ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
FOR
MORTGAGE LOAN FLOW PURCHASE, SALE & SERVICING AGREEMENT
AND
ADDITIONAL COLLATERAL SERVICING AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated as of
December 22, 2003 (the "Assignment"), is entered into among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (the "Assignor"), Cendant Mortgage Corporation
("Cendant"), as the servicer (the "Servicer"), and Xxxxx Fargo Bank Minnesota,
National Association (the "Assignee") as Trustee under a Trust Agreement dated
as of December 1, 2003 (the "Trust Agreement"), among the Assignor, as
Depositor, and Xxxxx Fargo Bank Minnesota, National Association, as Trustee.
RECITALS
WHEREAS, RWT Holdings, Inc., ("RWT Holdings"), the Sellers (as defined
below) and the Servicer have entered into a certain Mortgage Loan Flow Purchase,
Sale & Servicing Agreement, dated as of August 1, 2002, with RWT Holdings as
purchaser, Cendant as servicer and seller, Xxxxxx'x Gate Residential Mortgage
Trust (formerly known as Cendant Residential Mortgage Trust) as seller, (Cendant
and Xxxxxx'x Gate Residential Mortgage Trust, together, the "Sellers"), and
Redwood Trust, Inc., as guarantor, (as amended or modified to the date hereof,
the "Flow Purchase and Servicing Agreement"), and the Servicer has agreed to
service mortgage loans ("Mortgage Loans") under the Flow Purchase and Servicing
Agreement. In addition, certain of the Mortgage Loans are subject to the
Additional Collateral Servicing Agreement, dated as of August 1, 2002 (the
"Additional Collateral Agreement" and, together with the Flow Purchase and
Servicing Agreement, the "Agreements"), between RWT Holdings and the Servicer
and, notwithstanding anything to the contrary, Servicer will service the
Mortgage Loans that are subject to the Additional Collateral Agreement under the
Additional Collateral Agreement; and
WHEREAS, RWT Holdings has acquired certain Mortgage Loans separately
from Xxxxxxx Xxxxx Credit Corporation, and not from Cendant, (the "Specified
Mortgage Loans") which are listed on the mortgage loan schedule attached as
Exhibit I hereto (the "Specified Mortgage Loan Schedule") and Cendant has agreed
to service the Specified Mortgage Loans pursuant to the Agreements; and
WHEREAS, RWT Holdings has previously sold, assigned and transferred all
of its right, title and interest in the Specified Mortgage Loans listed on the
Specified Mortgage Loan Schedule and its rights under the Agreements with
respect to the Specified Mortgage Loans to Sequoia Residential Funding, Inc.
("Sequoia"); and
WHEREAS, Sequoia has previously sold, assigned and transferred all of
its right, title and interest in the Specified Mortgage Loans and its rights
under the Agreements with respect to the Specified Mortgage Loans to the
Assignor; and
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WHEREAS, the parties hereto have agreed that the Specified Mortgage
Loans shall be subject to the terms of this Assignment.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the parties agree as follows:
1. Assignment and Assumption.
(a) Effective on and as of the date hereof, the Assignor
hereby pledges, assigns and transfers to the Assignee all of its right, title
and interest in the Specified Mortgage Loans and all of its rights (but none of
the Purchaser's representations, warranties or obligations) provided under the
Agreements to the extent relating to the Specified Mortgage Loans, the Assignee
hereby accepts such assignment from the Assignor, and the Servicer hereby
acknowledges such assignment and assumption.
(b) Effective on and as of the date hereof, the Assignor
represents and warrants to the Assignee that the Assignor has not taken any
action that would serve to impair or encumber the Assignee's interest in the
Specified Mortgage Loans since the date of the Assignor's acquisition of the
Specified Mortgage Loans.
2. Recognition of the Assignee.
From and after the date hereof, subject to Section 3 below, the
Servicer shall recognize the Assignee as the holder of the rights and benefits
of the Purchaser with respect to the Specified Mortgage Loans and the Servicer
will service the Specified Mortgage Loans for the Assignee as if the Assignee
and the Servicer had entered into separate servicing agreements for the
servicing of the Specified Mortgage Loans in the form of the Flow Purchase and
Servicing Agreement and the Additional Collateral Agreement (each as amended
hereby) with the Assignee as the Purchaser thereunder, the terms of which
Agreements are incorporated herein by reference and amended hereby. It is the
intention of the parties hereto that this Assignment will be a separate and
distinct agreement, and the entire agreement, between the parties hereto to the
extent of the Specified Mortgage Loans and shall be binding upon and for the
benefit of the respective successors and assigns of the parties hereto.
3. Representations and Warranties.
(a) Each of the parties hereto represents and warrants
that it is duly and legally authorized to enter into this Assignment.
(b) Each of the parties hereto represents and warrants
that this Assignment 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).
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4. Continuing Effect.
Except as contemplated hereby, the Agreements shall remain in full
force and effect in accordance with their terms.
5. Governing Law.
This Assignment and the rights and obligations hereunder shall be
governed by and construed in accordance with the internal laws of the State of
New York.
6. Notices.
Any notices or other communications permitted or required under the
Agreements to be made to the Assignor and Assignee shall be made in accordance
with the terms of the Agreements and shall be sent to the Assignor and Assignee
as follows:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, National Association
X.X. Xxx 00
Xxxxxxxx, XX 00000
(or, if by overnight delivery)
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile Number: 000-000-0000
or to such other address as may hereafter be furnished by the Assignor or
Assignee to the other parties in accordance with the provisions of the
Agreements.
7. Counterparts.
This Assignment may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same instrument.
8. Definitions.
Any capitalized term used but not defined in this Assignment has the
same meaning as in the Agreements.
9. REMIC Election.
The Servicer acknowledges, for purposes of determining its obligations
under Section 5.13 of the Flow Purchase and Servicing Agreement, that a REMIC
election is to be made with respect to the Specified Mortgage Loans.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
the day and year first above written.
ASSIGNOR:
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.
By:____________________________________________________
Name:__________________________________________________
Title:_________________________________________________
ASSIGNEE:
XXXXX FARGO BANK MINNESOTA,
N. A., not in its individual capacity, but solely
as trustee for the Xxxxxxx Xxxxx Mortgage Investors
Trust, Series MLCC 2003-H
By:____________________________________________________
Name:__________________________________________________
Title:_________________________________________________
SERVICER:
CENDANT MORTGAGE CORPORATION
By:____________________________________________________
Name:__________________________________________________
Title:_________________________________________________
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EXHIBIT I
SPECIFIED MORTGAGE LOAN SCHEDULE
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