ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.7a
Execution
Version
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment”),
dated as of June 1, 2007 with an effective date of June 29, 2007 (the “Effective
Date”), 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”), Wachovia Mortgage Corporation as seller (“Wachovia,” or
the “Seller”), and acknowledged by LaSalle Bank National Association, as
trustee (the “Trustee”) of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-11AR
(the “Trust”).
RECITALS
WHEREAS
Xxxxxx Xxxxxxx Mortgage Capital Inc. and the Seller have entered into a certain
Seller’s Purchase, Warranties and Interim Servicing Agreement, dated
as of February 28, 2005 and a certain First Amended and Restated Seller’s
Purchase, Warranties and Interim Servicing Agreement, dated as of
June 1, 2006 (together, as amended or modified to the date hereof, the
“Agreement”), pursuant to which MSMCH has acquired certain Mortgage Loans
pursuant to the terms of the Agreement;
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 as
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 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 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, 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 Servicer, 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
Agreement. Accordingly, the right of MSMCH to consent to any
amendment of the Agreement and its rights concerning waivers as set forth in
Sections 11.02 and 8.02 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 (other than the servicing of
the
Specified Mortgage Loans, which shall be enforced by the Master Servicer) 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, Xxxxx Fargo Bank, National Association, as securities
administrator (the “Securities Administrator”) and as master servicer
(the “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, (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 Agreement or this
Assignment.
(b) Each
of
the parties hereto represents and warrants as of the Effective Date that it
is
duly and legally authorized to enter into this Assignment.
(c) Each
of
the Depositor, MSMCH, and Seller hereto represents and warrants as of the
Effective Date that this Assignment has been duly authorized, executed and
delivered by it and (assuming
2
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).
(d) The
Seller hereby makes, as of the Closing Date (as defined in the Pooling and
Servicing Agreement referred to below), the representations and warranties
set
forth in Section 3.01 of the Agreement, to and for the benefit of the Depositor,
the Trustee and the Trust, and by this reference incorporates such
representations and warranties herein, as of such Closing Date. The
Seller hereby restates as of the closing date (as defined in the Agreement)
the
representations and warranties set forth in Section 3.02 of the Agreement to
and
for the benefit of the Depositor, the Trustee and the Trust, and by this
reference incorporates such representations and warranties as of such
date.
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4.
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Continuing
Effect
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Except
as
contemplated hereby, the Agreement shall remain in full force and effect in
accordance with its terms.
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5.
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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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6.
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Notices
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Any
notices or other communications permitted or required under the Agreement to
be
made to the Depositor, MSMCH, the Seller, and the Trustee shall be made in
accordance with the terms of the Agreement and shall be sent 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 2007-11AR
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 2007-11AR
3
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 2007-11AR
In
the
case of Wachovia:
Wachovia
Mortgage Corporation
000
Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx
Xxxxxx
With
a
copy to:
Wachovia
Mortgage Corporation
0000
Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxx
Xxxxxx
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.
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7.
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Ratification
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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.
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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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Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the Agreement.
[SIGNATURE
PAGE FOLLOWS]
4
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
WACHOVIA MORTGAGE
CORPORATION
By:
/s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: Vice
President
Acknowledged
and Agreed:
LASALLE
BANK NATIONAL ASSOCIATION
as
Trustee of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-11AR
By:
/s/ Xxxx
Xxxxxxx
Name:
Xxxx
Xxxxxxx
Title:
Assistant
Vice President
EXHIBIT
I
Mortgage
Loan Schedule
[see
Schedule A to Pooling and Servicing Agreement]
