Exhibit 10.2(C)
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EXECUTION COPY
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Agreement"), dated
May 31, 2007, 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, not in its individual capacity, but solely as trustee of the Banc
of America Funding 2007-D Trust ("Assignee"), Xxxxx Fargo Bank, N.A., a national
banking association ("Xxxxx Fargo Bank"), as servicer, and acknowledged by Xxxxx
Fargo Bank, N.A. as master servicer of the Banc of America Funding 2007-D 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
"MSWSA"), 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 "MMLPA"), by and between
Assignor, as purchaser, and Xxxxx Fargo Bank, as seller, (iii) that certain
Assignment and Conveyance Agreement (2006-W37), dated May 25, 2006, by and
between Assignor and Xxxxx Fargo Bank, (iv) that certain Assignment and
Conveyance Agreement (2006-W46), dated June 28, 2006, by and between Assignor
and Xxxxx Fargo Bank, (v) those certain Assignment and Conveyance Agreements
(2007-W06 and 2007-W07), each dated March 22, 2007, by and between Assignor and
Xxxxx Fargo Bank, (vi) that certain Assignment and Conveyance Agreement
(2007-W20), dated May 18, 2007 (collectively, the "Assignment and Conveyance
Agreements"), and (viii) that certain Assignment, Assumption and Recognition
Agreement, dated March 20, 2007, among North Fork Bank, as successor in interest
to GreenPoint Mortgage Funding, Inc., the Assignor and Xxxxx Fargo Bank (the
"North Fork Assignment Agreement" and, together with the MSWSA, the MMLPA and
the Assignment and Conveyance Agreements, the "Purchase and Servicing
Agreements"), by and between Assignor and Xxxxx Fargo Bank, 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, Xxxxx Fargo Bank, N.A., as master servicer (in
such capacity, the "Master Servicer") and as securities administrator (in such
capacity, the "Securities Administrator"), is entering into a Pooling and
Servicing Agreement, dated the date hereof (the "Pooling Agreement"), among
BAFC, the Master Servicer, 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.
Notwithstanding any provision in this Agreement to the contrary, it is
understood that Xxxxx Fargo Bank is not released from liability to the Assignor
for any breaches of any representations, warranties or covenants made by Xxxxx
Fargo Bank in the Purchase and Servicing Agreements prior to the date hereof
regardless of when such breaches are discovered or made known.
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
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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 MSWSA,
Xxxxx Fargo Bank shall service the Mortgage Loans pursuant to the MSWSA 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 MSWSA 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 applicable Purchase and Servicing Agreements,
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 MSWSA, 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 MSWSA) for each Mortgage Loan to the Assignee, or a custodian on its behalf
under the Pooling Agreement, at the address set forth in Section 8 herein on or
before the closing date of the related Securitization Transaction (as defined in
the MSWSA).
6. Xxxxx Fargo Bank, BAFC and the Assignee hereby agree to the following
modifications to the MSWSA:
a. Article I. Article I is hereby modified by replacing the definition of
"Servicing Fee Rate" with the following:
"With respect to each Mortgage Loan, 0.250% per annum."
b. Section 4.02. Section 4.02 is hereby modified by deleting the phrase
"of the Company's intention to do so" and replacing it with the phrase
"via the monthly reports as identified in Section 5.02, that
foreclosure proceedings have commenced."
c. Section 4.10. Section 4.10 is hereby modified by deleting the
following language from the fourth paragraph:
"and if the Mortgagor does not obtain such coverage, the Servicer
shall immediately force place the required coverage on the Mortgagor's
behalf."
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d. Section 4.13. Section 4.13 is hereby deleted in its entirety and
replaced with the following:
"The Company or its agent shall inspect the Mortgaged Property as
often as is reasonably deemed necessary by the Company in accordance
with Accepted Servicing Practices or as may be required by the primary
mortgage guaranty insurer, to assure itself that the value of the
Mortgaged Property is being preserved. The Company shall keep a record
of each such inspection and, upon request, shall provide the Purchaser
with an electronic report of each such inspection."
e. Section 5.02. Section 5.02 is hereby modified to read as follows:
"Not later than the tenth (10th) calendar day of each month, the
Company shall furnish to the Master Servicer a delinquency report in
the form set forth in Exhibit G-1, a monthly remittance advice in the
form set forth in Exhibit G-2, and a realized loss report in the form
set forth in Exhibit G-3, each in a mutually agreeable electronic
format, as to the remittance on such Remittance Date and as to the
period ending on the last day of the month preceding such Remittance
Date. The information required by Exhibit G-1 is limited to that which
is readily available to the Company and is mutually agreed to by the
Company and the Master Servicer."
The exhibits referenced in this Section 6(e) are attached to this
Agreement as Exhibit B hereto.
f. Section 6.05. Section 6.05 is hereby modified by deleting such section
in its entirety and inserting "[Reserved]."
g. Section 6.06. Section 6.06 is hereby modified by deleting the first
paragraph in its entirety and replacing it with the following:
"On or before March 1 of each calendar year, commencing in 2008, the
Company shall:"
h. 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))"
i. Section 12.06. Section 12.06, subclause (i), is hereby amended by
replacing the words "MAC X2401-042" with "MAC X2302-033" and by
replacing "515/213-7121" with "515/324-3118."
7. Xxxxx Fargo Bank 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 take all actions as are necessary to cause the Assignee (MERS
ID #1001065), as trustee of the Trust pursuant to the Pooling Agreement, to be
shown as the owner of such Mortgage Loan on the records of MERS for purposes of
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the system of recording transfers of beneficial ownership of mortgages
maintained by MERS.
8. 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 2007-D
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:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - BAFC 2007-D
9. Xxxxx Fargo Bank shall remit all funds pursuant to the following wire
instructions:
XXXXX FARGO BANK, N.A.
ABA# 000000000
FOR CREDIT TO: SAS CLEARING, ACCT: 0000000000
FFC TO: BAFC 2007-D #53150700.
10. Xxxxx Fargo Bank hereby acknowledges that a REMIC election will be made
with respect to the Mortgage Loans and that Xxxxx Fargo Bank, N.A. 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 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
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books and records of Xxxxx Fargo Bank, as servicer, indemnification rights, and
the right to exercise certain rights of consent and approval relating to actions
taken by Xxxxx Fargo Bank, as servicer.
11. 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 and Servicing 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 Purchase and Servicing Agreements), 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 and Servicing Agreement.
[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 X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
Acknowledged and Agreed as
of the date first written above:
Xxxxx Fargo Bank, N.A., as Master Servicer
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
