Exhibit 99.9(a)
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated of April 1, 2006, is entered into among Xxxxxx Xxxxxxx
Capital I Inc., a Delaware corporation (the "Depositor"), Xxxxxx Xxxxxxx
Mortgage Capital Inc. ("MSMCI"), EverBank, as seller (the "Seller"), and
acknowledged by EverHome Mortgage Company ("EverHome"), LaSalle Bank National
Association, as trustee (the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust
2006-6AR (the "Trust").
RECITALS
WHEREAS MSMCI, the Seller has entered into a certain Third Amended
and Restated Mortgage Loan Purchase and Warranties Agreement, dated as of
November 7, 2005 (as amended or modified to the date hereof, the "Purchase
Agreement"), pursuant to the terms of which MSMCI has acquired certain
Mortgage Loans;
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
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 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 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
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 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 Agreements. Accordingly, the right of MSMCI to consent to any
amendment of the Agreements and its rights concerning waivers as set forth in
the Agreements shall be exercisable, to the extent any such amendment or
waiver affects the Specified Mortgage Loans or any of the rights under the
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 (the
"Pooling and Servicing Agreement") among the Depositor, Xxxxx Fargo Bank,
National Association, as securities administrator and 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 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 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, 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'
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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 April 28, 2006 (the "Closing
Date"), the representations and warranties set forth in sections 9.01 and 9.02
of the Purchase Agreement, with respect to each of the Specified Mortgage
Loans that were sold by it under the 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) With respect to the Specified Mortgage Loans, the Seller agrees
to undertake the obligations of the Interim Servicer under Subsections 8.03(c)
and 8.04 of the Purchase Agreement.
(b) The Seller hereby agrees to provide written notice in compliance
with Subsection 8.03(c) of the Purchase Agreement to Xxxxx Fargo Bank,
National Association, as Master Servicer, substantially in the form of Exhibit
II to this Agreement.
(c) The following paragraph is hereby incorporated into the Purchase
Agreement as new Subsection 8.05:
"Third Party Beneficiary. For purposes of this Agreement, any master
servicer appointed in connection with a Reconstitution by the Owner
shall be considered a third party beneficiary to this Agreement
(including but not limited to Subsections 8.01, 8.03 and 8.04
hereof) with respect to the Specified Mortgage Loans entitled to all
the rights and benefits accruing to any master servicer herein with
respect to the Specified Mortgage Loans as if it were a direct party
to this Agreement."
5. Continuing Effect
Except as contemplated hereby, the 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
Agreements to be made to the Depositor, MSMCI, the Seller and the Trustee
shall be made in accordance with the terms of the 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 2006-6AR
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 2006-6AR
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 2006-6AR
In the case of the Seller:
EverBank
0000 Xxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
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
Agreements.
8. Ratification
Except as modified and expressly amended by this Assignment, the
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 Agreements.
[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
--------------------------------
Name: Xxxxxxx Xxx
Title: XX
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx Xxx
--------------------------------
Name: Xxxxxxx Xxx
Title: VP
EVERBANK
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President,
Secondary Marketing
Acknowledged and Agreed:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2006-6AR
By: /s/ Xxxxxxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxxxxxx Xxxxx
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
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate Trust Services - MSM 2006-6AR - SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-6AR
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section 4(b) of the Assignment, Assumption and
Recognition Agreement, dated as of March 1, 2006, among Xxxxxx Xxxxxxx Capital
I Inc., as Depositor, EverBank, 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:
