). All capitalized terms used herein shall have the meanings set forth in, or
referred to in, the Agreement.



     By its signature below to this Assignment of Purchased Receivables (this
“Assignment”), each of the Sellers hereby sells, assigns, transfers and conveys to the
Purchaser and its assignees, without recourse, except to the extent set forth in the Agreement, but
subject in all respects to the terms of the Agreement, Ownership Interests in such Seller’s right,
title and interest in, to and under its Receivables arising from Advances made by such Seller as
Servicer and existing as of the above date of conveyance under each Designated Servicing Agreement
listed on Attachment A attached hereto, and all of the Ancillary Rights related to such
Receivables and Purchaser hereby accepts such sale, assignment, transfer, and conveyance.



     This Assignment includes [P&I Advance Receivables,] [T&I Advance Receivables] [and] [Corporate
Advance Receivables]. In computing the Purchase Price for the Ownership Interests in such
Receivables sold, assigned, transferred and conveyed hereby, the Purchase Price Rate for each
Advance Type shall be as follows: [___% for P&I Advances,] [___% for T&I Advances] [and] [___% for
Corporate Advances].



	 	 	 	 	 
	 	GMAC MORTGAGE, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	RESIDENTIAL FUNDING COMPANY, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GMAC COMMERCIAL FINANCE LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



ATTACHMENT A

TO

ASSIGNMENT OF PURCHASED RECEIVABLES,

DATED AS OF _______ __, 200__





     Additional Purchased Receivables:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Designated	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Servicing	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Agreement	 	 	 	 	 	Initial
	 	 	Date of	 	Advance	 	 	 	 	 	Identifying	 	Advance	 	Ownership
	Seller	 	Advance	 	Type	 	Loan No.	 	Number	 	Amount	 	Amount
	[RFC] [GMAC Mortgage]
	 	 	[__/__/__]	 	 	 	[P&I] [T&I]	 	 	 	 	 	 	 	 	 	 	$	     	 	 	$	     	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 









 






GMAC LLC, as Lender Agent

200 Renaissance Center

Detroit, Michigan 48265




WELLS FARGO BANK, N.A., as First Priority Collateral Agent

625 Marquette Avenue

N9311-110

Minneapolis, Minnesota 55479




As of _____ __, 2008




GMAC Commercial Finance LLC

1290 Avenue of the Americas

Third Floor

New York, New York 10104




Residential Funding Company, LLC

One Meridian Crossings, Suite 100

Minneapolis, MN 55423




GMAC Mortgage, LLC

1100 Virginia Drive

Fort Washington, PA 19034-3200




     Re:       Release Agreement with respect to Servicer Advance Receivables



Ladies and Gentlemen:




     GMAC Mortgage, LLC, a Delaware limited liability company (together with its successors and
assigns, “GMAC Mortgage”), as a Seller, and Residential Funding Company, LLC, a Delaware limited
liability company (together with its successors and assigns, “RFC”), as a Seller, and GMAC
Commercial Finance, LLC, in its capacity as purchaser (together with its successors and assigns,
“Purchaser”) under the Factoring Agreement (as hereinafter defined) have entered or are about to
enter into a receivables factoring arrangement pursuant to which Purchaser has agreed to purchase
undivided fractional (up to 100%) absolute ownership interests in the right, title and interest of
GMAC Mortgage and RFC to be reimbursed for P&I Advances, T&I Advances or Corporate Advances (each
as defined on Exhibit A hereto) made by GMAC Mortgage or RFC under the Designated Servicing
Agreements (as defined in the Factoring Agreement) together with related rights, all upon the terms
and subject to the Facility Limit and the conditions set forth in the Servicer Advance Receivables
Factoring Agreement, dated as of June 17, 2008, by and among GMAC Mortgage, RFC and Purchaser (as
the same now exists or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, the “Factoring Agreement”) and the agreements, documents and instruments
executed or delivered



 









 







in connection therewith (all of the foregoing, together with the Factoring Agreement, as the same
now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, collectively, the “Factoring Documents”). As used herein, the rights of GMAC Mortgage
and/or RFC to be reimbursed for P&I Advances, T&I Advances and Corporate Advances, are collectively
referred to as the “Servicer Advance Receivables”, and such undivided fractional (up to 100%)
absolute ownership interests in Servicer Advance Receivables and the Ancillary Rights (as defined
on Exhibit A hereto) relating thereto purchased by Purchaser pursuant to the Factoring Agreement
are collectively referred to as the “Purchased Assets”, as further defined in Exhibit A hereto.



     GMAC Mortgage, as a Borrower, and RFC as a Borrower, GMAC LLC, a Delaware limited liability
company as Lender Agent (together with its successors and assigns, “Lender Agent”), and Initial
Lender, and Wells Fargo Bank, N.A., as First Priority Collateral Agent (in such capacity, together
with its successors and assigns or replacement agent, “First Priority Collateral Agent”) have
entered into certain financing arrangements pursuant to which GMAC may make revolving loans
provided by Lender Parties (as hereinafter defined) or Lender Agent of behalf of Lender Parties, to
GMAC Mortgage and RFC of up to $3,500,000,000 as set forth in the Loan Agreement, dated as of June
4, 2008, among GMAC Mortgage and RFC as Borrowers, Residential Capital, LLC, a Delaware limited
liability company and certain of its affiliates as guarantors (collectively “Guarantors”), the
parties thereto as lenders, indemnified parties or agents or otherwise as a Lender Party (each
individually a “Lender Party” and collectively, “Lender Parties”) and Lender Agent (as the same now
exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, the “Loan Agreement”) and the agreements, documents and instruments executed or delivered
in connection therewith (all of the foregoing, together with the Loan Agreement, as the same now
exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced,
collectively, the “Loan Documents”), which revolving loans and other obligations thereunder are
secured by a security interest in and lien upon substantially all of the assets of GMAC Mortgage
and RFC, including the Servicer Advance Receivables (the “Lender Party Collateral”).



     The Loan Agreement contemplates that RFC and GMAC Mortgage may enter into a factoring
arrangement acceptable to Lender Agent with respect to Servicing Advance Receivables, and RFC and
GMAC Mortgage desire to enter into the factoring arrangements with Purchaser as set forth in the
Factoring Agreement.



     Accordingly, in consideration of the foregoing and the mutual covenants hereinafter set forth,
the parties hereto agree as follows:



     Section 1. Release.



          (a) Effective on the payment by Purchaser of the Purchase Price (as defined in the Factoring
Agreement) for any Purchased Assets purchased by Purchaser in accordance with the terms of the
Factoring Agreement including the settlement procedures provided therein or otherwise, and subject
only to the provisions of Section 1(b) hereof, (i) Lender Agent and First Priority Lien Collateral
Agent and the Lender Parties each hereby releases, automatically and without any further action by
any party, any and all liens, security interests and any other interest or claim of Lender Agent
and First Priority Lien Collateral Agent in or to such Purchased Asset pursuant to the Loan
Agreement or the other Loan Documents, and (ii) Lender Agent and First



2









 







Priority Lien Collateral Agent hereby expressly acknowledge that pursuant to the Loan
Agreement or the other Loan Documents, Lender Agent and First Priority Lien Collateral Agent and
any Lender Party have no interest in, and the Lender Party Collateral does not include, such
Purchased Asset.



          (b) Not less than twelve (12) Business Days prior to any material amendment or modification of
the Factoring Agreement or the addition of a Servicing Agreement to Schedule 1 to the Factoring
Agreement, RFC and GMAC Mortgage shall deliver a copy of the related documentation to Lender Agent,
together with a certificate of any officer of each thereof to the effect that, after giving effect
to such amendment, modification or addition, the sale of Purchased Assets under the Factoring
Agreement continues to satisfy the requirements in the Loan Agreement for a “Collateral Asset
Disposition” (as such term is defined in the Loan Agreement). If Lender Agent shall notify
Purchaser in writing that it questions the validity of such certification, the release provided in
Section 1(a) hereof shall not be effective with respect to any Purchased Asset relating to a
Servicer Advance Receivable arising more than ten (10) Business Days after the receipt of such
notice unless Lender Agent shall have rescinded such notice in writing; provided, that, (i)
Purchaser shall be under no obligation to continue or resume purchasing any Purchased Assets unless
(A) Purchaser determines that the resumption and continued purchases of the Purchased Assets shall
be effected and made in accordance with the terms and conditions of the Factoring Documents and
entitled to the benefits of the release provided in Section 1(a) hereof, and (B) no “Default” or
“Event of Default” (as such terms are defined in the Factoring Agreement) shall exist or have
occurred and be continuing, and (ii) if either or both of RFC and GMAC Mortgage fail to deliver
such certificate, such failure shall not impair or limit the release provided under Section 1(a)
hereof with respect to any Purchased Asset relating to a Servicer Advance Receivable arising before
Purchaser’s receipt from Lender Agent of written notice of such failure or within ten (10) Business
Days thereafter, unless Lender Agent shall have rescinded such notice in writing. For purposes of
this Section 1(b), the term “Business Day” means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York, the State of California, the
State of Minnesota or the Commonwealth of Pennsylvania, or is a day on which either the Purchaser
is closed or banking institutions located in the State of New York, the State of California, the
State of Minnesota or the Commonwealth of Pennsylvania are closed.



     Section 2. Cooperation



          (a) Subject to the terms hereof, Lender Agent and First Priority Collateral Agent hereby agree
promptly to transfer and return to, or in accordance with the written direction of, Purchaser, at
such account or other place as Purchaser may so instruct, any funds or other property that are
received by Lender Agent or First Priority Collateral Agent that is not Lender Party Collateral but
instead constitutes Purchased Assets and that are so identified in writing and in a manner
reasonably satisfactory to Lender Agent and First Priority Collateral Agent by Purchaser. First
Priority Collateral Agent agrees, upon the request of Lender Agent, to file such UCC amendments as
Purchaser may reasonably request to evidence the partial release of the security interest and lien
of First Priority Collateral Agent as provided for hereunder in any Purchased Assets. Lender Agent
agrees, upon the request of Purchaser, to direct First Priority Collateral Agent to file such UCC
amendments as Purchaser may reasonably request to evidence the partial release of the security
interest and lien of First Priority Collateral Agent as provided for hereunder in any Purchased
Assets.



3









 





          (b) Upon and after the termination of the Factoring Agreement and the permanent and complete
cessation of the purchase of ownership interests in Servicer Advance Receivables and related
Ancillary Rights by Purchaser thereunder (the date upon which such termination and cessation
occurs, the “Factoring Termination Date”), Purchaser agrees, upon the request of Lender Agent, to
file such UCC amendments to partially release as Lender Agent may reasonably request in order to
evidence that Purchaser has no interest in any Servicer Advance Receivables created after the
Factoring Termination Date or in any Ancillary Rights relating thereto.



          (c) Lender Agent agrees, upon the request of Purchaser, to the extent Lender Agent is entitled
to do so under the terms of the Intercreditor Agreement (as defined in the Loan Agreement) to
direct either or both of Second Priority Collateral Agent (as defined in the Intercreditor
Agreement) and Third Priority Collateral Agent (as defined in the Intercreditor Agreement) to
transfer and return to, or in accordance with the written direction of, Purchaser, at such account
or other place as Purchaser may so instruct, any funds or other property that are received by
either or both of Second Priority Collateral Agent and Third Priority Collateral Agent that
constitutes Purchased Assets and that are so identified in writing by Purchaser and in a manner
reasonably satisfactory to Lender Agent.



     Section 3. Representations. Each of the parties hereto represents and warrants to the
other parties that (a) its execution, delivery and performance of this letter agreement has been
duly authorized by all necessary corporate proceedings and are within the scope of its authority as
agent and binding upon the parties for whom it is acting as agent, (b) the execution, delivery and
performance by it of this letter agreement is within its corporate powers and does not conflict
with its charter, by-laws or operating agreement or with any law, rule, regulation, writ or order
binding upon it or its properties, and (c) this letter agreement constitutes its legally valid and
enforceable obligation, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally or by general principles of
equity.



     Section 4. Notices. All notices required to be given hereunder shall be given by
telephone promptly confirmed in writing by facsimile, and shall be effective when received at the
address set forth on the signature pages hereof. Any party may change its address for notice by
written notice to the other parties hereto.



     Section 5. Miscellaneous.



          (a) Amendments, Etc. No amendment or waiver of any provision of this letter
agreement, nor consent to any departure by any party herefrom, shall in any event be effective
unless the same shall be in writing and signed by all of the parties hereto, and, in the case of a
waiver, shall be effective only in the specific instance and for the specific purpose for which
given.



          (b) Successors and Assigns. This letter agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and assigns. The
successors and assigns for shall include a debtor-in-possession or trustee of such party.
Purchaser, Lender Agent and First Priority Collateral Agent agree that Purchaser’s interest in the
Factoring Documents and Lender Agent’s, First Priority Collateral Agent’s or any Lender



4









 







Party’s interest in the Loan Documents may not be transferred unless such transferee has been
notified of the existence of this letter agreement and has agreed to be bound hereby.



          (c) Binding Effect. This letter agreement shall become effective when it shall have
been executed and delivered by each of the parties hereto and thereafter shall be binding upon and
inure to the benefit of the parties, the parties for whom Purchaser, Lender Agent and First
Priority Collateral Agent, respectively, acts as agent and each of their respective successors and
assigns and no other Person shall have any rights hereunder.



          (d) Insolvency. This letter agreement shall be applicable both before and after the
filing of any petition by or against GMAC Mortgage or RFC under the U.S. Bankruptcy Code and all
converted or succeeding cases in respect thereof with respect to Purchased Assets for which the
Purchase Price has been paid in accordance with the Factoring Agreement (including the settlement
procedures provided therein) or has otherwise been paid prior to the filing of such petition, and
all references herein to GMAC Mortgage and RFC shall be deemed to apply to a trustee for GMAC
Mortgage or RFC, as the case may be, and GMAC Mortgage or RFC as debtor in possession, as the case
may be. The relative rights of Purchaser and Lender Agent and First Priority Collateral Agent and
in or to any distributions from or in respect of any such Purchased Assets or any Lender Party
Collateral or proceeds of such Purchased Assets or Lender Party Collateral, shall continue after
the filing thereof on the same basis as prior to the date of the petition, subject to any court
order approving the financing of, or use of cash collateral by, GMAC Mortgage or RFC, as the case
may be, as debtor in possession or by any trustee appointed in the case.



          (e) Relative Rights. Purchaser shall be entitled to rely on the power and authority
of Lender Agent and First Priority Collateral Agent to act on behalf of Lender Parties.



          (f) Governing Law; Consent to Jurisdiction. This letter agreement is made in the
State of New York and shall be interpreted according to the laws of such State, without giving
effect to the principles of conflict of laws. Each of the parties hereto agrees that all actions
and proceedings arising out of or relating directly or indirectly to this letter agreement or any
related agreement (including any other Purchase Document) or any of their rights or obligations may
be litigated in the United States District Court for the Southern District of New York or the
Supreme Court of New York, County of New York County, State of New York, and that such courts are
convenient forums, and that each of the parties hereto submits to the personal jurisdiction of such
courts.



          (g) Execution in Counterparts. This letter agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this letter agreement by facsimile or other electronic means
shall be effective as delivery of a manually executed counterpart of this letter agreement.



          (h) WAVER OF JURY TRIAL. EACH PARTY WAIVES THE RIGHT OF TRIAL BY JURY IN ANY
LITIGATION RELATING TO TRANSACTIONS ARISING UNDER OR IN RELATION TO THIS LETTER AGREEMENT, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE.



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




5









 








     IN WITNESS WHEREOF, the parties have caused this letter agreement to be executed by their
respective officers thereunto duly authorized, as of the date fist above written.



	 	 	 	 	 
	 	GMAC LLC, as Lender Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 

	 	Address:
	 	GMAC LLC
	 

	 	 	 	200 Renaissance Center
	 

	 	
	 	Detroit, Michigan 48265
	 

	 	Attention:
	 	David Walker, Group VP & Treasurer






[SIGNATURES CONTINUE ON NEXT PAGE]






 









 








[SIGNATURES CONTINUED FROM PREVIOUS PAGE]




	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., in its capacity as
 First Priority Collateral Agent for the First Priority
 Secured Parties

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 

	 	Address:
	 	625 Marquette Avenue
	 

	 	 	 	N9311-110
	 

	 	 	 	Minneapolis, Minnesota 55479
	 

	 	Attention:
	 	Nicholas D. Tally – Specialized
	 

	 	 	 	Products Group






[SIGNATURES CONTINUE ON NEXT PAGE]




 









 








[SIGNATURES CONTINUED FROM PREVIOUS PAGE]




Agreed as of the date first above written:




	 	 	 	 	 
	GMAC COMMERCIAL FINANCE LLC	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Address:

	 	GMAC Commercial Finance LLC	 	 
	 

	 	1290 Avenue of the Americas	 	 
	 

	 	Third Floor	 	 
	 

	 	New York, NY 10104	 	 
	 

	 	Attention:	 	 






[SIGNATURES CONTINUE ON NEXT PAGE]




 









 








[SIGNATURES CONTINUED FROM PREVIOUS PAGE]




Acknowledged and Agreed

as of the date first above written:




RESIDENTIAL FUNDING COMPANY, LLC




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	Address:

	 	Residential Funding Company LLC	 	 
	 

	 	One Meridian Crossings, Suite 100	 	 
	 

	 	Minneapolis, MN 55423	 	 
	 

	 	Attention:	 	 






[SIGNATURES CONTINUE ON NEXT PAGE]




 









 








[SIGNATURES CONTINUED FROM PREVIOUS PAGE]




GMAC MORTGAGE, LLC




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	Address:

	 	GMAC Mortgage, LLC	 	 
	 

	 	1100 Virginia Drive	 	 
	 

	 	Fort Washington, PA 19034-3200	 	 
	 

	 	Attention:	 	 






 









 






EXHIBIT A

TO

RELEASE AGREEMENT WITH RESPECT TO

SERVICER ADVANCE RECEIVABLES




Description of Purchased Assets 




          (A) As of the Effective Date, Ownership Interests, each with an Ownership Percentage
calculated as provided in the Factoring Agreement, in all of GMAC Mortgage’s and RFC’s (each
individually a “Seller and collectively, “Sellers”) right, title and interest, whether now owned or
hereafter acquired, in, to and under its Receivables existing as of the Effective Date with respect
to all Advances made by such Seller as Servicer under the Designated Servicing Agreements
identified on Attachment A to Schedule 1 to the Factoring Agreement (such Ownership Interests
described in this clause (A), the “Initial Purchased Receivables”);



          (B) Ownership Interests, each with an Ownership Percentage calculated as provided in the
Factoring Agreement, in all of each Seller’s right, title and interest, whether now owned or
hereafter acquired, in, to and under its Receivables existing as of each Settlement Date after the
Effective Date with respect to any Advances made by such Seller as Servicer under any Designated
Servicing Agreement, to the extent (but only to the extent) such Ownership Interests have not
previously been the subject of purchase and Settlement under the Factoring Agreement and are
identified on the Assignment of Purchased Receivables delivered by such Seller to the Purchaser on
the applicable Settlement Date (such Ownership Interests in the Receivables described in this
clause (B), the “Additional Purchased Receivables” and, together with the Initial Purchased
Receivables, the “Purchased Receivables”); and



          (C) all monies due or to become due and all amounts received or receivable with respect to
the Purchased Receivables, and all proceeds (including “proceeds” as defined in the UCC) thereof,
together with all rights of such Seller to enforce such rights to reimbursement constituting such
Purchased Receivables, including, without limitation, the rights to access and use all books and
records related to the Purchased Receivables (all of the foregoing monies and amounts, proceeds,
and rights to enforce, collectively, the “Ancillary Rights” and, together with the Purchased
Receivables, collectively, the “Purchased Assets”).



     As used in this Exhibit A, the following terms shall have the following meanings (Capitalized
terms used in this Exhibit A that are not otherwise defined herein, shall have the meanings
assigned to such terms in the Release Agreement to which this Exhibit A is attached):



     “Advance” means any P&I Advance, T&I Advance or Corporate Advance, or any other
advance type or advance types that may be specified from time to time in an amendment in accordance
with the terms of the Factoring Agreement.



     “Amounts Held For Future Distribution” means, with respect to an MBS Servicing
Agreement, amounts representing early receipt of scheduled payments of principal and interest on a
Loan which pursuant to such MBS Servicing Agreement are amounts held on deposit in the
applicable MBS Trust Collection Account for distribution to the MBS Trustee in a future
month



A-1









 







but
which amounts may be remitted by the Servicer to the MBS Trustee earlier as part of such Servicer’s
monthly P&I Advances.



     “Assignment of Purchased Receivables” means an Assignment of Purchased Receivables,
substantially in the form of Exhibit A attached to the Factoring Agreement, by and between a Seller
and the Purchaser, delivered in accordance with Section 2 of the Factoring Agreement.



     “Corporate Advance” means, collectively, (a) an advance (other than those described in
clause (b) below) made by a Seller as Servicer pursuant to a Designated Servicing Agreement to
inspect, protect, preserve or repair properties that secure a defaulted Loan or that have been
acquired through foreclosure or deed in lieu of foreclosure or other similar action pending
disposition thereof, or for similar or related purposes, including, but not limited to, necessary
legal fees and costs expended or incurred by such Seller as Servicer in connection with
foreclosure, bankruptcy, eviction or litigation actions with or involving the related Obligors on
such defaulted Loan, as well as costs to obtain clear title to such a property, to protect the
priority of the lien created by such Loan on the related property, and to dispose of properties
taken through foreclosure or by deed in lieu thereof or other similar action, (b) an advance made
by a Seller as Servicer pursuant to a Designated Servicing Agreement to foreclose or undertake
similar action with respect to a Loan, and (c) any other out of pocket expenses incurred by a
Seller as Servicer pursuant to a Designated Servicing Agreement (including, for example, costs and
expenses incurred in loss mitigation efforts and in processing assumptions of Loans in the ordinary
course of business to maintain or maximize the value of such Loan or the related Mortgaged
Property).



     “Designated Servicing Agreements” means, collectively, each of the Servicing
Agreements identified by unique identifying numbers on Schedule 1 to the Factoring Agreement, as
such Schedule may be supplemented or amended from time to time in accordance with the terms and
conditions under the Factoring Agreement, subject to the provisions of Section 2 of the Factoring
Agreement. If a Seller is a subservicer pursuant to and as permitted by the terms of any Service
Agreement listed on Schedule 1 to the Factoring Agreement, as such Schedule may be supplemented or
amended from time to time in accordance with the terms and conditions under the Factoring
Agreement, under which the other Seller is the master servicer, the term “Designated Servicing
Agreements” also includes the Servicing Agreement pursuant to which such Seller acts in the
capacity as subservicer.



     “Effective Date” means the date the Factoring Agreement is executed by each of the
parties thereto and on which all of the conditions precedent set forth in Section 3 of the
Factoring are satisfied.



     “GSE” means the Government National Mortgage Association, Federal National Mortgage
Association or Federal Home Loan and Mortgage Corporation, and their respective successors
(“government sponsored enterprises”).



     “Loan” means any home equity loan, home equity line of credit, manufactured housing
contract or other mortgage loan or installment sales contract or similar asset serviced by the
Servicer pursuant to a Designated Servicing Agreement.



     “MBS Loan” means a Loan serviced by a Servicer under a MBS Servicing Agreement.



A-2









 





     “MBS Servicing Agreement” means a Servicing Agreement under which a Servicer services
Loans on behalf of an MBS Trustee, which Loans underlie or secure one or more issues of
asset-backed securities.



     “MBS Trust” means any of the bankruptcy-remote trusts or trust estates in which the
Loans being serviced by a Servicer pursuant to the Designated Servicing Agreements that are MBS
Servicing Agreements, are held by the related MBS Trustee.



     “MBS Trust Collection Account” means, collectively, any account(s) into which a
Servicer is required to deposit collections on MBS Loans, pending remittance of such collections to
the related MBS Trust, pursuant to the related MBS Servicing Agreement.



     “MBS Trustee” means a trustee or indenture trustee for an MBS Trust (not including a
GSE).



     “Mortgaged Property” means the real property securing a Loan.



     “Obligor” means any Person who owes or may be liable for payments under a Loan.



     “Owner” means (a) any MBS Trust or (b) any owner of a Loan being serviced by a
Servicer pursuant to a Designated Servicing Agreement, other than a Person described in clause (a).



     “Ownership Interest” means an undivided fractional absolute ownership interest in a
Receivable and related Ancillary Rights sold to and purchased by Purchaser under the Factoring
Agreement. If the Ownership Percentage is 100% with respect to any such Receivables and related
Ancillary Rights, the term “Ownership Interest” means full absolute ownership of such Receivables
and related Ancillary Rights.



     “Ownership Percentage” means, with respect to one or more Receivables and related
Ancillary Rights with respect to which Purchaser has purchased an Ownership Interest under the
Factoring Agreement, 100% or such lesser percentage ownership that the undivided fractional
interest comprising the Ownership Interest represents with respect to a Receivable and related
Ancillary Rights, determined as provided in Section 2(a)(2) of the Factoring Agreement.



     “P&I Advance” means any advance made by a Seller as a Servicer pursuant to any
Designated Servicing Agreement, of delinquent interest and/or principal that have not been timely
paid by Obligors, including, in any case where the Servicer uses any Amounts Held for Future
Distribution on deposit in a related MBS Trust Collection Account to make such disbursement in
accordance with the related Designated Servicing Agreement in lieu of making a P & I Advance with
its own funds, the rights to be reimbursed for amounts subsequently deposited by the Servicer into
such MBS Trust Collection Account from its own funds in order to reimburse such MBS Trust
Collection Account for such Amounts Held for Future Distribution so used to make such P&I Advance.



     “Person” means any individual, corporation, estate, partnership, limited liability
company, limited liability partnership, joint venture, association, joint-stock company, business
trust, trust, unincorporated organization, government or any agency or political subdivision
thereof, bank, savings and loan institution or other entity of a similar nature.



A-3









 





     “Receivable” means the contractual right to reimbursement pursuant to the terms of a
Designated Servicing Agreement for an Advance made by a Seller as Servicer pursuant to such
Designated Servicing Agreement, which Advance has not previously been reimbursed, and including all
rights of the Servicer to enforce payment of such obligation under the Designated Servicing
Agreement and otherwise.



     “Servicer” means either GMAC Mortgage or RFC, as the case may be, in its capacity as
servicer or subservicer of Loans for and on behalf of an Owner under any particular Designated
Servicing Agreement. In the case of a Designated Servicing Agreement under which GMAC Mortgage is
a subservicer and RFC is the servicer, the term “Servicer” shall mean and include GMAC Mortgage and
RFC, individually and collectively.



     “Servicing Agreement” means any pooling and servicing agreement, sale and servicing
agreement, servicing agreement, subservicing agreement or similar agreement pursuant to which a
Servicer is servicing Loans for and on behalf of an MBS Trust or other Owner, each as amended,
modified or supplemented from time to time. In the case of a subservicing agreement (however
denominated) under which GMAC Mortgage is the subservicer and with respect to which RFC is the
servicer under the related master servicing agreement (however denominated), the term “related
Servicing Agreement”, or words of similar import, shall mean and include such subservicing
agreement and also such related master servicing agreement.



     “Settle” and, with correlative meanings, the terms “Settled” and “Settlement” means
the process of completing the purchase and payment for Purchased Receivables and related Ancillary
Rights on the Effective Date and on any subsequent Settlement Date in accordance with the Factoring
Agreement.



     “Settlement Date” means (a) with respect to the Initial Purchased Receivables, the
Effective Date and (b) after the Effective Date, with respect to any Additional Purchased
Receivables, the date on which the sale and purchase of such Additional Purchased Receivable is
Settled pursuant to the terms of the Factoring Agreement.



     “T&I Advance” means an advance made by a Seller as Servicer with respect to a Loan
pursuant to such Servicer’s obligation to do so under the applicable Designated Servicing
Agreement, of real estate taxes and assessments, or of hazard, flood or primary mortgage insurance
premiums, which were not timely paid by the related Obligor under the terms of the related Loan.



     “UCC” means the Uniform Commercial Code, as in effect in the State of New York.



A-4









 





EXHIBIT C




FORM OF NOTICE OF ASSIGNMENT OF REIMBURSEMENT RIGHTS



[GMAC MORTGAGE, LLC]


[RESIDENTIAL FUNDING COMPANY, LLC]




[DATE]




[TRUSTEE]

[OWNER]

[BOND INSURER]




NOTICE OF ASSIGNMENT OF REIMBURSEMENT RIGHTS




     This is intended as notification, as contemplated by UCC § 9-404(a)(2), that [GMAC Mortgage,
LLC (“GMACM”)] [Residential Funding Company, LLC (“RFC”)] has sold, assigned, transferred and
conveyed to GMAC COMMERCIAL FINANCE LLC present and future rights to reimbursement for certain
servicer advances, including, but not limited to, advances for any applicable monthly principal
and/or interest, taxes and insurance, home equity lines of credit craws, and foreclosure and
liquidation and related expenses or undivided fractional ownership interests in such servicer
advances (the “Advance Reimbursement Rights”) made by [GMACM][RFC] as [Servicer][Master Servicer]
of mortgage loans in any pool that is subject to the servicing agreement(s) described on the
attached Schedule 1 (the “Servicing Agreement(s)”).



     [GMACM][RFC] hereby notifies you, that amounts payable in respect of such Advance
Reimbursement Rights (“Reimbursement Amounts”) shall be allocated to outstanding [Advances] on a
“first-in, first-out” (FIFO) basis, such that Reimbursement Amounts received under each Servicing
Agreement with respect to any particular mortgage loan and attributable to any type of advance
shall first be applied to reimburse any specific advance of that same type that was made with
respect to that mortgage loan that was disbursed earliest in time, and to reimburse last any
advance of that same type that was made with respect to that mortgage loan last in time.
Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned
to such terms in each Servicing Agreement.



 









 





Sincerely yours,




[GMAC MORTGAGE, LLC]

[RESIDENTIAL FUNDING COMPANY, LLC]




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 






 









 






SCHEDULE 1




TO




NOTICE OF ASSIGNMENT OF REIMBURSEMENT RIGHTS




LIST OF APPLICABLE SERVICING AGREEMENTS