ADMINISTRATION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST SERIES 2006-SL2,
as Issuing Entity
LASALLE BANK NATIONAL ASSOCIATION,
as Administrator
WILMINGTON TRUST COMPANY,
as Owner Trustee,
and
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
Dated as of August 8, 2006
This Administration Agreement (the "Agreement") is entered into as of
August 8, 2006, among XXXXXXX XXXXX MORTGAGE INVESTORS TRUST SERIES 2006-SL2, a
Delaware statutory trust (the "Issuing Entity"), LASALLE BANK NATIONAL
ASSOCIATION, not in its individual capacity but solely as Administrator (the
"Administrator"), WILMINGTON TRUST COMPANY, not in its individual capacity but
solely as Owner Trustee (the "Owner Trustee"), and XXXXXXX XXXXX MORTGAGE
INVESTORS, INC., as Depositor (the "Depositor").
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in Appendix A to the Indenture (as defined herein).
WITNESSETH:
WHEREAS, the Issuing Entity is a statutory trust under the Delaware
Statutory Trust Act (12 Del.C. Section 3801 et seq.) created by a Trust
Agreement relating to the Issuing Entity, dated as of August 8, 2006 (the "Trust
Agreement"), among the Depositor, the Owner Trustee and the Securities
Administrator;
WHEREAS, the Issuing Entity will issue under an indenture its XXXXXXX XXXXX
MORTGAGE INVESTORS TRUST, SERIES 2006-SL2 Mortgage Loan Asset-Backed Notes,
Series 2006-SL2 (the "Notes") and, under the Trust Agreement, its XXXXXXX XXXXX
MORTGAGE INVESTORS TRUST, SERIES 2006-SL2 Mortgage Loan Asset-Backed
Certificates, Series 2006-SL2 (the "Certificates" and collectively with the
Notes, the "Securities");
WHEREAS, the Notes will be secured by certain collateral, as more
particularly set forth in the Indenture, dated as of August 8, 2006 (the
"Indenture"), among the Issuing Entity, Citibank, N.A., as indenture trustee (in
such capacity, the "Indenture Trustee"), and LaSalle Bank National Association,
as securities administrator (in such capacity, the "Securities Administrator");
WHEREAS, the Certificates will be issued pursuant to the Trust Agreement
and will represent the undivided beneficial ownership interest in the Issuing
Entity;
WHEREAS, the Issuing Entity has entered into certain agreements in
connection with the issuance of the Securities, including (i) a Servicing
Agreement, dated as of August 8, 2006 (the "Wilshire Servicing Agreement"),
among the Issuing Entity, the Depositor, Wilshire Credit Corporation, as
servicer (the "Servicer"), LaSalle Bank National Association, as master servicer
(in such capacity, the "Master Servicer") and Securities Administrator, and the
Indenture Trustee, (ii) an Assignment, Assumption and Recognition Agreement,
dated as of August 8, 2006, among the Sponsor, Xxxxxxx Xxxxx Credit Corporation
and Countrywide Home Loans Servicing LP, and acknowledged and agreed to by the
Master Servicer and the Indenture Trustee (the "Countrywide AAR"), (iii) the
Letter of Representations, dated August 8, 2006 (the "Depository Agreement"),
among the Issuing Entity, the Securities Administrator and The Depository Trust
Company relating to the Class A, Class M and Class B Notes and (iv) the
Indenture. The Wilshire Servicing Agreement, the Countrywide AAR, the Depository
Agreement, the Indenture and the Trust Agreement are collectively referred to
herein as the "Related Agreements");
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WHEREAS, pursuant to the Related Agreements, the Issuing Entity is required
to perform certain duties in connection with (a) the Notes and the collateral
therefor pledged pursuant to the Indenture (the "Collateral") and (b) the
beneficial ownership interests in the Issuing Entity represented by the
Certificates (the registered holder of such interests being referred to herein
as the "Certificateholder");
WHEREAS, the Issuing Entity desires to have the Administrator and the
Depositor, respectively, perform certain of the duties of the Issuing Entity
referred to in the preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuing Entity may from time to time request; and
WHEREAS, the Administrator and the Depositor have the capacity to provide
the respective services required hereby and are willing to perform such services
for the Issuing Entity on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Section 1. Duties of the Administrator.
(a) The Administrator agrees to perform all of the duties of the
Issuing Entity and the Owner Trustee under the Depository Agreement. In addition
to its duties performed under the Depository Agreement, the Administrator shall
take all appropriate action that is the duty of the Issuing Entity and the Owner
Trustee to take with respect to the following matters under the Trust Agreement,
the Wilshire Servicing Agreement and the Indenture (references are to sections
of the Indenture):
(i) causing the preparation of the Notes for execution by the Owner
Trustee or the Administrator upon the registration of any transfer or
exchange of the Notes (Sections 4.02 and 4.03);
(ii) causing the preparation of Definitive Notes in accordance with
the instructions of any Clearing Agency (including the preparation of any
temporary notes), (Sections 4.08 and 4.13);
(iii) the notification to the Owner Trustee of the Issuing Entity's
non-compliance with its negative covenants or restricted payment covenants
upon actual knowledge by a Responsible Officer of the Administrator of such
non-compliance (Sections 3.10 and Section 3.23);
(iv) the execution of all supplements, amendments, instruments of
further assurance and other instruments prepared by the Depositor and
delivered to the Administrator for execution to protect the Collateral
(Section 3.07).
(b) [Reserved].
(c) [Reserved].
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(d) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuing Entity and shall be, in the Administrator's
opinion, no less favorable to the Issuing Entity than would be available from
unaffiliated parties.
In carrying out the foregoing duties or any of its other obligations under
this Agreement, the Administrator shall have the same rights, indemnifications
and immunities as the Indenture Trustee under the Indenture, including, without
limitation, the right to compensation, reimbursement and indemnification.
Section 2. Duties of the Depositor With Respect to the Indenture.
(a) The Depositor shall take all appropriate action that is the duty
of the Issuing Entity or the Owner Trustee to take with respect to the following
matters under the Indenture (references are to sections of the Indenture):
(i) causing the preparation of the Notes (for execution by the Owner
Trustee or the Administrator) upon their initial issuance and causing the
preparation of an Issuing Entity Request (for execution by the Owner
Trustee or the Securities Administrator) for delivery to the Securities
Administrator regarding the authentication of the Notes (Section 2.02)
(ii) causing the preparation of an Issuing Entity Request and
Officer's Certificate (and executing the same on behalf of the Issuing
Entity) and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Collateral, as defined
in the Indenture (Section 11.01)
(iii) causing the preparation of Issuing Entity Requests (and
executing the same on behalf of the Issuing Entity) and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures;
(iv) causing the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
collateral (Sections 8.05 and 11.01);
(v) the delivery of notice to the Indenture Trustee and the Rating
Agency of each Event of Default under the Indenture (Sections 3.24 and
5.01);
(vi) the annual delivery of Opinions of Counsel, in accordance with
Section 3.05 of the Indenture, as to the Trust Estate, and the annual
delivery and execution of the Officers' Certificate (Section 3.09) and the
delivery of the Annual Statement of Compliance (Section 3.11);
(vii) causing the preparation and execution of an Officer's
Certificate and the obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto with
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respect to any request by the Issuing Entity to the Indenture Trustee or
the Administrator to take any action under the Indenture (Sections 4.10,
8.03, 9.04 and 11.01);
(viii) the appointment of a successor Indenture Trustee (Section
6.09); and
(ix) obtaining and preserving the Issuing Entity's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Collateral and each other instrument and agreement included in
the Trust Estate (Section 3.05).
(b) In addition to the duties of the Depositor set forth above, the
Depositor shall prepare for execution by the Issuing Entity or the Owner Trustee
or shall cause the preparation by other appropriate persons of all such
documents, reports, filings, instruments, certificates and opinions as it shall
be the duty of the Issuing Entity or the Owner Trustee to prepare, file or
deliver pursuant to the Related Agreements, and at the request of the Owner
Trustee shall take all appropriate action that is the duty of the Issuing Entity
or Owner Trustee to take pursuant to the Related Agreements. Subject to Section
5 of this Agreement, and in accordance with the directions of the Owner Trustee,
the Depositor shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Mortgage
Loans) as are not covered by any of the foregoing provisions and as are
expressly requested by the Owner Trustee and are reasonably within the
capability of the Depositor.
Section 3. Records. The Administrator shall maintain appropriate books of
account, if any, and records relating to services performed hereunder, which
books of account and records shall be accessible, with two (2) Business Days
advance notice, for inspection by the Issuing Entity and the Depositor at any
time during normal business hours.
Section 4. Compensation. The Administrator will perform the duties and
provide the services called for under Section 1 above for such compensation as
shall be agreed upon between the Administrator and the Depositor.
Section 5. Additional Information to be Furnished to the Issuing Entity.
The Depositor shall furnish to the Issuing Entity from time to time such
additional information regarding the Collateral as the Issuing Entity shall
reasonably request.
Section 6. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuing Entity or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuing Entity, the
Administrator shall have no authority to act for or represent the Issuing Entity
or the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Issuing Entity or the Owner Trustee.
Section 7. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator or the Depositor, respectively, and either of the
Issuing Entity or the Owner Trustee, as members of any partnership, joint
venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of
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them or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
Section 8. Other Activities of the Administrator and the Depositor. Nothing
herein shall prevent the Administrator, the Depositor or their respective
Affiliates from engaging in other businesses or, in its sole discretion, from
acting in a similar capacity as an Administrator for any other person or entity
even though such person or entity may engage in business activities similar to
those of the Issuing Entity or the Owner Trustee.
Section 9. Term of Agreement; Resignation and Removal of the Administrator.
(a) This Agreement shall continue in force until the termination of
the Trust Agreement and the Indenture in accordance with its terms, upon which
event this Agreement shall automatically terminate.
(b) Subject to Section 9(e) hereof, the Administrator may resign its
duties hereunder by providing the Issuing Entity with at least 60 days' prior
written notice.
(c) Subject to Section 9(e) hereof, the Issuing Entity may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Section 9(e) hereof, the Issuing Entity may remove the
Administrator immediately upon written notice of termination from the Issuing
Entity to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice of such default, shall not
cure such default within thirty (30) days (or, if such default cannot be
cured in such time, shall not give within thirty (30) days such assurance
of cure as shall be reasonably satisfactory to the Issuing Entity); or
(ii) a court having jurisdiction in the premises shall (x) enter a
decree or order for relief, which decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or (y) appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for the Administrator
or any substantial part of its property, or (z) order the winding-up or
liquidation of the Administrator's affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, shall
consent to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
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The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) of this Section 9(d) shall occur, it shall give written notice
thereof to the Issuing Entity, the Depositor and the Indenture Trustee within
seven Business days after the occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuing Entity (or the Depositor on its behalf) and (ii) such
successor Administrator shall have agreed in writing to be bound by the terms of
this Agreement in the same manner as the Administrator is bound hereunder.
If a successor Administrator does not take office within 60 days after the
retiring Administrator resigns or is removed, the resigning or removed
Administrator or the Issuing Entity may petition any court of competent
jurisdiction for the appointment of a successor Administrator.
(f) The appointment of any successor Administrator shall be effective
only if such successor Administrator will not cause a downgrading of any class
of Notes by the Rating Agencies.
(g) Subject to Sections 9(e) and 9(f), the Administrator acknowledges
that upon the appointment of a successor Securities Administrator pursuant to
the Indenture, the Administrator shall immediately resign and such successor
Securities Administrator shall automatically become the Administrator under this
Agreement. Any such successor Securities Administrator shall be required to
agree to assume the duties of the Administrator under the terms and conditions
of this Agreement in its acceptance of appointment as successor Administrator.
Section 10. Action upon Termination, Resignation or Removal of the
Administrator. Promptly upon the effective date of termination of this Agreement
pursuant to Section 9(a) hereof or the resignation or removal of the
Administrator pursuant to Section 9(b) or (c) hereof, respectively, the
Administrator shall be entitled to be paid all fees and reimbursable expenses
accruing to it to the date of such termination, resignation or removal. The
Administrator shall forthwith upon such termination pursuant to Section 9(a)
deliver to the successor Administrator all property and documents of or relating
to the Collateral then in the custody of the Administrator, or if this Agreement
has been terminated, to the Depositor. In the event of the resignation or
removal of the Administrator pursuant to Section 9(b), (c) or (d), respectively,
the Administrator shall cooperate with the Issuing Entity and take all
reasonable steps requested to assist the Issuing Entity in making an orderly
transfer of the duties of the Administrator.
