Exhibit 10.3(C)
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EXECUTION COPY
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Agreement"), dated
April 30, 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-C Trust ("Assignee"), ▇▇▇▇▇ Fargo Bank, N.A., a
national banking association ("▇▇▇▇▇ Fargo Bank"), as servicer, and acknowledged
by ▇▇▇▇▇ Fargo Bank, N.A. as master servicer of the Banc of America Funding
2007-C 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ Fargo Bank, as seller, (iii) that certain
Assignment and Conveyance Agreement (2006-W37), dated May 25, 2006, by and
between Assignor and ▇▇▇▇▇ Fargo Bank, (iv) that certain Assignment and
Conveyance Agreement (2006-W39), dated June 27, 2006, by and between Assignor
and ▇▇▇▇▇ Fargo Bank, (v) that certain Assignment and Conveyance Agreement
(2006-W46), dated June 28, 2006, by and between Assignor and ▇▇▇▇▇ Fargo Bank,
(vi) that certain Assignment, Assumption and Recognition Agreement (the "MS
North Fork Bank AAR"), dated as of March 20, 2007, among North Fork Bank,
successor in interest to GreenPoint Mortgage Funding, Inc. ("GreenPoint"), the
Assignor and ▇▇▇▇▇ Fargo Bank (successor by merger to ▇▇▇▇▇ Fargo Home Mortgage,
Inc), (vii) that certain Assignment, Assumption and Recognition Agreement (the
"UBS North Fork Bank AAR"), dated as of March 20, 2007, among North Fork Bank,
successor in interest to GreenPoint, the Assignor and ▇▇▇▇▇ Fargo Bank, (viii)
that certain Assignment, Assumption and Recognition Agreement (the "EMC1 North
Fork Bank AAR"), dated as of March 20, 2007, among North Fork Bank, successor in
interest to GreenPoint, the Assignor and ▇▇▇▇▇ Fargo Bank and (ix) that certain
Assignment, Assumption and Recognition Agreement (the "EMC2 North Fork Bank
AAR," and together with the MS North Fork Bank AAR, UBS North Fork Bank AAR and
the EMC1 North Fork Bank AAR, the "North Fork Bank AARs," and collectively with
the MSWSA, the MMLPA and the Assignment and Conveyances, the "Purchase and
Servicing Agreements"), dated as of March 20, 2007, among North Fork Bank,
successor in interest to GreenPoint, the Assignor and ▇▇▇▇▇ Fargo Bank, each of
which is attached in Appendix I hereto, the Assignor purchased the Mortgage
Loans (as defined herein) from ▇▇▇▇▇ Fargo Bank and ▇▇▇▇▇ 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, ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ Fargo Bank is not released from liability to the Assignor
for any breaches of any representations, warranties or covenants made by ▇▇▇▇▇
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 ▇▇▇▇▇ 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
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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, ▇▇▇▇▇ Fargo Bank shall note the transfer
of the Mortgage Loans to the Assignee in its books and records, and ▇▇▇▇▇ 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,
▇▇▇▇▇ 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. ▇▇▇▇▇ Fargo Bank hereby represents and warrants to each of the other
parties hereto (i) that the representations and warranties of ▇▇▇▇▇ 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 ▇▇▇▇▇ Fargo Bank, and ▇▇▇▇▇ 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. ▇▇▇▇▇ 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."
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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."
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)":
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"(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. ▇▇▇▇▇ 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
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
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Trust Services, BAFC 2007-C
BAFC's address for purposes of all notices and correspondence related to
the Mortgage Loans is:
Banc of America Funding Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Manager - BAFC 2007-C
9. ▇▇▇▇▇ Fargo Bank shall remit all funds pursuant to the following wire
instructions:
▇▇▇▇▇ FARGO BANK, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
FOR CREDIT TO: SAS CLEARING, ACCT: ▇▇▇▇▇▇▇▇▇▇
FFC TO: BAFC 2007-C # 53146800.
10. ▇▇▇▇▇ Fargo Bank hereby acknowledges that a REMIC election will be made
with respect to the Mortgage Loans and that ▇▇▇▇▇ Fargo Bank, N.A. has been
5
appointed as the Master Servicer of the Mortgage Loans pursuant to the Pooling
Agreement, and therefore has the right to enforce all obligations of ▇▇▇▇▇ 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 ▇▇▇▇▇ Fargo
Bank thereunder, the right to receive all remittances required to be made by
▇▇▇▇▇ Fargo Bank under the Purchase and Servicing Agreements, the right to
receive all monthly reports and other data required to be delivered by ▇▇▇▇▇
Fargo Bank under the Purchase and Servicing Agreements, the right to examine the
books and records of ▇▇▇▇▇ Fargo Bank, as servicer, indemnification rights, and
the right to exercise certain rights of consent and approval relating to actions
taken by ▇▇▇▇▇ 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/ ▇▇▇▇▇ ▇. Good
--------------------------------
Name: ▇▇▇▇▇ ▇. Good
Title: Principal
U.S. Bank National
Association, as Assignee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Banc of America Funding Corporation
By: /s/ ▇▇▇▇▇ ▇. Good
--------------------------------
Name: ▇▇▇▇▇ ▇. Good
Title: Principal
▇▇▇▇▇ Fargo Bank, N.A., as servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Acknowledged and Agreed as
of the date first written above:
▇▇▇▇▇ Fargo Bank, N.A., as Master Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Colli
Title: Vice President
[BAFC 2007-C -- ▇▇▇▇▇ FARGO AAR]
EXHIBIT A
Schedule of Mortgage Loans
[Please see the Free Writing Prospectus filed and accepted by the Securities
and Exchange Commission on April 30, 2007, with a filing
date of April 30, 2007 and accession number
0001379434-07-000080.]
A-1
EXHIBIT B
Exhibit G-1 Standard File Layout - Delinquency Reporting
*The column/header names in bold are the minimum fields ▇▇▇▇▇ Fargo must receive
from every Servicer
--------------------------- --------------------------------------------------------------------- --------------- ------------------
Column/Header Name Description Decimal Format Comment
--------------------------- --------------------------------------------------------------------- --------------- ------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This
may be different than the LOAN_NBR
--------------------------- --------------------------------------------------------------------- --------------- ------------------
LOAN_NBR A unique identifier assigned to each loan by the originator.
--------------------------- --------------------------------------------------------------------- --------------- ------------------
CLIENT_NBR Servicer Client Number
--------------------------- --------------------------------------------------------------------- --------------- ------------------
SERV_INVESTOR_NBR Contains a unique
number as assigned
by an external
servicer to
identify a group of
loans in their
system.
--------------------------- --------------------------------------------------------------------- --------------- ------------------
BORROWER_FIRST_NAME First Name of the Borrower.
--------------------------- --------------------------------------------------------------------- --------------- ------------------
BORROWER_LAST_NAME Last name of the borrower.
--------------------------- --------------------------------------------------------------------- --------------- ------------------
▇▇▇▇_▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name and Number of Property
--------------------------- --------------------------------------------------------------------- --------------- ------------------
PROP_STATE The state where the property located.
--------------------------- --------------------------------------------------------------------- --------------- ------------------
PROP_ZIP Zip code where the property is located.
--------------------------- --------------------------------------------------------------------- --------------- ------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due to the MM/DD/YYYY
servicer at the end of processing cycle, as reported by Servicer.
--------------------------- ---------------------------------------------------------------------------------- --------------- -----
LOAN_TYPE Loan Type (i.e. FHA, VA, Conv)
--------------------------- ---------------------------------------------------------------------------------- --------------- -----
BANKRUPTCY_FILED_DATE The date a particular bankruptcy claim was filed. MM/DD/YYYY
--------------------------- ---------------------------------------------------------------------------------- --------------- -----
BANKRUPTCY_CHAPTER_CODE The chapter under which the bankruptcy was filed.
------------------------------------------------------------ -----------------------------------------------------------------------
BANKRUPTCY_CASE_NBR The case number assigned by the court to the bankruptcy
filing.
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
POST_PETITION_DUE_DATE The payment due date once the bankruptcy has been approved MM/DD/YYYY
by the courts
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. Either by MM/DD/YYYY
Dismissal, Discharged and/or a Motion For Relief Was Granted.
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The Servicer MM/DD/YYYY
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
LOSS_MIT_TYPE The Type Of Loss Mitigation Approved For A Loan Such As;
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually Completed MM/DD/YYYY
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue Foreclosure MM/DD/YYYY
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a Foreclosure Action MM/DD/YYYY
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected to occur. MM/DD/YYYY
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
FRCLSR_SALE_AMT The amount a property sold for at the foreclosure sale. 2 No commas(,) or
dollar signs ($)
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
EVICTION_START_DATE The date the servicer initiates eviction of the borrower. MM/DD/YYYY
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
EVICTION_COMPLETED_DATE The date the court revokes legal possession of the property MM/DD/YYYY
from the borrower.
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
LIST_PRICE The price at which an REO property is marketed. 2 No commas(,) or
dollar signs ($)
---------------------------- ---------------------------------------------------------------------------------- --------------- ----
B-1
-------------------------------------------------------------------------------------------------------------- --------------- -----
LIST_DATE The date an REO property is listed at a particular price. MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- --------------- -----
OFFER_AMT The dollar value of an offer for an REO property. 2 No commas(,) or
dollar signs ($)
-------------------------------------------------------------------------------------------------------------- --------------- -----
OFFER_DATE_TIME The date an offer is received by DA Admin or by the Servicer. MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- --------------- -----
REO_CLOSING_DATE The date the REO sale of the property is scheduled to close. MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- ---------------------
REO_ACTUAL_CLOSING_DATE Actual Date Of REO Sale MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- ---------------------
OCCUPANT_CODE Classification of how the property is occupied.
-------------------------------------------------------------------------------------------------------------- --------------- -----
PROP_CONDITION_CODE A code that indicates the condition of the property.
------------------------------------------------------------ -----------------------------------------------------------------------
PROP_INSPECTION_DATE The date a property inspection is performed. MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- ------ --------------
APPRAISAL_DATE The date the appraisal was done. MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- ------ --------------
CURR_PROP_VAL The current "as is" value of the property based on brokers 2
price opinion or appraisal.
-------------------------------------------------------------------------------------------------------------- --------------- -----
REPAIRED_PROP_VAL The amount the property would be worth if repairs are 2
completed pursuant to a broker's price opinion or appraisal.
-------------------------------------------------------------------------------------------------------------- --------------- -----
If applicable:
-------------------------------------------------------------------------------------------------------------- --------------- -----
DELINQ_STATUS_CODE FNMA Code Describing Status of Loan
-------------------------------------------------------------------------------------------------------------- --------------- -----
DELINQ_REASON_CODE The circumstances which caused a borrower to stop paying
on a loan. Code indicates the reason why the loan is in default
for this cycle.
-------------------------------------------------------------------------------------------------------------- --------------- -----
MI_CLAIM_FILED_DATE Date Mortgage Insurance Claim Was Filed With Mortgage Insurance MM/DD/YYYY
Company.
-------------------------------------------------------------------------------------------------------------- --------------- -----
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No commas(,) or
dollar signs ($)
-------------------------------------------------------------------------------------------------------------- --------------- -----
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim Payment MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- --------------- -----
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No commas(,) or
dollar signs ($)
-------------------------------------------------------------------------------------------------------------- --------------- -----
POOL_CLAIM_FILED_DATE Date Claim Was Filed With Pool Insurance Company MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- --------------- -----
POOL_CLAIM_AMT Amount of Claim Filed With Pool Insurance Company 2 No commas(,) or
dollar signs ($)
-------------------------------------------------------------------------------------------------------------- --------------- -----
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued By MM/DD/YYYY
The Pool Insurer
-------------------------------------------------------------------------------------------------------------- --------------- -----
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No commas(,) or
dollar signs ($)
-------------------------------------------------------------------------------------------------------------- --------------- -----
FHA_PART_A_CLAIM_FILED_DATE Date FHA Part A Claim Was Filed With HUD MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- --------------- -----
FHA_PART_A_CLAIM_AMT Amount of FHA Part A Claim Filed 2 No commas(,) or
dollar signs ($)
-------------------------------------------------------------------------------------------------------------- --------------- -----
FHA_PART_A_CLAIM_PAID_DATE Date HUD Disbursed Part A Claim Payment MM/DD/YYYY
-------------------------------------------------------------------------------------------------------------- --------------- -----
B-2
FHA_PART_A_CLAIM_PAID_AMT Amount HUD Paid on Part A Claim 2 No commas(,) or
dollar signs ($)
------------------------------------------------------------------------------------------------------ -----------------------------
FHA_PART_B_CLAIM_FILED_DATE Date FHA Part B Claim Was Filed With HUD MM/DD/YYYY
------------------------------------------------------------------------------------------------------ ----------------------------
FHA_PART_B_CLAIM_AMT Amount of FHA Part B Claim Filed 2 No commas(,) or
dollar signs ($)
------------------------------------------------------------------------------------------------------ ----------------------------
FHA_PART_B_CLAIM_PAID_DATE Date HUD Disbursed Part B Claim Payment MM/DD/YYYY
----------------------------------------------------------------------------------------------------- -----------------------------
FHA_PART_B_CLAIM_PAID_AMT Amount HUD Paid on Part B Claim 2 No commas(,) or
dollar signs ($)
----------------------------------------------------------------------------------------------------- -----------------------------
VA_CLAIM_FILED_DATE Date VA Claim Was Filed With the Veterans Admin MM/DD/YYYY
------------------------------------------------------------------------------------------------------ ----------------------------
VA_CLAIM_PAID_DATE Date Veterans Admin. Disbursed VA Claim Payment MM/DD/YYYY
------------------------------------------------------------------------------------------------------ -----------------------------
VA_CLAIM_PAID_AMT Amount Veterans Admin. Paid on VA Claim 2 No commas(,) or
dollar signs ($)
------------------------------------------------------------------------------------------------------ -----------------------------
B-3
Exhibit G-1: Standard File Codes - Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as
follows:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: ▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those
above, provided that they are consistent with industry standards. If Loss
Mitigation Types other than those above are used, the Servicer must supply ▇▇▇▇▇
Fargo Bank with a description of each of the Loss Mitigation Types prior to
sending the file.
The Occupant Code field should show the current status of the property code as
follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The Property Condition field should show the last reported condition of the
property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o Unknown
B-4
Exhibit G-1: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency as
follows:
-------------------------- -----------------------------------------------------
Delinquency Code Delinquency Description
-------------------------- -----------------------------------------------------
001 FNMA-Death of principal mortgagor
-------------------------- -----------------------------------------------------
002 FNMA-Illness of principal mortgagor
-------------------------- -----------------------------------------------------
003 FNMA-Illness of mortgagor's family member
-------------------------- -----------------------------------------------------
004 FNMA-Death of mortgagor's family member
-------------------------- -----------------------------------------------------
005 FNMA-Marital difficulties
-------------------------- -----------------------------------------------------
006 FNMA-Curtailment of income
-------------------------- -----------------------------------------------------
007 FNMA-Excessive Obligation
-------------------------- -----------------------------------------------------
008 FNMA-Abandonment of property
-------------------------- -----------------------------------------------------
009 FNMA-Distant employee transfer
-------------------------- -----------------------------------------------------
011 FNMA-Property problem
-------------------------- -----------------------------------------------------
012 FNMA-Inability to sell property
-------------------------- -----------------------------------------------------
013 FNMA-Inability to rent property
-------------------------- -----------------------------------------------------
014 FNMA-Military Service
-------------------------- -----------------------------------------------------
015 FNMA-Other
-------------------------- -----------------------------------------------------
016 FNMA-Unemployment
-------------------------- -----------------------------------------------------
017 FNMA-Business failure
-------------------------- -----------------------------------------------------
019 FNMA-Casualty loss
-------------------------- -----------------------------------------------------
022 FNMA-Energy environment costs
-------------------------- -----------------------------------------------------
023 FNMA-Servicing problems
-------------------------- -----------------------------------------------------
026 FNMA-Payment adjustment
-------------------------- -----------------------------------------------------
027 FNMA-Payment dispute
-------------------------- -----------------------------------------------------
029 FNMA-Transfer of ownership pending
-------------------------- -----------------------------------------------------
030 FNMA-Fraud
-------------------------- -----------------------------------------------------
031 FNMA-Unable to contact borrower
-------------------------- -----------------------------------------------------
INC FNMA-Incarceration
-------------------------- -----------------------------------------------------
B-5
Exhibit G-1: Standard File Codes - Delinquency Reporting, Continued
The FNMA Delinquent Status Code field should show the Status of Default as
follows:
---------------------- -------------------------------------------------------
Status Code Status Description
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
09 Forbearance
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
17 Pre-foreclosure Sale Closing Plan Accepted
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
24 Government Seizure
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
26 Refinance
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
27 Assumption
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
28 Modification
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
29 Charge-Off
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
30 Third Party Sale
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
31 Probate
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
32 Military Indulgence
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
43 Foreclosure Started
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
44 Deed-in-Lieu Started
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
49 Assignment Completed
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
61 Second Lien Considerations
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
62 Veteran's Affairs-No Bid
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
63 Veteran's Affairs-Refund
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
64 Veteran's Affairs-Buydown
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
65 Chapter 7 Bankruptcy
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
66 Chapter 11 Bankruptcy
---------------------- -------------------------------------------------------
---------------------- -------------------------------------------------------
67 Chapter 13 Bankruptcy
---------------------- -------------------------------------------------------
B-6
Exhibit G-2: Standard File Layout - Scheduled/Scheduled
------------------------------------------------------------------------------------------------------------------------------------
Max
Column Name Description Decimal Format Comment Size
------------------------------------------------------------------------------------------------------------------------------------
SER_INVESTOR_NBR A value assigned by the Servicer to define a group of loans. Text up to 10 digits 20
------------------------------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each loan by the investor. Text up to 10 digits 10
------------------------------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the Servicer. This may be Text up to 10 digits 10
different than the LOAN_NBR.
------------------------------------------------------------------------------------------------------------------------------------
BORROWER_NAME The borrower name as received in the file. It is not separated by Maximum length of 30 30
first and last name. (Last, First)
------------------------------------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal and scheduled interest payment that a 2 No commas(,) or dollar 11
borrower is expected to pay, P&I constant. signs ($)
------------------------------------------------------------------------------------------------------------------------------------
NOTE_INT_RATE The loan interest rate as reported by the Servicer. 4 Max length of 6 6
------------------------------------------------------------------------------------------------------------------------------------
NET_INT_RATE The loan gross interest rate less the service fee rate as 4 Max length of 6 6
reported by the Servicer.
------------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for a loan as reported by the Servicer. 4 Max length of 6 6
------------------------------------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount for a loan as reported by the Servicer. 2 No commas(,) or dollar 11
signs ($)
------------------------------------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount as reported by the Servicer. 2 No commas(,) or dollar 11
signs ($)
------------------------------------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as reported by the Servicer. 4 Max length of 6 6
------------------------------------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is using to calculate a forecasted rate. 4 Max length of 6 6
------------------------------------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual principal balance at the beginning of the 2 No commas(,) or dollar 11
processing cycle. signs ($)
------------------------------------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual principal balance at the end of the 2 No commas(,) or dollar 11
processing cycle. signs ($)
------------------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of processing cycle that the borrower's MM/DD/YYYY 10
next payment is due to the Servicer, as reported by Servicer.
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount to be applied. 2 No commas(,) or dollar 11
signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date associated with the first curtailment MM/DD/YYYY 10
amount.
------------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_1 The curtailment interest on the first curtailment amount, if 2 No commas(,) or 11
applicable. dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment amount to be applied. 2 No commas(,) or 11
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_2 The curtailment date associated with the second curtailment amount. MM/DD/YYYY 10
------------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on the second curtailment amount, if 2 No commas(,) or 11
applicable. dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount to be applied. 2 No commas(,) or 11
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date associated with the third curtailment amount. MM/DD/YYYY 10
------------------------------------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on the third curtailment amount, if 2 No commas(,) or 11
applicable. dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" amount as reported by the Servicer. 2 No commas(,) or 11
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
B-7
PIF_DATE The paid in full date as reported by the Servicer. MM/DD/YYYY 10
------------------------------------------------------------------------------------------------------------------------------------
ACTION_CODE The standard FNMA numeric code used to Action Code Key: 2
indicate the default/delinquent status 15=Bankruptcy,
of a particular loan. 30=Foreclosure,
60=PIF, 63=Substitution,
65=Repurchase,70=REO
------------------------------------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest adjustment as reported by the Servicer. 2 No commas(,) or dollar 11
signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment amount, if applicable. 2 No commas(,) or dollar 11
signs ($)
------------------------------------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, if applicable. 2 No commas(,) or dollar 11
signs ($)
------------------------------------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is passing as a loss, if applicable. 2 No commas(,) or 11
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding principal amount due at the beginning of the 2 No commas(,) or 11
cycle date to be passed through to investors. dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal balance due to investors at the end of a 2 No commas(,) or 11
processing cycle. dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal amount as reported by the Servicer for the 2 No commas(,) or 11
current cycle -- only applicable for Scheduled/Scheduled Loans. dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest amount less the service fee amount for 2 No commas(,) or 11
the current cycle as reported by the Servicer -- only applicable for dollar signs ($)
Scheduled/Scheduled Loans.
------------------------------------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount collected by the Servicer for the current 2 No commas(,) or 11
reporting cycle -- only applicable for Actual/Actual Loans. dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest amount less the service fee amount for the 2 No commas(,) or 11
current reporting cycle as reported by dollar signs ($)
the Servicer -- only applicable for
Actual/Actual Loans.
------------------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ AMT The penalty amount received when a borrower prepays on his loan as 2 No commas(,) or 11
reported by the Servicer. dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for the loan waived by the servicer. 2 No commas(,) or 11
dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date of the Modification for the loan. MM/DD/YYYY 10
------------------------------------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can 30
be alpha or numeric
------------------------------------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding principal and interest advances made by 2 No commas(,) or 11
Servicer. dollar signs ($)
------------------------------------------------------------------------------------------------------------------------------------
B-8
Exhibit G-3: Calculation of Realized Loss/Gain Form 332- Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and all
credits as separate line items. Claim packages are due on the remittance
report date. Late submissions may result in claims not being passed until
the following month. The Servicer is responsible to remit all funds pending
loss approval and /or resolution of any disputed items.
The numbers on the 332 form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
1. The Actual Unpaid Principal Balance of the Mortgage Loan. For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is required.
2. The Total Interest Due less the aggregate amount of servicing fee that
would have been earned if all delinquent payments had been made as
agreed. For documentation, an Amortization Schedule from date of
default through liquidation breaking out the net interest and
servicing fees advanced is required.
3. Accrued Servicing Fees based upon the Scheduled Principal Balance of
the Mortgage Loan as calculated on a monthly basis. For documentation,
an Amortization Schedule from date of default through liquidation
breaking out the net interest and servicing fees advanced is required.
4-12. Complete as applicable. Required documentation:
* For taxes and insurance advances - see page 2 of 332 form -
breakdown required showing period of coverage, base tax, interest,
penalty. Advances prior to default require evidence of servicer
efforts to recover advances.
* For escrow advances - complete payment history (to calculate
advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing
all payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision
and WFB's approved Servicing Officer certification
* Unusual or extraordinary items may require further
documentation.
13. The total of lines 1 through 12.
Credits:
14-21. Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid
instructions and Escrow Agent / Attorney Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee * All other credits
need to be clearly defined on the 332 form
B-9
22. The total of lines 14 through 21.
Please Note: For HUD/VA loans, use line (18a) for Part A/Initial proceeds
and line (18b) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
23. The total derived from subtracting line 22 from 13. If the amount
represents a realized gain, show the amount in parenthesis ( ).
B-10
Exhibit G-3: Calculation of Realized Loss/Gain Form 332
Prepared by: __________________ Date: _______________
Phone: ______________________ Email Address:_____________________
---------------------- ------------------------ ------------------------
Servicer Loan No. Servicer Name Servicer Address
---------------------- ------------------------ ------------------------
▇▇▇▇▇ FARGO BANK, N.A. Loan No._____________________________
Borrower's Name: _________________________________________________________
Property Address: _________________________________________________________
Liquidation Type: REO Sale 3rd Party Sale Short Sale Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown Yes No
If "Yes", provide deficiency or cramdown amount _______________________________
Liquidation and Acquisition Expenses:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________ (1)
(2) Interest accrued at Net Rate ________________(2)
(3) Accrued Servicing Fees ________________(3)
(4) Attorney's Fees ________________(4)
(5) Taxes (see page 2) ________________(5)
(6) Property Maintenance ________________ 6)
(7) MI/Hazard Insurance Premiums (see page 2) ________________(7)
(8) Utility Expenses ________________(8)
(9) Appraisal/BPO ________________(9)
(10) Property Inspections ________________(10)
(11) FC Costs/Other Legal Expenses ________________(11)
(12) Other (itemize) ________________(12)
Cash for Keys__________________________ ________________(12)
HOA/Condo Fees_______________________ ________________(12)
______________________________________ ________________(12)
Total Expenses $ _______________(13)
B-11
Credits:
(14) Escrow Balance $ _______________(14)
(15) HIP Refund ________________ (15)
(16) Rental Receipts ________________ (16)
(17) Hazard Loss Proceeds ________________ (17)
(18) Primary Mortgage Insurance / Gov't Insurance ________________ (18a) HUD Part A
________________ (18b) HUD Part B
(19) Pool Insurance Proceeds ________________ (19)
(20) Proceeds from Sale of Acquired Property ________________ (20)
(21) Other (itemize) ________________ (21)
_________________________________________ ________________ (21)
Total Credits $________________(22)
Total Realized Loss (or Amount of Gain) $________________(23)
B-12
Escrow Disbursement Detail
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
Type Date Paid Period of Coverage Total Paid Base Amount Penalties Interest
(Tax /Ins.)
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
-------------- ------------------ --------------------- ------------------ --------------------- -------------------- --------------
B-13
APPENDIX I
Purchase and Servicing Agreements
[Included as Exhibits 10.3(A) and 10.3(B) to the Current
Report on Form 8-K pursuant to which this
Assignment, Assumption and Recognition Agreement
is filed, as well as attached hereto]
Execution Version
Appendix I
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "AAR
Agreement") dated as of March 20, 2007, among North Fork Bank, successor in
interest to GreenPoint Mortgage Funding, Inc. (the "Assignor"), Bank of America,
National Association (the "Assignee") and ▇▇▇▇▇ Fargo Bank, N.A., successor by
merger to ▇▇▇▇▇ Fargo Home Mortgage, Inc. (the "Company"):
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. Sale and Assignment. With respect to the mortgage loans listed on
Exhibit A hereto (the "Assigned Loans") purchased by the Assignor from ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc. ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), the Assignor hereby grants,
transfers, assigns and sells to the Assignee all right, title and interest of
the Assignor, in, to and under (a) the Assigned Loans and the Mortgage Files,
(b) that certain Seller's Warranties and Servicing Agreement (WFHM 2003-W69 and
2003-W70), dated October 1, 2003, by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Company
(the "MS Servicing Agreement"), (c) that certain Mortgage Loan Purchase
Agreement, dated October 1, 2003, by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Company
(the "Purchase Agreement") and (d) that certain Assignment, Assumption and
Recognition Agreement, dated November 26, 2003, by and among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the
Assignor and the Company (the "Original Assignment;" collectively with the
Purchase Agreement and MS Servicing Agreement, the "Agreements"), as each
Agreement relates to the Assigned Loans and only the Assigned Loans and the
Assignee hereby assumes all of the Assignor's obligations and duties arising
under the Agreements from and after the date hereof, and the Company hereby
acknowledges such sale, assignment and assumption. The Assignor specifically
reserves and does not assign to the Assignee any right, title and interest in,
to or under any mortgage loans subject to the Agreements other than the Assigned
Loans. Notwithstanding the foregoing, it is understood that neither the Company
nor Assignor is released from liability to the other for any breaches of any
representations, warranties or covenants made by such party to the other in the
Agreements prior to the date hereof regardless of when such breaches are
discovered or made known. Capitalized terms used but not defined herein shall
have the respective meanings ascribed to them in the MS Servicing Agreement.
2. Payment. Simultaneously with the execution of this AAR Agreement and
upon completion of the other closing conditions set forth in the Purchase Price
and Terms Letter (the "PPTL"), dated as of January 12, 2007, by and between the
Assignee and the Assignor, the Assignee shall pay to the Assignor the purchase
price as calculated pursuant to the PPTL. The Assignee shall pay the purchase
price payable under the PPTL by wire transfer of immediately available funds to
the account specified by the Assignor. Upon payment of such purchase price, the
Assignee assumes all right, title and interest in and to the Assigned Loans and
the Mortgage Files pursuant to the Agreements. The Assignee shall be entitled to
all scheduled payments due on the Assigned Loans after March 1, 2007 (the
"Assigned Loans Cut-off Date") and all unscheduled payments or other proceeds or
other recoveries on the Assigned Loans received on and after the Assigned Loans
Cut-off Date, as provided in the MS Servicing Agreement. The Assignor, at its
expense, shall have caused to be delivered to the Assignee or its designee the
Mortgage Files for each Assigned Loan in the Assignor's or its custodian's
possession prior to the date hereof, excluding that portion under the control of
the Company. The Assignor and the Company acknowledge and agree that the
Assignee has designated U.S. Bank National Association (the "Custodian") as its
custodian of the Mortgage Files pursuant to a Custodial Agreement between the
Assignee and the Custodian.
3. Representations. Warranties and Covenants of the Assignor. The Assignor
warrants and represents to, and covenants with, the Assignee that:
(a) The Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignor's business and
will not conflict with, or result in a breach of any of the terms, conditions or
provisions of the Assignor's organizational documents or by-laws or any legal
restriction, or any material agreement or instrument to which the Assignor is
now a party or by which it is bound, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Assignor or its
property is subject. The execution, delivery and performance by the Assignor of
this AAR Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary action on the part of the
Assignor. This AAR Agreement has been duly executed and delivered by the
Assignor and, upon the due authorization, execution and delivery by the Assignee
and the Company, will constitute the valid and legally binding obligation of the
Assignor enforceable against the Assignor in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Assignor of this AAR Agreement and
the consummation of the transactions contemplated hereby 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 hereof. 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 (i) with
respect to any of the transactions contemplated by this AAR Agreement or (ii)
with respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and, if determined adversely to the
Assignor, will materially and adversely affect its ability to perform its
obligations under this AAR Agreement;
(b) The Assignor is the lawful owner of the Assigned Loans with the
full right to transfer the Assigned Loans and all of its interests, rights and
obligations under the Agreements free from any and all encumbrances, liens,
pledges, participation interests, claims or security interests of any nature
encumbering the Assigned Loans. Except for the sale to the Assignee, the
Assignor has not assigned or pledged any Mortgage Note related to any Assigned
Loan or the related Mortgage or any interest or participation therein;
(c) The Assignor has not satisfied, canceled, or subordinated in whole
or in part, or rescinded the Mortgage related to any Assigned Loan, and the
Assignor has not released the Mortgaged Property from the lien of the Mortgage
related to any Assigned Loan, in whole or in part, nor has the Assignor executed
an instrument that would effect any such release, cancellation, subordination,
or rescission;
(d) The Assignor has not taken any action that would serve to impair
or encumber the Assignor's ownership interest in the Assigned Loans since the
applicable date of the original sale to Assignor;
(e) The Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to the Company with
respect to the Agreements or the Assigned Loans;
2
(f) The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreements, including
without limitation the transfer of the servicing obligations under the MS
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, or defaults under, the Agreements;
(g) Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Assigned Loans, any
interest in the Assigned Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Assigned Loans, any interest in the Assigned Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Assigned Loans,
any interest in the Assigned 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 Assigned Loans under the Securities Act of
1933, as amended (the "Securities Act") or which would render the disposition of
the Assigned Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto;
(h) 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;
(i) With respect to each of the Assigned Loans, the representations
and warranties contained in Section 3.02 of the MS Servicing Agreement, to the
extent they relate to matters arising on or after the date such Assigned Loan
was purchased by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ from the Company (the "Original Closing Date"),
are true and correct as of the date of this AAR Agreement. For purposes of
making the representations and warranties contemplated in the foregoing
sentence, each reference in Section 3.02 of the MS Servicing Agreement (i) to
the "Cut-off Date" shall he 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 A hereto and any other schedules of the Assigned Loans,
provided in writing or electronically, providing any data with respect to the
Assigned Loans of the type described in the definition of "Mortgage Loan
Schedule" provided in the MS Servicing Agreement (other than any schedules that
were updated by the Assignor prior to the date of this AAR Agreement), (iii) to
the "Closing Date" shall be deemed to be a reference to the date of this AAR
Agreement and (iv) to the "Seller's knowledge" shall be deemed to be a reference
to the Assignor's knowledge. For purposes of clarification, the Assignor shall
not be deemed to have breached or violated any representation or warranty
contemplated in this paragraph in the event that such representation or warranty
was not true or correct as of the Original Closing Date (an "Original Breach")
unless such Original Breach was cured prior to the date hereof; and
(j) With respect to the Assigned Loans, the matters set forth in
Schedule I attached hereto are true and correct as of the date of this AAR
Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 3 shall survive delivery of the respective Assigned
Loans to the Assignee or its designee and shall inure to the benefit of the
Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. It is understood and agreed that the Assignor shall
be deemed not to have made the representations and warranties in this Section 3
with respect to, and to the extent of, representations and warranties made as to
the matters covered in this Section 3 by the Company in the Agreements. It is
further understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained herein, and no other
affiliate of the Assignor has made any representations or warranties of any kind
to the Assignee.
3
4. Repurchase of Assigned Loans. The Assignor and the Assignee understand
and agree that:
(a) Upon the discovery by the Assignor or the Assignee and its assigns
of a breach of any representation, warranty, or covenant under this AAR
Agreement, the party discovering such breach shall give prompt written notice to
the other parties to this AAR Agreement. Upon discovery or notice of any breach
by the Assignor of any representation, warranty, or covenant under this AAR
Agreement that materially and adversely affects the value of any Assigned 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 Assigned Loan or the interest of the Assignee therein if
the Assignee incurs 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, unless
notified by the Assignee, repurchase the Assigned Loan no later than
seventy-five (75) days from the date on which it is notified of the breach in
the same manner set forth in Section 3.03 of the MS Servicing Agreement. The
repurchase price (the "Repurchase Price") for a repurchase by Assignor shall be
calculated by (i) multiplying the percentage used in calculating the purchase
price for the applicable Assigned Loan pursuant to the PPTL by an amount equal
to the then outstanding principal balance of such Assigned Loan as of the date
of such repurchase, plus (ii) accrued interest on such Assigned Loan from the
date on which interest had last been paid through the last day of the month in
which such repurchase takes place, plus (iii) the amount of any outstanding
advances owed to the Servicer, plus (iv) all reasonable costs and expenses
incurred by the Assignee arising out of or based upon such breach, including,
without limitation, reasonable costs and expenses incurred in the enforcement of
the Assignor's repurchase obligation hereunder. Any repurchase of an Assigned
Loan or Loans pursuant to the foregoing provisions of this Section 4 shall be
accomplished by wire transfer of the amount of the Repurchase Price to an
account designated by the Assignee. In addition to such repurchase or
substitution obligation, the Assignor shall indemnify the Assignee and hold it
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses based on or grounded upon, or resulting from a breach of a
representation or warranty under this AAR Agreement or a violation of any other
provision hereof.
(b) In the event the Company has breached a representation or warranty
under the MS Servicing Agreement or this AAR Agreement that is substantially
identical to a representation or warranty by the Assignor under this AAR
Agreement, the Assignee shall first proceed against the Company under the MS
Servicing Agreement. In the event that any Assigned Loan is repurchased by the
Company pursuant to this Section, the Assignor shall promptly remit, upon
written notice from the Assignee, to the Assignee an amount equal to the amount
by which the Repurchase Price payable under Section 4(a) hereof exceeds the
amount payable by the Company under the MS Servicing Agreement upon such
repurchase. If the Company does not, within ninety (90) days after notification
of the breach, cure such breach or repurchase the Assigned Loan in the same
manner as set forth in Section 3.03 of the MS Servicing Agreement, the Assignee
shall be entitled to enforce the obligations of the Assignor hereunder to cure
such breach or to purchase the Assigned Loan from the Assignee, and/or to
indemnify Assignee, except to the extent such breach arose prior to the
applicable Original Closing Date. In such event, the Assignor shall succeed to
the rights of the Assignee to enforce the obligations of the Company to cure
such breach or repurchase such Assigned Loan under the terms of the MS Servicing
Agreement with respect to such Assigned Loan. Upon repurchase of an Assigned
Loan by the Assignor pursuant to this Section, the Assignee shall cause the
related Mortgage File previously delivered to the Assignee to be returned to the
Assignor or its designee at the direction of the Assignor no later than three
(3) Business Days after such repurchase.
4
(c) Except as specifically set forth herein, the Assignee shall have
no responsibility to enforce any provision of the Agreements, to oversee
compliance thereof, or to take notice of any breach or default thereof.
(d) The obligations to the Assignee in this Section 4 shall survive
any sale or assignment of the Assigned Loans by the Assignee to any third party
and shall be independently enforceable by the Assignee.
5. Representations. Warranties and Covenants of the Assignee. The Assignee
warrants and represents to, and covenants with, the Assignor and the Company
that:
(a) The Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignee's business and
will not conflict with, or result in a breach of, any of the terms, conditions
or provisions of the Assignee's charter or by-laws or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject. The
execution, delivery and performance by the Assignee of this AAR Agreement and
the consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary action on the part of the Assignee. This AAR
Agreement has been duly executed and delivered by the Assignee and, upon the due
authorization, execution and delivery by the Company and the Assignor, will
constitute the valid and legally binding obligation of the Assignee enforceable
against the Assignee in accordance with its terms except as enforceability may
be limited by bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and by general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law. The execution, delivery and
performance by the Assignee of this AAR Agreement and the consummation of the
transactions contemplated hereby 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 hereof.
There are no actions, suits or proceedings pending or, to the knowledge of the
Assignee, threatened, before or by any court, administrative agency, arbitrator
or governmental body (i) with respect to any of the transactions contemplated by
this AAR Agreement or (ii) with respect to any other matter that in the judgment
of the Assignee will be determined adversely to the Assignee and, if determined
adversely to the Assignee, will materially and adversely affect its ability to
perform its obligations under this AAR Agreement;
(b) The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of the Agreements solely with respect to the
Assigned Loans, and from and after the date hereof, the Assignee assumes for the
benefit of each of the Company and the Assignor all of the Assignor's
obligations as purchaser or owner thereunder solely with respect to the Assigned
Loans;
(c) The Assignee has been furnished with all information regarding the
Assigned Loans that it has requested from the Assignor or the Company; and
(d) The Assignee's address for purposes of all notices and
correspondence related to the Assigned Loans and the Agreements is:
Bank of America, National Association
Hearst Tower
NC 1-027-21-04
6
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Managing Director
The Assignee's wire transfer instructions for purposes of all remittances
and payments related to the Assigned Loans and the Agreements is:
Bank Name: Bank of America, Dallas TX
Account #: 004770451666
Account Name: BAMCC/NMCC
ABA#: ▇▇▇▇▇▇▇▇▇
Reference: NFB Trade (▇▇▇▇▇ Fargo Loans)
Attn: ▇▇▇▇ ▇▇▇▇▇▇
6. Representations and Warranties of the Company. The Company warrants and
represents to, and covenants with, the Assignee that:
(a) The representations and warranties contained in Section 3.01 of
the MS Servicing Agreement are deemed to be made as of the date of this AAR
Agreement (as modified in Section 10(b)(i) hereof), and all such representations
and warranties are true and correct as of the date of this AAR Agreement; the
representations and warranties contained in Section 3.02 of the MS Servicing
Agreement were true and correct as of the related Original Closing Date;
(b) The Company has serviced the Assigned Loans in accordance with the
terms of the MS Servicing Agreement, provided accurate statements and reports
required thereunder and otherwise complied with all covenants and obligations
thereunder, in each case, in all material respects;
(c) No offsets, counterclaims or other defenses are available to it
with respect to the Agreements or the Assigned Loans;
(d) It has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Agreements or the Assigned Loans. It 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 or
defaults under, the Agreements or the Assigned Loans;
(e) Since the Original Closing Date, neither it nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Assigned Loans, any interest in the Assigned Loans or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Assigned Loans, any interest in the Assigned Loans or any
other similar security from, or otherwise approached or negotiated with respect
to the Assigned Loans, any interest in the Assigned Loans or any other similar
security with, any person in any manner, or made by general solicitation by
means of general advertising or in any other manner, or taken any other action
that would constitute a distribution of the Assigned Loans under the 1933 Act or
that would render the disposition of the Assigned Loans a violation of Section 5
of the 1933 Act or require registration pursuant thereto.
(f) The Company 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 Assigned Loans; and
(g) This AAR Agreement has been duly executed and delivered by the
Company and, upon the due authorization, execution and delivery by the Assignee
6
and the Assignor, will constitute the valid and legally binding obligation of
the Company enforceable against the Company in accordance with its terms except
as enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Company of this AAR Agreement 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 hereof.
7. Accuracy of the Agreements. The Company and the Assignor represent and
warrant to the Assignee that (i) attached hereto as Exhibit B are a true,
accurate and complete copy of each of the Agreements and all amendments and
modifications thereto with respect to the Assigned Loans, if any, (ii) the
Agreements are in full force and effect on the date hereof, (iii) the Agreements
have not been amended or modified in any respect with respect to the Assigned
Loans, except as set forth in this AAR Agreement, and (iv) no notice of
termination has been given to the Company under the Agreements.
8. No Solicitation. The Assignor shall not take any action to solicit the
refinancing of any Assigned Loan or any Mortgagor of any Assigned Loan. It is
understood and agreed that none of (i) the solicitations or related activities
which the Company is permitted to conduct under the applicable Agreement, (ii)
promotions undertaken by the Assignor or its agents or affiliates which are
directed to the general public at large, including, without limitation, mass
mailings, newspaper, radio, television advertisements, or (iii) servicing the
refinancing needs of a Mortgagor who, without solicitation, contacts the
Assignor or its agents or affiliates in connection with the refinance of such
Mortgage or Assigned Loan, shall constitute solicitation under this Section.
9. Master Servicer. The Company hereby acknowledges that a master servicer
may be appointed with respect to the Assigned Loans and such master servicer
shall have the right to enforce all obligations of the Company, as they relate
to the Assigned Loans, under the MS Servicing Agreement.
10. Recognition of Assignee; Reconstitution of Servicing; Regulation AB.
(a) From and after the date of this AAR Agreement, the Company shall
note the transfer of the Assigned Loans as of the Assigned Loans Cut-off Date to
the Assignee in its books and records, the Company shall recognize the Assignee
as the owner of the Assigned Loans. Notwithstanding anything to the contrary in
the Agreements, however, the Company shall service the Assigned Loans for the
benefit of the Assignee pursuant to the terms of that certain Second Amended and
Restated Master Seller's Warranties and Servicing Agreement, dated as of May 1,
2006, by and between Assignee and the Company (as amended, the "Bank of America
Servicing Agreement"), only insofar as it relates to the servicing of "Mortgage
Loans" as defined therein, including but not limited those provisions related to
sales and reconstitutions of mortgage loans, and all provisions related to
Regulation AB compliance, including servicer-- and originator-- related
provisions, which such terms are incorporated herein by reference. It is the
intention of the Assignor, the Company and the Assignee that the Bank of America
Servicing Agreement, to the extent provided in the preceding sentence, and the
Agreements in all other respects, shall be binding upon and inure to the benefit
of the Company and the Assignee and their respective successors and assigns.
(b) In connection with the execution of this AAR Agreement, the
Company and the Assignee hereby agree that the following modifications to the
Bank of America Servicing Agreement shall apply only as to the Assigned Loans:
7
i) Section 3.01(a), Due Organization and Authority, is hereby modified
by replacing such section, in its entirety, with the following:
(a) Due Organization and Authority.
The Company is a national banking association duly
organized, validly existing and in good standing under the laws
of the United States and has all licenses necessary to carry on
its business as now being conducted and is licensed, qualified
and in good standing in each state where a Mortgaged Property is
located if the laws of such state require licensing or
qualification in order to conduct business of the type conducted
by the Company, and in any event the Company is in compliance
with the laws of any such state to the extent necessary to ensure
the enforceability of the related Mortgage Loan and the servicing
of such Mortgage Loan in accordance with the terms of this
Agreement; the Company has the full power and authority to
execute and deliver this Agreement and to perform its obligations
in accordance herewith; the execution, delivery and performance
of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by the Company and the
consummation of the transactions contemplated hereby have been
duly and validly authorized; this Agreement evidences the valid,
binding and enforceable obligation of the Company; and all
requisite action has been taken by the Company to make this
Agreement valid and binding upon the Company in accordance with
its terms;
ii) Section 4.02, Liquidation of Mortgage Loans, 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".
iii) Section 6.05, Annual Independent Public Accountants' Servicing
Report, is hereby deleted in its entirety and replaced with "[RESERVED]".
iv) Section 6.06, Report on Assessment of Compliance and Attestation,
is hereby modified by deleting the first paragraph in its entirety and
replacing it with "On or before March 1 of each calendar year, commencing
in 2008, the Company shall:".
v) Section 12.06, Notices, 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".
vi) A new Section 4.34, Arbitration, is hereby added as follows:
Section 4.34 Arbitration
Notwithstanding the terms of any Assigned Loan, in the event that
any such Assigned Loan requires the related Mortgagor to submit
to arbitration to resolve any dispute arising out of or relating
in any way to the mortgage loan transaction, the Assignee hereby
directs the Company and the Company hereby agrees to waive such
requirement.
8
11. Applicable Law. EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW, THIS AAR
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS OF NEW YORK (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW) OR THE CONFLICTS OF LAWS PROVISIONS OF ANY
OTHER JURISDICTION.
12. Expenses. Each party will pay any commissions it has incurred and the
reasonable fees of its attorneys in connection with the negotiations for,
documenting of and closing of the transactions contemplated by this AAR
Agreement.
13. No Waiver. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
14. Successors and Assigns. This AAR Agreement shall inure to the benefit
of the successors and assigns of the parties hereto. Any entity into which the
Assignor, the Assignee or the Company may be merged or consolidated shall,
without the requirement for any further writing, be deemed the Assignor, the
Assignee or the Company, respectively, hereunder.
15. Survival. This AAR Agreement shall survive the conveyances of the
Assigned Loans as contemplated in this AAR Agreement.
16. Execution in Counterparts. This AAR Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original and all such counterparts shall constitute one and the same
instrument.
17. Conflicts. In the event that any provision of this AAR Agreement
conflicts with any provision of the Agreements with respect to the Assigned
Loans, the terms of this AAR Agreement shall control.
[SIGNATURES ON THE FOLLOWING PAGE]
9
IN WITNESS WHEREOF, the parties have caused this AAR Agreement be executed
by their duly authorized officers as of the date first above written.
BANK OF AMERICA, NATIONAL
NORTH FORK BANK ASSOCIATION
Assignor Assignee
By: ____________________ By: _______________________________
Name: ____________________ Name: _______________________________
Its: ____________________ Its: _______________________________
▇▇▇▇▇ FARGO BANK, N.A.
Company
By: _______________________________
Name: _______________________________
Its: _______________________________
[Signature page for NFB-BOA AAR (WF-MS) March 2007 AAR]
EXHIBIT A
ASSIGNED LOAN SCHEDULE
[Attached hereto]
Exhibit A-1
EXHIBIT B
EXECUTION COPY OF THE AGREEMENTS
[Attached hereto]
Exhibit B-1
Execution Version
SCHEDULE I
ADDITIONAL MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
A. No Bankruptcy.
No Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Assigned Loan was originated.
18. B. No Violation of Environmental Laws.
19. The Mortgaged Property is free from any and all toxic or hazardous
substances and there exists no violation of any local, state or federal
environmental law, rule or regulation.
20. C. Homeownership and Equity Protection Act; No High Cost Loans.
No Assigned Loan is (a) a "high cost" loan under the Home Ownership and
Equity Protection Act of 1994 as amended, or (b) a "high cost,"
"threshold," "covered," "predatory," "abusive," or similarly defined loan,
including refinance loans, under any other applicable state, federal or
local law (or a similarly classified loan using different terminology under
a law imposing heightened regulatory scrutiny or additional legal liability
for residential mortgage loans having high interest rates, points and/or
fees).
21. D. Compliance with Anti-Money Laundering Laws.
To the best of the Assignor's knowledge upon reasonable due diligence, the
Company has complied with all anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"), and the Company has established an
anti-money laundering compliance program in compliance with the Anti-Money
Laundering Laws.
Exhibit A-2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "AAR
Agreement") dated as of March 20, 2007, among North Fork Bank, successor in
interest to GreenPoint Mortgage Funding, Inc. (the "Assignor"), Bank of America,
National Association (the "Assignee") and ▇▇▇▇▇ Fargo Bank, N.A. (the
"Company"):
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. Sale and Assignment. With respect to the mortgage loans listed on
Exhibit A hereto (the "Assigned Loans") purchased by the Assignor from UBS Real
Estate Securities Inc. ("UBS"), the Assignor hereby grants, transfers, assigns
and sells to the Assignee all right, title and interest of the Assignor, in, to
and under (a) the Assigned Loans and the Mortgage Files, (b) that certain
Seller's Warranties and Servicing Agreement (WFHM 2004-W73), dated December 1,
2004, by and between UBS and the Company (the "UBS Servicing Agreement"), (c)
that certain Mortgage Loan Purchase Agreement, dated December 1, 2004, by and
between UBS and the Company (the "Purchase Agreement") and (d) that certain
Assignment, Assumption and Recognition Agreement, dated January 28, 2005, by and
among UBS, the Assignor and the Company (the "Original Assignment;" collectively
with the Purchase Agreement and UBS Servicing Agreement, the "Agreements"), as
each Agreement relates to the Assigned Loans and only the Assigned Loans and the
Assignee hereby assumes all of the Assignor's obligations and duties arising
under the Agreements from and after the date hereof, and the Company hereby
acknowledges such sale, assignment and assumption. The Assignor specifically
reserves and does not assign to the Assignee any right, title and interest in,
to or under any mortgage loans subject to the Agreements other than the Assigned
Loans. Notwithstanding the foregoing, it is understood that neither the Company
nor Assignor is released from liability to the other for any breaches of any
representations, warranties or covenants made by such party to the other in the
Agreements prior to the date hereof regardless of when such breaches are
discovered or made known. Capitalized terms used but not defined herein shall
have the respective meanings ascribed to them in the UBS Servicing Agreement.
2. Payment. Simultaneously with the execution of this AAR Agreement and
upon completion of the other closing conditions set forth in the Purchase Price
and Terms Letter (the "PPTL"), dated as of January 12, 2007, by and between the
Assignee and the Assignor, the Assignee shall pay to the Assignor the purchase
price as calculated pursuant to the PPTL. The Assignee shall pay the purchase
price payable under the PPTL by wire transfer of immediately available funds to
the account specified by the Assignor. Upon payment of such purchase price, the
Assignee assumes all right, title and interest in and to the Assigned Loans and
the Mortgage Files pursuant to the Agreements. The Assignee shall be entitled to
all scheduled payments due on the Assigned Loans after March 1, 2007 (the
"Assigned Loans Cut-off Date") and all unscheduled payments or other proceeds or
other recoveries on the Assigned Loans received on and after the Assigned Loans
Cut-off Date, as provided in the UBS Servicing Agreement. The Assignor, at its
expense, shall have caused to be delivered to the Assignee or its designee the
Mortgage Files for each Assigned Loan in the Assignor's or its custodian's
possession prior to the date hereof, excluding that portion under the control of
the Company. The Assignor and the Company acknowledge and agree that the
Assignee has designated U.S. Bank National Association (the "Custodian") as its
custodian of the Mortgage Files pursuant to a Custodial Agreement between the
Assignee and the Custodian.
3. Representations. Warranties and Covenants of the Assignor. The Assignor
warrants and represents to, and covenants with, the Assignee that:
(a) The Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of the
Assignor's business and will not conflict with, or result in a breach of
any of the terms, conditions or provisions of the Assignor's organizational
documents or by-laws or any legal restriction, or any material agreement or
instrument to which the Assignor is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order, judgment or
decree to which the Assignor or its property is subject. The execution,
delivery and performance by the Assignor of this AAR Agreement and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary action on the part of the Assignor. This AAR
Agreement has been duly executed and delivered by the Assignor and, upon
the due authorization, execution and delivery by the Assignee and the
Company, will constitute the valid and legally binding obligation of the
Assignor enforceable against the Assignor in accordance with its terms
except as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding
in equity or at law. The execution, delivery and performance by the
Assignor of this AAR Agreement and the consummation of the transactions
contemplated hereby 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 hereof. 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 (i) with respect to
any of the transactions contemplated by this AAR Agreement or (ii) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and, if determined adversely to the
Assignor, will materially and adversely affect its ability to perform its
obligations under this AAR Agreement;
(b) The Assignor is the lawful owner of the Assigned Loans with the
full right to transfer the Assigned Loans and all of its interests, rights
and obligations under the Agreements free from any and all encumbrances,
liens, pledges, participation interests, claims or security interests of
any nature encumbering the Assigned Loans. Except for the sale to the
Assignee, the Assignor has not assigned or pledged any Mortgage Note
related to any Assigned Loan or the related Mortgage or any interest or
participation therein;
(c) The Assignor has not satisfied, canceled, or subordinated in whole
or in part, or rescinded the Mortgage related to any Assigned Loan, and the
Assignor has not released the Mortgaged Property from the lien of the
Mortgage related to any Assigned Loan, in whole or in part, nor has the
Assignor executed an instrument that would effect any such release,
cancellation, subordination, or rescission;
(d) The Assignor has not taken any action that would serve to impair
or encumber the Assignor's ownership interest in the Assigned Loans since
the applicable date of the original sale to Assignor;
(e) The Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to the Company with
respect to the Agreements or the Assigned Loans;
2
(f) The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreements, including
without limitation the transfer of the servicing obligations under the UBS
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, or defaults under, the
Agreements;
(g) Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Assigned Loans, any
interest in the Assigned Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other
disposition of the Assigned Loans, any interest in the Assigned Loans or
any other similar security from, or otherwise approached or negotiated with
respect to the Assigned Loans, any interest in the Assigned 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
Assigned Loans under the Securities Act of 1933, as amended (the
"Securities Act") or which would render the disposition of the Assigned
Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto;
(h) 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;
(i) With respect to each of the Assigned Loans, the representations
and warranties contained in Section 3.02 of the UBS Servicing Agreement, to
the extent they relate to matters arising on or after the date such
Assigned Loan was purchased by UBS from the Company (the "Original Closing
Date"), are true and correct as of the date of this AAR Agreement. For
purposes of making the representations and warranties contemplated in the
foregoing sentence, each reference in Section 3.02 of the UBS Servicing
Agreement (i) to the "Cut-off Date" shall he 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 A hereto and any other schedules of
the Assigned Loans, provided in writing or electronically, providing any
data with respect to the Assigned Loans of the type described in the
definition of "Mortgage Loan Schedule" provided in the UBS Servicing
Agreement (other than any schedules that were updated by the Assignor prior
to the date of this AAR Agreement), (iii) to the "Closing Date" shall be
deemed to be a reference to the date of this AAR Agreement and (iv) to the
"Seller's knowledge" shall be deemed to be a reference to the Assignor's
knowledge. For purposes of clarification, the Assignor shall not be deemed
to have breached or violated any representation or warranty contemplated in
this paragraph in the event that such representation or warranty was not
true or correct as of the Original Closing Date (an "Original Breach")
unless such Original Breach was cured prior to the date hereof; and
(j) With respect to the Assigned Loans, the matters set forth in
Schedule I attached hereto are true and correct as of the date of this AAR
Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 3 shall survive delivery of the respective Assigned Loans
to the Assignee or its designee and shall inure to the benefit of the Assignee
and its assigns notwithstanding any restrictive or qualified endorsement or
assignment. It is understood and agreed that the Assignor shall be deemed not to
have made the representations and warranties in this Section 3 with respect to,
and to the extent of, representations and warranties made as to the matters
covered in this Section 3 by the Company in the Agreements. It is further
understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained herein, and no other
affiliate of the Assignor has made any representations or warranties of any kind
to the Assignee.
3
4. Repurchase of Assigned Loans. The Assignor and the Assignee understand
and agree that:
(a) Upon the discovery by the Assignor or the Assignee and its assigns
of a breach of any representation, warranty, or covenant under this AAR
Agreement, the party discovering such breach shall give prompt written
notice to the other parties to this AAR Agreement. Upon discovery or notice
of any breach by the Assignor of any representation, warranty, or covenant
under this AAR Agreement that materially and adversely affects the value of
any Assigned 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 Assigned Loan or
the interest of the Assignee therein if the Assignee incurs 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, unless notified by
the Assignee, repurchase the Assigned Loan no later than seventy-five (75)
days from the date on which it is notified of the breach in the same manner
set forth in Section 3.03 of the UBS Servicing Agreement. The repurchase
price (the "Repurchase Price") for a repurchase by Assignor shall be
calculated by (i) multiplying the percentage used in calculating the
purchase price for the applicable Assigned Loan pursuant to the PPTL by an
amount equal to the then outstanding principal balance of such Assigned
Loan as of the date of such repurchase, plus (ii) accrued interest on such
Assigned Loan from the date on which interest had last been paid through
the last day of the month in which such repurchase takes place, plus (iii)
the amount of any outstanding advances owed to the Servicer, plus (iv) all
reasonable costs and expenses incurred by the Assignee arising out of or
based upon such breach, including, without limitation, reasonable costs and
expenses incurred in the enforcement of the Assignor's repurchase
obligation hereunder. Any repurchase of an Assigned Loan or Loans pursuant
to the foregoing provisions of this Section 4 shall be accomplished by wire
transfer of the amount of the Repurchase Price to an account designated by
the Assignee. In addition to such repurchase or substitution obligation,
the Assignor shall indemnify the Assignee and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments, and other costs and expenses based
on or grounded upon, or resulting from a breach of a representation or
warranty under this AAR Agreement or a violation of any other provision
hereof.
(b) In the event the Company has breached a representation or warranty
under the UBS Servicing Agreement or this AAR Agreement that is
substantially identical to a representation or warranty by the Assignor
under this AAR Agreement, the Assignee shall first proceed against the
Company under the UBS Servicing Agreement. In the event that any Assigned
Loan is repurchased by the Company pursuant to this Section, the Assignor
shall promptly remit, upon written notice from the Assignee, to the
Assignee an amount equal to the amount by which the Repurchase Price
payable under Section 4(a) hereof exceeds the amount payable by the Company
under the UBS Servicing Agreement upon such repurchase. If the Company does
not, within ninety (90) days after notification of the breach, cure such
breach or repurchase the Assigned Loan in the same manner as set forth in
Section 3.03 of the UBS Servicing Agreement, the Assignee shall be entitled
to enforce the obligations of the Assignor hereunder to cure such breach or
to purchase the Assigned Loan from the Assignee, and/or to indemnify
Assignee, except to the extent such breach arose prior to the applicable
Original Closing Date. In such event, the Assignor shall succeed to the
rights of the Assignee to enforce the obligations of the Company to cure
such breach or repurchase such Assigned Loan under the terms of the UBS
Servicing Agreement with respect to such Assigned Loan. Upon repurchase of
an Assigned Loan by the Assignor pursuant to this Section, the Assignee
shall cause the related Mortgage File previously delivered to the Assignee
to be returned to the Assignor or its designee at the direction of the
Assignor no later than three (3) Business Days after such repurchase.
4
(c) Except as specifically set forth herein, the Assignee shall have
no responsibility to enforce any provision of the Agreements, to oversee
compliance thereof, or to take notice of any breach or default thereof.
(d) The obligations to the Assignee in this Section 4 shall survive
any sale or assignment of the Assigned Loans by the Assignee to any third
party and shall be independently enforceable by the Assignee.
5. Representations. Warranties and Covenants of the Assignee. The Assignee
warrants and represents to, and covenants with, the Assignor and the Company
that:
(a) The Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of the
Assignee's business and will not conflict with, or result in a breach of,
any of the terms, conditions or provisions of the Assignee's charter or
by-laws or any legal restriction, or any material agreement or instrument
to which the Assignee is now a party or by which it is bound, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which the Assignee or its property is subject. The execution, delivery and
performance by the Assignee of this AAR Agreement and the consummation by
it of the transactions contemplated hereby, have been duly authorized by
all necessary action on the part of the Assignee. This AAR Agreement has
been duly executed and delivered by the Assignee and, upon the due
authorization, execution and delivery by the Company and the Assignor, will
constitute the valid and legally binding obligation of the Assignee
enforceable against the Assignee in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless
of whether enforceability is considered in a proceeding in equity or at
law. The execution, delivery and performance by the Assignee of this AAR
Agreement and the consummation of the transactions contemplated hereby 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 hereof. There
are no actions, suits or proceedings pending or, to the knowledge of the
Assignee, threatened, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the transactions
contemplated by this AAR Agreement or (ii) with respect to any other matter
that in the judgment of the Assignee will be determined adversely to the
Assignee and, if determined adversely to the Assignee, will materially and
adversely affect its ability to perform its obligations under this AAR
Agreement;
(b) The Assignee agrees to be bound, as Purchaser, by all of the terms,
covenants and conditions of the Agreements solely with respect to the Assigned
Loans, and from and after the date hereof, the Assignee assumes for the benefit
of each of the Company and the Assignor all of the Assignor's obligations as
purchaser or owner thereunder solely with respect to the Assigned Loans;
(c) The Assignee has been furnished with all information regarding the
Assigned Loans that it has requested from the Assignor or the Company; and
(d) The Assignee's address for purposes of all notices and correspondence
related to the Assigned Loans and the Agreements is:
Bank of America, National Association
Hearst Tower
NC 1-027-21-04
5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Managing Director
The Assignee's wire transfer instructions for purposes of all remittances
and payments related to the Assigned Loans and the Agreements is:
Bank Name: Bank of America, Dallas TX
Account #: 004770451666
Account Name: BAMCC/NMCC
ABA#: ▇▇▇▇▇▇▇▇▇
Reference: NFB Trade (▇▇▇▇▇ Fargo Loans)
Attn: ▇▇▇▇ ▇▇▇▇▇▇
6. Representations and Warranties of the Company. The Company warrants and
represents to, and covenants with, the Assignee that:
(a) The representations and warranties contained in Section 3.01 of
the UBS Servicing Agreement are deemed to be made as of the date of this
AAR Agreement, and all such representations and warranties are true and
correct as of the date of this AAR Agreement; the representations and
warranties contained in Section 3.02 of the UBS Servicing Agreement were
true and correct as of the related Original Closing Date;
(b) The Company has serviced the Assigned Loans in accordance with the
terms of the UBS Servicing Agreement, provided accurate statements and
reports required thereunder and otherwise complied with all covenants and
obligations thereunder, in each case, in all material respects;
(c) No offsets, counterclaims or other defenses are available to it
with respect to the Agreements or the Assigned Loans;
(d) It has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Agreements or the Assigned Loans.
It 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 or defaults under, the Agreements or the Assigned Loans;
(e) Since the Original Closing Date, neither it nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of
the Assigned Loans, any interest in the Assigned Loans or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other disposition of the Assigned Loans, any interest in the Assigned Loans
or any other similar security from, or otherwise approached or negotiated
with respect to the Assigned Loans, any interest in the Assigned Loans or
any other similar security with, any person in any manner, or made by
general solicitation by means of general advertising or in any other
manner, or taken any other action that would constitute a distribution of
the Assigned Loans under the 1933 Act or that would render the disposition
of the Assigned Loans a violation of Section 5 of the 1933 Act or require
registration pursuant thereto.
(f) The Company 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 Assigned Loans; and
(g) This AAR Agreement has been duly executed and delivered by the
Company and, upon the due authorization, execution and delivery by the
6
Assignee and the Assignor, will constitute the valid and legally binding
obligation of the Company enforceable against the Company in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and by general
principles of equity regardless of whether enforceability is considered in
a proceeding in equity or at law. The execution, delivery and performance
by the Company of this AAR Agreement 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 hereof.
7. Accuracy of the Agreements. The Company and the Assignor represent and
warrant to the Assignee that (i) attached hereto as Exhibit B are a true,
accurate and complete copy of each of the Agreements and all amendments and
modifications thereto with respect to the Assigned Loans, if any, (ii) the
Agreements are in full force and effect on the date hereof, (iii) the Agreements
have not been amended or modified in any respect with respect to the Assigned
Loans, except as set forth in this AAR Agreement, and (iv) no notice of
termination has been given to the Company under the Agreements.
8. No Solicitation. The Assignor shall not take any action to solicit the
refinancing of any Assigned Loan or any Mortgagor of any Assigned Loan. It is
understood and agreed that none of (i) the solicitations or related activities
which the Company is permitted to conduct under the applicable Agreement, (ii)
promotions undertaken by the Assignor or its agents or affiliates which are
directed to the general public at large, including, without limitation, mass
mailings, newspaper, radio, television advertisements, or (iii) servicing the
refinancing needs of a Mortgagor who, without solicitation, contacts the
Assignor or its agents or affiliates in connection with the refinance of such
Mortgage or Assigned Loan, shall constitute solicitation under this Section.
9. Master Servicer. The Company hereby acknowledges that a master servicer
may be appointed with respect to the Assigned Loans and such master servicer
shall have the right to enforce all obligations of the Company, as they relate
to the Assigned Loans, under the UBS Servicing Agreement.
10. Recognition of Assignee; Reconstitution of Servicing; Regulation AB.
(a) From and after the date of this AAR Agreement, the Company shall
note the transfer of the Assigned Loans as of the Assigned Loans Cut-off
Date to the Assignee in its books and records, the Company shall recognize
the Assignee as the owner of the Assigned Loans. Notwithstanding anything
to the contrary in the Agreements, however, the Company shall service the
Assigned Loans for the benefit of the Assignee pursuant to the terms of
that certain Second Amended and Restated Master Seller's Warranties and
Servicing Agreement, dated as of May 1, 2006, by and between Assignee and
the Company (as amended, the "Bank of America Servicing Agreement"), only
insofar as it relates to the servicing of "Mortgage Loans" as defined
therein, including but not limited those provisions related to sales and
reconstitutions of mortgage loans, and all provisions related to Regulation
AB compliance, including servicer-- and originator-- related provisions,
which such terms are incorporated herein by reference. It is the intention
of the Assignor, the Company and the Assignee that the Bank of America
Servicing Agreement, to the extent provided in the preceding sentence, and
the Agreements in all other respects, shall be binding upon and inure to
the benefit of the Company and the Assignee and their respective successors
and assigns.
(b) In connection with the execution of this AAR Agreement, the
Company and the Assignee hereby agree that the following modifications to
the Bank of America Servicing Agreement shall apply only as to the Assigned
Loans:
7
i) Section 4.02, Liquidation of Mortgage Loans, 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".
ii) Section 6.05, Annual Independent Public Accountants'
Servicing Report, is hereby deleted in its entirety and replaced with
"[RESERVED]".
iii) Section 6.06, Report on Assessment of Compliance and
Attestation, is hereby modified by deleting the first paragraph in its
entirety and replacing it with "On or before March 1 of each calendar
year, commencing in 2008, the Company shall:".
iv) Section 12.06, Notices, 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".
11. Applicable Law. EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW, THIS AAR
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS OF NEW YORK (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW) OR THE CONFLICTS OF LAWS PROVISIONS OF ANY
OTHER JURISDICTION.
12. Expenses. Each party will pay any commissions it has incurred and the
reasonable fees of its attorneys in connection with the negotiations for,
documenting of and closing of the transactions contemplated by this AAR
Agreement.
13. No Waiver. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
14. Successors and Assigns. This AAR Agreement shall inure to the benefit
of the successors and assigns of the parties hereto. Any entity into which the
Assignor, the Assignee or the Company may be merged or consolidated shall,
without the requirement for any further writing, be deemed the Assignor, the
Assignee or the Company, respectively, hereunder.
15. Survival. This AAR Agreement shall survive the conveyances of the
Assigned Loans as contemplated in this AAR Agreement.
16. Execution in Counterparts. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original and all such counterparts shall constitute one and the same
instrument.
17. Conflicts. In the event that any provision of this AAR Agreement
conflicts with any provision of the Agreements with respect to the Assigned
Loans, the terms of this AAR Agreement shall control.
[SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have caused this AAR Agreement be executed
by their duly authorized officers as of the date first above written.
BANK OF AMERICA, NATIONAL
NORTH FORK BANK ASSOCIATION
Assignor Assignee
By: ____________________ By: _______________________________
Name: ____________________ Name: _______________________________
Its: ____________________ Its: _______________________________
▇▇▇▇▇ FARGO BANK, N.A.
Company
By: _______________________________
Name: _______________________________
Its: _______________________________
[Signature page for NFB-BOA AAR (WF-UBS) March 2007 AAR]
EXHIBIT A
ASSIGNED LOAN SCHEDULE
[Attached hereto]
Exhibit A-1
EXHIBIT B
EXECUTION COPY OF THE AGREEMENTS
[Attached hereto]
Exhibit B-1
SCHEDULE I
ADDITIONAL MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
18. A. Payments Current.
All payments required to be made prior to the related Cut-off Date for the
Assigned Loan under the terms of the Mortgage Note have been made and
credited. No payment under any Assigned Loan has been thirty (30) days or
more delinquent since March 20, 2006.
19. B. LTV, Primary mortgage insurance policy.
If a Assigned Loan had an original LTV of 80% or greater, and the Mortgage
Loan Schedule reflects that the Assigned Loan is covered by a primary
mortgage insurance policy, the excess over 78% is and will be insured as to
payment defaults by a primary mortgage insurance policy until terminated
pursuant to the Homeowners Protection Act of 1998, 12 USC ss.4901, et seq.
All provisions of such primary mortgage insurance policy have been and are
being complied with, such policy is in full force and effect, and all
premiums due thereunder have been paid. The insurer under such primary
mortgage insurance policy is a Qualified Insurer that has a claims paying
ability acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac. Any Assigned Loan subject
to a primary mortgage insurance policy obligates the Mortgagor thereunder
to maintain the primary mortgage insurance policy and to pay all premiums
and charges in connection therewith. Any such premium is not payable from
any portion of the Mortgage Interest Rate.
C. Underwriting.
Each Assigned Loan was underwritten in accordance with the underwriting
guidelines of the Company, which underwriting guidelines satisfy the
standards of prudent mortgage lenders of the same type of mortgage loans as
the Assigned Loans in the secondary market.
20. D. No Bankruptcy.
No Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Assigned Loan was originated.
21. E. No Violation of Environmental Laws.
The Mortgaged Property is free from any and all toxic or hazardous
substances and there exists no violation of any local, state or federal
environmental law, rule or regulation.
Schedule I-1
Execution Version
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "AAR
Agreement") dated as of March 20, 2007, among North Fork Bank, successor in
interest to GreenPoint Mortgage Funding, Inc. (the "Assignor"), Bank of America,
National Association (the "Assignee") and ▇▇▇▇▇ Fargo Bank, N.A. (the
"Company"):
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. Sale and Assignment. With respect to the mortgage loans listed on
Exhibit A hereto (the "Assigned Loans") purchased by the Assignor from EMC
Mortgage Corporation ("EMC"), the Assignor hereby grants, transfers, assigns and
sells to the Assignee all right, title and interest of the Assignor, in, to and
under (a) the Assigned Loans and the Mortgage Files, (b) that certain Master
Seller's Warranties and Servicing Agreement, dated October 1, 2004, by and
between EMC and the Company (as amended, the "EMC Servicing Agreement"), (c)
that certain Master Mortgage Loan Purchase Agreement, dated October 1, 2004, by
and between EMC and the Company (as amended, the "Purchase Agreement") and (d)
that certain Purchase, Assignment, Assumption and Recognition Agreement, dated
April 28, 2005, by and among EMC, the Assignor and the Company (the "Original
Assignment;" collectively with the Purchase Agreement and EMC Servicing
Agreement, the "Agreements"), as each Agreement relates to the Assigned Loans
and only the Assigned Loans and the Assignee hereby assumes all of the
Assignor's obligations and duties arising under the Agreements from and after
the date hereof, and the Company hereby acknowledges such sale, assignment and
assumption. The Assignor specifically reserves and does not assign to the
Assignee any right, title and interest in, to or under any mortgage loans
subject to the Agreements other than the Assigned Loans. Notwithstanding the
foregoing, it is understood that neither the Company nor Assignor is released
from liability to the other for any breaches of any representations, warranties
or covenants made by such party to the other in the Agreements prior to the date
hereof regardless of when such breaches are discovered or made known. Effective
upon purchase of the Assigned Loans by the Assignor, the Company agreed to
service the Assigned Loans pursuant to the Seller's Warranties and Servicing
Agreement, dated December 1, 2003, by and between the Assignor and the Company
(the "GPM Servicing Agreement"). Capitalized terms used but not defined herein
shall have the respective meanings ascribed to them in the GPM Servicing
Agreement.
2. Payment. Simultaneously with the execution of this AAR Agreement and
upon completion of the other closing conditions set forth in the Purchase Price
and Terms Letter (the "PPTL"), dated as of January 12, 2007, by and between the
Assignee and the Assignor, the Assignee shall pay to the Assignor the purchase
price as calculated pursuant to the PPTL. The Assignee shall pay the purchase
price payable under the PPTL by wire transfer of immediately available funds to
the account specified by the Assignor. Upon payment of such purchase price, the
Assignee assumes all right, title and interest in and to the Assigned Loans and
the Mortgage Files pursuant to the Agreements. The Assignee shall be entitled to
all scheduled payments due on the Assigned Loans after March 1, 2007 (the
"Assigned Loans Cut-off Date") and all unscheduled payments or other proceeds or
other recoveries on the Assigned Loans received on and after the Assigned Loans
Cut-off Date, as provided in the GPM Servicing Agreement. The Assignor, at its
expense, shall have caused to be delivered to the Assignee or its designee the
Mortgage Files for each Assigned Loan in the Assignor's or its custodian's
possession prior to the date hereof, excluding that portion under the control of
the Company. The Assignor and the Company acknowledge and agree that the
Assignee has designated U.S. Bank National Association (the "Custodian") as its
custodian of the Mortgage Files pursuant to a Custodial Agreement between the
Assignee and the Custodian.
3. Representations. Warranties and Covenants of the Assignor. The Assignor
warrants and represents to, and covenants with, the Assignee that:
(a) The Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignor's business and
will not conflict with, or result in a breach of any of the terms, conditions or
provisions of the Assignor's organizational documents or by-laws or any legal
restriction, or any material agreement or instrument to which the Assignor is
now a party or by which it is bound, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Assignor or its
property is subject. The execution, delivery and performance by the Assignor of
this AAR Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary action on the part of the
Assignor. This AAR Agreement has been duly executed and delivered by the
Assignor and, upon the due authorization, execution and delivery by the Assignee
and the Company, will constitute the valid and legally binding obligation of the
Assignor enforceable against the Assignor in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Assignor of this AAR Agreement and
the consummation of the transactions contemplated hereby 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 hereof. 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 (i) with
respect to any of the transactions contemplated by this AAR Agreement or (ii)
with respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and, if determined adversely to the
Assignor, will materially and adversely affect its ability to perform its
obligations under this AAR Agreement;
(b) The Assignor is the lawful owner of the Assigned Loans with the
full right to transfer the Assigned Loans and all of its interests, rights and
obligations under the Agreements free from any and all encumbrances, liens,
pledges, participation interests, claims or security interests of any nature
encumbering the Assigned Loans. Except for the sale to the Assignee, the
Assignor has not assigned or pledged any Mortgage Note related to any Assigned
Loan or the related Mortgage or any interest or participation therein;
(c) The Assignor has not satisfied, canceled, or subordinated in whole
or in part, or rescinded the Mortgage related to any Assigned Loan, and the
Assignor has not released the Mortgaged Property from the lien of the Mortgage
related to any Assigned Loan, in whole or in part, nor has the Assignor executed
an instrument that would effect any such release, cancellation, subordination,
or rescission;
(d) The Assignor has not taken any action that would serve to impair
or encumber the Assignor's ownership interest in the Assigned Loans since the
applicable date of the original sale to Assignor;
(e) The Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to the Company with
respect to the Agreements or the Assigned Loans;
2
(f) The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreements, other than
reconstituting servicing of the Assigned Loans to the GPM Servicing Agreement,
or the GPM Servicing Agreement, including without limitation the transfer of the
servicing obligations under the GPM 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, or
defaults under, the Agreements;
(g) Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Assigned Loans, any
interest in the Assigned Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Assigned Loans, any interest in the Assigned Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Assigned Loans,
any interest in the Assigned 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 Assigned Loans under the Securities Act of
1933, as amended (the "Securities Act") or which would render the disposition of
the Assigned Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto;
(h) 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;
(i) With respect to each of the Assigned Loans, the representations
and warranties contained in Section 3.02 of the EMC Servicing Agreement, to the
extent they relate to matters arising on or after the date such Assigned Loan
was purchased by EMC from the Company (the "Original Closing Date"), are true
and correct as of the date of this AAR Agreement. For purposes of making the
representations and warranties contemplated in the foregoing sentence, each
reference in Section 3.02 of the EMC Servicing Agreement (i) to the "Cut-off
Date" shall he 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 A
hereto and any other schedules of the Assigned Loans, provided in writing or
electronically, providing any data with respect to the Assigned Loans of the
type described in the definition of "Mortgage Loan Schedule" provided in the EMC
Servicing Agreement (other than any schedules that were updated by the Assignor
prior to the date of this AAR Agreement), (iii) to the "Closing Date" shall be
deemed to be a reference to the date of this AAR Agreement and (iv) to the
"Seller's knowledge" shall be deemed to be a reference to the Assignor's
knowledge. For purposes of clarification, the Assignor shall not be deemed to
have breached or violated any representation or warranty contemplated in this
paragraph in the event that such representation or warranty was not true or
correct as of the Original Closing Date (an "Original Breach") unless such
Original Breach was cured prior to the date hereof; and
(j) With respect to the Assigned Loans, the matters set forth in
Schedule I attached hereto are true and correct as of the date of this AAR
Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 3 shall survive delivery of the respective Assigned
Loans to the Assignee or its designee and shall inure to the benefit of the
Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. It is understood and agreed that the Assignor shall
be deemed not to have made the representations and warranties in this Section 3
with respect to, and to the extent of, representations and warranties made as to
the matters covered in this Section 3 by the Company in the Agreements. It is
further understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained herein, and no other
affiliate of the Assignor has made any representations or warranties of any kind
to the Assignee.
3
4. Repurchase of Assigned Loans. The Assignor and the Assignee understand
and agree that:
(a) Upon the discovery by the Assignor or the Assignee and its assigns
of a breach of any representation, warranty, or covenant under this AAR
Agreement, the party discovering such breach shall give prompt written notice to
the other parties to this AAR Agreement. Upon discovery or notice of any breach
by the Assignor of any representation, warranty, or covenant under this AAR
Agreement that materially and adversely affects the value of any Assigned 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 Assigned Loan or the interest of the Assignee therein if
the Assignee incurs 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, unless
notified by the Assignee, repurchase the Assigned Loan no later than
seventy-five (75) days from the date on which it is notified of the breach in
the same manner set forth in Section 3.03 of the EMC Servicing Agreement. The
repurchase price (the "Repurchase Price") for a repurchase by Assignor shall be
calculated by (i) multiplying the percentage used in calculating the purchase
price for the applicable Assigned Loan pursuant to the PPTL by an amount equal
to the then outstanding principal balance of such Assigned Loan as of the date
of such repurchase, plus (ii) accrued interest on such Assigned Loan from the
date on which interest had last been paid through the last day of the month in
which such repurchase takes place, plus (iii) the amount of any outstanding
advances owed to the Servicer, plus (iv) all reasonable costs and expenses
incurred by the Assignee arising out of or based upon such breach, including,
without limitation, reasonable costs and expenses incurred in the enforcement of
the Assignor's repurchase obligation hereunder. Any repurchase of an Assigned
Loan or Loans pursuant to the foregoing provisions of this Section 4 shall be
accomplished by wire transfer of the amount of the Repurchase Price to an
account designated by the Assignee. In addition to such repurchase or
substitution obligation, the Assignor shall indemnify the Assignee and hold it
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses based on or grounded upon, or resulting from a breach of a
representation or warranty under this AAR Agreement or a violation of any other
provision hereof.
(b) In the event the Company has breached a representation or warranty
under the EMC Servicing Agreement or this AAR Agreement that is substantially
identical to a representation or warranty by the Assignor under this AAR
Agreement, the Assignee shall first proceed against the Company under the EMC
Servicing Agreement. In the event that any Assigned Loan is repurchased by the
Company pursuant to this Section, the Assignor shall promptly remit, upon
written notice from the Assignee, to the Assignee an amount equal to the amount
by which the Repurchase Price payable under Section 4(a) hereof exceeds the
amount payable by the Company under the EMC Servicing Agreement upon such
repurchase. If the Company does not, within ninety (90) days after notification
of the breach, cure such breach or repurchase the Assigned Loan in the same
manner as set forth in Section 3.03 of the EMC Servicing Agreement, the Assignee
shall be entitled to enforce the obligations of the Assignor hereunder to cure
such breach or to purchase the Assigned Loan from the Assignee, and/or to
indemnify Assignee, except to the extent such breach arose prior to the
applicable Original Closing Date. In such event, the Assignor shall succeed to
the rights of the Assignee to enforce the obligations of the Company to cure
such breach or repurchase such Assigned Loan under the terms of the EMC
Servicing Agreement with respect to such Assigned Loan. Upon repurchase of an
Assigned Loan by the Assignor pursuant to this Section, the Assignee shall cause
the related Mortgage File previously delivered to the Assignee to be returned to
the Assignor or its designee at the direction of the Assignor no later than
three (3) Business Days after such repurchase.
4
(c) Except as specifically set forth herein, the Assignee shall have
no responsibility to enforce any provision of the Agreements, to oversee
compliance thereof, or to take notice of any breach or default thereof.
(d) The obligations to the Assignee in this Section 4 shall survive
any sale or assignment of the Assigned Loans by the Assignee to any third party
and shall be independently enforceable by the Assignee.
5. Representations. Warranties and Covenants of the Assignee. The Assignee
warrants and represents to, and covenants with, the Assignor and the Company
that:
(a) The Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignee's business and
will not conflict with, or result in a breach of, any of the terms, conditions
or provisions of the Assignee's charter or by-laws or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject. The
execution, delivery and performance by the Assignee of this AAR Agreement and
the consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary action on the part of the Assignee. This AAR
Agreement has been duly executed and delivered by the Assignee and, upon the due
authorization, execution and delivery by the Company and the Assignor, will
constitute the valid and legally binding obligation of the Assignee enforceable
against the Assignee in accordance with its terms except as enforceability may
be limited by bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and by general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law. The execution, delivery and
performance by the Assignee of this AAR Agreement and the consummation of the
transactions contemplated hereby 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 hereof.
There are no actions, suits or proceedings pending or, to the knowledge of the
Assignee, threatened, before or by any court, administrative agency, arbitrator
or governmental body (i) with respect to any of the transactions contemplated by
this AAR Agreement or (ii) with respect to any other matter that in the judgment
of the Assignee will be determined adversely to the Assignee and, if determined
adversely to the Assignee, will materially and adversely affect its ability to
perform its obligations under this AAR Agreement;
(b) The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of the Agreements solely with respect to the
Assigned Loans, and from and after the date hereof, the Assignee assumes for the
benefit of each of the Company and the Assignor all of the Assignor's
obligations as purchaser or owner thereunder solely with respect to the Assigned
Loans;
(c) The Assignee has been furnished with all information regarding the
Assigned Loans that it has requested from the Assignor or the Company; and
(d) The Assignee's address for purposes of all notices and
correspondence related to the Assigned Loans and the Agreements is:
Bank of America, National Association
Hearst Tower
NC 1-027-21-04
5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Managing Director
The Assignee's wire transfer instructions for purposes of all remittances
and payments related to the Assigned Loans and the Agreements is:
Bank Name: Bank of America, Dallas TX
Account #: 004770451666
Account Name: BAMCC/NMCC
ABA#: ▇▇▇▇▇▇▇▇▇
Reference: NFB Trade (▇▇▇▇▇ Fargo Loans)
Attn: ▇▇▇▇ ▇▇▇▇▇▇
6. Representations and Warranties of the Company. The Company warrants and
represents to, and covenants with, the Assignee that:
(a) The representations and warranties contained in Section 3.01 of
the EMC Servicing Agreement are deemed to be made as of the date of this AAR
Agreement, and all such representations and warranties are true and correct as
of the date of this AAR Agreement; the representations and warranties contained
in Section 3.02 of the EMC Servicing Agreement were true and correct as of the
related Original Closing Date;
(b) The Company serviced the Assigned Loans in accordance with the
terms of the EMC Servicing Agreement prior to the date of the Original
Assignment and the GPM Servicing Agreement on and after the date of the Original
Assignment, provided accurate statements and reports required thereunder and
otherwise complied with all covenants and obligations thereunder, in each case,
in all material respects;
(c) No offsets, counterclaims or other defenses are available to it
with respect to the Agreements or the Assigned Loans;
(d) It has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Agreements or the Assigned Loans. It 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 or
defaults under, the Agreements or the Assigned Loans;
(e) Since the Original Closing Date, neither it nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Assigned Loans, any interest in the Assigned Loans or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Assigned Loans, any interest in the Assigned Loans or any
other similar security from, or otherwise approached or negotiated with respect
to the Assigned Loans, any interest in the Assigned Loans or any other similar
security with, any person in any manner, or made by general solicitation by
means of general advertising or in any other manner, or taken any other action
that would constitute a distribution of the Assigned Loans under the 1933 Act or
that would render the disposition of the Assigned Loans a violation of Section 5
of the 1933 Act or require registration pursuant thereto.
(f) The Company 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 Assigned Loans; and
6
(g) This AAR Agreement has been duly executed and delivered by the
Company and, upon the due authorization, execution and delivery by the Assignee
and the Assignor, will constitute the valid and legally binding obligation of
the Company enforceable against the Company in accordance with its terms except
as enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Company of this AAR Agreement 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 hereof.
7. Accuracy of the Agreements. The Company and the Assignor represent and
warrant to the Assignee that (i) attached hereto as Exhibit B are a true,
accurate and complete copy of each of the Agreements and all amendments and
modifications thereto with respect to the Assigned Loans, if any, (ii) the
Agreements are in full force and effect on the date hereof, (iii) the Agreements
have not been amended or modified in any respect with respect to the Assigned
Loans, except as set forth in this AAR Agreement, and (iv) no notice of
termination has been given to the Company under the Agreements.
8. No Solicitation. The Assignor shall not take any action to solicit the
refinancing of any Assigned Loan or any Mortgagor of any Assigned Loan. It is
understood and agreed that none of (i) the solicitations or related activities
which the Company is permitted to conduct under the applicable Agreement, (ii)
promotions undertaken by the Assignor or its agents or affiliates which are
directed to the general public at large, including, without limitation, mass
mailings, newspaper, radio, television advertisements, or (iii) servicing the
refinancing needs of a Mortgagor who, without solicitation, contacts the
Assignor or its agents or affiliates in connection with the refinance of such
Mortgage or Assigned Loan, shall constitute solicitation under this Section.
9. Master Servicer. The Company hereby acknowledges that a master servicer
may be appointed with respect to the Assigned Loans and such master servicer
shall have the right to enforce all obligations of the Company, as they relate
to the Assigned Loans, under the GPM Servicing Agreement.
10. Recognition of Assignee; Reconstitution of Servicing; Regulation AB.
(a) From and after the date of this AAR Agreement, the Company shall
note the transfer of the Assigned Loans as of the Assigned Loans Cut-off Date to
the Assignee in its books and records, the Company shall recognize the Assignee
as the owner of the Assigned Loans. Notwithstanding anything to the contrary in
the Agreements, however, the Company shall service the Assigned Loans for the
benefit of the Assignee pursuant to the terms of that certain Second Amended and
Restated Master Seller's Warranties and Servicing Agreement, dated as of May 1,
2006, by and between Assignee and the Company (as amended, the "Bank of America
Servicing Agreement"), only insofar as it relates to the servicing of "Mortgage
Loans" as defined therein, including but not limited those provisions related to
sales and reconstitutions of mortgage loans, and all provisions related to
Regulation AB compliance, including servicer-- and originator-- related
provisions, which such terms are incorporated herein by reference. It is the
intention of the Assignor, the Company and the Assignee that the Bank of America
Servicing Agreement, to the extent provided in the preceding sentence, and the
Agreements in all other respects, shall be binding upon and inure to the benefit
of the Company and the Assignee and their respective successors and assigns.
(b) In connection with the execution of this AAR Agreement, the
Company and the Assignee hereby agree that the following modifications to the
Bank of America Servicing Agreement shall apply only as to the Assigned Loans:
7
i) Section 4.02, Liquidation of Mortgage Loans, 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".
ii) Section 6.05, Annual Independent Public Accountants'
Servicing Report, is hereby deleted in its entirety and replaced with
"[RESERVED]".
iii) Section 6.06, Report on Assessment of Compliance and
Attestation, is hereby modified by deleting the first paragraph in its
entirety and replacing it with "On or before March 1 of each calendar
year, commencing in 2008, the Company shall:".
iv) Section 12.06, Notices, 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".
11. Applicable Law. EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW, THIS AAR
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS OF NEW YORK (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW) OR THE CONFLICTS OF LAWS PROVISIONS OF ANY
OTHER JURISDICTION.
12. Expenses. Each party will pay any commissions it has incurred and the
reasonable fees of its attorneys in connection with the negotiations for,
documenting of and closing of the transactions contemplated by this AAR
Agreement.
13. No Waiver. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
14. Successors and Assigns. This AAR Agreement shall inure to the benefit
of the successors and assigns of the parties hereto. Any entity into which the
Assignor, the Assignee or the Company may be merged or consolidated shall,
without the requirement for any further writing, be deemed the Assignor, the
Assignee or the Company, respectively, hereunder.
15. Survival. This AAR Agreement shall survive the conveyances of the
Assigned Loans as contemplated in this AAR Agreement.
16. Execution in Counterparts. This AAR Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original and all such counterparts shall constitute one and the same
instrument.
17. Conflicts. In the event that any provision of this AAR Agreement
conflicts with any provision of the Agreements with respect to the Assigned
Loans, the terms of this AAR Agreement shall control.
[SIGNATURES ON THE FOLLOWING PAGE]
8
IN WITNESS WHEREOF, the parties have caused this AAR Agreement be executed
by their duly authorized officers as of the date first above written.
BANK OF AMERICA, NATIONAL
NORTH FORK BANK ASSOCIATION
Assignor Assignee
By: ________________________ By: _______________________________
Name: ________________________ Name: _______________________________
Its: ________________________ Its: _______________________________
▇▇▇▇▇ FARGO BANK, N.A.
Company
By: _______________________________
Name: _______________________________
Its: _______________________________
[Signature page for NFB-BOA AAR (WF-EMC2) March 2007 AAR]
EXHIBIT A
ASSIGNED LOAN SCHEDULE
[Attached hereto]
Exhibit A-1
EXHIBIT B
EXECUTION COPY OF THE AGREEMENTS
[Attached hereto]
Exhibit B-1
Execution Version
SCHEDULE I
ADDITIONAL MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
A. Payments Current.
No payment under any Assigned Loan has been thirty (30) days or more
delinquent since March 20, 2006.
B. No Violation of Environmental Laws.
The Mortgaged Property is free from any and all toxic or hazardous
substances and there exists no violation of any local, state or federal
environmental law, rule or regulation.
C. Compliance with Anti-Money Laundering Laws.
To the best of the Assignor's knowledge upon reasonable due diligence, the
Company has complied with all anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"), and the Company has established an
anti-money laundering compliance program in compliance with the Anti-Money
Laundering Laws.
Schedule I-1
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "AAR
Agreement") dated as of March 20, 2007, among North Fork Bank, successor in
interest to GreenPoint Mortgage Funding, Inc. (the "Assignor"), Bank of America,
National Association (the "Assignee") and ▇▇▇▇▇ Fargo Bank, N.A., successor by
merger to ▇▇▇▇▇ Fargo Home Mortgage, Inc. (the "Company"):
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. Sale and Assignment. With respect to the mortgage loans listed on
Exhibit A hereto (the "Assigned Loans") purchased by the Assignor from EMC
Mortgage Corporation ("EMC"), the Assignor hereby grants, transfers, assigns and
sells to the Assignee all right, title and interest of the Assignor, in, to and
under (a) the Assigned Loans and the Mortgage Files, (b) that certain Master
Seller's Warranties and Servicing Agreement, dated April 1, 2003, by and between
EMC and the Company (as amended, the "EMC Servicing Agreement"), (c) that
certain Master Mortgage Loan Purchase Agreement, dated April 1, 2003, by and
between EMC and the Company (as amended, the "Purchase Agreement") and (d) that
certain Purchase, Assignment, Assumption and Recognition Agreement, dated
January 30, 2004, by and among EMC, the Assignor and the Company (the "Original
Assignment;" collectively with the Purchase Agreement and EMC Servicing
Agreement, the "Agreements"), as each Agreement relates to the Assigned Loans
and only the Assigned Loans and the Assignee hereby assumes all of the
Assignor's obligations and duties arising under the Agreements from and after
the date hereof, and the Company hereby acknowledges such sale, assignment and
assumption. The Assignor specifically reserves and does not assign to the
Assignee any right, title and interest in, to or under any mortgage loans
subject to the Agreements other than the Assigned Loans. Notwithstanding the
foregoing, it is understood that neither the Company nor Assignor is released
from liability to the other for any breaches of any representations, warranties
or covenants made by such party to the other in the Agreements prior to the date
hereof regardless of when such breaches are discovered or made known.
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the EMC Servicing Agreement.
2. Payment. Simultaneously with the execution of this AAR Agreement and
upon completion of the other closing conditions set forth in the Purchase Price
and Terms Letter (the "PPTL"), dated as of January 12, 2007, by and between the
Assignee and the Assignor, the Assignee shall pay to the Assignor the purchase
price as calculated pursuant to the PPTL. The Assignee shall pay the purchase
price payable under the PPTL by wire transfer of immediately available funds to
the account specified by the Assignor. Upon payment of such purchase price, the
Assignee assumes all right, title and interest in and to the Assigned Loans and
the Mortgage Files pursuant to the Agreements. The Assignee shall be entitled to
all scheduled payments due on the Assigned Loans after March 1, 2007 (the
"Assigned Loans Cut-off Date") and all unscheduled payments or other proceeds or
other recoveries on the Assigned Loans received on and after the Assigned Loans
Cut-off Date, as provided in the EMC Servicing Agreement. The Assignor, at its
expense, shall have caused to be delivered to the Assignee or its designee the
Mortgage Files for each Assigned Loan in the Assignor's or its custodian's
possession prior to the date hereof, excluding that portion under the control of
the Company. The Assignor and the Company acknowledge and agree that the
Assignee has designated U.S. Bank National Association (the "Custodian") as its
custodian of the Mortgage Files pursuant to a Custodial Agreement between the
Assignee and the Custodian.
3. Representations. Warranties and Covenants of the Assignor. The Assignor
warrants and represents to, and covenants with, the Assignee that:
(a) The Assignor has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignor's business and
will not conflict with, or result in a breach of any of the terms, conditions or
provisions of the Assignor's organizational documents or by-laws or any legal
restriction, or any material agreement or instrument to which the Assignor is
now a party or by which it is bound, or result in the violation of any law,
rule, regulation, order, judgment or decree to which the Assignor or its
property is subject. The execution, delivery and performance by the Assignor of
this AAR Agreement and the consummation by it of the transactions contemplated
hereby, have been duly authorized by all necessary action on the part of the
Assignor. This AAR Agreement has been duly executed and delivered by the
Assignor and, upon the due authorization, execution and delivery by the Assignee
and the Company, will constitute the valid and legally binding obligation of the
Assignor enforceable against the Assignor in accordance with its terms except as
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Assignor of this AAR Agreement and
the consummation of the transactions contemplated hereby 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 hereof. 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 (i) with
respect to any of the transactions contemplated by this AAR Agreement or (ii)
with respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and, if determined adversely to the
Assignor, will materially and adversely affect its ability to perform its
obligations under this AAR Agreement;
(b) The Assignor is the lawful owner of the Assigned Loans with the
full right to transfer the Assigned Loans and all of its interests, rights and
obligations under the Agreements free from any and all encumbrances, liens,
pledges, participation interests, claims or security interests of any nature
encumbering the Assigned Loans. Except for the sale to the Assignee, the
Assignor has not assigned or pledged any Mortgage Note related to any Assigned
Loan or the related Mortgage or any interest or participation therein;
(c) The Assignor has not satisfied, canceled, or subordinated in whole
or in part, or rescinded the Mortgage related to any Assigned Loan, and the
Assignor has not released the Mortgaged Property from the lien of the Mortgage
related to any Assigned Loan, in whole or in part, nor has the Assignor executed
an instrument that would effect any such release, cancellation, subordination,
or rescission;
(d) The Assignor has not taken any action that would serve to impair
or encumber the Assignor's ownership interest in the Assigned Loans since the
applicable date of the original sale to Assignor;
(e) The Assignor has not received notice of, and has no knowledge of,
any offsets, counterclaims or other defenses available to the Company with
respect to the Agreements or the Assigned Loans;
2
(f) The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreements, including
without limitation the transfer of the servicing obligations under the EMC
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, or defaults under, the Agreements;
(g) Neither the Assignor nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Assigned Loans, any
interest in the Assigned Loans or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Assigned Loans, any interest in the Assigned Loans or any other similar security
from, or otherwise approached or negotiated with respect to the Assigned Loans,
any interest in the Assigned 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 Assigned Loans under the Securities Act of
1933, as amended (the "Securities Act") or which would render the disposition of
the Assigned Loans a violation of Section 5 of the Securities Act or require
registration pursuant thereto;
(h) 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;
(i) With respect to each of the Assigned Loans, the representations
and warranties contained in Section 3.02 of the EMC Servicing Agreement, to the
extent they relate to matters arising on or after the date such Assigned Loan
was purchased by EMC from the Company (the "Original Closing Date"), are true
and correct as of the date of this AAR Agreement. For purposes of making the
representations and warranties contemplated in the foregoing sentence, each
reference in Section 3.02 of the EMC Servicing Agreement (i) to the "Cut-off
Date" shall he 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 A
hereto and any other schedules of the Assigned Loans, provided in writing or
electronically, providing any data with respect to the Assigned Loans of the
type described in the definition of "Mortgage Loan Schedule" provided in the EMC
Servicing Agreement (other than any schedules that were updated by the Assignor
prior to the date of this AAR Agreement), (iii) to the "Closing Date" shall be
deemed to be a reference to the date of this AAR Agreement and (iv) to the
"Seller's knowledge" shall be deemed to be a reference to the Assignor's
knowledge. For purposes of clarification, the Assignor shall not be deemed to
have breached or violated any representation or warranty contemplated in this
paragraph in the event that such representation or warranty was not true or
correct as of the Original Closing Date (an "Original Breach") unless such
Original Breach was cured prior to the date hereof; and
(j) With respect to the Assigned Loans, the matters set forth in
Schedule I attached hereto are true and correct as of the date of this AAR
Agreement.
It is understood and agreed that the representations and warranties
set forth in this Section 3 shall survive delivery of the respective Assigned
Loans to the Assignee or its designee and shall inure to the benefit of the
Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. It is understood and agreed that the Assignor shall
be deemed not to have made the representations and warranties in this Section 3
with respect to, and to the extent of, representations and warranties made as to
the matters covered in this Section 3 by the Company in the Agreements. It is
further understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained herein, and no other
affiliate of the Assignor has made any representations or warranties of any kind
to the Assignee.
3
4. Repurchase of Assigned Loans. The Assignor and the Assignee understand
and agree that:
(a) Upon the discovery by the Assignor or the Assignee and its assigns
of a breach of any representation, warranty, or covenant under this AAR
Agreement, the party discovering such breach shall give prompt written notice to
the other parties to this AAR Agreement. Upon discovery or notice of any breach
by the Assignor of any representation, warranty, or covenant under this AAR
Agreement that materially and adversely affects the value of any Assigned 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 Assigned Loan or the interest of the Assignee therein if
the Assignee incurs 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, unless
notified by the Assignee, repurchase the Assigned Loan no later than
seventy-five (75) days from the date on which it is notified of the breach in
the same manner set forth in Section 3.03 of the EMC Servicing Agreement. The
repurchase price (the "Repurchase Price") for a repurchase by Assignor shall be
calculated by (i) multiplying the percentage used in calculating the purchase
price for the applicable Assigned Loan pursuant to the PPTL by an amount equal
to the then outstanding principal balance of such Assigned Loan as of the date
of such repurchase, plus (ii) accrued interest on such Assigned Loan from the
date on which interest had last been paid through the last day of the month in
which such repurchase takes place, plus (iii) the amount of any outstanding
advances owed to the Servicer, plus (iv) all reasonable costs and expenses
incurred by the Assignee arising out of or based upon such breach, including,
without limitation, reasonable costs and expenses incurred in the enforcement of
the Assignor's repurchase obligation hereunder. Any repurchase of an Assigned
Loan or Loans pursuant to the foregoing provisions of this Section 4 shall be
accomplished by wire transfer of the amount of the Repurchase Price to an
account designated by the Assignee. In addition to such repurchase or
substitution obligation, the Assignor shall indemnify the Assignee and hold it
harmless against any losses, damages, penalties, fines, forfeitures, reasonable
and necessary legal fees and related costs, judgments, and other costs and
expenses based on or grounded upon, or resulting from a breach of a
representation or warranty under this AAR Agreement or a violation of any other
provision hereof.
(b) In the event the Company has breached a representation or warranty
under the EMC Servicing Agreement or this AAR Agreement that is substantially
identical to a representation or warranty by the Assignor under this AAR
Agreement, the Assignee shall first proceed against the Company under the EMC
Servicing Agreement. In the event that any Assigned Loan is repurchased by the
Company pursuant to this Section, the Assignor shall promptly remit, upon
written notice from the Assignee, to the Assignee an amount equal to the amount
by which the Repurchase Price payable under Section 4(a) hereof exceeds the
amount payable by the Company under the EMC Servicing Agreement upon such
repurchase. If the Company does not, within ninety (90) days after notification
of the breach, cure such breach or repurchase the Assigned Loan in the same
manner as set forth in Section 3.03 of the EMC Servicing Agreement, the Assignee
shall be entitled to enforce the obligations of the Assignor hereunder to cure
such breach or to purchase the Assigned Loan from the Assignee, and/or to
indemnify Assignee, except to the extent such breach arose prior to the
applicable Original Closing Date. In such event, the Assignor shall succeed to
the rights of the Assignee to enforce the obligations of the Company to cure
such breach or repurchase such Assigned Loan under the terms of the EMC
Servicing Agreement with respect to such Assigned Loan. Upon repurchase of an
Assigned Loan by the Assignor pursuant to this Section, the Assignee shall cause
the related Mortgage File previously delivered to the Assignee to be returned to
the Assignor or its designee at the direction of the Assignor no later than
three (3) Business Days after such repurchase.
4
(c) Except as specifically set forth herein, the Assignee shall have
no responsibility to enforce any provision of the Agreements, to oversee
compliance thereof, or to take notice of any breach or default thereof.
(d) The obligations to the Assignee in this Section 4 shall survive
any sale or assignment of the Assigned Loans by the Assignee to any third party
and shall be independently enforceable by the Assignee.
5. Representations. Warranties and Covenants of the Assignee. The Assignee
warrants and represents to, and covenants with, the Assignor and the Company
that:
(a) The Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions contemplated
by this AAR Agreement is in the ordinary course of the Assignee's business and
will not conflict with, or result in a breach of, any of the terms, conditions
or provisions of the Assignee's charter or by-laws or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject. The
execution, delivery and performance by the Assignee of this AAR Agreement and
the consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary action on the part of the Assignee. This AAR
Agreement has been duly executed and delivered by the Assignee and, upon the due
authorization, execution and delivery by the Company and the Assignor, will
constitute the valid and legally binding obligation of the Assignee enforceable
against the Assignee in accordance with its terms except as enforceability may
be limited by bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and by general principles of equity regardless of whether enforceability is
considered in a proceeding in equity or at law. The execution, delivery and
performance by the Assignee of this AAR Agreement and the consummation of the
transactions contemplated hereby 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 hereof.
There are no actions, suits or proceedings pending or, to the knowledge of the
Assignee, threatened, before or by any court, administrative agency, arbitrator
or governmental body (i) with respect to any of the transactions contemplated by
this AAR Agreement or (ii) with respect to any other matter that in the judgment
of the Assignee will be determined adversely to the Assignee and, if determined
adversely to the Assignee, will materially and adversely affect its ability to
perform its obligations under this AAR Agreement;
(b) The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of the Agreements solely with respect to the
Assigned Loans, and from and after the date hereof, the Assignee assumes for the
benefit of each of the Company and the Assignor all of the Assignor's
obligations as purchaser or owner thereunder solely with respect to the Assigned
Loans;
(c) The Assignee has been furnished with all information regarding the
Assigned Loans that it has requested from the Assignor or the Company; and
(d) The Assignee's address for purposes of all notices and
correspondence related to the Assigned Loans and the Agreements is:
Bank of America, National Association
Hearst Tower
NC 1-027-21-04
5
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Managing Director
The Assignee's wire transfer instructions for purposes of all remittances
and payments related to the Assigned Loans and the Agreements is:
Bank Name: Bank of America, Dallas TX
Account #: 004770451666
Account Name: BAMCC/NMCC
ABA#: ▇▇▇▇▇▇▇▇▇
Reference: NFB Trade (▇▇▇▇▇ Fargo Loans)
Attn: ▇▇▇▇ ▇▇▇▇▇▇
6 Representations and Warranties of the Company. The Company warrants and
represents to, and covenants with, the Assignee that:
(a) The representations and warranties contained in Section 3.01 of
the EMC Servicing Agreement are deemed to be made as of the date of this AAR
Agreement (as modified in Section 10(b)(i) hereof), and all such representations
and warranties are true and correct as of the date of this AAR Agreement; the
representations and warranties contained in Section 3.02 of the EMC Servicing
Agreement were true and correct as of the related Original Closing Date;
(b) The Company has serviced the Assigned Loans in accordance with the
terms of the EMC Servicing Agreement, provided accurate statements and reports
required thereunder and otherwise complied with all covenants and obligations
thereunder, in each case, in all material respects;
(c) No offsets, counterclaims or other defenses are available to it
with respect to the Agreements or the Assigned Loans;
(d) It has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Agreements or the Assigned Loans. It 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 or
defaults under, the Agreements or the Assigned Loans;
(e) Since the Original Closing Date, neither it nor anyone acting on
its behalf has offered, transferred, pledged, sold or otherwise disposed of the
Assigned Loans, any interest in the Assigned Loans or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Assigned Loans, any interest in the Assigned Loans or any
other similar security from, or otherwise approached or negotiated with respect
to the Assigned Loans, any interest in the Assigned Loans or any other similar
security with, any person in any manner, or made by general solicitation by
means of general advertising or in any other manner, or taken any other action
that would constitute a distribution of the Assigned Loans under the 1933 Act or
that would render the disposition of the Assigned Loans a violation of Section 5
of the 1933 Act or require registration pursuant thereto.
(f) The Company 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 Assigned Loans; and
(g) This AAR Agreement has been duly executed and delivered by the
Company and, upon the due authorization, execution and delivery by the Assignee
6
and the Assignor, will constitute the valid and legally binding obligation of
the Company enforceable against the Company in accordance with its terms except
as enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and by general principles of equity regardless of
whether enforceability is considered in a proceeding in equity or at law. The
execution, delivery and performance by the Company of this AAR Agreement 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 hereof.
7. Accuracy of the Agreements. The Company and the Assignor represent and
warrant to the Assignee that (i) attached hereto as Exhibit B are a true,
accurate and complete copy of each of the Agreements and all amendments and
modifications thereto with respect to the Assigned Loans, if any, (ii) the
Agreements are in full force and effect on the date hereof, (iii) the Agreements
have not been amended or modified in any respect with respect to the Assigned
Loans, except as set forth in this AAR Agreement, and (iv) no notice of
termination has been given to the Company under the Agreements.
8. No Solicitation. The Assignor shall not take any action to solicit the
refinancing of any Assigned Loan or any Mortgagor of any Assigned Loan. It is
understood and agreed that none of (i) the solicitations or related activities
which the Company is permitted to conduct under the applicable Agreement, (ii)
promotions undertaken by the Assignor or its agents or affiliates which are
directed to the general public at large, including, without limitation, mass
mailings, newspaper, radio, television advertisements, or (iii) servicing the
refinancing needs of a Mortgagor who, without solicitation, contacts the
Assignor or its agents or affiliates in connection with the refinance of such
Mortgage or Assigned Loan, shall constitute solicitation under this Section.
9. Master Servicer. The Company hereby acknowledges that a master servicer
may be appointed with respect to the Assigned Loans and such master servicer
shall have the right to enforce all obligations of the Company, as they relate
to the Assigned Loans, under the EMC Servicing Agreement.
10. Recognition of Assignee; Reconstitution of Servicing; Regulation AB.
(a) From and after the date of this AAR Agreement, the Company shall
note the transfer of the Assigned Loans as of the Assigned Loans Cut-off Date to
the Assignee in its books and records, the Company shall recognize the Assignee
as the owner of the Assigned Loans. Notwithstanding anything to the contrary in
the Agreements, however, the Company shall service the Assigned Loans for the
benefit of the Assignee pursuant to the terms of that certain Second Amended and
Restated Master Seller's Warranties and Servicing Agreement, dated as of May 1,
2006, by and between Assignee and the Company (as amended, the "Bank of America
Servicing Agreement"), only insofar as it relates to the servicing of "Mortgage
Loans" as defined therein, including but not limited those provisions related to
sales and reconstitutions of mortgage loans, and all provisions related to
Regulation AB compliance, including servicer-- and originator-- related
provisions, which such terms are incorporated herein by reference. It is the
intention of the Assignor, the Company and the Assignee that the Bank of America
Servicing Agreement, to the extent provided in the preceding sentence, and the
Agreements in all other respects, shall be binding upon and inure to the benefit
of the Company and the Assignee and their respective successors and assigns.
(b) In connection with the execution of this AAR Agreement, the
Company and the Assignee hereby agree that the following modifications to the
Bank of America Servicing Agreement shall apply only as to the Assigned Loans:
7
i) Section 3.01(a), Due Organization and Authority, is
hereby modified by replacing such section, in its entirety, with the
following:
(a) Due Organization and Authority.
The Company is a national banking association duly
organized, validly existing and in good standing under the
laws of the United States and has all licenses necessary to
carry on its business as now being conducted and is
licensed, qualified and in good standing in each state where
a Mortgaged Property is located if the laws of such state
require licensing or qualification in order to conduct
business of the type conducted by the Company, and in any
event the Company is in compliance with the laws of any such
state to the extent necessary to ensure the enforceability
of the related Mortgage Loan and the servicing of such
Mortgage Loan in accordance with the terms of this
Agreement; the Company has the full power and authority to
execute and deliver this Agreement and to perform its
obligations in accordance herewith; the execution, delivery
and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by
the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized;
this Agreement evidences the valid, binding and enforceable
obligation of the Company; and all requisite action has been
taken by the Company to make this Agreement valid and
binding upon the Company in accordance with its terms;
ii) Section 4.02, Liquidation of Mortgage Loans, 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".
iii) Section 6.05, Annual Independent Public Accountants'
Servicing Report, is hereby deleted in its entirety and replaced with
"[RESERVED]".
iv) Section 6.06, Report on Assessment of Compliance and
Attestation, is hereby modified by deleting the first paragraph in its
entirety and replacing it with "On or before March 1 of each calendar
year, commencing in 2008, the Company shall:".
v) Section 12.06, Notices, 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".
vi) A new Section 4.34, Arbitration, is hereby added as
follows:
Section 4.34 Arbitration
Notwithstanding the terms of any Assigned Loan, in the event
that any such Assigned Loan requires the related Mortgagor
to submit to arbitration to resolve any dispute arising out
of or relating in any way to the mortgage loan transaction,
the Assignee hereby directs the Company and the Company
hereby agrees to waive such requirement.
8
11. Applicable Law. EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW, THIS AAR
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS OF NEW YORK (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW) OR THE CONFLICTS OF LAWS PROVISIONS OF ANY
OTHER JURISDICTION.
12. Expenses. Each party will pay any commissions it has incurred and the
reasonable fees of its attorneys in connection with the negotiations for,
documenting of and closing of the transactions contemplated by this AAR
Agreement.
13. No Waiver. No term or provision of this AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
14. Successors and Assigns. This AAR Agreement shall inure to the benefit
of the successors and assigns of the parties hereto. Any entity into which the
Assignor, the Assignee or the Company may be merged or consolidated shall,
without the requirement for any further writing, be deemed the Assignor, the
Assignee or the Company, respectively, hereunder.
15. Survival. This AAR Agreement shall survive the conveyances of the
Assigned Loans as contemplated in this AAR Agreement.
16. Execution in Counterparts. This AAR Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original and all such counterparts shall constitute one and the same
instrument.
17. Conflicts. In the event that any provision of this AAR Agreement
conflicts with any provision of the Agreements with respect to the Assigned
Loans, the terms of this AAR Agreement shall control.
[SIGNATURES ON THE FOLLOWING PAGE]
9
IN WITNESS WHEREOF, the parties have caused this AAR Agreement be executed
by their duly authorized officers as of the date first above written.
BANK OF AMERICA, NATIONAL
NORTH FORK BANK ASSOCIATION
Assignor Assignee
By: ___________________________ By: _______________________________
Name: ___________________________ Name: _______________________________
Its: ___________________________ Its: _______________________________
▇▇▇▇▇ FARGO BANK, N.A.
Company
By: _______________________________
Name: _______________________________
Its: _______________________________
[Signature page for NFB-BOA AAR (WF-EMC1) March 2007 AAR]
EXHIBIT A
ASSIGNED LOAN SCHEDULE
[Attached hereto]
Exhibit A-1
EXHIBIT B
EXECUTION COPY OF THE AGREEMENTS
[Attached hereto]
Exhibit B-1
SCHEDULE I
ADDITIONAL MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
A. No Violation of Environmental Laws.
The Mortgaged Property is free from any and all toxic or hazardous
substances and there exists no violation of any local, state or
federal environmental law, rule or regulation.
B. Compliance with Anti-Money Laundering Laws.
To the best of the Assignor's knowledge upon reasonable due diligence,
the Company has complied with all anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the "Anti-Money Laundering Laws"), and the Company has
established an anti-money laundering compliance program in compliance
with the Anti-Money Laundering Laws.
Schedule I-1