Exhibit 99.12(a)
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EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, DATED
JULY 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
2006-11 (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
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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 July 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
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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 2006-11
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 2006-11
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
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Name: Xxxxxxx Xxx
Title: XX
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx Xxx
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Name: Xxxxxxx Xxx
Title: VP
QUICKEN LOANS, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: EVP, Capital Markets
Acknowledged and Agreed:
LASALLE BANK NATIONAL ASSOCIATION, as Trustee of Xxxxxx Xxxxxxx
Mortgage Loan Trust 2006-11
By: /s/ Ritz Xxxxx
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Name: Ritz Xxxxx
Title: VP
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 2006-11 - SEC REPORT PROCESSING
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-11
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:
