ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.9a
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”),
NetBank, 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 NetBank entered into a certain First Amended and Restated Mortgage
Loan Purchase and Warranties Agreement, dated as of November 1, 2005 (as amended
or modified to the date hereof, the “Agreement”),
pursuant to which MSMCI has acquired certain Mortgage Loans pursuant to the
terms of the Agreement; and
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 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:
|
1.
|
Assignment
and Assumption
|
(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 related thereto as provided under the 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 all obligations of MSMCI with respect
to any Mortgage Loans subject to the Agreement which are not 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 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.
|
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 Agreement.
Accordingly, the right of MSMCI to consent to any amendment of the Agreement
and
its rights concerning waivers as set forth in Section 23 of the Agreement shall
be exercisable, to the extent any such amendment or waiver affects the Specified
Mortgage Loans or any of the rights under the 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, 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 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.
|
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 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 represents and warrants that (i) there is no action, suit, proceeding
or
investigation pending or, (ii) to the best of the Seller’s knowledge threatened,
against the Seller which, either in any one instance or in the aggregate, might
result in any material liability on the part of the Seller or result in any
material impairment of the right or ability of the Seller to carry on its
business substantially as now conducted or which would draw into question the
validity of the Agreements, or the mortgage loans or of any action taken or
to
be taken in connection with the transactions contemplated hereby, or which
would
be likely to impair materially the ability of the Seller to perform under the
terms of the Agreements and the Seller knows of no action, suit, proceeding
or
investigation pending or threatened against the Seller which, either in any
one
instance or in the aggregate, might have a material adverse impact on the
business, operations, financial condition, properties or assets of the
Seller.
(e) The
Seller hereby restates, as of the Closing Date (as defined in the Pooling and
Servicing Agreement dated as of the date hereof (the “Pooling
and Servicing Agreement”)
among
the Depositor, Xxxxx Fargo Bank Minnesota, National Association, as securities
administrator and master servicer, and the Trustee), the representations and
warranties set forth in sections 9.01 and 9.02 of the Agreement, with respect
to
each of the Specified Mortgage Loans that were sold by it under the Agreement,
subject to such events or circumstances which may have occurred or arisen since
the related Closing Date (as defined in the 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 Closing Date (as defined in the Pooling and Servicing Agreement).
|
4.
|
Future
Covenants
|
(a) For
the
purpose of satisfying the Depositor’s reporting obligations under the Exchange
Act with respect to any class of asset-backed securities, the Depositor hereby
requests and the Seller hereby agrees to promptly provide the Depositor and
the
Securities Administrator with written notice and descriptions of all matters
set
forth in Section 35.03(d) of the Agreement substantially in the form of Exhibit
II attached hereto.
(b) Indemnification;
Remedies.
(i) The
Seller shall indemnify pursuant to Section 35.04 of the Agreement.
|
5.
|
Continuing
Effect
|
Except
as
contemplated hereby, the Agreement 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 Agreement to
be
made to the Depositor and the Trustee shall be made in accordance with the
terms
of the Agreement and shall be sent to the Depositor and Trustee as
follows:
3
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:
NetBank
0000
Xxx
Xxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Director of Loan Administration
With
a
copy to Chief Legal Officer and Contract Negotiations and Investor
Relations
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
Agreement.
4
|
8.
|
Ratification
|
Except
as
modified and expressly amended by this Assignment, the Agreement is 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 Agreement.
[SIGNATURE
PAGE FOLLOWS]
5
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment effective
as
of 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
NETBANK
By:
/s/ Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Officer
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
35.03(d) of the First Amended and Restated Mortgage Loan Purchase and
Warranties Agreement between Xxxxxx Xxxxxxx Mortgage Capital Inc. and NetBank,
dated as of November 1, 2005, 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:
|