Section 11. Notices. Any notice, report or other communication given
hereunder shall be in writing, delivered by mail, overnight courier or facsimile
and addressed as follows:
(a) if to the Issuing Entity, to:
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST, SERIES 2006-SL2
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Fax: (000) 000-0000
(b) if to the Administrator, to:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Client Manager - XXXXXXX XXXXX MORTGAGE INVESTORS
TRUST SERIES 2006-SL2
Fax: (000) 000-0000
(c) if to the Owner Trustee, to:
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
(d) if to the Depositor, to:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, hand delivered or
faxed to the address of such party as provided above.
Section 12. Amendments.
(a) This Agreement may be amended from time to time by the parties
hereto as specified in this Section, provided that any amendment be accompanied
by the written consent of the Indenture Trustee and an Opinion of Counsel shall
be furnished to the Indenture Trustee (which Opinion of Counsel shall not be at
the expense of the Indenture Trustee) stating that such amendment complies with
the provisions of this Section.
(b) If the purpose of the amendment is to prevent the imposition of
any federal or state taxes at any time that any Notes are outstanding (i.e.,
technical in nature), it shall not be necessary to obtain the consent of any
Noteholder, but the Indenture Trustee shall be furnished with an Opinion of
Counsel (which opinion shall not be at the expense of the Indenture Trustee)
that such amendment is necessary or helpful to prevent the imposition of such
taxes and is not materially adverse to any Noteholder.
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(c) If the purpose of the amendment is to add or eliminate or change
any provision of this Agreement, it shall not be necessary to obtain the consent
of any Noteholder, but the Indenture Trustee shall be furnished with either (i)
a letter from each of the Rating Agencies confirming that such amendment will
not cause the Rating Agency to qualify, downgrade or withdraw their then-current
rating of the Notes without giving effect to the Policy or (ii) an Opinion of
Counsel, from the party requesting such amendment, stating that such amendment
will not materially and adversely affect any of the Noteholders.
(d) Promptly after the execution of any such amendment, the
Administrator shall furnish a copy of such amendment to each Holder, the
Depositor and to the Rating Agencies.
Section 13. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Owner Trustee and the Depositor. An assignment with such consent and
satisfaction, if accepted by the assignee, shall bind the assignee hereunder in
the same manner as the Administrator is bound hereunder. Notwithstanding the
foregoing, this Agreement may be assigned by the Administrator without the
consent of the Owner Trustee or the Depositor to a corporation or other
organization that is a successor (by merger, consolidation or purchase of
assets) to the Administrator, provided that such successor organization executes
and delivers to the Issuing Entity, the Owner Trustee and the Depositor an
agreement in which such corporation or other organization agrees to be bound
hereunder by the terms of said assignment in the same manner as the
Administrator is bound hereunder. Subject to the foregoing, this Agreement shall
bind any successors or assigns of the parties hereto.
Section 14. 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 LAWS PROVISIONS (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAWS, WHICH SHALL APPLY HERETO), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 15. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
Section 16. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute one and the same
agreement.
Section 17. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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Section 18. Not Applicable to LaSalle Bank National Association in Other
Capacities. Nothing in this Agreement shall affect any obligation LaSalle Bank
National Association may have in any other capacity.
Section 19. Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this Agreement has been countersigned
by Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Issuing Entity and in no event shall Wilmington
Trust Company in its individual capacity or any beneficial owner of the Issuing
Entity have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuing Entity hereunder, as to all of
which recourse shall be had solely to the assets of the Issuing Entity. For all
purposes of this Agreement, in the performance of any duties or obligations of
the Issuing Entity hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI, VII and
VIII of the Trust Agreement.
Section 20. Limitation of Liability of the Administrator; Indemnification.
Notwithstanding anything herein to the contrary, this Agreement has been signed
by LaSalle Bank National Association not in its individual capacity but solely
in its capacity as Administrator and in no event shall the Administrator in its
individual capacity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuing Entity hereunder, as
to all of which recourse shall be had solely to the assets of the Issuing
Entity. The Administrator shall not have any duties or obligations other than
those expressly set forth in this Agreement, and no implied duties on its part
shall be read into this Agreement.
Section 21. Benefit of Agreement. It is expressly agreed that in performing
its duties under this Agreement, the Administrator will act for the benefit of
holders of the Securities as well as for the benefit of the Issuing Entity, and
that such obligations on the part of the Administrator shall be enforceable at
the instance of the Indenture Trustee and the Issuing Entity.
Section 22. Bankruptcy Matters. No party to this Agreement shall take any
action to cause the Depositor or the Issuing Entity to dissolve in whole or in
part or file a voluntary petition or otherwise initiate proceedings to have the
Depositor or the Issuing Entity adjudicated bankrupt or insolvent, or consent to
the institution of bankruptcy or insolvency proceedings against the Depositor or
the Issuing Entity, or file a petition seeking or consenting to reorganization
or relief of the Depositor or the Issuing Entity as debtor under any applicable
federal or state law relating to bankruptcy, insolvency, or other relief for
debtors with respect to the Depositor or the Issuing Entity; or seek or consent
to the appointment of any trustee, receiver, conservator, assignee,
sequestrator, custodian, liquidator (or other similar official) of the Depositor
or the Issuing Entity or of all or any substantial part of the properties and
assets of the Depositor or the Issuing Entity, or cause the Issuing Entity to
make any general assignment for the benefit of creditors of the Depositor or the
Issuing Entity, or take any action in furtherance of any of the above actions.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS TRUST,
SERIES 2006-SL2,
By: Wilmington Trust Company, not in its
individual capacity but solely as
Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
as Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated August 8,
2006 ("Agreement"), among Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware
corporation, Xxxxxxx Xxxxx Credit Corporation, a Delaware corporation
(collectively with Xxxxxxx Xxxxx Mortgage Lending, Inc., the "Assignor"),
Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-SL2, a Delaware Trust (the
"Assignee"), and Countrywide Home Loans Servicing LP, a Texas limited
partnership (the "Company"or the "Servicer"), and acknowledged and agreed to by
Citibank, N.A., a national banking association, as indenture trustee (the
"Indenture Trustee"), and LaSalle Bank National Association, a national banking
association, as master servicer (the "Master Servicer").
Capitalized terms used herein and not defined herein shall have the
meanings set forth in the Servicing Agreement (defined below).
For and in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
1. Assignment, Assumption and Conveyance
The Assignor hereby conveys, sells, grants, transfers and assigns to
the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as owner, in, to and under that certain Flow Servicing Agreement,
dated as of August 8, 2006 (the "Servicing Agreement"), by and between the
Assignor (in such capacity, the "Owner") and the Company attached hereto as
Attachment 1.
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
Servicing Agreement that are not the Mortgage Loans set forth on the Mortgage
Loan Schedule and are not the subject of this Agreement, (ii) any rights and
obligations of the Assignor pursuant to the Servicing Agreement arising prior to
the date hereof, (iii) the rights and obligations of the Owner under Section
13.15 (relating the Owner's obligation to execute certain confidentiality
agreements); (iv) any rights of the Assignor under the Commitment Letter, dated
as of August 8, 2006 (the "Commitment Letter") between the Owner and the
Company, which rights shall survive the execution and delivery of this
Agreement, and (v) any rights in respect of the fourth paragraph of Section
2.25.
The Assignee hereby assumes all of the Assignor's obligations under
the Mortgage Loans and the Servicing Agreement solely insofar as such
obligations relate to the Mortgage Loans, other than (a) the obligations set
forth in clauses (ii), (iii) and (v) of the preceding paragraph, (b) the
obligations set forth in the fourth paragraph of section 2.25, (c) the
obligations set forth in the second and third sentences of section 6.02(c); (d)
the obligations set forth in sections 8.01(b), clause (a) (with respect to any
liability arising prior to the date hereof), 8.01(b), clause (b) and 8.01(b),
clause (c), (e) the obligations of the Owner (in its capacity as Owner or as
MLMI in its own capacity) with respect to Cost of Funds in connection with any
Servicing Advances and HELOC Draw Advances; (f) the obligations set forth in
Section 2.25 to the extent not reimbursed by the Owner; (g) the obligations of
the Assignor under section 5.02(f)(iii); (h) the obligations of the Owner under
Section 11.03; and (i) the obligations of the Assignor under the Commitment
Letter (to the extent not addressed herein or in the Servicing Agreement).
The parties hereto agree that, notwithstanding anything to the
contrary contained in the Commitment Letter, with respect to the Mortgage Loans
being serviced under the Servicing Agreement: (a) the Servicing Fee remitted to
the Servicer for the Mortgage Loans shall be the fee set forth in the Indenture
notwithstanding any fees set forth in the Commitment Letter, and (b) any
Prepayment Penalties collected by the Servicer shall be remitted to the Master
Servicer.
2. Recognition of the Company
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 Servicing Agreement (solely to
the extent set forth herein) and this Agreement to Citibank, N.A., as indenture
trustee (including its successors in interest and any successor indenture
trustees under the Indenture, dated as of August 8, 2006, among Citibank, N.A.,
Xxxxxxx Xxxxx Mortgage Investors Trust, Series 2006-SL2 (the "Trust"), and
LaSalle Bank National Association, as securities administrator, as the
"Securities Administrator") which Trust was created pursuant to a Deposit Trust
Agreement, dated as of August 8, 2006 (the "Trust Agreement"), among the
Assignee, as depositor, and Wilmington Trust Company, as owner trustee. The
Company hereby acknowledges and agrees that from and after the date hereof (i)
the Trust will be the owner of the Mortgage Loans and the Servicer will be the
servicer of the Mortgage Loans on or after the applicable Transfer Date pursuant
to the terms set forth in the Trust Agreement, (ii) the Company shall look
solely to the Trust, as Owner (including the Indenture Trustee and the Master
Servicer, acting on the Trust's behalf) for performance of any obligations of
the Owner under the Flow Servicing Agreement (solely insofar as it relates to
the Mortgage Loans) (except for such obligations of the Assignor retained by the
Assignor hereunder or in its individual capacity as set forth in the Flow
Servicing Agreement), (iii) the Trust (including the Indenture Trustee and the
Master 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 Servicing Agreement, and shall be entitled to enforce all of
the obligations of the Company thereunder insofar as they relate to the Mortgage
Loans, including without limitation, the remedies for breaches of
representations and warranties set forth in Article X of the Servicing Agreement
or Master Servicer, as applicable (except for the rights and remedies retained
by the Assignor hereunder), (iv) all references to the Owner under the Servicing
Agreement insofar as they relate to the Mortgage Loans shall be deemed to refer
to the Trust (except to the extent of the rights and obligations retained by the
Assignor hereunder) (including the Indenture Trustee and the Master Servicer
acting
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on the Trust's behalf) and (v) the Mortgage Loans will be part of a REMIC, and
the Company 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) prior to the
applicable Transfer Date in accordance with the Servicing Agreement but in no
event in a manner that would (A) cause the REMIC to fail to 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). 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 Servicing Agreement which amendment, modification, waiver or
other alteration would in any way affect the Mortgage Loans or the Company's
performance under the Servicing Agreement with respect to the Mortgage Loans
without the prior written consent of the Indenture Trustee.
The Company further acknowledges that, from and after the date hereof,
it (and any of its successors under the Servicing Agreement) will be subject to
the supervision of the Master Servicer and the Master Servicer, acting on behalf
of the Trust as the owner of the Mortgage Loans, shall have the same rights as
are assigned by Assignor, in its capacity as the original "Owner" under the
Servicing Agreement, to the Trust hereunder. Such rights that the Master
Servicer may enforce will include, without limitation, the right to terminate
the Company under the Servicing Agreement upon the occurrence of an event of
default thereunder, the right to receive all remittances required to be made by
the Company under the Servicing Agreement, the right to receive all monthly
reports and other data required to be delivered by the Company under the
Servicing Agreement and the right to exercise certain rights of consent and
approval relating to actions taken by the Company. Notwithstanding anything
herein to the contrary, in no event shall the Master Servicer assume any of the
obligations of the Owner under the Servicing Agreement it being understood that
the Trust shall remain primarily liable for all obligations of "Owner" pursuant
to the Servicing Agreement and this Agreement as of the date hereof.
All reports and other data required to be delivered by the Company to
the "Owner" under the Servicing Agreement shall be delivered to the Master
Servicer, at LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000 Attention: Global Securities and Trust Services -
MLMI 2006-SL2. All remittances required to be made to the Trust, as the
successor in interest to the Assignor as Owner under the Servicing Agreement,
shall be made instead to the Master Servicer by wire transfer to the following
account:
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LaSalle Bank National Association
ABA# 000000000
Acct# 723985.1
Attn: Xxxxxx X. Xxxxxx
3. Representations and Warranties of the Company
The Company warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) 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 this Agreement and the Servicing
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. 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;
(c) 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 or the consummation by it
of the transaction contemplated hereby;
(d) The Company shall establish a Custodial Account and an Escrow
Account under the Servicing Agreement in favor of the Trust with respect to
the Mortgage Loans separate from the Custodial Account and Escrow Account
previously established under the Servicing Agreement in favor of the
Assignor;
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(e) 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 Servicing Agreement, or which, either in any one instance
or in the aggregate, is likely to result in any material adverse change in
the ability of the Company to perform its obligations under this Agreement
or the Servicing Agreement, and the Company is solvent;
(f) The Company has serviced the Mortgage Loans in accordance with the
Servicing Agreement and has provided accurate "paid through" data (assuming
the correctness of all "paid through" data provided by the Assignor to the
Company at the time the Company began servicing the Mortgage Loans) with
respect to the Mortgage Loans to the Assignor;
(g) Except as reflected in the "paid through" data delivered to the
Assignor (assuming the correctness of all "paid through" data provided by
the Assignor to the Company at the time the Company began servicing the
Mortgage Loans), there is no payment default existing under any Mortgage or
any Mortgage Note as of the Securitization Closing Date; and
(h) To the Company's knowledge, there is no non-payment default
existing under any Mortgage or Mortgage Note, or any event which, with the
passage of time or with notice and the termination of any grace or cure
period, would constitute a non-payment default, breach, violation or event
which would permit acceleration as of the Securitization Closing Date.
(i) The Servicing Agreement is in full force and effect as of the date
hereof and its provisions have not been waived, amended or modified in any
respect, nor has any notice of termination been given thereunder;
Pursuant to Section 13.13(b) of the Servicing 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 Article X of
the Servicing Agreement are true and correct as of the date hereof as if such
representations and warranties were made on the date hereof.
4. Representations and Warranties of the Assignor
The Assignor warrants and represents to the Assignee and the Trust as
of date hereof that:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loan and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loan is not assigned or pledged, and the Assignor has good,
indefeasible and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan to the Assignee free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority subject to no interest
or participation of, or agreement with,
-5-
any other party, to sell and assign each Mortgage Loan pursuant to this
Agreement and following the sale of each Mortgage Loan, the Assignee will
own such Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest.
The Assignor intends to relinquish all rights to possess, control and
monitor the Mortgage Loan; and
(b) The Assignor has not waived the performance by the Mortgagor of
any action, if the Mortgagor's failure to perform such action would cause
the Mortgage Loan to be in default, nor has the Company waived any default
resulting from any action or inaction by the Mortgagor.
(c) The Assignor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(d) The Assignor 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 this Agreement and the Servicing
Agreement The execution by the Assignor of this Agreement is in the
ordinary course of the Assignor's business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Assignor's charter or bylaws or any legal restriction, or any material
agreement or instrument to which the Assignor 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 Assignor or its property is subject. The
execution, delivery and performance by the Assignor of this Agreement have
been duly authorized by all necessary corporate action on part of the
Assignor. This Agreement has been duly executed and delivered by the
Assignor, and, upon the due authorization, execution and delivery by the
Assignor and the Assignee, will constitute the valid and legally binding
obligation of the Assignor, enforceable against the Assignor 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;
(e) 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 Assignor in connection with the execution, delivery
or performance by the Assignor of this Agreement or the consummation by it
of the transaction contemplated hereby;
(f) There is no action, suit, proceeding or investigation pending or
threatened against the Assignor, before any court, administrative agency or
other tribunal, which would draw into question the validity of this
Agreement or the Servicing Agreement, or which, either in any one instance
or in the aggregate, is likely to result in any material adverse change in
the ability of the Assignor to perform its obligations under this Agreement
or the Servicing Agreement, and the Assignor is solvent; and
-6-
(g) The Servicing Agreement is in full force and effect as of the date
hereof and its provisions have not been waived, amended or modified in any
respect, nor has any notice of termination been given thereunder;
5. Modification of Servicing Agreement
(a) The parties hereto acknowledge Section 3.03 and the requirement to
reimburse the Servicer in accordance with such section. In connection
therewith, the Assignor and the Master Servicer agree to notify the
Servicer if an Amortization Event shall be in effect with respect to the
HELOC Mortgage Loans. The Servicer shall provide to the Master Servicer and
to the Assignor the total outstanding balance of the HELOC Mortgage Loans
and the balance of the Draws for the current reporting month as of the date
of such Amortization Event. The Assignor (unless such obligation is
transferred to an affiliate of the Servicer upon the mutual agreement of
the Assignor and the Servicer) will remain responsible to reimburse the
Servicer for such Excluded Amounts.
(b) Section 4.07 is modified by adding "and the Master Servicer" after
"The Owner".
(c) The parties acknowledge that the Master Servicer shall have the
same rights and benefits as the Owner with respect to indemnification by
the Servicer under the Servicing Agreement and shall be a third party
beneficiary of the obligations of the Servicer and rights of the Owner
relating to Regulation AB set forth in the Servicing Agreement as if it
were a party thereto.
(d) (e) The definition of Business Day is hereby amended by adding the
word " Illinois" after the words "Texas".
(e) (f) Section 3.01 of the Servicing Agreement is amended by adding
the following sentence at the end thereof:
"If the Master Servicer does not receive all amounts required to be
remitted to it pursuant to this Section 3.01 by 5:00 p.m. (New York
Time) on the Remittance Date, the Servicer shall pay, out of its own
funds, interest on such amount at a rate equal to the "prime rate" as
published by The Wall Street Journal at such time for each date or
part thereof."
(f) The Assignor acknowledges its obligations under clause (4) and the
last three sentences of Section 3.03 of the Servicing Agreement.
6. Miscellaneous
(a) 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-
(b) 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.
(c) This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including the
Indenture Trustee and the Master Servicer acting on the Trust's behalf).
Any entity into which the 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.
(d) The Servicer shall be considered a third party beneficiary under
the Indenture with respect to any amounts due to it thereunder.
(e) Each of this Agreement and the Servicing Agreement shall survive
the conveyance of the Mortgage Loans and the assignment of the Servicing
Agreement (to the extent assigned hereunder) by the Assignor to the
Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Servicing Agreement.
(f) 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.
(g) In the event that any provision of this Agreement conflicts with
any provision of the Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
(h) 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 Servicing Agreement, as applicable.
(i) For purposes of this Agreement, the Master Servicer shall be
considered a third party beneficiary to this Agreement entitled to all the
rights and benefits accruing to the Master Servicer as if it were a direct
party to this Agreement.
[SIGNATURE PAGE FOLLOWS]
-8-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX CREDIT CORPORATION,
a Delaware Corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
COUNTRYWIDE HOME LOANS SERVICING LP,
a Texas limited partnership
(Servicer)
By: COUNTRYWIDE GP, INC.,
general partner
By:
------------------------------------
Name: Xxxxxx X. Xxx
Title: Senior Vice President
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XXXXXXX XXXXX MORTGAGE INVESTORS TRUST,
SERIES 2006-2, a Delaware Trust
By: Wilmington Trust Company, solely as
Owner Trustee and not in its individual
capacity
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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ACKNOWLEDGED AND AGREED TO
ON THE DATE FIRST WRITTEN ABOVE:
CITIBANK, N.A.,
as Indenture Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
as Master Servicer
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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