Contract
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated July 1, 2006 (“Agreement”),
among
Xxxxxx Xxxxxxx Mortgage Capital Inc. (“Assignor”),
Xxxxxx Xxxxxxx Capital I Inc. (“Assignee”)
and
Decision One Mortgage Company, LLC (the “Company”),
and
acknowledged by LaSalle Bank National Association, as trustee (the “Trustee”)
of
Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-10SL (the “Trust”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor, as purchaser, in, to
and
under (a) those certain Mortgage Loans listed on the schedule (the
“Mortgage
Loan Schedule”)
attached hereto as Exhibit A
(the
“Mortgage
Loans”)
and
(b) except as described below, that certain Fourth Amended and Restated
Mortgage Loan Purchase and Warranties Agreement (the “Purchase
Agreement”),
dated
as of May 1, 2006, between the Assignor, as purchaser (the “Purchaser”),
and
the Company, as seller, solely insofar as the Purchase Agreement relates to
the
Mortgage Loans.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
(i) any and all right, title and interest in, to and under and any
obligations of the Assignor with respect to any mortgage loans subject to the
Purchase Agreement which are not the Mortgage Loans set forth on the Mortgage
Loan Schedule and are not the subject of this Agreement or (ii) the rights
of the Purchaser under Section 9.04
of the
Purchase Agreement.
Recognition
of the Company
2. From
and after the date hereof (the “Securitization
Closing Date”),
the
Company shall and does hereby recognize that the Assignee will transfer the
Mortgage Loans and assign its rights under the Purchase Agreement (solely to
the
extent set forth herein) and this Agreement to the Trust created pursuant to
a
Trust Agreement, dated as of July 1, 2006 (the “Trust
Agreement”),
among
the Assignee, the Assignor and the Trustee (including its successors in interest
and any successor trustees under the Trust Agreement). The Company hereby
acknowledges and agrees that from and after the date hereof (i) the Trust
will be the owner of the Mortgage Loans, (ii) the Company shall look solely
to the Trust for performance of any obligations of the Assignor insofar as
they
relate to the Mortgage Loans, (iii) the Trust (including the Trustee and
the Servicer acting on the Trust’s behalf) shall have all the rights and
remedies available to the Assignor, insofar as they relate to the Mortgage
Loans, under the Purchase Agreement, including, without limitation, the
enforcement of the document delivery requirements set forth in Section 6
of the
Purchase Agreement, and shall be entitled to enforce all of the obligations
of
the Company thereunder insofar as they relate to the Mortgage Loans, and
(iv) all references to the Purchaser, the Custodian or the Bailee under the
Purchase Agreement insofar as they relate to the Mortgage Loans, shall be deemed
to refer to the Trust (including the Trustee and the Servicer acting on the
Trust’s behalf). Neither the Company nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions of
the
Purchase Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company’s performance under
the Purchase Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
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(a)
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The
Company is duly organized, validly existing and in good standing
under the
laws of the jurisdiction of its
organization;
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(b)
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The
Company has full power and authority to execute, deliver and perform
its
obligations under this Agreement and has full power and authority
to
perform its obligations under the Purchase Agreement. The execution
by the
Company of this Agreement is in the ordinary course of the Company’s
business and will not conflict with, or result in a breach of, any
of the
terms, conditions or provisions of the Company’s charter or bylaws or any
legal restriction, or any material agreement or instrument to which
the
Company is now a party or by which it is bound, or result in the
violation
of any law, rule, regulation, order, judgment or decree to which
the
Company or its property is subject, which, either in any one instance
or
in the aggregate, would result in any material adverse change in
the
ability of the Company to perform its obligations under this Agreement
or
the Purchase Agreement. The execution, delivery and performance by
the
Company of this Agreement have been duly authorized by all necessary
corporate action on part of the Company. This Agreement has been
duly
executed and delivered by the Company, and, upon the due authorization,
execution and delivery by the Assignor and the Assignee, will constitute
the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be limited by bankruptcy, reorganization, insolvency, moratorium
or
other similar laws now or hereafter in effect relating to creditors’
rights generally, and by general principles of equity regardless
of
whether enforceability is considered in a proceeding in equity or
at law;
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(c)
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No
consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained
or
made by the Company in connection with the execution, delivery or
performance by the Company of this Agreement;
and
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2
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(d)
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There
is no action, suit, proceeding or investigation pending or threatened
against the Company, before any court, administrative agency or other
tribunal, which would draw into question the validity of this Agreement
or
the Purchase Agreement, or which, either in any one instance or in
the
aggregate, would result in any material adverse change in the ability
of
the Company to perform its obligations under this Agreement or the
Purchase Agreement, and the Company is
solvent.
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4. Pursuant
to Section 13
of the
Purchase Agreement, the Company hereby represents and warrants, for the benefit
of the Assignor, the Assignee and the Trust, that the representations and
warranties set forth in Section 9.02
of the
Purchase Agreement are true and correct as of the date hereof as if such
representations and warranties were made on the date hereof unless otherwise
specifically stated in such representations and warranties.
Remedies
for Breach of Representations and Warranties
5. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections 3
and 4 hereof shall be as set forth in Subsection 9.03
of the
Purchase Agreement as if they were set forth herein (including without
limitation the repurchase and indemnity obligations set forth
therein).
Miscellaneous
6. This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
7. No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by the party against whom such waiver
or modification is sought to be enforced, with the prior written consent of
the
Trustee.
8. This
Agreement shall inure to the benefit of (i) the successors and assigns of
the parties hereto and (ii) the Trust (including the Trustee and the
Servicer acting on the Trust’s behalf). Any entity into which Assignor, Assignee
or Company may be merged or consolidated shall, without the requirement for
any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
9. Each
of this Agreement and the Purchase Agreement shall survive the conveyance of
the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
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10. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
11. In
the event that any provision of this Agreement conflicts with any provision
of
the Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
12. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
[SIGNATURE
PAGE FOLLOWS]
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| DECISION ONE MORTGAGE COMPANY, LLC | ||
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| By: | /s/ Xxxxx X. Xxxxxxxx | |
|
Name: Xxxxx X. Xxxxxxxx |
||
| Its:Vice President Secondary | ||
| XXXXXX XXXXXXX MORTGAGE CAPITAL INC. | ||
| |
|
|
| By: | /s/ Xxx Xxx | |
|
Name: Xxx Xxx |
||
| Its:Managing Director | ||
| XXXXXX XXXXXXX CAPITAL I INC. | ||
| |
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| By: | /s/ Xxx Xxx | |
|
Name: Xxx Xxx |
||
| Its: Managing Director | ||
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Acknowledged
and Agreed:
LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee of Xxxxxx Xxxxxxx
Mortgage
Loan Trust 2006-10SL
By:
/s/ Xxxxx X. Xxxx
Name:
Xxxxx X. Xxxx
Title:
Assistant Vice President
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EXHIBIT
A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage
Loan Schedule
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