ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
EXECUTION
VERSION
Exhibit
99.11a
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment”),
dated of September 1, 2007 is entered into among Xxxxxx Xxxxxxx Capital I Inc.,
a Delaware corporation (the “Depositor”), Xxxxxx Xxxxxxx Mortgage Capital
Holdings LLC, successor by merger to Xxxxxx Xxxxxxx Mortgage Capital Inc.
(“MSMCH”), US Bank, N.A. as seller (the “Seller”), and
acknowledged by LaSalle Bank National Association, as trustee (the
“Trustee”) of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-13 (the
“Trust”).
RECITALS
WHEREAS
MSMCH and the Seller have entered into a certain Fifth Amended and Restated
Mortgage Loan Purchase And Warranties Agreement, dated as of April 1, 2007
(as
amended or modified to the date hereof, the “Agreement”), pursuant to
which MSMCH has acquired certain Mortgage Loans pursuant to the terms of the
Agreement;
WHEREAS
the Depositor has agreed, on the terms and conditions contained herein, to
purchase from MSMCH certain of the Mortgage Loans (the “Specified Mortgage
Loans”) which are subject to the provisions of the Agreement and are listed
on the mortgage loan schedule attached as Exhibit I hereto (the “Specified
Mortgage Loan Schedule”); and
WHEREAS
the Trustee, on behalf of the Trust, has agreed, on the terms and conditions
contained herein, to purchase from the Depositor the Specified Mortgage
Loans;
NOW,
THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties agree as follows:
|
1.
|
Assignment
and Assumption
|
(a) On
and as
of the date hereof, MSMCH hereby sells, assigns and transfers to the Depositor
all of its right, title and interest in the Specified Mortgage Loans and all
rights and obligations related thereto as provided under the Agreement to the
extent relating to the Specified Mortgage Loans, the Depositor hereby accepts
such assignment from MSMCH (the “First Assignment and Assumption”), and
the Seller hereby acknowledges the First Assignment and Assumption.
MSMCH
specifically reserves and does not assign to the Depositor hereunder any and
all
right, title and interest in, to and under and all obligations of MSMCH with
respect to any Mortgage Loans subject to the Agreement which are not the
Specified Mortgage Loans.
(b) On
and as
of the date hereof, immediately after giving effect to the First Assignment
and
Assumption, the Depositor hereby sells, assigns and transfers to the Trustee,
on
behalf of the Trust, all of its right, title and interest in the Specified
Mortgage Loans and all rights and obligations related thereto as provided under
the Agreement to the extent relating to the Specified Mortgage Loans, and the
Trustee, on behalf of the Trust, hereby accepts such assignment from the
Depositor (the “Second Assignment and Assumption”), and the Seller hereby
acknowledges the Second Assignment and Assumption.
(c) On
and as
of the date hereof, MSMCH represents and warrants to the Depositor and the
Trustee that MSMCH has not taken any action that would serve to impair or
encumber the respective ownership interests of the Depositor and the Trustee
in
the Specified Mortgage Loans since the date of MSMCH’s acquisition of the
Specified Mortgage Loans.
|
2.
|
Recognition
of Trustee
|
(a) From
and
after the date hereof, both MSMCH and the Seller shall note the transfer of
the
Specified Mortgage Loans to the Trustee, in their respective books and records
and shall recognize the Trustee, on behalf of the Trust, as of the date hereof,
as the owner of the Specified Mortgage Loans. It is the intention of the Seller,
the Depositor, the Trustee and MSMCH that this Assignment shall be binding
upon
and inure to the benefit of the Depositor, the Trustee and MSMCH and their
respective successors and assigns.
(b) Without
in any way limiting the foregoing, the parties confirm that this Assignment
includes the rights relating to amendments or waivers under the
Agreement. Accordingly, the right of MSMCH to consent to any
amendment of the Agreement and its rights concerning waivers as set forth in
Section 23 of the Agreement shall be exercisable, to the extent any such
amendment or waiver affects the Specified Mortgage Loans or any of the rights
under the Agreement with respect thereto, solely by the Trustee as assignee
of
MSMCH.
(c) It
is expressly understood and agreed by the parties hereto that (i) this
Assignment is executed and delivered by LaSalle Bank National Association,
not individually or personally but solely on behalf of the Trust, as the
Assignee, in the exercise of the powers and authority conferred and vested
in
it, as Trustee, pursuant to the Pooling and Servicing Agreement dated as of
the
date hereof (the “Pooling and Servicing Agreement”) among the Depositor,
Xxxxx Fargo Bank, National Association, as securities administrator (the
“Securities Administrator”) and master servicer (the “Master
Servicer”), and the Trustee, (ii) each of the representations, undertakings
and agreements herein made on the part of Assignee is made and intended not
as
personal representations, undertakings and agreements by LaSalle Bank National
Association but is made and intended for the purpose of binding only
the Trust , (iii) nothing herein contained shall be construed as creating
any liability for LaSalle Bank National Association, individually or personally,
to perform any covenant (either express or implied) contained herein and
(iv) under no circumstances shall LaSalle Bank National Association be
personally liable for the payment of any indebtedness or expenses of
the Trust, or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust under
this Assignment and (v) all recourse for any payment liability or other
obligation of the Assignee shall be had solely to the assets of the
Trust.
|
3.
|
Representations
and Warranties
|
(a) The
Depositor represents and warrants that it is a sophisticated investor able
to
evaluate the risks and merits of the transactions contemplated hereby, and
that
it has not relied in connection therewith upon any statements or representations
of the Seller or MSMCH other than those contained in the Agreement or this
Assignment.
(b) Each
of
the parties hereto represents and warrants that it is duly and legally
authorized to enter into this Assignment.
(c) Each
of
the Depositor, MSMCH and the Seller represents and warrants that this Assignment
has been duly authorized, executed and delivered by it and (assuming due
authorization, execution and delivery thereof by each of the other parties
hereto) constitutes its legal, valid and binding
2
obligation,
enforceable against it in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (regardless of whether such enforcement is considered
in a
proceeding in equity or at law).
(d) The
Seller hereby restates, as of the Closing Date (as defined in the Pooling and
Servicing Agreement), the representations and warranties set forth in Sections
9.01 and 9.02 of the Agreement, with respect to each of the Specified
Mortgage Loans that were sold by it under the Agreement, to and for the benefit
of the Depositor, the Securities Administrator, the Trustee and the Trust,
and
by this reference incorporates such representations and warranties herein,
as of
such Closing Date; provided, however, that instead of the representation and
warranty set forth in Subsection 9.02(b), the Seller hereby represents and
warrants that as of the Closing Date, none of the Specified Mortgage Loans
is
contractually past due by more than 30 days.
|
4.
|
Future
Covenants
|
(a) For
the
purpose of satisfying the Depositor’s reporting obligations under the Exchange
Act with respect to any class of asset-backed securities, the Depositor hereby
requests and the Seller hereby agrees to promptly provide the Depositor and
the
Securities Administrator with written notice and descriptions of all matters
set
forth in Section 33.03(d) of the Agreement substantially in the form of Exhibit
II attached hereto.
(b) Indemnification;
Remedies. The Seller shall indemnify and MSMCH pursuant to Section
33.04 of the Agreement.
|
5.
|
Continuing
Effect
|
Except
as
contemplated hereby, the Agreement shall remain in full force and effect in
accordance with its terms.
|
6.
|
Governing
Law
|
This
Assignment and the rights and obligations hereunder shall be governed by and
construed in accordance with the internal laws of the State of New
York.
|
7.
|
Notices
|
Any
notices or other communications permitted or required under the Agreement to
be
made to MSMCH, the Depositor, the Trustee and the Seller shall be made in
accordance with the terms of the Agreement and shall be sent to the Depositor
and Trustee as follows:
In
the
case of MSMCH:
Xxxxxx
Xxxxxxx Mortgage Capital Holdings LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-13
3
With
a
copy to:
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel’s Office
In
the
case of the Depositor:
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-13
In
the
case of the Trustee:
LaSalle
Bank National Association
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:
Global Securities and Trust Services MSM 2007-13
In
the
case of the Seller:
US
Bank,
N.A.
0000 Xxxx 00xx
Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
or
to
such other address as may hereafter be furnished by the Depositor and the
Trustee to the parties in accordance with the provisions of the
Agreement.
|
8.
|
Ratification
|
Except
as
modified and expressly amended by this Assignment, the Agreement is in all
respects ratified and confirmed, and all terms, provisions and conditions
thereof shall be and remain in full force and effect.
|
9.
|
Counterparts
|
This
Assignment may be executed in counterparts, each of which when so executed
shall
be deemed to be an original and all of which when taken together shall
constitute one and the same instrument.
|
10.
|
Definitions
|
Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the Agreement.
[SIGNATURE
PAGE FOLLOWS]
4
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment the day and
year first above written.
| XXXXXX
XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC,
successor
by merger to Xxxxxx Xxxxxxx Mortgage Capital Inc.
|
|||
|
|
By:
|
/s/ Xxxxxxx Xxx | |
| Name: Xxxxxxx Xxx | |||
| Title: Vice President | |||
| XXXXXX XXXXXXX CAPITAL I INC. | |||
|
|
By:
|
/s/ Xxxxxxx Xxx | |
| Name: Xxxxxxx Xxx | |||
| Title: Vice President | |||
| US BANK, N.A. | |||
|
Date
|
By:
|
/s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | |||
| Title: First Vice President | |||
Acknowledged
and Agreed:
LASALLE
BANK NATIONAL ASSOCIATION
as
Trustee of Xxxxxx Xxxxxxx
Mortgage
Loan Trust 2007-13
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx Xxxxx
Title:
Vice President
EXHIBIT
I
Mortgage
Loan Schedule
[see
Schedule A to Pooling and Servicing Agreement]
EXHIBIT
II
Additional
Disclosure Notification
Xxxxx
Fargo Bank, N.A., as Securities Administrator and Master Servicer
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate
Trust Services – MSM 2007-13 - SEC REPORT PROCESSING
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-13
RE: **Additional
Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section 33.03(d)
of the Fifth Amended and Restated Mortgage Loan Purchase and Warranties
Agreement between Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, successor by
merger to Xxxxxx Xxxxxxx Mortgage Capital Inc. and US Bank, N.A., dated as
of
April 1, 2007, the Undersigned hereby notifies you that certain events have
come
to our attention that [will][may] need to be disclosed on Form [ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this
notification should be directed to [ ], phone
number: [ ]; email
address: [ ].
[NAME
OF
PARTY]
as
[role]
By:
__________________
Name:
Title:
