ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement"), is dated January 30,
2007, between Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership ("Assignor"),
and Residential Funding Company, LLC, a Delaware limited liability company ("Assignee").
For and in consideration of the purchase price as agreed upon by the Assignor and
Assignee and other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto hereby agree
as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee all of the
right, title and interest of the Assignor, in and to the mortgage loans identified on
Schedule A hereto (the "Mortgage Loans"), including, without limitation, all interest and
principal received on or with respect to the Mortgage Loans after January 1, 2007, other
than scheduled payments of principal and interest due on the Mortgage Loans on or before
January 1, 2007.
2. Concurrently with the execution and delivery hereof, the Assignor hereby
grants, transfers and assigns to Assignee, with respect to the Mortgage Loans, all of the
right, title and interest of the Assignor in, to and under that certain Assignment and
Conveyance dated as of December 28, 2006 pursuant to the Standard Terms and Provisions of
Sale and Servicing Agreement, Adjustable Rate Mortgage Loans dated as of September 29, 2005,
as amended by Amendment No. 1 to the Standard Terms and Provisions of Sale and Servicing
Agreement, dated as of June 26, 2006, Amendment No. 2 to the Standard Terms and Provisions
of Sale and Servicing Agreement, dated as of October 6, 2006 and Amendment No. 3 to the
Standard Terms and Provisions of Sale and Servicing Agreement, dated as of December 28, 2006
(the "Servicing Agreement") by and between Residential Funding Company, LLC, formerly known
as Residential Funding Corporation, and Xxxxxxx Sachs Mortgage Company and that certain
Custodial Agreement (the "Custodial Agreement), dated December 7, 2006 by and among
Residential Funding Company, LLC, Xxxxxxx Xxxxx Mortgage Company and Xxxxx Fargo Bank
National Association, as custodian.
3. Capitalized words and phrases used but not otherwise defined in this
Assignment and Assumption Agreement shall have the respective meanings assigned to them in
the Servicing Agreement.
4. Concurrently with the execution and delivery hereof, Assignor hereby assigns
to the Assignee 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 January 1, 2007 (other than scheduled payments of principal and
interest due on the Mortgage Loans on or before January 1, 2007). In consideration of
such assignment, Assignor or its designee will receive from the Assignee in immediately
available funds an amount equal to $179,601,737.95. In connection with such assignment
and at the Assignee's direction, Assignor 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, except with respect to any MERS Mortgage Loan, delivered an assignment of
mortgage in recordable form to the Trustee or its agent.
5. The Assignor warrants and represents to, and covenants with, the
Assignee that:
a. Assignor is a limited partnership duly formed and validly existing under the laws of
the State of New York with full power and authority to enter into and perform its
obligations under the Sale and Servicing Agreement and this Agreement;
b. This Agreement has been duly executed and delivered by Assignor, and, assuming due
authorization, execution and delivery by each of the other parties hereto, constitutes a
legal, valid and binding agreement of Assignor, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other similar
laws affecting creditors' rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law;
c. The execution, delivery and performance by Assignor of this Agreement and the
consummation of the transactions contemplated hereby do not require the consent or approval
of, the giving of notice to, the registration with, or the taking of any other action in
respect of, any state, federal or other governmental authority or agency, except such as has
been obtained, given, effected or taken prior to the date thereof;
d. The execution and delivery of this Agreement have been duly authorized by all
necessary corporate action on the part of Assignor; neither the execution and delivery by
Assignor of this Agreement, nor the consummation by Assignor of the transactions herein
contemplated, nor compliance by Assignor with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, any of the provisions of the governing
documents of Assignor or any law, governmental rule or regulation or any material judgment,
decree or order binding on Assignor or any of its properties, or any of the provisions of
any material indenture, mortgage, deed of trust, contract or other instrument to which
Assignor is a party or by which it is bound;
e. There are no actions, suits or proceedings pending or, to the knowledge of Assignor,
threatened, before or by any court, administrative agency, arbitrator or governmental body
(A) with respect to any of the transactions contemplated by this Agreement or (B) with
respect to any other matter that in the judgment of Assignor will be determined adversely to
Assignor and will if determined adversely to Assignor materially adversely affect its
ability to perform its obligations under this Agreement;
f. Immediately prior to the assignment of the Mortgage Loans to the Assignee, Assignor
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 Assignor that would materially adversely affect the enforceability of any Mortgage
Loan or the interests therein of the Assignee;
g. The Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Assignee with respect to the Servicing
Agreement or the Mortgage Loans;
h. Assignor has not waived or agreed to any waiver under, or agreed to any amendment or
other modification of, the Servicing Agreement (except for any amendments or modifications
with respect to the Mortgage Loans set forth in the Assignment, as applicable) or the
Mortgage Loans, including without limitation the transfer of the servicing obligations under
the Servicing Agreement. Assignor has no knowledge of, and has not received notice of, any
waivers under or amendments or other modifications of or assignments of rights or
obligations under the Servicing Agreement or the Mortgage Loans;
i. Neither the Assignor nor anyone acting on its behalf has offered, transferred,
pledged, sold, or otherwise disposed of the Mortgage Loans or any interest in the Mortgage
Loans to, or solicited any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans or any interest in the Mortgage Loans from, or otherwise approached or
negotiated with respect to the Mortgage Loans, any interest in the Mortgage Loans with, any
Person in any manner, or made any general solicitation by means of general advertising or in
any other manner, or taken any other action which would constitute a distribution of the
Mortgage Loans under the Securities Act of 1933 (the "Securities Act") or which would render
the disposition of the Mortgage Loans a violation of Section 5 of the Securities Act or
require registration pursuant thereto;
j. Each Mortgaged Property is free of damage and in good repair and no notice of
condemnation has been given with respect to any pending or threatened proceeding for the
total or partial condemnation of the Mortgaged Property, and the Assignor knows of nothing
involving any Mortgaged Property that could reasonably be expected to materially adversely
affect the value or marketability of any Mortgaged Property;
k. Except for the sale to the Assignee, Assignor has not assigned or pledged any
Mortgage Note or the related Mortgage or any interest or participation therein;
l. Assignor has not satisfied, canceled, or subordinated in whole or in part, or
rescinded the Mortgage, and Assignor has not released the Mortgaged Property from the lien
of the Mortgage, in whole or in part, nor has Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. Assignor has not
released any Mortgagor, in whole or in part, except in connection with an assumption
agreement or other agreement approved by the related federal insurer, to the extent such
approval was required; and
m. None of the Mortgage Loans were 30 or more days delinquent in payment of principal
and interest as of as of January 1, 2007;
n. Subject to clause (m) 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 was waived by Assignee or by any other entity involved in originating or
servicing a Mortgage Loan;
o. There is no delinquent tax or assessment lien against any Mortgaged Property;
p. 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;
q. No instrument of release or waiver has been executed in connection with the Mortgage
Loans, and no Mortgagor has been released, in whole or in part from its obligations in
connection with a Mortgage Loan; and
r. Assignor shall indemnify the Assignee and hold it harmless against any loss,
liability or expense incurred in connection with any claim, demand, defense or assertion
based on or grounded upon or resulting from, a breach of the Assignor's representations,
warranties and covenants set forth in this Assignment and Assumption Agreement
No representation and warranty by Assignor hereunder constitutes a waiver of any of
the rights of Assignor with respect to the representations and warranties of Assignee under
the Servicing Agreement.
6. The Assignee warrants and represents to, and covenants with, the Assignor that:
a. The Assignee agrees to be bound, as Owner by all of the terms, covenants and
conditions of the Mortgage Loans and the Custodial Agreement with respect to the Mortgage
Loans and from and after the date hereof, the Assignee assumes for the benefit of each of
the Assignor and the Assignee all of the Assignor's obligations as Owner thereunder with
respect to the Mortgage Loans;
b. The Assignee is either (i) not an employee benefit plan that is subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Internal Revenue Code of 1986 (the "Code") (a "Plan") and not a Person acting, directly
or indirectly, on behalf of or investing with "plan assets" of any such Plan or (ii) an
employee benefit plan that is subject to ERISA and the assignment contemplated herein does
not constitute and will not result in a non-exempt prohibited transaction under Section 406
of ERISA or Section 4975 of the Code; and
c. The Assignee shall indemnify the Assignor and hold it harmless against any loss,
liability or expense incurred in connection with any claim, demand, defense or assertion
based on or grounded upon or resulting from, a breach of the Assignee's representations,
warranties and covenants set forth in this Assignment and Assumption Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have entered into this Assignment and
Assumption Agreement on the date first written above.
RESIDENTIAL FUNDING COMPANY, LLC
By: __________________________________
Name: Xxxxxx Xxxxxx
Title: Associate
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its General Partner
By:___________________________________
Name:
Title:
SCHEDULE A
Mortgage Loans Purchased On [ ]
[On file with RFC]
SCHEDULE B
Schedule of Mortgage Loans with
Defective Mortgage Files
(See attached)
