Exhibit 99.15(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"), Wachovia Mortgage Corporation as seller
("Wachovia," or 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 Seller's
Purchase, Warranties and Interim Servicing Agreement, dated as of February 28,
2005 (as amended or modified to the date hereof, the "Agreement"), pursuant to
which MSMCI has acquired certain Mortgage Loans pursuant to the terms of the
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 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, 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 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
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 and obligations
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 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 Servicer, 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 Agreement. Accordingly, the right of MSMCI to consent to any amendment of
the Agreement and its rights concerning waivers as set forth in Sections 11.02
and 8.02 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 (other than the servicing of the
Specified Mortgage Loans, which shall be enforced by the Master Servicer) 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 among the Depositor, Xxxxx Fargo Bank, National
Association, as securities administrator (the "Securities Administrator") and
as master servicer (the "Master Servicer"), and the Trustee (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, (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 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 Seller 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
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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 makes, as of the Closing Date (as defined in the
Pooling and Servicing Agreement referred to below), the representations and
warranties set forth in Section 3.01 of the Agreement, to and for the benefit
of the Depositor, the Trustee and the Trust, and by this reference
incorporates such representations and warranties herein, as of such Closing
Date. The Seller hereby restates as of the closing date (as defined in the
Agreement) the representations and warranties set forth in Section 3.02 of the
Agreement to and for the benefit of the Depositor, the Trustee and the Trust,
and by this reference incorporates such representations and warranties of such
date.
4. Continuing Effect
Except as contemplated hereby, the Agreement shall remain in full force
and effect in accordance with its terms.
5. 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.
6. Notices
Any notices or other communications permitted or required under the
Agreement to be made to the Depositor, MSMCI, the Seller, and the Trustee
shall be made in accordance with the terms of the 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 2006-5AR
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
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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 Wachovia:
Wachovia Mortgage Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
With a copy to:
Wachovia Mortgage Corporation
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx Xxxxxx
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.
7. 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.
8. 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.
9. Definitions
Any capitalized term used but not defined in this Assignment has the
same meaning as in the 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
WACHOVIA MORTGAGE CORPORATION
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: VP
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]
