ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT
AND
ASSUMPTION
AGREEMENT,
dated
as
of
October
27,
2006,
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
October 27,
2006
(the
"Pooling
and
Servicing
Agreement"),
pursuant
to which
the Trust
proposes
to
issue
Home
Equity
Mortgage
Asset-Backed
Pass-Through
Certificates,
Series 2006-KS9 (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
October 2006). In
consideration
of such
assignment,
RFC will receive from the Company,
in
immediately
available
funds,
an
amount
equal
to
$1,261,295,143.31
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)
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)
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.
None 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 82.1% and 83.5%,
respectively.
(xix)
No more than
approximately
0.4% of the Group I Loans are located in any one zip code
area in
California
and no more than
approximately
0.2% of the Group I Loans are located in
any one zip code area
outside of
California.
No more than
approximately
0.6% of the Group
II Loans
are
located
in any one zip code
area in New York and no more
than
approximately
0.5% of the Group II Loans are located in any one zip code area
outside of New York.
(xx)
99.8% 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
0.2% 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
15.37% and 13.23% of the
Mortgaged
Properties
related to the Group I
Loans
and
the
Group
II
Loans,
respectively,
are
units
in
detached
planned
unit
developments.
Approximately
1.61% and none of the Mortgaged
Properties related to the Group
I Loans and Group II Loans,
respectively,
are units in attached
planned unit
developments.
Approximately
0.64% and 1.87% of the
Mortgaged
Properties
related to the Group I Loans and
the Group II Loans,
respectively,
are units in townhouses.
Approximately 3.58% and 4.73% of
the Mortgaged
Properties
related to the Group I Loans and the Group II Loans,
respectively,
are condominium units.
Each Mortgaged Property is suitable for year-round occupancy.
(xxiii) Approximately
96.65% of the Mortgaged
Properties
related to the Mortgage
Loans are
secured by the owner's
primary
residence.
Approximately
1.21% of the Mortgaged
Properties
related
to the
Mortgage
Loans are
secured by the
owner's
second or
vacation
residence.
Approximately
2.14% of the Mortgaged
Properties related to the Mortgage Loans are secured by
a non-owner occupied residence.
(xxiv)
Approximately
75.46% and 77.84% 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
3.33%
and 2.33% 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
$176,930.
The average
outstanding
principal balance of the Group II Loans at
origination was
approximately
$166,712.
No Group I Loan or Group II Loan at origination had
a
principal
balance of less than
$9,992 and $9,992 or more than
$1,002,152
and
$415,807,
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 48.88% of the Group I Loans have been
classified
by RFC as Credit Grade
A4, no more than 37.20% of the Group I Loans have been
classified
by RFC as Credit Grade A5,
no more
than
7.69% of any
Group I Loans
have been
classified
by RFC as
Credit
Grade AX
Mortgage
Loans,
no more than
3.72% of the
Group I Loans
have
been
classified
by RFC as
Credit Grade AM Mortgage
Loans,
no more than 1.08% of the Group I Loans have been classified
by RFC as Credit
Grade B
Mortgage
Loans,
no more than 1.30% of the Group I Loans have been
classified
by RFC as Credit
Grade C
Mortgage
Loans
and no more than
0.04% of the Group I
Loans
have
been
classified
by RFC as
Credit
Grade CM
Mortgage
Loans,
in each
case as
described generally in the Prospectus Supplement.
(xxxi)
No more than 63.33% of the Group II Loans have been
classified by RFC as Credit Grade
A4, no more than
19.47% of the Group II Loans
have been
classified
by RFC as Credit
Grade
A5, no more than 8.58% of any Group II Loans have been
classified
by RFC as Credit
Grade AX
Mortgage
Loans,
no more than
5.73%
