ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.11a
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”), Wilmington
Finance, Inc., as seller (the “Seller”), and
acknowledged by LaSalle Bank National Association, as trustee (the “Trustee”) of Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS (the “Trust”).
RECITALS
WHEREAS
MSMCH and the Seller have entered into a certain Mortgage Loan Purchase and
Warranties Agreement, dated as of November 1, 2006 (the “Purchase Agreement”),
pursuant to which MSMCH 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 MSMCH 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:
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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 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. In addition, MSMCH specifically reserves and does not assign
to the Depositor hereunder any and all of its rights and obligations under
Subsections 33.03(e) and 33.04(c) of the Purchase Agreement, including as they
relate to 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, 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 23 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 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 (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.
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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 as of the Effective Date that
it
is duly and legally authorized to enter into this Assignment.
(c) Each
of the Depositor, MSMCH and the Seller represents and warrants as of the
Effective Date 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
2
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 restates, as of June 29, 2007, the representations and warranties
set forth in Subsection 9.01 of the Purchase Agreement and the Seller hereby
restates, as of April 30, 2007, the representations and warranties set forth
in
Subsection 9.02 of the Purchase Agreement (other than the representations and
warranties set forth in Subsection 9.02(a), (f), (h), (ii), (ll), (mm) and
(qq)
of the Purchase Agreement, with respect to which the Seller hereby restates
them
as of June 1, 2007), 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.
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4.
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Reporting
Obligations;
Future Covenants;
Indemnification
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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 Seller shall (i) promptly
provide to the Depositor and the Securities Administrator written notice of
any
voluntary or involuntary bankruptcy filing or other proceeding involving the
Seller as a debtor and (ii) upon request of MSMCH or the Depositor, written
notice regarding all other information required under Section 33.03(d) of the
Purchase Agreement, in each case in substantially in the form of Exhibit II
hereto.
(b) The
indemnification and remedy provisions set forth in Section 33.04 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.
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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 MSMCH, 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 MSMCH:
Xxxxxx
Xxxxxxx Mortgage Capital Holdings LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS
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 2007-10XS
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 2007-10XS
In
the
case of the Seller:
Wilmington
Finance Inc.
000
Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx
Xxxxxxx
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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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 Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
4
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment the day and
year first above written.
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XXXXXX
XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC,
successor
by
merger to Xxxxxx Xxxxxxx Mortgage Capital
Inc.
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By:
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/s/ Xxxxxxx Xxx | |
| Name: Xxxxxxx Xxx | |||
| Title: Vice President | |||
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XXXXXX
XXXXXXX CAPITAL I INC.
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By:
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/s/ Xxxxxxx Xxx | |
| Name: Xxxxxxx Xxx | |||
| Title: Vice President | |||
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WILMINGTON
FINANCE, INC.
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By:
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/s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | |||
| Title: Executive Vice President | |||
Acknowledged
and Agreed:
LASALLE
BANK NATIONAL ASSOCIATION
as
Trustee of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-10XS
By:
/s/
Xxxxx X.
Xxxx
Name:
Xxxxx X. Xxxx
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 2007-10XS - SEC REPORT PROCESSING
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-10XS
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, Wilmington Finance, 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:
