ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (Servicing Released/MMLPISA dated November 1, 2006)
(Servicing
Released/MMLPISA dated November 1, 2006)
This
is
an Assignment, Assumption and Recognition Agreement (this “AAR
Agreement”)
made
as of July 31, 2007, among HSBC Bank, National Association (the “Assignor”),
HSI
Asset Securitization Corporation (the “Assignee”),
Xxxxx
Fargo Bank, N.A. as master servicer (the “Master
Servicer”),
Deutsche Bank National Trust Company (the “Trustee”)
not
individually but solely as trustee on behalf of the HSI Asset Loan Obligation
Trust 2007-AR2, American Home Mortgage Corp. (the “Company”)
and
American Home Mortgage Servicing, Inc. (the “Servicer”).
In
consideration of the mutual promises contained herein the parties hereto agree
that the residential mortgage loans (the “Assigned
Loans”)
listed
on Attachment 1 annexed hereto (the “Assigned
Loan Schedule”)
purchased by Assignor from Company pursuant to the Master Mortgage Loan Purchase
and Interim Servicing Agreement, dated as of November 1, 2006, between Assignor,
Servicer and Company (the “Purchase
Agreement”),
shall
be subject to the terms of this AAR Agreement. Capitalized terms used herein
but
not defined shall have the meanings ascribed to them in the Purchase
Agreement.
Assignment
and Assumption
1. Assignor
hereby grants, transfers and assigns to Assignee all of the right, title,
interest and obligations of Assignor in the Assigned Loans and, as they relate
to the Assigned Loans, all of its right, title, interest and obligations in,
to
and under the Purchase Agreement and Assignee hereby assumes all rights and
obligations with respect to the Assigned Loans under the Purchase Agreement.
Assignor specifically reserves and does not assign to Assignee any right title
and interest in, to or under any Mortgage Loans subject to the Purchase
Agreement other than those set forth on Attachment l. The Servicer shall service
the Assigned Loans in accordance with the Purchase Agreement as modified by
this
AAR Agreement.
Recognition
of the Company
2. From
and
after the date hereof, the Company shall and does hereby recognize that the
Assignee will transfer the Assigned Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this AAR
Agreement to HSI Asset Loan Obligation Trust 2007-AR2 (the “Trust”)
created pursuant to a Pooling and Servicing Agreement, dated as of July 1,
2007
(the “Pooling
Agreement”),
among
the Assignee as Depositor, the Trustee, the Master Servicer, Xxxxx Fargo Bank,
N.A. as securities administrator (the “Securities Administrator) and Xxxxx Fargo
Bank, N.A. as custodian (the “Custodian”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Assigned Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations of
the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Assigned Loans, and the Trust
hereby acknowledges that it has assumed such representations, warranties and
covenants and that any claim by the Company with respect thereto shall be made
by written notice to the Trustee, (iii) the Trust shall have all the rights
and remedies available to the Assignor, insofar as they relate to the Assigned
Loans, under the Purchase Agreement, including, without limitation, the
enforcement of the document delivery requirements and remedies with respect
to
breaches of representations and warranties set forth in the Purchase Agreement,
and shall be entitled to enforce all of the obligations of the Company
thereunder insofar as they relate to the Assigned Loans, and (iv) all
references to the Purchaser (insofar as they relate to the rights, title and
interest and, with respect to obligations of the Purchaser, only insofar as
they
relate to the enforcement of the representations, warranties and covenants
of
the Company) under the Purchase Agreement insofar as they relate to the Assigned
Loans, shall be deemed to refer to the Trust. Neither the Company nor the
Assignor shall amend or agree to amend, modify, waive, or otherwise alter any
of
the terms or provisions of the Purchase Agreement which amendment, modification,
waiver or other alteration would in any way affect the Assigned Loans or the
Company’s performance under the Purchase Agreement with respect to the Assigned
Loans without the prior written consent of the Assignee, the Master Servicer
and
the Trustee. Any party requesting such amendment shall, at its own expense,
provide to the Assignee, the Master Servicer and the Trustee, an opinion of
counsel stating that (i) such amendment is permitted under the terms of the
Purchase Agreement and (ii) such amendment will not materially and adversely
affect the interests of the holders of any securities issued by the Trust.
The
Company acknowledges that Xxxxx Fargo Bank, N.A. has been appointed as the
Master Servicer of the Assigned Loans pursuant to this AAR Agreement and
therefore has the right to enforce all obligations of the Company as they relate
to the Assigned Loans under the Purchase Agreement and this AAR
Agreement.
Representations;
Warranties and Covenants
3. Assignor
warrants and represents to Assignee, the Master Servicer, the Trust and Company
as of the date hereof:
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a.
