EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of August 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 July 1, 2005 (the "Pooling and Servicing Agreement"), pursuant to
which the Trust will issue Mortgage Asset-Backed Pass-Through Certificates,
Series 2005-RZ2 (the "Certificates") consisting of twenty-one classes designated
as Class A-I-1, Class A-I-2, Class A-I-3, Class A-I-4, Class A-II, 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 B-1, Class B-2, Class B-3, 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 (i) the fixed and
adjustable rate one- to four-family mortgage loans identified on Exhibit F-1 to
the Pooling and Servicing Agreement (the "Group I Loans") and (ii) the fixed and
adjustable rate one- to four-family mortgage loans identified on Exhibit F-2 to
the Pooling and Servicing Agreement (the "Group II Loans" and, together with the
Group I Loans, 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.
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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 $345,136,904.91, 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
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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;
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(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);
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(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) As of the Cut-off Date, 0.2% and 0.1% of the Group I Loans
and Group II Loans, respectively, 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 Loan;
(w) 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;
(x) 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;
(y) [Reserved]
(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 of any Mortgage Loan were used to
finance the purchase of single premium credit insurance policies;
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(bb) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then current Standard &
Poor's LEVELS(R) Glossary which is now Version 5.6 Revised, Appendix E);
(cc) No Mortgage Property consists of a mobile home or a
manufactured housing unit that is not permanently affixed to its
foundation;
(dd) The proceeds of the Mortgage Loan have been fully disbursed,
there is no requirement for future advances thereunder;
(ee) With respect to each Mortgage Loan, either (i) each Mortgage
Loan contains a customary provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event the
related Mortgaged Property is sold without the prior consent of the
mortgagee thereunder or (ii) the Mortgage Loan is assumable pursuant to
the terms of the Mortgage Note;
(ff) No Group I Mortgage Loan has a prepayment penalty term that
extends beyond three years after the date of origination;
(gg) No Group II Mortgage Loan has a prepayment penalty term that
extends beyond three years after the date of origination;
(hh) No Mortgage Loan provides for deferred interest or negative
amortization; and
(ii) The principal balance at origination for each Group II
Mortgage Loan that is secured by a single family property located in any
state other than the States of Hawaii or Alaska did not exceed $359,650.
The principal balance at origination for each Group II Mortgage Loan
that is secured by a single family property located in the States of
Hawaii or Alaska or the Territories of Guam or the Virgin Islands did
not exceed $539,475. The principal balance at origination for each Group
II Mortgage Loan that is secured by a two-, three- or four- family
property located in any state other than the States of Hawaii or Alaska
did not exceed $460,400, $556,500 or $691,600, respectively. The
principal balance at origination for each Group II Mortgage Loan that is
secured by a two-, three- or four- family property located in the States
of Hawaii or Alaska or the Territories of Guam or the Virgin Islands did
not exceed $690,600, $834,750 and $1,037,400, respectively.
Upon discovery by RFC or upon notice from the Company or the Trustee of
a breach of the foregoing representations and warranties in respect of any
Mortgage Loan, or upon the occurrence of a Repurchase Event as described in
Section 5 below, which materially and adversely affects the interests of any
holders of the Certificates or the Company in such Mortgage Loan (notice of
which breach or occurrence shall be given to the Company by RFC, if it discovers
the same), RFC shall, within 90 days after the earlier of its discovery or
receipt of notice thereof, either cure such breach or Repurchase Event in all
material respects or, except as otherwise provided in Section 2.04 of the
Pooling and Servicing Agreement, either (i) purchase such Mortgage Loan from the
Trustee or the Company, as the case may be, at a price equal to the Purchase
Price for such Mortgage Loan or (ii) substitute a Qualified Substitute Mortgage
Loan or Loans for such Mortgage Loan in the manner and subject to the
limitations set forth in Section 2.04 of the Pooling and Servicing Agreement.
Notwithstanding the foregoing, it is understood by the parties hereto that a
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breach of the representations and warranties made in any of clause (u), (x),
(z), (aa), (gg) or (ii) of this Section 4 with respect to any Group II Loan will
be deemed to materially and adversely affect the interests of the Holders of the
Certificates in the related Mortgage Loan. Notwithstanding the foregoing, RFC
shall not be required to cure breaches, Repurchase Events or purchase or
substitute for Mortgage Loans as provided above if the substance of such breach
or Repurchase Event also constitutes fraud in the origination of the Mortgage
Loan. If the breach of representation and warranty that gave rise to the
obligation to repurchase or substitute a Mortgage Loan pursuant to this Section
4 was the representation set forth in clause (w) of this Section 4, then RFC
shall pay to the Trust Fund, concurrently with and in addition to the remedies
provided in the preceding sentence, an amount equal to any liability, penalty or
expense that was actually incurred and paid out of or on behalf of the Trust
Fund, and that directly resulted from such breach, or if incurred and paid by
the Trust Fund thereafter, concurrently with such payment.
5. With respect to each Mortgage Loan, a repurchase event ("Repurchase Event")
shall have occurred if it is discovered that, as of the date hereof, the related
Mortgage was not a valid first lien on the related Mortgaged Property subject
only to (i) the lien of real property taxes and assessments not yet due and
payable, (ii) covenants, conditions, and restrictions, rights of way, easements
and other matters of public record as of the date of recording of such Mortgage
and such other permissible title exceptions as are listed in the Program Guide
and (iii) other matters to which like properties are commonly subject which do
not materially adversely affect the value, use, enjoyment or marketability of
the Mortgaged Property. In addition, with respect to any Mortgage Loan as to
which the Company delivers to the Trustee or the Custodian an affidavit
certifying that the original Mortgage Note has been lost or destroyed, if such
Mortgage Loan subsequently is in default and the enforcement thereof or of the
related Mortgage is materially adversely affected by the absence of the original
Mortgage Note, a Repurchase Event shall be deemed to have occurred and RFC will
be obligated to repurchase or substitute for such Mortgage Loan in the manner
set forth in Section 4 above.
Concurrently with the execution and delivery hereof, RFC hereby
assigns to the Company, and the Company hereby assumes, all of RFC's rights and
obligations under the Seller Contracts with respect to the Mortgage Loans to be
serviced under the Pooling and Servicing Agreement, insofar as such rights and
obligations relate to (a) any representations and warranties regarding a
Mortgage Loan made by a Seller under any Seller Contract and any remedies
available under the Seller Contract for a breach of any such representations and
warranties if (i) the substance of such breach also constitutes fraud in the
origination of the Mortgage Loan or (ii) the representation and warranty relates
to the absence of toxic materials or other environmental hazards that could
affect the Mortgaged Property, or (b) the Seller's obligation to deliver to RFC
the documents required to be contained in the Mortgage File and any rights and
remedies available to RFC under the Seller Contract in respect of such
obligation or in the event of a breach of such obligation; provided that,
notwithstanding the assignment and assumption hereunder, RFC shall have the
concurrent right to exercise remedies and pursue indemnification upon a breach
by a Seller under any Seller Contract of any of its representations and
warranties.
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RFC hereby represents and warrants to the Company that, with
respect to each Mortgage Loan, the REMIC's tax basis in each Mortgage Loan as of
the Closing Date is equal to or greater than 100% of the Stated Principal
Balance thereof.
6. RFC, as master servicer under the Pooling and Servicing Agreement (the
"Master Servicer"), shall not waive (or permit a sub servicer to waive) any
Prepayment Charge unless: (i) the enforceability thereof shall have been limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally, (ii) the enforcement thereof is
illegal, or any local, state or federal agency has threatened legal action if
the prepayment penalty is enforced, (iii) the collectability thereof shall have
been limited due to acceleration in connection with a foreclosure or other
involuntary payment or (iv) such waiver is standard and customary in servicing
similar Mortgage Loans and relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of the Master Servicer, maximize
recovery of total proceeds taking into account the value of such Prepayment
Charge and the related Mortgage Loan. In no event will the Master Servicer waive
a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is
not related to a default or a reasonably foreseeable default. If a Prepayment
Charge is waived, but does not meet the standards described above, then the
Master Servicer is required to pay the amount of such waived Prepayment Charge
to the holder of the Class SB Certificates at the time that the amount prepaid
on the related Mortgage Loan is required to be deposited into the Custodial
Account. Notwithstanding any other provisions of this Agreement, any payments
made by the Master Servicer in respect of any waived Prepayment Charges pursuant
to this Section shall be deemed to be paid outside of the Trust Fund and not
part of any REMIC.
[Signature Page Follows]
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This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns, and no other
person shall have any right or obligation hereunder.
IN WITNESS WHEREOF, the parties have entered into this Assignment and
Assumption Agreement as of the date first above written.
RESIDENTIAL FUNDING CORPORATION
By:
--------------------------------
Name:
Title:
RESIDENTIAL ASSET MORTGAGE
PRODUCTS, INC.
By:
--------------------------------
Name:
Title:
