Exhibit 99.7(a)
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of March 1, 2006, is entered into among Xxxxxx Xxxxxxx
Capital I Inc., a Delaware corporation (the "Depositor"), Xxxxxx Xxxxxxx
Mortgage Capital Inc. ("MSMCI"), American Home Mortgage Corp., as seller (the
"Seller"), and acknowledged by LaSalle Bank National Association, as trustee
(the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-5AR (the "Trust").
RECITALS
WHEREAS MSMCI and the Seller have entered into a certain Mortgage Loan
Purchase And Warranties Agreement, dated as of November 1, 2003, as amended by
Amendment No. 1, dated as of November 30, 2004 (the "November Purchase
Agreement") and a certain Second Amended and Restated Mortgage Loan Purchase
and Warranties Agreement, dated as of December 1, 2005 (the "December Purchase
Agreement" and together with the November Purchase Agreement, the "Purchase
Agreements"), pursuant to which MSMCI has acquired certain Mortgage Loans
pursuant to the terms of the Purchase Agreements;
WHEREAS, in connection with the transfer of the Mortgage Loans
hereunder, the Seller agrees that, from and after the date hereof, each
Mortgage Loan transferred hereunder will be subject to the December Purchase
Agreement;
WHEREAS the Depositor has agreed, on the terms and conditions contained
herein, to purchase from MSMCI certain of the Mortgage Loans (the "Specified
Mortgage Loans") which are subject to the provisions of the Purchase
Agreements 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 of the date hereof, MSMCI 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
Purchase Agreements to the extent relating to the Specified Mortgage Loans,
the Depositor hereby accepts such assignment from MSMCI (the "First Assignment
and Assumption"), and the Seller hereby acknowledges the First Assignment and
Assumption.
MSMCI 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 MSMCI with respect to any Mortgage Loans subject to the
Purchase Agreements which are not the Specified Mortgage Loans.
(b) On and 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 and obligations
related thereto as provided under the Purchase Agreements 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 Seller hereby
acknowledges the Second Assignment and Assumption.
(c) On and as of the date hereof, MSMCI represents and warrants to the
Depositor and the Trustee that MSMCI 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 MSMCI's
acquisition of the Specified Mortgage Loans.
2. Recognition of Trustee
(a) From and after the date hereof, both MSMCI and the Seller 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. It
is the intention of the Seller, the Depositor, the Trustee and MSMCI that this
Assignment shall be binding upon and inure to the benefit of the Depositor,
the Trustee and MSMCI 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 or waivers
under the Purchase Agreements. Accordingly, the right of MSMCI to consent to
any amendment of the Purchase Agreements and its rights concerning waivers as
set forth in Section 23 of the December Purchase Agreement shall be
exercisable, to the extent any such amendment or waiver affects the Specified
Mortgage Loans or any of the rights under the Purchase Agreements with respect
thereto, solely by the Trustee as assignee of MSMCI.
(c) It is expressly understood and agreed by the parties hereto that
(i) this Assignment is executed and delivered by LaSalle Bank National
Association, not individually or personally but solely on behalf of the Trust,
as the Assignee, in the exercise of the powers and authority conferred and
vested in it, as Trustee, pursuant to the Pooling and Servicing Agreement,
(ii) each of the representations, undertakings and agreements herein made on
the part of Assignee is made and intended not as personal representations,
undertakings and agreements by LaSalle Bank National Association but is made
and intended for the purpose of binding only the Trust , (iii) nothing herein
contained shall be construed as creating any liability for LaSalle Bank
National Association, individually or personally, to perform any covenant
(either express or implied) contained herein and (iv) under no circumstances
shall LaSalle Bank National Association be personally liable for the payment
of any indebtedness or expenses of the Trust, or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Assignment and (v) all recourse for any
payment liability or other obligation of the Assignee shall be had solely to
the assets of the Trust.
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 Seller or MSMCI other than those
contained in the Purchase Agreements 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 Depositor, MSMCI and the Seller represents and
warrants that this Assignment has been duly authorized, executed and delivered
by it and (assuming due authorization,
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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) The Seller hereby restates, as of the Closing Date (as defined in
the Pooling and Servicing Agreement dated as of the date hereof (the "Pooling
and Servicing Agreement") among the Depositor, Xxxxx Fargo Bank, National
Association, as securities administrator and master servicer, and the
Trustee), the representations and warranties set forth in Sections 9.01 and
9.02 of the Purchase Agreements, with respect to each of the Specified
Mortgage Loans that were sold by it under the Purchase Agreements, to and for
the benefit of the Depositor, the securities administrator, the Trustee and
the Trust, and by this reference incorporates such representations and
warranties herein, as of such Closing Date; provided, however, that instead of
the representation and warranty set forth in Subsection 9.02(b), the Seller
hereby represents and warrants that as of the Closing Date, none of the
Specified Mortgage Loans are contractually past due by more than 30 days.
