Exhibit 10.2(B)
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DRAFT
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Assignment, Assumption and Recognition Agreement (the "Agreement"), dated
July 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 2007-6 Trust ("Assignee"), Xxxxx Fargo Bank, N.A., a
national banking association ("Xxxxx Fargo Bank"), as servicer, and
CitiMortgage, Inc. ("CitiMortgage") as master servicer of the Banc of America
Funding 2007-6 Trust.
WHEREAS, pursuant to that certain Flow Servicing Rights Purchase and Sale
Agreement, dated as of July 1, 2006 (the "Purchase Agreement"), by and between
the Assignor and Xxxxx Fargo Bank, the Assignor has sold, and Xxxxx Fargo Bank
has purchased, the servicing rights related to the mortgage loans listed on
Exhibit A hereto (the "Mortgage Loans");
WHEREAS, Xxxxx Fargo Bank has agreed to service the Mortgage Loans listed
on Exhibit A hereto in accordance with that certain Servicing Agreement, dated
as of July 1, 2006 (the "Servicing Agreement"), by and between the Assignor and
Xxxxx Fargo Bank (attached hereto in Appendix I);
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, as a master servicer (in such
capacity, the "Master Servicer") and Citibank, N.A., a national banking
association, as securities administrator (in such capacity, the "Securities
Administrator"), are 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 Servicing Agreement (other than
the rights of the Assignor to indemnification thereunder).
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 Servicing Agreement 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 Agreement, the Servicing 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, the Servicing
Agreement or the Mortgage Loans, including without limitation the transfer of
the servicing obligations under the 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, the
Purchase Agreement, the Servicing 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
(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 7 of this Agreement, for the
benefit of the Assignee. Xxxxx Fargo Bank acknowledges that a REMIC election
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will be made with respect to the Mortgage Loans and that the Master Servicer,
pursuant to the Pooling Agreement, will administer on behalf of the Assignee the
terms and conditions of the Servicing Agreement.
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 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 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 8
herein on or before the date hereof.
6. 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
the system of recording transfers of beneficial ownership of mortgages
maintained by MERS.
7. Xxxxx Fargo Bank, BAFC and the Assignee hereby agree to the following
modifications to the Servicing Agreement:
a. Article I. Article I is hereby modified by deleting the definition of
"Principal Prepayment Period" and replacing it with the following:
"The calendar month preceding the month in which the related
Remittance Date occurs."
b. Section 4.03. Section 4.03 is hereby modified to read as follows:
"Continuously from the respective Cut-off Date until the principal and
interest on all Mortgage Loans are paid in full or the Mortgage Loans
have been fully liquidated (with respect to Mortgage Loans that remain
subject to this Agreement pursuant to Section 9.01 herein), in
accordance with this Agreement and Accepted Servicing Practices, the
Servicer shall proceed diligently to collect all payments due under
each of the Mortgage Loans when the same shall become due and payable
and shall take special care in ascertaining and estimating Escrow
Payments and all other charges that will become due and payable with
respect to the Mortgage Loan and the Mortgaged Property, to the end
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that the installments payable by the Mortgagors will be sufficient to
pay such charges as and when they become due and payable."
c. Section 4.10. Section 4.10 is hereby modified by inserting in the
third paragraph after "shall" the words, "use reasonable efforts to"
and by deleting the following language: "in accordance with then
current Xxxxxx Mae requirements, and secure from the owner's
association its agreement to notify the Servicer promptly of any
change in the insurance coverage or of any condemnation or casualty
loss that may have a material effect on the value of the Mortgaged
Property as security."
d. Section 4.10. Section 4.10 is hereby further 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."
e. 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."
f. Section 4.23. Section 4.23 is hereby modified by adding to the
beginning of the paragraph, the following language:
"The extent that the Servicer has serviced the Mortgage Loans for a
period of sixty (60) days,"
g. Section 4.25. Section 4.25 is hereby deleted in its entirety.
h. Section 5.01. Section 5.01 is hereby modified by deleting "the second
Business Day following" from the first sentence of the second
paragraph.
i. Section 5.02. Section 5.02 is hereby modified to read as follows:
"Not later than the [_] of each month, the Servicer shall furnish to
the Master Servicer a monthly remittance advice, with a trial balance
report attached thereto, as to the remittance period ending on the
last day of the preceding month containing the information set forth
on Exhibit [_] hereto."
