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Exhibit 99.3
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement
(this "AAR
Agreement") made as of October 1, 2007, among Merrill Lynch
Mortgage Lending,
Inc., having an address at 250 Vesey Street, 4 World Financial
Center, 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 Countrywide Home Loans
Servicing LP, having
an address at 400 Countrywide Way, Simi Valley, California 93065
(the
"Company").
WHEREAS, the Assignor acquired the mortgage loans set forth
on
Attachment 1 annexed hereto (the "Assigned Loans") from
Countrywide Home Loans,
Inc. (the "Seller") pursuant to that certain Master Mortgage
Loan Purchase and
Servicing Agreement, dated as of February 1, 2007, between the
Assignor and
Seller, as amended (the "Purchase and Servicing Agreement");
WHEREAS, the Seller has assigned its servicing rights related to
the
Assigned Loans and servicing obligations related thereto under
the Purchase and
Servicing Agreement to the Company and the Company is currently
servicing the
Assigned Loans for the benefit of the Assignor in accordance
with the terms and
conditions of the Purchase and Servicing Agreement.
In consideration of the mutual promises contained herein the
parties
hereto agree that the Assigned Loans shall be subject to the
terms of this AAR
Agreement. Capitalized terms used herein but not defined shall
have the meanings
ascribed to them in the Purchase and Servicing Agreement.
Assignment and Assumption
1. Assignor hereby grants, transfers and assigns to Assignee all
of the
right, title, interest and obligations of Assignor in the
Assigned Loans and, as
they relate to the Assigned Loans, all of its right, title,
interest and
obligations in, to and under the Purchase and Servicing
Agreement (except with
respect to the obligations that arise prior to the date hereof
which shall be
retained by the Assignor). Assignor specifically reserves and
does not assign to
Assignee any right, title and interest in, to or under any
Mortgage Loans
subject to the Purchase and Servicing Agreement other than those
set forth on
Attachment l. Notwithstanding anything to the contrary contained
herein,
Assignor is retaining the right to enforce the representations
and warranties
made by the Seller prior to the date hereof with respect to the
Assigned Loans
and the Seller.
Representations; Warranties and Covenants
2. Assignor warrants and represents to Assignee and Company as
of the date
hereof:
a. Attached hereto as Attachment 2 is a true and accurate copy
of the
servicing provisions of the Purchase and Servicing Agreement,
which agreement is
in full force and effect as of the date hereof and the
provisions of which have
not been waived, amended or modified in any respect, nor has any
notice of
termination been given thereunder;
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b. Assignor was the lawful owner of the Assigned Loans with full
right
to transfer the Assigned Loans, free and clear of any and all
liens, claims and
encumbrances; and upon the transfer of the Assigned Loans to
Assignee as
contemplated herein, Assignee shall have good title to each and
every Assigned
Loan, free and clear of any and all liens, claims and
encumbrances;
c. Assignor has not received notice of, and has no knowledge of,
any
offsets, counterclaims or other defenses available to Company
with respect to
the Assigned Loans or the Purchase and Servicing Agreement;
d. Assignor has not waived or agreed to any waiver under, or
agreed to
any amendment or other modifications of the Purchase and
Servicing Agreement.
Assignor has no knowledge of, and has not received notice of,
any waivers under
or any amendments or other modifications of, or assignment of
rights or
obligations under the Purchase and Servicing Agreement;
e. Assignor is a corporation 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 sell the
Assigned Loans;
f. Assignor 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 Assignor's
business and will
not conflict with, or result in a breach of, any of the terms,
conditions or
provisions of Assignor's charter 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 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;
g. 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 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 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
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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; and
h. Assignor has received from Seller, and has delivered to
Assignee,
all documents required to be delivered to Assignor by Seller
prior to the date
hereof pursuant to Section 6.03 of the Purchase and Servicing
Agreement with
respect to the Assigned Loans.
3. Assignee warrants and represents to, and covenants with,
Assignor and
Company as of the date hereof:
a. Assignee is a corporation 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
Assigned Loans;
b. Assignee 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 Assignee's
business and will
not conflict with, or result in a breach of, any of the terms,
conditions or
provisions of Assignee's charter 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 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 material 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;
d. There is no action, suit, proceeding, investigation or
litigation
pending or, to Assignee's knowledge, threatened, which either in
any instance or
in the aggregate, if determined adversely to Assignee, would
adversely affect
Assignee's execution or delivery of, or the enforceability of,
this AAR
Agreement, or the Assignee's ability to perform its obligations
under this AAR
Agreement;
e. Assignee understands that the Assigned Loans have not
been
registered under the Securities Act of 1934 (the "Securities
Act") or the
securities laws of any state; and
f. Assignee is either (i) not an employee benefit plan that is
subject
to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or
Section 4975 of
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the Internal Revenue Code of 1986 (the "Code")(a "Plan") and not
a Person
acting, directly or indirectly, on behalf of or investing with
"plan assets" of
any such Plan or (ii) an employee benefit plan that is subject
to ERISA and the
assignment contemplated herein does not constitute and will not
result in
non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of
the Code.
4. The Seller hereby restates, as of the date hereof, the
representations
and warranties contained in Section 7.01 of the Purchase and
Servicing Agreement
(except with respect to Section 7.01(x), (xi) and (xii)), to and
for the benefit
of the Assignee, and by this reference incorporates such
representations and
warranties herein, as of the date hereof.
Recognition of Assignee
5. a. From and after the date hereof, the Company shall
recognize the
Assignee as the owner of the Assigned Loans, and the Company
will service the
Assigned Loans in accordance with the servicing provisions
contained in the
Purchase and Servicing Agreement, as modified by this AAR
Agreement, for the
benefit of the Assignee, and shall look solely to the Assignee
for performance
of the obligations of Purchaser under the Purchase and Servicing
Agreement with
respect to the Assigned Loans. The Assignee hereby acknowledges
and agrees that
it shall uphold, or shall require its agents to uphold, the
obligations of the
Purchaser contained in the Purchase and Servicing Agreement.
b. The Company acknowledges that Wells Fargo Bank, N.A. has
been
appointed as the master servicer of the Assigned Loans pursuant
to the Pooling
and Servicing Agreement, dated as of October 1, 2007, by and
among the Assignee,
Wells Fargo Bank, N.A., as master servicer (the "Master
Servicer") and
securities administrator (the "Securities Administrator"), and
HSBC Bank USA,
National Association (the "Pooling and Servicing Agreement").
The Company shall
deliver all reports required to be delivered under the Purchase
and Servicing
Agreement to:
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Merrill Lynch Alternative Note Asset Trust,
Series
2007-OAR5
c. The Company hereby acknowledges that the Master Servicer has
the
right to enforce all obligations of the Company under the
Purchase and Servicing
Agreement acting on behalf of the Assignee, as owner of the
Assigned Loans. Such
rights will include, without limitation, the right to terminate
the Company
under the Purchase and Servicing Agreement upon the occurrence
of an event of
default thereunder, the right to receive all remittances
required to be made by
the Company under the Purchase and Servicing Agreement, the
right to receive all
monthly reports and other data required to be delivered by the
Company under the
Purchase and Servicing Agreement, the right to examine the books
and records of
the Company and the right to exercise certain rights of consent
and approval of
the "Purchaser" under the Purchase and Servicing Agreement.
Notwithstanding the
foregoing, it is understood that the Company shall not be
obligated to defend
and indemnify and hold harmless the Master Servicer, the
Assignee and the
Assignor from and against any losses, damages, penalties, fines,
forfeitures,
judgments
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and any related costs including, without limitation, reasonable
and necessary
legal fees, resulting from (i) actions or inactions of the
Company which were
taken or omitted upon the instruction or direction of the Master
Servicer or
(ii) the failure of the Master Servicer to perform the
obligations of the
"Purchaser" under the Purchase and Servicing Agreement and this
AAR Agreement
only to the extent that the Master Servicer has any obligations
of the
"Purchaser". In addition, the Assignee shall indemnify the
Company and hold it
harmless against any and all claims, losses, damages, penalties,
fines,
forfeitures, reasonable and necessary legal fees and related
costs, judgments,
and any other costs, fees and expenses that the Company may
sustain in any way
related to (a) actions or inactions of the Company which were
taken or omitted
upon the instruction or direction of the Trustee or Master
Servicer, as
applicable, or (b) the failure of the Trustee or the Master
Servicer, as
applicable, to perform the obligations of the "Purchaser" under
the Purchase and
Servicing Agreement and this AAR Agreement. The Company shall
make all
distributions under the Purchase and Servicing Agreement to the
Master Servicer
by wire transfer of immediately available funds to:
Wells Fargo Bank, N.A.
ABA Number: #121-000-248
Account Name: Corporate Trust Clearing
Account number: 3970771416
For further credit to: MANA 2007-OAR5
Distribution Account Number: 53168000
d. For purposes of Section 11.14 and Section 11.30 of the
Servicing
Addendum to the Purchase and Servicing Agreement (the "Servicing
Addendum"), the
Company is hereby notified, and the Company hereby acknowledges
receipt of such
notification, that a REMIC election has been made with respect
to the Assigned
Loans.
Modification of the Purchase and Servicing Agreement
6. Reserved.
7. Reserved.
8. The Assignee and the Company hereby amend Section 1 of the
Purchase and
Servicing Agreement, as it pertains to the Assigned Loans,
by:
a. amending the definition of "Monthly Advance" by deleting
the
reference to "Subsection 11.22" and replacing it with "Section
11.22."
b. amending the definition of "Remittance Date" by deleting the
words
"immediately following such" and replacing them with
"immediately preceding
such".
c. deleting the definition of "Business Day" in its entirety
and
replacing it with the following:
"Business Day: Any day other than (i) a Saturday or Sunday, or
(ii) a
day on which the Federal Reserve is closed, or (iii) a day on
which banking
institutions in the
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jurisdiction in which Countrywide Home Loans Servicing LP, the
Master Servicer
or the Seller are authorized or obligated by law or executive
order to be
closed."
d. deleting the definition of "Master Servicer" in its entirety
and
replacing it with the following:
"Master Servicer: Wells Fargo Bank, N.A., or its successors
in
interest."
e. deleting the definition of "Eligible Account" in its entirety
and
replacing it with the following:
"Eligible Account: The Custodian or another depository, the
accounts
of which are (i) an account or accounts maintained with a
federal or state
chartered depository institution or trust company, the
short-term unsecured debt
obligations of which (or, in the case of a depository
institution or trust
company that is the principal subsidiary of a holding company,
the debt
obligations of such holding company) have a minimum short-term
rating of "A-2"
by S&P, "P-2" by Moody's, o
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