Exhibit 99.10a
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of January 1, 2007, is entered into among Xxxxxx
Xxxxxxx Capital I Inc., a Delaware corporation (the "Depositor"), Xxxxxx
Xxxxxxx Mortgage Capital Inc. ("MSMCI"), Lydian Private Bank, as seller (the
"Seller"), and acknowledged by LaSalle Bank National Association, as trustee
(the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-1XS (the "Trust").
RECITALS
WHEREAS MSMCI and the Seller have entered into a certain Second Amended
and Restated Mortgage Loan Purchase and Warranties Agreement, dated as of
September 1, 2006 (the "Purchase Agreement"), pursuant to which MSMCI has
acquired certain Mortgage Loans pursuant to the terms of the Purchase
Agreement;
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 Purchase 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 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 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 and all
obligations of MSMCI with respect to any Mortgage Loans subject to the Purchase
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 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, 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
Purchase Agreement. Accordingly, the right of MSMCI 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, 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, the
Trustee and Xxxxx Fargo Bank, National Association, as securities administrator
and master servicer (the "Securities Administrator"), (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
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, 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'
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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 restates, as of December 1, 2006 (the "Transfer
Date"), 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 securities administrator, the Trustee and the Trust, and by
this reference incorporates such representations and warranties herein, as of
such Transfer Date.
4. Reporting Obligations; Future Covenants; Indemnification
(a) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Seller
shall (i) promptly provide the Depositor and the Securities Administrator
written notice substantially in the form of Exhibit II of the information
required under Section 34.03(d) of the Purchase Agreement.
(b) The indemnification and remedy provisions set forth in Section 34.04
of the Purchase Agreement apply to all information provided under this Section
4 by or on behalf of the Seller and will extend to 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.
This indemnification shall survive the termination of this Agreement or
the termination of any party to this Agreement.
5. Continuing Effect
Except as contemplated hereby, the Purchase 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
Purchase Agreement to be made to MSMCI, the Depositor, the Trustee and the
Seller shall be made in accordance with the terms of the Purchase Agreement and
shall be sent as follows:
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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 2007-1XS
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 2007-1XS
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 2006-17XS
In the case of the Seller:
Lydian Private Bank
0000 XXX Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
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.
8. 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.
9. Definitions
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 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
LYDIAN PRIVATE BANK
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: EVP, General Counsel
Acknowledged and Agreed:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-1XS
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant 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 2006-17XS - SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-17XS
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section 4(a) of the Assignment, Assumption and
Recognition Agreement, dated as of [date], among Xxxxxx Xxxxxxx Capital I Inc.,
as Depositor, Lydian Private Bank, 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:
