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EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of December 21,
2006, between
Residential Funding Company, LLC, a Delaware limited liability
company ("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.
C. The Company, RFC, as master servicer, and U.S. Bank National
Association, as trustee
(the "Trustee"), are entering into a Pooling and Servicing
Agreement dated as of
December 1, 2006 (the "Pooling and Servicing Agreement"),
pursuant to which the Trust will
issue Mortgage Asset-Backed Pass-Through Certificates, Series
2006-RZ5 (the "Certificates")
consisting of sixteen classes designated as Class A-1, Class
A-1A, Class A-1B, 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 M-9, Class SB, Class R, representing beneficial
ownership interests in a
trust fund consisting primarily of a pool of fixed and
adjustable rate one- to four-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 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.
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
$526,491,154.75, 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, as
defined in the following sentence)
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, with respect to
each Mortgage Loan that
on the date of execution hereof (or, if otherwise specified
below, as of the date so
specified and provided that all percentages of the Mortgage
Loans described in this Section
4 are approximate percentages by outstanding principal balance
determined as of the Cut-off
Date after deducting payments due during the month of the
Cut-off Date):
(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) Except as otherwise specifically set forth herein, 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) None of the Mortgage Loans are 30 days or more delinquent in
payment of principal and
interest;
(g) None of the mortgage loans have been a maximum of 30 or more
days delinquent in the
last 24 months;
(h) None of the Mortgage Loans are buydown Mortgage Loans;
(i) To the best of RFC's knowledge, there is no delinquent tax
or assessment lien against
any related Mortgaged Property;
(j) 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;
(k) No Mortgage Loan provides for payments that are subject to
reduction by withholding
taxes levied by any foreign (non-United States) sovereign
government;
(l) (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;
(m) 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;
(n) 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;
(o) 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;
(p) 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;
(q) 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;
(r) 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);
(s) 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;
(t) Each Mortgage Loan is covered by a standard hazard insurance
policy;
(u) 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;
(v) 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;
(w) None of the Mortgage Loans are secured by a leasehold
estate. In connection with any
Mortgage Loan 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 Loan;
(x) Each Mortgage Loan as of the time of its origination
complied in all material
respects with all applicable local, state and federal laws,
including, but not
limited to, all applicable predatory lending laws;
(y) None of the Mortgage Loans are subject to the Home Ownership
and Equity Protection
Act of 1994. None of the Mortgage Loans are loans that, under
applicable state or
local law in effect at the time of origination of the loan, are
referred to as (1)
"high cost" or "covered" loans or (2) any other similar
designation if the law
imposes greater restrictions or additional legal liability for
residential mortgage
loans with high interest rates, points and/or fees;
(z) To the best of RFC's knowledge, the Subservicer for each
Mortgage Loan has accurately
and fully reported its borrower credit files to each of the
Credit Repositories in a
timely manner;
(aa) None of the proceeds o
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