EXECUTION COPY
ASSIGNMENT AND ASSUMPTION
AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT,
dated as of September 25, 2006, 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.
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
September 1, 2006 (the
“Pooling and Servicing Agreement”), pursuant to which
the Trust will issue Mortgage Asset-Backed Pass-Through
Certificates, Series 2006-RZ4 (the “Certificates”)
consisting of seventeen 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-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 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-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.
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 $843,806,504.55, 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 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;
(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) 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
