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Exhibit 99.5
Execution Copy
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement (the "AAR
Agreement")
is made and entered into as of July 1, 2007, among Merrill Lynch
Mortgage
Lending, Inc., having an address at 250 Vesey Street, 4 World
Financial Center,
10th floor New York, New York 10080 (the "Assignor"), Merrill
Lynch Mortgage
Investors, Inc., having an address at 250 Vesey Street, 4 World
Financial
Center, 10th Floor, New York, New York 10080 (the "Assignee")
and Residential
Funding Company, LLC, having an address at 8400 Normandale Lake
Boulevard, Suite
250, Minneapolis, Minnesota 55437 (the "Company").
In consideration of the mutual promises contained herein, the
parties
hereto agree that the residential mortgage loans listed on
Attachment 1 annexed
hereto (the "Assigned Loans"), which are now serviced by the
Company on behalf
of the Assignor and its successors and assigns pursuant to the
Standard Terms
and Provisions of Sale and Servicing Agreement, dated as of
February 1, 2007,
between the Assignor and the Company (the "Servicing
Agreement"), shall be sold
by the Assignor to the Assignee pursuant to the Mortgage Loan
Purchase
Agreement, dated as of July 1, 2007 (the "MLPA"), between the
Assignor and the
Assignee and subject to the terms of this AAR Agreement. The
Assignee intends to
transfer all right, title and interest in and to the Assigned
Loans to HSBC Bank
USA, National Association, as trustee (the "Trustee") for the
holders of Merrill
Lynch Alternative Note Asset Trust, Series 2007-OAR4 Mortgage
Pass-Through
Certificates (the "Certificateholders") pursuant to the Pooling
and Servicing
Agreement, dated as of July 1, 2007 (the "Pooling and Servicing
Agreement")
among the Assignee, as depositor, the Trustee and Wells Fargo
Bank, N.A., as
master servicer (the "Master Servicer") and securities
administrator.
Capitalized terms used herein but not defined shall have the
meanings ascribed
to them in the Servicing Agreement.
ASSIGNMENT AND ASSUMPTION
1. Assignor hereby grants, transfers and assigns to Assignee all
of
the right, title and interest of Assignor in, to and under the
Servicing
Agreement as it relates to the servicing of the Assigned Loans.
Assignor
specifically reserves and does not assign to Assignee any right,
title and
interest in, to or under the Servicing Agreement, as it relates
to loans other
than the Assigned Loans set forth on Attachment 1.
Notwithstanding anything to
the contrary contained herein, the Assignor specifically
reserves and does not
assign to the Assignee any right, title and interest in, to or
under the
representations and warranties contained in Sections 2.04 and
2.05 of the
Servicing Agreement or the right to enforce the representations
and warranties
set forth in Sections 2.04 and 2.05 of the Servicing Agreement
against the
Company, including, without limitation, the rights set forth in
Section 2.04 of
the Servicing Agreement. In addition, the Assignor specifically
reserves and
does not assign to the Assignee any right, title and interest
in, to or under
Section 3.14 of the Servicing Agreement (but only insofar as
such Section grants
to the Owner the right to terminate the servicing of REO
Properties by the
Company).
REPRESENTATIONS, WARRANTIES AND COVENANTS
2. Assignor warrants and represents to Assignee and Company as
of
August 10, 2007 (the "Closing Date"):
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(a) Attached hereto as Attachment 2 is a true and accurate copy
of the
Servicing Agreement, which agreement is in full force and effect
as of the
Closing Date and the provisions of which have not been waived,
amended or
modified in any respect, nor has any notice of termination been
given
thereunder;
(b) Assignor is the lawful owner of the Assigned Loans with full
right
to transfer the Assigned Loans and any and all of its interests,
rights and
obligations under the Servicing Agreement as they relate to the
Assigned Loans,
free and clear from any and all claims and encumbrances; and
upon the transfer
of the Assigned Loans to Assignee under the MLPA, Assignee shall
have good title
to each and every Assigned Loan, as well as any and all of
Assignor's interests,
rights and obligations under the Servicing Agreement as they
relate to the
Assigned Loans, free and clear of any and all liens, claims and
encumbrances;
(c) Assignor is duly organized, validly existing and in good
standing
under the laws of the jurisdiction of its incorporation, and has
all requisite
power and authority to acquire, own and sell the Assigned
Loans;
(d) Assignor has full corporate power and authority to
execute,
deliver and perform its obligations under this AAR Agreement,
and to consummate
the transactions set forth herein. The consummation of the
transactions
contemplated by this AAR Agreement is in the ordinary course of
Assignor's
business and will not conflict with, or result in a breach of,
any of the terms,
conditions or provisions of Assignor's articles of incorporation
or by-laws or
any legal restriction, or any material agreement or instrument
to which Assignor
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 Assignor or
its property is
subject. The execution, delivery and performance by Assignor of
this AAR
Agreement and the consummation by it of the transactions
contemplated hereby,
have been duly authorized by all necessary corporate action on
the part of
Assignor. This AAR Agreement has been duly executed and
delivered by Assignor
and, upon the due authorization, execution and delivery by
Assignee and Company,
will constitute the valid and legally binding obligation of
Assignor enforceable
against Assignor in accordance with its terms except as
enforceability may be
limited by bankruptcy, reorganization, insolvency, moratorium or
other similar
laws now or hereafter in effect relating to creditors' rights
generally, and by
general principles of equity regardless of whether
enforceability is considered
in a proceeding in equity or at law; and
(e) No consent, approval, order or authorization of, or
declaration,
filing or registration with, any governmental entity is required
to be obtained
or made by Assignor in connection with the execution, delivery
or performance by
Assignor of this AAR Agreement, or the consummation by it of the
transactions
contemplated hereby. Neither Assignor nor anyone acting on its
behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Assigned Loans
or any interest in the Assigned Loans, or solicited any offer to
buy or accept a
transfer, pledge or other disposition of the Assigned Loans, or
any interest in
the Assigned Loans or otherwise approached or negotiated with
respect to the
Assigned Loans, or any interest in the Assigned Loans 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 Assigned Loans under the Securities Act of
1933, as amended
(the "1933 Act") or which would render the disposition of the
Assigned Loans a
violation of Section 5 of the 1933 Act or require registration
pursuant thereto.
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3. Assignee warrants and represents to, and covenants with,
Assignor
and Company as of the Closing Date:
(a) Assignee is duly organized, validly existing and in good
standing
under the laws of the jurisdiction of its incorporation and has
all requisite
power and authority to acquire, own and purchase the Assigned
Loans;
(b) Assignee has full corporate power and authority to
execute,
deliver and perform its obligations under this AAR Agreement,
and to consummate
the transactions set forth herein. The consummation of the
transactions
contemplated by this AAR Agreement is in the ordinary course of
Assignee's
business and will not conflict with, or result in a breach of,
any of the terms,
conditions or provisions of Assignee's articles of incorporation
or by-laws or
any legal restriction, or any material agreement or instrument
to which 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 Assignee or
its property is
subject. The execution, delivery and performance by Assignee of
this AAR
Agreement and the consummation by it of the transactions
contemplated hereby,
have been duly authorized by all necessary corporate action on
the part of
Assignee. This AAR Agreement has been duly executed and
delivered by Assignee
and, upon the due authorization, execution and delivery by
Assignor and Company,
will constitute the valid and legally binding obligation of
Assignee enforceable
against Assignee in accordance with its terms except as
enforceability may be
limited by bankruptcy, reorganization, insolvency, moratorium or
other similar
laws now or hereafter in effect relating to creditors' rights
generally, and by
general principles of equity regardless of whether
enforceability is considered
in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or
declaration,
filing or registration with, any governmental entity is required
to be obtained
or made by Assignee in connection with the execution, delivery
or performance by
Assignee of this AAR Agreement, or the consummation by it of the
transactions
contemplated hereby; and
(d) Assignee agrees to be bound by all of the terms, covenants
and
conditions of the Servicing Agreement with respect to the
Assigned Loans, and
from and after the Closing Date, Assignee assumes for the
benefit of each of
Assignor and Company all of Assignor's obligations thereunder
but solely with
respect to such Assigned Loans.
4. Company warrants and represents to, and covenants with,
Assignor
and Assignee (unless otherwise specified) as of the Closing
Date:
(a) Attached hereto as Attachment 2 is a true and accurate copy
of the
Servicing Agreement, which agreement is in full force and effect
as of the
Closing Date and the provisions of which have not been waived,
amended or
modified in any respect, nor has any notice of termination been
given
thereunder;
(b) Company is duly organized, validly existing and in good
standing
under the laws of the jurisdiction of its organization, and has
all requisite
power and authority to service the Assigned Loans and otherwise
to perform its
obligations under the Servicing Agreement;
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(c) Company has full power and authority to execute, deliver
and
perform its obligations under this AAR Agreement, and to
consummate the
transactions set forth herein. The consummation of the
transactions contemplated
by this AAR Agreement is in the ordinary course of Company's
business and will
not conflict with, or result in a breach of, any of the terms,
conditions or
provisions of Company's certificate of formation or limited
liability company
agreement or any legal restriction, or any material agreement or
instrument to
which Company 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
Company or its
property is subject. The execution, delivery and performance by
Company of this
AAR Agreement and the consummation by it of the transactions
contemplated
hereby, have been duly authorized by all necessary action on the
part of
Company. This AAR Agreement has been duly executed and delivered
by Company,
and, upon the due authorization, execution and delivery by
Assignor and
Assignee, will constitute the valid and legally binding
obligation of Company,
enforceable against Company in accordance with its terms except
as
enforceability may be limited by bankruptcy, reorganization,
insolvency,
moratorium or other similar laws now or hereafter in effect
relating to
creditors' rights generally, and by general principles of equity
regardless of
whether enforceability is considered in a proceeding in equity
or at law;
(d) No consent, approval, order or authorization of, or
declaration,
filing or registration with, any governmental entity is required
to be obtained
or made by Company in connection with the execution, delivery or
performance by
Company of this AAR Agreement, or the consummation by it of the
transactions
contemplated hereby; and
(e) From and after the Closing Date, the Company shall service
the
Assigned Loans in accordance with the terms and provisions of
the Servicing
Agreement, as modified by this AAR Agreement.
5. Pursuant to Section 2.08(c) of the Servicing Agreement, the
Company
hereby restates to the Assignor the representations and
warranties set forth in
Section 2.05 of the Servicing Agreement as of the Closing Date,
as if such
representations and warranties were set forth herein in full. In
the event of a
breach of any such representations and warranties as of the
Closing Date, the
Assignor shall be entitled to all the remedies under the
Servicing Agreement.
RECOGNITION OF ASSIGNEE
6. From and after the Closing Date, Company shall recognize
Assignee
as owner of the Assigned Loans, and acknowledges that the
Assigned Loans will be
part of a REMIC, and will service the Assigned Loans in
accordance with the
Servicing Agreement, as modified by this AAR Agreement, but in
no event in a
manner that would (i) cause any REMIC to fail to qualify as a
REMIC or (ii)
result in the imposition of a tax upon any REMIC (including but
not limited to
the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section
860G(d) of the
Code). It is the intention of Assignor, Company and Assignee
that this AAR
Agreement shall be binding upon and for the benefit of the
respective successors
and assigns of the parties hereto. Neither Company nor Assignor
shall amend or
agree to amend, modify, waive, or otherwise alter any of the
terms or provisions
of the Servicing Agreement which amendment, modification, waiver
or other
alteration would in any way affect the Assigned Loans without
the prior written
consent of the Trustee and the Master Servicer. Company hereby
acknowledges that
pursuant to the
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Pooling and Servicing Agreement, the Assignee will assign all of
its rights
under this AAR Agreement to the Trustee for the benefit of
the
Certificateholders. Company hereby acknowledges and consents to
the assignment
by the Assignee of all of the Assignee's rights against the
Company pursuant to
this AAR Agreement and to the enforcement or exercise of any
right or remedy
against the Company pursuant to this AAR Agreement by the
Trustee.
MODIFICATION OF SERVICING AGREEMENT
7. The Company and Assignor hereby modify the Servicing
Agreement with
respect to the Assigned Loans as follows:
(a) Section 1.01 of the Servicing Agreement is modified by
adding or,
if applicable, deleting such definitions in their entirety and
replacing them as
set forth herein:
Business Day: Any day other than a Saturday or Sunday, or a day
on
which banking and savings and loan institutions in the State of
Ohio, the
State of California, the State of Illinois, the State of New
York, the
State of Maryland or the State of Minnesota are authorized or
obligated by
law or executive order to be closed.
Closing Date: August 10, 2007
Cut-off Date: July 1, 2007.
Master Servicer: Wells Fargo Bank, N.A., its successors and
assigns.
Prepayment Period: As to any Remittance Date, the calendar
month
preceding the month of such Remittance Date.
(b) The Definition of "Prepayment Interest Shortfall Amount" is
hereby
modified by replacing the term "Due Period" with the term
"Prepayment Period"
each time it appears therein.
(c) Subsection 3.01(a) of the Servicing Agreement is hereby
modified
by inserting the following sentence immediately following the
first sentence
thereof:
Notwithstanding anything in this Agreement to the contrary,
if
there is any inconsistency or conflict between the provisions of
the
Program Guide and the provisions of this Agreement, the
provisions of
this Agreement shall control.
(d) Section 3.16 of the Servicing Agreement is hereby modified
by
adding the following paragraph at the end thereto:
The Company shall not permit the creation of any "interests"
(within
the meaning of Section 860G of the Code) in the REMIC. The
Company
shall not enter into any arrangement by which the REMIC will
receive a
fee or other compensation for services nor permit the REMIC to
receive
any income from assets other than "qualified mortgages" as
defined in
Section 860G(a)(3) of the Code or "permitted investments" as
defined
in Section 860G(a)(5) of the Code."
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(e) Section 4.01 of the Servicing Agreement is hereby modified
by
adding at the end of such section the following:
With respect to any remittance received by the Owner or any
Master
Servicer after the day on which such payment was due, the
Company
shall pay to the Master Servicer interest on any such late
payment at
an annual rate equal to the Prime Rate, adjusted as of the date
of
each change, plus one percentage point, but in no event greater
than
the maximum amount permitted by applicable law. Such interest
shall be
deposited in the Master Servicer Collection Account by the
Company on
the date such late payment is made and shall cover the
period
commencing with the day such payment was due and ending with
the
Business Day on which such payment is made, both inclusive.
Such
interest shall be remitted along with the distribution payable
on the
next succeeding Remittance Date. The payment by the Company of
any
such interest shall not be deemed an extension of time for
payment or
a waiver of any Event of Default.
(f) Section 4.02 of the Servicing Agreement is hereby modified
by
deleting such section in its entirety and replacing it with the
following:
No later than the fifteenth calendar day of each month (or
the next succeeding Business Day if the fifteenth calendar day
is not
a Business Day), the Company shall furnish to the Master
Servicer, in
an acceptable electronic format via e-mail, the information
specified
in Exhibit H, which data shall reflect information from the Due
Period
immediately preceding the Remittance Date and such other
information
with respect to the Mortgage Loans as the Master Servicer
may
reasonably require to allocate remittances made pursuant to
this
Agreement and provide appropriate statements with r
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