EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of February 8, 2007, between
Residential Funding Company, 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
January 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-KS1 (the "Certificates") consisting of sixteen classes designated as Class A-1,
Class A-2, Class X-0, Xxxxx X-0, 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 B, Class SB and Class R Certificates,
representing beneficial ownership interests solely in a trust fund consisting primarily of a
pool of fixed-rate and adjustable-rate one- to four-family mortgage loans identified on
Exhibit F to the Pooling and Servicing Agreement (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 and
to assign certain of its rights under the Seller Contracts to the Company, and the Company
wishes to assume certain of RFC's obligations under the Seller Contracts.
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
January 2007). In consideration of such assignment, RFC will receive from the Company, in
immediately available funds, an amount equal to $431,135,127.26 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),
(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) None 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) As of the Cut-off Date, none of the mortgage loans are currently 30 or more days
delinquent in payment of principal and interest. As of the Cut-off Date, approximately 0.1%
of the Mortgage Loans have been a maximum of 30 to 59 days delinquent in payment of
principal and interest in the last 12 months. As of the Cut-off Date, approximately 0.1% of
the Mortgage Loans have been a maximum of 60 to 89 days delinquent in the payment of
principal and interest in the last 12 months. As of the Cut-off Date, none of the Mortgage
Loans have been 90 or more days delinquent in the payment of principal and 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) The weighted average Loan-to-Value Ratio with respect to the Mortgage Loans by
outstanding principal balance at origination, is approximately 81.78%.
(xviii) No more than approximately 0.4% of the Mortgage Loans, by outstanding principal
balance as of the Cut-off Date, are located in any one zip code area in California. No more
than approximately 0.3% of the Mortgage Loans by outstanding principal balance as of the
Cut-off Date are located in any one zip code area outside of California.
(xix) Approximately 98.2% of the Mortgage Loans that are adjustable-rate loans will adjust
semi-annually based on Six-Month 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.
(xx) 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.
(xxi) Approximately 15.12% the Mortgaged Properties related to the Mortgage Loans (by
outstanding principal balance as of the Cut-off Date) are units in detached planned unit
developments. Approximately 1.84% of the Mortgaged Properties related to the Mortgage Loans
(by outstanding principal balance as of the Cut-off Date) are units in attached planned unit
developments. Approximately 1.92% of the Mortgaged Properties related to the Mortgage Loans
(by outstanding principal balance as of the Cut-off Date) are units in townhouses.
Approximately 0.06% of the Mortgaged Properties related to the Mortgage Loans
(by outstanding principal balance as of the Cut-off Date) are units in manufactured housing
developments. Approximately 0.32% of the Mortgaged Properties related to the Mortgage Loans
(by outstanding principal balance as of the Cut-off Date) are condominium units. Each
Mortgaged Property is suitable for year-round occupancy.
(xxii) Approximately 94.06% of the Mortgaged Properties related to the Mortgage Loans (by
outstanding principal balance as of the Cut-off Date) are secured by the owner's primary
residence. Approximately 1.77% of the Mortgaged Properties related to the Mortgage Loans
(by outstanding principal balance as of the Cut-off Date) are secured by the owner's second
or vacation residence. Approximately 4.17% of the Mortgaged Properties related to the
Mortgage Loans (by outstanding principal balance as of the Cut-off Date) are secured by a
non-owner occupied residence.
(xxiii) Approximately 73.27% of the Mortgaged Properties related to the Mortgage Loans (by
outstanding principal balance as of the Cut-off Date) are secured by detached one-family
dwelling units. Approximately 4.44% of the Mortgaged Properties related to the Mortgage
Loans (by outstanding principal balance as of the Cut-off Date) are secured by two- to
four-family dwelling units.
(xxiv) The average outstanding principal balance of the Mortgage Loans at origination was
approximately $152,600. No Mortgage Loan at origination had a principal balance of less
than $9,000 or more than $1,000,000.
(xxv) 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.
(xxvi) 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.
(xxvii) 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.
(xxviii) 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).
(xxix) No more than 57.49% of the Mortgage Loans have been classified by RFC as Credit Grade
A4, no more than 27.52% of any Mortgage Loans have been classified by RFC as Credit Grade A5
Mortgage Loans, no more than 9.14% of the Mortgage Loans have been classified by RFC as
Credit Grade AX Mortgage Loans, no more than 3.75% of the Mortgage Loans have been
classified by RFC as Credit Grade AM Mortgage Loans, no more than 1.12% of the Mortgage
Loans have been classified by RFC as Credit Grade B Mortgage Loans and no more than 0.99% of
the Mortgage Loans have been classified by RFC as Credit Grade C Mortgage Loans, in each
case as described generally in the Prospectus Supplement.
(xxx) No Mortgage Loan is a graduated payment loan or has a shared appreciation or
contingent interest feature.
(xxxi) 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.
(xxxii) No Mortgage Loan provides for deferred interest or negative amortization.
(xxxiii) None of the Mortgage Loans are buydown Mortgage Loans.
(xxxiv) 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.
(xxxv) No more than approximately 33.2% of the Mortgage Loans (by outstanding principal
balance as of the Cut-off-Date) 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 Mortgage
Loans for which Credit Scores are available to RFC was approximately 619 as of the
Cut-off-Date.
(xxxvi) 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.
(xxxvii) The weighted average remaining term to stated maturity of the
Mortgage Loans as of the cut-off date will be approximately 353 months. The weighted average
original term to maturity of the Mortgage Loans as of the cut-off date will be approximately
355 months.
(xxxviii) None of the Mortgage Loans are subject to the Home Ownership and Equity
Protection Act of 1994 ("HOEPA").
(xxxix) To the best of RFC's knowledge, the Subservicer for each Mortgage Loan has accurately
and fully reported its borrower credit files to each of the Credit Repositories in a timely
manner.
(xl) None of the proceeds of any Mortgage Loan were used to finance the purchase of single
premium credit insurance policies.
(xli) No Mortgage Loan has a prepayment penalty term that extends beyond five years after
the date of origination.
(xlii) Approximately 30.2% of the Mortgage Loans are Balloon Mortgage Loans.
(xliii) 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.
(xliv) The information set forth in the prepayment charge schedule attached hereto as
Exhibit A (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.
(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 lending laws.
(xlvi) No Mortgage Loan was originated on or after September 26, 2003 and before September
1, 2036 which is secured by property located in the State of Georgia.
(xlvii) No Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the current Appendix E of the Standard & Poor's Glossary For File Format For
LEVELS(R)Version 5.7 (attached hereto as Exhibit B); provided that no representation and
warranty is made in this clause (xlvii) with respect to 0.1% of the Mortgage Loans and (by
outstanding principal balance as of the Cut-off Date), secured by property located in the
State of Kansas or with respect to 0.1% of the Mortgage Loans (by outstanding principal
balance as of the Cut-off Date), secured by property located in the State of West Virginia;
and provided further that no Qualified Substitute Mortgage Loan shall be a High Cost Loan or
Covered Loan (as such terms are defined in Appendix E of the Standard & Poor's Glossary For
File Format For LEVELS(R)in effect on the date of substitution), unless the Company shall
have received from S&P written confirmation that the inclusion of any such Mortgage Loan
will not adversely affect the then current ratings assigned to any of the Certificates by
S&P.
(xlviii) Each Mortgage Loan listed on the attached Exhibit C has an original term to
maturity of 360 months and an original amortization term of 480 months.
(xlix) As of the Cut-off Date, RFC has not received notice that any Mortgagor under any
Mortgage Loan is in bankruptcy and none of the Mortgage Loans are in foreclosure.
(l) As of the Cut-off Date, no Mortgagor under any Mortgage Loan has requested relief
under the Relief Act.
(li) The rental or mortgage history, as applicable, for each Mortgagor under the Mortgage
Loans listed on Exhibit C was verified for the twelve months immediately preceding the
origination date of the related Mortgage Loan.
(lii) RFC generally obtained more than one FICO score for each Mortgagor.
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. 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.
9. In the event that the first Monthly Payment due on any Mortgage Loan after the
related Paid-To Date (as defined below) has not been received by the Master Servicer or the
related Subservicer within 45 days of the related Due Date for such Monthly Payment on such
Mortgage Loan, RFC shall repurchase such Mortgage Loan at the Purchase Price or 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, in
either case within 60 days of written notice from Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated. Notwithstanding the foregoing, Residential Funding shall not have the
obligation to repurchase or substitute a Mortgage Loan in accordance with this Section 9
unless RFC has received written notice from Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated of such breach of such covenant for such Mortgage Loan on or before the 60th
calendar day from the date that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated receives
notice (which such notice may be set forth in the statement provided pursuant to Section
4.03(a) of the Pooling and Servicing Agreement) of the failure to receive the related first
Monthly Payment. For purposes of this Section 9, any Monthly Payment on a Mortgage Loan
received by a prior servicer before the servicing of such Mortgage Loan has been transferred
to the Master Servicer or the related Subservicer or any Monthly Payment that was received
but misapplied by the Master Servicer or the related Subservicer shall be deemed to be
received by the Master Servicer or the related Subservicer as of the date of receipt by such
prior servicer, the Master Servicer or the Subservicer, as applicable. For purposes of this
Section 9, "Paid-To Date" with respect to any Mortgage Loan shall mean the date indicated as
such on the Mortgage Loan Schedule.
[Signature page follows]
Schedule A
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:
SCHEDULE A
JUNIOR LIEN MORTGAGE LOANS
[SEE ATTACHMENT OR ON FILE WITH THE DEPOSITOR]
EXHIBIT A
PREPAYMENT CHARGE SCHEDULE
[ON FILE WITH THE DEPOSITOR]
EXHIBIT B
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 C
LIST OF MORTGAGE LOANS WITH ORIGINAL TERM TO MATURITY
OF 360 MONTHS AND AN ORIGINAL AMORTIZATION TERM OF 480 MONTHS
[SEE ATTACHMENT OR ON FILE WITH THE DEPOSITOR]
