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Document Preview Assignment, Assumption and Recognition Agreement |
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Title: |
Assignment, Assumption and Recognition Agreement |
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Entities: |
Bear Stearns Asset Backed Securities Inc.; Freddie Mac; JPMorgan Chase Bank; McGraw-Hill Companies Inc.; Washington Mutual Bank, FA; Wells Fargo Bank Minnesota, NA; Federal National Mortgage Association; EMC Mortgage Corporation; Bear Stearns Asset Backed Securities Inc |
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Date: |
2003 |
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Size: |
Preview shows 12KB of 301KB total |
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Price: |
$84 |
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ID: |
#178085 |
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the "Assignment and Assumption Agreement"), dated as of August 1, 2003, by EMC Mortgage Corporation, a Delaware corporation (the "Assignor"), JPMorgan Chase Bank, as trustee (the "Assignee") for the holders of Bear Stearns Asset Backed Securities Trust 2003-SD1, Asset-Backed Certificates, Series 2003-SD1 (the "Certificates"), Bear Stearns Asset Backed Securities, Inc. (the "Depositor"), Washington Mutual Bank, FA (the "Company" or a "Seller"), Washington Mutual Bank ("WMB" or a "Seller") and Washington Mutual Bank fsb ("WFSB", together with the Company and WMB, the "Sellers").
Whereas, the Assignor purchased certain mortgage loans listed on Exhibit A attached hereto (the "Mortgage Loans") from the Sellers pursuant to that certain Mortgage Loan Purchase and Sale Agreement (the "Mortgage Loan Purchase Agreement"), dated as of June 1, 2003, by and among the Company, WFSB, WMB and the Assignor and that certain Term Sheet dated as of June 27, 2003 by and among the Company, WMB, WFSB and the Assignor;
Whereas, the Assignor and the Company entered into that certain Servicing Agreement, dated as of June 1, 2003, (the "Servicing Agreement"), pursuant to which the Company agreed to service the Mortgage Loans;
Whereas, the Assignee intends to enter into a Pooling and Servicing Agreement, dated as of August 1, 2003 (the "Pooling and Servicing Agreement"), among the Assignor, the "Depositor, the Assignee and Wells Fargo Bank, National Association, as master servicer and securities administrator (the "Master Servicer"), in connection with a Pass-Through Transfer of the Mortgage Loans (the "Mortgage Loan Pass-Through Transfer") and other mortgage loans specified therein. Pursuant to the Pooling and Servicing Agreement, the Assignor is assigning the Mortgage Loans and its rights under the Servicing Agreement to the Depositor, which is assigning such Mortgage Loans and rights to the Assignee, and the Master Servicer will master service the Mortgage Loans in accordance with the terms thereof;
Whereas, in connection with the Mortgage Loan Pass-Through Transfer, Bear Stearns Asset Backed Securities Trust 2003-SD1 (the "Trust") intends to issue Certificates which are to be offered pursuant to a prospectus supplement (the "Prospectus Supplement") dated August 26, 2003 to a Base Prospectus dated June 24, 2003 (the "Base Prospectus" and together with the Prospectus Supplement, the "Prospectus"); and
Whereas, the Depositor has directed the Assignor to assign the Mortgage Loans and its rights under the Servicing Agreement to the Assignee on its behalf.
In consideration of the mutual promises and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree that the Mortgage Loans now serviced by the Company for the Assignor and its successors and assigns pursuant to the Servicing Agreement shall be subject to the terms of this Assignment and Assumption Agreement. Capitalized terms used herein but not otherwise defined shall have the meanings assigned to them in the Servicing Agreement.
Assignment and Assumption
1. Except as expressly provided for herein, the Assignor hereby grants, transfers and assigns to the Assignee all of its right, title and interest in, to and under (a) the Mortgage Loans, (b) the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans and (c) the Servicing Agreement with respect to the Mortgage Loans; provided, however, that the Assignor is not assigning to the Assignee any of its right, title and interest, to and under the Mortgage Loan Purchase Agreement or the Servicing Agreement with respect to any mortgage loan other than the Mortgage Loans listed on Exhibit A. Notwithstanding anything to the contrary contained herein, the Assignor specifically reserves and does not assign to the Assignee any right, title and interest in, to or under the representations and warranties contained in Section 3.1 and 3.2 of the Mortgage Loan Purchase Agreement and the Assignor is retaining the right to enforce the representations and warranties set forth in those sections against the Sellers. Except as is otherwise expressly provided herein, the Assignor makes no representations, warranties or covenants to the Assignee and the Assignee acknowledges that the Assignor has no obligations to the Assignee under the terms of the Servicing Agreement or otherwise relating to the transaction contemplated herein (including, but not limited to, any obligation to indemnify the Assignee).
Assignor acknowledges and agrees that upon execution of this Agreement, the Assignee shall become the "Owner" under the Servicing Agreement with respect to the Mortgage Loans, and all representations, warranties and covenants by the "Company" to the "Owner" under the Servicing Agreement with respect to the Mortgage Loans including, but not limited to, the rights to receive indemnification, shall accrue to Assignee by virtue of this Agreement on and after the date of this Assignment and Assumption Agreement.
Representations Warranties and Covenants
2. The Assignor warrants and represents to, and covenants with, the Assignee, the Company, WMB, WFSB and the Depositor that as of the date hereof:
| (a) | Attached hereto as Exhibit B is a true and accurate copy of the Servicing Agreement, which agreement is in full force and effect as of the date hereof and the provisions of which have not been waived, amended or modified in any respect, nor has any notice of termination been given thereunder; |
| (b) | Attached hereto as Exhibit C is a true and accurate copy of the Mortgage Loan Purchase Agreement, which agreement is in full force and effect as of the date hereof and the provisions of which have not been waived, amended or modified in any respect, nor has any notice of termination been given thereunder; |
| (c) | The Assignor was the lawful owner of the Mortgage Loans with full right to transfer the Mortgage Loans and any and all of its interests, rights and obligations under the Servicing Agreement as they relate to the Mortgage Loans, free and clear from any and all claims and encumbrances; and upon the transfer of the Mortgage Loans to the Assignee as contemplated herein, Assignee shall have good title to each and every Mortgage Loan, as well as any and all of the Assignee's interests, rights and obligations under the Servicing Agreement as they relate to the Mortgage Loans, free and clear of any and all liens, claims and encumbrances; |
| (d) | There are no offsets, counterclaims or other defenses available to the Company, WMB or WFSB with respect to the Mortgage Loans, the Mortgage Loan Purchase Agreement or the Servicing Agreement; |
| (e) | The Assignor has no knowledge of, and has not received notice of, any waivers under, or any modification of, any Mortgage Loan; |
| (f) | The Assignor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, and has all requisite power and authority to acquire, own and sell the Mortgage Loans; |
| (g) | The Assignor has full corporate power and authority to execute, deliver and perform its obligations under this Assignment and Assumption Agreement, and to consummate the transactions set forth herein. The consummation of the transactions contemplated by this Assignment and Assumption Agreement is in the ordinary course of the Assignor's business and will not conflict with, or result in a breach of, any of the terms, conditions or provisions of the Assignor's charter or by-laws or any legal restriction, or any material agreement or instrument to which the Assignor 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 Assignor or its property is subject. The execution, delivery and performance by the Assignor 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 on the part of the Assignor. This Assignment and Assumption Agreement has been duly executed and delivered by the Assignor and, upon the due authorization, execution and delivery by the Assignee, the Depositor, the Company, WMB and WFSB will constitute the valid and legally binding obligation of the Assignor enforceable against the Assignor 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; |
| (h) | 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 Assignor in connection with the execution, delivery or performance by the Assignor of this Assignment and Assumption Agreement, or the consummation by it of the transactions contemplated hereby. Neither the Assignor nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans or any interest in the Mortgage Loans, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Mortgage Loans, or any interest in the Mortgage Loans or otherwise approached or negotiated with respect to the Mortgage Loans, or any interest in the Mortgage Loans 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 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; and |
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