EXHIBIT 10.99
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement (the "Agreement") is
made and entered into on September 30, 1998, by Countrywide Home Loans, Inc., a
New York corporation, having an address at 0000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Seller"), First Federal Savings and Loan
Association of San Xxxxxxx Valley, having an address at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000-0000 (the "Purchaser") and Pan American
Bank, FSB, having an address at 000 Xxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000
(the "Company").
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 as follows:
1. Assignment and Assumption. Except as expressly provided for herein, the
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Seller hereby grants, transfers and assigns to the Purchaser on September 30,
1998 (the "Closing Date") (a) all of its right, title and interest as
"Purchaser" in, to and under that certain Mortgage Loan Purchase and Interim
Servicing Agreement dated as of September 30, 1998, and duly executed by the
Company and the Seller (attached hereto as Exhibit A, the "Purchase
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Agreement"), (b) all of its right, title and interest in and to the each of
the mortgage loans identified in Exhibit B hereto (the "Mortgage Loans"), and
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(c) all servicing rights relating to the Mortgage Loans (the "Servicing
Rights"). Except for the provisions pertaining to the payment of the
purchase price, the Purchaser hereby assumes all of the Seller's obligations
as "Purchaser" under the Purchase Agreement from and after the date hereof,
and the Seller shall be relieved and released by the Company of all of its
obligations under the Purchase Agreement from and after the date hereof.
Except as is otherwise expressly provided herein, the Seller makes no
representations, warranties or covenants to the Purchaser and the Purchaser
acknowledges that the Seller has no obligations to the Purchaser under the
terms of the Purchase Agreement or otherwise relating to the transaction
contemplated herein (including but not limited to any obligation to
repurchase any of the Mortgage Loans or to indemnify the Purchaser).
2. Consideration. In consideration for the transfers and assignments set forth
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in paragraph 1 of this Agreement, upon receipt by the Purchaser of a
certification, issued by that custodian designated by the Purchaser, in form
and substance reasonably acceptable to the Purchaser and stating that all
Mortgage Loan Documents (as defined in the Purchase Agreement) have been
received by such custodian, the Purchaser shall pay to the Seller the amounts
referenced in that certain funding schedule dated as of September 30, 1998
and duly executed by the Seller and the Purchaser (the "Purchase Price").
The Purchaser agrees to wire the agreed upon Purchase Price to the Seller to
the account designated below:
Bank of New York
ABA - 000000000
Countrywide Home Loans
ACCT - 8900038632
REF - Xxxxxx Xxxxxx - First Federal (San Xxxxxxx)
Notwithstanding the foregoing, in the event the Purchaser does not receive
such certification and wire the funds on or before three (3) Business Days
following the Closing Date, the Purchaser shall sell, convey, transfer and
assign to the Seller on the fourth (4th) Business Day following the Closing
Date all right, title and interest in and to the Mortgage Loans, the Servicing
Rights, the Mortgage Loan Documents and the Escrow Accounts relating to the
Mortgage Loans. In such event, the Seller shall be entitled to all
collections and recoveries and interest received or applied to any Mortgagor's
account after the Cut-off Date (as defined in the Purchase Agreement).
3. Recognition of the Purchaser by the Company. From and after the date hereof,
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the Company shall recognize the Purchaser as the owner of the Mortgage Loans
and the "Purchaser" under the Purchase Agreement.
4. Servicing of the Mortgage Loans. From and after the date hereof, the Company
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shall interim service the Mortgage Loans for the Purchaser in accordance with
the terms and conditions of the Purchase Agreement, as if the Purchaser and
Company had entered into the Purchase Agreement. In consideration therefor,
the Purchaser shall pay the Company the interim servicing fee set forth in
Section 4.1 of the Purchase Agreement; provided, however, that the Seller
shall pay to the Purchaser the interim servicing fee for the second thirty
(30) day period following the Closing Date. The address of the Purchaser set
forth in Section 6.1 of the Purchase Agreement shall be changed to read as
follows:
First Federal Savings and Loan Association of San Xxxxxxx Valley
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxxxx
5. Status of Purchase Agreement. The Company and the Seller represent and
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warrant that (a) the Purchase Agreement is in full force and effect as of the
date hereof, (b) the Purchase Agreement has not been amended or modified in
any respect, and (c) there has been no waiver or any agreement to waive any
provision, nor has any notice of termination been given, under the Purchase
Agreement.
6. No Claims. The Company represents and warrants that it has no offsets,
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counterclaims or other defenses available to it with respect to the Purchase
Agreement.
7. Covenants, Representations and Warranties of the Seller. The Seller
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represents and warrants to, and covenants with, the Purchaser that:
a. The Seller is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, and has
all requisite corporate power and authority to acquire, own and sell the
Mortgage Loans;
b. The Seller has full corporate power and authority to execute, deliver and
perform under this Agreement, and to consummate the transactions set forth
herein. The execution, delivery and performance of the Seller of this
Agreement, and the consummation by it of the transactions contemplated
hereby, have been duly
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authorized by all necessary corporate action of the Seller. This Agreement
has been fully executed and delivered by the Seller and constitutes the
valid and legally binding obligation of the Seller enforceable against the
Seller in accordance with its respective terms;
c. No material consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by the Seller in connection with the execution, delivery
or performance by the Seller of this Agreement, or the consummation by it
of the transaction contemplated hereby;
d. There is no action, suit, proceeding, investigation or litigation pending
or, to the Seller's knowledge, threatened, which either in any instance or
in the aggregate, if determined adversely to the Seller, would adversely
affect the sale of the Mortgage Loans to the Purchaser, the execution,
delivery or enforceability of this Agreement, or the Seller's ability to
perform its obligations under this Agreement; and
e. Immediately prior to payment of the purchase price for the Mortgage Loans,
the Seller is the lawful owner of the Mortgage Loans with the full right
to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever.
8. Covenants, Representations and Warranties of Purchaser. The Purchaser
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represents and warrants to, and covenants with, the Seller and the Company
that except for the provisions pertaining to the payment of the purchase
price thereunder, the Purchaser agrees to be bound as "Purchaser" by all of
the terms, covenants and conditions of the Purchase Agreement, and from and
after the date hereof, the Purchaser assumes for the benefit of the Seller
and the Company all of the Seller's obligations as "Purchaser" thereunder.
9. Governing Law. This Agreement shall be construed in accordance with the laws
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of the State of California and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with the laws of the
State of California, except to the extent preempted by federal law.
10. Confidentiality. The Seller and the Purchaser hereby acknowledge and agree
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that this Agreement shall be kept confidential and its contents will not be
divulged to any party without the other party's consent except to the extent
that it is appropriate for the Seller or the Purchaser to do so in working
with legal counsel, auditors, taxing authorities or other governmental
agencies.
11. Conflict with Purchase Agreement. To the extent there is any conflict
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between the terms of the Purchase Agreement and this Agreement, the latter
shall be controlling, notwithstanding anything to the contrary contained in
the Purchase Agreement.
12. Capitalized Terms. All capitalized terms used herein and not otherwise
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defined herein shall have the meanings assigned to such terms in the
Purchase Agreement.
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13. Counterparts. This Agreement may be executed in any number of counterparts.
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Each counterpart shall be deemed to be an original and all such counterparts
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
COUNTRYWIDE HOME LOANS, INC.,
the Seller
By /s/ Xxxxxxx X. Xxxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxxx
Vice President
FIRST FEDERAL SAVINGS AND LOAN
ASSOCIATION OF SAN XXXXXXX VALLEY,
the Purchaser
By
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Name:
Title:
PAN AMERICAN BANK, FSB,
the Company
By /s Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Senior Vice President
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EXHIBIT A
MORTGAGE LOAN
PURCHASE AND INTERIM SERVICING
AGREEMENT
(attached)
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EXHIBIT B
MORTGAGE LOANS
(attached)
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