EXECUTION COPY
ASSIGNMENT AND ASSUMPTION
AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated June
28, 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 June 1, 2007 (the "Series Supplement"), and
the Standard Terms of Pooling and Servicing Agreement, dated as
of June 1, 2007 (collectively, the "Pooling and
Servicing Agreement"), pursuant to which the Company proposes
to issue Mortgage Asset-Backed Pass-Through
Certificates, Series 2007-QH6 (the "Certificates") consisting
of seventeen classes designated as Class A-1,
Class A-2, Class A-3, Class R-I, Class R-II, Class R-III, Class
R-X, 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 B 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-I, Class R-II and Class R-III
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
June 1, 2007 (other than payments of principal
and interest due on the Mortgage Loans on or before June 1, 2007).
In consideration of such assignment, RFC or
its designee will receive from the Company in immediately
available funds an amount equal to $614,456,013.96 and
a de minimis portion of the Class R-I, Class R-II and Class
R-III 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, 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 (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.
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-I, Class R-II
and Class R-III 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 and
provided that all percentages of the Mortgage Loans
described in this Section 4 are approximate percentages by
outstanding principal balance determined as of the
Cut-off Date after deducting payments due during the month of the
Cut-off Date):
(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%, with the exception of one mortgage loan
representing approximately 0.1% of the mortgage loans, 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
payment-option, hybrid adjustable-rate first lien mortgage
loans, with a negative amortization feature 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) 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;
(p) 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;
(q) 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 interest to the Company free and clear of any
pledge, lien, or security interest or other encumbrance of any
Person;
(r) The full amount of the Pledged Amount
with respect to such Pledged Asset Loan has been
deposited with the custodian under the Credit Support Pledge
Agreement and is on deposit in the custodial account
held thereunder as of the date hereof;
(s) RFC is a member of MERS, in good
standing, and current in payment of all fees and
assessments imposed by MERS, and
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