EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of March 29, 2007, between Residential
Funding Company, LLC, a Delaware limited liability company ("RFC") and Residential Asset
Securities Corporation, a Delaware corporation (the "Company").
Recitals
A. RFC has entered into seller contracts ("Seller Contracts") with certain
sellers and servicers.
B. The Company wishes to purchase from RFC certain Mortgage Loans (as hereinafter
defined) originated pursuant to the Seller Contracts with respect thereto.
C. The Company, RFC, as master servicer, and U.S. Bank National Association, as
trustee (the "Trustee"), are entering into a Pooling and Servicing Agreement dated as of
March 1, 2007 (the "Pooling and Servicing Agreement"), pursuant to which the Trust proposes
to issue Home Equity Mortgage Asset-Backed Pass-Through Certificates, Series 2007-KS3 (the
"Certificates") consisting of sixteen classes designated as Class A-I-1, Class A-I-2,
Class A-I-3, Class A-I-4, A-II, Class M-1S, Class M-2S, Class M-3S, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9, Class SB and Class R Certificates, representing
beneficial ownership interests solely in a trust fund consisting primarily of a pool that
will be divided into (i) the adjustable and fixed rate one-to four-family mortgage loans
identified on Exhibit F-1 to the Pooling and Servicing Agreement (the "Group I Loans") and
(ii) the adjustable and fixed rate one- to four-family mortgage loans identified on Exhibit
F-2 to the Pooling and Servicing Agreement (the "Group II Loans," and together with the
Group I Loans, the "Mortgage Loans").
D. In connection with the purchase of the Mortgage Loans, the Company will assign
to RFC the Class R Certificates (the "Retained 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
the Cut-off Date (other than payments of principal and interest due on the Mortgage Loans in
March 2007). In consideration of such assignment, RFC will receive from the Company, in
immediately available funds, an amount equal to $1,259,556,741.19 and the Retained
Certificates. In connection with such assignment and at the Company's direction, RFC has in
respect of each Mortgage Loan endorsed the related Mortgage Note (other than any Destroyed
Mortgage Note, hereinafter defined) to the order of the Trustee and delivered an assignment
of mortgage in recordable form to the Trustee or its agent. A "Destroyed Mortgage Note"
means a Mortgage Note the original of which was permanently lost or destroyed.
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 deemed to be a security agreement within the meaning of
Articles 8 and 9 of the Minnesota Uniform Commercial Code and the Uniform Commercial Code of
any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be
deemed to be a grant by RFC to the Company of a security interest in all of RFC's right
(including the power to convey title thereto), title and interest, whether now owned or
hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the
Mortgages, any related insurance policies and all other documents in the related Mortgage
Files, (B) all amounts payable pursuant to the Mortgage Loans in accordance with the terms
thereof and (C) any and all general intangibles consisting of, arising from or relating to
any of the foregoing, and 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, certificated securities 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, financial intermediaries, bailees or agents
(as applicable) of 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 deemed to
create a security interest in the Mortgage Loans and the other property described above,
such security interest would be deemed 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.
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 the Retained
Certificates as part of the consideration payable to RFC by the Company pursuant to this
Agreement.
4. RFC represents and warrants to the Company, with respect to each Mortgage Loan that
on the date of execution hereof (or, if otherwise specified below, as of the date so
specified and provided that all percentages of the Mortgage Loans described in this Section
4 are approximate percentages by outstanding principal balance determined as of the Cut-off
Date after deducting payments due during the month of the Cut-off Date):
(i) Immediately prior to the delivery 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
or security interest (other than (a) rights to servicing and related compensation, and
(b) any senior lien relating to a Mortgage Loan listed on Schedule A attached hereto (the
"Junior Lien Mortgage Loans")) and had full right and authority to sell and assign the
Mortgage Loans pursuant to this Agreement.
(ii) 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.
(iii) The Mortgagor (including any party secondarily liable under the Mortgage File) has no
right of set-off, defense, counterclaim or right of rescission as to any document in the
Mortgage File except as may be provided under the Relief Act.
(iv) RFC and any other originator, servicer or other previous owner of each Mortgage Loan
has obtained all licenses and effected all registrations required under all applicable
local, state and federal laws, regulations and orders, including without limitation truth in
lending and disclosure laws, necessary to own or originate the Mortgage Loans (the failure
to obtain such licenses or to comply with such laws, regulations and orders would make such
Mortgage Loans void or voidable).
(v) A policy of title insurance, in the form and amount that is in material compliance
with the Program Guide, was effective as of the closing of each Mortgage Loan, is valid and
binding, and remains in full force and effect except for Mortgaged Properties located in the
State of Iowa where an attorney's certificate has been provided in accordance with the
Program Guide. No claims have been made under such title insurance policy and no holder of
the related mortgage, including RFC, has done or omitted to do anything which would impair
the coverage of such title insurance policy.
(vi) Each Mortgage Loan is a valid and enforceable first lien (or in the case of the
Junior Lien Mortgage Loans, junior lien) on the Mortgaged Property subject only to (1) the
lien of nondelinquent current real property taxes and assessments, (2) covenants, conditions
and restrictions, rights of way, easements and other matters of public record as of the date
of recording of such Mortgage, such exceptions appearing of record being acceptable to
mortgage lending institutions generally or specifically reflected in the appraisal made in
connection with the origination of the related Mortgage Loan, and (3) other matters to which
like properties are commonly subject that do not materially interfere with the benefits of
the security intended to be provided by such Mortgage.
(vii) All improvements which were considered in determining the Appraised Value of the
Mortgaged Property lie wholly within the boundaries and the building restriction lines of
the Mortgaged Premises, 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.
(viii) There are no delinquent tax or delinquent assessment liens against the related
Mortgaged Property, and there are no mechanic's liens or claims for work, labor or material
or any other liens affecting such Mortgaged Property which are or may be a lien prior to, or
equal with, the lien of the Mortgage assigned to RFC, except those liens that are insured
against by the policy of title insurance and described in (v) above.
(ix) Each Mortgaged Property is free of material damage and is in good repair and no
notice of condemnation has been given with respect thereto.
(x) The improvements upon the Mortgaged Property are insured against loss by fire and
other hazards as required by the Program Guide, including flood insurance if required under
the National Flood Insurance Act of 1968, as amended. The Mortgage requires the Mortgagor
to maintain such casualty insurance at the Mortgagor's expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and maintain such
insurance at the Mortgagor's expense and to seek reimbursement therefore from the Mortgagor.
(xi) The appraisal was made by an appraiser who meets the minimum qualifications for
appraisers as specified in the Program Guide.
(xii) Each Mortgage Note and Mortgage constitutes a legal, valid and binding obligation of
the Mortgagor enforceable in accordance with its terms except as limited by bankruptcy,
insolvency or other similar laws affecting generally the enforcement of creditors' rights.
(xiii) Each Mortgage Loan is covered by a standard hazard insurance policy.
(xiv) Approximately 0.1% of the Mortgage Loans are secured by a leasehold estate.
(xv) The information set forth on the Mortgage Loan Schedule with respect to each Mortgage
Loan is true and correct in all material respects as of the date or dates which such
information is furnished.
(xvi) None of the Mortgage Loans are 30 to 59 days Delinquent in payment of principal and
interest. None of the Mortgage Loans are 60 to 89 days Delinquent in the payment of
principal or interest. None of the Mortgage Loans are 90 or more days Delinquent in the
payment of principal or interest. 0.2% of the Mortgage Loans have been a maximum of 30 or
more days Delinquent in payment of principal or interest in the last 12 months. For the
purposes of this representation a Mortgage Loan is considered Delinquent if a Subservicer or
the Master Servicer has made any advances on the Mortgage Loan that have not been reimbursed
out of payments by the mortgagor or on the mortgagor's behalf from a source other than a
Subservicer, a Seller, the Master Servicer or an affiliated entity of either.
(xvii) None of the Mortgage Loans with Loan-to-Value Ratios, or combined Loan-to-Value
Ratios with respect to Junior Lien Loans, at origination in excess of 80% are insured by a
borrower-paid, primary mortgage insurance policy.
(xviii) The weighted average Loan-to-Value Ratio with respect to Group I Loans, and the Group
II Loans, in each case by outstanding principal balance at origination, is 82.6% and 82.9%,
respectively.
(xix) No more than approximately 0.2% of the Group I Loans are located in any one zip code
area in California and no more than approximately 0.3% of the Group I Loans are located in
any one zip code area outside of California.
(xx) Approximately 99.9% of the Group I Loans and all of the Group II Loans that are
adjustable-rate loans will adjust semi-annually based on Six-Month LIBOR (as defined in the
Prospectus Supplement), and 0.1% of the Group I Loans that are adjustable-rate loans will
adjust annually based on One-Year LIBOR (as defined in the Prospectus Supplement ). Each of
the Mortgage Loans that are adjustable-rate loans will adjust on the Adjustment Date
specified in the related Mortgage Note to a rate equal to the sum (rounded as described in
the Prospectus Supplement) of the related Index described in the Prospectus Supplement and
the Note Margin set forth in the related Mortgage Note, subject to the limitations described
in the Prospectus Supplement, and each Mortgage Loan has an original term to maturity from
the date on which the first monthly payment is due of not more than approximately 30 years.
On each Adjustment Date, the Mortgage Rate on each Mortgage Loan that is an adjustable-rate
loan will be adjusted to equal the related Index plus the related Gross Margin, subject in
each case to the Periodic Rate Cap, the Mortgage Rate and the Minimum Mortgage Rate. The
amount of the monthly payment on each Mortgage Loan that is an adjustable-rate loan will be
adjusted on the first day of the month following the month in which the Adjustment Date
occurs to equal the amount necessary to pay interest at the then-applicable Mortgage Rate to
fully amortize the outstanding principal balance of such Mortgage Loan over its remaining
term to stated maturity. No Mortgage Loan is subject to negative amortization.
(xxi) With respect to each Mortgage constituting a deed of trust, a trustee, duly qualified
under applicable law to serve as such, has been properly designated and currently so serves
and is named in such Mortgage, and no fees or expenses are or will become payable by the
holder of the Mortgage Loan to the trustee under the deed of trust, except in connection
with a trustee's sale after default by the Mortgagor.
(xxii) Approximately 11.3% and 8.6% of the Mortgaged Properties related to the Group I Loans
and the Group II Loans, respectively, are units in detached planned unit developments.
Approximately 1.6% and 2.2% of the Mortgaged Properties related to the Group I Loans and
Group II Loans, respectively, are units in attached planned unit developments.
Approximately 1.3% and 2.0% of the Mortgaged Properties related to the Group I Loans and the
Group II Loans, respectively, are units in townhouses. Approximately 5.2% and 4.5% of the
Mortgaged Properties related to the Group I Loans and the Group II Loans, respectively, are
condominium units. Approximately 0.1% and 0.2% of the Mortgaged Properties related to the
Group I Loans and the Group II Loans, respectively, are leaseholds. Each Mortgaged Property
is suitable for year-round occupancy.
(xxiii) Approximately 93.9% of the Mortgaged Properties related to the Mortgage Loans are
secured by the owner's primary residence. Approximately 2.3% of the Mortgaged Properties
related to the Mortgage Loans are secured by the owner's second or vacation residence.
Approximately 3.8% of the Mortgaged Properties related to the Mortgage Loans are secured by
a non-owner occupied residence.
(xxiv) Approximately 74.8% and 76.1% of the Mortgaged Properties related to the Group I
Loans and the Group II Loans, respectively, are secured by detached one-family dwelling
units. Approximately 5.7% and 6.3% of the Mortgaged Properties related to the Group I Loans
and the Group II Loans, respectively, are secured by two- to four-family dwelling units.
(xxv) The average outstanding principal balance of the Group I Loans at origination was
approximately $161,416. The average outstanding principal balance of the Group II Loans at
origination was approximately $175,287. No Group I Loan or Group II Loan at origination had
a principal balance of less than $10,050 and $15,120 or more than $ 1,000,000 and $414,000,
respectively.
(xxvi) As of the Cut-off Date, all Mortgage Rate adjustments on the Mortgage Loans that have
reached an Adjustment Date have been done in accordance with the terms of the related
Mortgage Note.
(xxvii) 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.
(xxviii) Except as otherwise specifically set forth herein, 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 RFC or by any other entity involved in
originating or servicing a Mortgage Loan.
(xxix) Each Mortgage Loan constitutes a "qualified mortgage" under Section 860G(a)(3)(A) of
the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9),
without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury
Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to
be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4),
(5), (6), (7) and (9).
(xxx) No more than approximately 59.2% of the Group I Loans have been classified by RFC as
Credit Grade A4, no more than approximately 25.0% of the Group I Loans have been classified
by RFC as Credit Grade A5, no more than approximately 9.6% of any Group I Loans have been
classified by RFC as Credit Grade AX Mortgage Loans, no more than approximately 4.4% of the
Group I Loans have been classified by RFC as Credit Grade AM Mortgage Loans, no more than
approximately 1.1% of the Group I Loans have been classified by RFC as Credit Grade B
Mortgage Loans and no more than approximately 0.9% of the Group I Loans have been classified
by RFC as Credit Grade C Mortgage Loans, in each case as described generally in the
Prospectus Supplement.
(xxxi) No more than approximately 68.0% of the Group II Loans have been classified by RFC as
Credit Grade A4, no more than approximately 16.3% of the Group II Loans have been classified
by RFC as Credit Grade A5, no more than approximately 10.2% of any Group II Loans have been
classified by RFC as Credit Grade AX Mortgage Loans, no more than approximately 4.2% of the
Group II Loans have been classified by RFC as Credit Grade AM Mortgage Loans, no more than
approximately 1.0% of the Group II Loans have been classified by RFC as Credit Grade B
Mortgage Loans and no more than approximately 0.6% of the Group II Loans have been
classified by RFC as Credit Grade C Mortgage Loans, in each case as described generally in
the Prospectus Supplement.
(xxxii) No Mortgage Loan is a graduated payment loan or has a shared appreciation or
contingent interest feature.
(xxxiii) With respect to each Mortgage Loan, either (i) each 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 or (ii) the Mortgage Loan is assumable pursuant to the
terms of the Mortgage Note.
(xxxiv) No Mortgage Loan provides for deferred interest or negative amortization.
(xxxv) None of the Mortgage Loans are buy-down Mortgage Loans.
(xxxvi) Each Mortgaged Property is a single parcel of real estate with a one- to four-unit
single family residence thereon, a condominium unit, a manufactured housing unit, a unit in
a townhouse, a planned unit development, a leasehold or a modular home; and no Mortgage
Property consists of a mobile home or a manufactured housing unit that is not permanently
affixed to its foundation.
(xxxvii) No more than approximately 34.3% and 42.6% of the Group I Loans and Group II
Loans, respectively, were made to Mortgagors with credit scores as described generally in
the Prospectus Supplement of less than 600 excluding Mortgagors whose credit scores are not
available to RFC. The weighted average of the credit scores for the Group I Loans and the
Group II Loans for which Credit Scores are available to RFC was approximately 610 and 618,
respectively, as of the Cut-off Date.
(xxxviii) 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.
(xxxix) The weighted average remaining term to stated maturity of the Group I Loans and the
Group II Loans, respectively, as of the cut-off date will be approximately 352 and 354
months. The weighted average original term to maturity of the Group I Loans and the Group II
Loans, respectively, as of the cut-off date will be approximately 354 and 357 months.
(xl) No Group I Loan has a prepayment penalty term that extends beyond five years after
the date of origination.
(xli) Approximately 25.2% of the Group I Loans and 30.6% of the Group II Loans are Balloon
Mortgage Loans.
(xlii) None of the Mortgage Loans are loans that, under applicable state or local law in
effect at the time of origination of such Mortgage Loan, are referred to as (1) "high cost"
or "covered" loans or (2) any other similar designation if the law imposes greater
restrictions or additional legal liability for residential mortgage loans with high interest
rates, points and/or fees.
(xliii) [Reserved.]
(xliv) Each Group I Loan and Group II Loan listed on the attached Exhibit B has an original
term to maturity of 360 months and an original amortization term of 480 months or an
original term to maturity of 540 months and an original amortization term of 540 months or
an original term to maturity of 600 months and an original term amortization term of 600
months.
(xlv) Each Mortgage Loan as of the time of its origination complied in all material
respects with all applicable local, state and federal laws, including, but not limited to,
all applicable predatory, abusive and fair lending laws.
(xlvi) None of the Mortgage Loans are subject to the Home Ownership and Equity Protection
Act of 1994 ("HOEPA").
(xlvii) None of the Mortgaged Properties are units in manufactured housing developments.
(xlviii) No Mortgage Loan was originated on or after October 1, 2002 and before March
7, 2003, which is secured by property located in the State of Georgia.
(xlix) No Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the current version of Appendix E of the Standard & Poor's Glossary For File
Format For LEVELS(R)Version 5.7 (attached hereto as Exhibit A); and there is no mortgage loan
in the trust that was originated on or after January 1, 2005, which is a "high cost home
loan" as defined under the Indiana Home Practices Act (I.C. 2409); provided that no
representation and warranty is made in this clause (xlvii) with respect to 0.1% and 0.1% of
the Group I Loans and Group II Loans, respectively, secured by property located in the State
of Kansas or with respect to approximately 0.3% and 0.2% of the Group I Loans and the Group
II Loans, respectively, secured by property located in the State of West Virginia.
(l) With respect to each Group II Loan, no borrower obtained a prepaid single-premium
credit-life, credit disability, credit unemployment or credit property insurance policy in
connection with the origination of the Mortgage Loan.
(li) The related Subservicer or the Master Servicer for each Mortgage Loan has fully
furnished, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and unfavorable) on its
borrower credit files to Equifax, Experian, and Trans Union Credit Information Company
(three of the credit repositories), on a monthly basis.
(lii) The Subservicer for each Mortgage Loan or the Master Servicer will fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on its borrower credit files to
Equifax, Experian, and Trans Union Credit Information Company (three of the credit
repositories), on a monthly basis.
(liii) With respect to any Group II Loan that contains a provision permitting imposition of
a penalty upon a prepayment prior to maturity:
(i) the Seller's pricing methods include mortgage loans with and
without prepayment premiums;
(ii) borrowers selecting Group II Loans which include such prepayment
premiums receive some benefit, (e.g. a rate or fee reduction), in
exchange for selecting a Group II Loan with a prepayment premium;
(iii) the originator of the Group II Loans had a verifiable policy of
offering the borrower, or requiring third-party brokers to offer the
borrower an array of mortgage loan products that included mortage loan
products with prepayment premiums and mortgage loan products that did
not require payment of such a premium;
(iv) the prepayment premium is disclosed to the borrower in the loan
documents pursuant to applicable state and federal law;
(v) notwithstanding any state or federal law to the contrary, the
Master Servicer shall not impose such prepayment premium in any
instance when the mortgage debt is accelerated as the result of the
borrower's default in making the loan payments; and
(vi) no Group II Loan has a prepayment penalty term that extends beyond
three years after the date of origination, unless the loan will be
within 90 days from the date hereof modified to reduce the prepayment
penalty term to no more than three years after the date of origination
and the borrower was notified in writing of such reduction in
prepayment penalty term.
(liv) The originator of each Group II Loan offered the related borrower mortgage loan
products for which the borrower qualified and we are not aware that the originator
encouraged or required the borrower to select a mortgage loan product that is a higher cost
product designed for less creditworthy borrowers.
(lv) The originator of the Group II Loans adequately considered the borrower's ability to
make payments by employing underwriting techniques that considered a variety of factors,
such as: the borrower's income, assets and liabilities, and not solely the collateral
value, in deciding to extend the credit at the time of origination.
(lvi) No borrower under a Group II Loan in the trust was charged "points and fees" in an
amount greater than (a) $1,000 or (b) 5% of the principal amount of such Mortgage 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 Mortgage 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 attorney's 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, which miscellaneous fee and
charges, in total do not exceed 0.25 percent of the loan amount.
(lvii) 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 Mortgage
Loan transaction.
(lviii) The principal balance at origination for each Group II Mortgage 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 Mortgage
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 Mortgage 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 Mortgage 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.
(lix) With respect to any Group II Loan that is a subordinate lien mortgage loan:
(i) such lien is on a one- to four-family residence that is the
principal residence of the borrower;
(ii) no subordinate lien mortgage loan has an original principal
balance that exceeds one-half of the one-unit limitation for first lien
mortgage loans, i.e. $208,500 (in Alaska, Guam, Hawaii or Virgin
Islands: $312,750), without regard to the number of units; and
(iii) the original principal balance of the first lien mortgage loan
plus the original principal balance of any subordinate lien mortgage
loans relating to the same mortgaged property does not exceed the
applicable Xxxxxxx Mac loan limit for first lien mortgage loans for
that property type (as set out in Section 4(lviii) above).
(lx) No Group II Loan is "seasoned" (a seasoned mortgage loan is one where the date of the
mortgage note is more than 1 year before the date of issuance of the related security).
(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 CFRss.
226.32(a)(1)(i) and (ii).
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.
5. With respect to the Mortgage Loans, a repurchase event ("Repurchase Event") shall
have occurred if it is discovered that, as of the date hereof, the related Mortgage Loan was
not a valid first lien or junior lien in the case of a Junior Lien Loan 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
other 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.
6. RFC hereby represents and warrants to the Company that with respect to each Mortgage
Loan, the REMIC's tax basis in each Mortgage Loan as of the Closing Date is equal to or
greater than 100% of the Stated Principal Balance thereof.
7. This Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns, and no other person shall have any right or
obligation hereunder.
8. RFC, as master servicer under the Pooling and Servicing Agreement (the "Master
Servicer"), shall not waive (or permit a sub-servicer to waive) any Prepayment Charge
unless: (i) the enforceability thereof shall have been limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors' rights generally,
(ii) the enforcement thereof is illegal, or any local, state or federal agency has
threatened legal action if the prepayment penalty is enforced, (iii) the collectability
thereof shall have been limited due to acceleration in connection with a foreclosure or
other involuntary payment or (iv) such waiver is standard and customary in servicing similar
Mortgage Loans and relates to a default or a reasonably foreseeable default and would, in
the reasonable judgment of the Master Servicer, maximize recovery of total proceeds taking
into account the value of such Prepayment Charge and the related Mortgage Loan. In no event
will the Master Servicer waive a Prepayment Charge in connection with a refinancing of a
Mortgage Loan that is not related to a default or a reasonably foreseeable default. If a
Prepayment Charge is waived, but does not meet the standards described above, then the
Master Servicer is required to pay the amount of such waived Prepayment Charge to the holder
of the Class SB Certificates at the time that the amount prepaid on the related Mortgage
Loan is required to be deposited into the Custodial Account. Notwithstanding any other
provisions of this Agreement, any payments made by the Master Servicer in respect of any
waived Prepayment Charges pursuant to this Section shall be deemed to be paid outside of the
Trust Fund and not part of any REMIC.
[Signature page follows]
IN WITNESS WHEREOF, the parties have entered into this Assignment and Assumption
Agreement as of the date first above written.
RESIDENTIAL FUNDING COMPANY, LLC
By:________________________________
Name:
Title:
RESIDENTIAL ASSET SECURITIES CORPORATION
By:________________________________
Name:
Title:
EXHIBIT A
APPENDIX E OF THE STANDARD & POOR'S GLOSSARY FOR
FILE FORMAT FOR LEVELS(R)VERSION 5.7
REVISED October 20, 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
---------------------------- ---------------------------------------- ---------------------------
CATEGORY UNDER
NAME OF ANTI-PREDATORY LENDING APPLICABLE ANTI-
STATE/JURISDICTION LAW/EFFECTIVE DATE PREDATORY LENDING LAW
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Arkansas Arkansas Home Loan Protection Act, High Cost Home Loan
Ark. Code Xxx.ss.ss.00-00-000 et seq.
Effective July 16, 2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Cleveland Heights, OH Ordinance No. 72-2003 (PSH), Mun. Covered Loan
Codess.ss.757.01 et seq.
Effective June 2, 2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Colorado Consumer Equity Protection, Colo. Stat. Covered Loan
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
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
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
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
District of Columbia Home Loan Protection Act, D.C. Code Covered Loan
ss.ss.26-1151.01 et seq.
Effective for loans closed on or after
January 28, 2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Florida Fair Lending Act, Fla. Stat. Xxx.xx.xx. High Cost Home Loan
494.0078 et seq.
Effective October 2, 2002
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Georgia (Oct. 1, 0000 - Xxxxxxx Xxxx Xxxxxxx Xxx, Xx. Code High Cost Home Loan
Mar. 6, 2003) Xxx.ss.ss.7-6A-1 et seq.
Effective October 1, 2002 - March 6
2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Georgia as amended Georgia Fair Lending Act, Ga. Code High Cost Home Loan
(Mar. 7, 2003 - current) Xxx.ss.ss.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.ss.ss.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,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)
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Indiana Indiana Home Loan Practices Act, Ind. High Cost Home Loans
Code Xxx.ss.ss.24-9-1-1 et seq.
Effective January 1, 2005; amended by
2005 HB 1179, effective July 1, 2005
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Kansas Consumer Credit Code, Kan. Stat. Xxx. High Loan to Value
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
(id.ss.16a-3-308a)
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Kentucky 2003 KY H.B. 287 - High Cost Home High Cost Home Loan
Loan Act, Ky. Rev. Stat.ss.ss.360.100
et seq.
Effective June 24, 2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Maine Truth in Lending, Me. Rev. Stat. tit. High Rate High Fee
9- Mortgage
A,ss.ss.8-101 et seq.
Effective September 29, 1995 and as
amended from time to time
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Massachusetts Part 40 and Part 32, 209 X.X.X.xx.xx. High Cost Home Loan
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
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Nevada Assembly Xxxx No. 284, Nev. Rev. Stat. Home Loan
ss.ss.598D.010 et seq.
Effective October 1, 2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
New Jersey New Jersey Home Ownership Security High Cost Home Loan
Act of 2002, N.J. Rev. Xxxx.xx.xx.
46:10B- 22 et seq.
Effective for loans closed on or after
November 27, 2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
New Mexico Home Loan Protection Act, N.M. Rev. High Cost Home Loan
Stat.ss.ss.58-21A-1 et seq.
Effective as of January 1, 2004;
Revised
as of February 26, 2004
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
New York N.Y. Banking Law Article 6-1 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. Xxxx.xx.xx.
24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end lines
of credit)
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Ohio H.B. 386 (codified in various sections Covered Loan
of the Ohio Code), Ohio Rev. Code Xxx.
ss.ss.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 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
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
West Virginia West Virginia Residential Mortgage West Virginia Mortgage
Lender, Broker and Servicer Act, W. Loan Act Loan
Va. Code Xxx.ss.ss.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-
LAW/EFFECTIVE DATE PREDATORY LENDING LAW
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Covered Loan
Mar. 6, 2003) Xxx.ss.ss.7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
New Jersey New Jersey Home Ownership Security Covered Home Loan
Act of 2002, N.J. Rev. Stat.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-
LAW/EFFECTIVE DATE PREDATORY LENDING LAW
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
Georgia (Oct. 1, 2002 - Georgia Fair Lending Act, Ga. Code Home Loan
Mar. 6, 2003) Xxx.ss.ss.7-6A-1 et seq.
Effective October 1, 2002 - March 6,
2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
New Jersey New Jersey Home Ownership Security Home Loan
Act of 2002, N.J. Rev. Xxxx.xx.xx.
46:10B- 22 et seq.
Effective for loans closed on or after
November 27, 2003
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
New Mexico Home Loan Protection Act, N.M. Rev. Home Loan
Stat.ss.ss.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. Xxxx.xx.xx.
24-1.1E et seq.
Effective July 1, 2000; amended
October 1, 2003 (adding open-end lines
of credit)
---------------------------- ---------------------------------------- ---------------------------
---------------------------- ---------------------------------------- ---------------------------
South Carolina South Carolina High Cost and Consumer Consumer Home Loan
Home Loans Act, S.C. Code Xxx.xx.xx.
37-23-10 et seq.
Effective for loans taken on or after
January 1, 2004
---------------------------- ---------------------------------------- ---------------------------
EXHIBIT B
Schedule of Balloon Loans
[ON FILE AT RFC]
