EXHIBIT 10.2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Assignment, Assumption and Recognition Agreement, dated November 5, 2007,
among Bank of America, National Association, a national banking association (the
"Assignor"), Asset Backed Funding Corporation, a Delaware corporation ("ABFC"),
U.S. Bank National Association, a national banking association, as trustee of
the ABFC 2007-WMC1 Trust (the "Assignee") and WMC Mortgage Corp., a California
corporation ("WMC");
WHEREAS, pursuant to the Mortgage Loan Purchase Agreement (the "Purchase
Agreement"), dated as of June 1, 2007, by and between Bank of America, National
Association, as purchaser (the "Purchaser"), and WMC Mortgage Corp., as seller
(the "Seller"), the Purchaser purchased the mortgage loans listed on Exhibit A
hereto (the "Mortgage Loans") from the Seller;
WHEREAS, on the date hereof, the Assignor is transferring all of its
right, title and interest in and to the Mortgage Loans under the Purchase
Agreement to ABFC;
WHEREAS, on the date hereof, ABFC is transferring all of its right, title
and interest in and to the Mortgage Loans under the Purchase Agreement to the
Assignee; and
WHEREAS, on the date hereof, U.S. Bank National Association, as trustee,
is entering into a Pooling and Servicing Agreement, dated as of October 1, 2007
(the "Pooling Agreement"), among ABFC, the Trustee, Xxxxx Fargo Bank, N.A., and
the Assignee, pursuant to which the Assignee will act as the trustee of the
Mortgage Loans.
For and in consideration of the sum of one dollar ($1.00) and other
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to ABFC all of the
Assignor's right, title and interest (but none of its obligations) in, to and
under the Purchase Agreement and the Mortgage Loans delivered under such
agreement; provided, however, the Assignor retained its remedies under the
Purchase Agreement with respect to the Mortgage Loans solely to the extent WMC
fails to perform its obligations thereunder and the Assignor is contractually
obligated to perform such obligations, and ABFC hereby grants, transfers and
assigns to the Assignee, all of the Assignor's right, title and interest (but
none of its obligations) in, to and under the Purchase Agreement and the
Mortgage Loans delivered under such agreement.
2. The Assignor warrants and represents to, and covenants with, ABFC and
the Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with the full
right to transfer the Mortgage Loans free from any and all claims
and encumbrances whatsoever;
b. 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 Purchase Agreement or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver under, or agreed
to any amendment or other modification of, the Purchase Agreement or
the Mortgage Loans. 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, the
Purchase Agreement or the Mortgage Loans; and
d. 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.
3. From and after the date hereof, WMC shall (i) note the transfer of the
Mortgage Loans to the Assignee in its books and records, and (ii) recognize the
Assignee as the owner of the Mortgage Loans.
4. WMC acknowledges that the Assignee shall be authorized to enforce the
terms and conditions of the Purchase Agreement. The Assignee shall be authorized
to enforce directly against WMC any of the obligations of WMC provided for in
the Purchase Agreement.
5. WMC hereby represents and warrants to each of the other parties hereto
(i) that it has taken no action nor 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 and (ii) that any written information with
respect to the Mortgage Loans provided by WMC on or before the date hereof to
the Assignor was true and correct in all material respects as of the dates
provided.
6. WMC hereby agrees that, in connection with each Mortgage Loan of which
the related Mortgage has been recorded in the name of MERS or its designee, it
shall cooperate, to the extent reasonably requested by the Servicer of the
Mortgage Loans and to the extent reasonably necessary to cause the Assignee, as
trustee of the Trust to be shown as the owner of such Mortgage Loan on the
records of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
7. It is expressly understood and agreed by the parties hereto that (i)
this Agreement is executed and delivered by U.S. Bank National Association not
individually or personally but solely as trustee on behalf of the Trust, in the
exercise of the powers and authority conferred and vested in it under the terms
of the Pooling Agreement, and (ii) under no circumstances shall U.S. Bank
National Association be personally liable for the payment of any indebtedness or
expenses of the Trust (including, without limitation, any fees, expenses or
indemnities payable under the Pooling Agreement), or be liable for the breach or
failure of any obligation, representation, warranty or covenant of the Trust
under this Agreement or any other related documents, as to all of which recourse
shall be had solely to the assets of the Trust in accordance with the terms of
the Pooling Agreement.
8. The Assignee's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Purchase Agreement is:
U.S. Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx
Mailcode: MK-IL-RY3B Xxxxxxx,
Xxxxxxxx 00000-0000
Attention: ABFC Series 2007-WMC1
The Assignor's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Purchase Agreement is:
Bank of America, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Managing Director
ABFC's address for purposes of all notices and correspondence related to
the Mortgage Loans is:
Asset Backed Funding Corporation.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
WMC's address for purposes of all notices and correspondence related to
the Mortgage Loans is:
WMC Mortgage Corp.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
with a copy to:
WMC Mortgage Corp.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption
and Recognition Agreement to be executed by their duly authorized officers as of
the date first above written.
Bank of America, National Association,
Assignor
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Principal
Asset Backed Funding Corporation
By: /s/ Xxxxxxx Xxxxx-Xxxxxx
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Name: Xxxxxxx Xxxxx-Xxxxxx
Title: Vice President
WMC Mortgage Corp.
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: EVP - Capital Markets
Acknowledged this 5th day of November, 2007
U.S. Bank National Association,
not in its individual capacity, but solely as Trustee
By: Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
EXHIBIT A
Schedule of Mortgage Loans
[Intentionally Omitted]
