ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Execution
Version
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment
Agreement”)
made
this 26th day of February 2007 (the “Closing
Date”),
JPMorgan Chase Bank, National Association (the “Servicer”),
Chase
Home Finance LLC (the “Seller”),
Bank
of America, National Association (the “Assignor”)
and
Xxxxxxx Xxxxx Mortgage Company (the “Assignee”).
WHEREAS,
the Assignor, the Servicer, the Seller and X.X. Xxxxxx Mortgage Acquisition
Corp. (“JPMMAC”)
have
entered into certain Assignment, Assumption and Recognition Agreements, dated
as
of April 27, 2006 and May 17, 2006 (the “Chase
AARs”),
pursuant to which JPMMAC sold to the Assignor certain mortgage loans (the
“Mortgage
Loans”)
listed
on the mortgage loan schedule attached as Exhibit 1
hereto
(the “Mortgage
Loan Schedule”)
and
assigned the certain Flow Mortgage Loan Purchase, Warranties and Servicing
Agreement, dated as of May 1, 2004, as amended by Amendment No. 1, dated as
of
January 1, 2005, Amendment No. 2, dated as of December 1, 2005 and Amendment
Reg
AB, dated as of January 1, 2006, each by and among JPMMAC, the Servicer and
the
Seller (collectively, the “2004
Purchase and Servicing Agreement”)
to the
extent relating to the Mortgage Loans, and only the Mortgage Loans;
WHEREAS,
pursuant to the Chase AARs, the Servicer additionally agreed to service the
Mortgage Loans in accordance with the certain Mortgage Loan Purchase, Warranties
and Servicing Agreement, dated as of January 1, 2005, between the Assignor
and
the Seller (the “2005
Purchase and Servicing Agreement”
and
together with the 2004 Purchase and Servicing Agreement, the “Purchase
and Servicing Agreements”)
for
the benefit of the Assignor and its successors and assigns;
WHEREAS,
the Assignor and the Servicer have previously entered into the certain Amendment
Reg AB, dated as of January 1, 2006 (the “Amendment
Reg AB”),
the
terms of which are incorporated by reference herein for the purposes provided
herein and made part hereof;
WHEREAS,
pursuant to the Chase AARs, the Servicer and the Seller made certain
representations and warranties regarding the Mortgage Loans pursuant to the
2004
Purchase and Servicing Agreement;
WHEREAS,
the Assignee desires, and the Servicer has agreed, that the Servicer shall
continue to service the Mortgage Loans in accordance with the terms of the
2005
Purchase and Servicing Agreement and that the Amendment Reg AB shall be
applicable to the Mortgage Loans on and after this date; and
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Assignor the Mortgage Loans, which Mortgage Loans are subject to the provisions
of the Purchase and Servicing Agreements;
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) The
Assignor hereby assigns to the Assignee all of its right, title and
interest in, to and under the Mortgage Loans and the Purchase and Servicing
Agreements, to the extent relating to the Mortgage Loans, and only the Mortgage
Loans (other than the rights of the Assignor to indemnification thereunder),
and
the Assignee hereby assumes all of the Assignor’s obligations under the Purchase
and Servicing Agreements (as amended hereby), to the extent relating to the
Mortgage Loans, and only the Mortgage Loans, from and after the date hereof,
and
the Servicer and the Seller hereby acknowledge such assignment and assumption
and hereby agree to the release of the Assignor from any obligations under
the
Purchase and Servicing Agreements from and after the date hereof, to the extent
relating to the Mortgage Loans, and only the Mortgage Loans.
(b) Simultaneously
with the execution of this Assignment Agreement, on February 26, 2007, the
Assignee shall pay to the Assignor the purchase price as calculated pursuant
to
the trade confirmation dated as of January 3, 2007 (the “Trade
Confirmation”),
by
and between the Assignee and the Assignor. The Assignee shall pay the purchase
price payable under the Trade Confirmation by wire transfer of immediately
available funds to the account specified by the Assignor. The Assignee shall
be
entitled to all scheduled payments due on the Mortgage Loans after February
1,
2007 (the “Assigned
Loans Cut-off Date”)
and
all unscheduled payments or other proceeds or other recoveries on the Mortgage
Loans received on and after the Assigned Loans Cut-off Date except as otherwise
specified in the Trade Confirmation.
