EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated December 28, 2006, between
Residential Funding Company, LLC, a Delaware corporation ("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 December 1, 2006 (the "Series Supplement"), to the Standard Terms of
Pooling and Servicing Agreement, dated as of November 1, 2006 (together with the
Series Supplement, the "Pooling and Servicing Agreement"), pursuant to which the
Company proposes to issue Mortgage Pass-Through Certificates, Series 2006-S12
(the "Certificates") consisting of classes designated as the Class I-A-1, Class
II-A-1, Class II-A-2, Class II-A-3, Class II-A-4, Class II-A-5, Class II-A-6,
Class II-A-7, Class III-A-1, Class III-A-2, Class III-A-3, Class III-A-4, Class
III-A-5, Class III-A-6, Class III-A-7, Class III-A-8, Class III-A-9, Class
III-A-10, Class I-A-V, Class II-A-V, Class III-A-V, Class I-A-P, Class II-A-P,
Class III-A-P, Class R-I, Class R-II, Class R-III, Class R-IV and Class R-V
Certificates (collectively, the "Senior Certificates"), Class I-M-1, Class
I-M-2, Class I-M-3, Class II-M-1, Class II-M-2, Class II-M-3, Class III-M-1,
Class III-M-2 and Class III-M-3 Certificates (collectively, the "Class M
Certificates") and Class I-B-1, Class I-B-2, Class I-B-3, Class II-B-1, Class
II-B-2, Class II-B-3, Class III-B-1, Class III-B-2 and Class III-B-3
Certificates (collectively, the "Class B Certificates"), representing beneficial
ownership interests in a trust fund consisting primarily of a pool of mortgage
loans, which will be divided into three groups, identified in Exhibit One-I,
Exhibit One-II and Exhibit One-III 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-P Certificates, Class II-A-P Certificates,
Class III-A-P Certificates, Class I-A-V Certificates, Class II-A-V Certificates
and a de minimis portion of each of the Class R-I, Class R-II, Class R-III,
Class R-IV and Class R-V 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, and with
respect to any Sharia Mortgage Loans, all amounts in respect of profit payments
and acquisition payments, received on or with respect to the Mortgage Loans
after December 1, 2006 (other than payments of principal and interest, and with
respect to any Sharia Mortgage Loans, all amounts in respect of profit payments
and acquisition payments, due on the Mortgage Loans in December 2006). In
consideration of such assignment, RFC or its designee will receive from the
Company in immediately available funds an amount equal to $2,363,702,397.15 plus
the Class I-A-P Certificates, Class II-A-P Certificates, Class III-A-P, Class
I-A-V Certificates, Class II-A-V Certificates and a de minimis portion of 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.
Section 3. 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 any 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 (ii) with respect to any
Sharia Mortgage Loan, the related Sharia Mortgage Loan Security Instrument,
Sharia Mortgage Loan Co-Ownership Agreement, Obligation to Pay, Assignment
Agreement and Amendment of Security Instrument, any insurance policies and all
other documents in the related Mortgage File and (iii) with respect to each
Mortgage Loan other than a Cooperative Loan or Sharia Mortgage 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 4. 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 Class I-A-P, Class II-A-P, Class III-A-P, Class I-A-V and Class
II-A-V Certificates and a de minimis portion of the Retained Certificates as
part of the consideration payable to RFC by the Company pursuant to this
Agreement.
Section 5. 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-I, Exhibit One-II and Exhibit
One-III 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) Except in the case of no more than 1.1% of the Group I Loans, 1.7% of the
Group II Loans and 1.2% of the Group III Loans, 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 (i) in
the case of a Group I Loan, at least 25% 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 12% 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 6% of the balance
of the mortgage loan at origination if the Loan-to-Value Ratio is between 85.00%
and 80.01% and (ii) in the case of a Group II Loan or Group III Loan, 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 is 30 or more days delinquent in the 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 all 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 precedents with
respect to bankruptcy and right of redemption;
(xiv) 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;
(xv) A policy of title insurance in the form and amount required by the Program
Guide was effective as of the closing of each Mortgage Loan, is valid and
binding and remains in full force and effect, unless the Mortgaged Properties
are located in the State of Iowa and an attorney's certificate has been provided
as described in the Program Guide;
(xvi) The Mortgage Loans are conventional, fixed rate, fully-amortizing,
(subject to interest only periods, if applicable) first lien mortgage loans
having terms to maturity of not more than 15 years with respect to the Group I
Loans and 30 years with respect to the Group II Loans and the Group III Loans,
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;
(xvii) No Mortgage Loan provides for deferred interest or negative amortization;
(xviii) The improvements upon the Mortgaged Properties 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, authorize
the holder of the Mortgage to obtain and maintain such insurance at the
Mortgagor's expense and to seek reimbursement therefore from the Mortgagor;
(xix) 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;
(xx) 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;
(xxi) 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;
(xxii) The full amount of the Pledged Amount with respect to such Pledged Asset
Mortgage 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;
(xxiii) RFC is a member of MERS, in good standing, and current in payment of all
fees and assessments imposed by MERS, and has complied with all rules and
procedures of MERS in connection with its assignment to the Trustee as assignee
of the Company of the Mortgage relating to each Mortgage Loan that is registered
with MERS, including, among other things, that RFC shall have confirmed the
transfer to the Trustee, as assignee of the Company, of the Mortgage on the
MERS(R) System;
(xxiv) 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;
(xxv) With respect to each Mortgage Loan, either (i) the Mortgage Loan is
assumable pursuant to the terms of the Mortgage Note or (ii) the Mortgage Loan
contains a customary provision for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan in the event the related Mortgaged
Property is sold without the prior consent of the mortgagee thereunder;
(xxvi) 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;
(xxvii) Except with respect to approximately 1.2% of the Group I Loans,
approximately 2.0% of the Group II Loans and approximately 4.7% of the Group III
Loans, the appraisal was made by an appraiser who meets the minimum
qualifications for appraisers as specified in the Program Guide;
(xxviii) To the best of RFC's knowledge, 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;
(xxix) Each Mortgage Loan was originated (1) by a savings and loan association,
savings bank, commercial bank, credit union, insurance company or similar
institution that is supervised and examined by a federal or state authority, (2)
by a mortgagee approved by the Secretary of HUD pursuant to Sections 203 and 211
of the National Housing Act, as amended or (3) by a mortgage broker or
correspondent lender in a manner such that the Certificates would qualify as
"mortgage related securities" within the meaning of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended;
(xxx) All improvements which were considered in determining the Appraised Value
of the Mortgaged Properties lie wholly within the boundaries and the building
restriction lines of the Mortgaged Properties, 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;
(xxxi) Each Mortgage Note and Mortgage constitutes a legal, valid and binding
obligation of the borrower, or the consumer in the case of any Sharia Mortgage
Loans, enforceable in accordance with its terms except as limited by bankruptcy,
insolvency or other similar laws affecting generally the enforcement of
creditor's rights;
(xxxii) None of the Mortgage Loans are subject to the Home Ownership and Equity
Protection Act of 1994;
(xxxiii) None of the Mortgage Loans are loans that, under applicable state or
local law in effect at the time of origination of the loan, are referred to as
(1) "high-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;
(xxxiv) 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;
(xxxv) No Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as
such terms are defined in the Appendix E of the Standard & Poor's Glossary For
File Format For LEVELS(R) Version 5.7 Revised (attached hereto as Exhibit A);
provided 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 S&P'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;
(xxxvi) 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);
(xxxvii) With respect to any Sharia Mortgage Loan, mortgage pass-through
certificates or notes representing interests in mortgage loans that are in all
material respects of the same type as the Mortgage Loans, and which are
structured to be permissible under Islamic law utilizing a declining balance
co-ownership structure, have been, for a least one year prior to the date
hereof, (a) held by investors other than employee benefit plans, and (b) rated
at least BBB- or Baa3, as applicable, by a Rating Agency; and
(xxxviii) No fraud or misrepresentation has taken place in connection with the
origination of any Mortgage Loan.
RFC shall provide written notice to GMAC Mortgage, LLC of the sale of
each Pledged Asset Loan to the Company hereunder and by the Company to the
Trustee under the Pooling and Servicing Agreement, and shall maintain the
Schedule of Additional Owner Mortgage Loans (as defined in the Credit Support
Pledge Agreement), showing the Trustee as the Additional Owner of each such
Pledged Asset Loan, all in accordance with Section 7.1 of the Credit Support
Pledge Agreement.
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 which materially and adversely affects the interests of any
holders of the Certificates or of the Company in such Mortgage Loan or upon the
occurrence of a Repurchase Event (hereinafter defined), 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 (xii) or (xxxviii) 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 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.
Section 6. With respect to each Mortgage Loan, a first lien repurchase event
("Repurchase Event") shall have occurred if it is discovered that, as of the
date thereof, the related Mortgage was not a valid first lien 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 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. In addition, with respect
to any Mortgage Loan listed on the attached Schedule A with respect to which any
document or documents constituting a part of the Mortgage File are missing or
defective in any material respect as to which the Company delivers to the
Trustee or the Custodian an affidavit certifying that the original Mortgage Note
has been lost or destroyed, if such Mortgage Loan subsequently is in default and
the enforcement thereof or of the related Mortgage is materially adversely
affected by the absence or defectiveness of any such document or documents of
the original Mortgage Note, a Repurchase Event shall be deemed to have occurred
and RFC will be obligated to repurchase or substitute for such Mortgage Loan in
the manner set forth in Section 4 above.
Section 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.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have entered into this Assignment and
Assumption Agreement on the date first written above.
RESIDENTIAL FUNDING COMPANY, LLC
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Associate
RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
By: /s/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE A
Schedule of Mortgage Loans with
Defective Mortgage Files
EXHIBIT A
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.
REVISED October 20, 2006
----------------------------------------------------------------------------------------------
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
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------------------------------------- ----------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-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. Covered Loan
Stat. 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
--------------------------- ------------------------------------- ----------------------------
--------------------------- ------------------------------------- ----------------------------
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. High Cost Home Loan
xx.xx. 494.0078 et seq.
Effective October 2, 2002
--------------------------- ------------------------------------- ----------------------------
--------------------------- ------------------------------------- ----------------------------
Georgia (Oct. 1, 0000 - Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. 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 (Mar. Georgia Fair Lending Act, Ga. Code High Cost Home Loan
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 High Cost Loan
Protection 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
--------------------------- ------------------------------------- ----------------------------
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION STATE/JURISDICTION NAME OF ANTI-PREDATORY
LENDING LAW/EFFECTIVE DATE CATEGORY UNDER APPLICABLE ANTI-PREDATORY LENDING LAW
---------------------------- ------------------------------------ ----------------------------
Illinois High Risk Home Loan Act, Ill. High Risk Home Loan
Comp. 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, High Cost Home Loans
Ind. Code Xxx. xx.xx. 24-9-1-1 et seq.
Effective January 1, 2005; amended
by 2005 HB 1179, effective July 1,
2005.
---------------------------- ------------------------------------ ----------------------------
---------------------------- ------------------------------------ ----------------------------
Kansas Consumer Credit Code, Kan. Stat. High Loan to Value
Xxx. xx.xx. 16a-1-101 et seq. Consumer Loan (id.
ss. Sections 16a-1-301 and 16a-3-207 16a-3-207)
and; became effective April 14, 1999; Section
16a-3-308a became
effective July 1, 1999
---------------------------- ------------------------------------ ----------------------------
---------------------------- ------------------------------------ ----------------------------
High APR Consumer Loan
(id. ss. 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. High Rate High Fee
tit. 9-A, xx.xx. 8-101 et seq.
Mortgage 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. Home Loan
Stat. 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. High Cost Home Loan
Rev. 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-l High Cost Home Loan
Effective for applications made on
or after April 1, 2003
---------------------------- ------------------------------------ ----------------------------
---------------------------- ------------------------------------ ----------------------------
North Carolina Restrictions and Limitations on High Cost Home Loan
High 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)
---------------------------- ------------------------------------ ----------------------------
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION STATE/JURISDICTION NAME OF ANTI-PREDATORY
LENDING LAW/EFFECTIVE DATE CATEGORY UNDER APPLICABLE ANTI-PREDATORY LENDING LAW
---------------------------- ------------------------------------ ----------------------------
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code), Ohio
Rev. Code Xxx. xx.xx. 1349.25 et
seq. Effective May 24, 2002
---------------------------- ------------------------------------ ----------------------------
---------------------------- ------------------------------------ ----------------------------
Oklahoma Consumer Credit Code (codified in Subsection 10 Mortgage
various sections of Title 14A)
Effective July 1, 2000; amended
effective January 1, 2004
---------------------------- ------------------------------------ ----------------------------
---------------------------- ------------------------------------ ----------------------------
Rhode Island Rhode Island Home Loan Protection High Cost Home Loan
Act, R.I. Gen. Laws xx.xx. 34-25.2-1
et seq. Effective December 31,
2006.
---------------------------- ------------------------------------ ----------------------------
---------------------------- ------------------------------------ ----------------------------
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
---------------------------- ------------------------------------ ----------------------------
---------------------------- ------------------------------------ ----------------------------
Tennessee Tennessee Home Loan Protection High Cost Home Loan
Act, Tenn. Code Xxx. xx.xx. 00-00-000
et seq. Effective January 1, 2007.
---------------------------- ------------------------------------ ----------------------------
---------------------------- ------------------------------------ ----------------------------
West Virginia West Virginia Residential Mortgage West Virginia Mortgage
Lender, Broker and Servicer Act, Loan Act Loan
W. Va. Code Xxx. xx.xx. 31-17-1 et
seq.
Effective June 5, 2002
---------------------------- ------------------------------------ ----------------------------
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STANDARD & POOR'S COVERED LOAN CATEGORIZATION
----------------------------------------------------------------------------------------------
------------------------- --------------------------------------- ----------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-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
------------------------- --------------------------------------- ----------------------------
------------------------- --------------------------------------- ----------------------------
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
------------------------- --------------------------------------- ----------------------------
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STANDARD & POOR'S HOME LOAN CATEGORIZATION
----------------------------------------------------------------------------------------------
------------------------ ---------------------------------------- ----------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
------------------------ ---------------------------------------- ----------------------------
------------------------ ---------------------------------------- ----------------------------
Georgia (Oct. 1, 0000 Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code Home Loan
- Mar. 6, 2003) Xxx. xx.xx. 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
------------------------ ---------------------------------------- ----------------------------
STANDARD & POOR'S HOME LOAN CATEGORIZATION STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING
LAW/EFFECTIVE DATE CATEGORY UNDER APPLICABLE ANTI-PREDATORY LENDING LAW
----------------------- ----------------------------------------- ----------------------------
New Jersey New Jersey Home Ownership Security Act Home Loan
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 Consumer 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)
----------------------- ----------------------------------------- ----------------------------
----------------------- ----------------------------------------- ----------------------------
South Carolina South Carolina High Cost and Consumer Consumer Home Loan
Home Loans Act, S.C. Code Xxx. xx.xx.
37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
----------------------- ----------------------------------------- ----------------------------
