ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.10a
EXECUTION
COPY
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment”),
dated
as of February 1, 2007, is entered into among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc.,
a
Delaware corporation (the “Depositor”),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (“MSMCI”),
and
New Century Mortgage Corp., as seller (the “Seller”),
and
acknowledged by LaSalle Bank National Association, as trustee (the “Trustee”)
of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-5AX (the “Trust”).
RECITALS
WHEREAS
MSMCI and the Seller have entered into a certain Flow Mortgage Loan Purchase
And
Warranties Agreement, dated as of November 1, 2005 (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 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
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.
(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 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 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
(the
“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 (as defined
herein below), (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 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’ 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 dated as of the date hereof (the “Pooling
and Servicing Agreement”)
among
the Depositor, ▇▇▇▇▇ Fargo Bank, National Association, as securities
administrator (the “Securities Administrator”) and master servicer, and the
Trustee), the representations and warranties set forth in Sections 9.01 and
9.02
of the Purchase Agreement, 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
Closing Date; provided, however, that instead of the representation and warranty
set forth in Subsection 9.02(b), the Seller hereby represents and warrants
that
as of the Closing Date, none of the Specified Mortgage Loans are contractually
past due by more than 30 days.
2
| 4. |
Future
Covenants
|
(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 the Depositor and the Securities Administrator written notice
substantially in the form of Exhibit II (A) any material litigation or
governmental proceedings pending against the Seller, (B) any Event of Default
under the terms of this Agreement or any Purchase Agreement and (C) any merger,
consolidation or sale of substantially all of the assets of the Seller and
(ii)
provide to the Depositor and the Securities Administrator a description of
such
proceedings, affiliations or relationships.
(b) Indemnification;
Remedies.
(i) The
Seller shall indemnify the Depositor, each affiliate of the Depositor, and
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, and shall hold each of them harmless from and
against any claims, losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(1)
(A)
any
untrue statement of a material fact contained or alleged to be contained in
any
information, report or other material provided under this Section 4 by or on
behalf of the Seller, (collectively, the “Seller
Information”),
or
(B) the omission or alleged omission to state in the Seller Information a
material fact required to be stated in the Seller Information or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to the
Seller Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Seller
Information or any portion thereof is presented together with or separately
from
such other information;
(2)
any
breach by the Seller under this Section 4, including particularly any failure
by
the Seller to deliver any information, report or other material when and as
required under this Section 4; or
3
(3)
negligence,
bad faith or willful misconduct of the Seller in connection with its performance
under this Section 4.
(ii)
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Seller agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Seller on the other.
(iii)
In
the
case of any failure of performance described in clause (a) of this Section
4,
the Seller shall promptly reimburse the Purchaser, any Depositor, as applicable,
and each Person 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, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Seller.
(iv)
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 the Depositor and the Trustee shall be made in
accordance with the terms of the Purchase Agreement and shall be sent to the
Depositor and Trustee as follows:
In
the
case of MSMCI:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-5AX
With
a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel’s Office
In
the
case of the Depositor:
4
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital I Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-5AX
In
the
case of the Trustee:
LaSalle
Bank National Association
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Global Securities and Trust Services MSM 2007-5AX
In
the
case of the Seller:
New
Century Mortgage Corp.
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
General Counsel
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. |
Ratification
|
Except
as
modified and expressly amended by this Assignment, the Purchase Agreement is
in
all respects ratified and confirmed, and all terms, provisions and conditions
thereof shall be and remain in full force and effect.
| 9. |
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.
| 10. |
Definitions
|
Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
5
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment the day and
year first above written.
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC. | ||
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇▇▇ | ||
| Title: Vice President | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC. | ||
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇ | ||
| Name: ▇▇▇▇▇▇▇ ▇▇▇ | ||
| Title: Vice President | ||
| NEW CENTURY MORTGAGE CORP. | ||
| By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ | ||
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
|
||
| Title: Executive Vice President | ||
| Acknowledged and Agreed: | ||
| LASALLE
BANK NATIONAL ASSOCIATION,
as Trustee of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Loan Trust 2007-5AX |
||
| By: /s/ ▇▇▇▇ ▇▇▇▇▇ | ||
| Name: ▇▇▇▇ ▇▇▇▇▇ | ||
| Title: Vice President | ||
EXHIBIT
I
Mortgage
Loan Schedule
[see
Schedule A to Pooling and Servicing Agreement]
EXHIBIT
II
Additional
Disclosure Notification
▇▇▇▇▇
Fargo Bank, N.A., as Securities Administrator and Master Servicer
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attn:
Corporate Trust Services - MSM 2007-5AX - SEC REPORT PROCESSING
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital I Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-5AX
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., as
Depositor, New Century Inc., ▇▇▇▇▇ 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:
|
|