ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
EXECUTION
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment Agreement”) made this
27th day of April 2005 (the “Closing Date”), among SunTrust Mortgage, Inc. (the
“Seller” or the “Servicer”), Bank of America, National Association (the
“Assignor”) and Xxxxxxx Xxxxx Mortgage Company (the “Assignee”).
WHEREAS,
the Assignor (as successor by assignment to Banc of America Mortgage Capital
Corporation (“BAMCC”) pursuant to the Master Assignment, Assumption and
Recognition Agreement dated as of September 1, 2004 (the “Master AAR”)) and the
Seller have entered into a Flow Sale and Servicing Agreement dated as of
February 1, 2004, as amended by Amendment No. 1 dated as of June 1, 2004,
and as
further amended by Amendment No. 2 dated as of November 1, 2004 (as further
modified by the Master AAR, the “Sale and Servicing Agreement”), pursuant to
which the Seller sold to the Assignor certain mortgage loans listed on the
mortgage loan schedule attached as an exhibit to the memorandum of sale dated
November 18, 2004 (the “Memorandum of Sale”), between the Assignor and the
Seller;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from
the
Assignor certain mortgage loans (the “Mortgage Loans”), which Mortgage Loans are
subject to the provisions of the Sale and Servicing Agreement and are listed
on
the mortgage loan schedule attached as Exhibit
1
hereto
(the “Mortgage Loan Schedule”);
NOW
THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties agree as follows:
1.
Assignment
and Assumption.
(a) The
Assignor hereby assigns to the Assignee all of its right, title and interest
in,
to and under the Mortgage Loans, the Sale and Servicing Agreement and the
Memorandum of Sale, to the extent relating to the Mortgage Loans, and only
the
Mortgage Loans (other than the rights of the Assignor to indemnification
thereunder), and the Assignee hereby assumes all of the Assignor’s obligations
under the Sale and Servicing Agreement (as amended hereby), to the extent
relating to the Mortgage Loans, and only the Mortgage Loans, from and after
the
date hereof, and the Seller hereby acknowledges such assignment and assumption
and hereby agrees to the release of the Assignor from any obligations under
the
Sale and Servicing Agreement from and after the date hereof, to the extent
relating to the Mortgage Loans, and only the Mortgage Loans. The Assignor,
the
Assignee and the Seller further agree that any reference in the Sale and
Servicing Agreement to “Bank of America, N.A.” is deleted in its entirety and
replaced with “Xxxxxxx Sachs Mortgage Company.”
(b) Simultaneously
with the execution of this Assignment Agreement, on April 27, 2005, the Assignee
shall pay to the Assignor the purchase price as calculated pursuant to the
trade
confirmation dated as of February 17, 2005 (the “Trade Confirmation”), by and
between the Assignee and the Assignor. The Assignee shall pay the purchase
price
payable under the Trade Confirmation by wire transfer of immediately available
funds to the account specified by the Assignor. The Assignee shall be entitled
to all scheduled payments due on the Mortgage Loans after April 1, 2005 (the
“Assigned Loans Cut-off Date”) and all unscheduled payments or other proceeds or
other recoveries on the Mortgage Loans received on and after the Assigned
Loans
Cut-off Date except as otherwise specified in the Trade
Confirmation.
(c) The
Seller and the Assignor shall have the right to amend, modify or terminate
the
Sale and Servicing Agreement without the consent of the Assignee with respect
to
mortgage loans not conveyed to the Assignee hereunder, provided, however,
that
such amendment, modification or termination shall not affect or be binding
on
the Assignee.
2.
Accuracy
of the Sale and Servicing Agreement.
The
Seller and the Assignor each represent and warrant to the Assignee that (i)
attached hereto as Exhibit
2
is a
true, accurate and complete copy of the Sale and Servicing Agreement, (ii)
the
Sale and Servicing Agreement is in full force and effect as of the date hereof,
(iii) the Sale and Servicing Agreement has not been amended or modified in
any
respect and (iv) no notice of termination has been given to such party under
the
Sale and Servicing Agreement.
3.
Recognition
of the Assignee.
From
and
after the date hereof, the Servicer shall note the transfer of the Mortgage
Loans to the Assignee in its books and records, shall recognize the Assignee
as
the owner of the Mortgage Loans and shall service the Mortgage Loans for
the
benefit of the Assignee pursuant to the Sale and Servicing Agreement, the
terms
of which are incorporated herein by reference.
4.
Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor as follows:
(a) The
Assignee is a sophisticated investor able to evaluate the risks and merits
of
the transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the Seller
other than those contained in the Sale and Servicing Agreement or this
Assignment Agreement.
(b) The
Assignee is duly and legally authorized to enter into this Assignment Agreement
and to perform its obligations hereunder and under the Sale and Servicing
Agreement.
(c) This
Assignment Agreement has been duly authorized, executed and delivered by
the
Assignee and (assuming due authorization, execution and delivery thereof
by each
of the other parties hereto) constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles regardless of whether such enforcement is considered
in a
proceeding in equity or at law.
5.
Representations
and Warranties of the Servicer.
The
Servicer hereby warrants and represents to, and covenants with, the Assignee
that:
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(a) The
representations and warranties contained in Sections 3.01 and 3.02 of the
Sale and Servicing Agreement, are deemed to be made as of the date of this
Assignment Agreement, and all such representations and warranties are true
and
correct as of the date of this Assignment Agreement.
(b) The
Servicer has serviced the Mortgage Loans in accordance with the terms of
the
Sale and Servicing Agreement and provided accurate statements pursuant to
Section 5.02 thereof and otherwise complied with all covenants and
obligations thereunder.
(c) The
Servicer has taken no action or omitted to take any required action the omission
of which would have the effect of impairing any mortgage insurance or guarantee
on the Mortgage Loans.
6.
Representations
and Warranties of the Assignor.
The
Assignor hereby represents and warrants to the Assignee as follows:
(a) The
Assignor has been duly organized and is validly existing as a national banking
association under the laws of the United States with full power and authority
(corporate and other) to enter into and perform its obligations under the
Sale
and Servicing Agreement, the Memorandum of Sale and this Assignment
Agreement.
(b) This
Assignment Agreement has been duly executed and delivered by the Assignor,
and,
assuming due authorization, execution and delivery by each of the other parties
hereto, constitutes a legal, valid, and binding agreement of the Assignor,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors’ rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
(c) The
execution, delivery and performance by the Assignor of this Assignment Agreement
and the consummation of the transactions contemplated thereby do not require
the
consent or approval of, the giving of notice to, the registration with, or
the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date thereof.
(d) The
execution and delivery of this Assignment Agreement have been duly authorized
by
all necessary action on the part of the Assignor; neither the execution and
delivery by the Assignor of this Assignment Agreement, nor the consummation
by
the Assignor of the transactions therein contemplated, nor compliance by
the
Assignor with the provisions thereof, will conflict with or result in a breach
of, or constitute a default under, any of the provisions of the governing
documents of the Assignor or any law, governmental rule or regulation or
any
material judgment, decree or order binding on the Assignor or any of its
properties, or any of the provisions of any material indenture, mortgage,
deed
of trust, contract or other instrument to which the Assignor is a party or
by
which it is bound.
(e) There
are
no actions, suits or proceedings pending or, to the knowledge of the Assignor,
threatened, before or by any court, administrative agency, arbitrator or
governmental body (A) with respect to any of the transactions contemplated
by
this Assignment Agreement or (B) with respect to any other matter that in
the
judgment of the Assignor will be determined adversely to the Assignor and
will,
if determined adversely to the Assignor, materially adversely affect its
ability
to perform its obligations under this Assignment Agreement.
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(f) Except
for the sale of the Mortgage Loans to the Assignee, the Assignor has not
assigned or pledged any related Mortgage Note or the related Mortgage or
any
interest or participation therein.
(g) The
Assignor has not satisfied, canceled, or subordinated in whole or in part,
or
rescinded the Mortgage related to any Mortgage Loan, and the Assignor has
not
released the Mortgaged Property related to any Mortgage Loan from the lien
of
such Mortgage, in whole or in part, nor has the Assignor executed an instrument
that would effect any such release, cancellation, subordination, or
rescission.
(h) Immediately
prior to the assignment and conveyance contemplated in this Assignment
Agreement, the Assignor was the lawful owner of the Mortgage Loans with the
full
right to transfer the Mortgage Loans and all of its interests, rights and
obligations under the Sale and Servicing Agreement free from any and all
claims
and encumbrances whatsoever.
(i) The
Assignor represents and warrants to the Assignee that the Assignor has not
taken
any action that would serve to impair or encumber the Assignor’s ownership
interest in the Mortgage Loans since the Closing Date.
(j) The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller with respect to the
Sale
and Servicing Agreement.
(k) Except
as
set forth in this Assignment Agreement, the Assignor has not waived or agreed
to
any waiver under, or agreed to any amendment or other modification of, the
Sale
and Servicing Agreement or the Mortgage Loans, including without limitation
the
transfer of the servicing obligations under the Sale and Servicing Agreement.
The Assignor has no knowledge of, and has not received notice of, any waivers
under or amendments or other modifications of, or assignments of rights or
obligations under, except as contemplated in this Assignment Agreement, the
Sale
and Servicing Agreement or the Mortgage Loans.
(l) Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or
accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933, as amended (the “Securities Act”) or
which would render the disposition of the Mortgage Loans a violation of Section
5 of the Securities Act or require registration pursuant thereto.
4
(m) No
statement, tape, diskette, form, report or other document prepared by, or
on
behalf of, the Assignor in connection with the transactions contemplated
hereby,
contains or will contain any statement that is or will be inaccurate or
misleading in any material respect.
(n) The
representation and warranty made by the Seller in paragraph (mmm) of Section
3.02 (as amended hereby),
to the
extent it relates to matters arising on or after November 18, 2004, is true
and
correct as of the date of this Assignment Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 6 shall survive delivery of the respective Mortgage Files to the
Custodian and shall inure to the benefit of the Assignee and its assigns
notwithstanding any restrictive or qualified endorsement or assignment. Upon
the
discovery by the Assignor or the Assignee and its assigns of a breach of
any of
the foregoing representations and warranties, the party discovering such
breach
shall give prompt written notice to the other parties to this Assignment
Agreement.
It
is
understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained in this Section 6,
and no
other affiliate of the Assignor has made any representations or warranties
of
any kind to the Assignee.
7.
Repurchase
of Mortgage Loans.
Upon
discovery or notice of any breach by the Assignor of any representation,
warranty, or covenant under this Assignment Agreement that materially and
adversely affects the value of any Mortgage Loan or the interest of the Assignee
therein (it being understood that any such defect or breach shall be deemed
to
have materially and adversely affected the value of the related Mortgage
Loan or
the interest of the Assignee therein if the Assignee incurs a loss as a result
of such defect or breach), the Assignee promptly shall request that the Assignor
cure such breach and, if the Assignor does not cure such breach in all material
respects within sixty (60) days from the date on which it is notified of
the
breach, the Assignor shall, at the Assignee’s option, repurchase the Mortgage
Loan in the same manner set forth in Section 3.03 of the Sale and Servicing
Agreement.
In
the
event the Seller has breached a representation or warranty hereunder or under
the Sale and Servicing Agreement, as amended hereby, that is substantially
identical to a representation or warranty breached by the Assignor hereunder,
the Assignee shall first proceed against the Seller. If the Seller does not
within sixty (60) days after notification of the breach, take steps to cure
such
breach or repurchase the Mortgage Loan in the same manner as set forth in
Section 3.03 of the Sale and Servicing Agreement, the Assignee shall be entitled
to enforce the obligations of the Assignor hereunder to cure such breach
or to
repurchase the Mortgage Loan. In such event, the Assignor shall succeed to
the
rights of the Assignee to enforce the obligations of the Seller to cure such
breach or repurchase such Mortgage Loan under the terms of the Sale and
Servicing Agreement with respect to such Mortgage Loan.
