ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of February 11, 1999,
by and between Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc.,
having its offices at 3 World Financial Center, New York, New York 10285
("Assignor") and First Nationwide Mortgage Corporation, having an office at
0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx XX 00000 ("Assignee"):
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:
1. The Assignor hereby grants, transfers and assigns to Assignee, all of
the right, title and interest of Assignor, as initial Servicer (the "Initial
Servicer") with respect to the mortgage loans identified on Exhibit A hereto
(the "Mortgage Loans") under that certain Custodial Agreement, dated as of
February 1, 1993, as amended by (a) that certain Amendment to Custodial
Agreement with respect to Mortgage Loans secured by Co-op shares; (b) that
certain Amendment to Custodial Agreement with respect to FHA insured Mortgage
Loans; and (c) that certain Amendment Number 3 to Custodial Agreement dated as
of July 7, 1995 (the "Agreement"), by and between Xxxxxx Capital Corporation,
as owner and initial servicer, and U.S. Bank Trust, formerly known as First
Trust National Association (the "Custodian").
The Assignor specifically reserves any and all right, title and interest
and all obligations of the "Owner" under the Agreement and of the Assignor with
respect to any mortgage loans subject to the Agreement which are not the
Mortgage Loans set forth on Exhibit A 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 with respect to the Mortgage Loans:
a. The Assignor is assigning its interest as Initial Servicer under
the Agreement for the sole purpose of permitting the Assignee as servicer of
the Mortgage Loans, to act as Servicer under the Agreement; and
b. The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Agreement. The Assignor
has no knowledge of, and has not received notice of, any defaults, waivers
under or amendments or other modifications of, or assignments of rights or
obligations under the Agreement.
3. The Assignee warrants and represents to, and covenants with, the
Assignor and the Custodian pursuant to the Agreement that the Assignee agrees
to be bound by all of the terms, covenants and conditions of the Agreement
relating to the Initial Servicer applicable after the Closing Date, and from
and after the Closing Date, the Assignee assumes for the benefit of the
Assignor all of the Assignor's obligations as Initial Servicer thereunder.
4. Nothing herein shall obligate the Assignee to pay any of the fees and
expenses of the Custodian, which shall remain the sole obligation of the
Assignor, nor shall the Assignee make or be obligated to make any
representation and warranties regarding the Mortgage Loans in this Assignment
and Assumption Agreement or the Agreement. All expenses incurred by the
Custodian, at the request of the Assignee, which are not contemplated by the
Custodial Agreement or that certain Seller's Warranties and Servicing Agreement
dated February 1, 1999 between Assignor and Assignee and which are not approved
by the Assignor shall be paid the Assignee.
5. With respect to the Mortgage Loans, by acknowledging below, the
Custodian hereby agrees that it will honor a request of release made by the
Assignee on a form acceptable to FNMA in lieu of the form attached to the
Custodial Agreement as Exhibit 3 thereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
(Assignor)
By:/s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
FIRST NATIONWIDE MORTGAGE
CORPORATION
(Assignee)
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
ACKNOWLEDGED BY:
U.S. BANK TRUST
(Custodian)
By:/s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
