ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT
AND
ASSUMPTION
AGREEMENT,
dated
October 30,
2006,
between Residential Funding Company,
LLC, a Delaware corporation ("RFC"), and
Residential Accredit Loans, Inc., a Delaware corporation (the
"Company").
RECITALS
A.
RFC has
entered
into
contracts
("Seller
Contracts")
with
various seller/servicers,
pursuant to which such seller/servicers sell to RFC
mortgage loans.
B. The
Company
wishes
to
purchase
from RFC
certain
Mortgage
Loans (as hereinafter defined) sold to RFC pursuant to the Seller
Contracts.
C. The Company,
RFC, as master servicer,
and Deutsche Bank Trust
Company
Americas,
as trustee (the
"Trustee"),
are
entering
into a Series
Supplement,
dated as of October 30,
2006 (the "Series Supplement"),
and the
Standard
Terms of Pooling and
Servicing
Agreement,
dated as of October 30,
2006 (collectively, the "Pooling and Servicing Agreement"),
pursuant to which
the
Company
proposes
to
issue
Mortgage
Asset-Backed
Pass-Through
Certificates,
Series
2006-QA9
(the
"Certificates")
consisting
of
eleven
classes
designated as Class A-1,
Class A-2, Class M-1, Class M-2, Class M-3,
Class
M-4,
Class
M-5,
Class
M-6,
Class R-1,
Class
R-X
and
Class
SB
Certificates
representing
beneficial
ownership
interests
in a trust
fund
consisting
primarily of a pool of mortgage loans identified in Exhibit One to
the Series Supplement (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-1
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
October 1, 2006
(other than
payments of principal
and interest due on the Mortgage
Loans on
or before October 30, 2006). In consideration
of such assignment,
RFC or its
designee
will
receive
from the Company in
immediately
available
funds an
amount
equal to
$377,917,551.82
and a de
minimis
portion of each class of
the Class R-1
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.
RFC and the
Company
agree
that the sale of each
Pledged
Asset
Loan
pursuant
to
this
Agreement
will
also
constitute
the
assignment,
sale,
setting-over,
transfer and conveyance to the Company,
without
recourse (but
subject
to
RFC's
covenants,
representations
and
warranties
specifically
provided herein),
of all of RFC's
obligations and all of RFC's right,
title
and interest in, to and under,
whether now existing or hereafter
acquired as
owner
of
such
Pledged
Asset
Loan
with
respect
to any
and
all
money,
securities,
security
entitlements,
accounts,
general intangibles,
payment
intangibles,
instruments,
documents,
deposit
accounts,
certificates
of
deposit,
commodities
contracts,
and
other
investment
property
and other
property
of whatever
kind or
description
consisting
of,
arising
from or
related to, (i) the Credit
Support Pledge
Agreement,
the Funding and Pledge
Agreement
among the
Mortgagor or other Person
pledging the related
Pledged
Assets
(the
"Customer"),
Combined
Collateral
LLC and
National
Financial
Services
Corporation,
and the Additional
Collateral
Agreement between GMAC
Mortgage
Corporation
and
the
Customer
(collectively,
the
"Assigned
Contracts"),
(ii) all
rights,
powers and
remedies
of RFC as owner of such
Pledged
Asset
Loan
under
or in
connection
with the
Assigned
Contracts,
whether
arising under the terms of such Assigned
Contracts,
by statute,
at
law or in equity,
or
otherwise
arising out of any default by the
Mortgagor
under or in connection
with the Assigned
Contracts,
including all rights to
exercise any election or option or to make any
decision or
determination
or
to give or receive any notice, consent,
approval or waiver thereunder,
(iii)
the
Pledged
Amounts
and
all
money,
securities,
security
entitlements,
accounts, general intangibles,
payment intangibles,
instruments,
documents,
deposit accounts,
certificates of deposit,
commodities contracts,
and other
investment
property and other
property of whatever kind or
description
and
all cash and non-cash
proceeds of the sale,
exchange,
or redemption of, and
all stock or conversion rights, rights to subscribe,
liquidation dividends or
preferences,
stock
dividends,
rights
to
interest,
dividends,
earnings,
income,
rents, issues,
profits,
interest payments or other distributions of
cash or other property that secures a Pledged Asset Loan,
(iv) all documents,
books and records
concerning the foregoing
(including all computer programs,
tapes,
disks and related items
containing any such
information) and (v) all
insurance
proceeds
(including
proceeds from the Federal
Deposit
Insurance
Corporation or the
Securities
Investor
Protection
Corporation or any other
insurance
company)
of
any of
the
foregoing
or
replacements
thereof
or
substitutions therefor, proceeds of proceeds and the conversion,
voluntary or
involuntary,
of any thereof.
The foregoing
transfer,
sale,
assignment and
conveyance
does not constitute and is not intended to result in the creation,
or an
assumption
by the
Company,
of any
obligation
of RFC,
or any other
Person
in
connection
with the
Pledged
Assets or under
any
agreement
or
instrument relating thereto,
including any obligation to the Mortgagor, other
than as owner of the Pledged Asset Loan.
