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”),
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 2006-10SL (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”),
a
certain First Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of October 1, 2005 (the “October
Purchase Agreement”)
and a
certain Second Amended and Restated Master Mortgage Loan Purchase and Warranties
Agreement, dated as of April 1, 2006 (the “April
Purchase Agreement,”
and
together with the January and October Agreements, 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 April 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 April 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 Trust Agreement dated as of the date hereof (the “Trust
Agreement”)
among
the Depositor 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.
(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 Trust
Agreement), the representations and warranties set forth in Section 9.01 of
the
Purchase Agreements, 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, 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 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 2006-10SL
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 2006-10SL
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 2006-10SL
In
the
case of the Seller:
First
National Bank of Nevada
0000
Xxxx
Xxxxxxx Xxxxx
Xxxxx,
XX
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 April Purchase Agreement.
[SIGNATURE
PAGE FOLLOWS]
| FIRST NATIONAL BANK OF NEVADA | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxx | |
|
Name: Xxxxx X. Xxxxxx |
||
| Title: SVP - Secondary Marketing | ||
Accepted and Agreed:
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
By:
/s/ Xxx Xxx
Name:
Xxx
Xxx
Title:
Managing Director
Xxxxxx
Xxxxxxx Capital I Inc.
By: /s/ Xxx Xxx
Name:
Xxx
Xxx
Title:
Managing Director
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
EXHIBIT
I
Mortgage
Loan Schedule
[see
Schedule A to Trust Agreement]