4. Future Covenants
(a) For the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Company
shall (i) promptly provide the Depositor and the Securities Administrator
written notice substantially in the form of Exhibit II (A) any material
litigation or governmental proceedings pending against the Company, (B) any
affiliations or relationships that develop following the closing date of a
Securitization Transaction between the Company, with respect to such
Securitization Transaction, (C) any Event of Default under the terms of this
Agreement or any Reconstitution Agreement, (D) any merger, consolidation or
sale of substantially all of the assets of the Company and (E) the Company's
entry into an agreement with a Subcontractor to perform or assist the Company
with the performance of any of the Company's obligations under this Agreement
or any Reconstitution Agreement and (ii) provide to the Depositor and the
Securities Administrator a description of such proceedings, affiliations or
relationships.
(b) Indemnification; Remedies.
(i) The Company shall indemnify the Depositor, each affiliate of
the Depositor, and each of the following parties participating in a
Securitization Transaction: each sponsor and issuing entity; each Person
(including but not limited to each master servicer, if applicable) responsible
for the preparation, execution or filing of any report required to be filed
with the Commission with respect to such Securitization Transaction, or for
execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction; each
broker dealer acting as underwriter, placement agent or initial purchaser,
each Person who controls any of such parties or the Depositor (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act); and the respective present and former directors, officers, employees,
agents and affiliates (each, an "Indemnified Party") of each of the foregoing
and of the Depositor, and shall hold each of them harmless from and against
any claims, losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(1) (A) any untrue statement of a material fact contained
or alleged to be contained in any information, report or other material
provided under this Section 4 by or on behalf of the Company,
(collectively, the "Company Information"), or (B) the omission or
alleged
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omission to state in the Company Information a material fact required to
be stated in the Company Information or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to
the Company Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to
whether the Company Information or any portion thereof is presented
together with or separately from such other information;
(2) any breach by the Company under this Article II,
including particularly any failure by the Company to deliver any
information, report or other material when and as required under this
Section 4; or
(3) negligence, bad faith or willful misconduct of the
Company in connection with its performance under this Section 4.
(ii) If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Company agrees
that it shall contribute to the amount paid or payable by such Indemnified
Party as a result of any claims, losses, damages or liabilities incurred by
such Indemnified Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and the Company on
the other
(iii) In the case of any failure of performance described in
clause (a) of this Section 4, the Company shall promptly reimburse the
Purchaser, any Depositor, as applicable, and each Person responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction, for all costs
reasonably incurred by each such party in order to obtain the information,
report, certification, accountants' letter or other material not delivered as
required by the Company.
(iv) This indemnification shall survive the termination of this
Agreement or the termination of any party to this Agreement.
5. Continuing Effect
Except as contemplated hereby, the Purchase Agreements shall remain in
full force and effect in accordance with its terms.
6. 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.
7. Notices
Any notices or other communications permitted or required under the
Purchase Agreements to be made to the Depositor and the Trustee shall be made
in accordance with the terms of the Purchase Agreements and shall be sent to
the Depositor and Trustee as follows:
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In the case of MSMCI:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-5AR
With a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel's Office
In the case of the Depositor:
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-5AR
In the case of the Trustee:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services MSM 2006-5AR
In the case of the Seller:
American Home Mortgage Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
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 Purchase
Agreements.
8. Ratification
Except as modified and expressly amended by this Assignment, the
Purchase Agreements are in all respects ratified and confirmed, and all terms,
provisions and conditions thereof shall be and remain in full force and
effect.
9. 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.
10. Definitions
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Any capitalized term used but not defined in this Assignment has the
same meaning as in the December Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment the
day and year first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: XX
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: VP
AMERICAN HOME MORTGAGE CORP.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: EVP
Acknowledged and Agreed:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2006-5AR
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant VP
EXHIBIT I
Mortgage Loan Schedule
[see Schedule A to Pooling and Servicing Agreement]
EXHIBIT II
Additional Disclosure Notification
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master Servicer
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate Trust Services - MSM 2006-5AR - SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-5AR
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section 4(a) of the Assignment, Assumption and
Recognition Agreement, dated as of March 1, 2006, among Xxxxxx Xxxxxxx Capital
I Inc., as Depositor, American Home Mortgage Corp., Xxxxx Fargo Bank, National
Association, as Securities Administrator and Master Servicer, and LaSalle Bank
National Association as Trustee. The Undersigned hereby notifies you that
certain events have come to our attention that [will][may] need to be
disclosed on Form [ ]. Description of Additional Form [ ] Disclosure:
List of Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [ ].
[NAME OF PARTY]
as [role]
By: __________________
Name:
Title:
