EXECUTION COPY
DATE: May 30, 2007
TO: Deutsche Bank Trust Company Americas, not in its individual capacity
but solely as Supplemental Interest Trust Trustee for the benefit of
RALI Series 2007-QH5 Supplemental Interest Trust, acting on behalf of
the Class A Certificateholders and Class M Certificateholders under the
Pooling and Servicing Agreement identified below ("PARTY A")
ATTENTION: RALI Series 2007-QH5
FROM: Deutsche Bank Trust Company Americas, not in its individual capacity
but solely as Supplemental Interest Trust Trustee for the benefit of
RALI Series 2007-QH5 Supplemental Interest Trust, acting on behalf of
the Class SB Certificateholders under the Pooling and Servicing
Agreement identified below ("PARTY B")
SUBJECT: Payment Swap Confirmation and Agreement
REFERENCE NUMBER
The purpose of this letter agreement (the "Agreement") is to confirm the terms and
conditions of the Transaction entered into on the Trade Date specified below (the
"Transaction") between Party A and Party B. This Agreement, which evidences a complete and
binding agreement between you and us to enter into the Transaction on the terms set forth
below, constitutes a "Confirmation" as referred to in the ISDA Form Master Agreement (as
defined below), as well as a "Schedule" as referred to in the ISDA Form Master Agreement.
1. This Agreement is subject to and incorporates the 2000 ISDA Definitions (the
"Definitions"), as published by the International Swaps and Derivatives Association, Inc.
("ISDA"). You and we have agreed to enter into this Agreement in lieu of negotiating a
Schedule to the 1992 ISDA Master Agreement (Multicurrency-Cross Border) form (the "ISDA Form
Master Agreement") but, rather, an ISDA Form Master Agreement shall be deemed to have been
executed by you and us on the date we entered into the Transaction. In the event of any
inconsistency between the provisions of this Agreement and the Definitions or the ISDA Form
Master Agreement, this Agreement shall prevail for purposes of the Transaction. Terms used
and not otherwise defined herein, in the ISDA Form Master Agreement or the Definitions shall
have the meanings assigned to them in the series supplement (the "Series Supplement"), dated
as of May 1, 2007, to the standard terms of pooling and servicing agreement, dated as of May
1, 2007 (the "Standard Terms", and together with the Series Supplement, the "Pooling and
Servicing Agreement"), among Residential Accredit Loans, Inc., as depositor, Residential
Funding Company, LLC, as master servicer, and Deutsche Bank Trust Company Americas, as
trustee and supplemental interest trust trustee. Each reference to a "Section" or to a
"Section" "of this Agreement" will be construed as a reference to a Section of the 1992 ISDA
Form Master Agreement. Each capitalized term used herein that is not defined herein or in
the 1992 ISDA Form Master Agreement shall have the meaning defined in the Pooling and
Servicing Agreement. Notwithstanding anything herein to the contrary, should any provision
of this Agreement conflict with any provision of the Pooling and Servicing Agreement, the
provision of the Pooling and Servicing Agreement shall apply.
2. The terms of the particular Transaction to which this Confirmation relates are as
follows:
Trade Date:
Effective Date:
Termination Date: June 25, 2037 subject to adjustment in accordance with the Business
Day Convention.
Business Days: California, Minnesota, Texas, New York, Illinois.
Business Day Convention: Following.
PARTY A PAYMENTS:
Party A Payment Dates: Each Distribution Date under the Pooling and Servicing Agreement.
Party A Payment Amounts: On each Party A Payment Date, the amount, if any, equal to the
aggregate amount of Net Swap Payments and Swap Termination Payments
owed to the Swap Counterparty remaining unpaid after application of
the sum of (A) from the REMIC I Available Distribution Amount (less
the amount distributable on such Distribution Date in respect of
REMIC IV Regular Interest IO) that would have remained had the REMIC
I Available Distribution Amount (less the amount distributable on
such Distribution Date in respect of REMIC IV Regular Interest IO)
been applied on such Distribution Date to make the distributions for
such Distribution Date under Section 4.02(c) clauses (i) through
(ix) of the Pooling and Servicing Agreement, the sum of (I) Accrued
Certificate Interest on the Class SB Certificates, (II) the amount
of any Overcollateralization Reduction Amount and (III) for each
Distribution Date after the Certificate Principal Balance of each
Class of Class A Certificates and Class M Certificates has been
reduced to zero, the Overcollateralization Amount, (B) from
prepayment charges on deposit in the Certificate Amount, any
prepayment charges received on the Mortgage Loans during the related
Prepayment Period and (C) the amount distributable on such
Distribution Date in respect of the REMIC IV Regular Interest IO.
PARTY B PAYMENTS:
Party B Payment Dates: Each Distribution Date under the Pooling and Servicing Agreement
Party B Payment Amounts: On each Party B Payment Date, an amount equal to the lesser of (a)
the Available Distribution Amount remaining on such Distribution
Date after the distributions on such Distribution Date under
Section 4.02(c) clauses (i) through (v) of the Pooling and
Servicing Agreement and (b) the aggregate unpaid Basis Risk
Shortfalls allocated to the Class A Certificateholders and the
Class M Certificateholders for such Distribution Date.
3. Additional Provisions: Each party hereto is hereby advised and acknowledges that the
other party has engaged in (or refrained from engaging in) substantial financial
transactions and has taken (or refrained from taking) other material actions in reliance
upon the entry by the parties into the Transaction being entered into on the terms and
conditions set forth herein and in the ISDA Form Master Agreement relating to such
Transaction, as applicable.
4. Provisions Deemed Incorporated in a Schedule to the ISDA Form Master Agreement:
1) Termination Provisions. For purposes of the ISDA Form Master Agreement:
(a) "Specified Entity" is not applicable to Party A or Party B for any purpose.
(b) "Specified Transaction" is not applicable to Party A or Party B for any purpose, and,
accordingly, Section 5(a)(v) shall not apply to Party A or Party B.
(c) The "Cross Default" provisions of Section 5(a)(vi) shall not apply to Party A or
Party B.
(d) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not apply to Party
A or Party B.
(e) With respect to Party A and Party B, the "Bankruptcy" provision of Section
5(a)(vii)(2) of the ISDA Form Master Agreement will be deleted in its entirety.
(f) The "Automatic Early Termination" provision of Section 6(a) will not apply to Party A
or to Party B.
(g) Payments on Early Termination. For the purpose of Section 6(e) of the ISDA Form
Master Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(h) "Termination Currency" means United States Dollars.
(i) The provisions of Sections 5(a)(ii), 5(a)(iii) and 5(a)(iv) shall not apply to Party
A or Party B.
(j) Tax Event. The provisions of Section 2(d)(i)(4) and 2(d)(ii) of the ISDA Form Master
Agreement shall not apply to Party A and Party A shall not be required to pay
any additional amounts referred to therein.
2) Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e) of the ISDA Form Master
Agreement, each of Party A and Party B will make the following representations:
It is not required by any applicable law, as modified by
the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax
from any payment (other than interest under Section
2(e), 6(d)(ii) or 6(e) of the ISDA Form Master
Agreement) to be made by it to the other party under
this Agreement. In making this representation, it may
rely on:
(i) the accuracy of any representations made by the other party pursuant to Section 3(f)
of the ISDA Form Master Agreement;
(ii) the satisfaction of the agreement contained in Sections 4(a)(i) or 4(a)(iii) of the
ISDA Form Master Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Sections 4(a)(i) or
4(a)(iii) of the ISDA Form Master Agreement; and
(iii) the satisfaction of the agreement of the other party contained in Section 4(d) of the
ISDA Form Master Agreement, provided that it shall not be a breach of
this representation where reliance is placed on clause (ii) and the
other party does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of the ISDA Form Master
Agreement, Party A and Party B make the following representations: None
3) Documents to be Delivered. For the purpose of Section 4(a) (i) and 4(a) (iii):
(1) Tax forms, documents, or certificates to be delivered are:
PARTY REQUIRED TO DELIVER FORM/DOCUMENT/ DATE BY WHICH TO
DOCUMENT CERTIFICATE BE DELIVERED
Party A and Party B Any documents required or Promptly after the earlier of (i) reasonable demand
reasonably requested to allow by either party or (ii) actual knowledge that such
the other party to make payments form or document is required
under this Agreement without any
deduction or withholding for or
on the account of any Tax or
with such deduction or
withholding at a reduced rate
(2) Other documents to be delivered are:
PARTY REQUIRED FORM/DOCUMENT/ DATE BY WHICH TO BE COVERED BY
TO DELIVER CERTIFICATE DELIVERED SECTION 3(D)
DOCUMENT REPRESENTATION
Party A and Party B Any documents required by the Upon execution and Yes
receiving party to evidence the delivery of this
authority of the delivering party for Agreement and such
it to execute and deliver this Confirmation
Agreement, any Confirmation to which
it is a party, and to evidence the
authority of the delivering party to
perform its obligations under this
Agreement and such Confirmation.
Party A and Party B A certificate of an authorized officer Upon the execution and Yes
of the party, as to the incumbency and delivery of this
authority of the respective officers Agreement and such
of the party signing this Agreement Confirmation
4) Miscellaneous. Miscellaneous
(a) Address for Notices: For the purposes of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address: RALI Series 2007-QH5 Trust,
acting through Deutsche Bank Trust Company Americas
not in its individual capacity
but solely in its capacity as
Supplemental Interest Trust
Trustee for the benefit of the
RALI Series 2007-QH5 Supplemental Interest Trust
Attn: RALI Series 2007-QH5 Trust
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Residential Funding Company, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(For all purposes)
Address for notices or communications to Party B:
Address: RALI Series 2007-QH5 Trust,
acting through Deutsche Bank Trust Company Americas
not in its individual capacity
but solely in its capacity as
Supplemental Interest Trust Trustee for the benefit of the
RALI Series 2007-QH5 Supplemental Interest Trust
Attn: RALI Series 2007-QH5 Trust
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Residential Funding Company, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
(For all purposes)
(b) Process Agent. For the purpose of Section 13(c):
Party A: Not Applicable
Party B: Not Applicable
(c) Offices. The provisions of Section 10(a) will not apply to this Agreement; neither
Party A nor Party B have any Offices other than as set forth in the Notices
Section.
(d) Multibranch Party. For the purpose of Section 10(c) of the ISDA Form Master
Agreement, neither Party A nor Party B is a Multibranch. Party.
(e) Calculation Agent. The Calculation Agent is Party B.
(f) Credit Support Document.
Not Applicable
(g) Credit Support Provider.
Not Applicable
(h) Governing Law. The parties to this ISDA Agreement hereby agree that the law of the
State of New York shall govern their rights and duties in whole, without
regard to the conflict of law provision thereof, other than New York General
Obligations Law Sections 5-1401 and 5-1402.
(i) Non-Petition. Party A and Party B each hereby irrevocably and unconditionally agrees
that it will not institute against, or join any other person in instituting
against or cause any other person to institute against RALI Series 2007-QH5
Trust, Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QH5, or
the other party any bankruptcy, reorganization, arrangement, insolvency, or
similar proceeding under the laws of the United States, or any other
jurisdiction for the non-payment of any amount due hereunder or any other
reason until the payment in full of the Certificates and the expiration of a
period of one year plus ten days (or, if longer, the applicable preference
period) following such payment.
(j) Severability. If any term, provision, covenant, or condition of this Agreement, or
the application thereof to any party or circumstance, shall be held to be
invalid or unenforceable (in whole or in part) for any reason, the remaining
terms, provisions, covenants, and conditions hereof shall continue in full
force and effect as if this Agreement had been executed with the invalid or
unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective
benefits or expectations of the parties.
The parties shall endeavor to engage in good faith negotiations to
replace any invalid or unenforceable term, provision, covenant or condition
with a valid or enforceable term, provision, covenant or condition, the
economic effect of which comes as close as possible to that of the invalid or
unenforceable term, provision, covenant or condition.
(k) Consent to Recording. Each party hereto consents to the monitoring or recording, at
any time and from time to time, by the other party of any and all
communications between officers or employees of the parties, waives any
further notice of such monitoring or recording, and agrees to notify its
officers and employees of such monitoring or recording.
(l) Waiver of Jury Trial. Each party to this Agreement respectively waives any right it
may have to a trial by jury in respect of any Proceedings relating to this
Agreement or any Credit Support Document.
(m) Set-Off Notwithstanding any provision of this Agreement or any other existing or
future agreement, each party irrevocably waives any and all rights it may have
to set off, net, recoup or otherwise withhold or suspend or condition payment
or performance of any obligation between it and the other party hereunder
against any obligation between it and the other party under any other
agreements. The provisions for Set-off set forth in Section 6(e) of the ISDA
Form Master Agreement shall not apply for purposes of this Transaction.
(n) This Agreement may be executed in several counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument.
(o) Supplemental Interest Trust Trustee Liability Limitations. It is expressly understood
and agreed by the parties hereto that (a) this Agreement is executed and
delivered by Deutsche Bank Trust Company Americas, not individually or
personally but solely as Supplemental Interest Trust Trustee of Party A and
Party B, in the exercise of the powers and authority conferred and vested in
it and that Deutsche Bank Trust Company Americas shall perform its duties and
obligations hereunder in accordance with the standard of care set forth in
Article VIII of the Pooling and Servicing Agreement, (b) each of the
representations, undertakings and agreements herein made on the part of Party
A and Party B is made and intended not as personal representations,
undertakings and agreements by Deutsche Bank Trust Company Americas but is
made and intended for the purpose of binding only Party A and Party B, (c)
nothing herein contained shall be construed as creating any liability on
Deutsche Bank Trust Company Americas, individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any Person
claiming by, through or under the parties hereto; provided that nothing in
this paragraph shall relieve Deutsche Bank Trust Company Americas from
performing its duties and obligations hereunder and under the Pooling and
Servicing Agreement in accordance with the standard of care set forth therein,
and (d) under no circumstances shall Deutsche Bank Trust Company Americas be
personally liable for the payment of any indebtedness or expenses of Party A
or Party B or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party A or Party B
under this Agreement or any other related documents; provided, that nothing in
this paragraph shall relieve Deutsche Bank Trust Company Americas from
performing its duties and obligations hereunder and under the Pooling and
Servicing Agreement in accordance with the standard of care set forth herein
and therein.
5) "Affiliate". Party A and Party B shall be deemed to not have any Affiliates for
purposes of this Agreement, including for purposes of Section 6(b)(ii).
6) Section 3 of the ISDA Form Master Agreement is hereby amended by adding at the end
thereof the following subsection (g):
"(g) Relationship Between Parties.
Each party represents to the other party on each date when it enters into a
Transaction that:--
(1) Nonreliance. (i) It is not relying on any statement or representation of the other
party regarding the Transaction (whether written or oral), other than the representations
expressly made in this Agreement or the Confirmation in respect of that Transaction and (ii)
it has consulted with its own legal, regulatory, tax, business, investment, financial and
accounting advisors to the extent it has deemed necessary, and it has made its own
investment, hedging and trading decisions based upon its own judgment and upon any advice
from such advisors as it has deemed necessary and not upon any view expressed by the other
party.
(2) Evaluation and Understanding.
(i) It has the capacity to evaluate (internally or through independent professional
advice) the Transaction and has made its own decision to enter into the Transaction and has
been directed by the Pooling and Servicing Agreement to enter into this Transaction; and
(ii) It understands the terms, conditions and risks of the Transaction and is willing and
able to accept those terms and conditions and to assume those risks, financially and
otherwise.
(3) Purpose. It is entering into the Transaction for the purposes of managing its
borrowings or investments, hedging its underlying assets or liabilities or in connection
with a line of business.
(4) Status of Parties. The other party is not acting as agent, fiduciary or advisor for
it in respect of the Transaction.
(5) Eligible Contract Participant. It is an "eligible swap participant" as such term is
defined in Section 35.1(b)(2) of the regulations (17 C.F.R 35) promulgated under, and it
constitutes an "eligible contract participant" as such term is defined in Section 1(a)12 of
the Commodity Exchange Act, as amended."
7) Account Details and Settlement Information:
PAYMENTS TO PARTY A:
Deutsche Bank Trust Company Americas
ABA Number: ▇▇▇-▇▇▇-▇▇▇
Account Number: ▇▇▇▇▇▇▇▇
Account Name: NYLTD Funds Control - Stars West
Ref: RALI 2007-QH5 Swap
PAYMENTS TO PARTY B:
Deutsche Bank Trust Company Americas
ABA Number: ▇▇▇-▇▇▇-▇▇▇
Account Number: ▇▇▇▇▇▇▇▇
Account Name: NYLTD Funds Control - Stars West
Ref: RALI 2007-QH5 Swap
Please sign and return to us a copy of this Agreement.
Very truly yours,
DEUTSCHE BANK TRUST COMPANY AMERICAS, not in its
individual capacity but solely as Supplemental
Interest Trust Trustee for the benefit of RALI
Series 2007-QH5 Supplemental Interest Trust,
acting on behalf of the Class SB
Certificateholders
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signer
AGREED AND ACCEPTED AS OF THE TRADE DATE
DEUTSCHE BANK TRUST COMPANY AMERICAS, not in its
individual capacity but solely as Supplemental
Interest Trust Trustee for the benefit of RALI
Series 2007-QH5 Supplemental Interest Trust,
acting on behalf of the Class A
Certificateholders and Class M Certificateholders
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signer