Exhibit 99.9a
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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"), GreenPoint Mortgage Funding, Inc. as seller
(in such capacity, the "Seller") and servicer (in such capacity, the
"Servicer"), and acknowledged by LaSalle Bank National Association, as trustee
(the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-11 (the "Trust"),
and Xxxxx Fargo Bank, National Association, as master servicer (or any
successor master servicer, the "Master Servicer").
RECITALS
WHEREAS MSMCI, the Seller and the Servicer have entered into a certain
First Amended and Restated Mortgage Loan Sale And Servicing Agreement, dated
as of March 15, 2005 (the "March Purchase Agreement), a certain Fourth Amended
and Restated Mortgage Loan Sale And Servicing Agreement, dated as of December
1, 2005 (the "December Purchase Agreement") and a certain Fifth Amended and
Restated Mortgage Loan Sale And Servicing Agreement, dated as of June 1, 2006,
(the "Agreement," and together with the March Purchase Agreement, the December
Purchase Agreement and as further amended or modified to the date hereof, the
"Agreements"), pursuant to which MSMCI has acquired certain Mortgage Loans
pursuant to the terms of the Agreements and the Servicer has agreed to service
such Mortgage Loans; and, in connection with the transfer of the Mortgage
Loans hereunder, the Seller and Servicer agree that, from and after the date
hereof, each Mortgage Loan transferred hereunder will be subject to, and
serviced under, 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 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.
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(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 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,
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 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
Section 28 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, the Master Servicer, Xxxxx
Fargo Bank, National Association, as securities administrator, and the Trustee
(the "Pooling and Servicing Agreement") for the Xxxxxx Xxxxxxx Mortgage Loan
Trust 2006-11, Mortgage Pass-Through Certificates, Series 2006-11, (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
(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, Seller and Servicer 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 Pooling and Servicing Agreement), the representations and warranties set
forth in Sections 7.01 and 7.02 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 warranties herein, as of such Closing
Date.
(e) The Servicer hereby represents and warrants to the Assignee that,
to the extent the Mortgage Loans will be part of a REMIC, the Servicer shall
service the Mortgage Loans and any real property acquired upon default thereof
(including, without limitation, making or permitting any modification, waiver
or amendment of any term of any Mortgage Loan) in accordance with the
Servicing Agreement, but in no event in a manner that would (a) cause the
REMIC to fail or qualify as a REMIC or (b) result in the imposition of a tax
upon the REMIC (including, but not limited to, the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code, the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code and the tax
on "net income from foreclosure property" as set forth in Section 860G(c) of
the Code).
4. The Servicer hereby acknowledges that Xxxxx Fargo Bank, National
Association has been appointed as the Master Servicer of the Specified
Mortgage Loans pursuant to the Pooling and Servicing Agreement and, therefore,
has the right to enforce all obligations of the Servicer under the Agreement.
Such rights will include, without limitation, the right to terminate the
Servicer under the Agreement 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, the right to receive all monthly reports and
other data required to be delivered by the Servicer under the Agreement, 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 MSMCI. The Servicer shall make all distributions under the
Agreement to the Master Servicer by wire transfer of immediately available
funds to:
Xxxxx Fargo Bank, National Association
ABA Number: 000-000-000
Account Name: Corporate Trust Clearing
Account number: 0000000000
For further credit to: 50933300, MSM 2006-11
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The Servicer shall deliver all reports required to be delivered to the
Purchaser under the Agreement to the Master Servicer at the following address:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager, MSM 2006-11
Office Number: (000) 000-0000
Telecopier: (000) 000-0000
5. Amendments to the Agreement
The parties to this Assignment hereby agree to amend the Agreement as
follows:
(a) With respect to the Specified Mortgage Loans, "Permitted
Investments" shall have the meaning of such term as defined in the
Pooling and Servicing Agreement.
(b) Subsection 14.02(b) of the Agreement is hereby deleted in
its entirety.
6. Indemnification
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.
7. Continuing Effect
Except as contemplated hereby, the Agreement shall remain in full force
and effect in accordance with its terms.
8. 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.
9. Notices
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Any notices or other communications permitted or required under the
Agreement to be made to the Depositor, MSMCI, the Master Servicer, the Seller,
the Servicer and the Trustee 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 MSMCI:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-11
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,
as Trustee for the Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-11
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Trust Administration- MSM 2006-11
In the case of the Seller and the Servicer:
GreenPoint Mortgage Funding, Inc.,
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-11
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.
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10. 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.
11. 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.
12. 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/ 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
GREENPOINT MORTGAGE FUNDING, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: VP
Acknowledged and Agreed:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: VP
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
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EXHIBIT I
Mortgage Loan Schedule
[see Schedule A to Pooling and Servicing Agreement]
