EXHIBIT 10.4(D)
EXECUTION VERSION
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated June 30, 2006,
(the "Agreement") among X.X. Xxxxxx Mortgage Acquisition Corp., ("Assignor"),
Bank of America, National Association, ("Assignee"), JPMorgan Chase Bank,
National Association ("JPM" and a "Company") and Chase Home Finance LLC ("CHF"
and a "Company" and together with JPM the "Companies"):
RECITALS
The Assignor and the Companies are parties to that certain
Flow Mortgage Loan Purchase, Warranties and Servicing Agreement, dated as of May
1, 2004, as amended by Amendment No. 1, dated as of January 1, 2005, Amendment
No. 2, dated as of December 1, 2005, Amendment Reg AB, dated as of January 1,
2006 and as amended from time to time (the "Purchase, Warranties and Servicing
Agreement"), which is attached hereto as Exhibit A;
The Assignor desires to grant, transfer and assign to the
Assignee all of the right, title and interest of Assignor, as Purchaser, in, to
and under (a) those certain Mortgage Loans listed on Exhibit B attached hereto
(the "Mortgage Loans") and (b) the Purchase, Warranties and Servicing Agreement
with respect to the Mortgage Loans;
CHF and the Assignee are parties to that certain Mortgage Loan
Purchase, Warranties and Servicing Agreement (the "MLPWA"), dated as of January
1, 2005, and JPM, CHF and the Assignee are parties to that certain Amendment Reg
AB (the "Amendment Reg AB") dated as of January 1, 2006, each as amended from
time to time, which are attached hereto as Exhibit C and the terms of which are
incorporated by reference for the purposes provided herein and made a part
hereof;
The Assignor and the Companies have agreed to make certain
representations and warranties with respect to the Mortgage Loans in accordance
with the MLPWA; and
The Assignee desires that JPM service the Mortgage Loans in
accordance with terms of the MLPWA;
Accordingly, for and in consideration of the sum of TEN
DOLLARS ($10.00) and other valuable consideration, the receipt and sufficiency
of which hereby are acknowledged, and of the mutual covenants herein contained,
the parties hereto hereby agree as follows:
I. Assignment.
(a) The Assignor hereby grants, transfers and assigns to
Assignee all of the right, title and interest of Assignor, as
Purchaser, in, to and under (i) the Mortgage Loans and (ii) the
Purchase, Warranties and Servicing Agreement, with respect to the
Mortgage Loans. The Assignee shall be entitled to all scheduled
payments due on the Mortgage Loans after June 1, 2006 (the "Assigned
Loans Cut-off Date") and all unscheduled payments or other proceeds or
other recoveries on the Mortgage Loans received on and after the
Assigned Loans Cut-off Date.
(b) The Assignor specifically reserves and does not assign to
the Assignee hereunder any and all right, title and interest in, to and
under and all obligations of the Assignor with respect to any mortgage
loans subject to the Purchase, Warranties and Servicing Agreement which
are not the Mortgage Loans set forth on Exhibit B attached hereto and
are not the subject of this Agreement.
II. Assignor Representations and Warranties. The Assignor
warrants and represents to, and covenants with, the Assignee that:
(a) The Assignor is a corporation duly organized, validly
existing and in good standing under the laws of Delaware and has all
licenses necessary to carry out its business as now being conducted,
and is licensed and qualified to transact business in each state in
which any Mortgaged Property is located or is otherwise exempt under
applicable law from such licensing or qualification or is otherwise not
required under applicable law to effect such licensing or qualification
and no demand for such licensing or qualification has been made upon
such Assignor by any such state, and in any event such Assignor is in
compliance with the laws of any such state to the extent necessary to
ensure the enforceability of each Mortgage Loan;
(b) The Assignor has the full power and authority and legal
right to hold, transfer and convey each Mortgage Loan, to sell each
Mortgage Loan and to execute, deliver and perform, and to enter into
and consummate all transactions contemplated by this Agreement and to
conduct its business as presently conducted, has duly authorized the
execution, delivery and performance of this Agreement and any
agreements contemplated hereby, has duly executed and delivered this
Agreement, and any agreements contemplated hereby, and this Agreement
constitutes a legal, valid and binding obligation of the Assignor,
enforceable against it in accordance with its terms, and all requisite
corporate action has been taken by the Assignor to make this Agreement
and all agreements contemplated hereby valid and binding upon the
Assignor in accordance with their terms;
(c) None of the execution and delivery of this Agreement, the
sale of the Mortgage Loans to the Assignee, the consummation of the
transactions contemplated hereby, or the fulfillment of or compliance
with the terms and conditions of this Agreement will conflict with any
of the terms, conditions or provisions of the Assignor's charter or by
laws or materially conflict with or result in a material breach of any
of the terms, conditions or provisions of any legal restriction or any
agreement or instrument to which the Assignor is now a party or by
which it is bound, or constitute a default or result in an acceleration
under any of the foregoing, or result in the material violation of any
law, rule, regulation, order, judgment or decree to which the Assignor
or its property is subject or impair the ability of the Assignee to
realize on the Mortgage Loans or impair the value of the Mortgage
Loans;
(d) There is no litigation, suit, proceeding or investigation
pending or threatened, or any order or decree outstanding, with respect
to the Assignor which is reasonably likely to have a material adverse
effect on the sale of the Mortgage Loans, the execution, delivery,
performance or enforceability of this Agreement, or which is
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reasonably likely to have a material adverse effect on the financial
condition of the Assignor;
(e) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Assignor of or compliance by the Assignor with
this Agreement, except for consents, approvals, authorizations and
orders which have been obtained;
(f) The consummation of the transactions contemplated by this
Agreement is in the ordinary course of business of the Assignor, and
the transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Assignor pursuant to this Agreement are not subject to
bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction;
(g) The Assignor used no adverse selection procedures in
selecting from among the outstanding first lien residential mortgage
loans owned by it which were available for inclusion in the sale to
Assignee;
(h) The Assignor will treat the sale of the Mortgage Loans to
the Assignee as a sale for reporting and accounting purposes and, to
the extent appropriate, for federal income tax purposes;
(i) The Assignor does not believe, nor does it have any cause
or reason to believe, that it cannot perform each and every covenant
contained in this Agreement. The Assignor is solvent and the sale of
the Mortgage Loans will not cause the Assignor to become insolvent. The
sale of the Mortgage Loans is not undertaken with the intent to hinder,
delay or defraud any of the Assignor's creditors;
(j) The Assignor has not dealt with any broker, investment
banker, agent or other person that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans;
(k) No statement, tape, diskette, form, report or other
document (the "Delivered Items") prepared by, or on behalf of, Assignor
(other than Delivered Items prepared by or on behalf of the Companies)
pursuant to this Agreement or in connection with the transactions
contemplated hereby, contains or will contain any statement that is or
will be inaccurate or misleading in any material respect; and
(l) (i) attached hereto as Exhibit A is a true, accurate and
complete copy of the Purchase, Warranties and Servicing Agreement, (ii)
such agreement is in full force and effect as of the date hereof, (iii)
such agreement has not been amended or modified in any respect and (iv)
no notice of termination has been given to such party under such
agreement.
III. Holding Period Representations and Warranties.
(a) The Assignor further warrants and represents to the
Assignee that with respect to each of the Mortgage Loans, each
representation and warranty set forth in
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Section 3.02 of the MLPWA is deemed to be made as of the date hereof
and is true and correct in all material respects with respect to the
period of time (in each case the "Holding Period") following the date
on which each Company sells the Mortgage Loans to the Assignor, which
shall be such dates as noted on Exhibit B (the "Company Closing Date")
up to and including the date on which the Assignor assigns the Mortgage
Loans to the Assignee, which shall be June 30, 2006 (the "Assignment
Closing Date"), but only to the extent that such representation or
warranty was true and correct when made by the Companies on the
applicable Company Closing Date. In the event that the Assignee or the
Assignor discovers a breach of a representation or warranty with
respect to a Mortgage Loan arising during the related Holding Period,
which materially and adversely affects the value of such Mortgage Loan
or the interest of the Assignee therein, the party discovering such
breach shall give prompt written notice to the other parties hereto and
provide the Assignor with evidence of such breach, and the Assignor
shall have 90 days following the discovery or receipt of notice of such
breach in which to cure such breach or repurchase the affected Mortgage
Loan. Subject to subparagraph (b) below, if the Assignor is unable to
cure such breach, then the Assignor shall promptly repurchase each
affected Mortgage Loan at the Repurchase Price (as defined below). For
purposes of making certain representations and warranties contemplated
in this section, each reference in Section 3.02 of the MLPWA (i) to the
"Cut-off Date" shall be deemed to be a reference to the Assigned Loans
Cut-off Date, (ii) to the "Mortgage Loan Schedule" shall be deemed to
be a reference to Exhibit B attached hereto and (iii) to the "Closing
Date" shall be deemed to be a reference to the date hereof.
(b) The "Repurchase Price" with respect to any affected
Mortgage Loan shall be an amount equal to (a) the Purchase Price
Percentage, multiplied by the outstanding principal balance of such
affected Mortgage Loan as of the date of such repurchase, plus (b)
accrued and unpaid interest on such affected Mortgage Loan to but not
including the date of such repurchase, less (c) the amount of any
unreimbursed principal or interest advances, if any, owed to the
servicer with respect to such Mortgage Loan; provided, however, that in
the event such breach constitutes a breach of Section 3.02(uu) of the
MLPWA, then the Repurchase Price shall also include any costs and
damages incurred by the Assignor or its assigns as a result of such
breach. The Repurchase Price shall be paid by the Assignor by wire
transfer to the Assignee to an account designated by the Assignee. The
"Purchase Price Percentage" shall be the percentage set forth in that
certain Purchase Price and Terms Letter dated as of May 24, 2006
between the Assignor and the Assignee (the "PPTL").
(c) Contemporaneously with the Assignor's repurchase of any
affected Mortgage Loan (each, a "Repurchased Mortgage Loan") from the
Assignee pursuant to subparagraph (b) above, the Assignee shall
reconvey such Repurchased Mortgage Loan to the Assignor by delivering
to the Assignor or the Assignor's designee, the mortgage note endorsed
in blank, the mortgage, the assignment of mortgage in blank and such
other documents delivered to the Assignee in connection with the
Assignee's purchase thereof, and by executing an assignment and
assumption agreement, conveying the Assignee's rights to such
Repurchased Mortgage Loan and any related rights under the Purchase,
Warranties and Servicing Agreement to which such Mortgage Loan is
subject and under this Agreement. In the event of a repurchase, the
Companies shall service such
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Repurchased Mortgage Loan in accordance with the terms of the Purchase,
Warranties and Servicing Agreement from the date of the repurchase. In
such event, the Assignee hereby agrees to reassign the Purchase,
Warranties and Servicing Agreement to the Assignor with respect to such
Repurchased Mortgage Loan and the Assignor shall succeed to the rights
of the Assignee to enforce the obligations of the Companies, as
applicable, to cure such breach or repurchase such Mortgage Loan under
the terms of the Purchase, Warranties and Servicing Agreement with
respect to such Repurchased Mortgage Loan.
IV. Assignee Representations and Warranties. The Assignee
warrants and represents to, and covenants with, the Assignor and each
Company that:
(a) The Assignee agrees to be bound, as Purchaser, by all of
the terms, covenants and conditions of the Purchase, Warranties and
Servicing Agreement and the Mortgage Loans, and from and after the date
hereof, the Assignee assumes for the benefit of each of the Companies
and the Assignor all of the Assignor's obligations as Purchaser
thereunder, with respect to the Mortgage Loans;
(b) The Assignee understands that the Mortgage Loans have not
been registered under the 1933 Act or the securities laws of any state;
(c) The purchase price being paid by the Assignee for the
Mortgage Loans is in excess of $250,000 and will be paid by cash
remittance of the full purchase price within sixty (60) days of the
sale;
(d) The Assignee is acquiring the Mortgage Loans for
investment for its own account only and not for any other person;
(e) The Assignee considers itself a substantial, sophisticated
institutional investor having such knowledge in financial and business
matters that it is capable of evaluating the merits and the risks of
investment in the Mortgage Loans;
(f) The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the Assignor or
the Companies;
(g) Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Mortgage Loans, an interest in the Mortgage Loans or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge
or other disposition of the Mortgage Loans, any interest in the
Mortgage Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any
interest in the Mortgage Loans or any other similar security with, any
person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action
which would constitute a distribution of the Mortgage Loans under the
1933 Act or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 1933 Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize
any person to act, in such manner with respect to the Mortgage Loans;
and
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(h) Either: (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or a plan (also
"Plan") within the meaning of section 4975(e)(1) of the Internal
Revenue Code of 1986 ("Code"), and the Assignee is not directly or
indirectly purchasing the Mortgage Loans on behalf of, investment
manager of, as named fiduciary of, as trustee of, or with assets of, a
Plan; or (2) the Assignee's purchase of the Mortgage Loans will not
result in a prohibited transaction under section 406 of ERISA or
section 4975 of the Code.
V. Company Representations and Warranties.
(a) Each Company hereby makes the representations and
warranties set forth in Sections 3.01 and 3.02 of the MLPWA as of the
applicable Company Closing Date. The Assignee shall be entitled to all
of the rights and remedies of the Purchaser (as defined in the MLPWA)
under the MLPWA for a breach of any of the representations and
warranties made by each Company herein.
(b) Each Company represents and warrants to the Assignee that
(i) attached hereto as Exhibit A is a true, accurate and complete copy
of the Purchase, Warranties and Servicing Agreement, (ii) such
agreement is in full force and effect as of the date hereof, (iii) such
agreement has not been amended or modified in any respect and (iv) no
notice of termination has been given to such party under such
agreement.
VI. Servicing. JPM hereby agrees that from and after the
Assignment Closing Date it shall note the transfer of the applicable Mortgage
Loans to the Assignee in its books and records and service the applicable
Mortgage Loans in accordance with the terms of the MLPWA (including without
limitation Articles IV through XII as they relate to the servicing and
reconstitution of the Mortgage Loans). The Assignee shall be entitled to all of
the rights and remedies of the Purchaser (as defined in the MLPWA) under the
MLPWA for any failure of JPM to service the Mortgage Loans in accordance with
the terms of the MLPWA. The Assignee, JPM or CHF hereby agree that from and
after the Assignment Closing Date, such parties will be bound by the Amendment
Reg AB with respect to the Mortgage Loans and the Amendment Reg AB shall be
applicable to the Mortgage Loans. The Assignee shall be entitled to all of its
rights and remedies under the Amendment Reg AB for any failure of JPM or CHF to
perform under the Amendment Reg AB with respect to the Mortgage Loans and JPM or
CHF shall be entitled to all of the rights and remedies of such respective party
under the Amendment Reg AB for any failure of the Assignee to perform under the
Amendment Reg AB with respect to the Mortgage Loans. An account has been
established as a Custodial Account pursuant to Section 4.04 of the MLPWA,
designated as "Chase Home Finance LLC, as subservicer for JPMorgan Chase Bank,
National Association, in trust for Bank of America, National Association, owner
of various whole loan series P&I." Another separate account has been established
as an Escrow Account pursuant to Section 4.06 of the MLPWA, designated as "Chase
Home Finance LLC, as subservicer for JPMorgan Chase Bank, National Association,
in trust for Bank of America, National Association, owner of various whole loan
series and various mortgagors T&I."
VII. Delivery of the Mortgage Files. The parties hereby agree
that the Companies are required to deliver the mortgage files with respect to
the Mortgage Loans in
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accordance with the terms of the Purchase, Warranties and Servicing Agreement;
provided, however, that the Companies agree that they will deliver the mortgage
files with respect to the Mortgage Loans in accordance with the terms of the
MLPWA within thirty (30) days following the applicable Company Closing Date (the
"Document Delivery Period"). To the extent that the Companies fail to deliver
the mortgage files to the Assignee as required by the end of the Document
Delivery Period, then the Assignee shall be entitled to all the rights and
remedies of the Purchaser (as defined in the MLPWA) under the MLPWA.
VIII. No Waiver. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by the party against whom such waiver or modification is sought to be enforced.
IX. Assignment. This Agreement shall inure to the benefit of
the successors and assigns of the parties hereto. Any entity into which
Assignor, Assignee or any Company may be merged or consolidated shall, without
the requirement for any further writing, be deemed Assignor, Assignee or a
Company, respectively, hereunder.
X. Survival. Each of this Agreement, the Purchase, Warranties
and Servicing Agreement and the MLPWA shall survive the conveyance of the
Mortgage Loans and the assignment of the Purchase, Warranties and Servicing
Agreement (to the extent assigned hereunder) by Assignor to Assignee.
XI. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original and all such counterparts shall constitute one and the same
instrument.
XII. Conflicts. In the event that any of the provisions of
this Agreement, the Purchase, Warranties and Servicing Agreement or the MLPWA
conflict, the agreements shall control in the following order of priority:
first, the terms of this Agreement, second, the terms of the MLPWA and third,
the terms of the Purchase, Warranties and Servicing Agreement.
XIII. Defined Terms. Except as expressly provided in the
succeeding sentence, capitalized terms used in this Agreement (including the
exhibits hereto) but not defined in this Agreement shall have the meanings given
to such terms in the Purchase, Warranties and Servicing Agreement. To the extent
that provisions of the MLPWA are referred to or incorporated by reference
herein, all capitalized terms used therein and defined therein shall be deemed
incorporated herein as well.
XIV. Joint and Several. Each Company shall be jointly and
severally liable for the full, complete and punctual performance and
satisfaction of all obligations of either Company under this Agreement.
Accordingly, each Company waives any and all notice of creation, renewal,
extension or accrual of any of the obligations and notice of or proof of
reliance by the Assignor or the Assignee upon such Company's joint and several
liability. Each Company waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon such Company with respect
to the obligations. When pursuing its rights and remedies hereunder against
either Company, the Assignor or the Assignee may, but shall be under no
obligation, to pursue such rights and remedies hereunder against either Company
or any other
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Person or against any collateral security for the obligations or any right of
offset with respect thereto, and any failure by the Assignor or the Assignee to
pursue such other rights or remedies or to collect any payments from such
Company or any such other Person to realize upon any such collateral security or
to exercise any such right of offset, or any release of such Company or any such
other Person or any such collateral security, or right of offset, shall not
relieve such Company of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of the Assignor or the Assignee against such Company.
XV. CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
XVI. Notices. Addresses for purposes of all notices and
correspondence related to the Mortgage Loans and this Agreement is:
In the case of the Assignor:
X.X. Xxxxxx Mortgage Acquisition Corp.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
JPMorgan Chase & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel's Office
In the case of the Assignee:
Bank of America, National Association
Hearst Tower
NCI-027-21-04
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Managing Director
In the case of JPM:
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JPMorgan Chase Bank, National Association
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
With copy to:
General Counsel
JPMorgan Chase Bank, National Association
000 Xxxx Xxx.
Xxxxxx, XX 00000
In the case of CHF:
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
With copy to:
General Counsel
Chase Home Finance LLC
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized officers as of the date first above
written.
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X.X. Xxxxxx Mortgage Acquisition Corp. Bank of America, National Association
------------------------------------------------------------ ---------------------------------------------------------
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Good
Its: Vice President Its: Vice President
------------------------------------------------------------ ---------------------------------------------------------
Taxpayer Identification Taxpayer Identification
Number: 00-0000000 Number: 00-0000000
------------------------------------------------------------ ---------------------------------------------------------
JPMorgan Chase Bank, National Association Chase Home Finance LLC
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
Its: Vice President Its: Senior Vice President
Taxpayer Identification Taxpayer Identification
Number:______________________________ Number:______________________________
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EXHIBIT A
to Assignment and Assumption Agreement
FLOW MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT
EXHIBIT B
to Assignment and Assumption Agreement
FINAL LIST OF MORTGAGE LOANS
EXHIBIT C
to Assignment and Assumption Agreement
MORTGAGE LOAN PURCHASE, WARRANTIES AND SERVICING AGREEMENT
EXHIBIT D
to Assignment and Assumption Agreement
ASSIGNEE'S WIRE TRANSFER INSTRUCTIONS
