Exhibit 99.13(a)
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EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of July 1, 2006, is entered into among Xxxxxx Xxxxxxx
Capital I Inc., a Delaware corporation (the "Depositor"), Xxxxxx Xxxxxxx
Mortgage Capital Inc. ("MSMCI") and Sovereign Bank, as seller (the "Seller"),
and acknowledged by LaSalle Bank National Association, as trustee (the
"Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-11 (the "Trust").
RECITALS
WHEREAS MSMCI and the Seller have entered into a certain Mortgage
Loan Purchase And Warranties Agreement, dated as of June 1, 2006 (the
"Purchase Agreement"), pursuant to which MSMCI has acquired certain Mortgage
Loans;
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 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 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
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(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 and obligations related thereto as
provided under the Purchase Agreement 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 Agreement 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 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 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
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(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, the Seller 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 Agreement. Accordingly, the right of MSMCI to consent to
any amendment of the Purchase Agreement and its rights concerning waivers as
set forth in Section 22 of the 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 Agreement 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
dated as of the date hereof (the "Pooling and Servicing Agreement") among the
Depositor, Xxxxx Fargo Bank, National Association, as securities administrator
(the "Securities Administrator") and master servicer (the "Master Servicer"),
and the Trustee, (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, (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.
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3. Representations and Warranties
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(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 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 Depositor, MSMCI and the Seller 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) The Seller hereby restates, as of the Closing Date (as defined
in the Purchase Agreement), the representations and warranties set forth in
Subsections 9.01 and 9.02 of the Purchase Agreement, as they relate to each of
the Specified Mortgage Loans that were sold by it under the Purchase
Agreement, 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.
4. Future Covenants
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(a) For the purpose of facilitating the Purchaser's or any
Depositor's reporting obligations under the Exchange Act with respect to any
class of asset-backed securities collateralized by any of the Mortgage Loans,
the Seller agrees to use its reasonable efforts to provide, within 5 business
days and in no event later than within 10 days of the Seller's receipt from
Purchaser of (i) a statement from Purchaser setting forth the percentage of
Mortgage Loans as a percentage of the then-current pool composition that were
acquired by the Seller from Terwin Advisors LLC and UBS (each a "Third Party
Originator") (which, in each case shall be identified by name by Purchaser in
such statement), for such pool is in excess of twenty percent (20%) of such
pool (or such other percentage as shall be required in any amendment to
Regulation AB (or as a result of any rules or regulations promulgated by the
Commission or interpretive guidance provided by the Commission or its staff)
which would necessitate the disclosures set forth in subclause (ii) of this
paragraph 4(a)), and (ii) Purchaser's written request to the Seller for (A) a
written description of (x) any litigation or governmental proceedings pending
against the Seller or such identified Third-Party Originator which are likely
to materially and adversely affect either the Seller's or such Third-Party
Originator's financial condition, the conduct of its respective business or
the Mortgage Loans contained in such pool in the aggregate), (B) any Event of
Default known to the Seller under the terms of this Assignment or the Purchase
Agreement and (C) a description of whether, and if so, how, the Seller or any
such Third-Party Originator is an affiliate (as such term is defined in
Section 1119 of Regulation AB) of such entities as shall be identified in
Purchaser's written request, which identification must
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include, at a minimum, entity legal name, address of principal place of
business, and such entity's role in the related securities transaction, which
role shall, in each case, be of a nature that disclosure of such information
is required by Item 1119 of Regulation AB (such written notice and request
described in this paragraph 1(a), the "Disclosure Request").
(b) Seller's Indemnification; Remedies.
(i)The Seller shall indemnify the Purchaser, each
affiliate of the Purchaser, the Depositor and each of the following
parties participating in a Securitization Transaction: each sponsor and
issuing entity; 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; 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 and agents of each of the foregoing and of the
Depositor (each, for purposes of this Section 4(b), an "Indemnified
Party"), and shall hold each of them harmless from and against any
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:
(A) (1) any untrue statement of a material fact (as
such materiality shall relate to the scope of the Seller's
obligation pursuant to paragraph 4(a)) contained in any
information, report or other material provided under Section
4(a) by or on behalf of the Seller, (collectively, the
"Information"), or (2) the omission by the Seller to state
in the Seller Information a material fact required to be
stated in the Seller Information in order to make the
statements presented to the Purchaser therein, in the light
of the circumstances under which they were made, not
misleading; provided, however, that clauses (1) and (2) of
this paragraph shall be construed solely by reference to the
Seller Information as provided in response to the Disclosure
Request, and the Seller shall not be liable for any
inaccuracies, misstatements, incorrect paraphrasing, or
other alterations of the Seller Information caused by the
Purchaser or for an incorrect determination by Purchaser,
any affiliate of Purchaser, sponsor, depositor, a trustee or
securities administrator as to whether any Seller
Information is material or appropriate to be disclosed in
connection with the registration, sale, purchase or filing
of any report with respect to securities (without regard to
whether the Seller Information or any portion thereof is
presented together with or separately from such other
information).
(B) any failure by the Seller to provide the
information specified under Section 4(a) as is reasonably
and timely requested by Purchaser under Section 4(a); or
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(C) negligence, bad faith or willful misconduct of the
Seller in connection with its performance under Section
4(a).
(ii) In the case of any failure of performance described
in clause (a) of this Section 4, the Seller 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 or other material
not delivered as required by the Seller.
(iii) 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
(iv) This indemnification shall survive the termination
of this Agreement or the termination of any party to this Agreement.
5. Continuing Effect
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Except as contemplated hereby, the Purchase Agreement as
supplemented by that certain side letter dated May 31, 2006, shall remain in
full force and effect in accordance with its terms.
6. Governing Law
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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
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Any notices or other communications permitted or required under
the Purchase Agreement to be made to MSMCI, the Depositor, the Trustee and the
Seller shall be made in accordance with the terms of the Purchase Agreement
and shall be sent as follows:
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 2006-11
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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 2006-11
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 2006-11
In the case of the Seller:
Sovereign Bank Capital Markets
Structured Products Group
0 Xxxxxxx Xxxx - Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx XxXxxxxxxx, Vice President
With a copy to:
Sovereign Bank
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Chief 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
Agreement.
8. Ratification
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Except as modified and expressly amended by this Assignment, the
Purchase Agreement are in all respects ratified and confirmed, and all terms,
provisions and conditions thereof shall be and remain in full force and
effect.
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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
Any capitalized term used but not defined in this Assignment has
the same meaning as in the 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/ Xxxxxxx Xxx
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Name: Xxxxxxx Xxx
Title: XX
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx Xxx
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Name: Xxxxxxx Xxx
Title: VP
SOVEREIGN BANK
By: /s/ Xxxx X. XxXxxxxxxx
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Name: Xxxx X. XxXxxxxxxx
Title: SVP
Acknowledged and Agreed:
LASALLE BANK, NATIONAL
ASSOCIATION, as Trustee of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2006-11
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: 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
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate Trust Services - MSM 2006-11 - SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-11
Re: **Additional Form [ ] Disclosure**Required
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Ladies and Gentlemen:
In accordance with Section 4(a) of the Assignment, Assumption and
Recognition Agreement, dated as of [date], among Xxxxxx Xxxxxxx Capital I
Inc., as Depositor, Sovereign Bank, 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:
