ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Execution
Version
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment
Agreement”)
made
this 26th day of February 2007 (the “Closing
Date”),
among
Xxxxx Fargo Bank, N.A. (the “Servicer”),
Bank
of America, National Association (the “Assignor”)
and
Xxxxxxx Sachs Mortgage Company (the “Assignee”).
WHEREAS,
the Assignor and the Servicer have entered into an Amended and Restated Master
Mortgage Loan Purchase Agreement, dated as of December 1, 2005 (the
“2005 Purchase
Agreement”),
an
Amended and Restated Master Seller’s Warranties and Servicing Agreement, dated
as of December 1, 2005 (the “2005 Servicing
Agreement”),
and
an Assignment and Conveyance Agreement, dated December 15, 2005 (WFHM 2005-W97)
(the “2005 ACA”),
each
between the Assignor and the Servicer pursuant to which the Servicer sold
to the
Assignor certain mortgage loans;
WHEREAS,
the Assignor and the Servicer have entered into a Second Amended and Restated
Master Mortgage Loan Purchase Agreement, dated as of May 1, 2006, (together
with the 2005 Purchase Agreement, the
“Purchase
Agreements”)
and an
Assignment and Conveyance Agreement, dated May 24, 2006 (WFHM 2006-W33)
(together with the 2005 ACA,
the
“Assignment
and Conveyance Agreements”),
between the Assignor and the Servicer pursuant to which the Servicer sold
to the
Assignor certain mortgage loans;
WHEREAS,
the mortgage loans purchased by the Assignor pursuant to the Purchase Agreements
are being serviced by the Servicer on behalf of the Assignor pursuant to
the
terms of a Second Amended and Restated Master Seller’s Warranties and Servicing
Agreement, dated as of May 1, 2006, (the “2006 Servicing
Agreement”
and,
collectively with the Purchase Agreements, the 2005 Servicing Agreement and
the
Assignment and Conveyance Agreements, the “Agreements”);
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 Agreements and are listed
on
the mortgage loan schedule attached as Exhibit 1
hereto
(the “Mortgage
Loan Schedule”);
and
WHEREAS,
the Assignee and the Servicer have agreed that on and after the Closing Date,
the Mortgage Loans shall be serviced and administered by the Servicer for
the
benefit of the Assignee pursuant to the Second Amended and Restated Master
Seller’s Warranties and Servicing Agreement, dated as of November 1, 2005
(the “Goldman
SWSA”),
by
and between the Assignee and the Servicer;
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 and the Agreements, 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 Agreements (as amended
hereby), to the extent relating to the Mortgage Loans, and only the Mortgage
Loans, from and after the date hereof, and the Servicer hereby acknowledges
such
assignment and assumption and hereby agrees to the release of the Assignor
from
any obligations under the Agreements 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 Servicer further agree that any reference
in the
Agreements to “Bank of America, N.A.” is deleted in its entirety and replaced
with “Xxxxxxx Sachs Mortgage Company;” provided, however, that it is agreed upon
and understood that the Assignee shall not be deemed to make the representations
and warranties in Section 7 of either Purchase Agreement.
(b) Simultaneously
with the execution of this Assignment Agreement, on February 26, 2007, the
Assignee shall pay to the Assignor the purchase price as calculated pursuant
to
the trade confirmation dated as of January 3, 2007 (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 February
1,
2007 (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
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Agreements 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 Agreements.
The
Servicer and the Assignor each represent and warrant to the Assignee that
(i) attached hereto as Exhibit 2
are
true, accurate and complete copies of the Agreements , (ii) the Agreements,
are
in full force and effect as of the date hereof, (iii) the Agreements have
not
been amended or modified in any respect and (iv) no notice of termination
has
been given to such party under the 2006 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 Goldman SWSA (as amended hereby),
the
terms (other than those contained in Article III thereof) of which are
incorporated herein by reference.
2
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 Servicer
other than those contained in the Agreements 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 Agreements.
(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:
(a) The
representations and warranties contained in Section 3.01 of the 2006
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
2006 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
Agreements 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.
3
(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.
(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 Agreements free from any and all claims and encumbrances
whatsoever.
4
(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 respective dates that the related
Mortgage Loans were purchased from the Servicer.
(j) The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Servicer with respect to
the
Agreements.
(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
Agreements or the Mortgage Loans, including without limitation the transfer
of
the servicing obligations under the 2006 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 Agreements 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.
(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) With
respect to the Mortgage Loans purchased pursuant to the 2005 ACA, the
representations and warranties contained in Section 3.02 of the 2005
Servicing Agreement and with respect to the Mortgage Loans purchased pursuant
to
the other Assignment and Conveyance Agreements, the representations and
warranties contained in Section 3.02 of the 2006 Servicing Agreement, to
the extent they relate to matters arising on or after the respective date
that
the Mortgage Loans were purchased from the Servicer, are true and correct
as of
the date of this Assignment Agreement. For purposes of making the
representations and warranties contemplated in the foregoing sentence, each
reference in Section 3.02 of each of the Servicing Agreements (i) to the
“Cut-off Date” shall be deemed to be a reference to the Assigned Loans Cut-off
Date, (ii) to the “Mortgage Loan Schedule” shall be deemed to be a reference to
Exhibit 1
hereto
and (iii) to the “Closing Date” shall be deemed to be a reference to the date of
this Assignment Agreement.
5
(o) No
Additional Payments.
There
is no obligation on the part of the Servicer or any other party to make payments
in addition to those made by the Mortgagor;
(p) No
“Pledged Asset” Loans.
No
Mortgage Loan is a “pledged asset” mortgage loan;
(q) Qualified
Mortgage.
Each
Mortgage Loan is a “qualified mortgage” within Section 860G(a)(3) of the
Code; and
(r) No
Mobile Homes or Manufactured Dwellings.
No
Mortgage Loan is secured by a residence or dwelling that is a manufactured
dwelling.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 6 shall survive delivery of the respective Custodial 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, or the
Assignee has a reasonable, good faith belief that it will incur 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 related
Servicing Agreement.
In
the
event the Servicer has breached a representation or warranty hereunder or
under
the Servicing Agreements, as amended hereby, that is substantially identical
to
a representation or warranty breached by the Assignor hereunder, the Assignee
shall first proceed against the Servicer. If the Servicer does not within
ninety
(90) 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 related 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 Servicer
to cure such breach or repurchase such Mortgage Loan under the terms of the
related Servicing Agreement with respect to such Mortgage Loan.
6
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. Modification
of the Goldman SWSA.
Solely
with respect to the Mortgage Loans, the Assignor and the Servicer hereby
modify
the Goldman SWSA as follows:
(a) Article I,
Definitions, is hereby modified by deleting in its entirety the definition
of
“Closing Date” and by replacing it with “February 26, 2007.”
(b) Article I,
Definitions, is hereby modified by deleting in its entirety the definition
of
“Cut-off Date” and by replacing it with “February 1, 2007.”
(c) Article I,
Definitions, 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 January 3, 2007, 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
first
paragraph of Section 4.2, Liquidation of Mortgage Loans, is hereby amended
by
deleting the phrase “the Company shall notify the Purchaser in writing of the
Company’s intention to do so, and the Company shall not commence foreclosure
proceedings if the Purchaser objects to such action within three (3) Business
Days of receiving such notice” and replacing it with the phrase “and shall
provide such information regarding the Mortgage Loan as the Purchaser reasonably
may request, provided that the Company shall cease or not commence foreclosure
proceedings if the Purchaser objects to such action.”
(e) The
second paragraph of Section 4.4, Establishment of and Deposits to Custodial
Account, is hereby amended by deleting the phrase “within one Business Day (or
two Business Days in the case of the amounts described in clauses (3) through
(5) below) of the Company’s receipt,” and replacing it with the phrase “within
two (2) Business Days of the Company’s receipt.”
(f) The
second paragraph of Section 6.2, Satisfaction of Mortgages and Release of
Custodial Mortgages Files, is hereby deleted in its entirety and replaced
with
the following:
“If
the
Company satisfies or releases the lien of Mortgage without first having obtained
payment in full of the indebtedness secured by the Mortgage (other than as
a
result of a modification of the Mortgage pursuant to the terms of this Agreement
or a liquidation of the Mortgaged Property pursuant to the terms of this
Agreement) or should the Company otherwise prejudice any rights the Purchaser
may have under the mortgage instruments, upon written demand of the Purchaser,
the Company shall repurchase the related Mortgage Loan at the Repurchase
Price
by deposit thereof in the Custodial Account within two (2) Business Days
of
receipt of such demand by the Purchaser. The Company shall maintain the Fidelity
Bond and Errors and Omissions Insurance Policy as provided for in Section
4.12
insuring the Company against any loss it may sustain with respect to any
Mortgage Loan not satisfied in accordance with the procedures set forth
herein.”
7
(g) Section
6.4(i), Annual Statement as to Compliance, is hereby deleted in its entirety;
and
(h) Section
6.5, Annual Independent Public Accountants’ Servicing Report, is hereby deleted
in its entirety.
9. Continuing
Effect.
Except
as
contemplated hereby, the Agreements shall remain in full force and effect
in
accordance with their respective terms. The Goldman SWSA as it relates to
mortgage loans not assigned by this Assignment Agreement is not amended or
modified hereby and the Assignee and the Servicer hereby agree that the Goldman
SWSA as it relates to any such mortgage loans shall remain in full force
and
effect in accordance with its unamended terms.
10. 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.
11. Waiver
of Trial by Jury.
THE
COMPANY, THE ASSIGNOR AND THE ASSIGNEE EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY
RIGHT
IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO
THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12. Notices.
Any
notices or other communications permitted or required hereunder or under
the
Agreements 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 Servicer,
Xxxxx Fargo Bank, N.A.,
1
Home
Campus, MAC #X2302-033, Xxx Xxxxxx, Xxxx 00000-0000, Attention: Xxxx Xxxxx,
Telephone: (000) 000-0000, Telecopy: (000) 000-0000,
with a
copy to: Xxxxx
Fargo Bank, N.A., 1 Home Campus, MAC #X2401-06T, Xxx Xxxxxx, Xxxx 00000-0000,
Attention: General Counsel, Telephone: (000) 000-0000, Telecopy: (000) 000-0000,
or such address as may hereafter be furnished by the Servicer; (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
13. Wire
Instructions.
The
Assignee’s wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Agreements is:
Bank:
Citibank, N.A.
ABA
Routing Number: 000000000
For
Credit to: Xxxxxxx Sachs Mortgage Company
Account
No.: 00000000
Attn:
Xxxxxx Xxxxxxxxx
14. 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.
15. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement has the
same
meaning as in the 2006 Servicing Agreement.
16. 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:
SERVICER:
XXXXX
FARGO BANK, N.A.
By:
Name:
Title:
EXHIBIT 1
Mortgage
Loan Schedule
[Attached
hereto]
Exh.
1
EXHIBIT 2
Execution
Copies of the Agreements
[Attached
hereto]
Exh.
2
