ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT dated July 1, 2006 (this “Assignment”),
is
entered into among Xxxxxx Xxxxxxx Mortgage Capital Inc. (“MSMCI”
or
the
“Purchaser”),
GMAC
Mortgage Corporation, a Pennsylvania corporation (the “Servicer”),
and
LaSalle Bank National Association (“LaSalle”), as trustee (the “Trustee”)
and as
auction administrator (in such capacity, the “Auction
Administrator”)
of
Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-10SL (the “Trust”), and acknowledged by
Xxxxxx Xxxxxxx Capital I Inc. (the “Depositor”).
WHEREAS,
the Purchaser is the owner of various mortgage loans, including the mortgage
loans identified on Schedule I hereto (the “Specified
Mortgage Loans”);
WHEREAS,
the Servicer and the Purchaser are parties to the Servicing Agreement dated
as
of July 1, 2006, (the “Servicing
Agreement”),
pursuant to which the Servicer has agreed to service the Specified Mortgage
Loans on behalf of the Purchaser as “Owner”
(as
such term is defined in the Servicing Agreement);
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:
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1.
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Assignment
and Assumption
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The
Purchaser, as Owner, is the owner of all of the rights, title and interest
of
the rights (the “Servicing
Rights”),
in,
to and under the Servicing Agreement as it relates to the servicing of the
Specified Mortgage Loans. Pursuant to this Assignment, the Purchaser hereby
grants, transfers and assigns (i) its rights and obligations, as “Owner” under
the Servicing Agreement with respect to the Specified Mortgage Loans other
than
(x) the Servicing Rights which the Owner hereby explicitly retains and (y)
and
the portion of the Servicing Fee to which the Owner is entitled which the Owner
hereby explicitly retains and (ii) any rights granted to the Purchaser as Owner
under the Servicing Agreement to the Depositor (the “First
Assignment and Assumption”),
and
the Depositor hereby acknowledges the First Assignment and Assumption.
Immediately after giving effect to the First Assignment and Assumption, the
Depositor hereby grants, transfers and assigns its rights and obligations in
and
under the First Assignment and Assumption to the Trustee, on behalf of the
Trust, and the Trustee, on behalf of the Trust, hereby accepts such assignment
from the Depositor (the “Second
Assignment and Assumption”).
The
Servicer hereby acknowledges each of the First Assignment and Assumption and
the
Second Assignment and Assumption.
For
the
purposes of this Assignment and the Servicing Agreement, Schedule I hereto
shall
constitute a “Mortgage
Loan Schedule”
as
such
term is defined in the Servicing Agreement, and the assignment set forth herein
shall constitute a “Reconstitution” (as such term is defined in the Servicing
Agreement).
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2.
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Recognition
of Trustee
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The
parties confirm that this Assignment includes the rights relating to amendments
or waivers under the Servicing Agreement. Accordingly, the right of MSMCI,
as
Owner, to consent to any amendment of the Servicing Agreement and its rights
concerning waivers as set forth in Section 16 of the Servicing Agreement shall
be exercisable, to the extent any such amendment or waiver affects the Specified
Mortgage Loans or any of the rights under the Servicing Agreement with respect
thereto by the Trustee on behalf of the Trust as the successor to the Purchaser
in its capacity as Owner under the Servicing Agreement.
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 assignee, in the exercise
of
the powers and authority conferred and vested in it, as Trustee, pursuant to
the
trust agreement dated as of July 1, 2006 between the Depositor and LaSalle
Bank
National Association, as Trustee and Auction Administrator (the “Trust
Agreement”),
(ii)
each of the representations, undertakings and agreements herein made on the
part
of the Trust as 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 Trust as assignee shall be had solely to the assets of the
Trust.
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3.
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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 Servicer or MSMCI other than those contained in the Servicing 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, the Purchaser and the 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
Servicer hereby warrants and represents to, and covenants with, the Purchaser
and the Trustee that each of the representations and warranties set forth in
Section 6.01 of the Servicing Agreement are true and correct with respect to
the
Servicer as of the date hereof.
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4. In
accordance with the Second Assignment and Assumption, the Trustee, as Owner,
hereby directs the Servicer to make all distributions under the Servicing
Agreement to it by wire transfer of immediately available funds to:
LaSalle
Bank National Association
ABA
Number: 071 000 505
Account
Name: Corporate Trust Clearing
Account
number: 723939.1
For
further credit to: Corporate Trust Services, MSM 2006-10SL
In
accordance with the Second Assignment and Assumption, the Trustee, as Owner,
hereby directs the Servicer to deliver all reports required to be delivered
under the Servicing Agreement to it at the following address:
LaSalle
Bank National Association
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager, MSM 2006-10SL
Telecopier:
(000) 000-0000
5. Amendments
to Servicing Agreement.
(a) The
following definitions in Section 1 are revised as follows with respect to the
Specified Mortgage Loans:
a. “Eligible
Investments”
shall
have the meaning set forth in the Trust Agreement.
b. “Remittance
Date”
shall
mean no later than 1:00 p.m., New York time, on the 18th day of each month,
or
if such 18th day is not a Business Day, the first Business Day immediately
following such 18th day.
(b) Solely
with respect to the Specified Mortgage Loans, the words “; provided, however,”
to and including the end of the penultimate sentence of paragraph (a) of Section
3.01 are hereby deleted.
(c) The
following paragraph is hereby incorporated into the Servicing Agreement as
new
Section 3.19:
“3.19 Fair
Credit Reporting Act
The
Servicer,
in its
capacity as servicer for each Mortgage Loan, agrees to fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Servicer (three of the credit repositories),
on a
monthly basis.”
(d) Solely
with respect to the Specified Mortgage Loans, the following deletions are hereby
made to the fourth paragraph of Section 4.01:
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a. the
words “following the Business Day” are hereby deleted from the first sentence
and
b. the
word “second” is hereby deleted from the second sentence.
(e) Section
4.02 of the Servicing Agreement is hereby amended to add the following sentence:
“In
addition to the other monthly reports described herein, on each Remittance
Advice Date, the Servicer shall furnish to the Trustee information regarding
realized losses and gains in the format attached as Exhibit K hereto, together
with all supporting documentation with respect to the information contained
therein.”
(f) Solely
with respect to the Specified Mortgage Loans, the first sentence of Section
5.04
is amended by adding the words “(with a copy to the Trustee)” after the word
“Owner”.
(g) Solely
with respect to the Specified Mortgage Loans, Section 5.05 is hereby replaced
in
its entirety with the following:
“(a)
The
Servicer shall deliver to the Owner and the Trustee, on or prior to March 15th
of each year, an Officer’s Certificate, stating that (i) a review of the
activities of the Servicer during the preceding calendar year and of performance
under this Agreement has been made under such officer’s supervision, and (ii)
the Servicer has complied fully with the provisions of this Agreement, and
(iii)
to the best of such officer’s knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such year, or,
if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof and
the action being taken by the Servicer to cure such default. In addition,
Servicer shall provide such other information and access to due diligence with
respect to the Mortgage Loans and the servicing and administration thereof
within the control of Servicer which can be obtained without unreasonable
expense by the Servicer, which shall be required to enable the Trustee or
Depositor, as applicable, to comply with the reporting requirements of the
Securities and Exchange Act of 1934, as amended.
(b) For
so long as the Mortgage Loans are being serviced by the Servicer or its
successor in a securitization transaction, by the later of March 15 or 30 days
prior to the date on which the Form 10-K is required to be filed with the SEC
of
each year (or if not a Business Day, the immediately preceding Business Day),
an
officer of the Servicer shall execute and deliver an Officer’s Certificate to
the Depositor (with a copy to the Trustee) for the benefit of the Depositor
and
its officers, directors and affiliates, certifying as to the following
matters:
(i) Based
on my knowledge, the information in the Annual Statement of Compliance, the
Annual Independent Public Accountant’s Servicing Report and all servicing
reports, officer’s certificates and other information relating to the servicing
of the Mortgage Loans submitted to the Trustee taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading as of the date of the Annual Statement
of Compliance;
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(ii) Based
on my knowledge, the servicing information required to be provided to the
Trustee by the Servicer under this Servicing Agreement has been provided to
the
Trustee;
(iii) I
am responsible for reviewing the activities performed by the Servicer under
the
Servicing Agreement and based upon the review required by this Servicing
Agreement, and except as disclosed in the Annual Statement of Compliance and
the
Annual Independent Public Accountant’s Servicing Report submitted to the
Trustee, the Servicer has, as of the date of this certification fulfilled its
obligations under this Servicing Agreement; and
(iv) I
have disclosed to the Trustee all significant deficiencies relating to the
Servicer’s compliance with the minimum servicing standards in accordance with a
review conducted in compliance with the Uniform Single Attestation Program
for
Mortgage Bankers or similar standard as set forth in the Servicing
Agreement.
(c) The
Servicer shall indemnify and hold harmless the Depositor, the Trustee and its
officers, directors, agents and affiliates 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 Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 5.05 or the negligence, bad faith or willful
misconduct of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
Depositor, then the Servicer agrees that it shall contribute to the amount
paid
or payable by the Depositor as a result of the losses, third-party claims,
damages or liabilities of the Depositor in such proportion as is appropriate
to
reflect the relative fault of the Depsitor on the one hand and the Servicer
on
the other in connection with a breach of the Servicer’s obligations under this
Section 5.05 or the Servicer’s negligence, bad faith or willful misconduct in
connection therewith.”
(h)
Solely with
respect to the Specified Mortgage Loans, Section 7.02 is hereby replaced in
its
entirety with the following:
“Merger
or Consolidation of the Servicer.
The
Servicer will keep in full effect its existence, rights and franchises as a
corporation (or other entity resulting from merger, conversion or consolidation,
to the extent permitted in this Section 7.02), and will obtain and preserve
its
qualification to do business as a foreign corporation or such other entity
in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement or any of the Mortgage
Loans and to perform its duties under this Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any corporation
or other entity (including, without limitation, a limited liability company)
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to substantially all of the business
of the Servicer (whether or not related to mortgage loan servicing), shall
be
the successor of the Servicer hereunder, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that the successor
or
surviving Person shall be an institution (a) having a GAAP net worth of not
less
than $10,000,000, and (b) that is one of the following: (i) an institution
the
deposits of which are insured by the FDIC or (ii) an institution which is a
HUD-approved mortgagee whose primary business is in origination and servicing
of
first and second mortgage loans or (iii) an institution which is a Xxxxxx
Xxx/Xxxxxxx Mac approved servicer in good standing.”
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(i)
Solely with
respect to the Specified Mortgage Loans, the rights of the Servicer pursuant
to
clause (iv) of Section 9.01(a) are hereby deleted.
(j) Solely
with respect to the Specified Mortgage Loans, the rights of the Servicer
pursuant to Section 9.02 are hereby deleted.
(k) Section
20(a) of the Servicing Agreement is hereby amended to add the Trustee (in its
individual capacity and in its capacity as trustee) as an “Indemnified Party” in
accordance with such Section.
(l) Solely
with respect to the Specified Mortgage Loans, the following is added to the
end
of the first sentence of Section 22(a):
“or
as
necessary to provide the reports required by Section 4.05 of the Trust
Agreement.”
(m) Schedule
II hereto is hereby incorporated into the Servicing Agreement as Exhibit K
thereto.
6. Notices
The
Depositor’s address for purposes for all notices and correspondence related to
the Mortgage Loans, this Assignment and the Servicing Agreement is
:
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-10SL
The
Trustee’s address for purposes for all notices and correspondence related to the
Mortgage Loans, this Assignment and the Servicing Agreement is :
LaSalle
Bank National Association
000
Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Trust Administration - MSM2006-10SL
The
Purchaser’s address for purposes for all notices and correspondence related to
the Mortgage Loans, this Assignment and the Servicing Agreement is
:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-10SL
6
With
a
copy to:
Xxxxxx
Xxxxxxx & Co. Incorporated
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
General Counsel’s Office
The
Servicer’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Assignment is :
GMAC
Mortgage Corporation
000
Xxxxxx Xxxx
Xxxxxxx,
Xxxxxxxxxxxx 00000
Attention:
Executive Vice President of National Loan Administration
7. Certain
Matters Regarding the Trustee
Each
party hereto hereby agrees as follows:
Notwithstanding
any term hereof to the contrary, the execution and delivery of this Assignment
by the Trustee is solely in its capacity as trustee for Xxxxxx Xxxxxxx Mortgage
Loan Trust 2006-10SL and not individually, and any recourse against the Trustee
in respect of any obligations it may have under or pursuant to the terms of
this
Assignment (if any) shall be limited solely to the assets it may hold as trustee
of Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-10SL.
8. Continuing
Effect
Except
as
contemplated by this Assignment, the Servicing Agreement shall remain in full
force and effect in accordance with its terms.
9. Governing
Law
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
10. 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.
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11. Definitions
Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the Servicing Agreement.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the
parties have caused this Assignment, Assumption and Recognition Agreement to
be
executed by their duly authorized officers as of the date first above
written.
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Purchaser
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Trust
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XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
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XXXXXX
XXXXXXX MORTGAGE LOAN TRUST 2006-10SL
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BY:
LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE
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/s/
Xxx Xxx
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/s/
Xxxxx X. Xxxx
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By: Xxx
Xxx
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By:
Xxxxx X. Xxxx
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Its: Managing
Director
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Its: Assistant
Vice President
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Taxpayer
Identification Number:
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Servicer
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GMAC
Mortgage Corporation
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| /s/ Xxxxxx X. Xxxxxxx | ||
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By:
Xxxxxx X. Xxxxxxx
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Its: Vice
President
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Taxpayer
Identification Number:
00-0000000
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Acknowledged
and Agreed:
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Xxxxxx
Xxxxxxx Capital I Inc.
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| /s/ Xxx Xxx | ||
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By:
Xxx Xxx
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Its: Managing
Director
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Taxpayer
Identification Number:
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9
Schedule
I
Specified
Mortgage Loan Schedule
[see
Schedule A to the Trust Agreement
on
file
with the Servicer and the Depositor]
10
SCHEDULE
II
Exhibit
K - Form of Monthly Remittance Report with Instructions
