EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND
ASSUMPTION
AGREEMENT,
dated as of
December 6, 2005,
between Residential
Funding Corporation, a Delaware corporation ("RFC") and
Residential Asset
Mortgage Products, Inc., a Delaware corporation (the
"Company").
Recitals
A. RFC has entered into seller contracts ("Seller Contracts") with the
seller/servicers
pursuant to which such seller/servicers sell mortgage loans to
RFC.
B. The Company wishes to purchase from RFC certain Mortgage Loans (as
hereinafter defined)
originated
pursuant to the Seller
Contracts with respect
thereto.
C. The Company, RFC,
as master servicer,
and JPMorgan
Chase Bank,
N.A., as
trustee (the
"Trustee"), are
entering into a Pooling and Servicing Agreement
dated as of November 1, 2005 (the "Pooling and Servicing
Agreement"),
pursuant
to which the Trust will issue Mortgage Asset-Backed Pass-Through Certificates,
Series 2005-RZ4 (the "Certificates") consisting of seventeen classes
designated
as Class A-1, Class
A-2, Class A-3, Class M-1, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6,
Class M-7, Class M-8, Class B, Class SB, Class R-I, Class
R-II and Class R-III,
representing
beneficial ownership
interests in a
trust
fund consisting
primarily of a pool that will be
divided into the fixed and
adjustable rate one- to four-family mortgage loans identified on
Exhibit F-1 to
the Pooling and Servicing Agreement (the "Mortgage Loans").
D. In connection
with the purchase of the Mortgage Loans, the Company will
assign to RFC the
Class R-I,
Class R-II and Class R-III Certificates (the
"Retained Certificates").
E. In connection with the purchase of the Mortgage Loans and the
issuance of the
Certificates, RFC
wishes to make certain
representations and warranties to the
Company and to assign
certain of its rights
under the Seller
Contracts to the
Company, and the Company wishes to assume certain of RFC's
obligations under the
Seller Contracts.
F. The Company and RFC intend that the conveyance by RFC to the Company of all
its right, title and
interest in and to the
Mortgage Loans pursuant to this
Agreement shall constitute a purchase and sale and not a loan.
NOW THEREFORE, in
consideration of the recitals and the mutual promises
herein and other good and valuable consideration, the parties agree
as follows:
1. All capitalized
terms used but not
defined herein
shall have the
meanings
assigned thereto in the Pooling and Servicing Agreement.
2. Concurrently
with the execution and
delivery hereof, RFC
hereby assigns to
the Company without recourse all of its right, title and interest in and to
the
Mortgage Loans, including all interest and principal received on or
with respect
to the Mortgage Loans
after the Cut-off Date (other than payments of principal
and interest due on
the Mortgage Loans in
the month of the Cut-off Date). In
consideration of such
assignment,
RFC will receive from the Company, in
immediately available
funds, an amount equal to $429,250,493.61, including
accrued interest,
and the Retained Certificates. In connection with such
assignment and at the Company's direction, RFC has in respect of each
Mortgage
Loan endorsed the related Mortgage Note (other than any Destroyed
Mortgage Note)
to the order
of the Trustee and delivered an assignment of mortgage in
recordable form to the
Trustee or its agent. A Destroyed Mortgage Note means a
Mortgage Note the original of which was permanently lost or
destroyed.
The Company
and RFC intend
that the conveyance by RFC to the
Company of all its
right, title and interest in and to the Mortgage Loans
pursuant to this Section 2 shall be, and be construed as, a sale of
the Mortgage
Loans by RFC to the Company. It is, further, not intended that such
conveyance
be deemed to be a pledge of the Mortgage Loans by RFC to the
Company to secure a
debt or other obligation of RFC. Nonetheless, (a) this Agreement is intended
to
be and hereby
is deemed to be a
security agreement within the meaning of
Articles 8 and 9 of
the Minnesota
Uniform Commercial Code and the Uniform
Commercial Code
of any other applicable jurisdiction; (b) the conveyance
provided for in this Section shall be deemed to be a grant by RFC
to the Company
of a security interest
in all of RFC's
right (including the power to convey
title thereto), title and interest, whether now owned or hereafter
acquired, in
and to (A) the Mortgage Loans, including the Mortgage Notes, the
Mortgages, any
related insurance
policies and all other documents in the related Mortgage
Files, (B) all amounts payable pursuant to the Mortgage Loans in
accordance with
the terms thereof and (C) any and all general intangibles
consisting of, arising
from or relating to any of the foregoing, and all proceeds of the
conversion,
voluntary or involuntary, of the foregoing into cash, instruments,
securities or
other property,
including, without
limitation,
all amounts from time
to time
held or invested in the Certificate Account or the Custodial
Account, whether in
the form of cash, instruments, securities or other property; (c)
the possession
by the Trustee,
the Custodian or any other agent of the Trustee of
Mortgage
Notes or such other items of property as constitute instruments,
money, payment
intangibles,
negotiable documents,
goods, deposit accounts, letters of credit,
advices of credit, investment property, certificated securities or
chattel paper
shall be deemed to be
"possession by the
secured party",
or possession by a
purchaser or a
person designated by such secured party, for purposes of
perfecting the security interest pursuant to the Minnesota
Uniform Commercial
Code and the
Uniform Commercial Code of any other applicable jurisdiction
(including, without
limitation, Sections
8-106, 9-313 and 9-106 thereof); and
(d) notifications
to persons holding such property, and acknowledgments,
receipts or
confirmations from
persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
financial
intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose
of perfecting such
security interest
under applicable
law. RFC shall, to
the
extent consistent with
this Agreement, take
such reasonable
actions as may be
necessary to ensure
that, if this
Agreement were deemed to create a
security
interest in the Mortgage Loans and the other property described above, such
security interest
would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such
throughout the term
of this Agreement.
Without limiting the generality of the foregoing, RFC shall
prepare and
deliver to the
Company not less than 15 days prior to any
filing
date, and the Company shall file, or shall cause to be filed,
at the expense of
RFC, all filings necessary to maintain the effectiveness of any
original filings
necessary under the Uniform Commercial Code as in effect in
any jurisdiction to
perfect the
Company's security interest in or lien on the Mortgage Loans
including without
limitation (x)
continuation
statements, and (y)
such other
statements as may be occasioned by (1) any change of name of RFC or
the Company,
(2) any change of location of the place of business, state of formation or the
chief executive office of RFC, or (3) any transfer of any interest
of RFC in any
Mortgage Loan.
3. Concurrently
with the execution
and delivery
hereof, the Company hereby
assigns to RFC without
recourse all of its right, title and interest in and to
the Retained
Certificates as part
of the consideration
payable to RFC by
the
Company pursuant to this Agreement.
4. RFC represents
and warrants to the Company
that on the date of
execution
hereof (or, if otherwise specified below, as of the date so
specified):
(a) The information
set forth in the
Mortgage Loan Schedule for
such Mortgage Loans is
true and correct in all material respects as of
the date or dates respecting which such information is
furnished;
(b) Each Mortgage Loan
constitutes a "qualified mortgage" under
Section 860G(a)(3)(A)
of the Code and Treasury Regulation Section
1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance
on the
provisions of Treasury
Regulation Section
1.860G-2(a)(3)
or Treasury
Regulation Section
1.860G-2(f)(2)
or any other
provision that would
allow a Mortgage Loan to be treated as a "qualified mortgage"
notwithstanding
its failure
to meet the requirements of Section
860G(a)(3)(A) of
the Code and Treasury Regulation
Section
1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9);
(c) Immediately prior
to the conveyance of the Mortgage Loans to
the Company,
RFC had good title to,
and was the sole
owner of, each
Mortgage Loan
free and clear of any pledge, lien, encumbrance or
security
interest (other
than rights to servicing and related
compensation) and such
conveyance validly
transfers ownership of the
Mortgage Loans to the
Company free and clear of any pledge, lien,
encumbrance or security interest;
(d) Each Mortgage Note
constitutes
a legal, valid and binding
obligation of the
Mortgagor enforceable
in accordance
with its terms
except as limited
by bankruptcy, insolvency or other similar laws
affecting generally the enforcement of creditors' rights;
(e) There is no default, breach, violation or event of
acceleration existing
under the terms of any
Mortgage Note or Mortgage
and no event which,
with notice and expiration of any grace or cure
period, would
constitute
a default, breach, violation or event of
acceleration under the
terms of any Mortgage
Note or Mortgage, and
no
such default, breach, violation or event of acceleration has been
waived
by RFC or by any other entity involved in servicing a Mortgage
Loan;
(f) As of the Cut-off
Date, none of the
Mortgage Loans are 30
days or more delinquent in payment of principal and interest;
(g) None of the Mortgage Loans are Buydown Mortgage Loans;
(h) There is no
delinquent tax or
assessment
lien against any
related Mortgaged Property;
(i) No Mortgagor
has any valid right of offset, defense or
counterclaim as to the related Mortgage Note or Mortgage,
except as may
be provided under the Relief Act;
(j) No Mortgage Loan
provides for payments
that are subject
to
reduction by withholding taxes levied by any foreign (non-United
States)
sovereign government;
(k) (1) The proceeds
of each Mortgage Loan have been fully
disbursed and (2) there is no requirement for future advances
thereunder
and any and all requirements as to completion of any on-site or
off-site
improvements and as to
disbursements
of any escrow funds therefor
(including any
escrow funds held to make Monthly Payments pending
completion of such
improvements) have
been complied with.
All costs,
fees and expenses incurred in making, closing or recording the
Mortgage
Loans were paid;
(l) There are no
mechanics' liens or
claims for work, labor
or
material affecting
any Mortgaged
Property which are or may be a lien
prior to, or equal with, the lien of the related Mortgage, except such
liens that are insured
or indemnified against by a title insurance
policy;
(m)
With respect to each Mortgage Loan, a policy of title
insurance was
effective as of the
closing of each
Mortgage Loan,
is
valid and binding,
and remains in full force and
effect, unless the
Mortgaged Properties
are located in the State of Iowa and an attorney's
certificate has been provided;
(n) Each Mortgaged
Property is free of material damage and is in
good repair and no notice of condemnation has been given with respect
thereto;
(o) Each Mortgage contains customary and enforceable
provisions
which render the rights and remedies of the holder
adequate to
realize
the benefits of the security against the Mortgaged Property, including
(i) in the case of a
Mortgage that is a
deed of trust,
by trustee's
sale, or (ii) by judicial foreclosure or, if applicable, non-judicial
foreclosure, and to
the best of RFC's knowledge, there is no homestead
or other
exemption available to
the Mortgagor that would interfere with
such right to sell at a trustee's sale or right to foreclosure,
subject
in each case to applicable federal and state laws and judicial
precedents with respect to bankruptcy and right of redemption;
(p) With respect
to each Mortgage that is a deed of trust,
a
trustee duly qualified under applicable law to serve as such is
properly
named, designated and serving, and except in connection with a
trustee's
sale after default by
a Mortgagor,
no fees or expenses
are payable by
the seller or RFC to the trustee under any Mortgage that is a deed of
trust;
(q) If the improvements securing a Mortgage Loan are located in
a
federal designated
special flood hazard
area, flood
insurance in the
amount required under
the Program Guide covers such Mortgaged Property
(either by coverage
under the federal
flood insurance program or by
coverage from private insurers);
(r) With respect to each Mortgage Loan, any appraisal made in
connection with the
origination
of the Mortgage Loan was made by an
appraiser who
meets the minimum qualifications for appraisers as
specified in the Program Guide;
(s) Each Mortgage Loan is covered by a standard hazard insurance
policy;
(t) Any escrow
arrangements
established
with respect to any
Mortgage Loan are in compliance with all applicable local, state and
federal laws
and are in
compliance
with the terms of the related
Mortgage Note;
(u) No Mortgage Loan
was originated on or
after October 1, 2002
and before March 7,
2003, which is secured
by property located in
the
State of Georgia;
(v) Approximately
0.1% of the
Mortgage Loans are secured by a
leasehold estate.
If any