(c) The
Servicer, the Seller and the Assignor shall have the right to amend, modify
or
terminate the Purchase and Servicing Agreements without the consent of the
Assignee with respect to mortgage loans not conveyed to the Assignee hereunder,
provided, however, that such amendment, modification or termination shall not
affect or be binding on the Assignee.
2. Accuracy
of the Purchase and Servicing Agreements.
The
Servicer, the Seller and the Assignor each represent and warrant to the Assignee
that (i) attached hereto as Exhibit 2
are
true, accurate and complete copies of the Purchase and Servicing Agreements,
the
Amendment Reg AB and the Chase AARs, (ii) the Purchase and Servicing Agreements
and the Chase AARs are in full force and effect as of the date hereof, (iii)
the
Purchase and Servicing Agreements and the Chase AARs have not been amended
or
modified in any respect and (iv) no notice of termination has been given to
such
party under the Purchase and Servicing Agreements.
3. Recognition
of the Assignee.
From
and
after the date hereof, the Servicer shall note the transfer of the Mortgage
Loans to the Assignee in its books and records, shall recognize the Assignee
as
the owner of the Mortgage Loans and shall service the Mortgage Loans for the
benefit of the Assignee pursuant to the 2005 Purchase and Servicing Agreement
(including without limitation Articles IV through XII as they relate to the
servicing and reconstitution of the Mortgage Loans) and the Amendment Reg AB,
the terms of which are incorporated herein by reference. The Assignee shall
be
entitled to all of the rights and remedies of the Purchaser (as defined in
the
2005 Purchase and Servicing Agreement) under the 2005 Purchase and Servicing
Agreement for any failure of the Servicer to service the Mortgage Loans in
accordance with the terms of the 2005 Purchase and Servicing Agreement. An
account has been established as a Custodial Account pursuant to Section 4.04
of
the 2005 Purchase and Servicing Agreement, designated as “Chase Home Finance
LLC, as subservicer for JPMorgan Chase Bank, National Association, in trust
for
Xxxxxxx Xxxxx Mortgage Company, owner of various whole loan series P&I.”
Another separate account has been established as an Escrow Account pursuant
to
Section 4.06 of the 2005 Purchase and Servicing Agreement, designated as “Chase
Home Finance LLC, as subservicer for JPMorgan Chase Bank, National Association,
in trust for Xxxxxxx Xxxxx Mortgage Company, owner of various whole loan series
and various mortgagors T&I.” From and after the date hereof, the Seller
shall note the transfer of the Mortgage Loans to the Assignee in its books
and
records and shall recognize the Assignee as the owner of the Mortgage
Loans.
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4. Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor as follows:
(a) The
Assignee 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 Assignor, the Seller
or
the Servicer other than those contained in the Purchase and Servicing Agreements
or this Assignment Agreement.
(b) The
Assignee is duly and legally authorized to enter into this Assignment Agreement
and to perform its obligations hereunder and under the Purchase and Servicing
Agreements.
(c) This
Assignment Agreement has been duly authorized, executed and delivered by the
Assignee and (assuming due authorization, execution and delivery thereof by
each
of the other parties hereto) constitutes its legal, valid and binding
obligation, enforceable 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.
5. Representations
and Warranties of the Servicer.
The
Servicer hereby warrants and represents to, and covenants with, the Assignee
that:
(a) The
representations and warranties contained in Section 3.01 of the 2004
Purchase and Servicing Agreement (as amended hereby), are deemed to be made
as
of the date of this Assignment Agreement, and all such representations and
warranties are true and correct as of the date of this Assignment Agreement.
(b) The
Servicer has serviced the Mortgage Loans in accordance with the terms of the
Purchase and Servicing Agreements, as applicable, and provided accurate
statements pursuant to Section 5.02 thereof and otherwise complied with all
covenants and obligations thereunder.
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(c) The
Servicer has taken no action or omitted to take any required action the omission
of which would have the effect of impairing any mortgage insurance or guarantee
on the Mortgage Loans.
6. Representations
and Warranties of the Assignor.
The
Assignor hereby represents and warrants to the Assignee as follows:
(a) The
Assignor has been duly organized and is validly existing as a national banking
association under the laws of the United States with full power and authority
(corporate and other) to enter into and perform its obligations under the
Purchase and Servicing Agreements and this Assignment Agreement.
(b) This
Assignment Agreement has been duly executed and delivered by the Assignor,
and,
assuming due authorization, execution and delivery by each of the other parties
hereto, constitutes a legal, valid, and binding agreement of the Assignor,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors’ rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
(c) The
execution, delivery and performance by the Assignor of this Assignment Agreement
and the consummation of the transactions contemplated thereby do not require
the
consent or approval of, the giving of notice to, the registration with, or
the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date thereof.
(d) The
execution and delivery of this Assignment Agreement have been duly authorized
by
all necessary corporate action on the part of the Assignor; neither the
execution and delivery by the Assignor of this Assignment Agreement, nor the
consummation by the Assignor of the transactions therein contemplated, nor
compliance by the Assignor with the provisions thereof, will conflict with
or
result in a breach of, or constitute a default under, any of the provisions
of
the governing documents of the Assignor or any law, governmental rule or
regulation or any material judgment, decree or order binding on the Assignor
or
any of its properties, or any of the provisions of any material indenture,
mortgage, deed of trust, contract or other instrument to which the Assignor
is a
party or by which it is bound.
(e) There
are
no actions, suits or proceedings pending or, to the knowledge of the Assignor,
threatened, before or by any court, administrative agency, arbitrator or
governmental body (A) with respect to any of the transactions contemplated
by
this Assignment Agreement or (B) with respect to any other matter that in the
judgment of the Assignor will be determined adversely to the Assignor and will,
if determined adversely to the Assignor, materially adversely affect its ability
to perform its obligations under this Assignment Agreement.
(f) Except
for the sale of the Mortgage Loans to the Assignee, the Assignor has not
assigned or pledged any related Mortgage Note or the related Mortgage or any
interest or participation therein.
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(g) The
Assignor has not satisfied, canceled, or subordinated in whole or in part,
or
rescinded the Mortgage related to any Mortgage Loan, and the Assignor has not
released the Mortgaged Property related to any Mortgage Loan from the lien
of
such Mortgage, in whole or in part, nor has the Assignor executed an instrument
that would effect any such release, cancellation, subordination, or
rescission.
(h) Immediately
prior to the assignment and conveyance contemplated in this Assignment
Agreement, the Assignor was the lawful owner of the Mortgage Loans with the
full
right to transfer the Mortgage Loans and all of its interests, rights and
obligations under the Purchase and Servicing Agreements free from any and all
claims and encumbrances whatsoever.
(i) The
Assignor represents and warrants to the Assignee that the Assignor has not
taken
any action that would serve to impair or encumber the Assignor’s ownership
interest in the Mortgage Loans since the respective dates that the related
Mortgage Loans were purchased from JPMMAC.
(j) The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Servicer with respect to the
Purchase and Servicing Agreements.
(k) Except
as
set forth in this Assignment Agreement, the Assignor has not waived or agreed
to
any waiver under, or agreed to any amendment or other modification of, the
Purchase and Servicing Agreements or the Mortgage Loans, including without
limitation the transfer of the servicing obligations under the Purchase and
Servicing Agreements. The Assignor has no knowledge of, and has not received
notice of, any waivers under or amendments or other modifications of, or
assignments of rights or obligations under, except as contemplated in this
Assignment Agreement, the Chase AARs, the Purchase and Servicing Agreements
or
the Mortgage Loans.
(l) Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933, as amended (the “Securities
Act”)
or
which would render the disposition of the Mortgage Loans a violation of
Section 5 of the Securities Act or require registration pursuant
thereto.
(m) Each
Mortgage Note, each Mortgage, each Assignment of Mortgage and any other
documents required to be delivered to the Assignee or its designee, have been,
on or before the date hereof, delivered to the Purchaser or its
designee;
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(n) No
statement, tape, diskette, form, report or other document prepared by, or on
behalf of, the Assignor in connection with the transactions contemplated hereby,
contains or will contain any statement that is or will be inaccurate or
misleading in any material respect;
(o) The
Assignor will treat the sale of the Mortgage Loans to the Assignee as a sale
for
reporting and accounting purposes and, to the extent appropriate, for federal
income tax purposes;
(p) The
representations and warranties contained in Section 3.02 of the 2005
Purchase and Servicing Agreement, to the extent they relate to matters arising
on or after the respective date that the Mortgage Loans were purchased by the
Assignor, are true and correct as of the date of this Assignment Agreement.
