Exhibit 99.8a
EXECUTION VERSION
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"), GreenPoint Mortgage Funding, Inc. as seller (in such capacity, the
"Seller") and servicer (in such capacity, the "Servicer"), and acknowledged by
LaSalle Bank National Association, as trustee (the "Trustee") of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2007-6XS (the "Trust"), and Xxxxx Fargo Bank, National
Association, as master servicer (or any successor master servicer, the "Master
Servicer").
RECITALS
WHEREAS MSMCI, the Seller and the Servicer have entered into a certain
First Amended and Restated Mortgage Loan Sale And Servicing Agreement, dated as
of March 15, 2005 (the "March Purchase Agreement), a certain Fourth Amended and
Restated Mortgage Loan Sale And Servicing Agreement, dated as of December 1,
2005 (the "December Purchase Agreement") and a certain Fifth Amended and
Restated Mortgage Loan Sale And Servicing Agreement, dated as of June 1, 2006,
(the "Agreement," and together with the March Purchase Agreement, the December
Purchase Agreement and as further amended or modified to the date hereof, the
"Agreements"), pursuant to which MSMCI has acquired certain Mortgage Loans
pursuant to the terms of the Agreements and the Servicer has agreed to service
such Mortgage Loans; and, in connection with the transfer of the Mortgage Loans
hereunder, the Seller and Servicer agree that, from and after the date hereof,
each Mortgage Loan transferred hereunder will be subject to, and serviced under,
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 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 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, and Servicer
shall service the Specified Mortgage Loans for the benefit of the Trust pursuant
to the Agreement, the terms of which are incorporated herein by reference. 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 Section 28 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, the Master Servicer, Xxxxx Fargo Bank, National
Association, as securities administrator, and the Trustee (the "Pooling and
Servicing Agreement") for the Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-6XS,
Mortgage Pass-Through Certificates, Series 2007-6XS, (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.
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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, Seller and Servicer 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, as of the Closing Date (as defined in the
Pooling and Servicing Agreement), the representations and warranties set forth
in Sections 7.01 and 7.02 of the Agreement, with respect to each of the
Specified Mortgage Loans that were sold by it under 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.
(e) The Servicer hereby represents and warrants to the Assignee that, to
the extent the Mortgage Loans will be part of a REMIC, the Servicer shall
service the Mortgage Loans and any real property acquired upon default thereof
(including, without limitation, making or permitting any modification, waiver or
amendment of any term of any Mortgage Loan) in accordance with the Servicing
Agreement, but in no event in a manner that would (a) cause the REMIC to fail or
qualify as a REMIC or (b) result in the imposition of a tax upon the REMIC
(including, but not limited to, the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code, the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code and the tax on "net income from foreclosure
property" as set forth in Section 860G(c) of the Code).
4. The Servicer hereby acknowledges that Xxxxx Fargo Bank, National
Association has been appointed as the Master Servicer of the Specified Mortgage
Loans pursuant to the Pooling and Servicing Agreement and, therefore, has the
right to enforce all obligations of the Servicer under the Agreement. Such
rights will include, without limitation, the right to terminate the Servicer
under the Agreement upon the occurrence of an event of default thereunder, the
right to receive all remittances required to be made by the Servicer under the
Agreement, the right to receive all monthly reports and other data required to
be delivered by the Servicer under the Agreement, the right to examine the books
and records of the Servicer, indemnification rights and the right to exercise
certain rights of consent and approval relating to actions taken by MSMCI. The
Servicer shall make all distributions under the Agreement to the Master Servicer
by wire transfer of immediately available funds to:
Xxxxx Fargo Bank, National Association
ABA Number: 000-000-000
Account Name: Corporate Trust Clearing
Account number: 0000000000
For further credit to: 50996400, MSM 2007-6XS
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The Servicer shall deliver all reports required to be delivered to the
Purchaser under the Agreement to the Master Servicer at the following address:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager, MSM 2007-6XS
Office Number: (000) 000-0000
Telecopier: (000) 000-0000
5. Amendments to the Agreement
The parties to this Assignment hereby agree to amend the Agreement as
follows:
(a) With respect to the Specified Mortgage Loans, the term "Eligible
Investments" as used in the Agreement shall be replaced with the term
"Permitted Investments," which shall have the meaning of such term as
defined in the Pooling and Servicing Agreement.
(b) With respect to the Specified Mortgage Loans, subsection
12.01(c)(ii), the reference to "Subsection 11.20" in the third line is
revised to refer to "Subsection 11.20 and Subsection 11.21".
(c) With respect to the Specified Mortgage Loans, subsection 14.02(b)
of the Agreement is hereby deleted in its entirety.
6. Indemnification
The Master Servicer shall indemnify and hold harmless the Servicer and its
affiliates, and in each case, its officers, directors and agents from and
against any losses, damages, penalties, fines, forfeitures, reasonable legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach by the Master Servicer or any of its officers, directors,
agents or affiliates of its obligations in connection with the preparation,
filing and certification of any Form 10-K pursuant to the Pooling and Servicing
Agreement or the negligence, bad faith or willful misconduct of the Master
Servicer in connection therewith. In addition, the Master Servicer shall
indemnify and hold harmless the Servicer and its affiliates, and in each case,
its officers, directors and agents from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach by
any Servicer (as defined in the Pooling and Servicing Agreement), other than the
Servicer (as defined herein), of its obligations in connection with any back-up
certification (or any other back-up documents) to any certification of any Form
10-K required to be provided by the Master Servicer, but solely to the extent
the Master Servicer receives amounts from such Servicer in connection with any
indemnification provided by such Servicer (in each case as defined in the
Pooling and Servicing Agreement) to the Master Servicer.
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7. Continuing Effect
Except as contemplated hereby, the Agreement shall remain in full force and
effect in accordance with its terms.
The Servicer hereby agrees that, for so long as the Trust is reporting
under the Exchange Act, its obligations under Section 34 of the Agreement, as
modified by this Assignment, shall survive the termination and removal of the
Servicer as servicer of the Specified Mortgage Loans in the Trust and continue
to apply for each calendar year or portion thereof during which the Servicer
services the Specified Mortgage Loans.
8. 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.
9. Notices
Any notices or other communications permitted or required under the
Agreement to be made to the Depositor, MSMCI, the Master Servicer, the Seller,
the Servicer and the Trustee shall be made in accordance with the terms of the
Agreement and shall be sent to the Depositor and Trustee 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 2007-6XS
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
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In the case of the Trustee:
LaSalle Bank National Association,
as Trustee for the Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-6XS
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services MSM 2007-6XS
In the case of the Seller and the Servicer:
GreenPoint Mortgage Funding, Inc.,
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-6XS
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.
10. 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.
11. 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.
12. Definitions
Any capitalized term used but not defined in this Assignment has the same
meaning as in the 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
GREENPOINT MORTGAGE FUNDING, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Acknowledged and Agreed:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxxxx Xxxxx
----------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
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]