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The exhibit referenced in this Section 7(i) is attached to this
Agreement as Exhibit B.
j. Section 6.02, Section 6.02 is hereby modified by amending the second
paragraph, after "secured by the Mortgage" in the second line, to add
the following language:
"(other than as a result of modification of the Mortgage Loan or
liquidation of the Mortgaged Property pursuant to the terms of this
Agreement)"
k. Section 6.04. Section 6.04 is hereby modified by deleting the
references to "the Owner or any Master Servicer and Depositor" and
replacing them with "the Master Servicer and the Master Servicer shall
deliver to the Depositor."
l. Section 6.06. Section 6.06 is hereby modified by:
(1) deleting the references to "the Owner, any Master Servicer and any
Depositor" and replacing them with "the Master Servicer and the Master
Servicer shall deliver to the Depositor"; and
(2) inserting the following at the end of the fifth full paragraph
therein:
"Neither the Owner nor any Depositor or Master Servicer will request
delivery of a certification under clause (d) above unless a Depositor
or Master Servicer is required under the Exchange Act to file an
annual report on Form 10-K with respect to an issuing entity whose
asset pool includes the Mortgage Loans."
m. Section 9.01. Section 9.01 is hereby modified by:
(1) modifying Section 9.01(g)(iii) to read as follows:
"In addition to such information as the Servicer, as servicer, is
obligated to provide pursuant to other provisions of this Agreement,
not later than ten (10) days prior to the deadline for the filing of
any distribution report on Form 10-D in respect of any Securitization
Transaction that includes any of the Mortgage Loans serviced by the
Servicer or any Subservicer, the Servicer or such Subservicer, as
applicable, shall, to the extent the Servicer or such Subservicer has
knowledge, provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the
occurrence of any of the following events along with all information,
data, and materials related thereto as may be required to be included
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in the related distribution report on Form 10-D (as specified in the
provisions of Regulation AB referenced below):
(A) any material modifications, extensions or waivers of pool
asset terms, fees, penalties or payments during the distribution
period or that have cumulatively become material over time (Item
1121(a)(11) of Regulation AB);
(B) material breaches of pool asset representations or warranties
or transaction covenants (Item 1121(a)(12) of Regulation AB); and
(C) information regarding new asset-backed securities issuances
backed by the same pool assets, any pool asset changes (such as,
additions, substitutions or repurchases), and any material changes in
origination, underwriting or other criteria for acquisition or
selection of pool assets (Item 1121(a)(14) of Regulation AB).
(iv) The Servicer shall provide to the Master Servicer and the Master
Servicer shall deliver to the Depositor, evidence of the authorization
of the person signing any certification or statement, copies or other
evidence of Fidelity Bond Insurance and Errors and Omission Insurance
policy, financial information and reports, and such other information
related to the Servicer or any Subservicer or the Servicer or such
Subservicer's performance hereunder."; and
(2) modifying Section 9.01(k) by deleting the word "Investor" and
replacing it with "party designated by the Owner"
n. Section 10.01. Section 10.01 is hereby modified by:
(1) replacing the word "sixty (60)" with "thirty (30)" in Section
10.01(b) and inserting the following thereafter:
"(or, in the case of any failure by the Servicer to perform its
obligations under Section 6.04 or Section 6.06, ten (10))"; and
(2) replacing the word "fifteen (15)" with "ten (10)" in Section
10.01(j).
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o. Exhibit D. Exhibit D is hereby deleted in its entirety.
8. The Assignee's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Purchase Agreement and Servicing Agreement
is:
U.S. Bank National Association
000 X. XxXxxxx Xxxxxx,
Xxxxx 000 Xxxxxxx, Xxxxxxxx 00000
Attention: Structured Finance Trust Services, BAFC 2007-6
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
Xxxxx Fargo Bank's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Purchase Agreement and Servicing Agreement
is:
Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention : Xxxx X. Xxxxx, MAC X2302-033
Facsimile: (000) 000-0000
9. All remittances by Xxxxx Fargo Bank shall be made to the account or
accounts designated by the Master Servicer to Xxxxx Fargo Bank in writing from
time to time. Wire remittances shall initially be sent 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
10. Xxxxx Fargo Bank hereby acknowledges that CitiMortgage. 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
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Bank, as they relate to the Mortgage Loans, under the Servicing Agreement. Such
right will include, without limitation, the right to exercise any and all rights
of the Assignor (but not the obligations) under the Servicing Agreement 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
Servicing Agreement, the right to receive all monthly reports and other data
required to be delivered by Xxxxx Fargo Bank under the Servicing Agreement, the
right to examine the 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. Xxxxx Fargo
Bank agrees to provide the Master Servicer with the data outlined in Exhibit B.
11. Notwithstanding any provision of the Servicing Agreement to the
contrary, and solely with respect to the Mortgage Loans, any Prepayment
Penalties collected by Xxxxx Fargo Bank shall be remitted to the Master
Servicer.
12. 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 Purchase Agreement or the Servicing 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.
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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
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Banc of America Funding Corporation
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
Xxxxx Fargo Bank, N.A., as servicer
By: /s/ Xxxxxx XxXxxxxx
-------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
CitiMortgage, Inc., as Master Servicer
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
[Assignment, Assumption and Recognition Agreement for BAFC 2007-6]
EXHIBIT A
Schedule of Mortgage Loans
[Please see the Free Writing Prospectus filed and accepted by the
Securities and Exchange Commission on July 30, 2007, with a filing date
of July 30, 2007 and accession number 0001379434-07-000132.]
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EXHIBIT B
SERVICER INSTRUCTIONS FOR SETUP & IMPLEMENTATION
Data Elements File
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Servicers post default data on the MSD (master servicing division) website by
the [_] business day of each month, using a text file format. The data consist
of dates, amounts and codes housed in the servicer's default tracking system.
Specific data elements that servicers should capture are:
DATA DESCRIPTION UPDATE CODE
--------------------------------------------------------------------------------
Forbearance - Date Forbearance Plan Accepted 002
Forbearance - Date Forbearance Agreement Expired 003
Forbearance - Next Payment Due Date 070
Forbearance - Plan Due Date (Contractual Due Date) 071
Bankruptcy - Filing Date 004
Bankruptcy - Chapter 005
Bankruptcy - Case Number 006
Bankruptcy - Post Petition Due Date 007
Bankruptcy - Motion for Relief - Filed Date 008
Bankruptcy - Motion for Relief - Stay Lifted Date 009
Bankruptcy - Discharge Date 010
Bankruptcy - Dismissal Date 011
Bankruptcy - Plan Confirmation Date 065
Bankruptcy - Attorney Referral Date 066
Bankruptcy - Proof of Claim Filing Date 067
Bankruptcy - Payment Plan Start Date 068
Bankruptcy - Payment Plan End Date 069
Preforeclosure Sale - Insurer Approval Received 012
Preforeclosure Sale - Closing / Sale Held 014
FNMA Delinquent Status Code 016
FNMA Delinquent Reason Code (Reason for Default) 017
Deed-in-Lieu - Deed Recorded Date 018
Foreclosure - Date Recommendation Sent to MSD 019
Foreclosure Type - If Judicial, Transmit J1 (leave blank if non-judicial) 021
Foreclosure - Attorney Referral Date 022
Foreclosure - First Legal Date 023
Foreclosure - Sale Scheduled Date 024
Foreclosure - Sale Held Date 025
Foreclosure - Date Sale Results Sent to MSD 026
Foreclosure - Post Sale Redemption Date 027
Property Vacant - Transmit Y for Yes, N for No 028
Eviction - Date Initiated 029
Eviction - Date Completed 030
REO - Sale Scheduled Date 031
REO - Sale Held Date 032
REO - Sale Amount 033
MI - Claim Filed Date (Conventional Loans) 034
MI - Claim Filed Amount (Conventional Loans) 035
MI - Claim Paid Date (Conventional Loans) 036
MI - Claim Paid Amount (Conventional Loans) 037
FHA - Partial Claim Filed Date 038
FHA - Partial Claim Filed Amount 039
FHA - Partial Claim Paid Date 040
FHA - Partial Claim Paid Amount 041
FHA - Final Claim Filed Date 042
FHA - Final Claim Filed Amount 043
FHA - Final Claim Paid Date 044
FHA - Final Claim Paid Amount 045
VA - Partial Claim Filed Date 046
VA - Partial Claim Filed Amount 047
VA - Partial Claim Paid Date 048
VA - Partial Claim Paid Amount 049
VA - Final Claim Filed Date 050
VA - Final Claim Filed Amount 051
VA - Final Claim Paid Date 052
VA - Final Claim Paid Amount 053
VA Refund - Date VA Approved / Accepted 054
Pool - Claim Filed Date 055
Pool - Claim Filed Amount 056
Pool - Claim Paid Date 057
Pool - Claim Paid Amount 058
Statement of Mortgage Accounts 059
Summary of Paid-In-Full Remittance Report 060
Consolidation of Remittance Reports 061
Private Pool Detail Report 062
Each data element is assigned an Update Code. This code is filtered through a
codes table in CitiMortgage's default system during file upload that directs the
data to the appropriate field on our system. Each data element per loan in the
servicer's electronic file must have an update code assigned to it in order to
upload into our system correctly.
Servicer File Setup
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The servicer's data extract is a comma-delimited rich text file (RTF). The file
is set up in rows of one data element per loan. Each row contains the following
4 data elements:
MSD Loan Number: CitiMortgage Master Servicing's loan number Servicer Loan
Number
Update Code: 3 digits, with preceding zeroes as indicated above
A-1
Data: the default date, amount or code corresponding to the loan number
Note: Dates must be submitted in a DD-MMM-YYYY format (2 numeric characters for
the day of the month, 3 alpha characters for the first 3 letters of the month,
and 4 numeric characters for the given year).
Here is a sample of how these rows of data should appear:
021046955,496265,004,12DEC2003
021046955,496265,005,13
021046955,496265,007,01JAN2004
420221154,784456,022,27DEC2003
In this example, the first 3 rows of data correspond to bankruptcy filing date,
bankruptcy chapter, and bankruptcy post petition due date for loan 021046955.
The last row of data represents the foreclosure attorney referral date for
420221154. Leave no spaces between commas in a row and sort the extract by MSD
loan number.
Sending the Data Elements File
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Data extracts should be posted on the MSD website. Files are due monthly by the
third business day. Questions concerning setup of file or for troubleshooting
issues, please contact Xxx Xxxxxxxxxxx at (000) 000-0000 or via e-mail at
xxx.x.xxxxxxxxxxx@xxxx.xxx. Also please contact Xxx xxxxx to your first month's
posting to make sure he has set your company up for with the ability to Post
data to the website.
MSD Website address: xxx0.xxxxxxxxxxxx.xxx/xxx
Servicer Comments File
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To support the reporting process through ADR, servicer's also will
simultaneously develop a default comment file that will transmit and upload into
our system in the same way as the data extract file. The purpose of this
transmission is to minimize manual comment updates at loan-level.
Like the Data Elements file, the ADR Comment File is comma-delimited. It
contains the following data:
CitiMortgage MSD's Loan Number
Servicer Loan Number
Default Stage (3 Character Code)
Comment Date
Comment (Text)
A-1
The default stage listed pertains to one of six major stages in the default
process:
Stage Code Description
-------------------------------------------------------------------------------
Bankruptcy BNK Active bankruptcy status.
Foreclosure FOR Active foreclosure status.
Loss Mitigation LMT Mortgagor workout measures are in progress.
Claims CLM Active claim (post foreclosure) in progress.
REO REO Active REO status (property being marketed).
Default DEF Delinquencies not fitting the
above categories (usually 30, 60 or
90 day delinquencies).
In programming the file, servicers should categorize comments into one of the 6
stages listed above. Rows in the comment file would look like this:
021046955,496265,BNK,07-16-2004,"Motion for Relief filed 7/10/04."
300001702,621111,LMT,07-11-2004,"Modification started 7/5/04."
420221154,784456,FOR,07-07-2004,"File referred to attorney 7/2/04."
Servicers should submit the Comments file simultaneously with the Data Elements
file each month. The Comments file should be in a CSV format.
A-1
APPENDIX I
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Servicing Agreement
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[Included as Exhibit 10.2(A) to the Current Report on Form 8-K pursuant to
which this Assignment, Assumption and Recognition Agreement is filed.]
A-1
