1
[EXECUTION COPY]
ASSIGNMENT OF
MORTGAGE LOAN SALE AND SERVICING AGREEMENT
THIS ASSIGNMENT (the "Assignment"), dated September 29, 1998, is
hereby executed by and among NATIONSBANC MORTGAGE CAPITAL CORPORATION, a North
Carolina corporation (the "Assignor"), NATIONSBANC MORTGAGE CORPORATION, a Texas
corporation (the "Company"), and NATIONSBANC XXXXXXXXXX FUNDING CORP., a
Delaware corporation (the "Assignee").
WITNESSETH:
WHEREAS, the Assignor desires to sell to the Assignee, and the
Assignee desires to purchase from the Assignor, the mortgage loans (the
"Mortgage Loans") listed on Exhibit A hereto (the "Mortgage Loan Schedule"); and
WHEREAS, the Assignor purchased the Mortgage Loans from the Company
pursuant to the provisions of the Mortgage Loan Sale and Servicing Agreement (as
it relates to the Mortgage Loans, the "Sale Agreement"), dated September 24,
1998, between the Company and the Assignor, a copy of which is attached hereto
as Exhibit B; and
WHEREAS, the Company, the Assignor and the Assignee desire to provide
for the conveyance of the Mortgage Loans and the assignment of the Sale
Agreement to the Assignee;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, the
Assignor and the Assignee agree as follows:
1. Certain Defined Terms. Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Sale Agreement.
2. Assignment, Assumption and Release. For good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Assignor hereby grants, transfers and assigns to the Assignee all of the right,
title and interest of the Assignor, as "Purchaser," in, to and under the Sale
Agreement and the Mortgage Loans. The Assignee hereby assumes all of the
Assignor's right, title, interest and obligations with respect to the Mortgage
Loans and the Sale Agreement from and after the date hereof. The Assignor is
hereby relieved and released of all of its obligations under the Sale Agreement
from and after the date hereof.
3. Sale Agreement. The Company and the Assignor warrant and represent
that attached hereto as Exhibit B is a true, accurate and complete copy of the
Sale Agreement, which Sale Agreement is in full force and effect as of the date
hereof and which has not been amended or modified in any respect nor has any
notice of termination been given thereunder.
2
4. Assignor Warranties. 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 and the Sale
Agreement free from any and all claims and encumbrances whatsoever.
(b) The Assignor has not received notice of, and has no
knowledge of, any offsets, counterclaims or other defenses available
to the Company with respect to the Sale Agreement.
(c) The Assignor has not waived or agreed to any waiver
under, or agreed to any amendment or other modification of, the Sale
Agreement or the Mortgage Loans, including without limitation the
transfer of the servicing obligations under the Sale Agreement. The
Assignor has no knowledge of, and has not received notice of, with
respect to the Mortgage Loans, any waivers under or amendments or
other modifications of, or assignments of rights or obligations
under, or defaults under, the Sale Agreement.
(d) The Assignor is a corporation duly organized, validly
existing and in good standing under the laws of North Carolina, and
has all requisite corporate power and authority to acquire, own and
purchase the Mortgage Loans.
(e) The Assignor has full corporate power and authority to
execute, deliver and perform under this Assignment, and to consummate
the transactions set forth herein. The execution, delivery and
performance of the Assignor of this Assignment, and the consummation
by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action of the Assignor. This
Assignment has been duly executed and delivered by the Assignor and
constitutes the valid and legally binding obligation of the Assignor
enforceable against the Assignor in accordance with its respective
terms.
(f) No material consent, approval, order or authorization
of, of 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, or the consummation by it of the
transactions contemplated hereby.
5. Assignee Warranties and Covenants. The Assignee warrants and
represents to, and covenants with, the Assignor and the Company that:
(a) The Assignee is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, and has all
requisite corporate power and authority to acquire, own and purchase
the Mortgage Loans.
2
3
(b) The Assignee has full corporate power and authority to
execute, deliver and perform under this Assignment, and to consummate
the transactions set forth herein. The execution, delivery and
performance of the Assignee of this Assignment, and the consummation
by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action of the Assignee. This
Assignment 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) No material consent, approval, order or authorization
of, of 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, or the consummation by it of the
transactions contemplated hereby.
(d) The Assignee agrees to be bound, as "Purchaser," by all
the terms, covenants and conditions of the Sale Agreement and the
Mortgage Loans, and from and after the date hereof, the Assignee
assumes, for the benefit of each of the Company and the Assignor, the
Assignor's obligations as Purchaser thereunder.
6. Recognition of Assignee and Assigns. From and after the date
hereof, the Company shall recognize the Assignee as the owner of the Mortgage
Loans, having the status and rights of "Purchaser" under the Sale Agreement. The
Company acknowledges that, in order to effect a securitization of the Mortgage
Loans, the Assignee intends to transfer the Mortgage Loans to a trust fund (the
"Trust Fund"). From and after the date of any such transfer, the Company shall
recognize the Trust Fund as the owner of the Mortgage Loans, having the status
and rights of "Purchaser" under the Sale Agreement. The Company further
acknowledges that such Trust Fund shall be an intended third-party beneficiary
of this Assignment and of the Sale Agreement, having the right to enforce
directly against the Company the provisions hereof and thereof.
7. Ratification of Sale Agreement. Except as expressly set forth
herein, all terms and provisions of the Sale Agreement are hereby ratified,
affirmed and remain in full force and effect unmodified hereby.
8. Successors and Assigns. The provisions of this Assignment shall be
binding upon and inure to the benefit of the respective successors and assigns
of the parties hereto.
9. Counterparts. This Assignment may be executed simultaneously in
any number of counterparts. Each counterpart shall be deemed to be an original,
and all such counterparts shall constitute one and the same instrument.
10. Governing Law. EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW,
THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
3
4
REGARD TO THE CONFLICTS OF LAWS PROVISIONS OF NEW YORK OR ANY OTHER
JURISDICTION.
11. Amendment. This Agreement may be amended from time to time by
written agreement signed by the parties hereto.
12. Survival. This Assignment shall survive the conveyance of the
Mortgage Loans and the assignment of the Sale Agreement by (a) the Assignor to
the Assignee and (b) by the Assignee to the Trust Fund as contemplated in
Section 6 above.
13. Intention of the Parties. It is the intention of the parties that
the Assignee is purchasing, and the Assignor is selling, the Mortgage Loans and
not a debt instrument of the Assignor or another security. Accordingly, the
parties hereto each intend to treat the transaction for federal income tax
purposes as a sale by the Assignor, and a purchase by the Assignee, of the
Mortgage Loans.
It is not the intention of the parties that such conveyances be
deemed a pledge thereof. However, in the event that, notwithstanding the intent
of the parties, such assets are held to be the property of the Assignor or if
for any other reason this Agreement is held or deemed to create a security
interest in either such assets, then (i) this Agreement shall be deemed to be a
security agreement within the meaning of the Uniform Commercial Code of the
State of New York and (ii) the conveyances provided for in this Agreement shall
be deemed to be an assignment and a grant by the Assignor to the Assignee of a
security interest in all of the assets transferred, whether now owned or
hereafter acquired.
4
5
IN WITNESS WHEREOF, the parties have caused this Assignment to be
executed by their duly authorized officers as of this 29th day of September,
1998.
NATIONSBANC MORTGAGE CAPITAL CORPORATION,
as Assignor
By: /s/ Xxxx X. XxXxxxxx
--------------------------------
Name: Xxxx X. XxXxxxxx
--------------------------------
Title: Senior Vice President
--------------------------------
NATIONSBANC XXXXXXXXXX FUNDING CORP.,
as Assignee
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Senior Vice President
--------------------------------
NATIONSBANC MORTGAGE CORPORATION,
as the Company
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
5
6
[EXECUTION COPY]
EXHIBIT A
MORTGAGE LOAN SCHEDULE
7
[EXECUTION COPY]
EXHIBIT B
COPY OF MORTGAGE LOAN SALE AGREEMENT
