ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated April 27, 2006,
between Residential Funding Corporation, a Delaware corporation ("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 (the "Trustee"), are entering into a Series
Supplement, dated as of April 1, 2006 (the "Series Supplement"), and the
Standard Terms of Pooling and Servicing Agreement, dated as of March 1, 2006
(collectively, the "Pooling and Servicing Agreement"), pursuant to which the
Company proposes to issue Mortgage Asset-Backed Pass-Through Certificates,
Series 2006-QO4 (the "Certificates") consisting of twenty-two classes designated
as Class I-A-1, Class I-A-2, Class II-A-1, Class II-A-2, Class II-A-3, Class
R-I, Class R-II, Class R-III, 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 M-10 and Class SB
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 April 1, 2006 (other
than payments of principal and interest due on the Mortgage Loans on or before
April 30, 2006). In consideration of such assignment, RFC or its designee will
receive from the Company in immediately available funds an amount equal to
$887,370,312.38 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 Corporation 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) 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 is subject to the Home Ownership
and Equity Protection Act of 1994;
(cc) None of the Mortgage Loans is a loan that, under applicable
state or local law in effect at the time of origination of such loan, is
referred to as a (1) "high cost" or "covered" loan 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 was 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 5.6(d) Revised, Appendix E (attached
hereto as Exhibit A)). [proviso with respect to West Virginia and Kansas
intentionally omitted] and no Group I 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 I 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 I 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 I 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 I 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 I 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 I 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 I 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 I Loan transaction;
(ll) With respect to each Group I 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
I 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 I 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 I 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 I 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 I Loan was charged "points and
fees" in an amount greater than (a) $1,000 or (b) 5% of the principal amount of
such Group I 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 I
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 I Loan was originated in connection with a
manufactured housing unit;
(rr) No Group I Loan was originated more than one year before the
date of issuance of the Certificates.
RFC shall provide written notice to GMAC Mortgage Corporation 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 I 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 CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate
RESIDENTIAL ACCREDIT LOANS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
REVISED July 11, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇ - 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
------------------------------------------------------------------------------------------------
State/Jurisdiction Name of Anti-Predatory Lending Category under
Applicable
Anti-Predatory Lending
Law/Effective Date Law
---------------------------- ---------------------------------------- --------------------------
Arkansas Arkansas Home Loan Protection Act, High Cost Home Loan
Ark. Code ▇▇▇. ▇▇.▇▇. ▇▇-▇▇-▇▇▇ et seq.
Effective July 16, 2003
---------------------------- ---------------------------------------- --------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Code Covered Loan
▇▇.▇▇. 757.01 et seq.
Effective June 2, 2003
---------------------------- ---------------------------------------- --------------------------
Colorado Consumer Equity Protection, Colo. Covered Loan
Stat. ▇▇▇. ▇▇.▇▇. 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 High Cost Home Loan
Practices Act, Conn. Gen. Stat. ▇▇.▇▇.
36a-746 et seq.
-- ---
Effective October 1, 2001
---------------------------- ---------------------------------------- --------------------------
District of Columbia Home Loan Protection Act, D.C. Code ▇▇.▇▇. Covered Loan
26-1151.01 et seq.
-- ---
Effective for loans closed on or after
January 28, 2003
---------------------------- ---------------------------------------- --------------------------
Florida Fair Lending Act, Fla. Stat. ▇▇▇. ▇▇.▇▇. High Cost Home Loan
494.0078 et seq.
Effective October 2, 2002
---------------------------- ---------------------------------------- --------------------------
Georgia (Oct. 1, ▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇. Code High Cost Home Loan
Mar. 6, 2003) ▇▇▇. ▇▇.▇▇. 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) ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
Effective for loans closed on or after
March 7, 2003
---------------------------- ---------------------------------------- --------------------------
HOEPA Section 32 Home Ownership and Equity Protection High Cost Loan
Act of 1994, 15 U.S.C. ss. 1639, 12
C.F.R. ▇▇.▇▇. 226.32 and 226.34
Effective October 1, 1995, amendments
October 1, 2002
---------------------------- ---------------------------------------- --------------------------
Illinois High Risk Home Loan Act, Ill. Comp. High Risk Home Loan
Stat. tit. 815, ▇▇.▇▇. 137/5 et seq.
Effective January 1, 2004 (prior to this date,
regulations under Residential Mortgage License Act
effective from May 14, 2001)
---------------------------- ---------------------------------------- --------------------------
Kansas Consumer Credit Code, Kan. Stat. ▇▇▇. High Loan to Value
▇▇.▇▇. 16a-1-101 et seq. Consumer Loan (id. ss.
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
(id. ss. 16a-3-308a)
---------------------------- ---------------------------------------- --------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home Loan High Cost Home Loan
Act, Ky. Rev. Stat. ▇▇.▇▇. 360.100 et seq.
Effective June 24, 2003
---------------------------- ---------------------------------------- --------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. High Rate High Fee
9-A, ▇▇.▇▇. 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. ▇▇.▇▇. High Cost Home Loan
32.00 et seq. and 209 C.M.R. ▇▇.▇▇. 40.01
et seq.
Effective March 22, 2001 and amended
from time to time
---------------------------- ---------------------------------------- --------------------------
Nevada Assembly ▇▇▇▇ No. 284, Nev. Rev. Stat. Home Loan
▇▇.▇▇. 598D.010 et seq.
-- ---
Effective October 1, 2003
---------------------------- ---------------------------------------- --------------------------
New Jersey New Jersey Home Ownership Security Act High Cost Home Loan
of 2002, N.J. Rev. Stat. ▇▇.▇▇. 46:10B-22
et seq.
Effective for loans closed on or after
November 27, 2003
---------------------------- ---------------------------------------- --------------------------
New Mexico Home Loan Protection Act, N.M. Rev. High Cost Home Loan
Stat. ▇▇.▇▇. 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 High Cost Home Loan
Cost Home Loans, N.C. Gen. Stat. ▇▇.▇▇.
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 Covered Loan
of the Ohio Code), Ohio Rev. Code ▇▇▇.
▇▇.▇▇. 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
---------------------------- ---------------------------------------- --------------------------
South Carolina South Carolina High Cost and Consumer High Cost Home Loan
Home Loans Act, S.C. Code ▇▇▇. ▇▇.▇▇.
37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
---------------------------- ---------------------------------------- --------------------------
West Virginia West Virginia Residential Mortgage West Virginia Mortgage
Lender, Broker and Servicer Act, W. Loan Act Loan
Va. Code ▇▇▇. ▇▇.▇▇. 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 Lending
Law/Effective Date Law
---------------------------- ---------------------------------------- --------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Covered Loan
Mar. 6, 2003) ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
---------------------------- ---------------------------------------- --------------------------
New Jersey New Jersey Home Ownership Security Act Covered Home Loan
of 2002, N.J. Rev. Stat. ▇▇.▇▇. 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 Lending
Law/Effective Date Law
---------------------------- ---------------------------------------- --------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Home Loan
Mar. 6, 2003) ▇▇▇. ▇▇.▇▇. 7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
---------------------------- ---------------------------------------- --------------------------
New Jersey New Jersey Home Ownership Security Act Home Loan
of 2002, N.J. Rev. Stat. ▇▇.▇▇. 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. ▇▇.▇▇. 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. ▇▇.▇▇.
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 ▇▇▇. ▇▇.▇▇.
37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
---------------------------- ---------------------------------------- --------------------------
EXHIBIT B
(PREPAYMENT CHARGE SCHEDULE)