ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION
AGREEMENT,
dated October 30, 2006, between Residential Funding Company, LLC, a
Delaware
corporation
("RFC") and Residential
Funding
Mortgage
Securities I, Inc., a Delaware
corporation (the
"Company").
Recitals
I.
RFC has entered into contracts ("Seller
Contracts") with various
seller/servicers,
pursuant to
which such seller/servicers sell to RFC mortgage loans.
II.
The Company wishes to purchase from RFC certain
Mortgage Loans (as hereinafter
defined) sold to
RFC pursuant to the Seller Contracts.
III.
The
Company,
RFC, as master
servicer
and U.S.
Bank
National
Association,
as trustee
(the
"Trustee"), are entering into a Series Supplement,
dated as of October 30, 2006 (the "Series Supplement"),
to the
Standard
Terms of
Pooling
and
Servicing
Agreement,
dated as of October
30,
2006
(together
with the Series
Supplement,
the "Pooling
and
Servicing
Agreement"),
pursuant to which the Company
proposes to issue
Mortgage
Pass-Through
Certificates,
Series
2006-S10 (the
"Certificates")
consisting of classes
designated as the Class
I-A-1, Class I-A-2,
Class I-A-3,
Class I-A-4,
Class I-A-5, Class I-A-6, Class I-A-7, Class II-A-1,
Class I-A-V,
Class II-A-V,
Class I-A-P,
Class II-A-P,
Class R-I, Class R-II and Class R-III Certificates
(collectively,
the
"Senior
Certificates"),
Class
I-M-1,
Class
I-M-2,
Class I-M-3,
Class
II-M-1,
Class II-M-2 and Class II-M-3
Certificates
(collectively,
the "Class M Certificates")
and Class I-B-1, Class I-B-2, Class I-B-3, Class II-B-1,
Class II-B-2 and Class II-B-3
Certificates
(collectively,
the "Class B Certificates"),
representing
beneficial
ownership
interests in a trust fund consisting
primarily of a pool of mortgage loans,
which will be divided into
two groups, identified in Exhibit One-I and Exhibit One-II to the
Series Supplement (the "Mortgage Loans").
IV.
In connection with the purchase of the Mortgage
Loans,
the Company will assign to RFC the Class
I-A-P
Certificates,
Class II-A-P
Certificates,
Class I-A-V
Certificates,
Class II-A-V
Certificates
and a de
minimis
portion of each of the
Class R-I,
Class R-II and Class R-III
Certificates
(collectively
the "Retained
Certificates").
V.
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.
VI.
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:
Section 1.
All capitalized
terms used but not defined herein shall have the meanings
assigned thereto in
the Pooling and Servicing Agreement.
Section 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,
and with
respect
to any Sharia
Mortgage
Loans,
all
amounts
in
respect
of profit
payments
and
acquisition
payments,
received
on or with
respect to the
Mortgage
Loans
after
October 1, 2006
(other
than
payments of principal
and
interest,
and with
respect to any Sharia
Mortgage
Loans,
all amounts in respect of
profit payments and acquisition
payments,
due on the Mortgage Loans in October 2006).
In
consideration
of such
assignment,
RFC or its designee will receive from the Company in
immediately
available
funds an amount equal to
$1,080,881,687.05
plus the Class I-A-P Certificates,
Class II-A-P Certificates,
Class I-A-V Certificates,
Class
II-A-V Certificates and a de minimis portion of 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 or security
instrument,
as applicable,
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.
Section 3.
RFC and the Company agree that the sale of each Pledged
Asset Loan pursuant to this
Agreement
will also constitute the assignment,
sale, setting-over,
transfer and conveyance to the Company, without recourse
(but subject to RFC's covenants,
representations
and warranties
specifically
provided herein),
of all of RFC's
obligations
and all of RFC's
right,
title and
interest
in, to and under,
whether now
existing
or
hereafter
acquired
as
owner
of
such
Pledged
Asset
Loan
with
respect
to any
and
all
money,
securities,
security
entitlements,
accounts,
general
intangibles,
payment
intangibles,
instruments,
documents,
deposit accounts,
certificates of deposit,
commodities contracts,
and other investment property and other property of whatever kind
or description
consisting of,
arising from or related to,
(i) the Credit Support Pledge
Agreement,
the Funding
and Pledge
Agreement
among the Mortgagor or other Person
pledging the related
Pledged Assets (the
"Customer"),
Combined
Collateral LLC and National
Financial
Services
Corporation,
and the Additional
Collateral
Agreement
between GMAC Mortgage, LLC and the Customer (collectively,
the "Assigned Contracts"),
(ii) all rights, powers and
remedies of RFC as owner of such Pledged Asset Loan under or in
connection
with the Assigned
Contracts,
whether
arising under the terms of such Assigned
Contracts,
by statute,
at law or in equity, or otherwise arising out of
any default by the Mortgagor under or in connection with the
Assigned
Contracts,
including all rights to exercise
any
election
or option or to make any
decision
or
determination
or to give or receive
any
notice,
consent,
approval
or waiver
thereunder,
(iii) the
Pledged
Amounts
and all money,
securities,
security
entitlements,
accounts,
general intangibles,
payment intangibles,
instruments,
documents,
deposit accounts,
certificates of
deposit,
commodities
contracts,
and other investment property and other property of whatever kind
or description
and, all cash and non-cash proceeds of the sale,
exchange,
or redemption of, and all stock or conversion
rights,
rights to
subscribe,
liquidation
dividends or
preferences,
stock
dividends,
rights to
interest,
dividends,
earnings,
income, rents, issues, profits,
interest payments or other distributions of cash or other property
that
secures a Pledged
Asset Loan,
(iv) all
documents,
books and records
concerning
the foregoing
(including
all
computer
programs,
tapes, disks and related items containing any such information) and
(v) all insurance proceeds
(including
proceeds
from
the
Federal
Deposit
Insurance
Corporation
or the
Securities
Investor
Protection
Corporation
or any other
insurance
company) of any of the
foregoing or
replacements
thereof or
substitutions
therefor,
proceeds of proceeds
and the
conversion,
voluntary or
involuntary,
of any
thereof.
The
foregoing
transfer,
sale,
assignment and conveyance
does not constitute and is not intended to result in the creation,
or
an assumption by the Company,
of any obligation of RFC, or any other Person in connection
with the Pledged Assets
or under any agreement or instrument
relating
thereto,
including any obligation to the Mortgagor,
other than as
owner of the Pledged Asset Loan.
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.
However,
in the event
that the
Mortgage
Loans are held to be property of RFC, or if for any reason this
Agreement is held or deemed to
create a security interest in the Mortgage Loans,
then it is intended that (a) this
Agreement shall 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, and hereby is, a grant by RFC to the
Company of a security
interest
in all of RFC's
right,
title
and
interest,
whether
now
owned or
hereafter
acquired,
in and to any and all
general
intangibles,
payment
intangibles,
accounts, chattel paper, instruments,
documents,
money, deposit accounts,
certificates of deposit,
goods,
letters of credit,
advices of credit and
investment
property
consisting of, arising from or relating to
any of the following:
(A) the
Mortgage Loans,
including
(i) with
respect to any Cooperative
Loan, the related
Mortgage Note,
Security
Agreement,
Assignment of Proprietary Lease,
Cooperative Stock Certificate,
Cooperative
Lease,
any
insurance
policies
and all other
documents
in the related
Mortgage
File (ii) with respect to any
Sharia
Mortgage Loan, the related Sharia
Mortgage Loan Security
Instrument,
Sharia
Mortgage Loan
Co-Ownership
Agreement,
Obligation to Pay, Assignment
Agreement and Amendment of Security
Instrument,
any insurance policies
and all other
documents in the related
Mortgage
File and
(iii) with
respect to each Mortgage Loan other than a
Cooperative Loan or Sharia Mortgage Loan, the related Mortgage
Note, the Mortgage,
any insurance
policies and all
other
documents in the related
Mortgage File,
(B) all monies due or to become due pursuant to the Mortgage Loans
in accordance
with the terms thereof and (C) 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 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, securities
intermediaries,
bailees
or agents of, or persons
holding for (as
applicable)
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
determined
to create a security
interest in
the Mortgage
Loans and the other
property
described
above,
such security
interest would be determined 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
or the chief
executive
office of RFC or,
(3) any
transfer of any
interest of RFC in any
Mortgage Loan.
Notwithstanding
the foregoing,
(i) the Master
Servicer
shall retain all servicing
rights
(including,
without
limitation,
primary servicing and master servicing) relating to or arising out
of the Mortgage Loans, and
all rights to receive
servicing fees,
servicing income and other payments made as compensation for such
servicing
granted to it under the Pooling and
Servicing
Agreement
pursuant to the terms and
conditions
set forth therein
(collectively,
the "Servicing
Rights") and (ii) the
Servicing Rights are not included in the collateral in which
RFC grants a security interest pursuant to the immediately
preceding paragraph.
Section 4.
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
Class I-A-P,
Class II-A-P,
Class I-A-V, Class
II-A-V Certificates and a de minimis portion of the Retained
Certificates as part of the consideration
payable to
RFC by the Company pursuant to this Agreement.
Section 5.
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):
(i)
The
information
set forth in Exhibit One-I and Exhibit One-II to the Series
Supplement
with respect to
each Mortgage Loan or the Mortgage Loans,
as the case may be, is true and correct,
in all material
respects,
at
the date or dates respecting which such information is furnished;
(ii)
Except
in the case of no more
than
2.2% of the
Group I Loans
and 1.4% of the
Group
II
Loans,
each
mortgage loan with a
Loan-to-Value
Ratio at origination
in excess of 80%, will be insured by a primary
mortgage
insurance
policy (a "Primary
Insurance
Policy")
covering at least 30% of the principal
balance of the Mortgage
Loan at origination
if the
Loan-to-Value
Ratio is between 95.00% and 90.01%,
at least 25% of the balance of the
mortgage loan at
origination
if the
Loan-to-Value
Ratio is between
90.00% and 85.01%,
and at least 12% of the
balance of the mortgage loan at origination if the
Loan-to-Value
Ratio is between 85.00% and 80.01%.
To the best
of the
Company's
knowledge,
each such
Primary
Insurance
Policy is in full force and effect and the Trustee is
entitled to the benefits thereunder;
(iii)
Each Primary
Insurance
Policy insures the named insured and its
successors and assigns,
and the issuer
of the Primary
Insurance Policy is an insurance
company whose
claims-paying
ability is currently
acceptable to
the Rating Agencies;
(iv)
Immediately
prior to the assignment 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,
with
respect to certain
Mortgage
Loans,
the monthly
payment due on the first Due Date following the Cut-off
Date),
and no action has been taken or failed to be taken
by RFC that would materially
adversely affect the
enforceability of any Mortgage Loan or the interests therein of
any holder of the Certificates;
(v)
No Group I Loan is 30 or more days
delinquent
in the payment of principal and interest as of the Cut-off
Date and no Group I Loan has
been so
Delinquent
more
than
once in the 12
month
period
prior to the
Cut-off
Date. No Group II Loan is currently 30 or more days
delinquent
in payment of principal
and
interest.
As of the
Cut-off
Date,
approximately
0.5% of the Group II Loans
have been a maximum of 30 to 59 days
Delinquent
in the
payment of principal
and
interest
since their
origination.
As of the Cut-off
Date,
no Group II Loan is 60 or
more days
Delinquent
in the
payment
of
principal
and
interest
and no Group II Loan has been 60 days or more
Delinquent in payment of principal and interest since its
origination
(vi)
Subject to clause (v) above as respects
delinquencies,
there is no default,
breach,
violation or event
of
acceleration
existing
under 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,
and no such
default,
breach,
violation or event of acceleration has been waived by the Seller or
by any other entity involved
in originating or servicing a Mortgage Loan;
(vii)
There is no delinquent tax or assessment lien against any Mortgaged
Property;
(viii)
No
Mortgagor
has any right of
offset,
defense
or
counterclaim
as to the
related
Mortgage
Note or
Mortgage except as may be provided under the Servicemembers Civil
Relief Act;
(ix)
None of the Mortgage Loans are Buy-Down Mortgage Loans;
(x)
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
described under clause (xv) below;
(xi)
Each
Mortgaged
Property
is free of damage
and in good
repair and no notice of
condemnation
has been
given with respect
thereto and RFC knows of nothing
involving
any Mortgaged
Property
that could
reasonably be
expected to materially adversely affect the value or marketability
of any Mortgaged Property;
(xii)
Each Mortgage Loan at the time it was made complied in all material
respects with all
applicable
local,
state and federal laws, including, but not limited to, all
applicable anti-predatory lending laws;
(xiii)
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,
(ii) by summary
foreclosure,
if
available
under
applicable law, and (iii) otherwise by foreclosure,
and 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;
(xiv)
With respect to each Mortgage that i
