EXECUTION COPY
AMENDMENT NO. 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
This AMENDMENT NO. 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of February 23,
2007 (this "Amendment"), is between RESIDENTIAL FUNDING COMPANY, LLC, a Delaware limited
liability company ("RFC"), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, in its capacity as trustee for the RASC Series 2006-KS9 Trust (the "Trustee"),
and is agreed to and acknowledged by RESIDENTIAL ASSET SECURITIES CORPORATION, a Delaware
corporation (the "Company"). Capitalized terms used in this Agreement and not otherwise
defined will have the meanings assigned to them in the Assignment and Assumption Agreement
dated as of October 27, 2006 (the "Existing Agreement"), between RFC and the Trustee, as
assignee of the Company.
Recitals
A. RFC and the Company entered into the Existing Agreement, and the Company
assigned its rights under the Existing Agreement to the Trustee for the benefit of the
Certificateholders pursuant to the Pooling and Servicing Agreement dated as of October 27,
2006, among RFC, the Company and the Trustee.
B. A Certificateholder has requested that RFC and the Trustee amend the Existing
Agreement to provide for additional representations and warranties from RFC, and RFC has
agreed to provide such additional representations and warranties.
C. RFC and the Trustee desire to amend the Existing Agreement as set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendments.
(a) Section 4 of the Existing Agreement is hereby amended by inserting the following
after clause (lx) of Section 4:
(lxi) No refinance or purchase money Group II Loan in the trust has an
annual percentage rate or total points and fees that exceed the thresholds set by the
Home Ownership and Equity Protection Act of 1994 ("HOEPA") and its implementing
regulations, including 12 CFR § 226.32(a)(1)(i) and (ii).
(b) The last paragraph of Section 4 of the Existing Agreement is hereby
amended by replacing such last paragraph in its entirety with the following:
Upon discovery by RFC or upon notice from the Company or the Trustee of a breach of
the foregoing representations and warranties in respect of any Mortgage Loan, or upon the
occurrence of a Repurchase Event (as described in Section 5 below), which materially and
adversely affects the interests of any holders of the Certificates or the Company in such
Mortgage Loan (notice of which breach or occurrence shall be given to the Company by RFC, if
it discovers the same), RFC shall, within 90 days after the earlier of its discovery or
receipt of notice thereof, either cure such breach or Repurchase Event in all material
respects or, except as otherwise provided in Section 2.04 of the Pooling and Servicing
Agreement, either (i) purchase such Mortgage Loan from the Trustee or the Company, as the
case may be, at a price equal to the Purchase Price for such Mortgage Loan or (ii)
substitute a Qualified Substitute Mortgage Loan or Loans for such Mortgage Loan in the
manner and subject to the limitations set forth in Section 2.04 of the Pooling and Servicing
Agreement. Notwithstanding the foregoing, it is understood by the parties hereto that a
breach of the representations and warranties made in any of clauses (xlv) through (lxi) 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.
Notwithstanding the foregoing, RFC shall not be required to cure breaches, Repurchase Events
or purchase or substitute for Mortgage Loans as provided above if the substance of such
breach or Repurchase Event also constitutes fraud in the origination of the 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 set forth in
clause (xlv) 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 2. Effect of Amendment.
Upon execution of this Amendment, the Existing Agreement shall be, and be deemed to
be, modified and amended in accordance herewith and the respective rights, limitations,
obligations, duties, liabilities and immunities of the parties thereto shall hereafter be
determined, exercised and enforced subject in all respects to such modifications and
amendments, and all the terms and conditions of this Amendment shall be deemed to be part of
the terms and conditions of the Existing Agreement (as applicable) for any and all
purposes. Except as modified and expressly amended by this Amendment, the Existing
Agreement is in all respects ratified and confirmed, and all the terms, provisions and
conditions thereof shall be and remain in full force and effect.
SECTION 3. Binding Effect.
The provisions of this Amendment shall be binding upon and inure to the benefit of
the parties hereto (and any Certificateholder) and each of their respective successors and
assigns.
SECTION 4. Governing Law.
This Amendment shall be governed by and construed in accordance with the laws of the
State of New York and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
SECTION 5. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of this
Amendment shall be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Amendment and shall in no way affect the validity or
enforceability of the other provisions of this Amendment or of the Certificates or the
rights of the Certificateholders.
SECTION 6. Section Headings.
The section headings herein are for convenience of reference only, and shall not
limit or otherwise affect the meaning hereof.
SECTION 7. Counterparts.
This Amendment may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
[Signature Pages Follow]
IN WITNESS WHEREOF, the RFC and the Trustee have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and year first
above written.
RESIDENTIAL FUNDING COMPANY, LLC
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Associate
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /w/Xxxxxx Xxxxxx-Xxxx
Name: Xxxxxx Xxxxxx-Xxxx
Title: Vice President
Acknowledged and agreed to by:
RESIDENTIAL ASSET SECURITIES CORPORATION
By:/s/ Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: Vice President
