ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
Exhibit
99.11a
EXECUTION
COPY
ASSIGNMENT,
ASSUMPTION
AND
RECOGNITION AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION
AND
RECOGNITION AGREEMENT, dated February 1, 2007, (“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 2007-5AX (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
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 February
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. 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.
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).
Future
Covenants of the Company
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
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 2007-5AX
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 2007-5AX
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.
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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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10.
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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.
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11.
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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.
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12.
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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.
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13.
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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.
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14.
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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.
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15.
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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.
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16.
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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.
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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.
XXXXXX XXXXXXX MORTGAGE
CAPITAL
INC.
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By: | /s/ Xxxxxxx Xxx | |||
Name: | Xxxxxxx Xxx | |||
Title: | Vice President |
XXXXXX XXXXXXX CAPITAL I
INC.
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By: | /s/ Xxxxxxx Xxx | |||
Name: | Xxxxxxx Xxx | |||
Title: | Vice President |
QUICKEN LOANS,
INC.
|
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | EVP, Capital Markets |
Acknowledged
and Agreed:
LASALLE
BANK NATIONAL ASSOCIATION, as Trustee of Xxxxxx Xxxxxxx
Mortgage
Loan Trust 2007-5AX
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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 2007-5AX -
SEC
REPORT PROCESSING
Xxxxxx
Xxxxxxx Capital I Inc.
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx Mortgage Loan Trust 2007-5AX
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]
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as
[role]
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By:
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Name:
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Title:
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