ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This
is
an Assignment, Assumption and Recognition Agreement (this “AAR Agreement”) made
as of January 30, 2006, among EMC Mortgage Corporation (the “Assignor”),
Citibank, N.A., not individually but solely as trustee for the holders of the
SACO I Trust 2006-2, Mortgage Pass-Through Certificates, Series 2006-2 (the
“Assignee”) and First Tennessee Mortgage Services, Inc. (the
“Company”).
In
consideration of the mutual promises contained herein the parties hereto agree
that the residential mortgage loans (the “Assigned Loans”) listed on Attachment
1 annexed hereto (the "Assigned Loan Schedule") purchased by the Assignor from
First Horizon Home Loan Corporation (“First Horizon”) pursuant to the Purchase,
Warranties and Servicing Agreement, dated as of September 1, 2003, as amended
by
(1) Amendment No. 1 dated May 14, 2004, among
Assignor, Company and First Horizon, (2)
Amendment No. 2 dated June 16, 2005, among Assignor, Company and First Horizon,
(3) Amendment No. 3 dated August 8, 2005. among Assignor, Company and First
Horizon and (4) Amendment No. 4, dated December 22, 2005, among Assignor,
Company and First Horizon (the “Purchase, Warranties and Servicing Agreement”)
and that certain amended and restated term sheet dated as of September 28,
2005,
among Assignor, Company and First Horizon (the
“Term
Sheet”, together with the Purchase, Warranties and Servicing Agreement, the
“Purchase
Agreement”) and now serviced by Company for Assignor and its successors and
assigns pursuant to the Purchase Agreement shall be subject to the terms of
this
AAR Agreement. Capitalized terms used herein but not defined shall have the
meanings ascribed to them in the Purchase Agreement.
Assignment
and Assumption
Except
as
expressly provided for herein, the Assignor hereby grants, transfers and assigns
to the Assignee all of its right, title and interest as in, to and under (a)
the
Assigned Loans and (b) the Purchase Agreement with respect to the Assigned
Loans; provided, however, that the Assignor is not assigning to the Assignee
any
of its right, title or interest, in, to and under the Purchase Agreement with
respect to any mortgage loan other than the Assigned Loans listed on Exhibit
A.
Notwithstanding anything to the contrary contained herein, the Assignor
specifically reserves and does not assign to the Assignee any right, title
and
interest in, to or under the representations and warranties contained in Section
3.01 and Section 3.02 of the Purchase Agreement, and any obligation of the
Company to cure, repurchase or substitute for a mortgage loan and to indemnify
the Assignor with respect to a breach of such representations and warranties
pursuant to Section 3.03 and Section 8.01 of the Purchase Agreement and the
Assignor is retaining the right to enforce the representations and warranties
and the obligations of the Company set forth in those sections against the
Company. In addition, the Assignor specifically reserves and does not assign
to
the Assignee any right, title and interest in, to or under Section 2.09 of
the
Purchase Agreement. Except as is otherwise expressly provided herein, the
Assignor makes no representations, warranties or covenants to the Assignee
and
the Assignee acknowledges that the Assignor has no obligations to the Assignee
under the terms of the Purchase Agreement or otherwise relating to the
transaction contemplated herein (including, but not limited to, any obligation
to indemnify the Assignee).
Representations,
Warranties and Covenants
1.
Assignor
warrants and represents to Assignee and Company as of the date
hereof:
(a) Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase Agreement
which agreement is in full force and effect as of the date hereof and the
provisions of which have not been waived, amended or modified in any respect,
nor has any notice of termination been given thereunder;
(b) Assignor
is the lawful owner of the Assigned Loans with full right to transfer the
Assigned Loans and any and all of its interests, rights and obligations under
the Purchase Agreement as they relate to the Assigned Loans, free and clear
from
any and all claims and encumbrances; and upon the transfer of the Assigned
Loans
to Assignee as contemplated herein, Assignee shall have good title to each
and
every Assigned Loan, as well as any and all of Assignee’s interests, rights and
obligations under the Purchase Agreement as they relate to the Assigned Loans,
free and clear of any and all liens, claims and encumbrances;
(c) There
are
no offsets, counterclaims or other defenses available to Company with respect
to
the Assigned Loans or the Purchase Agreement;
(d) Assignor
has no knowledge of, and has not received notice of, any waivers under, or
any
modification of, any Assigned Loan;
(e) Assignor
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation, and has all requisite power and authority
to
acquire, own and sell the Assigned Loans;
(f) Assignor
has full corporate power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated by this AAR
Agreement is in the ordinary course of Assignor’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Assignor’s charter or by-laws or any legal restriction, or any material
agreement or instrument to which 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 Assignor or its property is subject. The execution, delivery
and performance by Assignor of this AAR Agreement and the consummation by it
of
the transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of Assignor. This AAR Agreement has been duly
executed and delivered by Assignor and, upon the due authorization, execution
and delivery by Assignee and Company, will constitute the valid and legally
binding obligation of Assignor enforceable against 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;
(g) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
Assignor in connection with the execution, delivery or performance by Assignor
of this AAR Agreement, or the consummation by it of the transactions
contemplated hereby;
(h) Neither
Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold
or otherwise disposed of the Assigned Loans or any interest in the Assigned
Loans, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Assigned Loans, or any interest in the Assigned Loans or
otherwise approached or negotiated with respect to the Assigned Loans, or any
interest in the Assigned Loans 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 Assigned
Loans under the Securities Act of 1933, as amended (the “1933 Act”) or which
would render the disposition of the Assigned Loans a violation of Section 5
of
the 1933 Act or require registration pursuant thereto;
(i) The
Assignor has received from Company, and has delivered to the Assignee, all
documents required to be delivered to Assignor by the Company prior to the
date
hereof pursuant to the Purchase Agreement with respect to the Assigned Loans
and
has not received, and has not requested from the Company, any additional
documents; and
(j) There
is
no action, suit, proceeding, investigation or litigation pending or, to
Assignor's knowledge, threatened, which either in any instance or in the
aggregate, if determined adversely to Assignor, would adversely affect
Assignor's execution or delivery of, or the enforceability of, this AAR
Agreement, or the Assignor's ability to perform its obligations under this
AAR
Agreement.
2.
Assignee
warrants and represents to, and covenants with, Assignor and Company as of
the
date hereof:
(a) Assignee
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its organization and has all requisite power and authority
to
hold the Assigned Loans as trustee on behalf of the holders of the SACO I Trust
2006-2, Mortgage Pass-Through Certificates, Series 2006-2;
(b) Assignee
has full corporate power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated by this AAR
Agreement is in the ordinary course of Assignee’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Assignee’s charter or by-laws or any legal restriction, or any material
agreement or instrument to which Assignee 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 Assignee or its property is subject. The execution, delivery
and performance by Assignee of this AAR Agreement and the consummation by it
of
the transactions contemplated hereby, have been duly authorized by all necessary
corporate action on part of Assignee. This AAR Agreement has been duly executed
and delivered by Assignee and, upon the due authorization, execution and
delivery by Assignor and Company, will constitute the valid and legally binding
obligation of Assignee enforceable against Assignee 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
Assignee in connection with the execution, delivery or performance by Assignee
of this AAR Agreement, or the consummation by it of the transactions
contemplated hereby;
(d) There
is
no action, suit, proceeding, investigation or litigation pending or, to
Assignee's knowledge, threatened, which either in any instance or in the
aggregate, if determined adversely to Assignee, would adversely affect
Assignee's execution or delivery of, or the enforceability of, this AAR
Agreement, or the Assignee's ability to perform its obligations under this
AAR
Agreement; and
(e) Assignee
assumes for the benefit of each of the Assignor and the Company all of the
rights of the Purchaser under the Purchase Agreement with respect to the
Assigned Loans.
3.
Company
warrants and represents to, and covenant with, Assignor and Assignee as of
the
date hereof:
(a) Attached
hereto as Attachment 2 is a true and accurate copy of the Purchase Agreement,
which agreement is in full force and effect as of the date hereof and the
provisions of which have not been waived, amended or modified in any respect,
nor has any notice of termination been given thereunder;
(b) Company
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction of its incorporation, and has all requisite power and authority
to
service the Assigned Loans and otherwise to perform its obligations under the
Purchase Agreement;
(c) Company
has full corporate power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions set
forth herein. The consummation of the transactions contemplated by this AAR
Agreement is in the ordinary course of Company’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Company’s charter or by-laws or any legal restriction, or any material agreement
or instrument to which 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 Company or its property is subject. The execution, delivery and
performance by Company of this AAR Agreement and the consummation by it of
the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of Company. This AAR Agreement has been duly
executed and delivered by Company, and, upon the due authorization, execution
and delivery by Assignor and Assignee, will constitute the valid and legally
binding obligation of Company, enforceable against 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;
(d) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
Assignee in connection with the execution, delivery or performance by Company
of
this AAR Agreement, or the consummation by it of the transactions contemplated
hereby;
(e) The
Company shall establish a Custodial Account and an Escrow Account under the
Purchase Agreement in favor of the Assignee with respect to the Assigned Loans
separate from the Custodial Account and Escrow Account previously established
under the Purchase Agreement in favor of Assignor;
(f) No
event
has occurred from the Closing Date to the date hereof which would render the
representations and warranties as to the related Assigned Loans made by the
Company in Sections 3.01 and 3.02 of the Purchase Agreement to be untrue in
any
material respect; and
(g) Neither
this AAR Agreement nor any certification, statement, report or other agreement,
document or instrument furnished or to be furnished by the Company pursuant
to
this AAR Agreement contains or will contain any materially untrue statement
of
fact or omits or will omit to state a fact necessary to make the statements
contained therein not misleading.
4.
Assignor
hereby agrees to indemnify and hold the Assignee (and its successors and
assigns) harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
fees
and expenses that Assignee (and its successors and assigns) may sustain in
any
way related to any breach of the representations or warranties of Assignor
set
forth in this AAR Agreement or the breach of any covenant or condition contained
herein.
Recognition
of Assignee
5.
From
and
after the date hereof, Company shall recognize Assignee as owner of the Assigned
Loans, and acknowledges that the Assigned Loans will be part of a REMIC, and
will service the Assigned Loans in accordance with the Purchase Agreement (as
modified by this AAR Agreement) but in no event in a manner that would (i)
cause
any REMIC to fail to qualify as a REMIC or (ii) result in the imposition of
a
tax upon any REMIC (including but not limited to the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code). It is the
intention of Assignor, Company and Assignee that this AAR Agreement shall be
binding upon and for the benefit of the respective successors and assigns of
the
parties hereto. Neither Company nor Assignor shall amend or agree to amend,
modify, waive, 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 Assigned Loans without the prior written consent of
Assignee.
6.
It
is
expressly understood and agreed by the parties hereto that insofar as this
AAR
Agreement is executed on behalf of the Assignee (i) this AAR Agreement is
executed and delivered by Citibank, N.A., not in its individual capacity but
solely as trustee under the Pooling and Servicing Agreement, dated as of January
1, 2006 (the “Pooling and Servicing Agreement”), among the Assignor, Bear
Xxxxxxx Asset Backed Securities I LLC, Citibank, N.A., as trustee and LaSalle
Bank National Association as securities administrator and master servicer,
in
the exercise of the powers and authority conferred and vested in it, (ii) each
of the representations, undertakings and agreements herein made on the part
of
the Assignee is made and intended not as representations, warranties, covenants,
undertakings and agreements by Citibank, N.A. in its individual capacity, but
is
made and intended for the purpose of binding only the Assignee, (iii) under
no
circumstances shall Citibank, N.A. in its individual capacity be personally
liable for the payment of any indebtedness or expenses of the Assignee or be
liable for the breach or failure of any obligation, representation, warranty
or
covenant made or undertaken by the Assignee under this AAR Agreement and (iv)
any recourse against the Assignee in respect of any obligations it may have
under or pursuant to the terms of this AAR Agreement shall be limited solely
to
the assets it may hold as trustee of SACO I Trust 2006-2.
Company
shall indemnify and hold harmless the Assignor, each affiliate of the Assignor,
Bear Xxxxxxx Asset Backed Securities I LLC (“BSABS I”), the Assignee, Bear,
Xxxxxxx & Co. Inc. (the “Underwriter”) and each affiliate of the
Underwriter, each Person (including, but not limited to, the Master Servicer)
responsible for the preparation, execution or filing of any report required
to
be filed with the Commission, or for execution of a certification pursuant
to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act, each Person who
controls the Assignor, BSABS I, the Assignee or the Underwriter (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the respective present and former directors, officers, employees, agents
and
affiliates of each of the foregoing (each, an “Indemnified Party”), and shall
hold each of them harmless from and against any claims, losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that any of them may sustain
arising out of or based upon:
| (i) |
(A)any
untrue statement of a material fact contained or alleged to be contained
in any information, report, certification, data, accountants’ letter or
other material provided under Section 11.18 of the Purchase Agreement
by
or on behalf of the Assignor, or provided under Section 11.18 of the
Purchase Agreement by or on behalf of any Subservicer, Subcontractor
or
Third-Party Originator (collectively, the “Company Information”), or (B)
the omission or alleged omission to state in the Company Information
a
material fact required to be stated in the Company Information or
necessary in order to make the statements therein, in the light of
the
circumstances under which they were made, not misleading; provided,
by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference
to the
Company Information and not to any other information communicated in
connection with a sale or purchase of securities, without regard to
whether the Company Information or any portion thereof is presented
together with or separately from such other
information;
|
| (ii) |
any
breach by the Company of its obligations under Section 11.18 of Purchase
Agreement, including particularly any failure by the Company, any
Subservicer, any Subcontractor or any Third-Party Originator to deliver
any information, report, certification, accountants’ letter or other
material when and as required under Section 11.18 of the Purchase
Agreement, including any failure by the Company to identify any
Subcontractor “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB;
|
| (iii) |
any
breach by the Company of a representation or warranty set forth in
Section
3.01 of the Purchase Agreement or in a writing furnished pursuant to
Section 3.01 of the Purchase Agreement and made as of a date prior
to the
date hereof, to the extent that such breach is not cured by the date
hereof, or any breach by the Company of a representation or warranty
in a
writing furnished pursuant to Section 3.01 of the Purchase Agreement
to
the extent made as of a date subsequent to the date hereof;
or
|
| (iv) |
the
negligence, bad faith or willful misconduct of the Company in connection
with its performance under Section 11.18 of the Purchase
Agreement.
|
If
the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Company agrees that it shall contribute
to the amount paid or payable by such Indemnified Party as a result of any
claims, losses, damages or liabilities incurred by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Company on the other.
In
the
case of any failure of performance described in Section 11.18 of the Purchase
Agreement, the Company shall promptly reimburse the Underwriter, BSABS I and
each Person responsible for the preparation, execution or filing of any report
required to be filed with the Commission, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act, for all
costs reasonably incurred by each such party in order to obtain the information,
report, certification, accountants’ letter or other material not delivered as
required by the Company, any Subservicer, any Subcontractor or any Third-Party
Originator.
Modification
of Purchase Agreement
7.
The
Company and Assignor hereby amend the Purchase Agreement as
follows:
(a) The
following definitions are added to Article I of the Purchase
Agreement:
Assignee:
Citibank,
N.A.,
as
trustee for the holders of the SACO I Trust 2006-2.
Master
Servicer:
LaSalle
Bank National Association, or its successors in interest who meet the
qualifications of the Pooling and Servicing Agreement and this
Agreement.
Pooling
and Servicing Agreement:
That
certain pooling and servicing agreement, dated as of January 1, 2006, among
Bear
Xxxxxxx Asset Backed Securities I LLC, the Trustee, the Master Servicer, the
Securities Administrator and the Purchaser.
Securities
Administrator:
LaSalle
Bank National Association, or its successors in interest who meet the
qualifications of the Pooling and Servicing Agreement and this
Agreement.
Trustee:
Citibank,
N.A.,
or its
successor in interest, or any successor trustee appointed as provided in the
Pooling and Servicing Agreement.
(b) The
definition of Business Day is deleted in its entirety and replaced with the
following:
Business
Day:
Any day
other than: (i) a Saturday or Sunday, or (ii) a legal holiday in the States
of
New York, Illinois, Maryland, Minnesota or Texas, or (iii) a day on which banks
in the States of New York, Maryland, Illinois, Minnesota or Texas are authorized
or obligated by law or executive order to be closed.
(c) The
third
paragraph of Section 4.01 of the Purchase Agreement shall be deleted in its
entirety and replaced with the following:
Notwithstanding
anything to the contrary contained in this Agreement, the Company shall not
make
or permit any modification, waiver or amendment of any term of any Mortgage
Loan
that would (i) effect an exchange or reissuance of such Mortgage Loan under
Section 1001 of the Code (or Treasury regulations promulgated thereunder) and
(ii) cause any REMIC created under the trust agreement pursuant to any
Reconstitution to fail to qualify as a REMIC or result in the imposition of
any
tax under Section 860F(a) of Section 860G(d) of the Code.
(d) The
last
paragraph in Section 4.02 of the Agreement is deleted and replaced with the
following:
The
Company shall not waive any prepayment penalty unless: (i) the enforceability
thereof shall have been limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally,
(ii) the enforcement thereof is illegal, or any local, state or federal agency
has threatened legal action if the prepayment penalty is enforced, (iii) the
mortgage debt has been accelerated in connection with a foreclosure or other
involuntary payment or (iv) such waiver is standard and customary in servicing
similar Mortgage Loans and relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of the Company, maximize recovery
of total proceeds taking into account the value of such prepayment penalty
and
the related Mortgage Loan. If a prepayment penalty is waived, but does not
meet
the standards described above, then the Company is required to pay the amount
of
such waived prepayment penalty by remitting such amount to the Master Servicer
by the Remittance Date.
(e) The
following shall be added at the end of the last paragraph of Section 4.03 of
the
Purchase Agreement:
In
the
event a Mortgage Loan is charged-off, the Mortgage Loan will be removed from
the
pool and remittances with regard to such Mortgage Loan will occur on an
actual/actual basis in the following method: no later than on each Remittance
Date, the Company shall cause all amounts deposited in the Custodial Account
as
of the close of business on the immediately preceding Determination Date, minus
any amounts attributable to Monthly Payments collected but not due on a Due
Date
or Dates subsequent to the first day of the month of the Remittance Date (which
amounts shall be remitted on the Remittance Date next succeeding the Due Period
for such amounts) to be remitted to the Purchaser as follows: (i) all
collections of principal (ii) all collections of interest net of servicing
fees
(iii) liquidation proceeds net of the Company’s servicing advances. In addition,
any prepayment in full shall be remitted to the Purchaser within five (5)
business days of collection.
(f) The
second paragraph of Section 4.13 of the Purchase Agreement is deleted in its
entirety and replaced with the following:
The
Company shall notify the Assignor in accordance with the Xxxxxx Mae Guides
of
each acquisition of REO Property upon such acquisition (and, in any event,
shall
provide notice of the consummation of any foreclosure sale within three (3)
Business Days of the date Company receives notice of such consummation),
together with a copy of the drive by appraisal or brokers price opinion of
the
Mortgaged Property obtained in connection with such acquisition. Thereafter,
the
Assignor shall assume the marketing and administration of such REO Property
and
shall sell such REO Property as expeditiously as possible and in accordance
with
the provisions of the Pooling and Servicing Agreement, as if such Mortgage
Loan
were an EMC Mortgage Loan. Pursuant to its efforts to sell such REO Property,
the Assignor shall protect and conserve such REO Property in the manner and
to
the extent required by the Pooling and Servicing Agreement. No Servicing Fee
shall be assessed or otherwise accrue on any REO Property from and after the
date on which it becomes an REO Property.
(g) Article
VI of the Agreement is hereby amended effective as of the date hereof by
deleting Section 6.05 in its entirety and replacing it with the
following:
Section
6.05 [Reserved].
(h) Article
VI of the Agreement is hereby amended effective as of the date hereof by adding
the following new Section 6.07:
Section
6.07 Assessment
of Compliance with Servicing Criteria.
On
and
after January 1, 2006, the Company shall service and administer, and shall
cause
each subservicer to servicer or administer, the Mortgage Loans in accordance
with all applicable requirements of the Servicing Criteria.
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
the Company shall deliver to the Purchaser or its designee on or before March
1
of each calendar year beginning in 2007, but in no event later than March 15,
a
report (an “Assessment of Compliance”) reasonably satisfactory to the Purchaser
regarding the Company’s assessment of compliance with the Servicing Criteria
during the preceding calendar year as required by Rules 13a-18 and 15d-18 of
the
Exchange Act and Item 1122 of Regulation AB, which as of the date hereof,
require a report by an authorized officer of the Company that contains the
following:
(a) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Company;
(b) A
statement by such officer that such officer used the Servicing Criteria to
assess compliance with the Servicing Criteria applicable to the
Company;
(c) An
assessment by such officer of the Company’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Company, that are backed by the same asset type as the Mortgage
Loans;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Company’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Company, which statement shall be based on the activities it performs with
respect to asset-backed securities transactions taken as a whole involving
the
Company, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on a
certification substantially in the form of Exhibit O hereto delivered to the
Purchaser concurrently with the execution of this Agreement.
With
respect to any Mortgage Loans that are the subject of a Pass-Through Transfer,
on or before March 1 of each calendar year beginning in 2007, but in no event
later than March 15, the Company shall furnish to the Purchaser or its designee
a report (an “Attestation Report”) by a registered public accounting firm that
attests to, and reports on, the Assessment of Compliance made by the Company,
as
required by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of
Regulation AB, which Attestation Report must be made in accordance with
standards for attestation reports issued or adopted by the Public Company
Accounting Oversight Board.
The
Company shall cause each Subservicer, and each Subcontractor determined by
the
Company pursuant to Section 11.19 to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, to deliver to the
Purchaser and any Depositor an assessment of compliance and accountants’
attestation as and when provided in Sections 6.07.
Failure
of the Company to timely comply with this Section 6.07 shall be deemed an Event
of Default, automatically, without notice and without any cure period, and
Purchaser may, in addition to whatever rights the Purchaser may have under
Sections 3.03 and 8.01 and at law or equity or to damages, including injunctive
relief and specific performance, terminate all the rights and obligations of
the
Company under this Agreement and in and to the Mortgage Loans and the proceeds
thereof without compensating the Company for the same, as provided in Section
9.01. Such termination shall be considered with cause pursuant to Section 10.01
of this Agreement. This paragraph shall supercede any other provision in this
Agreement or any other agreement to the contrary.
(i) The
phrase “without giving effect to principles of conflicts of laws and” shall be
added following the phrase “the State of New York” in Section 11.04 of the
Purchase Agreement.
(j) The
following shall be added as Section 11.21 of the Purchase
Agreement:
Section
11.21 Third
Party Beneficiary.
For
purposes of this Agreement, any Master Servicer shall be considered a third
party beneficiary to this Agreement entitled to all the rights and benefits
accruing to any Master Servicer herein as if it were a direct party to this
Agreement.
Miscellaneous
8.
All
demands, notices and communications related to the Assigned Loans, the Purchase
Agreement and this AAR Agreement shall be in writing and shall be deemed to
have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid, as follows:
| (a) |
In
the case of Company:
|
First
Tennessee Mortgage Services, Inc.
0000
Xxxxxxx Xxx
Xxxxxx,
Xxxxx 00000
Attention:
Capital Markets Department
| (b) |
In
the case of Assignor:
|
EMC
Mortgage Corporation
Mac
Xxxxxx Xxxxx XX
000
Xxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxxx Xxxxx
Telecopier
No.: (000) 000-0000
with
a
copy to:
Bear
Xxxxxxx Mortgage Capital Corporation
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxxx
Telecopier
No.: (000) 000-0000
| (c) |
In
the case of Assignee:
|
Citibank,
N.A., as Trustee
000
Xxxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx
Xxxx 00000
Attention:
SACO 2005-10
Telecopier
No.: (000) 000-0000
9.
The
Company hereby acknowledges that LaSalle Bank National Association (the “Master
Servicer”) has been appointed as the master servicer of the Assigned Loans
pursuant to the Pooling and Servicing Agreement, and therefor has the right
to
enforce all obligations of the Company, as they relate to the Assigned Loans,
under the Purchase Agreement. Such right will include, without limitation,
the
right to terminate the Company under the Purchase 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 Purchase Agreement, the right to receive
all
monthly reports and other data required to be delivered by the Company under
the
Purchase Agreement, the right to examine the books and records of the Company,
indemnification rights, and the right to exercise certain rights of consent
and
approval relating to actions taken by the Company. The Company shall make all
distributions under the Purchase Agreement, as they relate to the Assigned
Loans, to the Master Servicer by wire transfer of immediately available funds
to:
LaSalle
Bank National Association
ABA#
000000000
Account
#
[____________]
Attn:
Xxxxxx Xxxxxx
and
the
Company shall deliver all reports required to be delivered under the Purchase
Agreement, as they relate to the Assigned Loans, to the Assignee at the address
set forth in Section 8 herein and to the Master Servicer at:
LaSalle
Bank National Association
000
X.
XxXxxxx Xx., Xxxxx 0000
Xxxxxxx,
XX 00000
Attention:
Global Securities and Trust Services Group- SACO 2006-2
10.
Each
party will pay any commissions it has incurred and the fees of its attorneys
in
connection with the negotiations for, documenting of and closing of the
transactions contemplated by this AAR Agreement.
11.
This
AAR
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.
12.
No
term
or provision of this AAR 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.
13.
This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. 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.
14.
This
AAR
Agreement shall survive the conveyance of the Assigned Loans, the assignment
of
the Purchase Agreement to the extent of the Assigned Loans by Assignor to
Assignee and the termination of the Purchase Agreement.
15.
This
AAR
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.
16.
In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Purchase Agreement with respect to the Assigned Loans, the terms of this
AAR
Agreement shall control.
SACO
2006-2 - FIRST HORIZON ASSIGNMENT ASSUMPTION AND RECOGNITION
AGREEMENT
IN
WITNESS WHEREOF, the parties hereto have executed this AAR Agreement as of
the
day and year first above written.
EMC
MORTGAGE CORPORATION
Assignor
By:
Name:
Title:
CITIBANK,
N.A., not individually but solely as Trustee for the SACO I Trust 2006-2,
Mortgage Pass-Through Certificates, Series 2006-2
Assignee
By:
Name:
Title:
FIRST
TENNESSEE MORTGAGE SERVICES, INC.
Company
By:
Name:
Title:
Acknowledged
and Agreed:
LASALLE
BANK NATIONAL ASSOCIATION Master Servicer
By:
Name:
Title:
SACO
2006-2 - FIRST HORIZON ASSIGNMENT ASSUMPTION AND RECOGNITION
AGREEMENT
ATTACHMENT
1
ASSIGNED
LOAN SCHEDULE
(Available
upon request)
SACO
2006-2 - FIRST HORIZON ASSIGNMENT ASSUMPTION AND RECOGNITION
AGREEMENT
ATTACHMENT
2
PURCHASE
AGREEMENT
