Exhibit 99.7(a)
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of January 1, 2006, is entered into among Xxxxxx
Xxxxxxx Capital I Inc., a Delaware corporation (the "Depositor"), Xxxxxx
Xxxxxxx Mortgage Capital Inc. ("MSMCI"), First National Bank of Nevada, as
seller (the "Seller"), and acknowledged by LaSalle Bank, National Association,
as trustee (the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-1AR (the
"Trust").
RECITALS
WHEREAS MSMCI and the Seller have entered into a certain Master Mortgage
Loan Purchase and Warranties Agreement, dated as of January 20, 2005 (the
"January Purchase Agreement") and a certain First Amended and Restated
Mortgage Loan Purchase and Warranties Agreement, dated as of October 1, 2005
(the "October Purchase Agreement" and together with the January Agreement, the
"Purchase Agreements"), 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 October 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 and obligations 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 22 of the October 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
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, 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.
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.
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(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 (a) as of the Closing Date (as defined in
the Pooling and Servicing Agreement), the representations and warranties set
forth in Section 9.01 of 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, and (b) as of the closing date (as defined in the Purchase
Agreements), the representations and warranties set forth in Section 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.
4. Continuing Effect
Except as contemplated hereby, the Purchase Agreements 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
Purchase Agreements to be made to MSMCI, the Depositor, the Trustee and the
Seller shall be made in accordance with the terms of the Purchase Agreements
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 2006-1AR
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.
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0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-1AR
In the case of the Trustee:
LaSalle Bank, National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Trust Administration - MS0601
In the case of the Seller:
First National Bank of Nevada
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Secondary Marketing
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.
7. 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.
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 October 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: Executive Director
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
FIRST NATIONAL BANK OF NEVADA
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: SVP, Secondary Marketing
Acknowledged and Agreed:
LASALLE BANK, NATIONAL
ASSOCIATION, as Trustee of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2006-1AR
By: /s/ Xxxxxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Assistant Vice President
EXHIBIT I
Mortgage Loan Schedule
[see Schedule A to Pooling and Servicing Agreement]
