Exhibit 99.8a
EXECUTION COPY
ASSIGNMENT AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of September 1, 2006, is entered into among Xxxxxx
Xxxxxxx Capital I Inc., a Delaware corporation (the "Depositor" or the
"Assignee"), Xxxxxx Xxxxxxx Mortgage Capital Inc. ("MSMCI" or the "Assignor"),
Opteum Financial Services LLC, as seller (the "Seller"), and acknowledged by
LaSalle Bank, National Association, 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
-------------------------
1. 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, that certain Mortgage Loan Purchase and Warranties Agreement (the
"Purchase Agreement"), dated as of August 1, 2006, between the Assignor,
as purchaser (the "Purchaser"), and the Company, as seller, solely
insofar as the Purchase Agreement relates to the Mortgage Loans.
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
Purchase Agreement which are not the Mortgage Loans set forth on the Mortgage
Loan Schedule and are not the subject of this Agreement or (ii) the rights of
the Purchaser under Section 9.04 of the Purchase Agreement.
Recognition of the Company
--------------------------
2. 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
Purchase Agreement (solely to the extent set forth herein) and this
Agreement to the Trustee on behalf of the Trust created pursuant to a
Pooling and Servicing Agreement, dated as of September 1, 2006 (the
"Pooling Agreement"), among the Assignee, the Assignor, and the 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, (ii) the
Company shall look solely to the Trust for performance of any
obligations of the Assignor insofar as they relate to the Mortgage
Loans, (iii) the Trust (including the Trustee and the 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 Agreement, including, without limitation, the enforcement of
the document delivery requirements set forth in Section 6 of the
Purchase Agreement, and shall be entitled to enforce all of the
obligations of the Company thereunder insofar as they relate to the
Mortgage
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Loans, and (iv) all references to the Purchaser, the Custodian or the
Bailee under the Purchase Agreement insofar as they relate to the
Mortgage Loans, shall be deemed to refer to the Trust (including the
Trustee and the 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
Agreement which amendment, modification, waiver or other alteration
would in any way affect the Mortgage Loans or the Company's performance
under the Purchase Agreement with respect to the Mortgage Loans without
the prior written consent of the Trustee.
Representations and Warranties of the Company
---------------------------------------------
3. 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
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; and
(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 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
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obligations under this Agreement or the Purchase Agreement, and
the Company is solvent.
4. Pursuant to Section 13 of the Purchase Agreement, the Company
hereby restates, as of the Closing Date (as defined in the Pooling and
Servicing Agreement), the representations and warranties set forth in
sections 9.01 and 9.02 of the Agreement, with respect to each of the
Mortgage Loans that were sold by it under the Agreement, subject to such
events or circumstances which may have occurred or arisen since the
related Closing Date (as defined in the Agreement), to and for the
benefit of the Depositor, the securities administrator, the Trustee and
the Trust, and by this reference incorporates such representations and
warranties herein, as of such Closing Date (as defined in the Pooling
and Servicing Agreement).
Remedies for Breach of Representations and Warranties
-----------------------------------------------------
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor, the Assignee and the Trust (including the
Trustee and the 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 Agreement as if they were set forth
herein (including without limitation the repurchase and indemnity
obligations set forth therein).
Amendments to the Purchase Agreement
------------------------------------
6. The following amendments are made to the Purchase Agreement:
(a) Subsection 32.03(d) of the Purchase Agreement is hereby amended
and restated in its entirety as follows:
"For the purpose of satisfying its reporting obligation
under the Exchange Act with respect to any class of
asset-backed securities, the Seller shall (or shall cause
each Third-Party Originator to) (i) provide the Purchaser,
the Depositor and the Securities Administrator written
notice substantially in the form of Exhibit J hereto of (A)
any material litigation or governmental proceedings pending
against the Seller or any Third-Party Originator and (B) any
affiliations or relationships that develop following the
closing date of a Securitization Transaction between the
Seller or any Third-Party Originator and any of the parties
specified in clause (D) of paragraph (a) of this Section
(and any other parties identified in writing by the
requesting party) with respect to such Securitization
Transaction, and (ii) provide to the Purchaser, the
Depositor and the Securities Administrator a description of
such proceedings, affiliations or relationships.
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(b) Exhibit A hereto is hereby added to the Purchase Agreement as
Exhibit J.
Notices
-------
7. Any notices or other communications permitted or required under
the Purchase Agreements to be made to MSMCI, the Depositor, the Trustee
and the Seller shall be made in accordance with the terms of the
Purchase Agreements and shall be sent as follows:
In the case of MSMCI:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-12XS
With a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel's Office
In the case of the Depositor:
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 Seller:
Opteum Financial Services LLC
X000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Senior Vice President
Fax: 000-000-0000
Email: xxxxxxx@xxxxxx.xxx
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or to such other address as may hereafter be furnished by the
Depositor and the Trustee to the parties in accordance with the provisions of
the Purchase Agreements.
Miscellaneous
-------------
8. 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.
9. 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.
10. This Agreement shall inure to the benefit of (i) the
successors and assigns of the parties hereto and (ii) the Trust
(including the Trustee and the Servicer 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.
11. Each of this Agreement and the Purchase Agreement shall
survive the conveyance of the Mortgage Loans and the assignment of the
Purchase Agreement (to the extent assigned hereunder) by Assignor to
Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the Purchase Agreement.
12. 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.
13. In the event that any provision of this Agreement conflicts
with any provision of the Purchase Agreement with respect to the
Mortgage Loans, the terms of this Agreement shall control.
14. 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 Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
effective as of the day and year 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
OPTEUM FINANCIAL SERVICES LLC
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: SVP, Capital Markets Mgr.
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
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Exhibit 99.8a
EXECUTION COPY
EXHIBIT A TO ASSIGNMENT AND RECOGNITION AGREEMENT
Mortgage Loan Schedule
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EXHIBIT A
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 32.03(d) of the Mortgage Loan Purchase and
Warranties Agreement between Xxxxxx Xxxxxxx Mortgage Capital Inc. and Opteum
Financial Services LLC, dated as of August 1, 2006, 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:
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