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EXHIBIT 99.5
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This
is an Assignment, Assumption and Recognition Agreement (this
"AAR
Agreement") made as of March 1, 2007, among Merrill Lynch Mortgage
Lending,
Inc., having an address at 4 World Financial Center, New York, New
York 10080
(the "Assignor"), Merrill Lynch Mortgage Investors, Inc., having an
address at 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;
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
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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 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
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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 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
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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. (the
"Master
Servicer" and "Securities Administrator") has been appointed as the
master
servicer of the Assigned Loans pursuant to the Pooling and
Servicing Agreement,
dated as of March 1, 2007, by and among the Assignee, the Master
Servicer, the
Securities Administrator, Wilshire Credit Corporation 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-OAR2
(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 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
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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-OAR2
Distribution Account Number: 53134100
(d) For purposes of 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.
The Assignee and the Company hereby amend the definition of
"Monthly
Advance" in Section 1 of the Purchase and Servicing Agreement by
deleting the
reference to "Subsection 11.22" and replacing it with "Section
11.22."
7.
The Assignee and the Company hereby amend the definition of
"Remittance
Date" in Section 1 of the Purchase and Servicing Agreement by
deleting the words
"immediately following such" and replacing them with "immediately
preceding
such".
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) deleting the definition of "Business Day" in its entirety
