Exhibit 99.13(a)
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of February 1, 2007, is entered into among Xxxxxx
Xxxxxxx Capital I Inc., a Delaware corporation (the "Depositor"), Xxxxxx
Xxxxxxx Mortgage Capital Inc. ("MSMCI"), Wilmington Finance, Inc., as seller
(the "Seller"), and acknowledged by LaSalle Bank National Association, as
trustee (the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-3XS (the
"Trust").
RECITALS
WHEREAS MSMCI and the Seller have entered into a certain Mortgage Loan
Purchase and Warranties Agreement, dated as of November 1, 2006 (the "Purchase
Agreement"), pursuant to which MSMCI has acquired certain Mortgage Loans
pursuant to the terms of the Purchase Agreement;
WHEREAS the Depositor has agreed, on the terms and conditions contained
herein, to purchase from MSMCI certain of the Mortgage Loans (the "Specified
Mortgage Loans") which are subject to the provisions of the Purchase 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, MSMCI 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 Purchase Agreement to the extent relating to the Specified
Mortgage Loans, the Depositor hereby accepts such assignment from MSMCI (the
"First Assignment and Assumption"), and the Seller hereby acknowledges the
First Assignment and Assumption.
MSMCI 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 MSMCI with respect to any Mortgage Loans subject to the
Purchase Agreement which are not the Specified Mortgage Loans. In addition,
MSMCI specifically reserves and does not assign to the Depositor hereunder any
and all of its rights and obligations under Subsections 33.03(e) and 33.04(c)
of the Purchase Agreement, including as they relate to 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 Purchase 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, MSMCI represents and warrants to the
Depositor and the Trustee that MSMCI 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 MSMCI's
acquisition of the Specified Mortgage Loans.
2. Recognition of Trustee
(a) From and after the date hereof, both MSMCI 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 MSMCI that this
Assignment shall be binding upon and inure to the benefit of the Depositor,
the Trustee and MSMCI 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 Purchase Agreement. Accordingly, the right of MSMCI to consent to any
amendment of the Purchase Agreement and its rights concerning waivers as set
forth in Section 23 of the Purchase Agreement shall be exercisable, to the
extent any such amendment or waiver affects the Specified Mortgage Loans or
any of the rights under the Purchase Agreement with respect thereto, solely by
the Trustee as assignee of MSMCI.
(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, the Trustee and Xxxxx Fargo Bank, National Association, as
securities administrator and master servicer (the "Securities Administrator"),
(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 MSMCI other than those
contained in the Purchase 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, MSMCI 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 February 28, 2007, the
representations and warranties set forth in Subsection 9.01 of the Purchase
Agreement and the Seller hereby restates, as of November 30, 2006, the
representations and warranties set forth in Subsection 9.02 of the Purchase
Agreement (other than the representations and warranties set forth in
Subsection 9.02(a), (f), (h), (ii), (ll), (mm) and (qq) of the Purchase
Agreement, with respect to which the Seller hereby restates them as of
February 1, 2007), with respect to each of the Specified Mortgage Loans that
were sold by it under the Purchase 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 Transfer Date.
4. Reporting Obligations; Future Covenants; Indemnification
(a) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Seller
shall (i) promptly provide to the Depositor and the Securities Administrator
written notice of any voluntary or involuntary bankruptcy filing or other
proceeding involving the Seller as a debtor and (ii) upon request of MSMCI or
the Depositor, written notice regarding all other information required under
Section 33.03(d) of the Purchase Agreement, in each case in substantially in
the form of Exhibit II hereto.
(b) The indemnification and remedy provisions set forth in Section 33.04
of the Purchase Agreement apply to all information provided under this Section
4 by or on behalf of the Seller and will extend to each of the following
parties participating in a Securitization Transaction: each sponsor and
issuing entity; each Person (including but not limited to each master
servicer, if applicable) responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees, agents and affiliates (each, an "Indemnified
Party") of each of the foregoing and of the Depositor.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
5. Continuing Effect
Except as contemplated hereby, the Purchase 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
3
Any notices or other communications permitted or required under the
Purchase Agreement to be made to MSMCI, the Depositor, the Trustee and the
Seller shall be made in accordance with the terms of the Purchase Agreement
and shall be sent as follows:
In the case of MSMCI:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-3XS
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 2007-3XS
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 2007-3XS
In the case of the Seller:
Wilmington Finance Inc.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
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 Purchase
Agreement.
8. 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.
9. Definitions
4
Any capitalized term used but not defined in this Assignment has the
same meaning as in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
5
IN WITNESS WHEREOF, the parties hereto have executed this Assignment the
day and year first above written.
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
WILMINGTON FINANCE, INC.
By:/s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
Acknowledged and Agreed:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee of Xxxxxx Xxxxxxx Mortgage
Loan Trust 2007-3XS
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant 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 2007-3XS - SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-3XS
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section 4(a) of the Assignment, Assumption and
Recognition Agreement, dated as of [date], among Xxxxxx Xxxxxxx Capital I
Inc., as Depositor, Wilmington Finance, Inc., Xxxxx Fargo Bank, National
Association, as Securities Administrator and Master Servicer, and LaSalle Bank
National Association as Trustee. 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:
