Exhibit 99.13a
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"),
dated as of March 1, 2007, is entered into among Xxxxxx Xxxxxxx Capital I Inc.,
a Delaware corporation (the "Depositor"), Xxxxxx Xxxxxxx Mortgage Capital Inc.
("MSMCI"), Wilmington Finance, Inc., as seller (the "Seller"), and acknowledged
by LaSalle Bank National Association, as trustee (the "Trustee") of Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-6XS (the "Trust").
RECITALS
WHEREAS MSMCI 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 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. In addition, MSMCI
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, 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 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 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 March 30, 2007, the representations
and warranties set forth in Subsection 9.01 of the Purchase Agreement and the
Seller hereby restates, as of January 31, 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 March 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.
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 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 MSMCI 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.
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 2007-6XS
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 2007-6XS
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 2007-6XS
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.
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
WILMINGTON FINANCE, INC.
By: /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 2007-6XS
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
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 2007-6XS - SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-6XS
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:
