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Exhibit 10.38.3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement (this
"Agreement"), effective as of January 20, 2006, among DEUTSCHE BANK
NATIONAL
TRUST COMPANY ("Deutsche"), SOVEREIGN BANK (the "Bank"), HANOVER
CAPITAL
MORTGAGE HOLDINGS, INC. ("Holdings") and HANOVER CAPITAL PARTNERS
2, LTD. (the
"Successor", and together with Deutsche, Holdings and the Bank
collectively, the
"Parties" and individually, a "Party").
RECITALS
A. Deutsche, the Bank, Holdings and Hanover Capital Partners,
Ltd.
("Partners") executed and are parties to a Custodial Agreement
dated as of June
27, 2005 (the "Custodial Agreement"), a true and correct copy of
which Custodial
Agreement is attached hereto as Exhibit A.
B. By letter agreement dated as of December 22, 2005 by and among
the
Bank, Partners and Holdings (the "Consent Agreement"), the Bank
conditionally
consented to a merger of Partners and Hanover Capital Partners 2,
Inc.
("Partners 2") into HanoverTrade, Inc. ("Trade") and to a change of
Trade's name
to "Hanover Capital Partners 2, Ltd.", the name of the Successor
(the "Plan"). A
true and correct copy of the Consent Agreement is attached hereto
as Exhibit B.
C. Holdings and the Successor have advised the Bank that the Plan
has
been effected and the Parties desire to document one of the
conditions
subsequent to the Bank's consent to the Plan, being identified in
Section 3(d)
of the Consent Agreement as an agreement evidencing the assignment
to and
assumption by the Successor of Partners' rights and duties under
the Custodial
Agreement.
For good and valuable consideration the receipt and sufficiency
of
which hereby are acknowledged, and of the premises and mutual
covenants herein
contained, the Parties, ending to be legally bound, hereby agree as
follows:
INCORPORATION
1. The foregoing defined terms and Recitals are incorporated in
this
Agreement by reference.
ASSIGNMENT AND ASSUMPTION
2. Holdings and the Successor hereby represent, warrant and
covenant
to Deutsche and the Bank that, by operation of the merger in
connection with the
Plan, Partners has, as of January 1, 2006, granted, transferred,
assigned and
delegated to the Successor all of the right, title, interest and
obligations of
Partners, as one of the entities comprising the Seller, in, to and
under the
Custodial Agreement and that Successor has, as of January 1, 2006
assumed from
Partners all of the right, title, interest and obligations of
Partners, as one
of the entities comprising the Seller, in, to and under the
Custodial Agreement.
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REPRESENTATIONS AND WARRANTIES
3. Each of Holdings and the Successor represent and warrant to
Deutsche and the Bank as of the date hereof that:
(a) an Agreement and Plan of Merger has been duly authorized
and
entered into by and among Partners, Partners 2 and Trade (the
"Merger
Agreement");
(b) the Merger Agreement is in full force and effect;
(c) the
provisions of the Merger Agreement have not been waived,
amended or modified in any respect;
(d) the copy of the Certificate of Merger attached hereto as
Exhibit C, is a true, correct and complete copy of the Certificate
of Merger
filed December 29, 2005, with the Secretary of State of the State
of Delaware
(the "Delaware Certificate");
(e) the copy of the Certificate of Merger attached hereto as
Exhibit D is a true, correct and complete copy of the Certificate
of Merger
filed December 29, 2005 with the Secretary of State of the State of
New York
(the "New York Certificates" and together with the Delaware
Certificate
collectively, the "Certificates");
(f) All steps required to change Trade's name to "Hanover
Capital
Partners 2, Ltd." have been taken and such name change is complete
and final;
(g) the Successor is a business corporation duly organized and
validly existing under the laws of the State of Delaware and has
all requisite
corporate power and authority to assume Partner's rights and
obligations under
the Custodial Agreement;
(h) the Successor's organizational identification nu
