ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment"),
dated of February 8, 2002, is entered into among XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC. (the "Assignee"), NATIONAL BANK OF COMMERCE (the
"Assignor"), CENDANT MORTGAGE CORPORATION and XXXXXX'X GATE RESIDENTIAL MORTGAGE
TRUST (each being called a "Seller"), and CENDANT MORTGAGE CORPORATION in its
capacity as the servicer of loans (the "Servicer").
RECITALS
WHEREAS the Assignor and the Sellers have entered into a certain MORTGAGE
LOAN FLOW PURCHASE, SALE & SERVICING AGREEMENT dated as of February 2, 2001 (the
"Sale Agreement"), pursuant to which the Assignor has acquired certain Mortgage
Loans from the Sellers, and Servicer has agreed to service such Mortgage Loans;
and
WHEREAS the Assignee has agreed, on the terms and conditions contained
herein, to purchase from the Assignor certain Mortgage Loans (the "Specified
Mortgage Loans") which are listed on the mortgage loan schedule attached as
Exhibit I hereto;
WHEREAS, unless otherwise defined herein, all defined terms used herein
shall have the same meaning as defined in the Sale Agreement.
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) On and as of the date hereof, the Assignor hereby sells, assigns, and
transfers to the Assignee all of its right, title and interest in the
Specified Mortgage Loans and all rights of Assignor related thereto under the
Sale Agreement to the extent relating to the Specified Mortgage Loans.
Assignee hereby accepts such assignment from the Assignor. The Sellers hereby
acknowledges such assignment and assumption.
(b) 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
ownership interest in the Specified Mortgage Loans since the date of the
Assignor's acquisition of the Specified Mortgage Loans.
(c) The sole recourse of Assignee with respect to any Specified Mortgage
Loans under the Sale Agreement shall be against the Sellers and Servicer.
Assignee shall have no claims or recourse against Assignor except for
breaches of any representations, warranties or
covenants specifically made by Assignor under this Agreement. Assignor shall
have no liabilities with respect to any representations or warranties made by
Seller or Servicer in the Sale Agreement or any documents relating to the
Sale Agreement.
(d) Assignor shall be responsible for confirming that Assignee's interest
in the Specified Mortgage Loans has been registered with the Surety Bond
Issuer.
2. Recognition of Purchaser.
From and after the date hereof, both the Assignor, Servicer and the
Sellers shall note the transfer of the Specified Mortgage Loans to the Assignee
in their respective books and records and shall recognize the Assignee as the
owner of the Specified Mortgage Loans. Servicer shall service the Specified
Mortgage Loans for the benefit of the Assignee pursuant to the Sale Agreement.
It is the intention of the Sellers, the Servicer, the Assignee and the Assignor
that the Sale Agreement shall be binding upon and inure to the benefit of the
Assignee.
3. Representations and Warranties.
(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 Sellers or the Assignor other than those
contained in the Agreement or this Assignment.
(b) Each of the parties hereto represents and warrants as to such party
that: (i) such party is duly and legally authorized to enter into this
Assignment; and (ii) this Assignment has been duly authorized, executed and
delivered by such party; and (iii) this Assignment constitutes such party's
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).
4. Bringdown of Representations and Warranties. With respect to the
Specified Mortgage Loans, each of the Sellers and the Servicer hereby brings
down and remakes each representation and warranty in the Sale Agreement as of
the date hereof. The Assignee shall have recourse against the Sellers and the
Servicer for breaches of such remade representations and warranties in
accordance with the provisions of the Sale Agreement.
5. Continuing Effect. Except as contemplated hereby, the Agreement shall
remain in full force and effect in accordance with its terms.
6. 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.
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7. Notices. Any notices or other communications permitted or required
under the this Assignment or under any of the Sale Agreement to be made to
the Assignee shall be made in accordance with the terms of the Sale Agreement
and shall be sent to the Assignee as follows: Xxxxxx Capital, A Division of
Xxxxxx Brothers Holdings Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, XX, XX 00000, or to
such other address as may hereafter be furnished by the Assignee to the
parties in accordance with the provisions of the Sale Agreement. Notices to
other parties hereto shall be sent to the addresses of such parties as set
out in the Acquisition Agreement.
8. 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.
9. Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be held invalid for any
reason whatsoever, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions or
terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
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THIS ASSIGNMENT is made as of the date first written above.
NATIONAL BANK OF COMMERCE XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.
By: By:
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Print Name: Print Name:
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Title: Title:
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CENDANT MORTGAGE CORPORATION XXXXXX'X GATE RESIDENTIAL
(as Seller and Servicer) MORTGAGE TRUST
By: By:
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Print Name: Print Name:
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Title: Title:
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