EXHIBIT 10.30
JUNE 2002 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(JUNE 2002 SERIES 1 LOAN)
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "ASSIGNMENT") made as of
June 20, 2002, constitutes an assignment from NB FINANCE, LTD., a Bermuda
corporation (the "ASSIGNOR"), to NB CAPITAL CORPORATION, a Maryland corporation,
(the "ASSIGNEE"), and an agreement by and among Assignor, Assignee and NATIONAL
BANK OF CANADA, a Canadian chartered bank, as custodian and servicer on behalf
of Assignee (the "BANK").
W I T N E S S E T H :
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WHEREAS, Assignor and Assignee have entered into a certain Loan
Agreement, as of June 20, 2002 (such Loan Agreement, as it may be amended or
modified from time to time, the "LOAN AGREEMENT"), under the terms of which
Assignee has, subject to the terms and conditions thereof, lent with respect to
the June 2002 Series 1 Loan (as defined in the Loan Agreement) a principal
amount of US$7,785,606.87 to Assignor, as of June 20, 2002.
WHEREAS, to evidence and secure its obligations with respect to the
June 2002 Series 1 Loan under the Loan Agreement, Assignor shall execute and
deliver certain Loan Documents (as defined in the Loan Agreement).
WHEREAS, Assignee has required and Assignor has agreed that Assignor
shall assign all of its right, title and interest in, to and under the mortgage
loans listed on Exhibit A attached hereto (the "MORTGAGE LOANS"), each such
Mortgage Loan evidenced by certain agreements, deeds and proceedings (the
"MORTGAGE LOAN DOCUMENT") to Assignee and permit Assignee or its agents, to
administer, perform and enforce the Mortgage Loans upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the transactions hereinabove
described, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT.
(a) Assignor as beneficial owner hereby assigns, charges and
sets over to Assignee, and its successors and assigns, without recourse
to Assignor, all of Assignor's right, title and interest now or
hereafter acquired in, to and under the Mortgage Loans and all of the
real property (together with any proceeds (including, but not limited
to, any insurance, casualty and mortgage insurance proceeds), products,
substitutions, additions or replacements of any collateral mortgaged,
assigned or pledged under the Mortgage Loans) described therein
(collectively, the "COLLATERAL").
(b) Assignee hereby accepts the foregoing assignment, on
behalf of itself and its respective successors and assigns.
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(c) Assignor hereby appoints Assignee the true and lawful
attorney-in-fact of Assignor, with full power of substitution, in its
own name, both before and/or after any Event of Default (as defined in
the Loan Agreement), to take any action under or in connection with the
Mortgage Loans. This power shall be deemed to be coupled with an
interest and shall be irrevocable.
(d) Assignor agrees that the assignment herein provided is
absolute and from and after the date hereof, subject to SECTION 16,
Assignee shall obtain legal title to the Mortgage Loans and Assignor
shall not have, and shall not exercise, any rights in and to the
Collateral, including, without limitation, any rights as payee,
mortgagee or assignee under any of the Mortgage Loan Documents, or any
rights to receive any payments or to exercise or omit to exercise,
waive, compromise or make any other actions or determinations or give
or receive any notices under or in respect of the Mortgage Loan
Documents, except such as Assignee may direct in order to better
effectuate the rights, remedies and security herein provided or
contemplated.
(e) Assignee, as payee under the Mortgage Loans, shall have
the right, both before and after an Event of Default (as defined in the
Loan Agreement) to collect and receive all payments of principal and
interest and any other amounts due and payable under the Mortgage Loan
Documents. On each Interest Payment Date (as defined in the Loan
Agreement), Assignee shall apply the US Dollar Equivalent (as defined
in the Loan Agreement) of the funds collected under the Mortgage Loan
Documents (i) first, to the payment of any interest due and payable
under the Loan Documents, (ii) second, to the payment of any scheduled
or unscheduled principal payments due and payable under the Loan
Documents, (iii) third, to the payment of any Excess Loan Amount (as
defined in the Loan Agreement) and (iv) fourth, to any other amounts
due and payable under the Loan Documents and shall, to the extent
available after payment of the amounts in clauses (i), (ii), (iii) and
(iv) above, remit the balance of any collections or payments to
Assignor.
TO HAVE AND TO HOLD the same unto Assignee, and its successors
and assigns.
2. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents and
warrants as follows:
(a) Assignor (i) is the sole owner of the Mortgage Loans and
such ownership is free and clear of any lien, security interest or
other encumbrance, (ii) has not granted any participation or other
interest or assignment, other option or rights to the Mortgage Loans,
other than to Assignee, and (iii) has not pledged, collaterally
assigned or otherwise hypothecated any interest therein or agreed to do
so, other than to Assignee.
(b) The registered office and principal place of business of
the Assignor is located in Hamilton, Bermuda.
(c) The execution, delivery and performance of this Assignment
by Assignor are within Assignor's power and authority, have been duly
authorized by all necessary action and do not and will not (i) require
any authorization which has not been
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obtained, (ii) contravene the articles of incorporation or by-laws of
the Assignor, any applicable laws or any agreement or restriction
binding on or affecting Assignor or its property, or (iii) result in or
require the creation or imposition of any lien or right of others upon
or with respect to any property now or in the future owned by Assignor
(other than liens created in favor of Assignee hereunder). No
authorization which has not been obtained is required for the
assignment hereunder or the enforcement by Assignee of its remedies
under this Assignment. This Assignment, when executed and delivered,
will constitute the legal, valid and binding obligation of Assignor
enforceable against Assignor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the rights of creditors generally.
(d) The originals (including duplicate originals, if any) of
all the Mortgage Loan Documents, have been simultaneously herewith
delivered to the Bank as custodian for Assignee (except for any loan
documents which have been or will be submitted to public officials for
filing or recording and policies of title or other insurance which have
not yet been received by Assignor, which in either case will be
delivered directly to the Bank or forthwith turned over to the Bank as
and when received by the Assignor).
3. SERVICING. Until the satisfaction in full of all obligations of
Assignor under the Loan Agreement shall have occurred:
(a) Assignee or its agents, shall have the sole power and
authority to do or refrain from doing any act under or in connection
with the Mortgage Loan Documents and the property described therein
and/or this Assignment, including, without limitation, the sole power
and authority in its sole discretion, to (i) advance funds thereunder,
(ii) determine that all conditions to the advance of funds thereunder
have been satisfied (or to waive some or all of the conditions to
advance thereunder), and (iii) determine that a default or event of
default has occurred thereunder and to give any notice, demand or
protest in respect thereof;
(b) Assignor acknowledges that (i) the Bank, as agent of
Assignee, shall be named as mortgagee and loss payee on all fire,
extended coverage and other hazard insurance policies required under
the Mortgage Loan Documents, to the extent set forth therein and (ii)
Assignor and any mortgage and all other parties obligated to Assignor
under the Mortgage Loan Documents shall deal solely with the Bank,
acting on behalf of Assignee, under the Mortgage Loan Documents and
this Assignment, Assignor and all other parties so obligated shall be
entitled to rely on their actions so taken with respect to the Bank and
upon the action taken by the Bank, acting on behalf of Assignee, with
respect to them until the satisfaction in full of all obligations of
Assignor under the Loan Agreement or until Assignee shall appoint
another person to act on its behalf (or otherwise revoke the Bank's
authority to act on behalf of Assignee);
(c) Assignor agrees that Assignee or it agents shall have the
full power and authority, in its discretion, to take, or defer from
taking, any and all actions with respect to the administration and
enforcement of the Loan Documents, in order to effectuate the purposes
contemplated herein and therein, including the right, power and
authority to exercise any and all of the rights, remedies and options
reserved to Assignee or its
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agents in, or given by law or equity to Assignee or it agents as holder
of the Mortgage Loan Documents, to enforce the Mortgage Loan Documents,
and to take such other actions for the protection and preservation of
the lien of the Mortgages, and protect and preserve all property
described therein should Assignee or its agents become the owner
thereof by foreclosure or otherwise as may be necessary and/or
appropriate.
4. EVENT OF DEFAULT: REMEDIES. If an event of default shall occur under
any Mortgage Loan (an "EVENT OF DEFAULT"), Assignee or its agents shall have all
the rights and remedies which would be available to Assignor (but for this
Assignment) under the Mortgage Loan Documents as set forth therein and as
permitted thereunder or otherwise available to Assignor (but for this
Assignment) in law or in equity, including, without limitation but in each
instance to the extent provided in and as conditioned by the Mortgage Loan
Documents, the right:
(a) To accelerate the maturity of such Mortgage Loan and all
other amounts due under the applicable Mortgage Loan Documents and to
declare the same to be or become immediately due and payable and
enforce payment thereof upon the happening of any Event of Default by
the mortgagor under such Mortgage Loan, as permitted therein, after the
giving of such applicable notice and/or the passage of such time as may
be provided for in such Mortgage Loan;
(b) To take such steps, institute and prosecute such actions
and proceedings and do or omit such acts which, in its judgment, are
advisable in order to enforce payment of all amounts due under the
Mortgage Loan Documents and realize upon the security provided
therefor, including, without limitation, (i) to select any of the
remedies available under the Mortgage Loan Documents or otherwise
available at law or in equity, (ii) to enter into or consent to any
amendment, modification and/or extension of the Mortgage Loan
Documents, (iii) to enter into or consent to any release, substitution
or exchange of all or any part of any security for such Mortgage Loan,
(iv) to waive any claim against the mortgagor or any person or entity
obligated under the Loan Documents and (v) to defer, extend, increase
or decrease any payment, instalment or other sum required or on account
of such Mortgage Loan and/or the applicable Mortgage Loan Documents;
(c) To discontinue any such action or proceeding commenced as
provided in SUBSECTION 4(B) above or to stay, delay, defer, discontinue
or withdraw the same;
(d) To enter or cause to be entered a bid at any foreclosure
sale of the property mortgaged securing such Mortgage Loan pursuant to
the applicable Mortgage Loan Documents (each such property a "MORTGAGED
PROPERTY") or any portion thereof;
(e) To acquire title in and to any Mortgaged Property or any
portion thereof in any foreclosure proceeding in its name or the name
of its nominee or designee;
(f) To accept a deed to any Mortgaged Property or any portion
thereof in lieu of foreclosure and to release the mortgagor from its
obligations under the Mortgage Loan in consideration of such deed in
lieu of foreclosure;
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(g) To operate, manage and/or develop, or hire agents to
operate, manage and/or develop, any foreclosed or acquired Mortgaged
Property and to lease all or any portion thereof upon such terms and
conditions as it deems to be in the best interests of Assignee;
(h) To sell any foreclosed or acquired Mortgaged Property or
any portion thereof, upon such terms as it may deem to be in the best
interests of Assignee, including, without limitation, the right to take
back one or more purchase money notes and mortgages;
(i) To make advances for the payment for taxes, assessments,
water, sewer and vault charges, and all interest and penalties thereon,
insurance premiums and other similar or dissimilar items relating to
any Mortgaged Property, to the extent permitted by the applicable
Mortgage Loan Documents;
(j) To make advances for the account of the mortgagor under
such Mortgage Loan, to the extent permitted by the applicable Mortgage
Loan Documents;
(k) To collect, xxx for, receive and, subject to applicable
provisions of law, settle or compromise any claims for loss or damage
covered by insurance and/or condemnation of all or any portion of any
Mortgaged Property and to exercise its discretion in the proper
application and disposition of the net proceeds of such insurance
and/or condemnation award;
(l) To sell the Mortgage Loan at a fair market value; and
(m) Generally to do and take any and all actions which, but
for this Assignment, the Assignor would be entitled to do and take
under or with respect to the applicable Mortgage Loan Documents; it
being understood and agreed that this Assignment does not confer upon
the Assignee any greater rights with respect to the Mortgage Loan
Documents than granted to Assignor or expand or extend such rights, the
purpose of this Assignment being, inter alia, to assign, transfer and
allocate such rights and not to create new rights against any mortgagor
under the applicable Mortgage Loan, or to limit the rights or expand
the obligations of any such mortgagor, and in the event of any conflict
between the provisions of this Assignment and the provisions of the
Mortgage Loan Documents, the provisions of the Mortgage Loan Documents,
shall control.
5. POSSESSION OF MORTGAGE LOAN DOCUMENTS. From and after the date of
this Assignment, the Bank shall no longer hold the duly executed originals of
the Mortgage Loan Documents on its own behalf or as custodian for Assignor, but
shall hold the same as custodian for Assignee, pursuant to the terms of (i) the
custodial agreement dated as of June 20, 2002 by and between the Bank and
Assignee and (ii) the Amended and Restated Servicing Agreement dated as of June
28, 2001 by and between the Bank and Assignee.
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6. FURTHER ASSURANCES.
(a) Assignor agrees that at any time and from time to time, at
the expense of Assignor, Assignor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary or desirable, or that Assignee may reasonably request,
to effectuate the purpose or provisions of this Assignment or to
confirm or perfect any transaction described or contemplated herein or
to enable Assignee or its agents to exercise and enforce its rights and
remedies hereunder with respect to any Mortgage Loan Document. Assignor
and Assignee agree that Assignor shall reasonably cooperate (i) in
preparing, executing, delivering or having prepared, delivered and
executed by July 1, 2002 such documents or instruments which are
necessary or desirable to register legal title to each Mortgage Loan in
the name of Assignee in the appropriate land registry or other office
of public record, and (ii) in registering legal title to each Mortgage
Loan in the name of Assignee in the event the credit rating of the Bank
(or such other agent as may hold the Mortgage Loans on behalf of
Assignee) will fall below either "BBB-" by Standard & Poor's Rating
Services or "Baa" by Xxxxx'x Investor Service, Inc.
(b) Assignor hereby authorizes Assignee or its agents to file
and record one or more financing or continuation statements and
amendments thereto, relative to all or any part of the Loan Documents
without the signature of Assignor where permitted by the law.
7. ASSIGNMENT. This Assignment shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
8. NOTICES. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to Assignor, at its
address at c/o Codan Services Limited, Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxxxx; and if to Assignee, at its
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer; or as to each other party, at such other address as shall be
designated by such party in a written notice to Assignee and Assignor. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
9. GOVERNING LAW. This Assignment and Agreement shall be governed by
and construed in accordance with the laws of Bermuda.
10. JURISDICTION.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any court sitting in Bermuda, and any
appellate court thereof, in any action or proceeding arising out of or
relating to this Assignment, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such
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Bermuda court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assignment shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Assignment in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Assignment in any Bermuda court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Assignee hereby irrevocably appoints
Codan Services Limited, Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX CX,
Bermuda ("ASSIGNEE'S PROCESS AGENT"), as its agent to receive, on
behalf of Assignee, service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding.
Any such service may be made by mailing or delivering a copy of such
process, if to Assignee, in care of Assignee's Process Agent at
Assignee's Process Agent's above address. Assignee hereby irrevocably
authorizes and directs its respective process agent to accept such
service on its behalf.
11. COUNTERPARTS. This Assignment may be executed in one or more
counterparts, each of which shall be considered an original. Delivery of an
executed counterpart of a signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment.
Any delivery of a counterpart signature by telecopier shall, however, be
promptly followed by delivery of a manually executed counterpart.
12. CHANGE AND MODIFICATIONS. This Assignment may not be changed,
terminated or modified orally or in any manner other than by an agreement in
writing signed by the party sought to be charged therewith.
13. NO WAIVER. No waiver by any party of any provision of this
Assignment or any right, remedy or option hereunder shall be controlling, nor
shall it prevent or estop such party from thereafter enforcing such provision,
right, remedy or option, and the failure or refusal of any party hereto to
insist in any one or more instances upon the strict performance of any of the
terms or provisions of this Assignment by any other party hereto shall not be
construed as a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect, it being
understood and agreed that the rights, remedies and options of Assignee or the
Bank, acting as servicer on behalf of Assignee, hereunder are and shall be
cumulative and in addition to all other rights, remedies and options of Assignee
or the Bank, acting as servicer on behalf of Assignee, in law or in equity or
under any other agreement.
14. RECITALS. All of the recitals hereinabove set forth are
incorporated in this Assignment by reference.
15. PARAGRAPH HEADINGS, ETC. The headings of paragraphs contained in
this Assignment are provided for convenience only. They form no part of this
Assignment and shall not affect its construction or interpretation. All
references to paragraphs or subparagraphs of
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this Assignment refer to the corresponding paragraphs and subparagraphs of this
Assignment. All words used herein shall be construed to be of such gender or
number as the circumstances require. This "Assignment" shall each mean this
Assignment as a whole and as the same may from time to time hereafter be amended
or modified. The words "herein," "hereby," "hereof," "hereto," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Assignment as a whole
and not to any particular paragraph, clause or other subdivision hereof, unless
otherwise specifically noted.
16. TERMINATION. Upon satisfaction in full of all obligations of
Assignor under the Loan Documents, this Assignment shall terminate and be of no
further force and effect and Assignee shall execute documents evidencing the
assignment of any outstanding Mortgage Loans to Assignor (without recourse),
provided however, that in the event an Event of Default under any Mortgage Loan
occurs, Assignee's obligation to assign such defaulted Mortgage Loan back to
Assignor as provided in this Section shall terminate, provided, further,
however, that to the extent any amounts collected by Assignee with respect to
such defaulted Mortgage Loan exceed an amount equal to the sum of (i) the amount
by which the principal amount of the Loan secured by such defaulted Mortgage
Loan was reduced pursuant to Section 2.04(b)(B) of the Loan Agreement, (ii) any
interest accrued on such amount at the applicable Interest Rate (as defined in
the Loan Agreement) compounded monthly, and (iii) the amount of any collection
expenses (including legal fees), such excess shall be applied against the Excess
Loan Amount and any remaining amount shall be remitted to Assignor.
17. PARTIAL INVALIDITY. In case any provision in this Assignment shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
18. NATIONAL HOUSING ACT. Subject to the terms and provisions of the
Servicing Agreement referred to above, the Mortgage Loans hereby assigned will
be administered and serviced by the Bank, as agent of Assignee, in accordance
with the National Housing Act (Canada) and National Housing Regulations
(Canada).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the twentieth (20th) day
of June, Two thousand and two (2002).
ASSIGNOR
NB FINANCE, LTD.
By:
----------------------------
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ASSIGNEE
NB CAPITAL CORPORATION
By:
----------------------------
BANK
NATIONAL BANK OF CANADA
By:
----------------------------
By:
----------------------------
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the sixth (6th) day of November, Two thousand and two (2002), before
me personally came XXXXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that she resides at 000 Xxxxxxxxx Xxxxxx, in the City of
Montreal, Province xx Xxxxxx, X0X 0X0, that she is the Assistant Secretary of NB
Finance, Ltd., the corporation described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the board of
directors of said corporation.
____________________________________
XXXXXX XXXXXX, attorney
EXHIBIT A
MORTGAGE LOANS
JUNE 2002 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(JUNE 2002 SERIES 2 LOAN)
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "ASSIGNMENT") made as of
June 20, 2002, constitutes an assignment from NB FINANCE, LTD., a Bermuda
corporation (the "ASSIGNOR"), to NB CAPITAL CORPORATION, a Maryland corporation,
(the "ASSIGNEE"), and an agreement by and among Assignor, Assignee and NATIONAL
BANK OF CANADA, a Canadian chartered bank, as custodian and servicer on behalf
of Assignee (the "BANK").
W I T N E S S E T H :
WHEREAS, Assignor and Assignee have entered into a certain Loan
Agreement, as of June 20, 2002 (such Loan Agreement, as it may be amended or
modified from time to time, the "LOAN AGREEMENT"), under the terms of which
Assignee has, subject to the terms and conditions thereof, lent with respect to
the June 2002 Series 2 Loan (as defined in the Loan Agreement) a principal
amount of US$5,333,848.08 to Assignor, as of June 20, 2002.
WHEREAS, to evidence and secure its obligations with respect to the
June 2002 Series 2 Loan under the Loan Agreement, Assignor shall execute and
deliver certain Loan Documents (as defined in the Loan Agreement).
WHEREAS, Assignee has required and Assignor has agreed that Assignor
shall assign all of its right, title and interest in, to and under the mortgage
loans listed on Exhibit A attached hereto (the "MORTGAGE Loans"), each such
Mortgage Loan evidenced by certain agreements, deeds and proceedings (the
"MORTGAGE LOAN DOCUMENT") to Assignee and permit Assignee or its agents, to
administer, perform and enforce the Mortgage Loans upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the transactions hereinabove
described, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT.
(a) Assignor as beneficial owner hereby assigns, charges and
sets over to Assignee, and its successors and assigns, without recourse
to Assignor, all of Assignor's right, title and interest now or
hereafter acquired in, to and under the Mortgage Loans and all of the
real property (together with any proceeds (including, but not limited
to, any insurance, casualty and mortgage insurance proceeds), products,
substitutions, additions or replacements of any collateral mortgaged,
assigned or pledged under the Mortgage Loans) described therein
(collectively, the "COLLATERAL").
(b) Assignee hereby accepts the foregoing assignment, on
behalf of itself and its respective successors and assigns.
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(c) Assignor hereby appoints Assignee the true and lawful
attorney-in-fact of Assignor, with full power of substitution, in its
own name, both before and/or after any Event of Default (as defined in
the Loan Agreement), to take any action under or in connection with the
Mortgage Loans. This power shall be deemed to be coupled with an
interest and shall be irrevocable.
(d) Assignor agrees that the assignment herein provided is
absolute and from and after the date hereof, subject to SECTION 16,
Assignee shall obtain legal title to the Mortgage Loans and Assignor
shall not have, and shall not exercise, any rights in and to the
Collateral, including, without limitation, any rights as payee,
mortgagee or assignee under any of the Mortgage Loan Documents, or any
rights to receive any payments or to exercise or omit to exercise,
waive, compromise or make any other actions or determinations or give
or receive any notices under or in respect of the Mortgage Loan
Documents, except such as Assignee may direct in order to better
effectuate the rights, remedies and security herein provided or
contemplated.
(e) Assignee, as payee under the Mortgage Loans, shall have
the right, both before and after an Event of Default (as defined in the
Loan Agreement) to collect and receive all payments of principal and
interest and any other amounts due and payable under the Mortgage Loan
Documents. On each Interest Payment Date (as defined in the Loan
Agreement), Assignee shall apply the US Dollar Equivalent (as defined
in the Loan Agreement) of the funds collected under the Mortgage Loan
Documents (i) first, to the payment of any interest due and payable
under the Loan Documents, (ii) second, to the payment of any scheduled
or unscheduled principal payments due and payable under the Loan
Documents, (iii) third, to the payment of any Excess Loan Amount (as
defined in the Loan Agreement) and (iv) fourth, to any other amounts
due and payable under the Loan Documents and shall, to the extent
available after payment of the amounts in clauses (i), (ii), (iii) and
(iv) above, remit the balance of any collections or payments to
Assignor.
TO HAVE AND TO HOLD the same unto Assignee, and its successors
and assigns.
2. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents and
warrants as follows:
(a) Assignor (i) is the sole owner of the Mortgage Loans and
such ownership is free and clear of any lien, security interest or
other encumbrance, (ii) has not granted any participation or other
interest or assignment, other option or rights to the Mortgage Loans,
other than to Assignee, and (iii) has not pledged, collaterally
assigned or otherwise hypothecated any interest therein or agreed to do
so, other than to Assignee.
(b) The registered office and principal place of business of
the Assignor is located in Hamilton, Bermuda.
(c) The execution, delivery and performance of this Assignment
by Assignor are within Assignor's power and authority, have been duly
authorized by all necessary action and do not and will not (i) require
any authorization which has not been
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obtained, (ii) contravene the articles of incorporation or by-laws of
the Assignor, any applicable laws or any agreement or restriction
binding on or affecting Assignor or its property, or (iii) result in or
require the creation or imposition of any lien or right of others upon
or with respect to any property now or in the future owned by Assignor
(other than liens created in favor of Assignee hereunder). No
authorization which has not been obtained is required for the
assignment hereunder or the enforcement by Assignee of its remedies
under this Assignment. This Assignment, when executed and delivered,
will constitute the legal, valid and binding obligation of Assignor
enforceable against Assignor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the rights of creditors generally.
(d) The originals (including duplicate originals, if any) of
all the Mortgage Loan Documents, have been simultaneously herewith
delivered to the Bank as custodian for Assignee (except for any loan
documents which have been or will be submitted to public officials for
filing or recording and policies of title or other insurance which have
not yet been received by Assignor, which in either case will be
delivered directly to the Bank or forthwith turned over to the Bank as
and when received by the Assignor).
3. SERVICING. Until the satisfaction in full of all obligations of
Assignor under the Loan Agreement shall have occurred:
(a) Assignee or its agents, shall have the sole power and
authority to do or refrain from doing any act under or in connection
with the Mortgage Loan Documents and the property described therein
and/or this Assignment, including, without limitation, the sole power
and authority in its sole discretion, to (i) advance funds thereunder,
(ii) determine that all conditions to the advance of funds thereunder
have been satisfied (or to waive some or all of the conditions to
advance thereunder), and (iii) determine that a default or event of
default has occurred thereunder and to give any notice, demand or
protest in respect thereof;
(b) Assignor acknowledges that (i) the Bank, as agent of
Assignee, shall be named as mortgagee and loss payee on all fire,
extended coverage and other hazard insurance policies required under
the Mortgage Loan Documents, to the extent set forth therein and (ii)
Assignor and any mortgage and all other parties obligated to Assignor
under the Mortgage Loan Documents shall deal solely with the Bank,
acting on behalf of Assignee, under the Mortgage Loan Documents and
this Assignment, Assignor and all other parties so obligated shall be
entitled to rely on their actions so taken with respect to the Bank and
upon the action taken by the Bank, acting on behalf of Assignee, with
respect to them until the satisfaction in full of all obligations of
Assignor under the Loan Agreement or until Assignee shall appoint
another person to act on its behalf (or otherwise revoke the Bank's
authority to act on behalf of Assignee);
(c) Assignor agrees that Assignee or it agents shall have the
full power and authority, in its discretion, to take, or defer from
taking, any and all actions with respect to the administration and
enforcement of the Loan Documents, in order to effectuate the purposes
contemplated herein and therein, including the right, power and
authority to exercise any and all of the rights, remedies and options
reserved to Assignee or its
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agents in, or given by law or equity to Assignee or it agents as holder
of the Mortgage Loan Documents, to enforce the Mortgage Loan Documents,
and to take such other actions for the protection and preservation of
the lien of the Mortgages, and protect and preserve all property
described therein should Assignee or its agents become the owner
thereof by foreclosure or otherwise as may be necessary and/or
appropriate.
4. EVENT OF DEFAULT: REMEDIES. If an event of default shall occur under
any Mortgage Loan (an "EVENT OF DEFAULT"), Assignee or its agents shall have all
the rights and remedies which would be available to Assignor (but for this
Assignment) under the Mortgage Loan Documents as set forth therein and as
permitted thereunder or otherwise available to Assignor (but for this
Assignment) in law or in equity, including, without limitation but in each
instance to the extent provided in and as conditioned by the Mortgage Loan
Documents, the right:
(a) To accelerate the maturity of such Mortgage Loan and all
other amounts due under the applicable Mortgage Loan Documents and to
declare the same to be or become immediately due and payable and
enforce payment thereof upon the happening of any Event of Default by
the mortgagor under such Mortgage Loan, as permitted therein, after the
giving of such applicable notice and/or the passage of such time as may
be provided for in such Mortgage Loan;
(b) To take such steps, institute and prosecute such actions
and proceedings and do or omit such acts which, in its judgment, are
advisable in order to enforce payment of all amounts due under the
Mortgage Loan Documents and realize upon the security provided
therefor, including, without limitation, (i) to select any of the
remedies available under the Mortgage Loan Documents or otherwise
available at law or in equity, (ii) to enter into or consent to any
amendment, modification and/or extension of the Mortgage Loan
Documents, (iii) to enter into or consent to any release, substitution
or exchange of all or any part of any security for such Mortgage Loan,
(iv) to waive any claim against the mortgagor or any person or entity
obligated under the Loan Documents and (v) to defer, extend, increase
or decrease any payment, instalment or other sum required or on account
of such Mortgage Loan and/or the applicable Mortgage Loan Documents;
(c) To discontinue any such action or proceeding commenced as
provided in SUBSECTION 4(B) above or to stay, delay, defer, discontinue
or withdraw the same;
(d) To enter or cause to be entered a bid at any foreclosure
sale of the property mortgaged securing such Mortgage Loan pursuant to
the applicable Mortgage Loan Documents (each such property a "MORTGAGED
PROPERTY") or any portion thereof;
(e) To acquire title in and to any Mortgaged Property or any
portion thereof in any foreclosure proceeding in its name or the name
of its nominee or designee;
(f) To accept a deed to any Mortgaged Property or any portion
thereof in lieu of foreclosure and to release the mortgagor from its
obligations under the Mortgage Loan in consideration of such deed in
lieu of foreclosure;
-5-
(g) To operate, manage and/or develop, or hire agents to
operate, manage and/or develop, any foreclosed or acquired Mortgaged
Property and to lease all or any portion thereof upon such terms and
conditions as it deems to be in the best interests of Assignee;
(h) To sell any foreclosed or acquired Mortgaged Property or
any portion thereof, upon such terms as it may deem to be in the best
interests of Assignee, including, without limitation, the right to take
back one or more purchase money notes and mortgages;
(i) To make advances for the payment for taxes, assessments,
water, sewer and vault charges, and all interest and penalties thereon,
insurance premiums and other similar or dissimilar items relating to
any Mortgaged Property, to the extent permitted by the applicable
Mortgage Loan Documents;
(j) To make advances for the account of the mortgagor under
such Mortgage Loan, to the extent permitted by the applicable Mortgage
Loan Documents;
(k) To collect, xxx for, receive and, subject to applicable
provisions of law, settle or compromise any claims for loss or damage
covered by insurance and/or condemnation of all or any portion of any
Mortgaged Property and to exercise its discretion in the proper
application and disposition of the net proceeds of such insurance
and/or condemnation award;
(l) To sell the Mortgage Loan at a fair market value; and
(m) Generally to do and take any and all actions which, but
for this Assignment, the Assignor would be entitled to do and take
under or with respect to the applicable Mortgage Loan Documents; it
being understood and agreed that this Assignment does not confer upon
the Assignee any greater rights with respect to the Mortgage Loan
Documents than granted to Assignor or expand or extend such rights, the
purpose of this Assignment being, inter alia, to assign, transfer and
allocate such rights and not to create new rights against any mortgagor
under the applicable Mortgage Loan, or to limit the rights or expand
the obligations of any such mortgagor, and in the event of any conflict
between the provisions of this Assignment and the provisions of the
Mortgage Loan Documents, the provisions of the Mortgage Loan Documents,
shall control.
5. POSSESSION OF MORTGAGE LOAN DOCUMENTS. From and after the date of
this Assignment, the Bank shall no longer hold the duly executed originals of
the Mortgage Loan Documents on its own behalf or as custodian for Assignor, but
shall hold the same as custodian for Assignee, pursuant to the terms of (i) the
custodial agreement dated as of June 20, 2002 by and between the Bank and
Assignee and (ii) the Amended and Restated Servicing Agreement dated as of June
28, 2001 by and between the Bank and Assignee.
-6-
6. FURTHER ASSURANCES.
(a) Assignor agrees that at any time and from time to time, at
the expense of Assignor, Assignor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary or desirable, or that Assignee may reasonably request,
to effectuate the purpose or provisions of this Assignment or to
confirm or perfect any transaction described or contemplated herein or
to enable Assignee or its agents to exercise and enforce its rights and
remedies hereunder with respect to any Mortgage Loan Document. Assignor
and Assignee agree that Assignor shall reasonably cooperate (i) in
preparing, executing, delivering or having prepared, delivered and
executed by July 1, 2002 such documents or instruments which are
necessary or desirable to register legal title to each Mortgage Loan in
the name of Assignee in the appropriate land registry or other office
of public record, and (ii) in registering legal title to each Mortgage
Loan in the name of Assignee in the event the credit rating of the Bank
(or such other agent as may hold the Mortgage Loans on behalf of
Assignee) will fall below either "BBB-" by Standard & Poor's Rating
Services or "Baa" by Xxxxx'x Investor Service, Inc.
(b) Assignor hereby authorizes Assignee or its agents to file
and record one or more financing or continuation statements and
amendments thereto, relative to all or any part of the Loan Documents
without the signature of Assignor where permitted by the law.
7. ASSIGNMENT. This Assignment shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
8. NOTICES. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to Assignor, at its
address at c/o Codan Services Limited, Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxxxx; and if to Assignee, at its
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer; or as to each other party, at such other address as shall be
designated by such party in a written notice to Assignee and Assignor. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
9. GOVERNING LAW. This Assignment and Agreement shall be governed by
and construed in accordance with the laws of Bermuda.
10. JURISDICTION.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any court sitting in Bermuda, and any
appellate court thereof, in any action or proceeding arising out of or
relating to this Assignment, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such
-7-
Bermuda court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assignment shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Assignment in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Assignment in any Bermuda court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Assignee hereby irrevocably appoints
Codan Services Limited, Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX CX,
Bermuda ("ASSIGNEE'S PROCESS AGENT"), as its agent to receive, on
behalf of Assignee, service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding.
Any such service may be made by mailing or delivering a copy of such
process, if to Assignee, in care of Assignee's Process Agent at
Assignee's Process Agent's above address. Assignee hereby irrevocably
authorizes and directs its respective process agent to accept such
service on its behalf.
11. COUNTERPARTS. This Assignment may be executed in one or more
counterparts, each of which shall be considered an original. Delivery of an
executed counterpart of a signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment.
Any delivery of a counterpart signature by telecopier shall, however, be
promptly followed by delivery of a manually executed counterpart.
12. CHANGE AND MODIFICATIONS. This Assignment may not be changed,
terminated or modified orally or in any manner other than by an agreement in
writing signed by the party sought to be charged therewith.
13. NO WAIVER. No waiver by any party of any provision of this
Assignment or any right, remedy or option hereunder shall be controlling, nor
shall it prevent or estop such party from thereafter enforcing such provision,
right, remedy or option, and the failure or refusal of any party hereto to
insist in any one or more instances upon the strict performance of any of the
terms or provisions of this Assignment by any other party hereto shall not be
construed as a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect, it being
understood and agreed that the rights, remedies and options of Assignee or the
Bank, acting as servicer on behalf of Assignee, hereunder are and shall be
cumulative and in addition to all other rights, remedies and options of Assignee
or the Bank, acting as servicer on behalf of Assignee, in law or in equity or
under any other agreement.
14. RECITALS. All of the recitals hereinabove set forth are
incorporated in this Assignment by reference.
15. PARAGRAPH HEADINGS, ETC. The headings of paragraphs contained in
this Assignment are provided for convenience only. They form no part of this
Assignment and shall not affect its construction or interpretation. All
references to paragraphs or subparagraphs of
-8-
this Assignment refer to the corresponding paragraphs and subparagraphs of this
Assignment. All words used herein shall be construed to be of such gender or
number as the circumstances require. This "Assignment" shall each mean this
Assignment as a whole and as the same may from time to time hereafter be amended
or modified. The words "herein," "hereby," "hereof," "hereto," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Assignment as a whole
and not to any particular paragraph, clause or other subdivision hereof, unless
otherwise specifically noted.
16. TERMINATION. Upon satisfaction in full of all obligations of
Assignor under the Loan Documents, this Assignment shall terminate and be of no
further force and effect and Assignee shall execute documents evidencing the
assignment of any outstanding Mortgage Loans to Assignor (without recourse),
provided however, that in the event an Event of Default under any Mortgage Loan
occurs, Assignee's obligation to assign such defaulted Mortgage Loan back to
Assignor as provided in this Section shall terminate, provided, further,
however, that to the extent any amounts collected by Assignee with respect to
such defaulted Mortgage Loan exceed an amount equal to the sum of (i) the amount
by which the principal amount of the Loan secured by such defaulted Mortgage
Loan was reduced pursuant to Section 2.04(b)(B) of the Loan Agreement, (ii) any
interest accrued on such amount at the applicable Interest Rate (as defined in
the Loan Agreement) compounded monthly, and (iii) the amount of any collection
expenses (including legal fees), such excess shall be applied against the Excess
Loan Amount and any remaining amount shall be remitted to Assignor.
17. PARTIAL INVALIDITY. In case any provision in this Assignment shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
18. NATIONAL HOUSING ACT. Subject to the terms and provisions of the
Servicing Agreement referred to above, the Mortgage Loans hereby assigned will
be administered and serviced by the Bank, as agent of Assignee, in accordance
with the National Housing Act (Canada) and National Housing Regulations
(Canada).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the twentieth (20th) day
of June, Two thousand and two (2002).
ASSIGNOR
NB FINANCE, LTD.
By:
-----------------------------------
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ASSIGNEE
NB CAPITAL CORPORATION
By:
-----------------------------------
BANK
NATIONAL BANK OF CANADA
By:
-----------------------------------
By:
-----------------------------------
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the sixth (6th) day of November, Two thousand and two (2002), before
me personally came XXXXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that she resides at 000 Xxxxxxxxx Xxxxxx, in the City of
Montreal, Province xx Xxxxxx, X0X 0X0, that she is the Assistant Secretary of NB
Finance, Ltd., the corporation described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the board of
directors of said corporation.
------------------------------------------
XXXXXX XXXXXX, attorney
EXHIBIT A
MORTGAGE LOANS
JUNE 2002 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(JUNE 2002 SERIES 3 LOAN)
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "ASSIGNMENT") made as of
June 20, 2002, constitutes an assignment from NB FINANCE, LTD., a Bermuda
corporation (the "ASSIGNOR"), to NB CAPITAL CORPORATION, a Maryland corporation,
(the "ASSIGNEE"), and an agreement by and among Assignor, Assignee and NATIONAL
BANK OF CANADA, a Canadian chartered bank, as custodian and servicer on behalf
of Assignee (the "BANK").
W I T N E S S E T H :
WHEREAS, Assignor and Assignee have entered into a certain Loan
Agreement, as of June 20, 2002 (such Loan Agreement, as it may be amended or
modified from time to time, the "LOAN AGREEMENT"), under the terms of which
Assignee has, subject to the terms and conditions thereof, lent with respect to
the June 2002 Series 3 Loan (as defined in the Loan Agreement) a principal
amount of US$11,091,514.69 to Assignor, as of June 20, 2002.
WHEREAS, to evidence and secure its obligations with respect to the
June 2002 Series 3 Loan under the Loan Agreement, Assignor shall execute and
deliver certain Loan Documents (as defined in the Loan Agreement).
WHEREAS, Assignee has required and Assignor has agreed that Assignor
shall assign all of its right, title and interest in, to and under the mortgage
loans listed on Exhibit A attached hereto (the "MORTGAGE LOANS"), each such
Mortgage Loan evidenced by certain agreements, deeds and proceedings (the
"MORTGAGE LOAN DOCUMENT") to Assignee and permit Assignee or its agents, to
administer, perform and enforce the Mortgage Loans upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the transactions hereinabove
described, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT.
(a) Assignor as beneficial owner hereby assigns, charges and
sets over to Assignee, and its successors and assigns, without recourse
to Assignor, all of Assignor's right, title and interest now or
hereafter acquired in, to and under the Mortgage Loans and all of the
real property (together with any proceeds (including, but not limited
to, any insurance, casualty and mortgage insurance proceeds), products,
substitutions, additions or replacements of any collateral mortgaged,
assigned or pledged under the Mortgage Loans) described therein
(collectively, the "COLLATERAL").
(b) Assignee hereby accepts the foregoing assignment, on
behalf of itself and its respective successors and assigns.
-2-
(c) Assignor hereby appoints Assignee the true and lawful
attorney-in-fact of Assignor, with full power of substitution, in its
own name, both before and/or after any Event of Default (as defined in
the Loan Agreement), to take any action under or in connection with the
Mortgage Loans. This power shall be deemed to be coupled with an
interest and shall be irrevocable.
(d) Assignor agrees that the assignment herein provided is
absolute and from and after the date hereof, subject to SECTION 16,
Assignee shall obtain legal title to the Mortgage Loans and Assignor
shall not have, and shall not exercise, any rights in and to the
Collateral, including, without limitation, any rights as payee,
mortgagee or assignee under any of the Mortgage Loan Documents, or any
rights to receive any payments or to exercise or omit to exercise,
waive, compromise or make any other actions or determinations or give
or receive any notices under or in respect of the Mortgage Loan
Documents, except such as Assignee may direct in order to better
effectuate the rights, remedies and security herein provided or
contemplated.
(e) Assignee, as payee under the Mortgage Loans, shall have
the right, both before and after an Event of Default (as defined in the
Loan Agreement) to collect and receive all payments of principal and
interest and any other amounts due and payable under the Mortgage Loan
Documents. On each Interest Payment Date (as defined in the Loan
Agreement), Assignee shall apply the US Dollar Equivalent (as defined
in the Loan Agreement) of the funds collected under the Mortgage Loan
Documents (i) first, to the payment of any interest due and payable
under the Loan Documents, (ii) second, to the payment of any scheduled
or unscheduled principal payments due and payable under the Loan
Documents, (iii) third, to the payment of any Excess Loan Amount (as
defined in the Loan Agreement) and (iv) fourth, to any other amounts
due and payable under the Loan Documents and shall, to the extent
available after payment of the amounts in clauses (i), (ii), (iii) and
(iv) above, remit the balance of any collections or payments to
Assignor.
TO HAVE AND TO HOLD the same unto Assignee, and its successors
and assigns.
2. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents and
warrants as follows:
(a) Assignor (i) is the sole owner of the Mortgage Loans and
such ownership is free and clear of any lien, security interest or
other encumbrance, (ii) has not granted any participation or other
interest or assignment, other option or rights to the Mortgage Loans,
other than to Assignee, and (iii) has not pledged, collaterally
assigned or otherwise hypothecated any interest therein or agreed to do
so, other than to Assignee.
(b) The registered office and principal place of business of
the Assignor is located in Hamilton, Bermuda.
(c) The execution, delivery and performance of this Assignment
by Assignor are within Assignor's power and authority, have been duly
authorized by all necessary action and do not and will not (i) require
any authorization which has not been
-3-
obtained, (ii) contravene the articles of incorporation or by-laws of
the Assignor, any applicable laws or any agreement or restriction
binding on or affecting Assignor or its property, or (iii) result in or
require the creation or imposition of any lien or right of others upon
or with respect to any property now or in the future owned by Assignor
(other than liens created in favor of Assignee hereunder). No
authorization which has not been obtained is required for the
assignment hereunder or the enforcement by Assignee of its remedies
under this Assignment. This Assignment, when executed and delivered,
will constitute the legal, valid and binding obligation of Assignor
enforceable against Assignor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the rights of creditors generally.
(d) The originals (including duplicate originals, if any) of
all the Mortgage Loan Documents, have been simultaneously herewith
delivered to the Bank as custodian for Assignee (except for any loan
documents which have been or will be submitted to public officials for
filing or recording and policies of title or other insurance which have
not yet been received by Assignor, which in either case will be
delivered directly to the Bank or forthwith turned over to the Bank as
and when received by the Assignor).
3. SERVICING. Until the satisfaction in full of all obligations of
Assignor under the Loan Agreement shall have occurred:
(a) Assignee or its agents, shall have the sole power and
authority to do or refrain from doing any act under or in connection
with the Mortgage Loan Documents and the property described therein
and/or this Assignment, including, without limitation, the sole power
and authority in its sole discretion, to (i) advance funds thereunder,
(ii) determine that all conditions to the advance of funds thereunder
have been satisfied (or to waive some or all of the conditions to
advance thereunder), and (iii) determine that a default or event of
default has occurred thereunder and to give any notice, demand or
protest in respect thereof;
(b) Assignor acknowledges that (i) the Bank, as agent of
Assignee, shall be named as mortgagee and loss payee on all fire,
extended coverage and other hazard insurance policies required under
the Mortgage Loan Documents, to the extent set forth therein and (ii)
Assignor and any mortgage and all other parties obligated to Assignor
under the Mortgage Loan Documents shall deal solely with the Bank,
acting on behalf of Assignee, under the Mortgage Loan Documents and
this Assignment, Assignor and all other parties so obligated shall be
entitled to rely on their actions so taken with respect to the Bank and
upon the action taken by the Bank, acting on behalf of Assignee, with
respect to them until the satisfaction in full of all obligations of
Assignor under the Loan Agreement or until Assignee shall appoint
another person to act on its behalf (or otherwise revoke the Bank's
authority to act on behalf of Assignee);
(c) Assignor agrees that Assignee or it agents shall have the
full power and authority, in its discretion, to take, or defer from
taking, any and all actions with respect to the administration and
enforcement of the Loan Documents, in order to effectuate the purposes
contemplated herein and therein, including the right, power and
authority to exercise any and all of the rights, remedies and options
reserved to Assignee or its
-4-
agents in, or given by law or equity to Assignee or it agents as holder
of the Mortgage Loan Documents, to enforce the Mortgage Loan Documents,
and to take such other actions for the protection and preservation of
the lien of the Mortgages, and protect and preserve all property
described therein should Assignee or its agents become the owner
thereof by foreclosure or otherwise as may be necessary and/or
appropriate.
4. EVENT OF DEFAULT: REMEDIES. If an event of default shall occur under
any Mortgage Loan (an "EVENT OF DEFAULT"), Assignee or its agents shall have all
the rights and remedies which would be available to Assignor (but for this
Assignment) under the Mortgage Loan Documents as set forth therein and as
permitted thereunder or otherwise available to Assignor (but for this
Assignment) in law or in equity, including, without limitation but in each
instance to the extent provided in and as conditioned by the Mortgage Loan
Documents, the right:
(a) To accelerate the maturity of such Mortgage Loan and all
other amounts due under the applicable Mortgage Loan Documents and to
declare the same to be or become immediately due and payable and
enforce payment thereof upon the happening of any Event of Default by
the mortgagor under such Mortgage Loan, as permitted therein, after the
giving of such applicable notice and/or the passage of such time as may
be provided for in such Mortgage Loan;
(b) To take such steps, institute and prosecute such actions
and proceedings and do or omit such acts which, in its judgment, are
advisable in order to enforce payment of all amounts due under the
Mortgage Loan Documents and realize upon the security provided
therefor, including, without limitation, (i) to select any of the
remedies available under the Mortgage Loan Documents or otherwise
available at law or in equity, (ii) to enter into or consent to any
amendment, modification and/or extension of the Mortgage Loan
Documents, (iii) to enter into or consent to any release, substitution
or exchange of all or any part of any security for such Mortgage Loan,
(iv) to waive any claim against the mortgagor or any person or entity
obligated under the Loan Documents and (v) to defer, extend, increase
or decrease any payment, instalment or other sum required or on account
of such Mortgage Loan and/or the applicable Mortgage Loan Documents;
(c) To discontinue any such action or proceeding commenced as
provided in SUBSECTION 4(B) above or to stay, delay, defer, discontinue
or withdraw the same;
(d) To enter or cause to be entered a bid at any foreclosure
sale of the property mortgaged securing such Mortgage Loan pursuant to
the applicable Mortgage Loan Documents (each such property a "MORTGAGED
PROPERTY") or any portion thereof;
(e) To acquire title in and to any Mortgaged Property or any
portion thereof in any foreclosure proceeding in its name or the name
of its nominee or designee;
(f) To accept a deed to any Mortgaged Property or any portion
thereof in lieu of foreclosure and to release the mortgagor from its
obligations under the Mortgage Loan in consideration of such deed in
lieu of foreclosure;
-5-
(g) To operate, manage and/or develop, or hire agents to
operate, manage and/or develop, any foreclosed or acquired Mortgaged
Property and to lease all or any portion thereof upon such terms and
conditions as it deems to be in the best interests of Assignee;
(h) To sell any foreclosed or acquired Mortgaged Property or
any portion thereof, upon such terms as it may deem to be in the best
interests of Assignee, including, without limitation, the right to take
back one or more purchase money notes and mortgages;
(i) To make advances for the payment for taxes, assessments,
water, sewer and vault charges, and all interest and penalties thereon,
insurance premiums and other similar or dissimilar items relating to
any Mortgaged Property, to the extent permitted by the applicable
Mortgage Loan Documents;
(j) To make advances for the account of the mortgagor under
such Mortgage Loan, to the extent permitted by the applicable Mortgage
Loan Documents;
(k) To collect, xxx for, receive and, subject to applicable
provisions of law, settle or compromise any claims for loss or damage
covered by insurance and/or condemnation of all or any portion of any
Mortgaged Property and to exercise its discretion in the proper
application and disposition of the net proceeds of such insurance
and/or condemnation award;
(l) To sell the Mortgage Loan at a fair market value; and
(m) Generally to do and take any and all actions which, but
for this Assignment, the Assignor would be entitled to do and take
under or with respect to the applicable Mortgage Loan Documents; it
being understood and agreed that this Assignment does not confer upon
the Assignee any greater rights with respect to the Mortgage Loan
Documents than granted to Assignor or expand or extend such rights, the
purpose of this Assignment being, inter alia, to assign, transfer and
allocate such rights and not to create new rights against any mortgagor
under the applicable Mortgage Loan, or to limit the rights or expand
the obligations of any such mortgagor, and in the event of any conflict
between the provisions of this Assignment and the provisions of the
Mortgage Loan Documents, the provisions of the Mortgage Loan Documents,
shall control.
5. POSSESSION OF MORTGAGE LOAN DOCUMENTS. From and after the date of
this Assignment, the Bank shall no longer hold the duly executed originals of
the Mortgage Loan Documents on its own behalf or as custodian for Assignor, but
shall hold the same as custodian for Assignee, pursuant to the terms of (i) the
custodial agreement dated as of June 20, 2002 by and between the Bank and
Assignee and (ii) the Amended and Restated Servicing Agreement dated as of June
28, 2001 by and between the Bank and Assignee.
-6-
6. FURTHER ASSURANCES.
(a) Assignor agrees that at any time and from time to time, at
the expense of Assignor, Assignor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary or desirable, or that Assignee may reasonably request,
to effectuate the purpose or provisions of this Assignment or to
confirm or perfect any transaction described or contemplated herein or
to enable Assignee or its agents to exercise and enforce its rights and
remedies hereunder with respect to any Mortgage Loan Document. Assignor
and Assignee agree that Assignor shall reasonably cooperate (i) in
preparing, executing, delivering or having prepared, delivered and
executed by July 1, 2002 such documents or instruments which are
necessary or desirable to register legal title to each Mortgage Loan in
the name of Assignee in the appropriate land registry or other office
of public record, and (ii) in registering legal title to each Mortgage
Loan in the name of Assignee in the event the credit rating of the Bank
(or such other agent as may hold the Mortgage Loans on behalf of
Assignee) will fall below either "BBB-" by Standard & Poor's Rating
Services or "Baa" by Xxxxx'x Investor Service, Inc.
(b) Assignor hereby authorizes Assignee or its agents to file
and record one or more financing or continuation statements and
amendments thereto, relative to all or any part of the Loan Documents
without the signature of Assignor where permitted by the law.
7. ASSIGNMENT. This Assignment shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
8. NOTICES. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to Assignor, at its
address at c/o Codan Services Limited, Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxxxx; and if to Assignee, at its
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer; or as to each other party, at such other address as shall be
designated by such party in a written notice to Assignee and Assignor. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
9. GOVERNING LAW. This Assignment and Agreement shall be governed by
and construed in accordance with the laws of Bermuda.
10. JURISDICTION.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any court sitting in Bermuda, and any
appellate court thereof, in any action or proceeding arising out of or
relating to this Assignment, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such
-7-
Bermuda court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assignment shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Assignment in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Assignment in any Bermuda court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Assignee hereby irrevocably appoints
Codan Services Limited, Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX CX,
Bermuda ("ASSIGNEE'S PROCESS AGENT"), as its agent to receive, on
behalf of Assignee, service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding.
Any such service may be made by mailing or delivering a copy of such
process, if to Assignee, in care of Assignee's Process Agent at
Assignee's Process Agent's above address. Assignee hereby irrevocably
authorizes and directs its respective process agent to accept such
service on its behalf.
