Exhibit 99.10(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"), and MortgageIT, 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 Amended and
Restated Mortgage Loan Purchase And Warranties Agreement, dated as of May 1,
2005 (the "May Purchase Agreement") and a certain Fourth Amended and Restated
Mortgage Loan Purchase and Warranties Agreement, dated as of March 1, 2006 (the
"March Purchase Agreement" and together with the May Agreement, the "Purchase
Agreements"), pursuant to which MSMCI has acquired certain Mortgage Loans;
WHEREAS, in connection with the transfer of the Mortgage Loans hereunder,
the Seller agrees that, from and after the date hereof, each Mortgage Loan
transferred hereunder will be subject to the March 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 Agreements
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 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 Agreements 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 Agreements
which are not the Specified Mortgage Loans.
(b) On and 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 Agreements 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 Agreements. Accordingly, the right of MSMCI to consent to any amendment
of the Purchase Agreements and its rights concerning waivers as set forth in
Section 23 of the March 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 Agreements with respect thereto, solely by the Trustee
on behalf of the Trust 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, 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, (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 Agreements or this Assignment.
(b) Each of the parties hereto represents and warrants that it is duly and
legally authorized to enter into this Assignment.
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(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 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 Subsections 9.01 and 9.02 of the Purchase Agreements, as they relate to each
of the Specified Mortgage Loans that were sold by it under the Purchase
Agreements, 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 are contractually past due by more than 30
days.
4. Future Covenants
(a) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Company
shall (i) promptly provide the Depositor and the Securities Administrator
written notice substantially in the form of Exhibit II (A) any material
litigation or governmental proceedings pending against the Company, (B) any
Event of Default under the terms of this Agreement or any Purchase Agreement and
(C) any merger, consolidation or sale of substantially all of the assets of the
Company and (ii) provide to the Depositor and the Securities Administrator a
description of such proceedings, affiliations or relationships.
(b) Indemnification; Remedies.
(i) The Company shall indemnify the Depositor, each affiliate of the
Depositor, and 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, and shall hold each of
them harmless from and against any claims, losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any other
costs, fees and expenses that any of them may sustain arising out of or based
upon:
(1) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report or other material provided
under this Section 4 by or on behalf of the Company, (collectively, the
"Company Information"), or (B) the omission or alleged omission to state
in the Company Information a material fact required to be stated in the
Company Information or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this
paragraph shall be construed solely by reference to the Company
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Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the
Company Information or any portion thereof is presented together with or
separately from such other information;
(2) any breach by the Company under this Section 4, including
particularly any failure by the Company to deliver any information, report
or other material when and as required under this Section 4; or
(3) negligence, bad faith or willful misconduct of the Company
in connection with its performance under this Section 4.
(ii) If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Company agrees that
it shall contribute to the amount paid or payable by such Indemnified Party as a
result of any claims, losses, damages or liabilities incurred by such
Indemnified Party in such proportion as is appropriate to reflect the relative
fault of such Indemnified Party on the one hand and the Company on the other.
(iii) In the case of any failure of performance described in clause
(a) of this Section 4, the Company shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person 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, for all costs reasonably incurred by each
such party in order to obtain the information, report, certification,
accountants' letter or other material not delivered as required by the Company.
(iv) 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 Agreements 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
Purchase Agreements to be made to MSMCI, the Depositor, the Trustee and the
Seller shall be made in accordance with the terms of the Purchase Agreements 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
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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:
MortgageIT, Inc.
00 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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
Agreements.
8. Ratification
Except as modified and expressly amended by this Assignment, the Purchase
Agreements are 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 March Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
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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
MORTGAGEIT, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
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, MortgageIT, 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:
