EXHIBIT 10.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of [_______], 20-[_],
between Residential Funding Company, LLC, a Delaware limited liability company
("RFC") and Residential Asset Securities Corporation, a Delaware corporation
(the "Company").
Recitals
A. RFC has entered into seller contracts ("Seller Contracts") with certain
sellers and servicers.
B. The Company wishes to purchase from RFC certain Mortgage Loans (as
hereinafter defined) originated pursuant to the Seller Contracts.
C. The Company, RFC, as master servicer, and [_____________], as trustee
(the "Trustee"), are entering into a Pooling and Servicing Agreement dated as of
[________] 1, 20[_] (the "Pooling and Servicing Agreement"), pursuant to which
the Trust proposes to issue Home Equity Mortgage Asset-Backed Pass-Through
Certificates, Series 20[_]-[__] (the "Certificates") consisting of [seventeen]
classes designated as Class [A-1], Class [A-2], Class [A-3], 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 [M-9], Class [B-1], Class [B-2], Class [SB], Class [R-I] and Class
[R-II] representing beneficial ownership interests solely in a trust fund
consisting primarily of a pool of adjustable and fixed rate one-to four-family
first lien mortgage loans identified on Exhibit F to the Pooling and Servicing
Agreement (the "Mortgage Loans").
D. In connection with the purchase of the Mortgage Loans, the Company will
assign to RFC the Class [R-I] and Class [R-II] Certificates (the "Retained
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 the Cut-off Date (other than payments of
principal and interest due on the Mortgage Loans in [_________], 20[_]). In
consideration of such assignment, RFC will receive from the Company, in
immediately available funds, an amount equal to $[_______] and 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, hereinafter defined) to the order of the Trustee and
delivered an assignment of mortgage 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.
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 deemed to 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 a grant by RFC to the Company of a security interest in
all of RFC's right (including the power to convey title thereto), title and
interest, whether now owned or hereafter acquired, in and to (A) the Mortgage
Loans, including the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, (B) all amounts
payable pursuant to the Mortgage Loans in accordance with the terms thereof and
(C) any and all general intangibles consisting of, arising from or relating to
any of the foregoing, and 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, certificated securities 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, financial
intermediaries, bailees or agents (as applicable) of 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 deemed to create a security
interest in the Mortgage Loans and the other property described above, such
security interest would be deemed 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
2
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.
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.
4. RFC represents and warrants to the Company, with respect to each
Mortgage Loan that on the date of execution hereof (or, if otherwise specified
below, as of the date so specified),
(i) Immediately prior to the delivery 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 or security interest (other than
(a) rights to servicing and related compensation, and (b) any senior lien
relating to a Mortgage Loan listed on Schedule A attached hereto (the
"Junior Lien Mortgage Loans") and had full right and authority to sell and
assign the Mortgage Loans pursuant to this Agreement.
(ii) The proceeds of the Mortgage Loan have been fully disbursed,
there is no requirement for future advances thereunder and any and all
requirements as to completion of any on-site or off-site improvements and
as to disbursements of any escrow funds therefor (including any escrow
funds held to make Monthly Payments pending completion of such
improvements) have been complied with. All costs, fees and expenses
incurred in making, closing or recording the Mortgage Loans were paid.
(iii) The Mortgagor (including any party secondarily liable under
the Mortgage File) has no right of set-off, defense, counterclaim or right
of rescission as to any document in the Mortgage File except as may be
provided under the Relief Act.
(iv) RFC and any other originator, servicer or other previous owner
of each Mortgage Loan has obtained all licenses and effected all
registrations required under all applicable local, state and federal laws,
regulations and orders, including without limitation truth in lending and
disclosure laws, necessary to own or originate the Mortgage Loans (the
failure to obtain such licenses or to comply with such laws, regulations
and orders would make such Mortgage Loans void or voidable).
(v) A policy of title insurance, in the form and amount that is in
material compliance with the Program Guide, was effective as of the
closing of each Mortgage Loan, is valid and binding, and remains in full
force and effect except for Mortgaged Properties located in the State of
Iowa where an attorney's certificate has been provided in accordance with
the Program Guide. No claims have been made under such title insurance
policy and no holder of the related mortgage, including RFC, has done or
omitted to do anything which would impair the coverage of such title
insurance policy.
(vi) Each Mortgage Loan is a valid and enforceable first lien (or in
the case of the Junior Lien Mortgage Loans, junior lien) on the Mortgaged
Property subject only to (1) the lien of nondelinquent current real
property taxes and assessments, (2) covenants, conditions and
restrictions, rights of way, easements and other matters of public record
as of the date of
3
recording of such Mortgage, such exceptions appearing of record being
acceptable to mortgage lending institutions generally or specifically
reflected in the appraisal made in connection with the origination of the
related Mortgage Loan, and (3) other matters to which like properties are
commonly subject that do not materially interfere with the benefits of the
security intended to be provided by such Mortgage.
(vii) All improvements which were considered in determining the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and the building restriction lines of the Mortgaged Premises, or the
policy of title insurance affirmatively insures against loss or damage by
reason of any violation, variation, encroachment or adverse circumstance
that either is disclosed or would have been disclosed by an accurate
survey.
(viii) There are no delinquent tax or delinquent assessment liens
against the related Mortgaged Property, and there are no mechanic's liens
or claims for work, labor or material or any other liens affecting such
Mortgaged Property which are or may be a lien prior to, or equal with, the
lien of the Mortgage assigned to RFC, except those liens that are insured
against by the policy of title insurance and described in (v) above.
(ix) Each Mortgaged Property is free of material damage and is in
good repair and no notice of condemnation has been given with respect
thereto.
(x) The improvements upon the Mortgaged Property are insured against
loss by fire and other hazards as required by the Program Guide, including
flood insurance if required under the National Flood Insurance Act of
1968, as amended. The Mortgage requires the Mortgagor to maintain such
casualty insurance at the Mortgagor's expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and
maintain such insurance at the Mortgagor's expense and to seek
reimbursement therefore from the Mortgagor.
(xi) The appraisal was made by an appraiser who meets the minimum
qualifications for appraisers as specified in the Program Guide.
(xii) Each Mortgage Note and Mortgage constitutes a legal, valid and
binding obligation of the Mortgagor enforceable in accordance with its
terms except as limited by bankruptcy, insolvency or other similar laws
affecting generally the enforcement of creditors' rights.
(xiii) Each Mortgage Loan is covered by a standard hazard insurance
policy.
(xiv) The information set forth on the Mortgage Loan Schedule with
respect to each Mortgage Loan is true and correct in all material respects
as of the date or dates which such information is furnished.
(xv) As of the Cut-off Date, [_]% of the Mortgage Loans are
Delinquent in payment of principal or interest by [_] days or more. For
the purposes of this representation a Mortgage Loan is considered
Delinquent if a Subservicer or the Master Servicer has made any advances
on the Mortgage Loan that have not been reimbursed out of payments by the
mortgagor or on the mortgagor's behalf from a source other than a
Subservicer, a Seller, the Master Servicer or an affiliated entity of
either.
4
(xvi) [None] of the Mortgage Loans with Loan-to-Value Ratios, or
combined Loan-to-Value Ratios with respect to Junior Lien Loans, at
origination in excess of 80% are insured by a borrower-paid, primary
mortgage insurance policy.
(xvii) The weighted average Loan-to-Value Ratio with respect to the
Mortgage Loans, by outstanding principal balance at origination, is
[___]%.
(xviii) No more than approximately [_]% of the Mortgage Loans, by
outstanding principal balance as of the Cut-off Date, are located in any
one zip code area in [_______]. No more than approximately [_]% of the
Mortgage Loans by outstanding principal balance as of the Cut-off Date are
located in any one zip code area outside of [_______].
(xix) [__]% of the Mortgage Loans that are adjustable-rate loans
will adjust semi-annually based on Six-Month LIBOR, and [_]% of the
Mortgage Loans that are adjustable-rate loans will adjust annually based
on a One-Year LIBOR. Each of the Mortgage Loans that are adjustable-rate
loans will adjust on the Adjustment Date specified in the related Mortgage
Note to a rate equal to the sum (rounded as described in the related
Mortgage Note) of the related Index described in the Prospectus Supplement
and the Note Margin set forth in the related Mortgage Note, subject to the
limitations described in the Prospectus Supplement, and each Mortgage Loan
has an original term to maturity from the date on which the first monthly
payment is due of not more than approximately 30 years. On each Adjustment
Date, the Mortgage Rate on each Mortgage Loan that is an adjustable-rate
loan will be adjusted to equal the related Index plus the related Gross
Margin, subject in each case to the Periodic Rate Cap, the Mortgage Rate
and the Minimum Mortgage Rate. The amount of the monthly payment on each
Mortgage Loan that is an adjustable-rate loan will be adjusted on the
first day of the month following the month in which the Adjustment Date
occurs to equal the amount necessary to pay interest at the
then-applicable Mortgage Rate to fully amortize the outstanding principal
balance of such Mortgage Loan over its remaining term to stated maturity.
No Mortgage Loan is subject to negative amortization.
(xx) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such Mortgage,
and no fees or expenses are or will become payable by the holder of the
Mortgage Loan to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor.
(xxi) Approximately [_]% of the Mortgaged Properties (by outstanding
principal balance as of the Cut-off Date), are units in detached planned
unit developments. Approximately [_]% of the Mortgaged Properties (by
outstanding principal balance as of the Cut-off Date), are units in
attached planned unit developments. Approximately [_]% of the Mortgaged
Properties (by outstanding principal balance as of the Cut-off Date), are
units in townhouses. Approximately [_]% of the Mortgaged Properties (by
outstanding principal balance as of the Cut-off Date) are units in
manufactured housing developments. Approximately [_]% of the Mortgaged
Properties (by outstanding principal balance as of the Cut-off Date), are
condominium units. Each Mortgaged Property is suitable for year-round
occupancy.
5
(xxii) Approximately [_]% of the Mortgaged Properties (by
outstanding principal balance as of the Cut-off Date) are secured by the
owner's primary residence. Approximately [_]% of the Mortgaged Properties
(by outstanding principal balance as of the Cut-off Date) are secured by
the owner's second or vacation residence. Approximately [_]% of the
Mortgaged Properties (by outstanding principal balance as of the Cut-off
Date) are secured by a non-owner occupied residence.
(xxiii) Approximately [_]% of the Mortgaged Properties (by
outstanding principal balance as of the Cut-off Date), are secured by
detached one-family dwelling units. Approximately [_]% of the Mortgaged
Properties (by outstanding principal balance as of the Cut-off Date), are
secured by two- to four-family dwelling units.
(xxiv) The average outstanding principal balance of the Mortgage
Loans at origination was approximately $[___]. No Mortgage Loan at
origination had a principal balance of less than $[___] or more than
$[___].
(xxv) As of the Cut-off Date, all Mortgage Rate adjustments on the
Mortgage Loans that have reached an Adjustment Date have been done in
accordance with the terms of the related Mortgage Note.
(xxvi) Any escrow arrangements established with respect to any
Mortgage Loan are in compliance with all applicable local, state and
federal laws and are in compliance with the terms of the related Mortgage
Note.
(xxvii) Except as otherwise specifically set forth herein, 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 RFC or by any other entity involved in
originating or servicing a Mortgage Loan.
(xxviii) Each Mortgage Loan constitutes a qualified mortgage under
Section 860G(a)(3)(A) of the Code and Treasury Regulations Section
1.860G-2(a)(1).
(xxix) No more than [_]% of the Mortgage Loans have been classified
by RFC as Credit Grade A4 Mortgage Loans, no more than [_]% of the
Mortgage Loans have been classified by RFC as Credit Grade AX Mortgage
Loans, no more than [_]% of the Mortgage Loans have been classified by RFC
as Credit Grade AM Mortgage Loans, no more than [_]% of the Mortgage Loans
have been classified by RFC as Credit Grade B Mortgage Loans, no more than
[_]% of the Mortgage Loans have been classified by RFC as Credit Grade C
Mortgage Loans and no more than [_]% of the Mortgage Loans have been
classified by RFC as Credit Grade CM Mortgage Loans, in each case as
described generally in the Prospectus Supplement.
(xxx) [No] Mortgage Loan is a graduated payment loan or has a shared
appreciation or contingent interest feature.
(xxxi) With respect to each Mortgage Loan, either (i) each Mortgage
Loan contains a customary provision for the acceleration of the payment of
the unpaid principal
6
balance of the Mortgage Loan in the event the related Mortgaged Property
is sold without the prior consent of the mortgagee thereunder or (ii) the
Mortgage Loan is assumable pursuant to the terms of the Mortgage Note.
(xxxii) [No] Mortgage Loan provides for deferred interest or
negative amortization.
(xxxiii) [None] of the Mortgage Loans are buydown Mortgage Loans.
(xxxiv) [Each] Mortgaged Property is a single parcel of real estate
with a one- to four-unit single family residence thereon, a condominium
unit, a manufactured housing unit, a unit in a townhouse, a planned unit
development, a leasehold or a modular home; and no Mortgage Property
consists of a mobile home or a manufactured housing unit that is not
permanently affixed to its foundation.
(xxxv) No more than approximately [_]% of the Mortgage Loans (by
outstanding principal balance as of the Cut-off Date), were made to
Mortgagors with credit scores as described generally in the Prospectus
Supplement of less than 600 excluding Mortgagors whose credit scores are
not available to RFC. The weighted average of the credit scores for the
Mortgage Loans for which Credit Scores are available to RFC was
approximately [_] as of the Cut-off Date.
(xxxvi) [No] instrument of release or waiver has been executed in
connection with the Mortgage Loans, and no Mortgagor has been released, in
whole or in part from its obligations in connection with a Mortgage Loan.
(xxxvii) The weighted average remaining term to stated maturity of
the Mortgage Loans, as of the cut-off date will be approximately [_]
months. The weighted average original term to maturity of the Mortgage
Loans, as of the cut-off date will be approximately [_] months.
(xxxviii) [None] of the Mortgage Loans are subject to the Home
Ownership and Equity Protection Act of 1994 ("HOEPA").
(xxxix) To the best of RFC's knowledge, the Subservicer for each
Mortgage Loan has accurately and fully reported its borrower credit files
to each of the Credit Repositories in a timely manner.
(xl) [None] of the proceeds of any Mortgage Loan were used to
finance the purchase of single premium credit insurance policies.
(xli) [No] Mortgage Loan has a prepayment penalty term that extends
beyond five years after the date of origination.
(xlii) [None] of the Mortgage Loans are Balloon Mortgage Loans.
(xliii) [None] of the Mortgage Loans are loans that, under
applicable state or local law in effect at the time of origination of such
Mortgage Loan, are referred to as (1) "high
7
cost" or "covered" loans or (2) any other similar designation if the law
imposes greater restrictions or additional legal liability for residential
mortgage loans with high interest rates, points and/or fees.
(xliv) The information set forth in the prepayment charge schedule
attached hereto as Exhibit A (the "Prepayment Charge Schedule") is
complete, true and correct in all material respects as of the Cut-off
Date, and each prepayment charge set forth on the Prepayment Charge
Schedule ("Prepayment Charge") is enforceable and was originated in
compliance with all applicable federal, state and local laws.
(xlv) [Each] Mortgage Loan as of the time of its origination
complied in all material respects with all applicable local, state and
federal laws, including, but not limited to, all applicable predatory
lending laws.
(xlvi) [No] Mortgage Loan was originated on or after October 1, 2002
and before March 7, 2003, which is secured by property located in the
State of Georgia.
