Exhibit 10.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated August 24, 2007, 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 August 1, 2007 (the "Series Supplement"), to the Standard Terms of
Pooling and Servicing Agreement, dated as of July 1, 2007 (together with the
Series Supplement, the "Pooling and Servicing Agreement"), pursuant to which the
Company proposes to issue Mortgage Pass-Through Certificates, Series 2007-S8
(the "Certificates") consisting of classes designated as the Class I-A-1, Class
I-A-2, Class II-A-1, Class II-A-2, Class I-A-V, Class II-A-V, Class I-A-P, Class
II-A-P, Class P, Class R-I and Class R-II Certificates (collectively, the
"Senior Certificates"), Class M-1, Class M-2 and Class M-3 Certificates
(collectively, the "Class M Certificates") and Class B-1, Class B-2 and Class
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 two groups, identified in Exhibit
One-I and Exhibit One-II 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-2, Class II-A-2, Class I-A-P Certificates,
Class II-A-P Certificates, Class I-A-V Certificates, Class II-A-V Certificates,
Class P Certificates, Class M Certificates, Class B Certificates and a de
minimis portion of each of the Class R-I and Class R-II Certificates
(collectively, the "Retained Certificates").
V. In connection with the purchase of the Mortgage Loans and the
issuance of the Certificates, RFC wishes to make certain representations and
warranties to the Company and to assign certain of its rights under the Seller
Contracts to the Company, and the Company wishes to assume certain of RFC's
obligations under the Seller Contracts.
VI. The Company and RFC intend that the conveyance by RFC to the
Company of all its right, title and interest in and to the Mortgage Loans
pursuant to this Agreement shall constitute a purchase and sale and not a loan.
NOW THEREFORE, in consideration of the recitals and the mutual promises
herein and other good and valuable consideration, the parties agree as follows:
SECTION 1. All capitalized terms used but not defined herein shall have
the meanings assigned thereto in the Pooling and Servicing Agreement.
SECTION 2. Concurrently with the execution and delivery hereof, RFC
hereby assigns to the Company without recourse all of its right, title and
interest in and to the Mortgage Loans, including all interest and principal, 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 August 1, 2007 (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 August 2007). In
consideration of such assignment, RFC or its designee will receive from the
Company in immediately available funds an amount equal to $32,071,383.34 plus
the Retained Certificates. In connection with such assignment and at the
Company's direction, RFC has in respect of each Mortgage Loan endorsed the
related Mortgage Note (other than any Destroyed Mortgage Note) to the order of
the Trustee and delivered an assignment of mortgage or security instrument, as
applicable, in recordable form to the Trustee or its agent. A "Destroyed
Mortgage Note" means a Mortgage Note the original of which was permanently lost
or destroyed.
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,
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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
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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 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 and Exhibit One-II 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) To the best of the Company's knowledge, except in the case of
approximately 0.2% of the Group I Loans, each Group I Loan with a Loan-to-Value
Ratio at origination in excess of 80%, will be insured by a primary mortgage
insurance policy (a "Primary Insurance Policy") covering at least 30% of the
principal balance of the Group I 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 Group II Loan with a Loan-to-Value Ratio at origination in
excess of 80% will be insured a primary mortgage insurance policy
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(a "Primary Insurance Policy"), covering at least 25% of the 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%. 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 Group I Loan is 30 or more days delinquent in the payment of
principal and interest as of the Cut-off Date and no Group I Loan has been so
Delinquent more than once in the 12 month period prior to the Cut-off Date. No
Group II Loan is currently 30 or more days delinquent in payment of principal
and interest as of the Cut-off Date and no Group II 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
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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 30 years with respect
to the Group I Loans and 15 years with respect to the Group II 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;
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(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;
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(xxvii) Except with respect to approximately 5.4% of the Group I Loans,
and approximately 2.9% of the Group II 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;
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(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
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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]
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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/Xxxxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxxxx Xxxxxxx
Title: Associate
RESIDENTIAL FUNDING MORTGAGE
SECURITIES I, INC.
By: /s/Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
ASSIGNMENT AND ASSUMPTION AGREEMENT
RFMSI SERIES 2007-S8
SCHEDULE A
Schedule of Mortgage Loans with
Defective Mortgage Files
EXHIBIT A
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APPENDIX E OF THE STANDARD & POOR'S GLOSSARY FOR
FILE FORMAT FOR LEVELS(R) VERSION 6.0
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
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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, Ark. Code High Cost Home Loan
Xxx. xx.xx. 00-00-000 ET SEQ.
Effective July 16, 2003
---------------------------------- ----------------------------------------------------- ----------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Code xx.xx. Covered Loan
757.01 ET SEQ.
Effective June 2, 2003
---------------------------------- ----------------------------------------------------- ----------------------------
Colorado Consumer Equity Protection, Colo. Stat. Xxx. xx.xx. Covered Loan
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 Lending Practices High Cost Home Loan
Act, Conn. Gen. Stat. xx.xx. 36a-746 ET SEQ.
Effective October 1, 2001
---------------------------------- ----------------------------------------------------- ----------------------------
STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-----------------------------------------------
---------------------------------- ----------------------------------------------------- ----------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
---------------------------------- ----------------------------------------------------- ----------------------------
District of Columbia Home Loan Protection Act, D.C. Code xx.xx. Covered Loan
26-1151.01 ET SEQ.
Effective for loans closed on or after January
28, 2003
---------------------------------- ----------------------------------------------------- ----------------------------
Florida Fair Lending Act, Fla. Stat. Xxx. xx.xx. 494.0078 High Cost Home Loan
et SEQ.
Effective October 2, 2002
---------------------------------- ----------------------------------------------------- ----------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Xxx. xx.xx. High Cost Home Loan
Mar. 6, 2003) 7-6A-1 ET SEQ.
Effective October 1, 2002 - March 6, 2003
---------------------------------- ----------------------------------------------------- ----------------------------
Georgia as amended Georgia Fair Lending Act, Ga. Code Xxx. xx.xx. High Cost Home Loan
(Mar. 7, 2003 - current) 7-6A-1 ET SEQ.
Effective for loans closed on or after March 7,
2003
---------------------------------- ----------------------------------------------------- ----------------------------
HOEPA Section 32 Home Ownership and Equity Protection Act of High Cost Loan
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. Stat. tit. High Risk Home Loan
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. 16a-1-101 et seq.
Effective January 1, 2005; amended by 2005 HB
1179, effective July 1, 2005
---------------------------------- ----------------------------------------------------- ----------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. xx.xx. High Loan to Value Consumer
16a-1-101 ET SEQ. Loan (ID. ss. 16a-3-207)
and;
---------------------------------- ----------------------------------------------------- ----------------------------
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STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-----------------------------------------------
---------------------------------- ----------------------------------------------------- ----------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
---------------------------------- ----------------------------------------------------- ----------------------------
Sections 16a-1-301 and 16a-3-207 became High APR Consumer Loan (ID.
effective April 14, 1999; Section 16a-3-308a ss. 16a-3-308a)
became effective July 1, 1999
---------------------------------- ----------------------------------------------------- ----------------------------
Kentucky 2003 KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. High Cost Home Loan
Rev. Stat. xx.xx. 360.100 ET SEQ.
Effective June 24, 2003
---------------------------------- ----------------------------------------------------- ----------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. 9-A, xx.xx. High Rate High Fee Mortgage
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. 32.00 ET High Cost Home Loan
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. xx.xx. Home Loan
598D.010 ET SEQ.
Effective October 1, 2003
---------------------------------- ----------------------------------------------------- ----------------------------
New Jersey New Jersey Home Ownership Security Act of 2002, High Cost Home Loan
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. Stat. xx.xx. High Cost Home Loan
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
---------------------------------- ----------------------------------------------------- ----------------------------
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STANDARD & POOR'S HIGH COST LOAN CATEGORIZATION
-----------------------------------------------
---------------------------------- ----------------------------------------------------- ----------------------------
STATE/JURISDICTION NAME OF ANTI-PREDATORY LENDING CATEGORY UNDER APPLICABLE
LAW/EFFECTIVE DATE ANTI-PREDATORY LENDING LAW
---------------------------------- ----------------------------------------------------- ----------------------------
North Carolina Restrictions and Limitations on High Cost Home High Cost 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)
---------------------------------- ----------------------------------------------------- ----------------------------
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
---------------------------------- ----------------------------------------------------- ----------------------------
Rhode Island Rhode Island Home Loan Protection Act, R.I. High Cost Home Loan
Gen. Laws xx.xx. 34-25.2-1 et seq.
Effective December 31, 2006
---------------------------------- ----------------------------------------------------- ----------------------------
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 Consumer Home High Cost 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
---------------------------------- ----------------------------------------------------- ----------------------------
Tennessee Tennessee Home Loan Protection Act, Tenn. Code High Cost Home Loan
Xxx. xx.xx. 00-00-000 et seq.
Effective January 1, 2007
---------------------------------- ----------------------------------------------------- ----------------------------
West Virginia West Virginia Residential Mortgage Lender, West Virginia Mortgage Loan
Broker and Servicer Act, W. Va. Code Xxx. xx.xx. Act Loan
31-17-1 ET SEQ.
Effective June 5, 2002
---------------------------------- ----------------------------------------------------- ----------------------------
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