For
purposes of making the representations and warranties contemplated in the
foregoing sentence, each reference in Section 3.02 of the 2005 Purchase and
Servicing Agreement (i) to the “Cut-off Date” shall be deemed to be a reference
to the Assigned Loans Cut-off Date, (ii) to the “Mortgage Loan Schedule” shall
be deemed to be a reference to Exhibit 1
hereto
and (iii) to the “Closing Date” shall be deemed to be a reference to the date of
this Assignment Agreement;
(q) Each
document or instrument in the related Mortgage File is in a form generally
acceptable to prudent mortgage lenders that regularly originate or purchase
mortgage loans comparable to the Mortgage Loans for sale to prudent investors
in
the secondary market that invest in mortgage loans such as the Mortgage
Loans;
(r) No
Mortgage Loan originated on or after August 1, 2004 requires the related
Mortgagor to submit to arbitration to resolve any dispute arising out of or
relating in any way to the Mortgage Loan transaction; and
(s) The
Mortgagor with respect to each Mortgage Loan is one or more natural persons
and/or trustees for an Illinois land trust or a trustee under a “living trust”
and such “living trust” is in compliance with FNMA or Xxxxxxx Mac guidelines. In
the event a Mortgagor is a trustee, the related borrower is a natural
person.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 6 shall survive delivery of the respective Mortgage Files to the
Custodian and shall inure to the benefit of the Assignee and its assigns
notwithstanding any restrictive or qualified endorsement or assignment. Upon
the
discovery by the Assignor or the Assignee and its assigns of a breach of any
of
the foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other parties to this Assignment
Agreement.
It
is
understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained in this Section 6,
and no other affiliate of the Assignor has made any representations or
warranties of any kind to the Assignee.
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7. Repurchase
of Mortgage Loans.
Upon
discovery or notice of any breach by the Assignor of any representation,
warranty, or covenant under this Assignment Agreement that materially and
adversely affects the value of any Mortgage Loan or the interest of the Assignee
therein (it being understood that any such defect or breach shall be deemed
to
have materially and adversely affected the value of the related Mortgage Loan
or
the interest of the Assignee therein if the Assignee incurs a loss, or the
Assignee has a reasonable, good faith belief that it will incur a loss, as
a
result of such defect or breach), the Assignee promptly shall request that
the
Assignor cure such breach and, if the Assignor does not cure such breach in
all
material respects within sixty (60) days from the date on which it is notified
of the breach, the Assignor shall, at the Assignee’s option, repurchase the
Mortgage Loan in the same manner set forth in Section 3.03 of the related
Purchase and Servicing Agreement.
In
the
event the Servicer or the Seller has breached a representation or warranty
hereunder or under the related Purchase and Servicing Agreements, as amended
hereby, that is substantially identical to a representation or warranty breached
by the Assignor hereunder, the Assignee shall first proceed against the Servicer
or the Seller, as applicable. If the Servicer or the Seller, as applicable,
does
not within sixty (60) days after notification of the breach, take steps to
cure
such breach or repurchase the Mortgage Loan in the same manner as set forth
in
Section 3.03 of the related Purchase and Servicing Agreement, the Assignee
shall be entitled to enforce the obligations of the Assignor hereunder to cure
such breach or to repurchase the Mortgage Loan. In such event, the Assignor
shall succeed to the rights of the Assignee to enforce the obligations of the
Servicer or the Seller, as applicable, to cure such breach or repurchase such
Mortgage Loan under the terms of the applicable Purchase and Servicing Agreement
with respect to such Mortgage Loan.
Except
as
specifically set forth herein, the Assignee shall have no responsibility to
enforce any provision of this Assignment Agreement, to oversee compliance
hereof, or to take notice of any breach or default thereof.
8. Modification
of the 2004 Purchase and Servicing Agreement.
Solely
with respect to the Mortgage Loans, the Assignee, the Seller and the Servicer
hereby modify the 2004 Purchase and Servicing Agreement as follows:
(a) Section 3.01
is hereby modified as follows:
(i) SubSection 3.01(a)
is hereby modified by deleting the word “corporation” and replacing such with
“limited liability company” and deleting the words “State of New Jersey” and
replacing such with “State of Delaware”.
