ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.14a
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”),
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 2007-5AX (the “Trust”).
RECITALS
WHEREAS
MSMCI 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 MSMCI 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 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 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 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 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 Servicer, 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 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
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 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.
| 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 Seller hereto 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).
(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.
| 4. |
Continuing
Effect
|
Except
as contemplated hereby, the Agreement shall remain in full force and effect
in
accordance with its terms.
| 5. |
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.
| 6. |
Notices
|
Any
notices or other communications permitted or required under the Agreement to
be
made to the Depositor, MSMCI, 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 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 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.
| 7. |
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.
| 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 Agreement.
[SIGNATURE
PAGE FOLLOWS]
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
WACHOVIA
MORTGAGE CORPORATION
By:
/s/ Xxxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Vice President
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]
