EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT,
dated April 27, 2007, between Residential
Funding Company,
LLC, a Delaware limited liability company ("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
April 1, 2007
(the
"Series
Supplement"),
and the Standard
Terms of Pooling and
Servicing
Agreement,
dated
as
of
December
1,
2006
(collectively,
the
"Pooling
and
Servicing
Agreement"),
pursuant
to
which
the
Company
proposes
to
issue
Mortgage
Asset-Backed
Pass-Through
Certificates,
Series 2007-QA3 (the "Certificates") consisting of twelve classes
designated as Class A-1,
Class A-2,
Class A-3,
Class A-4,
Class A-5, Class M-1, Class M-2,
Class M-3, Class M-4, Class M-5, 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,
and with respect to the Sharia
Mortgage Loans,
all
amounts in respect of profit
payments
and
acquisition
payments,
received
on or with
respect to the
Mortgage
Loans after
April 1,
2007 (other than
payments of
principal
and
interest,
and with
respect to the Sharia
Mortgage
Loans,
all amounts in respect of profit
payments and
acquisition
payments,
due on the Mortgage
Loans on or before April 27, 2007).
In
consideration
of such
assignment,
RFC or its designee
will receive from the Company in
immediately
available
funds an amount equal to
$904,315,811.94
and a de minimis portion 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
or security
instrument,
as
applicable,
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,
LLC
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 with respect to each Sharia Mortgage Loan, the
related
Sharia
Mortgage
Loan
Security
Instrument,
Sharia
Mortgage
Loan
Co-Ownership
Agreement,
Obligation to Pay, Assignment Agreement and Amendment of Security
Instrument,
any
insurance
policies
and all
other
documents
in the
related
Mortgage
File,
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)
Except for one
Mortgage
Loan
representing
approximately
0.1% of the
aggregate
principal
balance of the Mortgage Loans at origination,
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 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;
(n)
The Mortgage Loans are hybrid adjustable-rate,
fully-amortizing,
first
lien
mortgage
loans
having
terms to
maturity
of not more than 30 years
from the date of
origination
or
modification
with monthly
payments
due,
with respect to a majority of the
Mortgage Loans, on the first day of each month;
(o)
No
Mortgage
Loan
provides
for
deferred
interest
or
negative
amortization;
(p)
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;
(q)
Each Assigned
Contract
relating to each Pledged Asset Loan is a valid,
binding and legally enforceable
obligation of the parties thereto,
enforceable in accordance
with
their
terms,
except
as
limited
by
bankruptcy,
insolvency
or other
similar
laws
affecting generally the enforcement of creditor's rights;
(r)
The
Assignor is the holder of all of the right,
title and
interest as
owner of each Pledged Asset Loan in and to each of the Assigned
Contracts
delivered and sold
to the Company
hereunder,
and the
assignment
hereof by RFC validly
transfers
such right,
title and in
