ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.8a
EXECUTION
VERSION
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment”),
dated as of October 1, 2007, is entered into among Xxxxxx Xxxxxxx Capital I
Inc., a Delaware corporation (the “Depositor”), Xxxxxx Xxxxxxx Mortgage
Capital Holdings LLC, successor-by-merger to Xxxxxx Xxxxxxx Mortgage Capital
Inc. (“MSMCH”), GreenPoint Mortgage Funding, Inc. as seller (the
“Seller”), and acknowledged by LaSalle Bank National Association, as
trustee (the “Trustee”) of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-14AR
(the “Trust”).
RECITALS
WHEREAS
MSMCH and the Seller have entered into a Mortgage Loan Purchase and Warranties
Agreement, dated as of May 1, 2005 (the “Purchase Agreement”) pursuant to
which MSMCH has acquired certain Mortgage Loans;
WHEREAS
the Depositor has agreed, on the terms and conditions contained herein, to
purchase from MSMCH 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
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 of the date hereof, MSMCH 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 MSMCH (the “First Assignment and
Assumption”), and the Seller hereby acknowledges the First Assignment and
Assumption.
MSMCH
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 MSMCH with respect to any Mortgage Loans
subject to the Purchase Agreement 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 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, MSMCH represents and warrants to the Depositor and
the Trustee that MSMCH 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 MSMCH’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 MSMCH 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 MSMCH that this Assignment shall be
binding upon and inure to the benefit of the Depositor, the Trustee and MSMCH
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 MSMCH to consent to any
amendment of the Purchase Agreement and its rights concerning waivers as set
forth in Section 22 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 by the Trustee
as assignee of MSMCH.
(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 among the Depositor, the Master
Servicer, Xxxxx Fargo Bank, National Association, as securities administrator
and master servicer and the Trustee (the “Pooling and Servicing
Agreement”), (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 MSMCH 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, MSMCH and 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) Except
as set forth in (e) below, the Seller hereby restates, as of the Transfer Date
(as defined in the Purchase Agreement), the representations and warranties
set
forth in Sections 9.01 and 9.02 of the Purchase Agreement, 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 Trustee and the
Trust.
(e) 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(e), (k), (l), (m), (t), (u), (v), (x), (y), (bb), (cc), (dd),
(ii), (mm), (nn), (oo), (qq), (rr), (ss), (tt), (uu), (vv), (xx), (ccc), (ddd),
and (eee) and Section 9.02 (other than Subections (j) and (k)), and by this
reference incorporates such representations and warranties herein, as of such
Closing Date.
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4.
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Future
Covenants
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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 Company shall (i) promptly
provide the Depositor and the Securities Administrator written notice
substantially in the form of Exhibit II (A) any litigation or governmental
proceedings pending against the Company that would be material to holders of
securities in a Securitization Transaction, (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 in written or electronic
form
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 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;
3
(2) any
breach by the Company under this Article II, 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.
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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
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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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Any
notices or other communications permitted or required under the Purchase
Agreement to be made to the Depositor, MSMCH, the Seller and the Trustee shall
be made in accordance with the terms of the Purchase Agreement and shall be
sent
to the Depositor and Trustee as follows:
In
the
case of MSMCH:
Xxxxxx
Xxxxxxx Mortgage Capital Holdings LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-14AR
4
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 2007-14AR
In
the
case of the Trustee:
LaSalle
Bank National Association,
as
Trustee for the Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-14AR
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Trust Administration- MSM 2007-14AR
In
the
case of the Seller:
GreenPoint
Mortgage Funding, Inc.,
000
Xxxx
Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-14AR
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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Ratification
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Except
as
modified and expressly amended by this Assignment, the Purchase Agreement are
in
all respects ratified and confirmed, and all terms, provisions and conditions
thereof shall be and remain in full force and effect.
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9.
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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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10.
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Definitions
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Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the 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
HOLDINGS LLC,
successor
by merger to 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
GREENPOINT
MORTGAGE
FUNDING,
INC.
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
Vice President
Acknowledged
and Agreed:
LASALLE
BANK NATIONAL
ASSOCIATION,
as Trustee of Xxxxxx Xxxxxxx
Mortgage
Loan Trust 2007-14AR
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 2007-14AR - SEC REPORT PROCESSING
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-14AR
RE: **Additional
Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section 4(a) of
the Assignment, Assumption and Recognition Agreement, dated as of October 1,
2007, among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, GreenPoint Mortgage
Funding, 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:
