Exhibit 99.4
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"),
dated as of April 17, 2007 (the "Closing Date"), is entered into among Maia
Mortgage Finance Statutory Trust, (the "Assignee"), X.X. Xxxxxx Mortgage
Acquisition Corp. (the "Assignor") and National City Mortgage Co., as seller and
servicer ("National" or the "Company").
RECITALS
WHEREAS the Assignor and the Company have entered into a certain Flow
Master Seller's Warranties and Servicing Agreement, dated as of February 24,
2004, as amended by that certain Amendment Reg. AB, dated as of March 1, 2006
(as amended from time to time, the "Agreement"), pursuant to which the Assignor
has acquired certain Mortgage Loans pursuant to the terms of the Agreement and
the Company has agreed to service such Mortgage Loans;
WHEREAS the Assignee has agreed, on the terms and conditions contained
herein, to purchase from the Assignor 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 the Assignee wishes to assume all of
Assignor's right, title and interest in and to the Specified Mortgage Loans as
provided in the Agreement; and
WHEREAS, the Assignee and the Company agree that, from and after the
Closing Date, the servicing provisions of the Agreement (as amended pursuant to
a reconstitution agreement to be entered into prior to a securitization
transaction, which reconstitution agreement shall include provisions for special
foreclosure rights, in a form similar to that entered into by the Company with
respect to the Luminent Mortgage Trust 2006-7 Mortgage Pass-Through
Certificates, Series 2006-7) shall continue to apply to the Specified Mortgage
Loans and shall govern the servicing of 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, the Assignor hereby sells, assigns and
transfers to the Assignee all of its right, title and interest in the Specified
Mortgage Loans and all rights related thereto as provided under the Agreement to
the extent relating to the Specified Mortgage Loans, the Assignee hereby accepts
such assignment from the Assignor, and the Company hereby acknowledges such
assignment and assumption.
(b) On and as of the date hereof, the Assignor represents and warrants to
the Assignee that the Assignor has not taken any action that would serve to
1
impair or encumber the Assignee's ownership interests in the Specified Mortgage
Loans since the date of the Assignor's acquisition of the Specified Mortgage
Loans.
2. Recognition of Purchaser
------------------------
From and after the date hereof, both the Assignee and the Company shall
note the transfer of the Specified Mortgage Loans to the Assignee in their
respective books and records. The Company shall recognize the Assignee as the
owner of the Specified Mortgage Loans, and the Company acknowledges and agrees
that, with respect to the Specified Mortgage Loans, the Assignee is entitled to
all rights and benefits of the Assignor as the "Purchaser" under the Agreement.
The Company shall service the Specified Mortgage Loans for the benefit of the
Assignee pursuant to the Agreement, the terms of which are incorporated herein
by reference as amended hereby. It is the intention of the Company, the Assignee
and the Assignor that the Assignment shall be binding upon and inure to the
benefit of the Assignee and the Assignor and their successors and assigns.
The Specified Mortgage Loans shall be serviced pursuant to the Agreement on
a scheduled/scheduled basis. The Company and the Assignee agree that the first
remittance date on which payment will be made to the Assignee with respect to
the Specified Mortgage Loans will be April 18, 2007.
3. Accuracy of the Agreement
-------------------------
The Assignor and the Company represent, warrant and covenant that the
Agreement provided to the Assignee and attached hereto as Exhibit II is a true,
complete and accurate copy of the Agreement; the Agreement is in full force and
effect as of the date hereof; and its provisions have not been waived, amended
or modified in any respect except as contemplated herein, nor has any notice of
termination been given thereunder. As of the date hereof, neither the Assignor
nor the Company is in default under the Agreement.
4. Representations and Warranties of the Assignor
----------------------------------------------
The Assignor represents, warrants and covenants that:
(a) The Assignor is a corporation duly organized, validly existing, and in
good standing under the laws of its jurisdiction of organization and has all
licenses necessary to carry on its business as now being conducted;
(b) The Assignor has corporate power and authority to enter into, execute,
and deliver this Assignment, and all documents and certificates hereunder, and
to perform its obligations in accordance herewith; the execution, delivery, and
performance of this Assignment by the Assignor and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Assignment evidences the valid, binding, and enforceable obligation of the
Assignor; and all requisite corporate action has been taken by the Assignor to
make this Assignment valid and binding upon the Assignor in accordance with its
terms;
(c) No consent, approval, authorization, or order of any court or
governmental agency or body relating to the transactions contemplated by this
Assignment is required or, if required, such consent, approval, authorization,
or order has been or will, prior to the Closing Date, be obtained;
2
(d) The consummation of the transactions contemplated by this Assignment
and the fulfillment of or compliance with the terms and conditions of this
Assignment are in the ordinary course of business of the Assignor and will not
result in the breach of any term or provision of the articles of incorporation
or bylaws of the Assignor or result in the breach of any term or provision of,
or conflict with or constitute a default under, or result in the acceleration of
any obligation under, any agreement, indenture, loan, or credit agreement, or
other instrument to which the Assignor or its property is subject, or result in
the violation of any law, rule, regulation, order, judgment, or decree to which
the Assignor or its property is subject;
(e) There is no action, suit, proceeding, or investigation pending or
threatened against the Assignor which, either in any one instance or in the
aggregate, is, in the Assignor's judgment, likely to result in any material
impairment of the right or ability of the Assignor to carry on its business
substantially as now conducted, result in any material liability or any material
adverse change in the financial condition of the Assignor or which would draw
into question the validity of this Assignment or of any action taken or to be
taken in connection with the obligations of the Assignor contemplated herein or
which would be likely to impair materially the ability of the Assignor to
perform its obligations hereunder;
(f) There is no fact known to the Assignor that materially adversely
affects or, so far as the Assignor now foresees, will materially adversely
affect the ability of the Assignor to perform its obligations under this
Assignment;
(g) Neither the Assignor nor the arrangement created by the Agreement is an
"investment company" or under the "control" of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended;
(h) The Assignor has not dealt with any broker, investment banker, agent,
or other person who may be entitled to any commission or compensation in
connection with the sale of the Specified Mortgage Loans; and
(i) With respect to the Specified Mortgage Loans:
(i) The Assignor has no knowledge of any facts or occurrences, and has
taken no action, between the dates of its acquisition of the Specified Mortgage
Loans from the Company and the date of this Assignment, that would make the
representations and warranties as to the Specified Mortgage Loans contained in
Section 3.02 of the Agreement untrue or incorrect in any material respect as of
the date hereof. No Mortgage Loan has been 30 days late in the payment of
principal and interest in the twelve months prior to April 1, 2007;
(ii) The Assignor is the lawful owner of the Specified Mortgage Loans
with the full right to transfer the Specified Mortgage Loans free from any and
all claims and encumbrances whatsoever. Upon the transfer of the Specified
Mortgage Loans to the Assignee pursuant to this Assignment, the Assignor will
have taken all actions necessary on its part to be taken so that the Assignee
will have good indefeasible title to, and will be sole owner of, the Mortgage
3
and the Mortgage Note with respect to each of the Specified Mortgage Loans, free
and clear of any and all liens, claims, encumbrances, participation interests,
equities, pledges, charges, or security interests of any nature, subject to
bankruptcy, insolvency, moratorium, reorganization and similar laws relating or
limiting the enforcement of creditor's rights generally;
(iii) The mortgage loan schedule attached hereto as Exhibit I is
complete, true and correct in all material respects; and
(iv) The characteristics of the Specified Mortgage Loans as described
in the related commitment letter agreement, dated March 16, 2007, between the
Assignor and the Assignee are true and correct in all material respects.
5. Representation and Warranties of the Assignee.
---------------------------------------------
The Assignee represents and warrants that:
(a) 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 Company or the Assignor
other than those contained in the Agreement or this Assignment.
(b) It is duly and legally authorized to enter into this Assignment.
(c) 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).
6. Representations and Warranties of the Company.
---------------------------------------------
The Company represents and warrants to the Assignee as follows:
(a) As of the date hereof, the representations and warranties set forth in
Sections 3.02 of the Agreement, are true and correct with respect to each of the
Specified Mortgage Loans, to and for the benefit of the Assignee, and by this
reference incorporates such representations and warranties herein, as of the
date hereof.
(b) All of the representations and warranties of the Company set forth in
Section 3.01 of the Agreement are true and correct as of the date hereof;
(c) The Company has complied in all material respects with its obligations
to service the Specified Mortgage Loans in accordance with the terms of the
Agreement;
4
(d) No offsets, counterclaims or other defenses are available to the
Company with respect to the Agreement or the Specified Mortgage Loans; and
(e) The Company 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 or defaults under, the Agreement.
7. Continuing Effect
-----------------
Except as contemplated hereby, the Agreement shall remain in full force and
effect in accordance with its terms.
8. 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
(without regard to conflict of laws principles other than general obligations
law section 5-1401).
9. Notices
-------
Any notices or other communications permitted or required under the
Agreement to be made to the Assignee shall be made in accordance with the terms
of the Agreement and shall be sent to the Assignee as follows:
In the case of the Assignor:
X.X. Xxxxxx Mortgage Acquisition Corp.
000 Xxxx Xxxxxx
00xx Xxxxx
Mailstop: NY1-K262
Xxx Xxxx, Xxx Xxxx 00000
Attention: Head of Whole Loan Transaction Management
With copies to:
XX Xxxxxx Xxxxx & Co.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel's Office
and
X.X. Xxxxxx Mortgage Acquisition Corp.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx 00
Xxxxxxxx, XX 00000-000
Attn: Corporate Secretary
5
with an email copy to:
XXXXXXXxxxxxx@xxxxxxxx.xxx
In the case of the Assignee:
Maia Mortgage Finance Statutory Trust
Xxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
In the case of the Company:
National City Mortgage Co.
0000 Xxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
with a copy to:
--------------
National City Mortgage Co.
0000 Xxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: X. Xxxxxxx Case
or to such other address as may hereafter be furnished by the Assignee to the
parties in accordance with the provisions of the Agreement.
10. 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.
11. Definitions
---------------
Any capitalized term used but not defined in this Assignment has the same
meaning as in the Agreement.
[SIGNATURE PAGE FOLLOWS]
6
IN WITNESS WHEREOF, the parties hereto have executed this Assignment the
day and year first above written.
X.X. XXXXXX MORTGAGE ACQUISITION
CORP,
as Assignor
By: ____________________________
Name:
Title:
NATIONAL CITY MORTGAGE CO.,
as Company
By: ____________________________
Name:
Title:
MAIA MORTGAGE FINANCE STATUTORY
TRUST,
as Assignee
By: ____________________________
Name:
Title:
