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EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of January 5,
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 December 1, 2004 (the "Pooling and Servicing
Agreement"), pursuant
to which the Trust will issue Mortgage Asset-Backed Pass-Through
Certificates,
Series 2004-RZ4 (the "Certificates") consisting of twenty-five
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 B, Class SB,
Class R-I and
Class R-II, representing beneficial ownership interests in a
trust fund
consisting primarily of a pool of fixed and adjustable rate one-
to two-family
mortgage loans identified on Exhibit F 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 a de minimis portion of the Class R-I and Class
R-II 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 $289,800,115.10,
including
<PAGE>
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
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<PAGE>
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 Regulations
Section
1.860G-2(a)(1);
(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) To the best of RFC's knowledge as of the Cut-off Date,
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) To the best of RFC's knowledge, 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;
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<PAGE>
(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) to the best of Seller's knowledge, 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) To the best of RFC's knowledge, with respect to each
Mortgage
Loan, 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) To the best of RFC's knowledge, 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;
(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) To the best of RFC's knowledge, 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);
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<PAGE>
(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) To the best of RFC's knowledge, 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 by outstanding
principal balance as of the Cut-off Date are secured by a
leasehold
estate. If any of the Mortgage Loans are secured by a
leasehold
interest, with respect to each leasehold interest: the use of
leasehold
estates for residential properties is an accepted practice in
the area
where the related Mortgaged Property is located; residential
property in
such area consisting of leasehold estates is readily marketable;
the
lease is recorded and no party is in any way in breach of any
provision
of such lease; the leasehold is in full force and effect and is
not
subject to any prior lien or encumbrance by which the leasehold
could be
terminated or subject to any charge or penalty; and the
remaining term
of the lease does not terminate less than ten years after the
maturity
date of such Mortgage Loa
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