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EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated March 31, 2005,
between Residential Funding Corporation, 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 March 1, 2005 (the "Series Supplement"),
and the
Standard Terms of Pooling and Servicing Agreement, dated as of
August 1, 2004
(collectively, the "Pooling and Servicing Agreement"), pursuant
to which the
Company proposes to issue Mortgage Asset-Backed Pass-Through
Certificates,
Series 2005-QA3 (the "Certificates") consisting of nine classes
designated as
Class CB-I, Class NB-I, Class CB-II, Class NB-II, Class CB-III,
Class NB-III,
Class CB-III, Class NB-IV and Class R Certificates; and six
classes designated
as Class M-1, Class M-2 and Class M-3 (collectively, the "Class
M
Certificates"), and Class B-1, Class B-2 and Class B-3
(collectively, the "Class
B 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
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.
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 March 1,
2005 (other
than payments of principal and interest due on the Mortgage
Loans on or before
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March 31, 2005). In consideration of such assignment, RFC or its
designee will
receive from the Company in immediately available funds an
amount equal to
$507,294,915.29 and a de minimis portion of the Class R
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, (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
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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 and (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.
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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
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;
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(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 wi
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