Contract
ASSIGNMENT
AND ASSUMPTION AGREEMENT dated July 1, 2006, among Xxxxxx Xxxxxxx Mortgage
Capital Inc., a New York corporation (“Assignor”),
Xxxxxx Xxxxxxx Capital I Inc., a Delaware corporation (“Assignee”),
and
Aames Capital Corporation (the “Seller”),
and
acknowledged by LaSalle Bank National Association, solely in its capacity as
trustee (the “Trustee”)
of
Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-10SL (the “Trust”):
For
good
and 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:
1. The
Assignor hereby grants, transfers, conveys and assigns to Assignee, as
Purchaser, all of the right, title and interest of Assignor with respect to
the
mortgage loans listed on Exhibit
A
attached
hereto (the “Mortgage
Loans”),
and
with respect to such Mortgage Loans, in, to and under (a) that certain
Third Amended and Restated Mortgage Loan Purchase and Warranties Agreement
(the
“Purchase
Agreement”),
dated
as of March 1, 2006, by and between the Assignor and the Seller and
(b) that certain Servicing Agreement (the “Servicing
Agreement”)
dated
as of October 1, 2001 among the Seller and the Assignor, each, and (c) that
certain Custodial Agreement, dated as of October 1, 2001 among the Seller,
the
Assignor and Bankers Trust Company (the “Custodian”)
(the
“Custodial
Agreement”).
The
Purchase Agreement, the Servicing Agreement and the Custodial Agreement are
herein collectively referred to as the “Agreements.”
2. The
Assignor warrants and represents to, and covenants with, the Assignee
that:
a. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b. The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Seller with respect to the
Agreements or the Mortgage Loans;
c. The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Agreements. The Assignor has no
knowledge of, and has not received notice of, any waivers under or amendments
or
other modifications of, or assignments of rights or obligations under, the
Agreements; and
d. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans or any interest in the Mortgage
Loans, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Mortgage Loans, or any interest in the Mortgage Loans or
otherwise approached or negotiated with respect to the Mortgage Loans, or any
interest in the Mortgage with any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action which would constitute a distribution of the Mortgage Loans
under the Securities Act of 1933, as amended (the “1933
Act”),
or
which would render the disposition of the Mortgage Loans a violation of Section
5 of the 1933 Act or require registration pursuant thereto.
3. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Seller pursuant to the Agreements that:
a. The
Assignee is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and purchase the Mortgage
Loans;
b. The
Assignee has full corporate power and authority to execute, deliver and perform
under this Assignment and Assumption Agreement, and to consummate the
transactions set forth herein. The execution, delivery and performance of the
Assignee of this Assignment and Assumption Agreement, and the consummation
by it
of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Assignee. This Assignment and Assumption
Agreement has been duly executed and delivered by the Assignee and constitutes
the valid and legally binding obligation of the Assignee enforceable against
the
Assignee in accordance with its respective terms;
c. To
the best of Assignee’s knowledge, no material consent, approval, order or
authorization of, or declaration, filing or registration with, any governmental
entity is required to be obtained or made by the Assignee in connection with
the
execution, delivery or performance by the Assignee of this Assignment and
Assumption Agreement, or the consummation by it of the transactions contemplated
hereby;
d. The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Agreements, the Mortgage Loans, and from and after the date
hereof, the Assignee assumes for the benefit of each of the Seller, the Assignor
and the Custodian all of the Assignor’s obligations as Purchaser thereunder;
including, without limitation, the limitation on assignment set forth in Section
22 of the Purchase Agreement;
e. The
Assignee understands that the Mortgage Loans have not been registered under
the
1933 Act or the securities laws of any state;
f. The
purchase price being paid by the Assignee for the Mortgage Loans is in excess
of
$250,000 and will be paid by cash remittance of the full purchase price within
60 days of the sale;
g. The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person;
h. The
Assignee considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
i. The
Assignee has been furnished with all informa-tion regarding the Mortgage Loans
that it has requested from the Assignor or the Seller;
j. Neither
the Assignee nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans or any interest in the Mortgage
Loans, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Mortgage Loans or any interest in the Mortgage Loans, or
otherwise approached or negotiated with respect to the Mortgage Loans or any
interest in the Mortgage Loans with any person in any manner which would
constitute a distribution of the Mortgage Loans under the 1933 Act or which
would render the disposition of the Mortgage Loans a violation of Section 5
of the 1933 Act or require registration pursuant thereto, nor will it act,
nor
has it authorized or will it authorize any person to act, in such manner with
respect to the Mortgage Loans; and
k. Either:
(1) the Assignee is not an employee benefit plan (“Plan”)
within
the meaning of section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”),
or a
plan (also “Plan”)
within
the meaning of section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended (“Code”),
and
the Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as Trustee of, or
with
assets of, a Plan; or (2) the Assignee’s purchase of the Mortgage Loans
will not result in a prohibited transaction under section 406 of ERISA or
section 4975 of the Code.
4. (a) The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans, this Assignment and Assumption Agreement and the Agreements
is:
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-10SL
The
Assignee’s wire instructions for purposes of all remittances and payments
related to the Mortgage Loans are:
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
(b) The
Assignor’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Assignment and Assumption Agreement is:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Whole
Loan Operations Manager
5. This
Assignment and Assumption Agreement shall be construed in accordance with the
laws of the State of New York and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws, except
to
the extent preempted by federal law.
6. This
Assignment and Assumption Agreement shall inure to the benefit of the successors
and assigns of the parties hereto. This Assignment and Assumption Agreement
may
not be assigned by the Assignee without the express written consent of the
Assignor. Any entity into which the Assignor or Assignee may be merged or
consolidated shall, without the requirement for any further writing, be deemed
the Assignor or Assignee, respectively, hereunder.
7. No
term or provision of this Assignment and Assumption 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.
8. This
Assignment and Assumption Agreement shall survive the conveyance of the Mortgage
Loans and the assignment of the Agreements by the Assignor.
9. Notwithstanding
the assignment of the Agreements by either the Assignor or Assignee, this
Assignment and Assumption Agreement shall not be deemed assigned by the Assignor
or the Assignee unless assigned by separate written instrument.
10. For
the purpose for facilitating the execution of this Assignment and Assumption
Agreement as herein provided and for other purposes, this Assignment and
Assumption Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original,
and
such counterparts shall constitute and be one and the same
instrument.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Assignment and Assumption
Agreement to be executed by their duly authorized officers as of the date first
above written.
AAMES
CAPITAL CORPORATION,
as
Seller
/s/
Xxxx X. Xxx
By:
Xxxx
X. Xxx
Its:
Executive Vice President
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.,
as
Assignor
/s/
Xxx Xxx
By:
Xxx
Xxx
Its:
Managing Director
Taxpayer
Identification No.________
XXXXXX
XXXXXXX CAPITAL I INC.,
as
Assignee
/s/
Xxx Xxx
By:
Xxx
Xxx
Its:
Managing Director
Taxpayer
Identification No: _______
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