(ii) SubSection 3.01(d)
is hereby deleted in its entirety.
(iii) SubSection 3.01(i)
is hereby deleted in its entirety.
(iv) SubSection 3.01(j)
is hereby deleted in its entirety.
(v) SubSection 3.01(l)
is hereby modified by deleting the second and third sentences
therein.
(vi) SubSection 3.01(m)
is hereby deleted in its entirety.
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(vii) SubSection 3.01(n)
is hereby modified by deleting the following clause:
“in
the
opinion of Seller, the consideration received by Seller upon the sale of the
Mortgage Loans to Purchaser under this Agreement constitutes fair consideration
for the Mortgage Loans under current market conditions:”
(viii) SubSection 3.01(o)
is hereby deleted in its entirety.
(ix) SubSection 3.01(p)
is hereby deleted in its entirety.
9. Continuing
Effect.
Except
as
contemplated hereby, the Purchase and Servicing Agreements shall remain in
full
force and effect in accordance with their respective terms.
10. Governing
Law.
THIS
ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
11. Notices.
Any
notices or other communications permitted or required hereunder or under the
Purchase and Servicing Agreements shall be in writing and shall be deemed
conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by
telex, telegraph or telecopier and confirmed by a similar mailed writing, to:
(i) in the case of the Servicer, JPMorgan Chase Bank, National
Association, 000
Xxxx
Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Xxxxxxx X.
Xxxx,
or such
address as may hereafter be furnished by the Servicer, with a copy to General
Counsel, JPMorgan Chase Bank, National Association, 000 Xxxx Xxxxxx, Xxxxxx,
Xxx
Xxxxxx 00000; (ii) in the case of the Seller, Chase Home Finance LLC,
000
Xxxx
Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Xxxxxxx X.
Xxxx,
or such
address as may hereafter be furnished by the Seller, with a copy to General
Counsel, Chase Home Finance LLC, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000;
(iii) in the case of the Assignor, Bank of America, National Association, 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxx Xxxxxx, Telephone: (000) 000-0000, Email:
Xxxxxx.Xxxxxx@xxxxxxxxxxxxx.xxx, or such other address as may hereafter be
furnished by the Assignor and (iv) in the case of the Assignee, Xxxxxxx Sachs
Mortgage Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxxxxx, Telephone: (000) 000-0000, Telecopy: (000) 000-0000, or such other
address as may hereafter be furnished by the Assignee.
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12. Wire
Instructions.
The
Assignee’s wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Purchase and Servicing Agreements
is:
Bank:
Citibank, N.A.
ABA
Routing Number: 000000000
For
Credit to: Xxxxxxx Sachs Mortgage Company
Account
No.: 00000000
Attn:
Xxxxxx Xxxxxxxxx
13. Counterparts.
This
Assignment Agreement 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.
14. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement has the
same
meaning as in the related Purchase and Servicing Agreement.
15. Further
Agreements.
Each
party hereto agrees to execute and deliver to the others such reasonable and
appropriate additional documents, instruments or agreements as may be necessary
or appropriate to effectuate the purpose of this Assignment
Agreement.
[Signatures
on the Following Page]
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IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
| ASSIGNOR: | ||
| BANK OF AMERICA, NATIONAL ASSOCIATION | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
|
|
| ASSIGNEE: | ||
| XXXXXXX SACHS MORTGAGE COMPANY | ||
| |
|
|
| By: |
Xxxxxxx
Xxxxx Real Estate Funding Corp., its General Partner
|
|
|
Name:
Title:
|
|
|
| SERVICER: | ||
| JPMORGAN CHASE BANK, NATIONAL ASSOCIATION | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
|
|
| SELLER: | ||
| CHASE HOME FINANCE LLC | ||
| |
|
|
| By: | ||
|
Name:
Title:
|
|
|
EXHIBIT 1
Mortgage
Loan Schedule
[Attached
hereto]
Exhibit
1-1
EXHIBIT 2
Execution
Copies of the Purchase and Servicing Agreements and the Chase
AARs
[Attached
hereto]
Exhibit
2-1
