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Exhibit 10.3(B)
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| EXECUTION COPY |
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION
AND RECOGNITION AGREEMENT (the "Agreement"), dated
October 30, 2006, is
among Bank of America,
National Association,
a national
banking association
("Assignor"),
Banc of America Funding Corporation, a
Delaware corporation
("BAFC"), U.S. Bank National Association, a national
banking association,
as trustee of the Banc
of America Funding
2006-7 Trust
("Assignee"), Wells
Fargo Bank, N.A., a
national banking
association
("Wells
Fargo Bank"), as
servicer and
acknowledged by Wells Fargo Bank, N.A. as master
servicer of the Banc of America Funding 2006-7 Trust.
WHEREAS, pursuant to that certain Flow
Servicing Rights
Purchase and Sale
Agreement, dated as of
July 1, 2006 (the "Purchase Agreement"), by and between
the Assignor and Wells Fargo Bank, the Assignor has sold,
and Wells Fargo
Bank
has purchased,
the servicing
rights related to the mortgage
loans listed on
Exhibit A hereto (the "Mortgage Loans");
WHEREAS, Wells
Fargo Bank has agreed to service
the Mortgage Loans in
accordance with that certain Servicing Agreement, dated as of July 1, 2006 (the
"Servicing
Agreement"), by and
between the Assignor and Wells Fargo Bank
(attached hereto in Appendix I);
WHEREAS, on the date hereof, the Assignor is transferring all of
its right,
title and interest in and to the Mortgage Loans to BAFC;
WHEREAS, on the date
hereof, BAFC is
transferring all of its right, title
and interest in and to the Mortgage Loans to the Assignee; and
WHEREAS, on the date hereof, Wells Fargo Bank, 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 Servicing Agreement (other than
the rights of the Assignor to indemnification thereunder).
The
Assignor specifically reserves and does not assign to BAFC or the
Assignee any right, title and interest in, to or under any mortgage
loan subject
to the Servicing Agreement other than the Mortgage Loans.
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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 Wells Fargo Bank with
respect to the
Purchase Agreement,
the Servicing Agreement or the Mortgage
Loans;
c. The Assignor has not waived or agreed to any waiver under,
or agreed
to any amendment or other modification of, the Purchase Agreement,
the Servicing
Agreement or the Mortgage Loans, including without limitation the transfer of
the servicing
obligations under the
Servicing Agreement.
The Assignor has
no
knowledge of, and has not received notice of, any waivers under or
amendments or
other modifications
of, or assignments of rights or
obligations
under, the
Purchase Agreement, the Servicing Agreement or the Mortgage Loans;
and
d. Neither the
Assignor nor anyone
acting on its behalf
has offered,
transferred, pledged,
sold or otherwise
disposed of the
Mortgage Loans,
any
interest in the Mortgage Loans or any other similar security to, or solicited
any offer to buy or
accept a transfer, pledge or other disposition of the
Mortgage Loans, any interest in the Mortgage Loans or any other
similar security
from, or otherwise
approached or negotiated with respect to the Mortgage Loans,
any interest in the
Mortgage Loans or any
other similar
security with, any
person in any manner,
or made any
general solicitation by means of general
advertising or in any
other manner, or taken any other action which would
constitute a distribution of the Mortgage Loans under the
Securities Act of 1933
(the "33 Act") or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 33 Act or require registration
pursuant thereto.
3.
From and after the date hereof, Wells Fargo Bank shall note the
transfer
of the Mortgage Loans to the Assignee in its books and records,
and Wells Fargo
Bank shall
recognize the Assignee as the owner of the Mortgage Loans.
Notwithstanding
anything to the
contrary contained in Section 9.01 of the
Servicing Agreement,
Wells Fargo Bank shall service the Mortgage Loans pursuant
to the Servicing
Agreement as modified by Section 6 of this Agreement, for the
benefit of the Assignee.
4.
Wells Fargo Bank
hereby represents
and warrants to each of the other
parties hereto (i) that the representations and warranties of Wells Fargo
Bank
in Section 3.01 of the Servicing Agreement are true and correct in
all material
respects as of the
date hereof
with the same force and effect as though
expressly made at
and/or as of the date
hereof, (ii) that it
has serviced the
Mortgage Loans in
accordance
with the terms of the
Servicing Agreement,
and
(iii) that it has taken no action nor omitted to take any required action the
omission of which would have the effect of impairing any mortgage insurance or
guarantee on the Mortgage Loans.
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5.
In accordance with
Sections 2.03 and 9.01
of the Servicing
Agreement,
the Assignor
hereby instructs Wells Fargo Bank, and Wells Fargo Bank hereby
agrees, to release from its custody and deliver the Mortgage File
(as defined in
the Servicing Agreement) for each Mortgage Loan to the Assignee,
or a custodian
on its behalf under the Pooling Agreement, at the address set forth
in Section 7
herein on or before the date hereof.
6.
Wells Fargo Bank, BAFC
and the Assignee
hereby agree to the
following
modifications to the Servicing Agreement:
a.
Article I.
Article I is hereby
modified by deleting the
definition of "Principal Prepayment Period" and replacing
it with the
following:
"The calendar
month preceding the month in which the
related
Remittance Date occurs."
b.
Section 4.01. Section 4.01 is hereby modified by deleting the
reference to "(except for reduction resulting from actual
payments of principal)" from the second paragraph therein.
c.
Section 4.03. Section 4.03 is hereby modified to read as
follows:
"Continuously from the respective Cut-off Date until the
principal and interest on all Mortgage Loans are paid in full
or the Mortgage Loans have been fully liquidated (with respect
to Mortgage Loans that remain subject to this Agreement
pursuant to Section 9.01 herein), in accordance with this
Agreement and Accepted Servicing Practices, the Servicer shall
proceed diligently to collect all payments due under each of
the
Mortgage Loans when the same shall become due and payable
and shall take special care in ascertaining and estimating
Escrow Payments and all other charges that will become due and
payable with respect to the Mortgage Loan and the Mortgaged
Property, to the end that the installments payable by the
Mortgagors will be sufficient to pay such charges as and when
they become due and payable."
d.
Section 5.01. Section 5.01 is hereby modified by deleting "the
second Business Day following" from the first sentence of the
second paragraph.
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 Servicer shall furnish to the Owner (or any master
servicer) a delinquency report in the form set forth in
Exhibit D-1, a monthly remittance advice in the form set forth
in Exhibit D-2, and a realized loss report in the form set
forth in Exhibit D-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 D-1 is
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<PAGE>
limited to that which is readily available to the Servicer and
is mutually agreed to by the Servicer and the Owner (or any
master servicer)."
The
exhibits referenced in this Section 6 are attached
to this Agreement as Exhibit B hereto.
f.
Section 6.04. Section 6.04 is hereby modified by deleting the
references to "the Owner or any Master Servicer and Depositor"
and replacing them with "the Master Servicer and the Master
Servicer shall deliver to the Depositor."
g.
Section 6.06. Section 6.06 is hereby modified by:
(1) deleting the references to "the Owner, any Master Servicer
and any Depositor" and replacing them with "the Master
Servicer and the Master Servicer shall deliver to the
Depositor"; and
(2) inserting the following at the end of the fifth full
paragraph
therein:
Neither the Owner nor any Depositor or Master Servicer will
request delivery of a certification under clause (d) above
unless a Depositor or Master Servicer is required under the
Exchange Act to file an annual report on Form 10-K with
respect to an issuing entity whose asset pool includes the
Mortgage Loans."
h.
Section 9.01. Section 9.01 is hereby modified by:
(1) modifying Section 9.01(g)(iii) to read as follows:
"In addition to such information as the Servicer, as servicer,
is obligated to provide pursuant to other provisions of this
Agreement, not later than ten (10) days prior to the deadline
for the filing of any distribution report on Form 10-D in
respect of any Securitization Transaction that includes any of
the Mortgage Loans serviced by the Servicer or any
Subservicer, the Servicer or such Subservicer, as applicable,
shall, to the extent the Servicer or such Subservicer has
knowledge, provide to the party responsible for filing such
report (including, if applicable, the Master Servicer) notice
of the occurrence of any of the following events along with
all information, data, and materials related thereto as may be
required to be
included in the related distribution report on
Form 10-D (as specified in the provisions of Regulation AB
referenced below):
(A) any material modifications, extensions or waivers
of pool asset terms, fees, penalties or payments during the
distribution period or that have cumulatively become material
over time (Item 1121(a)(11) of Regulation AB);
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(B) material breaches of pool asset representations
or warranties or transaction covenants (Item 1121(a)(12) of
Regulation AB); and
(C) information regarding new asset-backed securities
issuances backed by the same pool assets, any pool asset
changes (such as, additions, substitutions or repurchases),
and any material changes in origination, underwriting or other
criteria for acquisition or selection of pool assets (Item
1121(a)(14) of Regulation AB).
(iv) The Servicer shall provide to the Master Servicer and the
Master Servicer shall deliver to the Depositor, evidence of
the authorization of the person signing any certification or
statement, copies or other evidence of Fidelity Bond Insurance
and Errors and Omission Insurance policy, financial
information and reports, and such other information related to
the Servicer or any Subservicer or the Servicer or such
Subservicer's performance hereunder."; and
(2) modifying Section 9.01(k) by
deleting the word "Investor" and
replacing it with "party designated by the Owner"
i.
Section 10.01. Section 10.01 is hereby modified by:
(1) replacing the word "sixty (60)" with "thirty (30)" in
Section 10.01(b) and inserting the following thereafter:
"(or, in the case of any failure by the Servicer to perform
its obligations under Section 6.04 or Section 6.06, ten
(10))"; and
(2) replacing the word "fifteen (15)" with "ten (10)" in
Section 10.01(j).
7.
The Assignee's
address for purposes
of all notices and
correspondence
related to the Mortgage Loans and the Purchase Agreement and
Servicing Agreement
is:
U.S. Bank National Association
209 S. LaSalle Street, Suite 300
Chicago, Illinois 60604
Attention: Structured Finance Trust Services, BAFC 2006-7
BAFC's address for
purposes of all notices and correspondence related to
the Mortgage Loans is:
Banc of America Funding Corporation
214 North Tryon Street
Charlotte, North Carolina 28255
Attention: General Counsel and Chief Financial Officer
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8.
Wells Fargo Bank shall remit all funds pursuant to the following wire
instructions:
WELLS FARGO BANK, N.A.
ABA# 121000248
FOR CREDIT TO:
SAS CLEARING, ACCT: 3970771416
FFC TO: BAFC 2006-7 #50960000
9.
Wells Fargo Bank hereby acknowledges that Wells Fargo Bank,
N.A. has
been appointed
as the Master
Servicer of the
Mortgage Loans
pursuant to the
Pooling Agreement,
and therefore has the
right to enforce all
obligations of
Wells Fargo Bank, as
they relate to the
Mortgage Loans,
under the Servicing
Agreement. Such right
will include, without
limitation, the right
to exercise
any and all rights of the Assignor (but not the obligations) under
the Servicing
Agreement to monitor and enforce the obligations of Wells Fargo
Bank thereunder,
the right to terminate
Wells Fargo Bank under the Servicing Agreement upon the
occurrence of an
event of default thereunder, the right to receive all
remittances required
to be made by Wells Fargo Bank under the Servicing
Agreement, the right
to receive all monthly
reports and other data required to
be delivered by Wells
Fargo Bank under the
Servicing Agreement,
the right to
examine the books and records of Wells Fargo Bank, indemnification rights, and
the right to exercise certain rights of consent and approval
relating to actions
taken by Wells Fargo Bank.
10.
Notwithstanding
any provision of the Servicing Agreement to the
contrary, and
solely with respect to the Mortgage Loans, any Prepayment
Penalties collected
by Wells Fargo Bank shall be remitted to the Master
Servicer.
[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/
Bruce W. Good
----------------------------------------
Name: Bruce W.
Good
Title: Principal
U.S. Bank National
Association, as Assignee
By: /s/
Melissa A. Rosal
----------------------------------------
Name: Melissa A.
Rosal
Title: Vice President
Banc of America Funding Corporation
By: /s/
Scott Evans
----------------------------------------
Name:
Scott Evans
Title: Senior Vice President
Wells Fargo Bank, N.A., as servicer
By: /s/
Laurie McGoogan
----------------------------------------
Name: Laurie
McGoogan
Title: Vice President
Acknowledged and Agreed as
of the date first written above:
Wells Fargo Bank, N.A., as Master Servicer
By: /s/
Peter A. Gobell
---------------------------------------
Name: Peter A.
Gobell
Title: Vice President
[Assignment Assumption and Recognition Agreement for BAFC
2006-7]
<PAGE>
EXHIBIT
A
Schedule of Mortgage Loans
(See the Free Writing
Prospectus filed and accepted by the Securities and
Exchange Commission on October 27, 2006, with a filing date of
October 30, 2006 and accession number 0000950136-06-008947)
A-1
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EXHIBIT B
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Exhibit D-1 Standard File Layout - Delinquency Reporting
<TABLE>
<CAPTION>
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Column/Header Name
Description
Decimal Format
Comment
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<S> <C>
SERVICER_LOAN_NBR
A unique number assigned to a loan by the
Servicer. This may be different than the
LOAN_NBR
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LOAN_NBR
A unique identifier assigned to each loan
by the originator.
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CLIENT_NBR
Servicer Client Number
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SERV_INVESTOR_NBR
Contains a unique number as assigned by
an external servicer to identify a group
of loans in their system.
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BORROWER_FIRST_NAME
First Name of the Borrower.
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BORROWER_LAST_NAME
Last name of the borrower.
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PROP_ADDRESS
Street Name and Number of Property
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PROP_STATE
The state where the
property located.
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PROP_ZIP
Zip code where the property is located.
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BORR_NEXT_PAY_DUE_DATE
The date that the borrower's next payment
MM/DD/YYYY
is due to the servicer at the end of
processing
cycle, as reported by Servicer.
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LOAN_TYPE
Loan Type (i.e. FHA, VA, Conv)
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BANKRUPTCY_FILED_DATE
The date a particular bankruptcy claim was
MM/DD/YYYY
filed.
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BANKRUPTCY_CHAPTER_CODE
The chapter under which the bankruptcy
was filed.
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BANKRUPTCY_CASE_NBR
The case number assigned by the court to
the bankruptcy filing.
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POST_PETITION_DUE_DATE
The payment due date once the bankruptcy
MM/DD/YYYY
has been approved by the courts
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BANKRUPTCY_DCHRG_DISM_DATE
The Date The Loan Is Removed From
MM/DD/YYYY
Bankruptcy. Either by Dismissal, Discharged
and/or a Motion For Relief Was Granted.
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LOSS_MIT_APPR_DATE
The Date The Loss Mitigation Was Approved
MM/DD/YYYY
By The Servicer
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LOSS_MIT_TYPE
The Type Of Loss Mitigation Approved For A
Loan Such As;
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LOSS_MIT_EST_COMP_DATE
The Date The Loss Mitigation /Plan Is
MM/DD/YYYY
Scheduled To End/Close
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LOSS_MIT_ACT_COMP_DATE
The Date The Loss Mitigation Is Actually
MM/DD/YYYY
Completed
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FRCLSR_APPROVED_DATE
The date DA Admin sends a letter to the
MM/DD/YYYY
servicer with instructions to begin
foreclosure proceedings.
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ATTORNE
