ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated August 30,
2007, between Residential
Funding Company, LLC, a Delaware limited liability company
("RFC"), and Residential Funding
Mortgage Securities I, Inc., a Delaware corporation (the
"Company").
Recitals
I. RFC has entered into contracts ("Seller Contracts") with
various seller/servicers,
pursuant to which such seller/servicers sell to RFC mortgage loans.
II. The Company wishes to purchase from RFC certain
Mortgage Loans (as hereinafter
defined) sold to RFC pursuant to the Seller Contracts.
III. The Company, RFC, as master servicer and U.S. Bank
National Association, as trustee
(the "Trustee"), are entering into a Series Supplement, dated
as of August 1, 2007 (the
"Series Supplement") to the Standard Terms of Pooling and
Servicing Agreement, dated as of
July 1, 2007 (together with the Series Supplement, the "Pooling
and Servicing Agreement"),
pursuant to which the Company proposes to issue Mortgage
Pass-Through Certificates,
Series 2007-SA4 (the "Certificates") consisting of classes
designated as the Class I-A, Class
II-A, Class III-A-1, Class III-A-2, Class IV-A-1, Class IV-A-2,
Class V-A-1, Class V-A-2,
Class R-I and Class R-II Certificates (collectively, the "Senior
Certificates"), 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, Exhibit Two, Exhibit Three, Exhibit Four and
Exhibit Five to the Series
Supplement (the "Mortgage Loans").
IV. In connection with the purchase of the Mortgage Loans, the
Company will assign to RFC
the Class I-A Certificates, the Class II-A Certificates, the
Class III-A-2 Certificates, the
Class IV-A-2 Certificates, the Class V-A-2 Certificate, the Class
M Certificates, the Class
B Certificates and a de minimis portion of each of the Class R-I
and Class R-II Certificates
(collectively, the "Retained Certificates").
V. 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.
VI. 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:
Section 1. All capitalized terms used but not defined
herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
Section 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 August 1, 2007 (other than payments of principal
and interest, due on the
Mortgage Loans in August 2007). In consideration of such
assignment, RFC or its designee
will receive from the Company in immediately available
funds an amount equal to
$359,050,821.13 plus the Retained 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 or security instrument, as
applicable, in recordable
form to the Trustee or its agent. A "Destroyed Mortgage Note"
means a Mortgage Note the
original of which was permanently lost or destroyed.
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.
However, in the event that the
Mortgage Loans are held to be property of RFC, or if for any
reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans,
then it is intended that (a)
this Agreement shall be 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 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.
Section 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 the Retained
Certificates as part of the consideration payable to RFC by the
Company pursuant to this
Agreement.
Section 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):
i. The information set forth in Exhibit One, Exhibit Two
and Exhibit Three 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;
ii. Each mortgage loan with a Loan-to-Value Ratio at
origination in excess of 80%, will
be insured by a primary mortgage insurance policy (a "Primary
Insurance Policy") covering 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
of the mortgage loan at
origination if the Loan-to-Value Ratio is between 90.00% and
85.01%, and at least 12% of the
balance of the mortgage loan at origination 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;
iii. 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;
iv. 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;
v. 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;
vi. Subject to clause (v) 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;
vii. There is no delinquent tax or assessment lien against any
Mortgaged Property;
viii. 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;
ix. [None] of the Mortgage Loans are Buy-Down Mortgage Loans;
x. 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 (xv) below;
xi. 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;
xii. 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;
xiii. 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
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