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EXHIBIT 99.3
[EXECUTION COPY]
ASSIGNMENT OF
MORTGAGE LOAN SALE AND SERVICING AGREEMENT
THIS ASSIGNMENT (the "Assignment"), dated December 23, 1998, is
hereby executed by and among NATIONSBANC MORTGAGE CAPITAL CORPORATION, a North
Carolina corporation (the "Assignor"), Bank of America, FSB, a federal savings
bank ("BA"), 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 BA
pursuant to the provisions of the Mortgage Loan Sale and Servicing Agreement (as
it relates to the Mortgage Loans, the "Sale Agreement"), dated December 22,
1998, between BA and the Assignor, a copy of which is attached hereto as Exhibit
B; and
WHEREAS, BA, 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, BA, 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. BA 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.
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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 BA 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 BA 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.
(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
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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 BA
and the Assignor, the Assignor's obligations as Purchaser
thereunder.
6. Recognition of Assignee and Assigns. From and after the date
hereof, BA shall recognize the Assignee as the owner of the Mortgage Loans,
having the status and rights of "Purchaser" under the Sale Agreement. BA
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, BA shall recognize the
Trust Fund as the owner of the Mortgage Loans, having the status and rights of
"Purchaser" under the Sale Agreement. BA 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 BA 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
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.
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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.
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IN WITNESS WHEREOF, the parties have caused this Assignment to be
executed by their duly authorized officers as of this 23rd day of December,
1998.
NATIONSBANC MORTGAGE CAPITAL
CORPORATION,
as Assignor
By: /s/ Xxxx X. XxXxxxxx
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Name: Xxxx X. XxXxxxxx
Title: Senior Vice President
NATIONSBANC XXXXXXXXXX FUNDING CORP.,
as Assignee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
BANK OF AMERICA, FSB,
as the original seller
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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EXHIBIT A
MORTGAGE LOAN SCHEDULE
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EXHIBIT B
COPY OF MORTGAGE LOAN SALE AND SERVICING AGREEMENT
