EX-10.2(C) 13 file13.htm ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
EX-10.2(C)
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file13.htm
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
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EXECUTION COPY
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Agreement"), dated
September 28, 2006, is among Bank of America, National Association, a national
banking association ("Assignor"), Banc of America Funding Corporation, a
Delaware corporation ("BAFC"), U.S. Bank National Association, a national
banking association, as trustee of the Banc of America Funding 2006-6 Trust
("Assignee"), Xxxxx Fargo Bank, N.A., a national banking association ("Xxxxx
Fargo Bank"), and acknowledged by CitiMortgage, Inc., a New York corporation
("CitiMortgage"), as master servicer of the Banc of America Funding 2006-6
Trust.
WHEREAS, pursuant to (i) that certain Second Amended and Restated Master
Seller's Warranties and Servicing Agreement, dated as of May 1, 2006 (the
""Servicing Agreement"), by and between Assignor, as purchaser, and Xxxxx Fargo
Bank, as seller and servicer, (ii) that certain Second Amended and Restated
Master Mortgage Loan Purchase Agreement, dated as of May 1, 2006 (the "Purchase
Agreement"), by and between Assignor, as purchaser, and Xxxxx Fargo Bank, as
seller, and (iii) that certain Assignment and Conveyance Agreement, dated as of
May 24, 2006 (the "Assignment and Conveyance Agreement" and with the Servicing
Agreement and the Purchase Agreement, the "Purchase and Servicing Agreements"),
each of which is attached in Appendix I hereto, the Assignor purchased the
Mortgage Loans (as defined herein) from Xxxxx Fargo Bank and Xxxxx Fargo Bank
currently services the Mortgage Loans;
WHEREAS, on the date hereof, the Assignor is transferring all of its
right, title and interest in and to the Mortgage Loans to BAFC;
WHEREAS, on the date hereof, BAFC is transferring all of its right, title
and interest in and to the Mortgage Loans to the Assignee; and
WHEREAS, on the date hereof, CitiMortgage, Inc., as master servicer (in
such capacity, the "Master Servicer") is entering into a Pooling and Servicing
Agreement, dated the date hereof (the "Pooling Agreement"), among BAFC, the
Master Servicer, Xxxxx Fargo Bank, N.A., as the securities administrator (the
"Securities Administrator") and the Assignee, pursuant to which the Master
Servicer shall supervise, monitor and oversee the servicing 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 BAFC, and BAFC
hereby grants, transfers and assigns to Assignee, all of the right, title and
interest of the Assignor in, to and under the Purchase and Servicing Agreements,
and the mortgage loans delivered under such agreement by Xxxxx Fargo Bank to the
Assignor and listed on Exhibit A attached hereto (the "Mortgage Loans").
The Assignor specifically reserves and does not assign to BAFC or the
Assignee any right, title and interest in, to or under any mortgage loan subject
to the Purchase and Servicing Agreements other than the Mortgage Loans.
2. The Assignor warrants and represents to, and covenants with, BAFC
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 Xxxxx Fargo Bank
with respect to the Purchase and Servicing Agreements 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 and Servicing
Agreements or the Mortgage Loans, including without limitation the transfer of
the servicing obligations under the Purchase and Servicing Agreements. 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 and Servicing Agreements 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 (the "33 Act") or which would render the disposition of the Mortgage
Loans a violation of Section 5 of the 33 Act or require registration pursuant
thereto.
3. From and after the date hereof, Xxxxx Fargo Bank shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, and
Xxxxx Fargo Bank shall recognize the Assignee as the owner of the Mortgage
Loans. Notwithstanding anything to the contrary contained in Section 9.01 of the
Servicing Agreement, Xxxxx Fargo Bank shall service the Mortgage Loans pursuant
to the Servicing Agreement as modified by Section 6 of this Agreement, for the
benefit of the Assignee.
4. Xxxxx Fargo Bank hereby represents and warrants to each of the other
parties hereto (i) that the representations and warranties of Xxxxx Fargo Bank
in Section 3.01 of the Servicing Agreement are true and correct in all material
respects as of the date hereof with the same force and effect as though
expressly made at and/or as of the date hereof, (ii) that it has serviced the
Mortgage Loans in accordance with the terms of the
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Servicing Agreement, and (iii) 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.
5. In accordance with Sections 2.03 and 9.01 of the Servicing
Agreement, the Assignor hereby instructs Xxxxx Fargo Bank, and Xxxxx Fargo Bank
hereby agrees, to release from its custody and deliver the Custodial Mortgage
File (as defined in the Servicing Agreement) for each Mortgage Loan to the
Assignee, or a custodian on its behalf under the Pooling Agreement, at the
address set forth in Section 7 herein on or before the closing date of the
related Securitization Transaction (as defined in the Servicing Agreement).
6. Xxxxx Fargo Bank, BAFC and the Assignee hereby agree to the
following modifications to the Servicing Agreement:
a. Section 4.27. Section 4.27 is hereby modified by deleting such
section in its entirety.
b. Section 5.02. Section 5.02 is hereby modified to read as follows:
"Not later than the fifth (5th) Business Day of each month, the
Company shall furnish to the Master Servicer, with respect to the
preceding month, a monthly collection report, a monthly paid in full
report that summarizes Mortgage Loans paid in full during the
related Due Period and a monthly trial balance as of the last day of
the month preceding such Remittance Date in a mutually agreeable
electronic format."
c. Section 6.04. Section 6.04 is hereby modified by deleting the
references to "the Purchaser and any Depositor, or if Xxxxx Fargo
Bank, N.A. is the Master Servicer," and "the Purchaser and such
Depositor or if Xxxxx Fargo Bank, N.A. is the Master Servicer" and
replacing such references with "the Master Servicer."
d. Section 6.05. Section 6.05 is hereby modified by deleting such
section in its entirety and inserting "[Reserved]".
e. Section 6.06. Section 6.06 is hereby modified by deleting the
references to "the Purchaser and any Depositor, or if Xxxxx Fargo
Bank, N.A. is the Master Servicer," and "the Purchaser and such
Depositor or if Xxxxx Fargo Bank, N.A. is the Master Servicer" and
replacing such references with "the Master Servicer."
f. Section 10.01. Section 10.01(ii) is hereby modified by inserting the
following after the word "thirty (30)":
"(or, in the case of any failure by the Company to perform its
obligations under Section 6.04 or Section 6.06, ten (10))"
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g. For purposes of clarification, the Servicing Fee Rate is equal to
0.250% per annum.
7. The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and the Purchase and Servicing
Agreements is:
U.S. Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Structured Finance Trust Services, BAFC 2006-6
BAFC's address for purposes of all notices and correspondence related to
the Mortgage Loans is:
Banc of America Funding Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel and Chief Financial Officer
The Master Servicer's address for purposes of all notices and
correspondence related to the Mortgage Loans is:
CitiMortgage, Inc.
0000 Xxxxxx Xxxx, 0xx xxxxx
Xxxxxx, Xxxxx 00000
Attention: Master Servicing Division
8. Xxxxx Fargo Bank shall remit all funds pursuant to the following
wire instructions:
Bank Name: CitiBank (West)
Bank City/State: Glendale, CA
ABA Number: 000000000
Account Name: CMI MSD Clearing
Account Number: #070-0000000
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9. Xxxxx Fargo Bank hereby acknowledges that CitiMortgage, Inc. has
been appointed as the Master Servicer of the Mortgage Loans pursuant to the
Pooling Agreement, and therefore has the right to enforce all obligations of
Xxxxx Fargo Bank, as they relate to the Mortgage Loans, under the Purchase and
Servicing Agreements. Such right will include, without limitation, the right to
exercise any and all rights of the Assignor (but not the obligations) under the
Purchase and Servicing Agreements to monitor and enforce the obligations of
Xxxxx Fargo Bank thereunder, the right to terminate Xxxxx Fargo Bank under the
Agreement upon the occurrence of an event of default thereunder, the right to
receive all remittances required to be made by Xxxxx Fargo Bank under the
Purchase and Servicing Agreements, the right to receive all monthly reports and
other data required to be delivered by Xxxxx Fargo Bank under the Purchase and
Servicing Agreements, the right to examine the books and records of Xxxxx Fargo
Bank, indemnification rights, and the right to exercise certain rights of
consent and approval relating to actions taken by Xxxxx Fargo Bank.
[Signatures Follow]
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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,
as Assignor
By: /s/ Xxxxx X. Good
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Name: Xxxxx X. Good
Title: Principal
U.S. Bank National Association,
as Assignee
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
Banc of America Funding Corporation
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President
Xxxxx Fargo Bank, N.A., as servicer
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
Acknowledged and Agreed as
of the date first written above:
CitiMortgage, Inc., as Master Servicer
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Senior Vice President
[Assignment, Assumption and Recognition Agreement for BAFC 2006-6]
EXHIBIT A
Schedule of Mortgage Loans
[Please see Exhibit D to Exhibit 4.1 of this Form 0-X]
X-0
XXXXXXXX I
Purchase and Servicing Agreements
[Please see Exhibits 10.2(A) and (B) of this Form 8-K]
