Exhibit 99.10a
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated
September 1, 2006, ("Agreement") among Xxxxxx Xxxxxxx Mortgage Capital Inc.
("Assignor"), Xxxxxx Xxxxxxx Capital I Inc. ("Assignee") and Quicken Loans,
Inc. (the "Company") and acknowledged by LaSalle Bank National Association
("LaSalle"), as trustee (the "Trustee") of Xxxxxx Xxxxxxx Mortgage Loan Trust
2006-12XS (the "Trust"):
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other 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:
Assignment and Conveyance
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1. (a) The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest of the Assignor, as
purchaser, in, to and under (a) those certain Mortgage Loans listed on the
schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit A (the
"Mortgage Loans") and (b) except as described below, all of its rights and
obligations under that certain Second Amended and Restated Mortgage Loan
Purchase and Warranties Servicing Agreement (the "Purchase and Warranties
Agreement"), dated as of June 1, 2006, between the Assignor, as purchaser (the
"Purchaser"), and the Company, as seller, solely insofar as the Purchase and
Warranties Agreement relates to the Mortgage Loans (the "First Assignment and
Assumption").
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
any obligations of the Assignor with respect to (a) Subsection 9.05 of the
Purchase and Warranties Agreement or (b) any mortgage loans subject to the
Purchase and Warranties Agreement which are not the Mortgage Loans set forth
on the Mortgage Loan Schedule and are not the subject of this Agreement.
(b) On and of the date hereof, immediately after giving effect to
the First Assignment and Assumption, the Assignee hereby sells, assigns and
transfers to the Trustee, on behalf of the Trust, all of its right, title and
interest in the Specified Mortgage Loans and all rights and obligations
related thereto as provided under the Purchase and Warranties Agreement to the
extent relating to the Specified Mortgage Loans, and the Trustee, on behalf of
the Trust, hereby accepts such assignment from the Assignee (the "Second
Assignment and Assumption"), and the Company hereby acknowledges the Second
Assignment and Assumption.
Recognition of the Company
--------------------------
2. The Company hereby acknowledges and agrees that from and after the
date hereof (i) the Trust under the Pooling and Servicing Agreement dated as
of September 1, 2006 (the "Pooling and Servicing Agreement") among the
Assignor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer") and securities administrator and the Trustee, will be the
owner of the Mortgage Loans, (ii) notwithstanding anything stated to the
contrary herein, the Company shall look solely to the Trust for performance of
any obligations of the Assignor insofar as they relate to the enforcement of
the representations, warranties and covenants with respect to the Mortgage
Loans, provided that it is understood and agreed that the Company shall look
to Assignor for performance of any obligations of the Assignor that have not
been assigned to Assignee and its successors as set forth herein, (iii) the
Trust (including the Trustee and, with respect to the servicing of the
Mortgage Loans, Xxxxx Fargo Bank, National
Association, as master servicer (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 Purchase and
Warranties Agreement, including, without limitation, the enforcement of the
document delivery requirements set forth in Section 6 of the Purchase and
Warranties Agreement, and shall be entitled to enforce all of the obligations
of the Company thereunder insofar as they relate to the Mortgage Loans, and
(iv) all references to the Purchaser (insofar as they relate to the rights,
title and interest and, with respect to obligations of the Purchaser, only
insofar as they relate to the enforcement of the representations, warranties
and covenants of the Company) under the Purchase and Warranties Agreement
insofar as they relate to the Mortgage Loans, shall be deemed to refer to the
Trust (including the Trustee and the Master Servicer acting on the Trust's
behalf). 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
Purchase and Warranties Agreement which amendment, modification, waiver or
other alteration would in any way affect the Mortgage Loans or the Company's
performance under the Purchase and Warranties Agreement with respect to the
Mortgage Loans without the prior written consent of the Master Servicer.
3. Notwithstanding any statement to the contrary in Section 2 above, the
Company shall and does hereby acknowledge that the indemnification provisions
set forth in the sixth paragraph of Section 9.03, Section 13 and Section 14.01
of the Purchase and Warranties Agreement shall be available to and for the
benefit of the Assignor, the Assignee and the Trust (including the Trustee and
the Master Servicer acting on the Trust's behalf), as provided in the Purchase
and Warranties Agreement.
Representations and Warranties of the Company
---------------------------------------------
4. The Company warrants and represents to 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 incorporation;
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 the Purchase and Warranties
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;
d. 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 Purchase and Warranties Agreement, or which,
either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its
obligations under this Agreement or the Purchase and Warranties
Agreement, and the Company is solvent.
e. Subject to such events or circumstances which may have occurred
or arisen since the related Closing Date, 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 (i) Section
9.01 of the Purchase and Warranties Agreement are true and correct as of
the date hereof as if such representations and warranties were made on
the date hereof and (ii) Section 9.02 of the Purchase and Warranties
Agreement are true and correct as of the related Closing Date.
Remedies for Breach of Representations and Warranties.
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5.
a. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the
Trustee and the Master Servicer acting on the Trust's behalf) in
connection with any breach of the representations and warranties made by
the Company set forth in Sections 3 and 4 hereof shall be as set forth
in Subsection 9.03 of the Purchase and Warranties Agreement as if they
were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein).
b. It is expressly understood and agreed by the parties hereto
that (i) this Assignment is executed and delivered by LaSalle, not
individually or personally but solely on behalf of the Trust, as the
assignee, in the exercise of the powers and authority conferred and
vested in it, as Trustee, pursuant to the Pooling and Servicing
Agreement, (ii) each of the representations, undertakings and agreements
herein made on the part of assignee is made and intended not as personal
representations, undertakings and agreements by LaSalle but is made and
intended for the purpose of binding only the Trust , (iii) nothing
herein contained shall be construed as creating any liability for
LaSalle, individually or personally, to perform any covenant (either
express or implied) contained herein and (iv) under no circumstances
shall LaSalle be personally liable for the payment of any indebtedness
or expenses of the Trust, or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by
the Trust under this Assignment and (v) all recourse for any payment
liability or other obligation of the assignee shall be had solely to the
assets of the Trust.
Representations and Warranties of Other Parties
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6.
a. The Assignee represents and warrants that it is a sophisticated
investor able to evaluate the risks and merits of the transactions
contemplated hereby, and that it has not relied in connection therewith
upon any statements or representations of the Assignor or the Company
other than those contained in the Purchase and Warranties Agreement or
this Agreement.
b. Each of the parties hereto (other than the Company) represents
and warrants that it is duly and legally authorized to enter into this
Agreement.
c. Each of the Assignor and Assignee represents and warrants that
this Agreement has been duly authorized, executed and delivered by it
and (assuming due authorization, execution and delivery thereof by each
of the other parties hereto) constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
Future Covenants of the Company
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7.
a. For the purpose of satisfying the reporting obligation under
the Exchange Act with respect to any class of asset-backed securities,
the Company shall (i) promptly provide the Depositor and the Securities
Administrator written notice substantially in the form of Exhibit B
hereto (A) any material litigation or governmental proceedings pending
against the Company, (B) any Event of Default under the terms of this
Agreement or any Purchase Agreement and (C) any merger, consolidation or
sale of substantially all of the assets of the Company and (ii) provide
to the Depositor and the Securities Administrator a description of such
proceedings, affiliations or relationships.
Miscellaneous
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8. Any notices or other communications permitted or required under the
Agreement to be made to the Assignor, Assignee, the Company, and the Trustee
shall be made in accordance with the terms of the Agreement and shall be sent
as follows:
In the case of the Assignee:
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-12XS
In the case of the Trustee:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services MSM 2006-12XS
In the case of the Company:
Quicken Loans, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxx
Fax: 000-000-0000
Email: XxxXxxxxxx@xxxxxxxxxxxx.xxx
9. 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.
10. 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.
11. This Agreement shall inure to the benefit of (i) the successors
and assigns of the parties hereto and (ii) the Trust (including
the Trustee acting on the Trust's behalf). 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.
12. Each of this Agreement and the Purchase and Warranties Agreement
shall survive the conveyance of the Mortgage Loans and the
assignment of the Purchase and Warranties Agreement (solely with
respect to the Mortgage Loans) by Assignor to Assignee and by
Assignee to the Trust and nothing contained herein shall supersede
or amend the terms of the Purchase and Warranties Agreement.
13. 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.
14. In the event that any provision of this Agreement conflicts with
any provision of the Purchase and Warranties Agreement with
respect to the Mortgage Loans, the terms of this Agreement shall
control.
15. 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 Purchase and Warranties Agreement.
16. The Assignee will hold information in confidence as set forth in
Section 32 of the Purchase and Warranties Agreement, provided such
information may be
disclosed to regulatory or administrative authorities or
attorneys, auditors or agents in the performance of the Pooling
and Servicing Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/ Xxxxxxx Xxx
------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx Xxx
------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
QUICKEN LOANS, INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President,
Capital Markets
Acknowledged and Agreed:
LASALLE BANK NATIONAL ASSOCIATION, as Trustee of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2006-12XS
By: /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
Title: Vice President
EXHIBIT A
Mortgage Loan Schedule
[see Schedule A to Pooling and Servicing Agreement]
EXHIBIT B
Additional Disclosure Notification
Xxxxx Fargo Bank, N.A., as Securities Administrator and Master Servicer
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate Trust Services - MSM 2006-12XS - SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-12XS
RE: **Additional Form [ ] Disclosure**Required
Ladies and Gentlemen:
In accordance with Section 7(a) of the Assignment, Assumption and
Recognition Agreement, dated as of [date], among Xxxxxx Xxxxxxx Capital I
Inc., as Depositor, Quicken Loans, Inc., Xxxxx Fargo Bank, National
Association, as Securities Administrator and Master Servicer, and LaSalle Bank
National Association as Trustee. The Undersigned hereby notifies you that
certain events have come to our attention that [will][may] need to be
disclosed on Form [ ].
Description of Additional Form [ ] Disclosure:
List of Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any inquiries related to this notification should be directed to [ ],
phone number: [ ]; email address: [ ].
[NAME OF PARTY]
as [role]
By: __________________
Name:
Title:
S
