ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated August 1, 2004,
between DLJ Mortgage Capital, Inc., a Delaware corporation ("Assignor"), and
Credit Suisse First Boston Mortgage Securities Corp., a Delaware corporation
("Assignee"):
For and in consideration of the assignment of the Mortgage Loans
and the Agreements (each, as defined below) from the Assignor to the Assignee
as of the date hereof, the Assignee shall (a) pay to the Assignor by wire
transfer of immediately available funds the net proceeds to the Assignor of
the sale of the CSFB Home Equity Pass-Through Certificates, Series 2004-FRE1,
less the amount initially deposited into the Basis Risk Reserve Fund pursuant
to the Pooling and Servicing Agreement dated as of August 1, 2004 (the
"Pooling and Servicing Agreement"), among the Assignor, as seller, the
Assignee, as depositor, Fremont Investment & Loan, as servicer, Xxxxx Fargo
Bank, N.A., as back-up servicer, The MurrayHill Company, as credit risk
manager, and U.S. Bank National Association, as trustee, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to
Assignee all of the right, title and interest of Assignor, as Purchaser, in,
to and under (a) those certain mortgage loans listed on Exhibit A attached
hereto (the "Mortgage Loans") and (b) those certain agreements listed on
Exhibit B attached hereto (the "Agreements") with respect to the Mortgage
Loans.
The Assignor specifically reserves and does not assign to the
Assignee hereunder any and all right, title and interest in, to and under and
all obligations of the Assignor with respect to any mortgage loans subject to
the Agreements which are not the Mortgage Loans set forth on Exhibit A
attached hereto and are not the subject of this Assignment and Assumption
Agreement.
2. The Assignor warrants and represents to, and covenants
with, the Assignee that:
a. The Assignor is the lawful owner of the Mortgage
Loans with the full right to transfer the Mortgage Loans free from any and
all claims and encumbrances whatsoever;
b. The Assignor has not received notice or, and has no
knowledge of, any offsets, counterclaims or other defenses with respect to
the Agreements or the Mortgage Loans;
c. The Assignor has not waived or agreed to any waiver
under, or agreed to any amendment or other modification of, the Agreements or
the Mortgage Loans, including without limitation the transfer of the
servicing obligations under the Agreements. The Assignor has no knowledge of,
and has not received notice of, any waivers under or amendments or other
modifications of, or assignments of rights or obligations under or defaults
under, the Agreements, or the Mortgage Loans; and
d. Neither the Assignor nor anyone acting on its behalf
has offered, transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, any interest in the Mortgage Loans or any other similar security to,
or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Mortgage Loans, any interest in the Mortgage Loans or any
other similar security from, or otherwise approached or negotiated with
respect to the Mortgage Loans, any interest in the Mortgage Loans or any
other similar security with, any person in any manner, or made by general
solicitation by means of general advertising or in any other manner, or taken
any other action which would constitute a distribution of the Mortgage Loans
under the Securities Act of 1933, as amended (the "1933 Act") or which would
render the disposition of the Mortgage Loans a violation of Section 5 of the
1933 Act or require registration pursuant thereto.
3. The Assignee warrants and represents to, and covenants
with, the Assignor that:
a. The Assignee is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate power and authority to
acquire, own and purchase the Mortgage Loans;
b. The Assignee has full corporate power and authority
to execute, deliver and perform under this Assignment and Assumption
Agreement, and to consummate the transactions set forth herein. The
execution, delivery and performance of the Assignee of this Assignment and
Assumption Agreement, and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action of the Assignee. This Assignment and Assumption Agreement has been
duly executed and delivered by the Assignee and constitutes the valid and
legally binding obligation of the Assignee enforceable against the Assignee
in accordance with its respective terms;
c. To the best of Assignee's knowledge, no material
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by the Assignee in connection with the execution, delivery or performance by
the Assignee of this Assignment and Assumption Agreement, or the consummation
by it of the transactions contemplated hereby;
d. The Assignee agrees to be bound, as Purchaser (as
defined in the Agreements), by all of the terms, covenants and conditions of
the Agreements and the Mortgage Loans, and from and after the date hereof,
the Assignee assumes for the benefit of the Assignor all of the Assignor's
obligations as Purchaser thereunder, with respect to the Mortgage Loans;
e. The Assignee understands that the Mortgage Loans have
not been registered under the 1933 Act or the securities laws of any state;
f. The purchase price being paid by the Assignee for the
Mortgage Loans is in excess of $250,000 and will be paid by cash remittance
of the full purchase price within sixty (60) days of the sale;
g. The Assignee is acquiring the Mortgage Loans for
investment for its own account only and not for any other person;
h. The Assignee considers itself a substantial,
sophisticated institutional investor having such knowledge and financial and
business matters that it is capable of evaluating the merits and the risks of
investment in the Mortgage Loans;
i. The Assignee has been furnished with all information
regarding the Mortgage Loans that it has requested from the Assignor;
j. Neither the Assignee nor anyone acting on its behalf
has offered, transferred, pledged, sold or otherwise disposed of the Mortgage
Loans, an interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of the Mortgage Loans, any interest in the Mortgage Loans or any other
similar security from, or otherwise approached or negotiated with respect to
the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other
action which would constitute a distribution of the Mortgage Loans under the
1933 Act or which would render the disposition of the Mortgage Loans a
violation of Section 5 of the 1933 Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize any
person to act, in such manner with respect to the Mortgage Loans; and
k. Either: (1) the Assignee is not an employee benefit
plan ("Plan") within the meaning of section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or a plan (also "Plan")
within the meaning of Section 4975(e)(1) of the Internal Revenue Code of
1986, as amended ("Code"), and the Assignee is not directly or indirectly
purchasing the Mortgage Loans on behalf of, investment manager of, as named
fiduciary of, as Trustee of, or with assets of, a Plan; or (2) the Assignee's
purchase of the Mortgage Loans will not result in a prohibited transaction
under section 406 of ERISA or Section 4975 of the Code.
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption to be executed by their duly authorized officers as of the date
first above written.
DLJ MORTGAGE CAPITAL, INC., CREDIT SUISSE FIRST BOSTON MORTGAGE
as Assignor SECURITIES CORP.,
as Assignee
By:/s/ Xxxxx Xxxx By:/s/ Xxxx X. Xxxxxx
Name: Xxxxx Xxxx Name: Xxxx X. Xxxxxx
Title: Vice President Title: Vice President
Taxpayer Identification Number: Taxpayer Identification Number:
00-0000000 00-0000000
EXHIBIT A
Mortgage Loan Schedule
[Attached as Schedule I to the Pooling and Servicing Agreement]
EXHIBIT B
List of Agreements
[On file with Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP ]
