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,
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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
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(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.
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(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]
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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:
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LASALLE BANK NATIONAL ASSOCIATION,
as Master Servicer
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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