(xlvii) [No] Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the current Appendix E of the
Standard & Poor's Glossary For File Format For LEVELS(R) Version 5.7
(attached hereto as Exhibit B); provided that no representation and
warranty is made in this clause (xlvii) with respect to [_]% of the
Mortgage Loans and (by outstanding principal balance as of the Cut off
Date), secured by property located in the State of Kansas or with respect
to [_]% of the Mortgage Loans (by outstanding principal balance as of the
Cut off Date), secured by property located in the State of West Virginia;
and provided further that no Qualified Substitute Mortgage Loan shall be a
High Cost Loan or Covered Loan (as such terms are defined in Appendix E of
the Standard & Poor's Glossary For File Format For LEVELS(R) in effect on
the date of substitution), unless the Company shall have received from S&P
written confirmation that the inclusion of any such Mortgage Loan will not
adversely affect the then current ratings assigned to any of the
Certificates by S&P.
Upon discovery by RFC or upon notice from the Company or the Trustee of a
breach of the foregoing representations and warranties in respect of any
Mortgage Loan, or upon the occurrence of a Repurchase Event (as described in
Section 5 below), which materially and adversely affects the interests of any
holders of the Certificates, the Certificate Insurer or the Company in such
Mortgage Loan (notice of which breach or occurrence shall be given to the
Company by RFC, if it discovers the same), RFC shall, within 90 days after the
earlier of its discovery or receipt of notice thereof, either cure such breach
or Repurchase Event in all material respects or, except as otherwise provided in
Section 2.04 of the Pooling and Servicing Agreement, either (i) purchase such
Mortgage Loan from the Trustee or the Company, as the case may be, at a price
equal to the Purchase Price for such Mortgage Loan or (ii) substitute a
Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan in the manner
and subject to the limitations set forth in Section 2.04 of the Pooling and
Servicing Agreement. If the breach of representation and warranty that gave rise
to the obligation to repurchase or substitute a Mortgage Loan pursuant to this
Section 4 was the representation set forth in clause (xlvi) of this Section 4,
then RFC shall pay to the Trust Fund, concurrently with and in addition to the
remedies provided in the preceding sentence, an amount equal to any liability,
penalty or expense
8
that was actually incurred and paid out of or on behalf of the Trust Fund, and
that directly resulted from such breach, or if incurred and paid by the Trust
Fund thereafter, concurrently with such payment.
5. With respect to the Mortgage Loans, a repurchase event ("Repurchase
Event") shall have occurred if it is discovered that, as of the date hereof, the
related Mortgage Loan was not a valid first lien or junior lien in the case of a
Junior Lien Loan on the related Mortgaged Property subject only to (i) the lien
of real property taxes and assessments not yet due and payable, (ii) covenants,
conditions, and restrictions, rights of way, easements and other matters of
public record as of the date of recording of such Mortgage and such other
permissible title exceptions as are listed in the Program Guide and (iii) other
matters to which like properties are commonly subject which do not materially
adversely affect the value, use, enjoyment or marketability of the Mortgaged
Property.
6. RFC hereby represents and warrants to the Company that with respect to
each Mortgage Loan, the REMIC's tax basis in each Mortgage Loan as of the
Closing Date is equal to or greater than 100% of the Stated Principal Balance
thereof.
7. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, and no other person
shall have any right or obligation hereunder.
8. RFC, as master servicer under the Pooling and Servicing Agreement (the
"Master Servicer"), shall not waive (or permit a sub-servicer to waive) any
Prepayment Charge unless: (i) the enforceability thereof shall have been limited
by bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally, (ii) the enforcement thereof is
illegal, or any local, state or federal agency has threatened legal action if
the prepayment penalty is enforced, (iii) the collectability thereof shall have
been limited due to acceleration in connection with a foreclosure or other
involuntary payment or (iv) such waiver is standard and customary in servicing
similar Mortgage Loans and relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of the Master Servicer, maximize
recovery of total proceeds taking into account the value of such Prepayment
Charge and the related Mortgage Loan. In no event will the Master Servicer waive
a Prepayment Charge in connection with a refinancing of a Mortgage Loan that is
not related to a default or a reasonably foreseeable default. If a Prepayment
Charge is waived, but does not meet the standards described above, then the
Master Servicer is required to pay the amount of such waived Prepayment Charge
to the holder of the Class SB Certificates at the time that the amount prepaid
on the related Mortgage Loan is required to be deposited into the Custodial
Account. Notwithstanding any other provisions of this Agreement, any payments
made by the Master Servicer in respect of any waived Prepayment Charges pursuant
to this Section shall be deemed to be paid outside of the Trust Fund and not
part of any REMIC.
[Signatures begin on following page.]
9
IN WITNESS WHEREOF, the parties have entered into this Assignment and
Assumption Agreement as of the date first above written.
RESIDENTIAL FUNDING COMPANY, LLC
By:
-------------------------------------
Name:
Title:
RESIDENTIAL ASSET SECURITIES CORPORATION
By:
-------------------------------------
Name:
Title:
EXHIBIT A
Prepayment Charge Schedule
[(see attachment)]
EXHIBIT B
---------
APPENDIX E OF THE STANDARD & POOR'S GLOSSARY FOR
FILE FORMAT FOR LEVELS(R) VERSION 5.7
REVISED [_____], 20[_]
APPENDIX E - Standard & Poor's Predatory Lending Categories
-----------------------------------------------------------
Standard & Poor's has categorized loans governed by anti-predatory lending
laws in the Jurisdictions listed below into three categories based upon a
combination of factors that include (a) the risk exposure associated with the
assignee liability and (b) the tests and thresholds set forth in those laws.
Note that certain loans classified by the relevant statute as Covered are
included in Standard & Poor's High Cost Loan Category because they included
thresholds and tests that are typical of what is generally considered High Cost
by the industry.
Standard & Poor's High Cost Loan Categorization
-----------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
----------------------------------------------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection Act, High Cost Home Loan
Ark. Code Xxx. xx.xx. 00-00-000 et seq.
Effective July 16, 2003
----------------------------------------------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Code xx.xx. 757.01 et seq.
Effective June 2, 2003
----------------------------------------------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Stat. Covered Loan
Xxx. xx.xx. 5-3.5-101 et seq.
Effective for covered loans offered or
entered into on or after January 1, 2003.
Other provisions of the Act took effect on
June 7, 2002
----------------------------------------------------------------------------------------------------------------------
Exhibit B-1
----------------------------------------------------------------------------------------------------------------------
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
----------------------------------------------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn. Gen. Stat.
xx.xx. 36a-746 et seq.
Effective October 1, 2001
----------------------------------------------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Code Covered Loan
xx.xx. 26-1151.01 et seq.
Effective for loans closed on or after
January 28, 2003
----------------------------------------------------------------------------------------------------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. xx.xx. High Cost Home Loan
494.0078 et seq.
Effective October 2, 2002
----------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code High Cost Home Loan
Mar. 6, 2003) Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
----------------------------------------------------------------------------------------------------------------------
Georgia as amended Georgia Fair Lending Act, Ga. Code High Cost Home Loan
(Mar. 7, 2003 - current) Xxx. xx.xx. 7-6A-1 et seq.
Effective for loans closed on or after
March 7, 2003
----------------------------------------------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity Protection High Cost Loan
Act of 1994, 15 U.S.C. ss. 1639, 12
C.F.R. xx.xx. 226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
----------------------------------------------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. Comp. High Risk Home Loan
Stat. tit. 815, xx.xx. 137/5 et seq.
Effective January 1, 2004 (prior to this
date, regulations under Residential Mortgage
License Act effective from May 14,
2001)
----------------------------------------------------------------------------------------------------------------------
Indiana Indiana Home Loan Practices Act, Ind. Code Xxx. High Cost Home Loans
xx.xx. 24-9-1-1 et seq.
Effective January 1, 2005; amended by 2005 HB
1179, effective July 1, 2005
----------------------------------------------------------------------------------------------------------------------
Exhibit B-2
----------------------------------------------------------------------------------------------------------------------
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
----------------------------------------------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. High Loan to Value Consumer
xx.xx. 16a-1-101 et seq. Loan (id. ss. 16a-3-207) and;
Sections 16a-1-301 and 16a-3-207 became ---------------------------------
effective April 14, 1999; Section 16a-3-308a High APR Consumer Loan (id. ss.
became effective July 1, 1999 16a-3-308a)
----------------------------------------------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat. xx.xx. 360.100 et seq.
Effective June 24, 2003
----------------------------------------------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9- High Rate High Fee Mortgage
A, xx.xx. 8-101 et seq.
Effective September 29, 1995 and as amended
from time to time
----------------------------------------------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. xx.xx. High Cost Home Loan
32.00 et seq. and 209 C.M.R. xx.xx.
40.01 et seq.
Effective March 22, 2001 and amended from time
to time
----------------------------------------------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. Home Loan
xx.xx. 598D.010 et seq.
Effective October 1, 2003
----------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security High Cost Home Loan
Act of 2002, N.J. Rev. Stat. xx.xx.
46:10B-22 et seq.
Effective for loans closed on or after
November 27, 2003
----------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. High Cost Home Loan
Stat. xx.xx. 58-21A-1 et seq.
Effective as of January 1, 2004; Revised
as of February 26, 2004
----------------------------------------------------------------------------------------------------------------------
New York N.Y. Banking Law Article 6-1 High Cost Home Loan
Effective for applications made on or after
April 1, 2003
----------------------------------------------------------------------------------------------------------------------
Exhibit B-3
----------------------------------------------------------------------------------------------------------------------
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
----------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High High Cost Home Loan
Cost Home Loans, N.C. Gen. Stat. xx.xx.
24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
----------------------------------------------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various sections of the Covered Loan
Ohio Code), Ohio Rev. Code Xxx. xx.xx.
1349.25 et seq.
Effective May 24, 2002
----------------------------------------------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in various Subsection 10 Mortgage
sections of Title 14A)
Effective July 1, 2000; amended effective
January 1, 2004
----------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C. Code
Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
----------------------------------------------------------------------------------------------------------------------
West Virginia West Virginia Residential Mortgage Lender, West Virginia Mortgage Loan Act
Broker and Servicer Act, W. Loan
Va. Code Xxx. xx.xx. 31-17-1 et seq.
Effective June 5, 2002
----------------------------------------------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
---------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
----------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Covered Loan
Mar. 6, 2003) Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
----------------------------------------------------------------------------------------------------------------------
Exhibit B-4
----------------------------------------------------------------------------------------------------------------------
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
----------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Covered Home Loan
Act of 2002, N.J. Rev. Stat. xx.xx.
46:10B 22 et seq.
Effective November 27, 2003 - July 5, 2004
----------------------------------------------------------------------------------------------------------------------
Standard & Poor's Home Loan Categorization
------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Category under
Name of Anti-Predatory Lending Applicable Anti-
State/Jurisdiction Law/Effective Date Predatory Lending Law
----------------------------------------------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Home Loan
Mar. 6, 2003) Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6, 2003
----------------------------------------------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Security Home Loan
Act of 2002, N.J. Rev. Stat. xx.xx.
46:10B-22 et seq.
Effective for loans closed on or after
November 27, 2003
----------------------------------------------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Home Loan
Stat. xx.xx. 58-21A-1 et seq.
Effective as of January 1, 2004; Revised as of
February 26, 2004
----------------------------------------------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Consumer Home Loan
Loans, N.C. Gen. Stat. xx.xx. 24-1.1E et seq.
Effective July 1, 2000; amended October 1,
2003 (adding open-end lines of credit)
----------------------------------------------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Consumer Home Loan
Loans Act, S.C. Code Xxx. xx.xx. 37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
----------------------------------------------------------------------------------------------------------------------
Exhibit B-5