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Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase
Agreement, which agreement is in full force and effect as of the
date
hereof and the provisions of which have not been waived, amended
or
modified in any respect, nor has any notice of termination been given
thereunder;
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b.
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Assignor
is the lawful owner of the Assigned Loans with full right to transfer
the
Assigned Loans and any and all of its interests, rights and obligations
under the Purchase Agreement as they relate to the Assigned Loans,
free
and clear of any and all liens, claims and encumbrances; and upon
the
transfer of the Assigned Loans to Assignee as contemplated herein,
Assignee shall have good title to each and every Assigned Loan, as
well as
any and all of Assignor's interests, rights and obligations under
the
Purchase Agreement as they relate to the Assigned Loans, free and
clear of
any and all liens, claims and encumbrances;
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2
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c.
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Assignor
has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to Company with respect
to the
Assigned Loans or the Purchase Agreement;
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d.
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Assignor
is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation, and has all
requisite
power and authority to acquire, own and sell the Assigned Loans;
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e.
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Assignor
has full power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignor's business
and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignor's charter or by-laws or any
legal
restriction, or any material agreement or instrument to which Assignor
is
now a party or by which it is bound, or result in the violation of
any
law, rule, regulation, order, judgment or decree to which Assignor
or its
property is subject. The execution, delivery and performance by Assignor
of this AAR Agreement and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary action
on
the part of Assignor. This AAR Agreement has been duly executed and
delivered by Assignor and, upon the due authorization, execution
and
delivery by Assignee and Company, will constitute the valid and legally
binding obligation of Assignor enforceable against Assignor in accordance
with its terms except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws now
or
hereafter in effect relating to creditors' rights generally, and
by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at law;
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f.
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No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by Assignor in connection with the execution, delivery
or
performance by Assignor of this AAR Agreement, or the consummation
by it
of the transactions contemplated hereby; and
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g.
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There
is no action, suit, proceeding, investigation or litigation pending
or, to
Assignor's knowledge, threatened, which either in any instance or
in the
aggregate, if determined adversely to Assignor, would adversely affect
Assignor's execution or delivery of, or the enforceability of, this
AAR
Agreement, or the Assignor's ability to perform its obligations under
this
AAR Agreement.
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4. Assignee
warrants and represents to, and covenants with, Assignor, the Master Servicer,
the Trust and Company as of the date hereof:
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a.
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Assignee
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its organization and has all requisite power
and
authority to acquire and own the Assigned Loans;
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3
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b.
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Assignee
has full power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Assignee's business
and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Assignee's organizational
documentation or
any legal restriction, or any material agreement or instrument to
which
Assignee is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which
Assignee or its property is subject. The execution, delivery and
performance by Assignee of this AAR Agreement and the consummation
by it
of the transactions contemplated hereby, have been duly authorized
by all
necessary action on the part of Assignee. This AAR Agreement has
been duly
executed and delivered by Assignee and, upon the due authorization,
execution and delivery by Assignor and Company, will constitute the
valid
and legally binding obligation of Assignee enforceable against Assignee
in
accordance with its terms except as enforceability may be limited
by
bankruptcy, reorganization, insolvency, moratorium or other similar
laws
now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability
is
considered in a proceeding in equity or at law;
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c.
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No
material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required
to be
obtained or made by Assignee in connection with the execution, delivery
or
performance by Assignee of this AAR Agreement, or the consummation
by it
of the transactions contemplated hereby;
and
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d.
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There
is no action, suit, proceeding, investigation or litigation pending
or, to
Assignee's knowledge, threatened, which either in any instance or
in the
aggregate, if determined adversely to Assignee, would adversely affect
Assignee's execution or delivery of, or the enforceability of, this
AAR
Agreement, or the Assignee's ability to perform its obligations under
this
AAR Agreement.
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5. Company
warrants and represents to, and covenants with, Assignor, the Master Servicer,
the Trust and Assignee as of the date hereof:
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a.
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Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase
Agreement, which agreement is in full force and effect as of the
date
hereof and the provisions of which have not been waived, amended
or
modified in any respect, nor has any notice of termination been given
thereunder;
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4
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b.
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Company
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction of its incorporation, and has all requisite power
and
authority to perform its obligations under the Purchase Agreement;
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c.
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Company
has full corporate power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set forth herein. The consummation of the transactions contemplated
by
this AAR Agreement is in the ordinary course of Company's business
and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of Company’s organizational documentation or any
legal restriction, or any material agreement or instrument to which
Company is now a party or by which it is bound, or result in the
violation
of any law, rule, regulation, order, judgment or decree to which
Company
or its property is subject, except in such case where the conflict,
breach
or violation would not have a material adverse effect on the Company
or
its ability to perform its obligations under this AAR Agreement.
The
execution, delivery and performance by Company of this AAR Agreement
and
the consummation by it of the transactions contemplated hereby, have
been
duly authorized by all necessary corporate action on the part of
Company.
This AAR Agreement has been duly executed and delivered by Company,
and,
upon the due authorization, execution and delivery by Assignor and
Assignee, will constitute the valid and legally binding obligation
of
Company, enforceable against Company in accordance with its terms
except
as enforceability may be limited by bankruptcy, reorganization,
insolvency, moratorium or other similar laws now or hereafter in
effect
relating to creditors’ rights generally, and by general principles of
equity regardless of whether enforceability is considered in a proceeding
in equity or at law;
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d.
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No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by Company in connection with the execution, delivery or performance
by Company of this AAR Agreement, or the consummation by it of the
transactions contemplated hereby;
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e.
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There
is no action, suit, proceeding, investigation or litigation pending
or, to
Company's knowledge, threatened, which either in any instance or
in the
aggregate, if determined adversely to Company, would adversely affect
Company's execution or delivery of, or the enforceability of, this
AAR
Agreement, or the Company's ability to perform its obligations under
this
AAR Agreement; and
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f.
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Pursuant
to Section 12 of the Purchase Agreement, the Company hereby represents
and
warrants, for the benefit of the Assignor, the Assignee, the Master
Servicer and the Trust, that the representations and warranties set
forth
in Section 7.01 and 7.02 of the Purchase Agreement, are true and
correct
as of the date hereof in all material respects, except that the
representation and warranty set forth in Section 7.02(i) shall, for
purposes of this AAR Agreement, relate to the Mortgage Loan Schedule
attached hereto.
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5
6. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Master Servicer, the Assignee and the Trust (including the
Assignee and the Company acting on the Trust’s behalf) in connection with any
breach of the representations and warranties made by the Company set forth
in
Section 5 hereof shall be as set forth in Subsection 7.03 of the Purchase
Agreement as if they were set forth herein (including without limitation the
repurchase and indemnity obligations set forth therein).
7. In
connection with the transfer of the Assigned Loans hereunder, the Company and
the Servicer agree that, solely with respect to the Assigned Loans, the
following modifications shall be made (all capitalized terms used below shall
have the meanings assigned to such terms by this AAR Agreement and such terms
shall be incorporated into the Purchase Agreement):
(i) Section
1
of the Purchase Agreement shall be amended so that the definition of Regulation
AB is deleted in its entirely and replaced with the following: “Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17
C.F.R.
§§229.1 100-229.1123, as such may be amended from time to time, and subject to
such clarification
and interpretation as have been provided by the Commission in the adopting
release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631
(Jan.
7, 2005))
or
by the staff of the Commission, or as may be provided by the Commission or
its
staff from
time
to time.”
(ii) Section
1
of the Purchase Agreement shall be amended so that the definition of Business
Day is deleted in its entirely and replaced with the following: “Any day other
than a Saturday or Sunday, or a day on which banking and savings and loan
institutions in the States of Maryland, Minnesota or New York are authorized
or
obligated by law or executive order to be closed.”
(iii)
Section
1
of the Purchase Agreement shall be amended so that the definition of
“Determination Date” is added after the definition of “Depositor” and before the
definition of “Distribution Date”. The added definition of “Determination Date”
shall contain the following language: “With respect to each Distribution Date,
the fifteenth (15th) day of the calendar month in which such Distribution Date
occurs or, if such fifteenth (15th) day is not a Business Day, the Business
Day
immediately preceding such fifteenth (15th) day.”
6
(iv) Section
1
of the Purchase Agreement shall be amended so that the definition of
Distribution Date thereof is deleted and replaced with “The eighteenth (18th)
day of each month, commencing on the eighteenth day of the month next following
in the month in which the related Cut-off Date occurs, or if such eighteenth
(18th) is not a Business Day, the first Business Day immediately preceding
such
eighteenth (18th) day.”
8. Notwithstanding
any term hereof to the contrary, the execution and delivery of this AAR
Agreement by the Trustee is solely in its capacity as trustee for the Trust
and
not individually, and any recourse against the Trustee in respect of any
obligations it may have under or pursuant to the terms of this AAR Agreement
shall be limited solely to the assets it may hold as trustee of the Trust.
It is
expressly understood and agreed by the parties hereto that (i) this AAR
Agreement is executed and delivered by the Trustee, not individually or
personally but solely as trustee on behalf of the Trust, in the exercise of
the
powers and authority conferred upon and vested in it, (ii) each of the
representations, undertakings and agreements by the Assignee is made and
intended for the purpose of binding only the Trust, (iii) nothing herein
contained shall be construed as creating any liability on the part of the
Trustee, individually or personally, to perform any covenant (either express
or
implied) contained herein, and all such liability, if any, is hereby expressly
waived by the parties hereto, and such waiver shall bind any third party making
a claim by or through one of the parties hereto, and (iv) under no circumstances
shall the Trustee be personally liable for the payment of any indebtedness
or
expenses of the Trust (including, but not limited to, any amounts to be paid
under the Purchase Agreement), or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Trust
under this AAR Agreement, the Pooling Agreement or any related
document.
Miscellaneous
9. All
demands, notices and communications related to the Assigned Loans, the Purchase
Agreements and this AAR Agreement shall be in writing and shall be deemed to
have been duly given if personally delivered or mailed by registered mail,
postage prepaid, as follows:
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a.
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In
the case of Company,
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American
Home Mortgage Corp.
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000
Xxxxxxxxxxx Xxxx
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Xxxxxxxx,
Xxx Xxxx 00000
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Attention:
Xxxxxx X. Xxxxxxx, Xx.
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With
copies to:
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American
Home Mortgage Corp.
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000
Xxxxxxxxxxx Xxxx
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Xxxxxxxx,
Xxx Xxxx 00000
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Attention:
Xxxx X. Xxxx, General Counsel
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b.
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In
the case of Assignor,
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HSBC
Bank USA, National Association
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Re:
HALO 2007-AR2
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
ABS/MBS Structured Finance
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c.
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In
the case of Assignee,
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000
Xxxxx Xxxxxx, 00xx xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
ABS/MBS Structured Finance
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c.
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In
the case of Trustee,
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Deutsche
Bank National Trust Company
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0000
Xx. Xxxxxx Xxxxx
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Xxxxx
Xxx, Xxxxxxxxxx 00000
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Attn: Trust
Administration - HB07L2
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d.
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In
the case of the Master Servicer:
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Xxxxx
Fargo Bank, N.A.
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0000
Xxx Xxxxxxxxx Xxxx,
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Xxxxxxxx,
Xxxxxxxx 00000
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Attention:
Client Manager - HALO 2007-AR2
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In
the case of the Securities Administrator:
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Xxxxx
Fargo Bank, N.A.
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0000
Xxx Xxxxxxxxx Xxxx,
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Xxxxxxxx,
Xxxxxxxx 00000
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Attention:
Client Manager - HALO
2007-AR2
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10. This
AAR
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.
11. No
term
or provision of this AAR 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.
12. This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which Assignor, Assignee or Company may be
merged or consolidated shall without the requirement for any further writing,
be
deemed Assignor, Assignee or Company, respectively hereunder.
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13. This
AAR
Agreement shall survive the conveyance of the Assigned Loans as contemplated
in
this AAR Agreement.
14. This
AAR
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.
15. In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Purchase Agreement with respect to the Assigned Loans, the terms of this
AAR
Agreement shall control.
[SIGNATURE
PAGE FOLLOWS]
9
IN
WITNESS WHEREOF,
the
parties hereto have executed this AAR Agreement as of the day and year first
above written.
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HSBC
BANK USA, NATIONAL ASSOCIATION
Assignor
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| By: /s/ Xxxxxxx Xxxxxx | |||
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Name:
Xxxxxxx Xxxxxx
Title:
Officer #15568
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| By: /s/ Xxxxxx Xxxxx | |||
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Name:
Xxxxxx Xxxxx
Title:
Vice President
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AMERICAN
HOME MORTGAGE CORP.
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| By: /s/ Xxxx X. Xxxx | |||
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Name:
Xxxx X. Xxxx
Title:
Executive Vice President General
Counsel & Secretary
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AMERICAN
HOME MORTGAGE SERVICING, INC.
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|||
| By: /s/ Xxxx X. Xxxx | |||
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Name:
Xxxx X. Xxxx
Title:
Executive Vice President General
Counsel & Secretary
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DEUTSCHE
BANK NATIONAL TRUST COMPANY, as
Trustee
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| By: /s/ Xxxxxxx Xxxxx | |||
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Name:
Xxxxxxx Xxxxx
Title:
Vice President
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XXXXX
FARGO BANK, N.A.,
as Master Servicer
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| By: /s/ Xxxxxx Xxxx | |||
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Name:
Xxxxx Xxxx
Title:
Vice President
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ATTACHMENT
1
(form
of
Assigned Loan Tape)
11
ATTACHMENT
2
(Form
of
Purchase Agreement)
12