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 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, and
hereby is, a grant by RFC to the
Company
of a security interest in all of RFC's right, title and interest,
whether now
owned
or
hereafter
acquired,
in and to any
and all
general
intangibles,
payment intangibles,
accounts, chattel paper, instruments,
documents, money,
deposit accounts,
certificates of deposit,
goods, letters of credit, advices
of credit and investment
property
consisting of, arising from or relating to
any of the following:
(A) the Mortgage Loans,
including
(i) with respect to
each
Cooperative
Loan,
the
related
Mortgage
Note,
Security
Agreement,
Assignment of Proprietary Lease,
Cooperative Stock
Certificate,
Cooperative
Lease, any insurance
policies and all other documents in the related Mortgage
File,
(ii) with
respect to each Mortgage Loan other than a Cooperative Loan,
the related Mortgage Note, the Mortgage,
any insurance policies and all other
documents in the related
Mortgage
File,
(B) all monies due or to become due
pursuant
to the
Mortgage
Loans in
accordance
with the terms
thereof
and
(C) 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
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,
securities
intermediaries,
bailees or agents of, or persons holding for, (as
applicable) 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
determined
to
create a
security
interest
in the
Mortgage Loans and the other property
described above, such security interest
would be
determined
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 state of
formation,
place of business or the chief
executive
office of RFC, or (3) any
transfer
of any interest of RFC in any Mortgage Loan.
Notwithstanding
the
foregoing,
(i) the
Master
Servicer
shall
retain all servicing rights (including,
without limitation, primary servicing
and master
servicing)
relating to or arising out of the Mortgage Loans,
and
all rights to receive
servicing
fees,
servicing
income and other
payments
made as
compensation
for such servicing
granted to it under the Pooling and
Servicing
Agreement
pursuant to the terms and
conditions
set forth therein
(collectively,
the "Servicing
Rights") and (ii) the Servicing Rights are not
included in the
collateral in which RFC grants a security
interest
pursuant
to the immediately preceding paragraph.
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 a de minimis portion of the Class R-1
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
Exhibit
One to the
Series
Supplement
with respect to each Mortgage Loan or the Mortgage
Loans,
as the
case may be, is true and
correct
in all
material
respects,
at the date or
dates respecting which such information is furnished;
(b)
Each
Mortgage
Loan
with
a
Loan-to-Value
Ratio
at
origination
in excess of 80% will be
insured by a Primary
Insurance
Policy
covering
at
least
35% of the
principal
balance
of the
Mortgage
Loan at
origination
if the
Loan-to-Value
Ratio is between
100.00% and
95.01%,
at
least 30% of the principal
balance of the Mortgage Loan at origination if the
Loan-to-Value
Ratio is between 95.00% and 90.01%, at least 25% of the balance
if the
Loan-to-Value
Ratio is between
90.00% and 85.01% and at least 12% of
the balance if the
Loan-to-Value
Ratio is between 85.00% and 80.01%.
To the
best of the
Company's
knowledge,
each such Primary
Insurance
Policy is in
full force and effect and the Trustee is entitled to the benefits
thereunder;
(c)
Each Primary
Insurance Policy insures the named insured and
its successors and assigns,
and the issuer of the Primary Insurance Policy is
an insurance company whose
claims-paying
ability is currently
acceptable to
the Rating Agencies;
(d)
Immediately
prior to the
assignment 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, 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 RFC that would materially
adversely affect the
enforceability of
any Mortgage Loan or the interests therein of any holder of the
Certificates;
(e)
No Mortgage
Loan was 30 or more days
delinquent in payment
of
principal
and
interest as of the Cut-off
Date and no Mortgage
Loan has
been so delinquent
more than once in the 12-month period prior to the Cut-off
Date;
(f)
Subject
to
clause
(e)
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
has been
waived by the Seller or by any other
entity
involved in originating or servicing a Mortgage Loan;
(g)
There is no delinquent
tax or
assessment
lien against any
Mortgaged Property;
(h)
No
Mortgagor
has
any
right
of
offset,
defense
or
counterclaim
as to the related
Mortgage
Note or
Mortgage
except as may be
provided
under the
Servicemembers
Civil Relief Act,
formerly
known as the
Soldiers'
and Sailors'
Civil Relief Act of 1940 as amended,
and except with
respect to any buydown agreement for a Buydown Mortgage Loan;
(i)
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
described
under clause (aa) below;
(j)
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;
(k)
Each
Mortgage
Loan at the time it was made complied in all
material respects with applicable local,
state, and federal laws,
including,
but not limited to, all applicable anti-predatory lending laws;
(l)
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,
(ii) by
summary
foreclosure,
if available under
applicable law, and (iii) otherwise
by foreclosure,
and 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;
(m)
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
