Execution Copy
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated October 30, 2006,
between Residential Funding Company, LLC, a Delaware limited liability
company ("RFC"), and Residential Accredit Loans, Inc., a Delaware corporation
(the "Company").
Recitals
A. RFC has entered into contracts ("Seller Contracts") with
various seller/servicers, pursuant to which such seller/servicers sell to RFC
mortgage loans.
B. The Company wishes to purchase from RFC certain Mortgage
Loans (as hereinafter defined) sold to RFC pursuant to the Seller Contracts.
C. The Company, RFC, as master servicer, and Deutsche Bank Trust
Company Americas, as trustee and grantor trust trustee (the "Trustee"), are
entering into a Series Supplement, dated as of October 30, 2006 (the "Series
Supplement"), and the Standard Terms of Pooling and Servicing Agreement,
dated as of October 30, 2006 (collectively, the "Pooling and Servicing
Agreement"), pursuant to which the Company proposes to issue Mortgage
Asset-Backed Pass-Through Certificates, Series 2006-QO8 (the "Certificates")
consisting of twenty-nine classes designated as Class I-A1A, Class I-A1AU,
Class I-A1B, Class I-A2A, Class I-A2AU, Class I-A3A, Class I-A3B, Class
I-A4A, Class I-A4B, Class I-A5A, Class I-A5AU, Class I-AX, Class II-A, Class
II-AX, Class R-I, Class R-II, Class R-III, Class R-X, 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 SB and Class P Certificates representing beneficial ownership interests
in a trust fund consisting primarily of a pool of mortgage loans identified
in Exhibit One to the Series Supplement (the "Mortgage Loans").
D. In connection with the purchase of the Mortgage Loans, the
Company will assign to RFC a de minimis portion of the Class R-I, Class R-II
and Class R-III 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 October 1, 2006
(other than payments of principal and interest due on the Mortgage Loans on
or before October 31, 2006). In consideration of such assignment, RFC or its
designee will receive from the Company in immediately available funds an
amount equal to $1,357,884,578.60 and a de minimis portion of the Class R-I,
Class R-II and Class R-III 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 in
recordable form to the Trustee or its agent.
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, (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. Nonetheless, (a) this Agreement is intended
to be and hereby is a security agreement within the meaning of Articles 8 and
9 of the Minnesota Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction; (b) the conveyance provided for in this
Section shall be deemed to be, and hereby is, a grant by RFC to the Company
of a security interest in all of RFC's right, title and interest, whether now
owned or hereafter acquired, in and to any and all general intangibles,
payment intangibles, accounts, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices
of credit and investment property consisting of, arising from or relating to
any of the following: (A) the Mortgage Loans, including (i) with respect to
each Cooperative Loan, the related Mortgage Note, Security Agreement,
Assignment of Proprietary Lease, Cooperative Stock Certificate, Cooperative
Lease, any insurance policies and all other documents in the related Mortgage
File and (ii) with respect to each Mortgage Loan other than a Cooperative
Loan, the related Mortgage Note, the Mortgage, any insurance policies and all
other documents in the related Mortgage File, (B) all monies due or to become
due pursuant to the Mortgage Loans in accordance with the terms thereof and
(C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including
without limitation all amounts from time to time held or invested in the
Certificate Account or the Custodial Account, whether in the form of cash,
instruments, securities or other property; (c) the possession by the Trustee,
the Custodian or any other agent of the Trustee of Mortgage Notes or such
other items of property as constitute instruments, money, payment
intangibles, negotiable documents, goods, deposit accounts, letters of
credit, advices of credit, investment property or chattel paper shall be
deemed to be "possession by the secured party," or possession by a purchaser
or a person designated by such secured party, for purposes of perfecting the
security interest pursuant to the Minnesota Uniform Commercial Code and the
Uniform Commercial Code of any other applicable jurisdiction (including,
without limitation, Sections 8-106, 9-313 and 9-106 thereof); and
(d) notifications to persons holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, (as
applicable) the Trustee for the purpose of perfecting such security interest
under applicable law. RFC shall, to the extent consistent with this
Agreement, take such reasonable actions as may be necessary to ensure that,
if this Agreement were determined to create a security interest in the
Mortgage Loans and the other property described above, such security interest
would be determined to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of
this Agreement. Without limiting the generality of the foregoing, RFC shall
prepare and deliver to the Company not less than 15 days prior to any filing
date, and the Company shall file, or shall cause to be filed, at the expense
of RFC, all filings necessary to maintain the effectiveness of any original
filings necessary under the Uniform Commercial Code as in effect in any
jurisdiction to perfect the Company's security interest in or lien on the
Mortgage Loans, including without limitation (x) continuation statements, and
(y) such other statements as may be occasioned by (1) any change of name of
RFC or the Company, (2) any change of location of the 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.
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.
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 a de minimis portion of the Class R-I, Class R-II and
Class R-III Certificates as part of the consideration payable to RFC by the
Company pursuant to this Agreement.
4. RFC represents and warrants to the Company that on the date
of execution hereof (or, if otherwise specified below, as of the date so
specified):
(a) The information set forth in Exhibit One 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;
(b) Except in the case of approximately 0.1% of the aggregate
principal balance of the Mortgage Loans, each Mortgage Loan with a
Loan-to-Value Ratio at origination in excess of 80% will be insured by a
Primary Insurance Policy covering at least 35% of the principal balance of
the Mortgage Loan at origination if the Loan-to-Value Ratio is between
100.00% and 95.01%, 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 if the Loan-to-Value Ratio is between 90.00% and
85.01% and at least 12% of the balance 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;
(c) 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;
(d) 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;
(e) No Mortgage Loan was 30 or more days delinquent in payment
of principal and interest as of the Cut-off Date and no Mortgage Loan has
been so delinquent more than once in the 12-month period prior to the Cut-off
Date;
(f) Subject to clause (e) 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;
(g) There is no delinquent tax or assessment lien against any
Mortgaged Property;
(h) 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, formerly known as the
Soldiers' and Sailors' Civil Relief Act of 1940 as amended, and except with
respect to any buydown agreement for a Buydown Mortgage Loan;
(i) 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 (aa) below;
(j) 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;
(k) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws, including,
but not limited to, all applicable anti-predatory lending laws;
(l) 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;
(m) 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;
(n) The Mortgage Loans are payment-option, adjustable-rate
first lien mortgage loans, with a negative amortization feature having terms
to maturity of not more than 40 years 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;
(o) 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;
(p) 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;
(q) 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;
(r) The full amount of the Pledged Amount with respect to such
Pledged Asset 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;
(s) 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 Depositor 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
Depositor, of the Mortgage on the MERS(R)System;
(t) 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;
(u) 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;
(v) 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;
(w) The appraisal was made by an appraiser who meets the
minimum qualifications for appraisers as specified in the Program Guide;
(x) 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;
(y) 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;
(z) 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;
(aa) Each Mortgage Note and Mortgage constitutes a legal, valid
and binding obligation of the borrower enforceable in accordance with its
terms except as limited by bankruptcy, insolvency or other similar laws
affecting generally the enforcement of creditor's rights;
(bb) None of the Mortgage Loans are subject to the Home
Ownership and Equity Protection Act of 1994;
(cc) None of the Mortgage Loans are loans that, under applicable
state or local law in effect at the time of origination of such loan, are
referred to as a (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;
(dd) None of the Mortgage Loans secured by a property located in
the State of Georgia were originated on or after October 1, 2002 and before
March 7, 2003;
(ee) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then current Standard & Poor's
LEVELS(R)Glossary which is now Version 5.7 Revised, Appendix E (attached
hereto as Exhibit A)). [proviso with respect to West Virginia and Kansas
intentionally omitted] and no Group II Loan that was originated on or after
January 1, 2005 is a "high cost home loan" as defined under the Indiana Home
Loan Practices Act (I.C. 24-9);
(ff) The information set forth in the prepayment charge schedule
attached hereto as Exhibit B (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;
(gg) To the best of RFC's knowledge, the Subservicer for each
Group II Loan has accurately and fully reported its borrower credit files to
each of the Credit Repositories in a timely manner;
(hh) None of the proceeds of any Group II Loan were used to
finance the purchase of single premium credit insurance policies;
(ii) No Mortgage Loan has a prepayment penalty term that extends
beyond three years after the date of origination.
(jj) The principal balance at origination for each Group II Loan
that is secured by a single family property located in any state other than
the States of Hawaii or Alaska did not exceed $417,000. The principal
balance at origination for each Group II Loan that is secured by a single
family property located in the States of Hawaii or Alaska or the Territories
of Guam or the Virgin Islands did not exceed $625,500. The principal balance
at origination for each Group II Loan that is secured by a two-, three- or
four-family property located in any state other than the States of Hawaii or
Alaska did not exceed $533,850, $645,300 or $801,950, respectively. The
principal balance at origination for each Group II Loan that is secured by a
two-, three- or four-family property located in the States of Hawaii or
Alaska or the Territories of Guam or the Virgin Islands did not exceed
$800,775, $967,950 and $1,202,925, respectively; and
(kk) With respect to any Group II Loan originated on or after
August 1, 2004, neither the related Mortgage nor the related Mortgage Note
requires the borrower to submit to arbitration to resolve any dispute arising
out of or relating in any way to the Group II Loan transaction;
(ll) With respect to each Group II Loan that contains a
provision permitting imposition of a premium upon a prepayment prior to
maturity: (a) prior to origination, the borrower agreed to such premium in
exchange for a monetary benefit, including but not limited to a rate or fee
reduction; (b) prior to origination, the borrower was offered the option of
obtaining a mortgage loan that did not require payment of such a premium; (c)
the prepayment premium is adequately disclosed to the borrower pursuant to
applicable state and federal law; and (d) notwithstanding any state or
federal law to the contrary, the RFC shall not impose such prepayment premium
in any instance when the Group II Loan is accelerated or paid off in
connection with the workout of a delinquent mortgage or due to the borrower's
default;
(mm) With respect to each Group II Loan, the originator offered
the borrower mortgage loan products offered by such originator, or any
affiliate of such originator, for which the borrower qualified;
(nn) With respect to each Group II Loan, the borrower was not
encouraged or required to select a mortgage loan product offered by the
Mortgage Loan's originator which is a higher cost product designed for less
creditworthy borrowers, taking into account such facts as, without
limitation, the Mortgage Loan's requirements and the borrower's credit
history, income, assets and liabilities;
(oo) The methodology used in underwriting the extension of
credit for each Group II Loan did not rely on the extent of the borrower's
equity in the collateral as the principal determining factor in approving
such extension of credit. The methodology employed objective criteria that
related such facts as, without limitation, the borrower's credit history,
income, assets or liabilities to the proposed mortgage payment and, based on
such methodology, the Mortgage Loan's originator made a reasonable
determination that at the time of origination the borrower had the ability to
make timely payments on the Mortgage Loan;
(pp) No borrower under a Group II Loan was charged "points and
fees" in an amount greater than (a) $1,000 or (b) 5% of the principal amount
of such Group II Loan, whichever is greater. For purposes of this
representation, "points and fees" (x) include origination, underwriting,
broker and finder's fees and charges that the lender imposed as a condition
of making the Group II Loan, whether they are paid to the lender or a third
party; and (y) exclude bona fide discount points, fees paid for actual
services rendered in connection with the origination of the mortgage (such as
attorneys' fees, notaries fees and fees paid for property appraisals, credit
reports, surveys, title examinations and extracts, flood and tax
certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood
insurance policies; state and local transfer taxes or fees; escrow deposits
for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges that, in total, do not exceed 0.25 percent of
the loan amount;
(qq) No Group II Loan was originated in connection with a
manufactured housing unit; and
(rr) No Group II Loan was originated more than one year before
the date of issuance of the Certificates.
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, 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. Notwithstanding the foregoing, it is understood by the parties
hereto that a breach of the representations and warranties made in any of
clause (bb), (cc), (dd), (ee) and (gg) through (rr) of this Section 4 with
respect to any Group II Loan will be deemed to materially and adversely
affect the interests of the Holders of the Certificates in the related
Mortgage Loan. 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 and warranty set forth in clause (k) 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.
5. 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 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 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.
6. 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.
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 ACCREDIT LOANS, INC.
By:
/s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
EXHIBIT A
APPENDIX E OF THE STANDARD AND POOR'S GLOSSARY FOR
FILE FORMAT FOR LEVELS(R)VERSION 5.7 REVISED
REVISED July 1, 0000
XXXXXXXX X - 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
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Arkansas Arkansas Home Loan Protection High Cost Home Loan
Act, Ark. Code Xxx.ss.ss.00-00-000
et seq.
Effective July 16, 2003
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--------------------------------------------------------------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Codess.ss.757.01 et seq.
Effective June 2, 2003
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--------------------------------------------------------------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. Xxx.ss.ss.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
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--------------------------------------------------------------------------------
Connecticut Connecticut Abusive Home Loan High Cost Home Loan
Lending Practices Act, Conn. Gen.
Stat.ss.ss.36a-746 et seq.
Effective October 1, 2001
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--------------------------------------------------------------------------------
District of Columbia Home Loan Protection Act, D.C. Covered Loan
Codess.ss.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
ss.ss.494.0078 et seq.
Effective October 2, 2002
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--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. High Cost Home Loan
- Mar. 6, 2003) Code Xxx.ss.ss.7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
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--------------------------------------------------------------------------------
Georgia as amended Georgia Fair Lending Act, Ga. High Cost Home Loan
(Mar. 7, 2003 - Code Xxx.ss.ss.7-6A-1 et seq.
current)
Effective for loans closed on or
after March 7, 2003
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--------------------------------------------------------------------------------
HOEPA Section 32 Home Ownership and Equity High Cost Loan
Protection Act of 1994, 15 U.S.C.
ss. 1639, 12 C.F.R.ss.ss.226.32 and
226.34
Effective October 1, 1995,
amendments October 1, 2002
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--------------------------------------------------------------------------------
Illinois High Risk Home Loan Act, Ill. High Risk Home Loan
Comp. Stat. tit. 815,ss.ss.137/5 et
seq.
Effective January 1, 2004 (prior
to this date, regulations under
Residential Mortgage License Act
effective from May 14, 2001)
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--------------------------------------------------------------------------------
Kansas Consumer Credit Code, Kan. Stat. High Loan to Value
Xxx.ss.ss.16a-1-101 et seq. Consumer Loan (xx.xx.
16a-3-207) and;
Sections 16a-1-301 and 16a-3-207
became effective April 14, 1999;
Section 16a-3-308a became
effective July 1, 1999
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
High APR Consumer
Loan (xx.xx.
16a-3-308a)
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--------------------------------------------------------------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Xxxx.xx.xx.
360.100 et seq.
Effective June 24, 2003
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--------------------------------------------------------------------------------
Maine Truth in Lending, Me. Rev. Stat. High Rate High Fee
tit. 9-A,ss.ss.8-101 et seq. Mortgage
Effective September 29, 1995 and
as amended from time to time
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--------------------------------------------------------------------------------
Massachusetts Part 40 and Part 32, 209 C.M.R. High Cost Home Loan
ss.ss.32.00 et seq. and 209 C.M.R.
ss.ss.40.01 et seq.
Effective March 22, 2001 and
amended from time to time
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--------------------------------------------------------------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Home Loan
Stat.ss.ss.598D.010 et seq.
Effective October 1, 2003
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--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership High Cost Home Loan
Security Act of 2002, N.J. Rev.
Stat.ss.ss.46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
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--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. High Cost Home Loan
Rev. Stat.ss.ss.58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
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--------------------------------------------------------------------------------
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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--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on High Cost Home Loan
High Cost Home Loans, N.C. Gen.
Stat.ss.ss.24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
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--------------------------------------------------------------------------------
Ohio H.B. 386 (codified in various Covered Loan
sections of the Ohio Code), Ohio
Rev. Code Xxx.ss.ss.1349.25 et seq.
Effective May 24, 2002
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--------------------------------------------------------------------------------
Oklahoma Consumer Credit Code (codified in Subsection 10
various sections of Title 14A) Mortgage
Effective July 1, 2000; amended
effective January 1, 2004
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South Carolina South Carolina High Cost and High Cost Home Loan
Consumer Home Loans Act, S.C.
Code Xxx.ss.ss.37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
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--------------------------------------------------------------------------------
West Virginia West Virginia Residential West Virginia
Mortgage Lender, Broker and Mortgage Loan Act
Servicer Act, W. Va. Code Xxx.xx.xx.Xxxx
31-17-1 et seq.
Effective June 5, 2002
--------------------------------------------------------------------------------
Standard & Poor's Covered Loan Categorization
--------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Covered Loan
- Mar. 6, 2003) Code Xxx.ss.ss.7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
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--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Covered Home Loan
Security Act of 2002, N.J. Rev.
Stat.ss.ss.46:10B-22 et seq.
Effective November 27, 2003 -
July 5, 2004
--------------------------------------------------------------------------------
Standard & Poor's Home Loan Categorization
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory
Law/Effective Date Lending Law
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Georgia (Oct. 1, 2002 Georgia Fair Lending Act, Ga. Home Loan
- Mar. 6, 2003) Code Xxx.ss.ss.7-6A-1 et seq.
Effective October 1, 2002 - March
6, 2003
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--------------------------------------------------------------------------------
New Jersey New Jersey Home Ownership Home Loan
Security Act of 2002, N.J. Rev.
Stat.ss.ss.46:10B-22 et seq.
Effective for loans closed on or
after November 27, 2003
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--------------------------------------------------------------------------------
New Mexico Home Loan Protection Act, N.M. Home Loan
Rev. Stat.ss.ss.58-21A-1 et seq.
Effective as of January 1, 2004;
Revised as of February 26, 2004
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--------------------------------------------------------------------------------
North Carolina Restrictions and Limitations on Consumer Home Loan
High Cost Home Loans, N.C. Gen.
Stat.ss.ss.24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end
lines of credit)
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--------------------------------------------------------------------------------
South Carolina South Carolina High Cost and Consumer Home Loan
Consumer Home Loans Act, S.C.
Code Xxx.ss.ss.37-23-10 et seq.
Effective for loans taken on or
after January 1, 2004
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EXHIBIT B
(PREPAYMENT CHARGE SCHEDULE)
ON FILE WITH RFC
