ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.16a
Execution
Version
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated November 1, 2007,
(“Agreement”) among Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC,
successor by merger to 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 2007-15AR (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
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
Agreement, dated as of June 1, 2006, between the Assignor, as purchaser (the
“Purchaser”), and the Company, as seller, as amended by Amendment No. 1
to the Second Amended and Restated Mortgage Loan Purchase and Warranties
Agreement, dated as of December 1, 2006 (the “Purchase and Warranties
Agreement”), 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 November 1,
2007
(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. 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 and Section 34.03(e) of the Purchase and Warranties Agreement
are
true and correct as of the November 30, 2007 as if such representations and
warranties were made on November 30, 2007 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.
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
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).
Amendments
to the Purchase and Warranties Agreement
7. Section
34.03(e) of the Purchase and Warranties Agreement is hereby amended and restated
as follows:
“(e) The
Seller hereby represents and warrants to the Purchaser, its successors assigns
and affiliates, that Static Pool Information with respect to any mortgage loans
the Seller sold on a servicing-released basis is unknown and not available
to
the Seller without unreasonable effort or expense with respect to any period
of
time after the date servicing of such mortgage loans was transferred from the
Seller or its Affiliate to a successor servicer, other than such information
as
relates to the “original characteristics (within the meaning of Item
1105(a)(3)(iii) of Regulation AB) of such mortgage loans.”
Future
Covenants of the Company
8.
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
9. 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 2007-15AR
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 2007-15AR
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In
the case of the Company:
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Quicken
Loans, Inc.
00000
Xxxxxx Xxxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxx
Xxxxxxx
Fax: 000-000-0000
Email: XxxXxxxxxx@xxxxxxxxxxxx.xxx
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
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XXXXXX
XXXXXXX MORTGAGE CAPITAL HOLDINGS LLC,
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successor
by merger to Xxxxxx Xxxxxxx
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Mortgage
Capital Inc.
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By:_____________________________
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Name:
Title:
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XXXXXX
XXXXXXX CAPITAL I INC.
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By:_____________________________
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Name:
Title:
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QUICKEN
LOANS, INC.
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By:_____________________________
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Name:
Title:
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Acknowledged
and Agreed:
LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee of Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-15AR
By:
___________________________________
Name:
Title:
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 2007-15AR - SEC REPORT
PROCESSING
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxxx Mortgage Loan Trust 2007-15AR
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: [ ].
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[NAME
OF PARTY]
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as
[role]
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By:_____________________________
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Name:
Title:
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