5
Except
as
specifically set forth herein, the Assignee shall have no responsibility
to
enforce any provision of this Assignment Agreement, to oversee compliance
hereof, or to take notice of any breach or default thereof.
8.
Purchase
Price Protection.
With
respect to any Mortgage Loan that prepays in full at any time prior to the
expiration of the period beginning on the Closing Date and ending on the
last
day of the second calendar month thereafter, the Assignor shall reimburse
the
Assignee, within 30 days following the date on which the Assignor receives
written notice of the prepayment in full of such Mortgage Loan, the amount
(if
any) by which the portion of the purchase price paid by the Assignee to the
Assignor for such Mortgage Loan exceeded 100% of the outstanding scheduled
principal balance of the Mortgage Loan as of the Assigned Loans Cut-off
Date.
9.
Repurchase
of Mortgage Loans with Early Payment Defaults.
If
(a) a
Mortgagor is thirty (30) days or more delinquent with respect to the first
monthly payment due to the Assignee on the related Mortgage Loan immediately
following the Closing Date or (b) a Mortgage Loan is in bankruptcy or litigation
within the first month immediately following the Closing Date, the Assignor,
at
the Assignee’s option, shall promptly repurchase such Mortgage Loan from the
Assignee at the related purchase price for such Mortgage Loan.
10.
Modification
of the Sale and Servicing Agreement.
Solely
with respect to the Mortgage Loans, the Assignee and the Seller hereby modify
the Sale and Servicing Agreement as follows:
(a) Article
I
is hereby modified by deleting in its entirety the definition of “Closing Date”
and by replacing it with “April 27, 2005.”;
(b) Article
I
is hereby modified by deleting in its entirety the definition of “Cut-off Date”
and by replacing it with “April 1, 2005.”;
(c) Article
I
is hereby modified by deleting in its entirety the definition of “Purchase Price
and Terms Letter” and by replacing it with the following:
“The
trade confirmation dated as of February 17, 2005, by and between the Purchaser
and Bank of America, N.A., confirming the terms of a prospective purchase
and
sale of a Mortgage Loan Package.”
(d) The
definition of “Remittance Date” in Article I is hereby modified by deleting the
word “following” and replacing it with the word “preceding”;
(e) Section
3.02 is hereby modified by inserting the following as new subsections
therein:
“(jjj)
No
Foreclosure.
No
Mortgage Loan is subject to a written foreclosure agreement or pending
foreclosure proceedings;
6
(kkk)
No
Additional Payments.
There
is no obligation on the part of the Company or any other party to make payments
in addition to those made by the Mortgagor;
(lll)
Comparable
Mortgage File.
Each
document or instrument in the related Mortgage File is in a form generally
acceptable to prudent mortgage lenders that regularly originate or purchase
mortgage loans comparable to the Mortgage Loans for sale to prudent investors
in
the secondary market that invest in mortgage loans such as the Mortgage Loans;
(mmm)
No
Illinois Interest Act Loans.
As of
November 18, 2004, no Mortgage Loan that is secured by property located in
Illinois is in violation of the provisions of the Illinois Interest Act (815
Ill. Comp. Stat. 205/1 et seq.);
(nnn)
No
“Pledged Asset” Loans.
No
Mortgage Loan is a “pledged asset” mortgage loan; and
(ooo)
No
Mobile Homes or Manufactured Dwellings.
No
Mortgage Loan is secured by a residence or dwelling that is a mobile home
or a
manufactured dwelling.”
(f) Section
4.04 is hereby modified by inserting the following as the last sentence
therein:
“The
Company shall reimburse the Custodial Account for any losses incurred as
a
result of the investment of amounts on deposit in the Custodial
Account.”
(g) Section
4.05(ii) shall be modified by adding the words “or to remit to the Custodial
Account pursuant to Section 6.02” after “or Section 3.04” in the fourth to last
line of such paragraph.
(h) Section
4.06 is hereby modified by inserting the following as the last sentence
therein:
“The
Company shall reimburse the Escrow Account for any losses incurred as a result
of the investment of amounts on deposit in the Escrow Account.”
(i) Article
IV is hereby modified by adding the following as a new Section
therein:
“4.24
MERS.
In
the
case of each MERS Mortgage Loan, the Company shall, as soon as practicable
after
the Purchaser’s request (but in no event more than 30 days thereafter with
respect to each Mortgage Loan that was a MERS Mortgage Loan as of the applicable
Closing Date, or 90 days thereafter with respect to each Mortgage Loan that
was
a MERS Eligible Mortgage Loan as of the applicable Closing Date and subsequent
to the applicable Closing Date becomes a MERS Mortgage Loan), the Company
shall
take such actions as are necessary to cause the Purchaser to be clearly
identified as the owner of each MERS Mortgage Loan on the records of MERS
for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS. Each of the Purchaser and the Company shall
maintain in good standing its membership in MERS. In addition, each of the
Purchaser and the Company shall comply with all rules, policies and procedures
of MERS, including the rules of membership, as amended, and the MERS procedures
manual, as amended. With respect to all MERS Mortgage Loans serviced hereunder,
the Company shall promptly notify MERS as to any transfer of beneficial
ownership or release of any security interest in such Mortgage Loans. The
Company shall cooperate with the Purchaser and any successor owner or successor
servicer to the extent necessary to ensure that any transfer of ownership
or
servicing is appropriately reflected on the MERS system.”
7
(j) Section
8.01 is hereby amended by adding the words “the negligence, bad faith or willful
misconduct of the Company” to the fourth to last line of the first paragraph
after the words “pursuant to Section 3.03,”.
11.
Continuing
Effect.
Except
as
contemplated hereby, the Sale and Servicing Agreement shall remain in full
force
and effect in accordance with its terms.
12.
Governing
Law.
THIS
ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
13.
Notices.
Any
notices or other communications permitted or required hereunder or under
the
Sale and Servicing Agreement shall be in writing and shall be deemed
conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by
telex, telegraph or telecopier and confirmed by a similar mailed writing,
to:
(i) in the case of the Seller, SunTrust
Mortgage, Inc., 000 Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxx X. Xxxxxxx, Telephone: (000) 000-0000, Telecopy: (000)
000-0000,
or such
address as may hereafter be furnished by the Seller; (ii) in the case of
the
Assignor, Bank of America, National Association, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxx,
Telephone: (000) 000-0000, Email: xxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx, or such
other
address as may hereafter be furnished by the Assignor and (iii) in the case
of
the Assignee, Xxxxxxx Sachs Mortgage Company, 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxxxxx, Telephone: (000) 000-0000, Telecopy:
(000) 000-0000, or such other address as may hereafter be furnished by the
Assignee.
8
14.
Wire
Instructions.
The
Assignee’s wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Sale and Servicing Agreement
is:
Bank:
Citibank, N.A.
ABA
Routing Number: 000000000
For
Credit to: Xxxxxxx Sachs Mortgage Company
Account
No.: 00000000
Attn:
Xxxxxx Xxxxxxxxx
15.
Counterparts.
This
Assignment Agreement may be executed in counterparts, each of which when
so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same instrument.
16. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement has the
same
meaning as in the Sale and Servicing Agreement.
17.
Further
Agreements.
Each
party hereto agrees to execute and deliver to the others such reasonable
and
appropriate additional documents, instruments or agreements as may be necessary
or appropriate to effectuate the purpose of this Assignment
Agreement.
[Signatures
on the Following Page]
9
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
ASSIGNOR:
BANK
OF
AMERICA, NATIONAL ASSOCIATION
By:
Name:
Title:
ASSIGNEE:
XXXXXXX
SACHS MORTGAGE COMPANY
By:
Xxxxxxx
Xxxxx Real Estate
Funding
Corp., its General Partner
By:
Name:
Title:
SELLER
and SERVICER:
SUNTRUST
MORTGAGE, INC.
By:
Name:
Title:
EXHIBIT
1
Mortgage
Loan Schedule
[Attached
hereto]
Exhibit
1-1
EXHIBIT
2
Execution
Copy of the Sale and Servicing Agreement
[Attached
hereto]
Exhibit
2-1
