Exhibit 99.11
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Agreement"),
dated as of December 1, 2006 (the "Closing Date"), is among Wachovia Bank,
National Association ("Assignor"), National City Mortgage Co. ("Servicer") and
Maia Mortgage Finance Statutory Trust ("Assignee").
WHEREAS, the Assignor and the Servicer entered into that certain Master
Purchase and Servicing Agreement, dated as of May 1, 2006, and that certain
Agreement (Compliance with Regulation AB) dated as of April 17, 2006
(collectively, the "Master Agreement"), copies of which are attached hereto as
Exhibits A-1 and A-2, respectively.
WHEREAS, pursuant to the terms of the Master Agreement, the Servicer sold
to the Assignor certain mortgage loans and currently services such mortgage
loans for the Assignor.
WHEREAS, Assignor wishes to assign to Assignee all of its right, title,
interest and obligations under the Master Agreement with respect to certain
mortgage loans specified in the Mortgage Loan Schedule attached hereto as
Exhibit B (the "Mortgage Loans"), and Assignee wishes to assume all of
Assignor's right, title and interest in and to such Mortgage Loans as provided
in the Master Agreement.
WHEREAS, the Assignee and the Servicer agree that, from and after the
Closing Date, the servicing provisions of the Master Agreement (as amended
pursuant to a reconstitution agreement to be entered into prior to a
securitization transaction. which reconstitution agreement shall include
provisions for special foreclosure rights) shall continue to apply to the
Mortgage Loans and shall govern the servicing of the Mortgage Loans.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee all of the
right, title, interest and obligations of Assignor, as Purchaser, in, to and
under the Master Agreement solely with respect to, and to the extent of, the
Mortgage Loans. Assignor specifically reserves and does not assign to Assignee
any right, title and interest in, to or under any mortgage loans subject to the
Master Agreement other than those set forth on Exhibit B.
2. On the Closing Date, the Assignee shall pay to Assignor the purchase
price set forth in the related commitment letter agreement, dated November 1,
2006, between Assignee and Assignor, the terms of which are incorporated herein
by reference (the "Commitment Letter"), by wire transfer of immediately
available funds to the account specified by Assignor. Assignee shall be entitled
to all scheduled payments due on the Mortgage Loans after the Cut-Off Date of
November 1, 2006 (the "Cut-Off Date"), and all unscheduled payments or other
proceeds or other recoveries on the Mortgage Loans received on and after the
Cut-Off Date (provided, however, that all scheduled payments due on or before
the Cut-Off Date shall belong to the Assignor). In the event that the December
18, 2006 remittance is paid to Assignor, Assignor agrees to immediately make
such remittance to Assignee.
3. The Assignor and the Servicer represent, warrant and covenant that the
Master Agreement provided to the Assignee and attached hereto as Exhibits A-1
and A-2 is a true, complete and accurate copy of the Master Agreement; the
Master Agreement is in full force and effect as of the date hereof; and its
provisions have not been waived, amended or modified in any respect except as
contemplated herein, nor has any notice of termination been given thereunder. As
of the date hereof, neither the Assignor nor the Servicer is in default under
the Master Agreement.
4. The Assignor represents, warrants and covenants that:
(a) The Assignor is a national banking association duly organized, validly
existing, and in good standing under the laws of the United States and has all
licenses necessary to carry on its business as now being conducted;
(b) The Assignor has corporate power and authority to enter into, execute,
and deliver this Agreement, and all documents and certificates hereunder, and to
perform its obligations in accordance herewith; the execution, delivery, and
performance of this Agreement by the Assignor and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding, and enforceable obligation of the
Assignor; and all requisite corporate action has been taken by the Assignor to
make this Agreement valid and binding upon the Assignor in accordance with its
terms;
(c) No consent, approval, authorization, or order of any court or
governmental agency or body relating to the transactions contemplated by this
Agreement is required or, if required, such consent, approval, authorization, or
order has been or will, prior to the Closing Date, be obtained;
(d) The consummation of the transactions contemplated by this Agreement and
the fulfillment of or compliance with the terms and conditions of this Agreement
are in the ordinary course of business of the Assignor and will not result in
the breach of any term or provision of the articles of incorporation or bylaws
of the Assignor or result in the breach of any term or provision of, or conflict
with or constitute a default under, or result in the acceleration of any
obligation under, any agreement, indenture, loan, or credit agreement, or other
instrument to which the Assignor or its property is subject, or result in the
violation of any law, rule, regulation, order, judgment, or decree to which the
Assignor or its property is subject;
(e) There is no action, suit, proceeding, or investigation pending or
threatened against the Assignor which, either in any one instance or in the
aggregate, is, in the Assignor's judgment, likely to result in any material
impairment of the right or ability of the Assignor to carry on its business
substantially as now conducted, result in any material liability or any material
adverse change in the financial condition of the Assignor or which would draw
into question the validity of this Agreement or of any action taken or to be
taken in connection with the obligations of the Assignor contemplated herein or
which would be likely to impair materially the ability of the Assignor to
perform its obligations hereunder;
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(f) There is no fact known to the Assignor that materially adversely
affects or, so far as the Assignor now foresees, will materially adversely
affect the ability of the Assignor to perform its obligations under this
Agreement;
(g) Neither the Assignor nor the arrangement created by the Master
Agreement is an "investment company" or under the "control" of an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended;
(h) The Assignor has not dealt with any broker, investment banker, agent,
or other person who may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans; and
(i) With respect to the Mortgage Loans:
(i) The Assignor has no knowledge of any facts or occurrences, and has
taken no action, between the dates of its acquisition of the Mortgage Loans
from the Servicer and the date of this Agreement, that would make the
representations and warranties as to the Mortgage Loans contained in
Section 3.1 of the Master Agreement untrue or incorrect in any material
respect as of the date hereof. No Mortgage Loan has been 30 days late in
the payment of principal and interest in the twelve months prior to the
Cut-Off Date;
(ii) The Assignor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever. Upon the transfer of the Mortgage Loans to the
Assignee pursuant to this Agreement, the Assignor will have taken all
actions necessary on its part to be taken so that the Assignee will have
good indefeasible title to, and will be sole owner of, the Mortgage and the
Mortgage Note with respect to each of the Mortgage Loans, free and clear of
any and all liens, claims, encumbrances, participation interests, equities,
pledges, charges, or security interests of any nature, subject to
bankruptcy, insolvency, moratorium, reorganization and similar laws
relating or limiting the enforcement of creditor's rights generally;
(iii) The mortgage loan schedule attached hereto as Exhibit B is
complete, true and correct in all material respects; and
(iv) The characteristics of the Mortgage Loans as described in the
Commitment Letter are true and correct in all material respects.
5. The Assignee represents, warrants and covenants that:
(a) The Assignee is a business trust duly organized, validly existing and
in good standing under the laws of the jurisdiction of its formation, and has
all requisite power and authority to acquire, own and purchase the Mortgage
Loans;
(b) The Assignee has full power and authority to execute, deliver and
perform under this Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by this Agreement is
in the ordinary course of the Assignee's business and will not conflict with, or
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result in a breach of, any of the terms, conditions or provisions of the
Assignee's articles of incorporation or by-laws, or any legal restriction, or
any material agreement or instrument to which the Assignee is now a party or by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Assignee or its property is subject. The
execution, delivery and performance by the Assignee of this Agreement and the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action of the Assignee. This Agreement has
been duly executed and delivered by the Assignee and constitutes the valid and
legally binding obligation of the Assignee, enforceable against the Assignee in
accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, or reorganization or other similar laws now or
hereinafter in effect relating to creditor's rights generally and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or in law;
(c) No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is required to
be obtained or made by the Assignee in connection with the execution, delivery
or performance by the Assignee of this Agreement, or the consummation by it of
the transaction contemplated hereby;
(d) There is no action, suit, proceeding, investigation or litigation
pending or, to the Assignee's knowledge, threatened, which either in any
instance or in the aggregate, if determined adversely to the Assignee, would
adversely affect the Assignee's execution or delivery of, or the enforceability
of, this Agreement, or the Assignee's ability to perform its obligations under
this Agreement;
(e) The Assignee agrees to be bound, as Purchaser, by the covenants,
conditions and obligations of the Master Agreement with respect to the Mortgage
Loans listed on Exhibit B, and from and after the Closing Date, the Assignee
assumes for the benefit of the Assignor all of the Assignor's obligations as
Purchaser under the Master Agreement that arise prior to the Closing Date with
respect to the Mortgage Loans listed on Exhibit B; and
(f) The Assignee is an institutional "accredited investor" within the
meaning of Section 2(15) of the 1933 Act; that the Assignee has such knowledge
and experience in financial and business matters that the Assignee is capable of
evaluating the merits and risks of its investment in the Mortgage Loans; that
the Assignee has reviewed such materials and information with respect to the
Mortgage Loans and the Assignor as the Assignee deems necessary and has been
afforded the opportunity to make inquiry of the Assignor; that the Assignee
understands that the Mortgage Loans have not been registered or qualified under
the 1933 or 1934 Act or the securities laws of any state; that Assignee is
acquiring the Mortgage Loans for the purpose of investment or resale under Rule
144A under the 1933 Act and not with a view to the distribution thereof.
6. The Servicer represents, warrants and covenants to the Assignee that:
(a) All of the representations and warranties of the Servicer set forth in
Section 3.2 of the Master Agreement are true and correct as of the date hereof;
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(b) The Servicer has complied in all material respects with its obligations
to service the Mortgage Loans in accordance with the terms of the Master
Agreement;
(c) No offsets, counterclaims or other defenses are available to the
Servicer with respect to the Master Agreement or the Mortgage Loans; and
(d) The Servicer 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 or defaults under, the Master Agreement.
7. The Servicer and the Assignee hereby agree to amend the Master Agreement
as described on Schedule A hereto.
8. From and after the Closing Date, (a) the Servicer acknowledges and
agrees that with respect to the Mortgage Loans, the Assignee is entitled to all
rights and benefits of the Assignor as the "Purchaser" under the Master
Agreement and (b) the Servicer hereby agrees to service the Mortgage Loans for
the Assignee under the terms and conditions stated in the Master Agreement, as
amended hereby. The Mortgage Loans shall be serviced pursuant to the Master
Agreement on a scheduled/scheduled basis. Remittances shall be made monthly on
the 18th day of each month, or if the 18th is not a Business Day, on the
immediately preceding Business Day in accordance with the Master Agreement. The
Servicer and the Assignee agree that the first remittance date on which payment
will be made to the Assignee with respect to the Mortgage Loans will be December
18, 2006.
9. From and after the date hereof, the Assignee shall recognize the
Servicer as the seller and servicer of the Mortgage Loans, and shall look solely
to the Servicer for performance of the obligations of the seller and servicer
under the Master Agreement with respect to the Mortgage Loans; provided,
however, that nothing contained herein shall be deemed to limit the obligations
of the Assignor to the Assignee under this Agreement.
10. Notices with respect to the Mortgage Loans shall be delivered in
accordance with the Master Agreement, at:
If to Assignor: Wachovia Bank, National Association
One Wachovia Center, NC-0600
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
If to Servicer: National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
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If to Assignee: Maia Mortgage Finance Statutory Trust
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Maia Mortgage Finance Statutory Trust
One Commerce Square
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: 000-000-0000
11. All remittances required to be made to the Assignee under the Master
Agreement shall be made to the following wire account:
Xxxxx Fargo Bank, N.A.
ABA#: 000-000-000
Account Name: SAS CLEARING
Account Number: 0000000000
For further credit to: Luminent 2006-7,
Account # [ - ]
12. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
OTHER THAN GENERAL OBLIGATIONS LAW SECTION 5-1401) AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS, EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW.
13. This Agreement shall inure to the benefit of the successors and assigns
of the parties hereto. Any entity into which the Servicer, the Assignor or the
Assignee may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Servicer, the Assignor or the Assignee,
respectively, hereunder.
14. No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against whom
such waiver or modification is sought to be enforced.
15. This Agreement shall survive the conveyance of the Mortgage Loans, the
assignment of the Master Agreement to the extent of the Mortgage Loans by the
Assignor to the Assignee, and the termination of the Master Agreement.
16. This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute and be one and the same instrument.
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17. This Agreement may be assigned by Assignee; provided, however, that the
transferee will not be deemed to be the Assignee hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
an original counterpart of the document evidencing such agreement shall have
been executed by the Assignee and the transferee and delivered to the Servicer.
18. Notwithstanding anything to the contrary contained herein or in any
other agreement between or among any of the parties hereto, the parties hereto
acknowledge and agree that the rights and obligations of the Assignor and the
Servicer relating to the Mortgage Loans under the Master Agreement with respect
to matters arising before the Closing Date (the "Prior Matters") shall remain in
full force and effect. The Assignor hereby delegates to the Assignee the right
to enforce the Master Agreement with respect to such Prior Matters.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Recognition Agreement to be executed by their duly authorized officers as of the
date first above written.
NATIONAL CITY MORTGAGE CO.,
as Servicer
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Assignor
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
MAIA MORTGAGE FINANCE STATUTORY
TRUST, as Assignee
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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EXHIBIT A-1
MASTER PURCHASE AND SERVICING AGREEMENT
(ATTACHED)
Exhibit A-1-1
EXHIBIT A-2
AGREEMENT (COMPLIANCE WITH REGULATION AB)
Exhibit A-2
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(ATTACHED)
Exhibit B-1
