ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.15a
EXECUTION
COPY
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 2007-5AX (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:
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1.
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Assignment
and Assumption
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(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.
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2.
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Recognition
of Trustee
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(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.
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3.
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Representations
and Warranties
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(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 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).
2
(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 January
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.
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4.
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Reporting
Obligations; Future Covenants;
Indemnification
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(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.
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5.
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Continuing
Effect
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Except
as
contemplated hereby, the Purchase Agreement shall remain in full force and
effect in accordance with its terms.
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6.
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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.
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7.
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Notices
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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 2007-5AX
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 2007-5AX
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 2007-5AX
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.
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8.
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Counterparts
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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.
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9.
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Definitions
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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 2007-5AX
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 2007-5AX - SEC REPORT PROCESSING
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-5AX
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:
