Assignment, Assumption and Recognition Agreement

EX-10.4 5 d16708exv10w4.txt ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT Exhibit 10.4 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"), dated as of June 1, 2004, is entered into among J.P. Morgan Acceptance Corporation I, a Delaware corporation (the "Depositor"), Wachovia Bank, National Association, as trustee (the "Trustee") of J.P. Morgan Mortgage Trust 2004-A3 (the "Trust"), Sunset Financial Resources, Inc., a Maryland corporation ("Sunset"), Cendant Mortgage Corporation ("Cendant") and Bishop's Gate Residential Mortgage Trust ("Bishop's Gate" and, together with Cendant, the "Sellers"), with Cendant Mortgage Corporation, as the servicer (in such capacity, the "Servicer"). RECITALS WHEREAS the Sellers and the Servicer and Morgan Stanley Mortgage Capital Inc., as purchaser ("Morgan Stanley"), entered into a certain Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated as of November 13, 2003 (the "Agreement"), pursuant to which Morgan Stanley acquired certain mortgage loans (the "Mortgage Loans") pursuant to the terms of the Agreement and the Servicer agreed to service such Mortgage Loans; WHEREAS, pursuant to an Assignment, Assumption and Recognition Agreement dated March 30, 2004 relating to the Agreement, Sunset acquired from Morgan Stanley all of Morgan Stanley's right, title and interest in certain of the Mortgage Loans (the "Sunset Mortgage Loans") and the Servicer agreed to service such Sunset Mortgage Loans pursuant to the Agreement; WHEREAS the Depositor has agreed, on the terms and conditions contained herein, to purchase from Sunset certain of the Sunset Mortgage Loans (the "Specified Mortgage Loans") which are subject to the provisions of the 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 as of the date hereof, Sunset 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 Agreement to the extent relating to the Specified Mortgage Loans (without recourse or warranty except as otherwise specifically provided herein), the Depositor hereby accepts such assignment from Sunset (the "First Assignment and Assumption"), and the Sellers hereby acknowledge the First Assignment and Assumption. Sunset 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 Sunset with respect to any Sunset Mortgage Loans subject to the Agreement which are not the Specified Mortgage Loans. (b) On and as 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 related thereto as provided under the 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 Sellers hereby acknowledge the Second Assignment and Assumption. (c) On and as of the date hereof, Sunset represents and warrants to the Depositor and the Trustee that Sunset 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 Sunsets' acquisition of the Specified Mortgage Loans. 2. Recognition of Trustee (a) From and after the date hereof, both Sunset and the Sellers 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, and Servicer shall service the Specified Mortgage Loans for the benefit of the Trust pursuant to the Agreement, the terms of which are incorporated herein by reference. It is the intention of the Sellers, the Servicer, the Depositor, the Trustee and Sunset that this Assignment shall be binding upon and inure to the benefit of the Depositor, the Trustee and Sunset 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 and waivers under the Agreement. Accordingly, the right of Sunset to consent to any amendment of the Agreement and its rights concerning waivers as set forth in Section 12.07 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 Agreement with respect thereto (including, without limitation, the servicing of the Specified Mortgage Loans), by the Trustee as assignee of Sunset. 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 Sellers or Sunset other than those contained in the 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 parties hereto 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) Each Seller hereby restates, as of Closing Date (as defined in the Pooling and Servicing Agreement referred to below) (or, with respect to the representations and warranties contained in Sections 3.03(4), (20), (21), (25), (31) and (58) of the Agreement, as of the applicable Funding Date (as defined in the Agreement)), the representations and warranties set forth in Article III of the Agreement, with respect to each of the Specified Mortgage Loans that were sold by it under the Agreement, to and for the benefit of the Depositor, the Trustee and the Trust, and by this reference incorporates such representations and 2 warranties herein, as of such Closing Date. In addition, each Seller hereby represents and warrants that each Specified Mortgage Loan sold by it under the Agreement that is a Cooperative Loan is secured by stock in a "cooperative housing corporation" within the meaning of Section 216(b) of the Code. 4. The Servicer hereby acknowledges that Wells Fargo Bank, N.A. has been appointed as the master servicer (the "Master Servicer") of the Specified Mortgage Loans pursuant to the pooling and servicing agreement dated as of the date hereof among the Depositor, the Master Servicer, the Securities Administrator and the Trustee (the "Pooling and Servicing Agreement") for Mortgage Pass-Through Certificates, Series 2004-A3 and, therefore, has the right to enforce all obligations of the Servicer under the Agreement with respect to the Specified Mortgage Loans. Such rights will include, without limitation, the right to terminate the Servicer under the Agreement with respect to the Specified Mortgage Loans upon the occurrence of an event of default thereunder, the right to receive all remittances required to be made by the Servicer under the Agreement with respect to the Specified Mortgage Loans, the right to receive all monthly reports and other data required to be delivered by the Servicer under the Agreement with respect to the Specified Mortgage Loans, the right to examine the books and records of the Servicer, indemnification rights and the right to exercise certain rights of consent and approval relating to actions taken by Sunset with respect to the Specified Mortgage Loans. The Servicer shall make all distributions under the 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: SAS Clearing Account number: 3970771416 For further credit to: J.P. Morgan Mortgage Trust 2004-A3, Distribution Account Number: 18172300 The Servicer shall deliver all reports required to be delivered under the Agreement to the Master Servicer at the following address: Wells Fargo Bank, N.A. 9062 Old Annapolis Road Columbia, Maryland 21045 Attention: Client Manager Telecopier: (410) 715-2380 5. Establishment of Collection Account The Servicer shall establish and maintain a separate Collection Account in the name of the Trustee, in trust for J.P. Morgan Mortgage Trust 2004-A3, for all funds collected and received on the Specified Mortgage Loans. 6. Amendments to the Agreement The parties to the Agreement hereby agree to amend the Agreement as follows: (a) The definition of "Qualified Substitute Mortgage Loan" is hereby amended solely with respect to the Specified Mortgage Loans by deleting clause (x) in its entirety and replacing it as follows: "(x) with respect to each ARM Loan, have the same Index as that of the Deleted Mortgage Loan," 3 (b) The definition of "Qualified Substitute Mortgage Loan" is hereby amended solely with respect to the Specified Mortgage Loans by inserting the following: "and (xiv) with respect to each ARM Loan, not permit conversion of the related Note Rate to a permanent fixed Note Rate." (c) With respect to the Specified Mortgage Loans, "Permitted Investments" shall have the meaning of such term as defined in the Pooling and Servicing Agreement. (d) Notwithstanding any provision in the Agreement to the contrary, the parties to this Assignment hereby agree that the Servicer's aggregate obligations under Section 6.03(3) of the Agreement to make payments on account of Prepayment Interest Shortfall Amounts with respect to a Mortgage Pool (as defined in the Pooling and Servicing Agreement) shall be limited to the total amount of servicing compensation that would be payable to the Servicer with respect to such Mortgage Pool if no Principal Payment was made during the related Due Period. (e) Section 6.02 is hereby amended by deleting the first sentence of the first paragraph and replacing it with the following sentence: "On or before the 5th Business Day of each month during the term hereof, the Servicer shall deliver to the Master Servicer monthly accounting reports in the form of Exhibits 6.02(a) through 6.02(g) and Exhibit 13 attached hereto, in Microsoft Excel format as requested by the Purchaser, with respect to the most recently ended Due Period." (f) The reporting requirements attached to this Assignment as Exhibit II is hereby incorporated into the Agreement as new Exhibit 13. (g) The references to "March 15" in Section 7.04 are hereby deleted and replaced with "March 1". (h) Section 7.04 of the Agreement is hereby amended and restated in its entirety as follows: "Annual Statement as to Compliance. (a) For so long as the Mortgage Loans are being master serviced by a master servicer in a securitization transaction (the "Master Servicer"), by the later of March 1 or 30 days prior to the date on which the Form 10-K is required to be filed with the SEC of each year (or if not a Business Day, the immediately preceding Business Day), an officer of the Servicer shall execute and deliver an Officer's Certificate to the Master Servicer for the benefit of such Master Servicer and its officers, directors and affiliates, in the form of Exhibit 11 hereto. (b) The Servicer shall indemnify and hold harmless the Master Servicer and its officers, directors, agents and affiliates from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Servicer or any of its officers, directors, agents or affiliates of its obligations under this Section 7.04 or the negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for herein is unavailable or insufficient to hold harmless the Master Servicer, then the Servicer agrees that it shall contribute to the amount paid or payable by the Master Servicer as a result of the losses, claims, damages or liabilities of the Master Servicer in such proportion as is appropriate to reflect the relative fault of the Master Servicer on the one hand and the Servicer on the other in connection with a breach of the 4 Servicer's obligations under this Section 7.04 or the Servicer's negligence, bad faith or willful misconduct in connection therewith." (i) The word "or" is deleted from the end of Section 10.01(8), the word "or" is added at the end of Subsection 10.01(9) and the following paragraph is hereby incorporated into the Agreement as new Subsection 10.01(10): "(10) failure by the Servicer to duly perform, within the required time period, its obligations under Sections 7.04 and 7.05 which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any party to this Agreement or by any master servicer responsible for master servicing the Mortgage Loans pursuant to a Pass-Through Transfer of such Mortgage Loans;" (j) The following paragraph is hereby incorporated into the Agreement as new Section 12.14: "Third Party Beneficiary. For purposes of Section 7.04 only, any Master Servicer shall be considered a third party beneficiary to Section 7.04 and shall be entitled to enforce the provisions of Section 7.04." 7. Indemnification by Master Servicer The Master Servicer shall indemnify and hold harmless the Servicer and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by the Master Servicer or any of its officers, directors, agents or affiliates of its obligations in connection with the preparation, filing and certification of any Form 10-K pursuant to the Pooling and Servicing Agreement or the negligence, bad faith or willful misconduct of the Master Servicer in connection therewith. In addition, the Master Servicer shall indemnify and hold harmless the Servicer and its affiliates, and in each case, its officers, directors and agents from and against any losses, damages, penalties, fines, forfeitures, reasonable legal fees and related costs, judgments and other costs and expenses arising out of or based upon a breach by any Servicer (as defined in the Pooling and Servicing Agreement), other than the Servicer (as defined herein), of its obligations in connection with any back-up certification (or any other back-up documents) to any certification of any Form 10-K required to be provided by the Master Servicer, but solely to the extent the Master Servicer receives amounts from such Servicer in connection with any indemnification provided by such Servicer (in each case as defined in the Pooling and Servicing Agreement) to the Master Servicer. 8. Continuing Effect Except as contemplated hereby, the Agreement shall remain in full force and effect in accordance with its terms. 9. 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. 10. Notices 5 Any notices or other communications permitted or required under the Agreement to be made to Sunset, the Depositor, the Trustee, Cendant, Bishop's Gate and the Servicer shall be made in accordance with the terms of the Agreement and shall be sent to the Depositor and Trustee as follows: In the case of Sunset: Sunset Financial Resources, Inc. 10245 Centurion Parkway North Suite 305 Jacksonville, Florida 32256 Attention: Byron Boston Telephone: 904 ###-###-#### Facsimile: 904 ###-###-#### In the case of the Depositor: J.P. Morgan Acceptance Corporation I 270 Park Avenue New York, New York 10017 Attention: J.P. Morgan Mortgage Trust 2004-A3 In the case of the Trustee: Wachovia Bank, National Association 401 South Tryon Street Charlotte, North Carolina ###-###-#### Attention: Structured Finance Trust Services, J.P. Morgan Mortgage Trust 2004-A3 In the case of Cendant: Cendant Mortgage Corporation 3000 Leadenhall Road Mt. Laurel, NJ 08054 Attention: Peter A. Thomas, Vice President, Secondary Marketing In the case of Bishop's Gate: c/o Cendant Mortgage Corporation, as Administrator 3000 Leadenhall Road Mt. Laurel, NJ 08054 Attention: Peter A. Thomas, Vice President, Secondary Marketing In the case of the Servicer: Cendant Mortgage Corporation 3000 Leadenhall Road Mt. Laurel, NJ 08054 Attention: Peter A. Thomas, Vice President, Secondary Marketing 6 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 Agreement. 11. Ratification Except as modified and expressly amended by this Assignment, the Agreement is in all respects ratified and confirmed, and all terms, provisions and conditions thereof shall be and remain in full force and effect. 12. 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. 13. Definitions Any capitalized term used but not defined in this Assignment has the same meaning as in the Agreement. [SIGNATURE PAGE FOLLOWS] 7 IN WITNESS WHEREOF, the parties hereto have executed this Assignment the day and year first above written. SUNSET FINANCIAL RESOURCES, INC. By: /s/ Thomas G. Manuel ------------------------------ Name: Thomas G. Manuel Title: EVP J.P. MORGAN ACCEPTANCE CORPORATION I By: /s/ Jonathan Davis ---------------------------------- Name: Jonathan Davis Title: Vice President WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee of J.P. Morgan Mortgage Trust 2004-A3 By: /s/ Stephanie J. Aronovitch ---------------------------------- Name: Stephanie J. Aronovitch Title: Assistant Vice President CENDANT MORTGAGE CORPORATION By: /s/ Crissy Judge ---------------------------------- Name: Crissy Judge Title: Assistant Vice President BISHOP'S GATE RESIDENTIAL MORTGAGE TRUST By: /s/ Crissy Judge ----------------------------------- Name: Crissy Judge Title: Assistant Vice President CENDANT MORTGAGE CORPORATION,as Servicer By: /s/ Crissy Judge ----------------------------------- Name: Crissy Judge Title: Assistant Vice President Acknowledged and Agreed: WELLS FARGO BANK, N.A., as Master Servicer By: /s/ Ruth Fussell ------------------------------- Name: Ruth Fussell Title: Vice President