ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
EXHIBIT
99.5a
EXECUTION
VERSION
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment”),
dated as of July 1, 2007, 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”), First National Bank of Nevada, as seller (the
“Seller”), and acknowledged by LaSalle Bank National Association, as
trustee (the “Trustee”) of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-12
(the “Trust”).
RECITALS
WHEREAS
MSMCH and the Seller have entered into a certain Master Mortgage Loan Purchase
and Warranties Agreement, dated as of January 20, 2005 (the “January Purchase
Agreement”), a certain First Amended and Restated Mortgage Loan Purchase and
Warranties Agreement, dated as of October 1, 2005 (the “October Purchase
Agreement”), and a certain Second Amended and Restated Mortgage Loan
Purchase and Warranties Agreement, dated as of April 1, 2006 (the “April
Purchase Agreement” and together with the January Purchase Agreement and the
October Purchase Agreement, the “Purchase Agreements”), pursuant to which
MSMCH has acquired certain Mortgage Loans;
WHEREAS,
in connection with the transfer of the Mortgage Loans hereunder, the Seller
agrees that, from and after the date hereof, each Mortgage Loan transferred
hereunder will be subject to the October 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 Agreements 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 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 Agreements 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 Agreements which are not the Specified Mortgage
Loans.
(b) On
and 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 Agreements 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.
2. Recognition
of
Trustee
(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
Agreements. Accordingly, the right of MSMCH to consent to any
amendment of the Purchase Agreements and its rights concerning waivers as set
forth in Section 22 of the October 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 Agreements 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, Xxxxx Fargo Bank, National Association, as securities administrator
(the “Securities
Administrator”) and
master servicer (the “Master Servicer”), and the Trustee, (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 MSMCH other than those contained in the Purchase Agreements
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, MSMCH 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’ 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 (a) as of the Closing Date (as defined in the Pooling
and
Servicing Agreement), the representations and warranties set forth in Section
9.01 of the Purchase Agreements, 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 Closing
Date, and (b) as of the closing date (as defined in the Purchase Agreements),
the representations and warranties set forth in Section 9.02 of the Purchase
Agreements, with respect to each of the Specified Mortgage Loans that were
sold
by it under the Purchase Agreements, 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 closing
date.
4. Continuing
Effect
Except
as
contemplated hereby, the Purchase Agreements 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
(a) Any
notices or other communications permitted or required under the Purchase
Agreements to be made to MSMCH, the Depositor, the Trustee and the Seller shall
be made in accordance with the terms of the Purchase Agreements and shall be
sent as follows:
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 2007-12
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 2007-12
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 2007-12
In
the
case of the Seller:
First
National Bank of Nevada
0000
Xxxx
Xxxxxxx Xxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
Secondary Marketing
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
Agreements.
(b) Information
provided pursuant to Section 35.03(d) of the April Purchase Agreement shall
be
substantially in the form of Exhibit A attached hereto.
7. Ratification
Except
as
modified and expressly amended by this Assignment, the Purchase Agreements
are
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 October Purchase 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 HOLDINGS LLC,
successor
by merger to Xxxxxx Xxxxxxx Mortgage Capital Inc.
By:
___________________________________
Name:
Title:
XXXXXX
XXXXXXX CAPITAL I INC.
By:
___________________________________
Name:
Title:
FIRST
NATIONAL BANK OF NEVADA
By:
___________________________________
Name:
Title:
Acknowledged
and Agreed:
LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee of Xxxxxx Xxxxxxx
Mortgage
Loan Trust 2007-12
By:
___________________________________
Name:
Title:
EXHIBIT
I
Mortgage
Loan Schedule
[see
Schedule A to Pooling and Servicing Agreement]
EXHIBIT
A
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 2007-12 - SEC REPORT PROCESSING
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-12
RE: **Additional
Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section 35.03(d)
of the Second Amended and Restated Mortgage Loan Purchase and Warranties
Agreement between Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC, successor by
merger to Xxxxxx Xxxxxxx Mortgage Capital Inc. and First National Bank of
Nevada, dated as of April 1, 2006, 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: | |
