Exhibit 10.74
MASTER ASSIGNMENT AGREEMENT
This Agreement is made by and between PanAmerican Bank FSB a Federal Savings
Bank d/b/a "Classic Plan" ("Classic"), and Providian National Bank (formerly
known as First Deposit National Bank) d/b/a "Commonwealth," ("Commonwealth" or
"Assignor") AND National IPF Company, a Delaware corporation ("NIPF").
Recitals:
A. Commonwealth is a division of Providian National Bank a national banking
association in the business of providing insurance premium financing.
B. Classic is in the business of providing insurance premium financing by
acquiring insurance premium finance agreements from licensed insurance
agents and brokers in California on behalf of their insureds.
C. NIPF is a sub-servicer under contract to originate and service premium
finance contracts for Commonwealth.
D. Commonwealth desires to assign to Classic a portion of the insurance
premium finance agreements originated by Commonwealth.
AGREEMENT:
1. Commonwealth may, but is not obligated to, tender to Classic any or all
insurance premium finance agreements originated by Assignor in the State of
California (the "Assigned Contracts").
2. Classic may, but shall not be required to, accept the assignment of any or
all Assigned Contracts tendered to it by Commonwealth and will advise
Commonwealth within one (1) business day following receipt of fax
transmission of signed contracts of those contracts accepted and those
contracts rejected.
3. In consideration for the assignment of each Assigned Contract accepted by
Classic, Classic agrees as follows:
(a) As to each Assigned Contract that has not been funded or drafted
as of the date of the assignment, Classic shall assume Commonwealth's
obligation to fund the loan for the benefit of the borrower named in such
Assigned Contract (the "Borrower").
(b) As to each Assigned Contract that has been funded by the issuance
of one or more Drafts, payable against Commonwealth, Classic agrees to pay,
by wire transfer or immediate available funds, Commonwealth for the face
value of each such draft honored by Commonwealth within one business day of
being advised by Commonwealth by fax transmission of the presentation of
that draft.
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4. Commonwealth does hereby represent and warrant to Classic, as to each
Assigned Contract tendered by Commonwealth to Classic that to the best of
Assignor's knowledge:
(a) The Assigned Contract is genuine, and is the legal, valid and
binding obligation of the Borrower, enforceable in accordance with its
terms subject to bankruptcy, insolvency, reorganization and other laws of
general application relating to or affecting rights of creditors and to
general principles of equity, that all parties executing such Assigned
Contract had legal capacity to so act, and that the Assigned Contract has
been properly and duly executed by the Borrower;
(b) Commonwealth is the sole owner and holder of the Assigned Contract
free and clear of any and all liens, pledges, charges or security interests
of any nature, and has full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell assign the
same;
(c) The Assigned Contract is not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the operation of any of the terms of the Assigned Contract, or the exercise
of any right thereunder by Borrower, render the Assigned Contract
unenforceable, in whole or in part, nor is the Assigned Contract subject to
any right of rescission, set-off, counterclaim or defense been asserted
with respect thereof;
(d) The Assigned Contract complies with all applicable state and
federal laws, regulation and other requirements including, without
limitation, Truth-in-Lending, consumer credit protection, equal credit
opportunity, and California Insurance Code disclosure laws, and the
Assigned Contract gives Classic the right to cancel the Assigned contract
and receive back the total unearned premium and seek back from the borrower
any unpaid balance;
(e) The Assigned Contract was executed in the State of California and,
to the best of Assignor's knowledge, the Borrower is a resident of the Sate
of California;
(f) The outstanding principal balance of the Assigned Contract is
equal to the amount financed stated in the Assigned Contract, and
Commonwealth has not received any payments of interest unless otherwise
disclosed to Classic in writing; and
(g) Commonwealth will deliver to Classic the original of each Assigned
Contract along with the down payment or monthly payment provided by the
producer, properly endorsed on the face thereof by Commonwealth to Classic,
together with any file documents relating to such Assigned Contract.
5. As to each Assigned Contract, Commonwealth and Classic agree as follows
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(a) After the assignment date, Classic shall receive any and all funds
payable under each Assigned Contract and will handle all borrower and
insurer inquiries and all servicing relating to the Assigned Contracts.
Any payments received by Commonwealth from or on behalf of the Borrower
shall be remitted to Classic within two (2) business days of receipt (and
Commonwealth will make a best efforts to notify Classic of the receipt of
such payments within one (1) business day); and any refund of unearned
premium received by Commonwealth from or on behalf of an insurance company
with respect to the Assigned Contracts shall be remitted to Classic within
five (5) business days of receipt.
(b) Commonwealth shall provide to Classic any and all documents or
correspondence which Commonwealth receives for each Assigned Contract,
including but not limited to policy declaration pages.
(c) At Classic's request, Commonwealth will cooperate with Classic and
will provide such additional documents pertinent to the Assigned Contract
as are necessary to enable Classic to obtain refunds of unearned premium or
unpaid balance from a borrower.
6. This Agreement will begin on January 16, 1998, and will terminate as to new
assignments on February 16, 1998; but will remain in effect as to section 5
until February 16, 1999; and as to section 7 until April 16, 1998.
7. In the event that Commonwealth's representations and warranties are untrue
with respect to an Assigned Contract, Commonwealth will be obligated to
remedy the situation or repurchase such Assigned Contract for an amount
equal to the amount of consideration paid by Classic to or on behalf of
Commonwealth (including any amount funded by Classic), less the total
amount of principal repaid to Classic by the Borrower.
8. NIPF agrees, as servicer to Commonwealth, to deliver contracts,
correspondence, and funds according to the terms of this Agreement.
9. Classic agrees to indemnify and hold harmless Commonwealth for any loss or
liability Commonwealth may experience in connection with any Assigned
Contract after the assignment of such contract, excepting any loss or
liability caused by the negligence of Commonwealth in connection with the
origination of such Assigned Contract.
10. Commonwealth agrees to indemnify and hold harmless Classic for any loss or
liability Classic may experience as a result of Commonwealth's actions with
respect to the origination of such Assigned Contracts.
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11. All notices permitted or required herein shall be given by fax and also by
United States mail, first class postage prepaid, to the following:
Commonwealth Commonwealth Premium Finance
and NIPF: National IPF Company
X.X. Xxx 0000
Xxxx, Xxxxxxx 00000
Attn:
____________________________
Fax: (000) 000-0000
Classic: Classic Plan
00000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attn:
____________________________
Fax: (000) 000-0000
EXECUTED and delivered to be effective the 21 day of January, 1998.
Commonwealth:
Providian National Bank
By: /s/ Xxx Xxxxx
______________________________
Name: Xxx Xxxxx
Title: Vice President - Treasurer
Classic:
PanAmerican Bank, FSB
By: /s/ Xxxxxxxx X. Grill
_____________________________
Name: Xxxxxxxx X. Grill
___________________________
Title: President
__________________________
NIPF
National IPF Company
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
_____________________________
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: President and CEO
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