11. COUNTERPARTS. This Assignment may be executed in one or more
counterparts, each of which shall be considered an original. Delivery of an
executed counterpart of a signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment.
Any delivery of a counterpart signature by telecopier shall, however, be
promptly followed by delivery of a manually executed counterpart.
12. CHANGE AND MODIFICATIONS. This Assignment may not be changed,
terminated or modified orally or in any manner other than by an agreement in
writing signed by the party sought to be charged therewith.
13. NO WAIVER. No waiver by any party of any provision of this
Assignment or any right, remedy or option hereunder shall be controlling, nor
shall it prevent or estop such party from thereafter enforcing such provision,
right, remedy or option, and the failure or refusal of any party hereto to
insist in any one or more instances upon the strict performance of any of the
terms or provisions of this Assignment by any other party hereto shall not be
construed as a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect, it being
understood and agreed that the rights, remedies and options of Assignee or the
Bank, acting as servicer on behalf of Assignee, hereunder are and shall be
cumulative and in addition to all other rights, remedies and options of Assignee
or the Bank, acting as servicer on behalf of Assignee, in law or in equity or
under any other agreement.
14. RECITALS. All of the recitals hereinabove set forth are
incorporated in this Assignment by reference.
15. PARAGRAPH HEADINGS, ETC. The headings of paragraphs contained in
this Assignment are provided for convenience only. They form no part of this
Assignment and shall not affect its construction or interpretation. All
references to paragraphs or subparagraphs of this Assignment refer to the
corresponding paragraphs and subparagraphs of
-8-
this Assignment. All words used herein shall be construed to be of such gender
or number as the circumstances require. This "Assignment" shall each mean this
Assignment as a whole and as the same may from time to time hereafter be amended
or modified. The words "herein," "hereby," "hereof," "hereto," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Assignment as a whole
and not to any particular paragraph, clause or other subdivision hereof, unless
otherwise specifically noted.
16. TERMINATION. Upon satisfaction in full of all obligations of
Assignor under the Loan Documents, this Assignment shall terminate and be of no
further force and effect and Assignee shall execute documents evidencing the
assignment of any outstanding Mortgage Loans to Assignor (without recourse),
provided however, that in the event an Event of Default under any Mortgage Loan
occurs, Assignee's obligation to assign such defaulted Mortgage Loan back to
Assignor as provided in this Section shall terminate, provided, further,
however, that to the extent any amounts collected by Assignee with respect to
such defaulted Mortgage Loan exceed an amount equal to the sum of (i) the amount
by which the principal amount of the Loan secured by such defaulted Mortgage
Loan was reduced pursuant to Section 2.04(b)(B) of the Loan Agreement, (ii) any
interest accrued on such amount at the applicable Interest Rate (as defined in
the Loan Agreement) compounded monthly, and (iii) the amount of any collection
expenses (including legal fees), such excess shall be applied against the Excess
Loan Amount and any remaining amount shall be remitted to Assignor.
17. PARTIAL INVALIDITY. In case any provision in this Assignment shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
18. NATIONAL HOUSING ACT. Subject to the terms and provisions of the
Servicing Agreement referred to above, the Mortgage Loans hereby assigned will
be administered and serviced by the Bank, as agent of Assignee, in accordance
with the National Housing Act (Canada) and National Housing Regulations
(Canada).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the twentieth (20th) day
of June, Two thousand and two (2002).
ASSIGNOR
NB FINANCE, LTD.
By:
----------------------------------
-9-
ASSIGNEE
NB CAPITAL CORPORATION
By:
----------------------------------
BANK
NATIONAL BANK OF CANADA
By:
----------------------------------
By:
----------------------------------
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the sixth (6th) day of November, Two thousand and two (2002), before
me personally came XXXXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that she resides at 000 Xxxxxxxxx Xxxxxx, in the City of
Montreal, Province xx Xxxxxx, X0X 0X0, that she is the Assistant Secretary of NB
Finance, Ltd., the corporation described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the board of
directors of said corporation.
---------------------------------------
XXXXXX XXXXXX, attorney
EXHIBIT A
MORTGAGE LOANS
JUNE 2002 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(JUNE 2002 SERIES 4 LOAN)
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "ASSIGNMENT") made as of
June 20, 2002, constitutes an assignment from NB FINANCE, LTD., a Bermuda
corporation (the "ASSIGNOR"), to NB CAPITAL CORPORATION, a Maryland corporation,
(the "ASSIGNEE"), and an agreement by and among Assignor, Assignee and NATIONAL
BANK OF CANADA, a Canadian chartered bank, as custodian and servicer on behalf
of Assignee (the "BANK").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Assignor and Assignee have entered into a certain Loan
Agreement, as of June 20, 2002 (such Loan Agreement, as it may be amended or
modified from time to time, the "LOAN AGREEMENT"), under the terms of which
Assignee has, subject to the terms and conditions thereof, lent with respect to
the June 2002 Series 4 Loan (as defined in the Loan Agreement) a principal
amount of US$4,485,702.88 to Assignor, as of June 20, 2002.
WHEREAS, to evidence and secure its obligations with respect to the
June 2002 Series 4 Loan under the Loan Agreement, Assignor shall execute and
deliver certain Loan Documents (as defined in the Loan Agreement).
WHEREAS, Assignee has required and Assignor has agreed that Assignor
shall assign all of its right, title and interest in, to and under the mortgage
loans listed on Exhibit A attached hereto (the "MORTGAGE Loans"), each such
Mortgage Loan evidenced by certain agreements, deeds and proceedings (the
"MORTGAGE LOAN DOCUMENT") to Assignee and permit Assignee or its agents, to
administer, perform and enforce the Mortgage Loans upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the transactions hereinabove
described, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT.
(a) Assignor as beneficial owner hereby assigns, charges and
sets over to Assignee, and its successors and assigns, without recourse
to Assignor, all of Assignor's right, title and interest now or
hereafter acquired in, to and under the Mortgage Loans and all of the
real property (together with any proceeds (including, but not limited
to, any insurance, casualty and mortgage insurance proceeds), products,
substitutions, additions or replacements of any collateral mortgaged,
assigned or pledged under the Mortgage Loans) described therein
(collectively, the "COLLATERAL").
(b) Assignee hereby accepts the foregoing assignment, on
behalf of itself and its respective successors and assigns.
- 2 -
(c) Assignor hereby appoints Assignee the true and lawful
attorney-in-fact of Assignor, with full power of substitution, in its
own name, both before and/or after any Event of Default (as defined in
the Loan Agreement), to take any action under or in connection with the
Mortgage Loans. This power shall be deemed to be coupled with an
interest and shall be irrevocable.
(d) Assignor agrees that the assignment herein provided is
absolute and from and after the date hereof, subject to SECTION 16,
Assignee shall obtain legal title to the Mortgage Loans and Assignor
shall not have, and shall not exercise, any rights in and to the
Collateral, including, without limitation, any rights as payee,
mortgagee or assignee under any of the Mortgage Loan Documents, or any
rights to receive any payments or to exercise or omit to exercise,
waive, compromise or make any other actions or determinations or give
or receive any notices under or in respect of the Mortgage Loan
Documents, except such as Assignee may direct in order to better
effectuate the rights, remedies and security herein provided or
contemplated.
(e) Assignee, as payee under the Mortgage Loans, shall have
the right, both before and after an Event of Default (as defined in the
Loan Agreement) to collect and receive all payments of principal and
interest and any other amounts due and payable under the Mortgage Loan
Documents. On each Interest Payment Date (as defined in the Loan
Agreement), Assignee shall apply the US Dollar Equivalent (as defined
in the Loan Agreement) of the funds collected under the Mortgage Loan
Documents (i) first, to the payment of any interest due and payable
under the Loan Documents, (ii) second, to the payment of any scheduled
or unscheduled principal payments due and payable under the Loan
Documents, (iii) third, to the payment of any Excess Loan Amount (as
defined in the Loan Agreement) and (iv) fourth, to any other amounts
due and payable under the Loan Documents and shall, to the extent
available after payment of the amounts in clauses (i), (ii), (iii) and
(iv) above, remit the balance of any collections or payments to
Assignor.
TO HAVE AND TO HOLD the same unto Assignee, and its successors
and assigns.
2. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents and
warrants as follows:
(a) Assignor (i) is the sole owner of the Mortgage Loans and
such ownership is free and clear of any lien, security interest or
other encumbrance, (ii) has not granted any participation or other
interest or assignment, other option or rights to the Mortgage Loans,
other than to Assignee, and (iii) has not pledged, collaterally
assigned or otherwise hypothecated any interest therein or agreed to do
so, other than to Assignee.
(b) The registered office and principal place of business of
the Assignor is located in Hamilton, Bermuda.
(c) The execution, delivery and performance of this Assignment
by Assignor are within Assignor's power and authority, have been duly
authorized by all necessary action and do not and will not (i) require
any authorization which has not been
- 3 -
obtained, (ii) contravene the articles of incorporation or by-laws of
the Assignor, any applicable laws or any agreement or restriction
binding on or affecting Assignor or its property, or (iii) result in or
require the creation or imposition of any lien or right of others upon
or with respect to any property now or in the future owned by Assignor
(other than liens created in favor of Assignee hereunder). No
authorization which has not been obtained is required for the
assignment hereunder or the enforcement by Assignee of its remedies
under this Assignment. This Assignment, when executed and delivered,
will constitute the legal, valid and binding obligation of Assignor
enforceable against Assignor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the rights of creditors generally.
(d) The originals (including duplicate originals, if any) of
all the Mortgage Loan Documents, have been simultaneously herewith
delivered to the Bank as custodian for Assignee (except for any loan
documents which have been or will be submitted to public officials for
filing or recording and policies of title or other insurance which have
not yet been received by Assignor, which in either case will be
delivered directly to the Bank or forthwith turned over to the Bank as
and when received by the Assignor).
3. SERVICING. Until the satisfaction in full of all obligations of
Assignor under the Loan Agreement shall have occurred:
(a) Assignee or its agents, shall have the sole power and
authority to do or refrain from doing any act under or in connection
with the Mortgage Loan Documents and the property described therein
and/or this Assignment, including, without limitation, the sole power
and authority in its sole discretion, to (i) advance funds thereunder,
(ii) determine that all conditions to the advance of funds thereunder
have been satisfied (or to waive some or all of the conditions to
advance thereunder), and (iii) determine that a default or event of
default has occurred thereunder and to give any notice, demand or
protest in respect thereof;
(b) Assignor acknowledges that (i) the Bank, as agent of
Assignee, shall be named as mortgagee and loss payee on all fire,
extended coverage and other hazard insurance policies required under
the Mortgage Loan Documents, to the extent set forth therein and (ii)
Assignor and any mortgage and all other parties obligated to Assignor
under the Mortgage Loan Documents shall deal solely with the Bank,
acting on behalf of Assignee, under the Mortgage Loan Documents and
this Assignment, Assignor and all other parties so obligated shall be
entitled to rely on their actions so taken with respect to the Bank and
upon the action taken by the Bank, acting on behalf of Assignee, with
respect to them until the satisfaction in full of all obligations of
Assignor under the Loan Agreement or until Assignee shall appoint
another person to act on its behalf (or otherwise revoke the Bank's
authority to act on behalf of Assignee);
(c) Assignor agrees that Assignee or it agents shall have the
full power and authority, in its discretion, to take, or defer from
taking, any and all actions with respect to the administration and
enforcement of the Loan Documents, in order to effectuate the purposes
contemplated herein and therein, including the right, power and
authority to exercise any and all of the rights, remedies and options
reserved to Assignee or its
- 4 -
agents in, or given by law or equity to Assignee or it agents as holder
of the Mortgage Loan Documents, to enforce the Mortgage Loan Documents,
and to take such other actions for the protection and preservation of
the lien of the Mortgages, and protect and preserve all property
described therein should Assignee or its agents become the owner
thereof by foreclosure or otherwise as may be necessary and/or
appropriate.
4. EVENT OF DEFAULT: REMEDIES. If an event of default shall occur under
any Mortgage Loan (an "EVENT OF DEFAULT"), Assignee or its agents shall have all
the rights and remedies which would be available to Assignor (but for this
Assignment) under the Mortgage Loan Documents as set forth therein and as
permitted thereunder or otherwise available to Assignor (but for this
Assignment) in law or in equity, including, without limitation but in each
instance to the extent provided in and as conditioned by the Mortgage Loan
Documents, the right:
(a) To accelerate the maturity of such Mortgage Loan and all
other amounts due under the applicable Mortgage Loan Documents and to
declare the same to be or become immediately due and payable and
enforce payment thereof upon the happening of any Event of Default by
the mortgagor under such Mortgage Loan, as permitted therein, after the
giving of such applicable notice and/or the passage of such time as may
be provided for in such Mortgage Loan;
(b) To take such steps, institute and prosecute such actions
and proceedings and do or omit such acts which, in its judgment, are
advisable in order to enforce payment of all amounts due under the
Mortgage Loan Documents and realize upon the security provided
therefor, including, without limitation, (i) to select any of the
remedies available under the Mortgage Loan Documents or otherwise
available at law or in equity, (ii) to enter into or consent to any
amendment, modification and/or extension of the Mortgage Loan
Documents, (iii) to enter into or consent to any release, substitution
or exchange of all or any part of any security for such Mortgage Loan,
(iv) to waive any claim against the mortgagor or any person or entity
obligated under the Loan Documents and (v) to defer, extend, increase
or decrease any payment, instalment or other sum required or on account
of such Mortgage Loan and/or the applicable Mortgage Loan Documents;
(c) To discontinue any such action or proceeding commenced as
provided in SUBSECTION 4(B) above or to stay, delay, defer, discontinue
or withdraw the same;
(d) To enter or cause to be entered a bid at any foreclosure
sale of the property mortgaged securing such Mortgage Loan pursuant to
the applicable Mortgage Loan Documents (each such property a "MORTGAGED
PROPERTY") or any portion thereof;
(e) To acquire title in and to any Mortgaged Property or any
portion thereof in any foreclosure proceeding in its name or the name
of its nominee or designee;
(f) To accept a deed to any Mortgaged Property or any portion
thereof in lieu of foreclosure and to release the mortgagor from its
obligations under the Mortgage Loan in consideration of such deed in
lieu of foreclosure;
- 5 -
(g) To operate, manage and/or develop, or hire agents to
operate, manage and/or develop, any foreclosed or acquired Mortgaged
Property and to lease all or any portion thereof upon such terms and
conditions as it deems to be in the best interests of Assignee;
(h) To sell any foreclosed or acquired Mortgaged Property or
any portion thereof, upon such terms as it may deem to be in the best
interests of Assignee, including, without limitation, the right to take
back one or more purchase money notes and mortgages;
(i) To make advances for the payment for taxes, assessments,
water, sewer and vault charges, and all interest and penalties thereon,
insurance premiums and other similar or dissimilar items relating to
any Mortgaged Property, to the extent permitted by the applicable
Mortgage Loan Documents;
(j) To make advances for the account of the mortgagor under
such Mortgage Loan, to the extent permitted by the applicable Mortgage
Loan Documents;
(k) To collect, xxx for, receive and, subject to applicable
provisions of law, settle or compromise any claims for loss or damage
covered by insurance and/or condemnation of all or any portion of any
Mortgaged Property and to exercise its discretion in the proper
application and disposition of the net proceeds of such insurance
and/or condemnation award;
(l) To sell the Mortgage Loan at a fair market value; and
(m) Generally to do and take any and all actions which, but
for this Assignment, the Assignor would be entitled to do and take
under or with respect to the applicable Mortgage Loan Documents; it
being understood and agreed that this Assignment does not confer upon
the Assignee any greater rights with respect to the Mortgage Loan
Documents than granted to Assignor or expand or extend such rights, the
purpose of this Assignment being, inter alia, to assign, transfer and
allocate such rights and not to create new rights against any mortgagor
under the applicable Mortgage Loan, or to limit the rights or expand
the obligations of any such mortgagor, and in the event of any conflict
between the provisions of this Assignment and the provisions of the
Mortgage Loan Documents, the provisions of the Mortgage Loan Documents,
shall control.
5. POSSESSION OF MORTGAGE LOAN DOCUMENTS. From and after the date of
this Assignment, the Bank shall no longer hold the duly executed originals of
the Mortgage Loan Documents on its own behalf or as custodian for Assignor, but
shall hold the same as custodian for Assignee, pursuant to the terms of (i) the
custodial agreement dated as of June 20, 2002 by and between the Bank and
Assignee and (ii) the Amended and Restated Servicing Agreement dated as of June
28, 2001 by and between the Bank and Assignee.
- 6 -
6. FURTHER ASSURANCES.
(a) Assignor agrees that at any time and from time to time, at
the expense of Assignor, Assignor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary or desirable, or that Assignee may reasonably request,
to effectuate the purpose or provisions of this Assignment or to
confirm or perfect any transaction described or contemplated herein or
to enable Assignee or its agents to exercise and enforce its rights and
remedies hereunder with respect to any Mortgage Loan Document. Assignor
and Assignee agree that Assignor shall reasonably cooperate (i) in
preparing, executing, delivering or having prepared, delivered and
executed by July 1, 2002 such documents or instruments which are
necessary or desirable to register legal title to each Mortgage Loan in
the name of Assignee in the appropriate land registry or other office
of public record, and (ii) in registering legal title to each Mortgage
Loan in the name of Assignee in the event the credit rating of the Bank
(or such other agent as may hold the Mortgage Loans on behalf of
Assignee) will fall below either "BBB-" by Standard & Poor's Rating
Services or "Baa" by Xxxxx'x Investor Service, Inc.
(b) Assignor hereby authorizes Assignee or its agents to file
and record one or more financing or continuation statements and
amendments thereto, relative to all or any part of the Loan Documents
without the signature of Assignor where permitted by the law.
7. ASSIGNMENT. This Assignment shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
8. NOTICES. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to Assignor, at its
address at c/o Codan Services Limited, Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxxxx; and if to Assignee, at its
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer; or as to each other party, at such other address as shall be
designated by such party in a written notice to Assignee and Assignor. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
9. GOVERNING LAW. This Assignment and Agreement shall be governed by
and construed in accordance with the laws of Bermuda.
10. JURISDICTION.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any court sitting in Bermuda, and any
appellate court thereof, in any action or proceeding arising out of or
relating to this Assignment, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such
- 7 -
Bermuda court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assignment shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Assignment in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Assignment in any Bermuda court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Assignee hereby irrevocably appoints
Codan Services Limited, Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX CX,
Bermuda ("ASSIGNEE'S PROCESS AGENT"), as its agent to receive, on
behalf of Assignee, service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding.
Any such service may be made by mailing or delivering a copy of such
process, if to Assignee, in care of Assignee's Process Agent at
Assignee's Process Agent's above address. Assignee hereby irrevocably
authorizes and directs its respective process agent to accept such
service on its behalf.
11. COUNTERPARTS. This Assignment may be executed in one or more
counterparts, each of which shall be considered an original. Delivery of an
executed counterpart of a signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment.
Any delivery of a counterpart signature by telecopier shall, however, be
promptly followed by delivery of a manually executed counterpart.
12. CHANGE AND MODIFICATIONS. This Assignment may not be changed,
terminated or modified orally or in any manner other than by an agreement in
writing signed by the party sought to be charged therewith.
13. NO WAIVER. No waiver by any party of any provision of this
Assignment or any right, remedy or option hereunder shall be controlling, nor
shall it prevent or estop such party from thereafter enforcing such provision,
right, remedy or option, and the failure or refusal of any party hereto to
insist in any one or more instances upon the strict performance of any of the
terms or provisions of this Assignment by any other party hereto shall not be
construed as a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect, it being
understood and agreed that the rights, remedies and options of Assignee or the
Bank, acting as servicer on behalf of Assignee, hereunder are and shall be
cumulative and in addition to all other rights, remedies and options of Assignee
or the Bank, acting as servicer on behalf of Assignee, in law or in equity or
under any other agreement.
14. RECITALS. All of the recitals hereinabove set forth are
incorporated in this Assignment by reference.
15. PARAGRAPH HEADINGS, ETC. The headings of paragraphs contained in
this Assignment are provided for convenience only. They form no part of this
Assignment and shall not affect its construction or interpretation. All
references to paragraphs or subparagraphs of
- 8 -
this Assignment refer to the corresponding paragraphs and subparagraphs of this
Assignment. All words used herein shall be construed to be of such gender or
number as the circumstances require. This "Assignment" shall each mean this
Assignment as a whole and as the same may from time to time hereafter be amended
or modified. The words "herein," "hereby," "hereof," "hereto," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Assignment as a whole
and not to any particular paragraph, clause or other subdivision hereof, unless
otherwise specifically noted.
16. TERMINATION. Upon satisfaction in full of all obligations of
Assignor under the Loan Documents, this Assignment shall terminate and be of no
further force and effect and Assignee shall execute documents evidencing the
assignment of any outstanding Mortgage Loans to Assignor (without recourse),
provided however, that in the event an Event of Default under any Mortgage Loan
occurs, Assignee's obligation to assign such defaulted Mortgage Loan back to
Assignor as provided in this Section shall terminate, provided, further,
however, that to the extent any amounts collected by Assignee with respect to
such defaulted Mortgage Loan exceed an amount equal to the sum of (i) the amount
by which the principal amount of the Loan secured by such defaulted Mortgage
Loan was reduced pursuant to Section 2.04(b)(B) of the Loan Agreement, (ii) any
interest accrued on such amount at the applicable Interest Rate (as defined in
the Loan Agreement) compounded monthly, and (iii) the amount of any collection
expenses (including legal fees), such excess shall be applied against the Excess
Loan Amount and any remaining amount shall be remitted to Assignor.
17. PARTIAL INVALIDITY. In case any provision in this Assignment shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
18. NATIONAL HOUSING ACT. Subject to the terms and provisions of the
Servicing Agreement referred to above, the Mortgage Loans hereby assigned will
be administered and serviced by the Bank, as agent of Assignee, in accordance
with the National Housing Act (Canada) and National Housing Regulations
(Canada).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the twentieth (20th) day
of June, Two thousand and two (2002).
ASSIGNOR
NB FINANCE, LTD.
By:
---------------------------------------
- 9 -
ASSIGNEE
NB CAPITAL CORPORATION
By:
---------------------------------------
BANK
NATIONAL BANK OF CANADA
By:
---------------------------------------
By:
---------------------------------------
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the sixth (6th) day of November, Two thousand and two (2002), before
me personally came XXXXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that she resides at 000 Xxxxxxxxx Xxxxxx, in the City of
Montreal, Province xx Xxxxxx, X0X 0X0, that she is the Assistant Secretary of NB
Finance, Ltd., the corporation described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the board of
directors of said corporation.
---------------------------------
XXXXXX XXXXXX, attorney
EXHIBIT A
MORTGAGE LOANS
JUNE 2002 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(JUNE 2002 SERIES 5 LOAN)
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "ASSIGNMENT") made as of
June 20, 2002, constitutes an assignment from NB FINANCE, LTD., a Bermuda
corporation (the "ASSIGNOR"), to NB CAPITAL CORPORATION, a Maryland corporation,
(the "ASSIGNEE"), and an agreement by and among Assignor, Assignee and NATIONAL
BANK OF CANADA, a Canadian chartered bank, as custodian and servicer on behalf
of Assignee (the "BANK").
W I T N E S S E T H :
WHEREAS, Assignor and Assignee have entered into a certain Loan
Agreement, as of June 20, 2002 (such Loan Agreement, as it may be amended or
modified from time to time, the "LOAN AGREEMENT"), under the terms of which
Assignee has, subject to the terms and conditions thereof, lent with respect to
the June 2002 Series 5 Loan (as defined in the Loan Agreement) a principal
amount of US$7,060,741.94 to Assignor, as of June 20, 2002.
WHEREAS, to evidence and secure its obligations with respect to the
June 2002 Series 5 Loan under the Loan Agreement, Assignor shall execute and
deliver certain Loan Documents (as defined in the Loan Agreement).
WHEREAS, Assignee has required and Assignor has agreed that Assignor
shall assign all of its right, title and interest in, to and under the mortgage
loans listed on Exhibit A attached hereto (the "MORTGAGE Loans"), each such
Mortgage Loan evidenced by certain agreements, deeds and proceedings (the
"MORTGAGE LOAN DOCUMENT") to Assignee and permit Assignee or its agents, to
administer, perform and enforce the Mortgage Loans upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the transactions hereinabove
described, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT.
(a) Assignor as beneficial owner hereby assigns, charges and
sets over to Assignee, and its successors and assigns, without recourse
to Assignor, all of Assignor's right, title and interest now or
hereafter acquired in, to and under the Mortgage Loans and all of the
real property (together with any proceeds (including, but not limited
to, any insurance, casualty and mortgage insurance proceeds), products,
substitutions, additions or replacements of any collateral mortgaged,
assigned or pledged under the Mortgage Loans) described therein
(collectively, the "COLLATERAL").
(b) Assignee hereby accepts the foregoing assignment, on
behalf of itself and its respective successors and assigns.
-2-
(c) Assignor hereby appoints Assignee the true and lawful
attorney-in-fact of Assignor, with full power of substitution, in its
own name, both before and/or after any Event of Default (as defined in
the Loan Agreement), to take any action under or in connection with the
Mortgage Loans. This power shall be deemed to be coupled with an
interest and shall be irrevocable.
(d) Assignor agrees that the assignment herein provided is
absolute and from and after the date hereof, subject to SECTION 16,
Assignee shall obtain legal title to the Mortgage Loans and Assignor
shall not have, and shall not exercise, any rights in and to the
Collateral, including, without limitation, any rights as payee,
mortgagee or assignee under any of the Mortgage Loan Documents, or any
rights to receive any payments or to exercise or omit to exercise,
waive, compromise or make any other actions or determinations or give
or receive any notices under or in respect of the Mortgage Loan
Documents, except such as Assignee may direct in order to better
effectuate the rights, remedies and security herein provided or
contemplated.
(e) Assignee, as payee under the Mortgage Loans, shall have
the right, both before and after an Event of Default (as defined in the
Loan Agreement) to collect and receive all payments of principal and
interest and any other amounts due and payable under the Mortgage Loan
Documents. On each Interest Payment Date (as defined in the Loan
Agreement), Assignee shall apply the US Dollar Equivalent (as defined
in the Loan Agreement) of the funds collected under the Mortgage Loan
Documents (i) first, to the payment of any interest due and payable
under the Loan Documents, (ii) second, to the payment of any scheduled
or unscheduled principal payments due and payable under the Loan
Documents, (iii) third, to the payment of any Excess Loan Amount (as
defined in the Loan Agreement) and (iv) fourth, to any other amounts
due and payable under the Loan Documents and shall, to the extent
available after payment of the amounts in clauses (i), (ii), (iii) and
(iv) above, remit the balance of any collections or payments to
Assignor.
TO HAVE AND TO HOLD the same unto Assignee, and its successors
and assigns.
2. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents and
warrants as follows:
(a) Assignor (i) is the sole owner of the Mortgage Loans and
such ownership is free and clear of any lien, security interest or
other encumbrance, (ii) has not granted any participation or other
interest or assignment, other option or rights to the Mortgage Loans,
other than to Assignee, and (iii) has not pledged, collaterally
assigned or otherwise hypothecated any interest therein or agreed to do
so, other than to Assignee.
(b) The registered office and principal place of business of
the Assignor is located in Hamilton, Bermuda.
(c) The execution, delivery and performance of this Assignment
by Assignor are within Assignor's power and authority, have been duly
authorized by all necessary action and do not and will not (i) require
any authorization which has not been
-3-
obtained, (ii) contravene the articles of incorporation or by-laws of
the Assignor, any applicable laws or any agreement or restriction
binding on or affecting Assignor or its property, or (iii) result in or
require the creation or imposition of any lien or right of others upon
or with respect to any property now or in the future owned by Assignor
(other than liens created in favor of Assignee hereunder). No
authorization which has not been obtained is required for the
assignment hereunder or the enforcement by Assignee of its remedies
under this Assignment. This Assignment, when executed and delivered,
will constitute the legal, valid and binding obligation of Assignor
enforceable against Assignor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the rights of creditors generally.
(d) The originals (including duplicate originals, if any) of
all the Mortgage Loan Documents, have been simultaneously herewith
delivered to the Bank as custodian for Assignee (except for any loan
documents which have been or will be submitted to public officials for
filing or recording and policies of title or other insurance which have
not yet been received by Assignor, which in either case will be
delivered directly to the Bank or forthwith turned over to the Bank as
and when received by the Assignor).
3. SERVICING. Until the satisfaction in full of all obligations of
Assignor under the Loan Agreement shall have occurred:
(a) Assignee or its agents, shall have the sole power and
authority to do or refrain from doing any act under or in connection
with the Mortgage Loan Documents and the property described therein
and/or this Assignment, including, without limitation, the sole power
and authority in its sole discretion, to (i) advance funds thereunder,
(ii) determine that all conditions to the advance of funds thereunder
have been satisfied (or to waive some or all of the conditions to
advance thereunder), and (iii) determine that a default or event of
default has occurred thereunder and to give any notice, demand or
protest in respect thereof;
(b) Assignor acknowledges that (i) the Bank, as agent of
Assignee, shall be named as mortgagee and loss payee on all fire,
extended coverage and other hazard insurance policies required under
the Mortgage Loan Documents, to the extent set forth therein and (ii)
Assignor and any mortgage and all other parties obligated to Assignor
under the Mortgage Loan Documents shall deal solely with the Bank,
acting on behalf of Assignee, under the Mortgage Loan Documents and
this Assignment, Assignor and all other parties so obligated shall be
entitled to rely on their actions so taken with respect to the Bank and
upon the action taken by the Bank, acting on behalf of Assignee, with
respect to them until the satisfaction in full of all obligations of
Assignor under the Loan Agreement or until Assignee shall appoint
another person to act on its behalf (or otherwise revoke the Bank's
authority to act on behalf of Assignee);
(c) Assignor agrees that Assignee or it agents shall have the
full power and authority, in its discretion, to take, or defer from
taking, any and all actions with respect to the administration and
enforcement of the Loan Documents, in order to effectuate the purposes
contemplated herein and therein, including the right, power and
authority to exercise any and all of the rights, remedies and options
reserved to Assignee or its
-4-
agents in, or given by law or equity to Assignee or it agents as holder
of the Mortgage Loan Documents, to enforce the Mortgage Loan Documents,
and to take such other actions for the protection and preservation of
the lien of the Mortgages, and protect and preserve all property
described therein should Assignee or its agents become the owner
thereof by foreclosure or otherwise as may be necessary and/or
appropriate.
4. EVENT OF DEFAULT: REMEDIES. If an event of default shall occur under
any Mortgage Loan (an "EVENT OF DEFAULT"), Assignee or its agents shall have all
the rights and remedies which would be available to Assignor (but for this
Assignment) under the Mortgage Loan Documents as set forth therein and as
permitted thereunder or otherwise available to Assignor (but for this
Assignment) in law or in equity, including, without limitation but in each
instance to the extent provided in and as conditioned by the Mortgage Loan
Documents, the right:
(a) To accelerate the maturity of such Mortgage Loan and all
other amounts due under the applicable Mortgage Loan Documents and to
declare the same to be or become immediately due and payable and
enforce payment thereof upon the happening of any Event of Default by
the mortgagor under such Mortgage Loan, as permitted therein, after the
giving of such applicable notice and/or the passage of such time as may
be provided for in such Mortgage Loan;
(b) To take such steps, institute and prosecute such actions
and proceedings and do or omit such acts which, in its judgment, are
advisable in order to enforce payment of all amounts due under the
Mortgage Loan Documents and realize upon the security provided
therefor, including, without limitation, (i) to select any of the
remedies available under the Mortgage Loan Documents or otherwise
available at law or in equity, (ii) to enter into or consent to any
amendment, modification and/or extension of the Mortgage Loan
Documents, (iii) to enter into or consent to any release, substitution
or exchange of all or any part of any security for such Mortgage Loan,
(iv) to waive any claim against the mortgagor or any person or entity
obligated under the Loan Documents and (v) to defer, extend, increase
or decrease any payment, instalment or other sum required or on account
of such Mortgage Loan and/or the applicable Mortgage Loan Documents;
(c) To discontinue any such action or proceeding commenced as
provided in SUBSECTION 4(B) above or to stay, delay, defer, discontinue
or withdraw the same;
(d) To enter or cause to be entered a bid at any foreclosure
sale of the property mortgaged securing such Mortgage Loan pursuant to
the applicable Mortgage Loan Documents (each such property a "MORTGAGED
PROPERTY") or any portion thereof;
(e) To acquire title in and to any Mortgaged Property or any
portion thereof in any foreclosure proceeding in its name or the name
of its nominee or designee;
(f) To accept a deed to any Mortgaged Property or any portion
thereof in lieu of foreclosure and to release the mortgagor from its
obligations under the Mortgage Loan in consideration of such deed in
lieu of foreclosure;
-5-
(g) To operate, manage and/or develop, or hire agents to
operate, manage and/or develop, any foreclosed or acquired Mortgaged
Property and to lease all or any portion thereof upon such terms and
conditions as it deems to be in the best interests of Assignee;
(h) To sell any foreclosed or acquired Mortgaged Property or
any portion thereof, upon such terms as it may deem to be in the best
interests of Assignee, including, without limitation, the right to take
back one or more purchase money notes and mortgages;
(i) To make advances for the payment for taxes, assessments,
water, sewer and vault charges, and all interest and penalties thereon,
insurance premiums and other similar or dissimilar items relating to
any Mortgaged Property, to the extent permitted by the applicable
Mortgage Loan Documents;
(j) To make advances for the account of the mortgagor under
such Mortgage Loan, to the extent permitted by the applicable Mortgage
Loan Documents;
(k) To collect, xxx for, receive and, subject to applicable
provisions of law, settle or compromise any claims for loss or damage
covered by insurance and/or condemnation of all or any portion of any
Mortgaged Property and to exercise its discretion in the proper
application and disposition of the net proceeds of such insurance
and/or condemnation award;
(l) To sell the Mortgage Loan at a fair market value; and
(m) Generally to do and take any and all actions which, but
for this Assignment, the Assignor would be entitled to do and take
under or with respect to the applicable Mortgage Loan Documents; it
being understood and agreed that this Assignment does not confer upon
the Assignee any greater rights with respect to the Mortgage Loan
Documents than granted to Assignor or expand or extend such rights, the
purpose of this Assignment being, inter alia, to assign, transfer and
allocate such rights and not to create new rights against any mortgagor
under the applicable Mortgage Loan, or to limit the rights or expand
the obligations of any such mortgagor, and in the event of any conflict
between the provisions of this Assignment and the provisions of the
Mortgage Loan Documents, the provisions of the Mortgage Loan Documents,
shall control.
5. POSSESSION OF MORTGAGE LOAN DOCUMENTS. From and after the date of
this Assignment, the Bank shall no longer hold the duly executed originals of
the Mortgage Loan Documents on its own behalf or as custodian for Assignor, but
shall hold the same as custodian for Assignee, pursuant to the terms of (i) the
custodial agreement dated as of June 20, 2002 by and between the Bank and
Assignee and (ii) the Amended and Restated Servicing Agreement dated as of June
28, 2001 by and between the Bank and Assignee.
-6-
6. FURTHER ASSURANCES.
(a) Assignor agrees that at any time and from time to time, at
the expense of Assignor, Assignor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary or desirable, or that Assignee may reasonably request,
to effectuate the purpose or provisions of this Assignment or to
confirm or perfect any transaction described or contemplated herein or
to enable Assignee or its agents to exercise and enforce its rights and
remedies hereunder with respect to any Mortgage Loan Document. Assignor
and Assignee agree that Assignor shall reasonably cooperate (i) in
preparing, executing, delivering or having prepared, delivered and
executed by July 1, 2002 such documents or instruments which are
necessary or desirable to register legal title to each Mortgage Loan in
the name of Assignee in the appropriate land registry or other office
of public record, and (ii) in registering legal title to each Mortgage
Loan in the name of Assignee in the event the credit rating of the Bank
(or such other agent as may hold the Mortgage Loans on behalf of
Assignee) will fall below either "BBB-" by Standard & Poor's Rating
Services or "Baa" by Xxxxx'x Investor Service, Inc.
(b) Assignor hereby authorizes Assignee or its agents to file
and record one or more financing or continuation statements and
amendments thereto, relative to all or any part of the Loan Documents
without the signature of Assignor where permitted by the law.
7. ASSIGNMENT. This Assignment shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
8. NOTICES. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to Assignor, at its
address at c/o Codan Services Limited, Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxxxx; and if to Assignee, at its
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer; or as to each other party, at such other address as shall be
designated by such party in a written notice to Assignee and Assignor. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
9. GOVERNING LAW. This Assignment and Agreement shall be governed by
and construed in accordance with the laws of Bermuda.
10. JURISDICTION.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any court sitting in Bermuda, and any
appellate court thereof, in any action or proceeding arising out of or
relating to this Assignment, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such
-7-
Bermuda court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assignment shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Assignment in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Assignment in any Bermuda court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Assignee hereby irrevocably appoints
Codan Services Limited, Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX CX,
Bermuda ("ASSIGNEE'S PROCESS AGENT"), as its agent to receive, on
behalf of Assignee, service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding.
Any such service may be made by mailing or delivering a copy of such
process, if to Assignee, in care of Assignee's Process Agent at
Assignee's Process Agent's above address. Assignee hereby irrevocably
authorizes and directs its respective process agent to accept such
service on its behalf.
11. COUNTERPARTS. This Assignment may be executed in one or more
counterparts, each of which shall be considered an original. Delivery of an
executed counterpart of a signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment.
Any delivery of a counterpart signature by telecopier shall, however, be
promptly followed by delivery of a manually executed counterpart.
12. CHANGE AND MODIFICATIONS. This Assignment may not be changed,
terminated or modified orally or in any manner other than by an agreement in
writing signed by the party sought to be charged therewith.
13. NO WAIVER. No waiver by any party of any provision of this
Assignment or any right, remedy or option hereunder shall be controlling, nor
shall it prevent or estop such party from thereafter enforcing such provision,
right, remedy or option, and the failure or refusal of any party hereto to
insist in any one or more instances upon the strict performance of any of the
terms or provisions of this Assignment by any other party hereto shall not be
construed as a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect, it being
understood and agreed that the rights, remedies and options of Assignee or the
Bank, acting as servicer on behalf of Assignee, hereunder are and shall be
cumulative and in addition to all other rights, remedies and options of Assignee
or the Bank, acting as servicer on behalf of Assignee, in law or in equity or
under any other agreement.
14. RECITALS. All of the recitals hereinabove set forth are
incorporated in this Assignment by reference.
15. PARAGRAPH HEADINGS, ETC. The headings of paragraphs contained in
this Assignment are provided for convenience only. They form no part of this
Assignment and shall not affect its construction or interpretation. All
references to paragraphs or subparagraphs of
-8-
this Assignment refer to the corresponding paragraphs and subparagraphs of this
Assignment. All words used herein shall be construed to be of such gender or
number as the circumstances require. This "Assignment" shall each mean this
Assignment as a whole and as the same may from time to time hereafter be amended
or modified. The words "herein," "hereby," "hereof," "hereto," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Assignment as a whole
and not to any particular paragraph, clause or other subdivision hereof, unless
otherwise specifically noted.
16. TERMINATION. Upon satisfaction in full of all obligations of
Assignor under the Loan Documents, this Assignment shall terminate and be of no
further force and effect and Assignee shall execute documents evidencing the
assignment of any outstanding Mortgage Loans to Assignor (without recourse),
provided however, that in the event an Event of Default under any Mortgage Loan
occurs, Assignee's obligation to assign such defaulted Mortgage Loan back to
Assignor as provided in this Section shall terminate, provided, further,
however, that to the extent any amounts collected by Assignee with respect to
such defaulted Mortgage Loan exceed an amount equal to the sum of (i) the amount
by which the principal amount of the Loan secured by such defaulted Mortgage
Loan was reduced pursuant to Section 2.04(b)(B) of the Loan Agreement, (ii) any
interest accrued on such amount at the applicable Interest Rate (as defined in
the Loan Agreement) compounded monthly, and (iii) the amount of any collection
expenses (including legal fees), such excess shall be applied against the Excess
Loan Amount and any remaining amount shall be remitted to Assignor.
17. PARTIAL INVALIDITY. In case any provision in this Assignment shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
18. NATIONAL HOUSING ACT. Subject to the terms and provisions of the
Servicing Agreement referred to above, the Mortgage Loans hereby assigned will
be administered and serviced by the Bank, as agent of Assignee, in accordance
with the National Housing Act (Canada) and National Housing Regulations
(Canada).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the twentieth (20th) day
of June, Two thousand and two (2002).
ASSIGNOR
NB FINANCE, LTD.
By:
--------------------------------------
-9-
ASSIGNEE
NB CAPITAL CORPORATION
By:
--------------------------------------
BANK
NATIONAL BANK OF CANADA
By:
--------------------------------------
By:
--------------------------------------
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the sixth (6th) day of November, Two thousand and two (2002), before
me personally came XXXXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that she resides at 000 Xxxxxxxxx Xxxxxx, in the City of
Montreal, Province xx Xxxxxx, X0X 0X0, that she is the Assistant Secretary of NB
Finance, Ltd., the corporation described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the board of
directors of said corporation.
----------------------------------------
XXXXXX XXXXXX, attorney
EXHIBIT A
MORTGAGE LOANS
JUNE 2002 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(JUNE 2002 SERIES 6 LOAN)
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "ASSIGNMENT") made as of
June 20, 2002, constitutes an assignment from NB FINANCE, LTD., a Bermuda
corporation (the "ASSIGNOR"), to NB CAPITAL CORPORATION, a Maryland corporation,
(the "ASSIGNEE"), and an agreement by and among Assignor, Assignee and NATIONAL
BANK OF CANADA, a Canadian chartered bank, as custodian and servicer on behalf
of Assignee (the "BANK").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Assignor and Assignee have entered into a certain Loan
Agreement, as of June 20, 2002 (such Loan Agreement, as it may be amended or
modified from time to time, the "LOAN AGREEMENT"), under the terms of which
Assignee has, subject to the terms and conditions thereof, lent with respect to
the June 2002 Series 6 Loan (as defined in the Loan Agreement) a principal
amount of US$7,066,547.59 to Assignor, as of June 20, 2002.
WHEREAS, to evidence and secure its obligations with respect to the
June 2002 Series 6 Loan under the Loan Agreement, Assignor shall execute and
deliver certain Loan Documents (as defined in the Loan Agreement).
WHEREAS, Assignee has required and Assignor has agreed that Assignor
shall assign all of its right, title and interest in, to and under the mortgage
loans listed on Exhibit A attached hereto (the "MORTGAGE Loans"), each such
Mortgage Loan evidenced by certain agreements, deeds and proceedings (the
"MORTGAGE LOAN DOCUMENT") to Assignee and permit Assignee or its agents, to
administer, perform and enforce the Mortgage Loans upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the transactions hereinabove
described, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT.
(a) Assignor as beneficial owner hereby assigns, charges and
sets over to Assignee, and its successors and assigns, without recourse
to Assignor, all of Assignor's right, title and interest now or
hereafter acquired in, to and under the Mortgage Loans and all of the
real property (together with any proceeds (including, but not limited
to, any insurance, casualty and mortgage insurance proceeds), products,
substitutions, additions or replacements of any collateral mortgaged,
assigned or pledged under the Mortgage Loans) described therein
(collectively, the "COLLATERAL").
(b) Assignee hereby accepts the foregoing assignment, on
behalf of itself and its respective successors and assigns.
-2-
(c) Assignor hereby appoints Assignee the true and lawful
attorney-in-fact of Assignor, with full power of substitution, in its
own name, both before and/or after any Event of Default (as defined in
the Loan Agreement), to take any action under or in connection with the
Mortgage Loans. This power shall be deemed to be coupled with an
interest and shall be irrevocable.
(d) Assignor agrees that the assignment herein provided is
absolute and from and after the date hereof, subject to SECTION 16,
Assignee shall obtain legal title to the Mortgage Loans and Assignor
shall not have, and shall not exercise, any rights in and to the
Collateral, including, without limitation, any rights as payee,
mortgagee or assignee under any of the Mortgage Loan Documents, or any
rights to receive any payments or to exercise or omit to exercise,
waive, compromise or make any other actions or determinations or give
or receive any notices under or in respect of the Mortgage Loan
Documents, except such as Assignee may direct in order to better
effectuate the rights, remedies and security herein provided or
contemplated.
(e) Assignee, as payee under the Mortgage Loans, shall have
the right, both before and after an Event of Default (as defined in the
Loan Agreement) to collect and receive all payments of principal and
interest and any other amounts due and payable under the Mortgage Loan
Documents. On each Interest Payment Date (as defined in the Loan
Agreement), Assignee shall apply the US Dollar Equivalent (as defined
in the Loan Agreement) of the funds collected under the Mortgage Loan
Documents (i) first, to the payment of any interest due and payable
under the Loan Documents, (ii) second, to the payment of any scheduled
or unscheduled principal payments due and payable under the Loan
Documents, (iii) third, to the payment of any Excess Loan Amount (as
defined in the Loan Agreement) and (iv) fourth, to any other amounts
due and payable under the Loan Documents and shall, to the extent
available after payment of the amounts in clauses (i), (ii), (iii) and
(iv) above, remit the balance of any collections or payments to
Assignor.
TO HAVE AND TO HOLD the same unto Assignee, and its successors
and assigns.
2. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents and
warrants as follows:
(a) Assignor (i) is the sole owner of the Mortgage Loans and
such ownership is free and clear of any lien, security interest or
other encumbrance, (ii) has not granted any participation or other
interest or assignment, other option or rights to the Mortgage Loans,
other than to Assignee, and (iii) has not pledged, collaterally
assigned or otherwise hypothecated any interest therein or agreed to do
so, other than to Assignee.
(b) The registered office and principal place of business of
the Assignor is located in Hamilton, Bermuda.
(c) The execution, delivery and performance of this Assignment
by Assignor are within Assignor's power and authority, have been duly
authorized by all necessary action and do not and will not (i) require
any authorization which has not been
-3-
obtained, (ii) contravene the articles of incorporation or by-laws of
the Assignor, any applicable laws or any agreement or restriction
binding on or affecting Assignor or its property, or (iii) result in or
require the creation or imposition of any lien or right of others upon
or with respect to any property now or in the future owned by Assignor
(other than liens created in favor of Assignee hereunder). No
authorization which has not been obtained is required for the
assignment hereunder or the enforcement by Assignee of its remedies
under this Assignment. This Assignment, when executed and delivered,
will constitute the legal, valid and binding obligation of Assignor
enforceable against Assignor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the rights of creditors generally.
(d) The originals (including duplicate originals, if any) of
all the Mortgage Loan Documents, have been simultaneously herewith
delivered to the Bank as custodian for Assignee (except for any loan
documents which have been or will be submitted to public officials for
filing or recording and policies of title or other insurance which have
not yet been received by Assignor, which in either case will be
delivered directly to the Bank or forthwith turned over to the Bank as
and when received by the Assignor).
3. SERVICING. Until the satisfaction in full of all obligations of
Assignor under the Loan Agreement shall have occurred:
(a) Assignee or its agents, shall have the sole power and
authority to do or refrain from doing any act under or in connection
with the Mortgage Loan Documents and the property described therein
and/or this Assignment, including, without limitation, the sole power
and authority in its sole discretion, to (i) advance funds thereunder,
(ii) determine that all conditions to the advance of funds thereunder
have been satisfied (or to waive some or all of the conditions to
advance thereunder), and (iii) determine that a default or event of
default has occurred thereunder and to give any notice, demand or
protest in respect thereof;
(b) Assignor acknowledges that (i) the Bank, as agent of
Assignee, shall be named as mortgagee and loss payee on all fire,
extended coverage and other hazard insurance policies required under
the Mortgage Loan Documents, to the extent set forth therein and (ii)
Assignor and any mortgage and all other parties obligated to Assignor
under the Mortgage Loan Documents shall deal solely with the Bank,
acting on behalf of Assignee, under the Mortgage Loan Documents and
this Assignment, Assignor and all other parties so obligated shall be
entitled to rely on their actions so taken with respect to the Bank and
upon the action taken by the Bank, acting on behalf of Assignee, with
respect to them until the satisfaction in full of all obligations of
Assignor under the Loan Agreement or until Assignee shall appoint
another person to act on its behalf (or otherwise revoke the Bank's
authority to act on behalf of Assignee);
(c) Assignor agrees that Assignee or it agents shall have the
full power and authority, in its discretion, to take, or defer from
taking, any and all actions with respect to the administration and
enforcement of the Loan Documents, in order to effectuate the purposes
contemplated herein and therein, including the right, power and
authority to exercise any and all of the rights, remedies and options
reserved to Assignee or its
-4-
agents in, or given by law or equity to Assignee or it agents as holder
of the Mortgage Loan Documents, to enforce the Mortgage Loan Documents,
and to take such other actions for the protection and preservation of
the lien of the Mortgages, and protect and preserve all property
described therein should Assignee or its agents become the owner
thereof by foreclosure or otherwise as may be necessary and/or
appropriate.
4. EVENT OF DEFAULT: REMEDIES. If an event of default shall occur under
any Mortgage Loan (an "EVENT OF DEFAULT"), Assignee or its agents shall have all
the rights and remedies which would be available to Assignor (but for this
Assignment) under the Mortgage Loan Documents as set forth therein and as
permitted thereunder or otherwise available to Assignor (but for this
Assignment) in law or in equity, including, without limitation but in each
instance to the extent provided in and as conditioned by the Mortgage Loan
Documents, the right:
(a) To accelerate the maturity of such Mortgage Loan and all
other amounts due under the applicable Mortgage Loan Documents and to
declare the same to be or become immediately due and payable and
enforce payment thereof upon the happening of any Event of Default by
the mortgagor under such Mortgage Loan, as permitted therein, after the
giving of such applicable notice and/or the passage of such time as may
be provided for in such Mortgage Loan;
(b) To take such steps, institute and prosecute such actions
and proceedings and do or omit such acts which, in its judgment, are
advisable in order to enforce payment of all amounts due under the
Mortgage Loan Documents and realize upon the security provided
therefor, including, without limitation, (i) to select any of the
remedies available under the Mortgage Loan Documents or otherwise
available at law or in equity, (ii) to enter into or consent to any
amendment, modification and/or extension of the Mortgage Loan
Documents, (iii) to enter into or consent to any release, substitution
or exchange of all or any part of any security for such Mortgage Loan,
(iv) to waive any claim against the mortgagor or any person or entity
obligated under the Loan Documents and (v) to defer, extend, increase
or decrease any payment, instalment or other sum required or on account
of such Mortgage Loan and/or the applicable Mortgage Loan Documents;
(c) To discontinue any such action or proceeding commenced as
provided in SUBSECTION 4(B) above or to stay, delay, defer, discontinue
or withdraw the same;
(d) To enter or cause to be entered a bid at any foreclosure
sale of the property mortgaged securing such Mortgage Loan pursuant to
the applicable Mortgage Loan Documents (each such property a "MORTGAGED
PROPERTY") or any portion thereof;
(e) To acquire title in and to any Mortgaged Property or any
portion thereof in any foreclosure proceeding in its name or the name
of its nominee or designee;
(f) To accept a deed to any Mortgaged Property or any portion
thereof in lieu of foreclosure and to release the mortgagor from its
obligations under the Mortgage Loan in consideration of such deed in
lieu of foreclosure;
-5-
(g) To operate, manage and/or develop, or hire agents to
operate, manage and/or develop, any foreclosed or acquired Mortgaged
Property and to lease all or any portion thereof upon such terms and
conditions as it deems to be in the best interests of Assignee;
(h) To sell any foreclosed or acquired Mortgaged Property or
any portion thereof, upon such terms as it may deem to be in the best
interests of Assignee, including, without limitation, the right to take
back one or more purchase money notes and mortgages;
(i) To make advances for the payment for taxes, assessments,
water, sewer and vault charges, and all interest and penalties thereon,
insurance premiums and other similar or dissimilar items relating to
any Mortgaged Property, to the extent permitted by the applicable
Mortgage Loan Documents;
(j) To make advances for the account of the mortgagor under
such Mortgage Loan, to the extent permitted by the applicable Mortgage
Loan Documents;
(k) To collect, xxx for, receive and, subject to applicable
provisions of law, settle or compromise any claims for loss or damage
covered by insurance and/or condemnation of all or any portion of any
Mortgaged Property and to exercise its discretion in the proper
application and disposition of the net proceeds of such insurance
and/or condemnation award;
(l) To sell the Mortgage Loan at a fair market value; and
(m) Generally to do and take any and all actions which, but
for this Assignment, the Assignor would be entitled to do and take
under or with respect to the applicable Mortgage Loan Documents; it
being understood and agreed that this Assignment does not confer upon
the Assignee any greater rights with respect to the Mortgage Loan
Documents than granted to Assignor or expand or extend such rights, the
purpose of this Assignment being, inter alia, to assign, transfer and
allocate such rights and not to create new rights against any mortgagor
under the applicable Mortgage Loan, or to limit the rights or expand
the obligations of any such mortgagor, and in the event of any conflict
between the provisions of this Assignment and the provisions of the
Mortgage Loan Documents, the provisions of the Mortgage Loan Documents,
shall control.
5. POSSESSION OF MORTGAGE LOAN DOCUMENTS. From and after the date of
this Assignment, the Bank shall no longer hold the duly executed originals of
the Mortgage Loan Documents on its own behalf or as custodian for Assignor, but
shall hold the same as custodian for Assignee, pursuant to the terms of (i) the
custodial agreement dated as of June 20, 2002 by and between the Bank and
Assignee and (ii) the Amended and Restated Servicing Agreement dated as of June
28, 2001 by and between the Bank and Assignee.
-6-
6. FURTHER ASSURANCES.
(a) Assignor agrees that at any time and from time to time, at
the expense of Assignor, Assignor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary or desirable, or that Assignee may reasonably request,
to effectuate the purpose or provisions of this Assignment or to
confirm or perfect any transaction described or contemplated herein or
to enable Assignee or its agents to exercise and enforce its rights and
remedies hereunder with respect to any Mortgage Loan Document. Assignor
and Assignee agree that Assignor shall reasonably cooperate (i) in
preparing, executing, delivering or having prepared, delivered and
executed by July 1, 2002 such documents or instruments which are
necessary or desirable to register legal title to each Mortgage Loan in
the name of Assignee in the appropriate land registry or other office
of public record, and (ii) in registering legal title to each Mortgage
Loan in the name of Assignee in the event the credit rating of the Bank
(or such other agent as may hold the Mortgage Loans on behalf of
Assignee) will fall below either "BBB-" by Standard & Poor's Rating
Services or "Baa" by Xxxxx'x Investor Service, Inc.
(b) Assignor hereby authorizes Assignee or its agents to file
and record one or more financing or continuation statements and
amendments thereto, relative to all or any part of the Loan Documents
without the signature of Assignor where permitted by the law.
7. ASSIGNMENT. This Assignment shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
8. NOTICES. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to Assignor, at its
address at c/o Codan Services Limited, Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxxxx; and if to Assignee, at its
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer; or as to each other party, at such other address as shall be
designated by such party in a written notice to Assignee and Assignor. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
9. GOVERNING LAW. This Assignment and Agreement shall be governed by
and construed in accordance with the laws of Bermuda.
10. JURISDICTION.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any court sitting in Bermuda, and any
appellate court thereof, in any action or proceeding arising out of or
relating to this Assignment, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such
-7-
Bermuda court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assignment shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Assignment in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Assignment in any Bermuda court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Assignee hereby irrevocably appoints
Codan Services Limited, Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX CX,
Bermuda ("ASSIGNEE'S PROCESS AGENT"), as its agent to receive, on
behalf of Assignee, service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding.
Any such service may be made by mailing or delivering a copy of such
process, if to Assignee, in care of Assignee's Process Agent at
Assignee's Process Agent's above address. Assignee hereby irrevocably
authorizes and directs its respective process agent to accept such
service on its behalf.
11. COUNTERPARTS. This Assignment may be executed in one or more
counterparts, each of which shall be considered an original. Delivery of an
executed counterpart of a signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment.
Any delivery of a counterpart signature by telecopier shall, however, be
promptly followed by delivery of a manually executed counterpart.
12. CHANGE AND MODIFICATIONS. This Assignment may not be changed,
terminated or modified orally or in any manner other than by an agreement in
writing signed by the party sought to be charged therewith.
13. NO WAIVER. No waiver by any party of any provision of this
Assignment or any right, remedy or option hereunder shall be controlling, nor
shall it prevent or estop such party from thereafter enforcing such provision,
right, remedy or option, and the failure or refusal of any party hereto to
insist in any one or more instances upon the strict performance of any of the
terms or provisions of this Assignment by any other party hereto shall not be
construed as a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect, it being
understood and agreed that the rights, remedies and options of Assignee or the
Bank, acting as servicer on behalf of Assignee, hereunder are and shall be
cumulative and in addition to all other rights, remedies and options of Assignee
or the Bank, acting as servicer on behalf of Assignee, in law or in equity or
under any other agreement.
14. RECITALS. All of the recitals hereinabove set forth are
incorporated in this Assignment by reference.
15. PARAGRAPH HEADINGS, ETC. The headings of paragraphs contained in
this Assignment are provided for convenience only. They form no part of this
Assignment and shall not affect its construction or interpretation. All
references to paragraphs or subparagraphs of this Assignment refer to the
corresponding paragraphs and subparagraphs of
-8-
this Assignment. All words used herein shall be construed to be of such gender
or number as the circumstances require. This "Assignment" shall each mean this
Assignment as a whole and as the same may from time to time hereafter be amended
or modified. The words "herein," "hereby," "hereof," "hereto," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Assignment as a whole
and not to any particular paragraph, clause or other subdivision hereof, unless
otherwise specifically noted.
16. TERMINATION. Upon satisfaction in full of all obligations of
Assignor under the Loan Documents, this Assignment shall terminate and be of no
further force and effect and Assignee shall execute documents evidencing the
assignment of any outstanding Mortgage Loans to Assignor (without recourse),
provided however, that in the event an Event of Default under any Mortgage Loan
occurs, Assignee's obligation to assign such defaulted Mortgage Loan back to
Assignor as provided in this Section shall terminate, provided, further,
however, that to the extent any amounts collected by Assignee with respect to
such defaulted Mortgage Loan exceed an amount equal to the sum of (i) the amount
by which the principal amount of the Loan secured by such defaulted Mortgage
Loan was reduced pursuant to Section 2.04(b)(B) of the Loan Agreement, (ii) any
interest accrued on such amount at the applicable Interest Rate (as defined in
the Loan Agreement) compounded monthly, and (iii) the amount of any collection
expenses (including legal fees), such excess shall be applied against the Excess
Loan Amount and any remaining amount shall be remitted to Assignor.
17. PARTIAL INVALIDITY. In case any provision in this Assignment shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
18. NATIONAL HOUSING ACT. Subject to the terms and provisions of the
Servicing Agreement referred to above, the Mortgage Loans hereby assigned will
be administered and serviced by the Bank, as agent of Assignee, in accordance
with the National Housing Act (Canada) and National Housing Regulations
(Canada).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the twentieth (20th) day
of June, Two thousand and two (2002).
ASSIGNOR
NB FINANCE, LTD.
By:
---------------------------
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ASSIGNEE
NB CAPITAL CORPORATION
By:
---------------------------
BANK
NATIONAL BANK OF CANADA
By:
---------------------------
By:
---------------------------
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the sixth (6th) day of November, Two thousand and two (2002), before
me personally came XXXXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that she resides at 000 Xxxxxxxxx Xxxxxx, in the City of
Montreal, Province xx Xxxxxx, X0X 0X0, that she is the Assistant Secretary of NB
Finance, Ltd., the corporation described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the board of
directors of said corporation.
_____________________________________
XXXXXX XXXXXX, attorney
EXHIBIT A
MORTGAGE LOANS
JUNE 2002 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(JUNE 2002 SERIES 7 LOAN)
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "ASSIGNMENT") made as of
June 20, 2002, constitutes an assignment from NB FINANCE, LTD., a Bermuda
corporation (the "ASSIGNOR"), to NB CAPITAL CORPORATION, a Maryland corporation,
(the "ASSIGNEE"), and an agreement by and among Assignor, Assignee and NATIONAL
BANK OF CANADA, a Canadian chartered bank, as custodian and servicer on behalf
of Assignee (the "BANK").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Assignor and Assignee have entered into a certain Loan
Agreement, as of June 20, 2002 (such Loan Agreement, as it may be amended or
modified from time to time, the "LOAN AGREEMENT"), under the terms of which
Assignee has, subject to the terms and conditions thereof, lent with respect to
the June 2002 Series 7 Loan (as defined in the Loan Agreement) a principal
amount of US$10,058,418.73 to Assignor, as of June 20, 2002.
WHEREAS, to evidence and secure its obligations with respect to the
June 2002 Series 7 Loan under the Loan Agreement, Assignor shall execute and
deliver certain Loan Documents (as defined in the Loan Agreement).
WHEREAS, Assignee has required and Assignor has agreed that Assignor
shall assign all of its right, title and interest in, to and under the mortgage
loans listed on Exhibit A attached hereto (the "MORTGAGE Loans"), each such
Mortgage Loan evidenced by certain agreements, deeds and proceedings (the
"MORTGAGE LOAN DOCUMENT") to Assignee and permit Assignee or its agents, to
administer, perform and enforce the Mortgage Loans upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the transactions hereinabove
described, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT.
(a) Assignor as beneficial owner hereby assigns, charges and
sets over to Assignee, and its successors and assigns, without recourse
to Assignor, all of Assignor's right, title and interest now or
hereafter acquired in, to and under the Mortgage Loans and all of the
real property (together with any proceeds (including, but not limited
to, any insurance, casualty and mortgage insurance proceeds), products,
substitutions, additions or replacements of any collateral mortgaged,
assigned or pledged under the Mortgage Loans) described therein
(collectively, the "COLLATERAL").
(b) Assignee hereby accepts the foregoing assignment, on
behalf of itself and its respective successors and assigns.
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(c) Assignor hereby appoints Assignee the true and lawful
attorney-in-fact of Assignor, with full power of substitution, in its
own name, both before and/or after any Event of Default (as defined in
the Loan Agreement), to take any action under or in connection with the
Mortgage Loans. This power shall be deemed to be coupled with an
interest and shall be irrevocable.
(d) Assignor agrees that the assignment herein provided is
absolute and from and after the date hereof, subject to SECTION 16,
Assignee shall obtain legal title to the Mortgage Loans and Assignor
shall not have, and shall not exercise, any rights in and to the
Collateral, including, without limitation, any rights as payee,
mortgagee or assignee under any of the Mortgage Loan Documents, or any
rights to receive any payments or to exercise or omit to exercise,
waive, compromise or make any other actions or determinations or give
or receive any notices under or in respect of the Mortgage Loan
Documents, except such as Assignee may direct in order to better
effectuate the rights, remedies and security herein provided or
contemplated.
(e) Assignee, as payee under the Mortgage Loans, shall have
the right, both before and after an Event of Default (as defined in the
Loan Agreement) to collect and receive all payments of principal and
interest and any other amounts due and payable under the Mortgage Loan
Documents. On each Interest Payment Date (as defined in the Loan
Agreement), Assignee shall apply the US Dollar Equivalent (as defined
in the Loan Agreement) of the funds collected under the Mortgage Loan
Documents (i) first, to the payment of any interest due and payable
under the Loan Documents, (ii) second, to the payment of any scheduled
or unscheduled principal payments due and payable under the Loan
Documents, (iii) third, to the payment of any Excess Loan Amount (as
defined in the Loan Agreement) and (iv) fourth, to any other amounts
due and payable under the Loan Documents and shall, to the extent
available after payment of the amounts in clauses (i), (ii), (iii) and
(iv) above, remit the balance of any collections or payments to
Assignor.
TO HAVE AND TO HOLD the same unto Assignee, and its successors
and assigns.
2. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents and
warrants as follows:
(a) Assignor (i) is the sole owner of the Mortgage Loans and
such ownership is free and clear of any lien, security interest or
other encumbrance, (ii) has not granted any participation or other
interest or assignment, other option or rights to the Mortgage Loans,
other than to Assignee, and (iii) has not pledged, collaterally
assigned or otherwise hypothecated any interest therein or agreed to do
so, other than to Assignee.
(b) The registered office and principal place of business of
the Assignor is located in Hamilton, Bermuda.
(c) The execution, delivery and performance of this Assignment
by Assignor are within Assignor's power and authority, have been duly
authorized by all necessary action and do not and will not (i) require
any authorization which has not been
-3-
obtained, (ii) contravene the articles of incorporation or by-laws of
the Assignor, any applicable laws or any agreement or restriction
binding on or affecting Assignor or its property, or (iii) result in or
require the creation or imposition of any lien or right of others upon
or with respect to any property now or in the future owned by Assignor
(other than liens created in favor of Assignee hereunder). No
authorization which has not been obtained is required for the
assignment hereunder or the enforcement by Assignee of its remedies
under this Assignment. This Assignment, when executed and delivered,
will constitute the legal, valid and binding obligation of Assignor
enforceable against Assignor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the rights of creditors generally.
(d) The originals (including duplicate originals, if any) of
all the Mortgage Loan Documents, have been simultaneously herewith
delivered to the Bank as custodian for Assignee (except for any loan
documents which have been or will be submitted to public officials for
filing or recording and policies of title or other insurance which have
not yet been received by Assignor, which in either case will be
delivered directly to the Bank or forthwith turned over to the Bank as
and when received by the Assignor).
3. SERVICING. Until the satisfaction in full of all obligations of
Assignor under the Loan Agreement shall have occurred:
(a) Assignee or its agents, shall have the sole power and
authority to do or refrain from doing any act under or in connection
with the Mortgage Loan Documents and the property described therein
and/or this Assignment, including, without limitation, the sole power
and authority in its sole discretion, to (i) advance funds thereunder,
(ii) determine that all conditions to the advance of funds thereunder
have been satisfied (or to waive some or all of the conditions to
advance thereunder), and (iii) determine that a default or event of
default has occurred thereunder and to give any notice, demand or
protest in respect thereof;
(b) Assignor acknowledges that (i) the Bank, as agent of
Assignee, shall be named as mortgagee and loss payee on all fire,
extended coverage and other hazard insurance policies required under
the Mortgage Loan Documents, to the extent set forth therein and (ii)
Assignor and any mortgage and all other parties obligated to Assignor
under the Mortgage Loan Documents shall deal solely with the Bank,
acting on behalf of Assignee, under the Mortgage Loan Documents and
this Assignment, Assignor and all other parties so obligated shall be
entitled to rely on their actions so taken with respect to the Bank and
upon the action taken by the Bank, acting on behalf of Assignee, with
respect to them until the satisfaction in full of all obligations of
Assignor under the Loan Agreement or until Assignee shall appoint
another person to act on its behalf (or otherwise revoke the Bank's
authority to act on behalf of Assignee);
(c) Assignor agrees that Assignee or it agents shall have the
full power and authority, in its discretion, to take, or defer from
taking, any and all actions with respect to the administration and
enforcement of the Loan Documents, in order to effectuate the purposes
contemplated herein and therein, including the right, power and
authority to exercise any and all of the rights, remedies and options
reserved to Assignee or its
-4-
agents in, or given by law or equity to Assignee or it agents as holder
of the Mortgage Loan Documents, to enforce the Mortgage Loan Documents,
and to take such other actions for the protection and preservation of
the lien of the Mortgages, and protect and preserve all property
described therein should Assignee or its agents become the owner
thereof by foreclosure or otherwise as may be necessary and/or
appropriate.
4. EVENT OF DEFAULT: REMEDIES. If an event of default shall occur under
any Mortgage Loan (an "EVENT OF DEFAULT"), Assignee or its agents shall have all
the rights and remedies which would be available to Assignor (but for this
Assignment) under the Mortgage Loan Documents as set forth therein and as
permitted thereunder or otherwise available to Assignor (but for this
Assignment) in law or in equity, including, without limitation but in each
instance to the extent provided in and as conditioned by the Mortgage Loan
Documents, the right:
(a) To accelerate the maturity of such Mortgage Loan and all
other amounts due under the applicable Mortgage Loan Documents and to
declare the same to be or become immediately due and payable and
enforce payment thereof upon the happening of any Event of Default by
the mortgagor under such Mortgage Loan, as permitted therein, after the
giving of such applicable notice and/or the passage of such time as may
be provided for in such Mortgage Loan;
(b) To take such steps, institute and prosecute such actions
and proceedings and do or omit such acts which, in its judgment, are
advisable in order to enforce payment of all amounts due under the
Mortgage Loan Documents and realize upon the security provided
therefor, including, without limitation, (i) to select any of the
remedies available under the Mortgage Loan Documents or otherwise
available at law or in equity, (ii) to enter into or consent to any
amendment, modification and/or extension of the Mortgage Loan
Documents, (iii) to enter into or consent to any release, substitution
or exchange of all or any part of any security for such Mortgage Loan,
(iv) to waive any claim against the mortgagor or any person or entity
obligated under the Loan Documents and (v) to defer, extend, increase
or decrease any payment, instalment or other sum required or on account
of such Mortgage Loan and/or the applicable Mortgage Loan Documents;
(c) To discontinue any such action or proceeding commenced as
provided in SUBSECTION 4(B) above or to stay, delay, defer, discontinue
or withdraw the same;
(d) To enter or cause to be entered a bid at any foreclosure
sale of the property mortgaged securing such Mortgage Loan pursuant to
the applicable Mortgage Loan Documents (each such property a "MORTGAGED
PROPERTY") or any portion thereof;
(e) To acquire title in and to any Mortgaged Property or any
portion thereof in any foreclosure proceeding in its name or the name
of its nominee or designee;
(f) To accept a deed to any Mortgaged Property or any portion
thereof in lieu of foreclosure and to release the mortgagor from its
obligations under the Mortgage Loan in consideration of such deed in
lieu of foreclosure;
-5-
(g) To operate, manage and/or develop, or hire agents to
operate, manage and/or develop, any foreclosed or acquired Mortgaged
Property and to lease all or any portion thereof upon such terms and
conditions as it deems to be in the best interests of Assignee;
(h) To sell any foreclosed or acquired Mortgaged Property or
any portion thereof, upon such terms as it may deem to be in the best
interests of Assignee, including, without limitation, the right to take
back one or more purchase money notes and mortgages;
(i) To make advances for the payment for taxes, assessments,
water, sewer and vault charges, and all interest and penalties thereon,
insurance premiums and other similar or dissimilar items relating to
any Mortgaged Property, to the extent permitted by the applicable
Mortgage Loan Documents;
(j) To make advances for the account of the mortgagor under
such Mortgage Loan, to the extent permitted by the applicable Mortgage
Loan Documents;
(k) To collect, xxx for, receive and, subject to applicable
provisions of law, settle or compromise any claims for loss or damage
covered by insurance and/or condemnation of all or any portion of any
Mortgaged Property and to exercise its discretion in the proper
application and disposition of the net proceeds of such insurance
and/or condemnation award;
(l) To sell the Mortgage Loan at a fair market value; and
(m) Generally to do and take any and all actions which, but
for this Assignment, the Assignor would be entitled to do and take
under or with respect to the applicable Mortgage Loan Documents; it
being understood and agreed that this Assignment does not confer upon
the Assignee any greater rights with respect to the Mortgage Loan
Documents than granted to Assignor or expand or extend such rights, the
purpose of this Assignment being, inter alia, to assign, transfer and
allocate such rights and not to create new rights against any mortgagor
under the applicable Mortgage Loan, or to limit the rights or expand
the obligations of any such mortgagor, and in the event of any conflict
between the provisions of this Assignment and the provisions of the
Mortgage Loan Documents, the provisions of the Mortgage Loan Documents,
shall control.
5. POSSESSION OF MORTGAGE LOAN DOCUMENTS. From and after the date of
this Assignment, the Bank shall no longer hold the duly executed originals of
the Mortgage Loan Documents on its own behalf or as custodian for Assignor, but
shall hold the same as custodian for Assignee, pursuant to the terms of (i) the
custodial agreement dated as of June 20, 2002 by and between the Bank and
Assignee and (ii) the Amended and Restated Servicing Agreement dated as of June
28, 2001 by and between the Bank and Assignee.
-6-
6. FURTHER ASSURANCES.
(a) Assignor agrees that at any time and from time to time, at
the expense of Assignor, Assignor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary or desirable, or that Assignee may reasonably request,
to effectuate the purpose or provisions of this Assignment or to
confirm or perfect any transaction described or contemplated herein or
to enable Assignee or its agents to exercise and enforce its rights and
remedies hereunder with respect to any Mortgage Loan Document. Assignor
and Assignee agree that Assignor shall reasonably cooperate (i) in
preparing, executing, delivering or having prepared, delivered and
executed by July 1, 2002 such documents or instruments which are
necessary or desirable to register legal title to each Mortgage Loan in
the name of Assignee in the appropriate land registry or other office
of public record, and (ii) in registering legal title to each Mortgage
Loan in the name of Assignee in the event the credit rating of the Bank
(or such other agent as may hold the Mortgage Loans on behalf of
Assignee) will fall below either "BBB-" by Standard & Poor's Rating
Services or "Baa" by Xxxxx'x Investor Service, Inc.
(b) Assignor hereby authorizes Assignee or its agents to file
and record one or more financing or continuation statements and
amendments thereto, relative to all or any part of the Loan Documents
without the signature of Assignor where permitted by the law.
7. ASSIGNMENT. This Assignment shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
8. NOTICES. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to Assignor, at its
address at c/o Codan Services Limited, Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxxxx; and if to Assignee, at its
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer; or as to each other party, at such other address as shall be
designated by such party in a written notice to Assignee and Assignor. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
9. GOVERNING LAW. This Assignment and Agreement shall be governed by
and construed in accordance with the laws of Bermuda.
10. JURISDICTION.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any court sitting in Bermuda, and any
appellate court thereof, in any action or proceeding arising out of or
relating to this Assignment, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such
-7-
Bermuda court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assignment shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Assignment in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Assignment in any Bermuda court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Assignee hereby irrevocably appoints
Codan Services Limited, Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX CX,
Bermuda ("ASSIGNEE'S PROCESS AGENT"), as its agent to receive, on
behalf of Assignee, service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding.
Any such service may be made by mailing or delivering a copy of such
process, if to Assignee, in care of Assignee's Process Agent at
Assignee's Process Agent's above address. Assignee hereby irrevocably
authorizes and directs its respective process agent to accept such
service on its behalf.
11. COUNTERPARTS. This Assignment may be executed in one or more
counterparts, each of which shall be considered an original. Delivery of an
executed counterpart of a signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment.
Any delivery of a counterpart signature by telecopier shall, however, be
promptly followed by delivery of a manually executed counterpart.
12. CHANGE AND MODIFICATIONS. This Assignment may not be changed,
terminated or modified orally or in any manner other than by an agreement in
writing signed by the party sought to be charged therewith.
13. NO WAIVER. No waiver by any party of any provision of this
Assignment or any right, remedy or option hereunder shall be controlling, nor
shall it prevent or estop such party from thereafter enforcing such provision,
right, remedy or option, and the failure or refusal of any party hereto to
insist in any one or more instances upon the strict performance of any of the
terms or provisions of this Assignment by any other party hereto shall not be
construed as a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect, it being
understood and agreed that the rights, remedies and options of Assignee or the
Bank, acting as servicer on behalf of Assignee, hereunder are and shall be
cumulative and in addition to all other rights, remedies and options of Assignee
or the Bank, acting as servicer on behalf of Assignee, in law or in equity or
under any other agreement.
14. RECITALS. All of the recitals hereinabove set forth are
incorporated in this Assignment by reference.
15. PARAGRAPH HEADINGS, ETC. The headings of paragraphs contained in
this Assignment are provided for convenience only. They form no part of this
Assignment and shall not affect its construction or interpretation. All
references to paragraphs or subparagraphs of
-8-
this Assignment refer to the corresponding paragraphs and subparagraphs of this
Assignment. All words used herein shall be construed to be of such gender or
number as the circumstances require. This "Assignment" shall each mean this
Assignment as a whole and as the same may from time to time hereafter be amended
or modified. The words "herein," "hereby," "hereof," "hereto," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Assignment as a whole
and not to any particular paragraph, clause or other subdivision hereof, unless
otherwise specifically noted.
16. TERMINATION. Upon satisfaction in full of all obligations of
Assignor under the Loan Documents, this Assignment shall terminate and be of no
further force and effect and Assignee shall execute documents evidencing the
assignment of any outstanding Mortgage Loans to Assignor (without recourse),
provided however, that in the event an Event of Default under any Mortgage Loan
occurs, Assignee's obligation to assign such defaulted Mortgage Loan back to
Assignor as provided in this Section shall terminate, provided, further,
however, that to the extent any amounts collected by Assignee with respect to
such defaulted Mortgage Loan exceed an amount equal to the sum of (i) the amount
by which the principal amount of the Loan secured by such defaulted Mortgage
Loan was reduced pursuant to Section 2.04(b)(B) of the Loan Agreement, (ii) any
interest accrued on such amount at the applicable Interest Rate (as defined in
the Loan Agreement) compounded monthly, and (iii) the amount of any collection
expenses (including legal fees), such excess shall be applied against the Excess
Loan Amount and any remaining amount shall be remitted to Assignor.
17. PARTIAL INVALIDITY. In case any provision in this Assignment shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
18. NATIONAL HOUSING ACT. Subject to the terms and provisions of the
Servicing Agreement referred to above, the Mortgage Loans hereby assigned will
be administered and serviced by the Bank, as agent of Assignee, in accordance
with the National Housing Act (Canada) and National Housing Regulations
(Canada).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the twentieth (20th) day
of June, Two thousand and two (2002).
ASSIGNOR
NB FINANCE, LTD.
By:
-------------------------------
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ASSIGNEE
NB CAPITAL CORPORATION
By:
-------------------------------
BANK
NATIONAL BANK OF CANADA
By:
-------------------------------
By:
-------------------------------
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the sixth (6th) day of November, Two thousand and two (2002), before
me personally came XXXXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that she resides at 000 Xxxxxxxxx Xxxxxx, in the City of
Montreal, Province xx Xxxxxx, X0X 0X0, that she is the Assistant Secretary of NB
Finance, Ltd., the corporation described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the board of
directors of said corporation.
__________________________________
XXXXXX XXXXXX, attorney
EXHIBIT A
MORTGAGE LOANS
JUNE 2002 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(JUNE 2002 SERIES 8 LOAN)
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "ASSIGNMENT") made as of
June 20, 2002, constitutes an assignment from NB FINANCE, LTD., a Bermuda
corporation (the "ASSIGNOR"), to NB CAPITAL CORPORATION, a Maryland corporation,
(the "ASSIGNEE"), and an agreement by and among Assignor, Assignee and NATIONAL
BANK OF CANADA, a Canadian chartered bank, as custodian and servicer on behalf
of Assignee (the "BANK").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Assignor and Assignee have entered into a certain Loan
Agreement, as of June 20, 2002 (such Loan Agreement, as it may be amended or
modified from time to time, the "LOAN AGREEMENT"), under the terms of which
Assignee has, subject to the terms and conditions thereof, lent with respect to
the June 2002 Series 8 Loan (as defined in the Loan Agreement) a principal
amount of US$11,338,982.20 to Assignor, as of June 20, 2002.
WHEREAS, to evidence and secure its obligations with respect to the
June 2002 Series 8 Loan under the Loan Agreement, Assignor shall execute and
deliver certain Loan Documents (as defined in the Loan Agreement).
WHEREAS, Assignee has required and Assignor has agreed that Assignor
shall assign all of its right, title and interest in, to and under the mortgage
loans listed on Exhibit A attached hereto (the "MORTGAGE Loans"), each such
Mortgage Loan evidenced by certain agreements, deeds and proceedings (the
"MORTGAGE LOAN DOCUMENT") to Assignee and permit Assignee or its agents, to
administer, perform and enforce the Mortgage Loans upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the transactions hereinabove
described, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT.
(a) Assignor as beneficial owner hereby assigns, charges and
sets over to Assignee, and its successors and assigns, without recourse
to Assignor, all of Assignor's right, title and interest now or
hereafter acquired in, to and under the Mortgage Loans and all of the
real property (together with any proceeds (including, but not limited
to, any insurance, casualty and mortgage insurance proceeds), products,
substitutions, additions or replacements of any collateral mortgaged,
assigned or pledged under the Mortgage Loans) described therein
(collectively, the "COLLATERAL").
(b) Assignee hereby accepts the foregoing assignment, on
behalf of itself and its respective successors and assigns.
-2-
(c) Assignor hereby appoints Assignee the true and lawful
attorney-in-fact of Assignor, with full power of substitution, in its
own name, both before and/or after any Event of Default (as defined in
the Loan Agreement), to take any action under or in connection with the
Mortgage Loans. This power shall be deemed to be coupled with an
interest and shall be irrevocable.
(d) Assignor agrees that the assignment herein provided is
absolute and from and after the date hereof, subject to SECTION 16,
Assignee shall obtain legal title to the Mortgage Loans and Assignor
shall not have, and shall not exercise, any rights in and to the
Collateral, including, without limitation, any rights as payee,
mortgagee or assignee under any of the Mortgage Loan Documents, or any
rights to receive any payments or to exercise or omit to exercise,
waive, compromise or make any other actions or determinations or give
or receive any notices under or in respect of the Mortgage Loan
Documents, except such as Assignee may direct in order to better
effectuate the rights, remedies and security herein provided or
contemplated.
(e) Assignee, as payee under the Mortgage Loans, shall have
the right, both before and after an Event of Default (as defined in the
Loan Agreement) to collect and receive all payments of principal and
interest and any other amounts due and payable under the Mortgage Loan
Documents. On each Interest Payment Date (as defined in the Loan
Agreement), Assignee shall apply the US Dollar Equivalent (as defined
in the Loan Agreement) of the funds collected under the Mortgage Loan
Documents (i) first, to the payment of any interest due and payable
under the Loan Documents, (ii) second, to the payment of any scheduled
or unscheduled principal payments due and payable under the Loan
Documents, (iii) third, to the payment of any Excess Loan Amount (as
defined in the Loan Agreement) and (iv) fourth, to any other amounts
due and payable under the Loan Documents and shall, to the extent
available after payment of the amounts in clauses (i), (ii), (iii) and
(iv) above, remit the balance of any collections or payments to
Assignor.
TO HAVE AND TO HOLD the same unto Assignee, and its successors
and assigns.
2. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor represents and
warrants as follows:
(a) Assignor (i) is the sole owner of the Mortgage Loans and
such ownership is free and clear of any lien, security interest or
other encumbrance, (ii) has not granted any participation or other
interest or assignment, other option or rights to the Mortgage Loans,
other than to Assignee, and (iii) has not pledged, collaterally
assigned or otherwise hypothecated any interest therein or agreed to do
so, other than to Assignee.
(b) The registered office and principal place of business of
the Assignor is located in Hamilton, Bermuda.
(c) The execution, delivery and performance of this Assignment
by Assignor are within Assignor's power and authority, have been duly
authorized by all necessary action and do not and will not (i) require
any authorization which has not been
-3-
obtained, (ii) contravene the articles of incorporation or by-laws of
the Assignor, any applicable laws or any agreement or restriction
binding on or affecting Assignor or its property, or (iii) result in or
require the creation or imposition of any lien or right of others upon
or with respect to any property now or in the future owned by Assignor
(other than liens created in favor of Assignee hereunder). No
authorization which has not been obtained is required for the
assignment hereunder or the enforcement by Assignee of its remedies
under this Assignment. This Assignment, when executed and delivered,
will constitute the legal, valid and binding obligation of Assignor
enforceable against Assignor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the rights of creditors generally.
(d) The originals (including duplicate originals, if any) of
all the Mortgage Loan Documents, have been simultaneously herewith
delivered to the Bank as custodian for Assignee (except for any loan
documents which have been or will be submitted to public officials for
filing or recording and policies of title or other insurance which have
not yet been received by Assignor, which in either case will be
delivered directly to the Bank or forthwith turned over to the Bank as
and when received by the Assignor).
3. SERVICING. Until the satisfaction in full of all obligations of
Assignor under the Loan Agreement shall have occurred:
(a) Assignee or its agents, shall have the sole power and
authority to do or refrain from doing any act under or in connection
with the Mortgage Loan Documents and the property described therein
and/or this Assignment, including, without limitation, the sole power
and authority in its sole discretion, to (i) advance funds thereunder,
(ii) determine that all conditions to the advance of funds thereunder
have been satisfied (or to waive some or all of the conditions to
advance thereunder), and (iii) determine that a default or event of
default has occurred thereunder and to give any notice, demand or
protest in respect thereof;
(b) Assignor acknowledges that (i) the Bank, as agent of
Assignee, shall be named as mortgagee and loss payee on all fire,
extended coverage and other hazard insurance policies required under
the Mortgage Loan Documents, to the extent set forth therein and (ii)
Assignor and any mortgage and all other parties obligated to Assignor
under the Mortgage Loan Documents shall deal solely with the Bank,
acting on behalf of Assignee, under the Mortgage Loan Documents and
this Assignment, Assignor and all other parties so obligated shall be
entitled to rely on their actions so taken with respect to the Bank and
upon the action taken by the Bank, acting on behalf of Assignee, with
respect to them until the satisfaction in full of all obligations of
Assignor under the Loan Agreement or until Assignee shall appoint
another person to act on its behalf (or otherwise revoke the Bank's
authority to act on behalf of Assignee);
(c) Assignor agrees that Assignee or it agents shall have the
full power and authority, in its discretion, to take, or defer from
taking, any and all actions with respect to the administration and
enforcement of the Loan Documents, in order to effectuate the purposes
contemplated herein and therein, including the right, power and
authority to exercise any and all of the rights, remedies and options
reserved to Assignee or its
-4-
agents in, or given by law or equity to Assignee or it agents as holder
of the Mortgage Loan Documents, to enforce the Mortgage Loan Documents,
and to take such other actions for the protection and preservation of
the lien of the Mortgages, and protect and preserve all property
described therein should Assignee or its agents become the owner
thereof by foreclosure or otherwise as may be necessary and/or
appropriate.
4. EVENT OF DEFAULT: REMEDIES. If an event of default shall occur under
any Mortgage Loan (an "EVENT OF DEFAULT"), Assignee or its agents shall have all
the rights and remedies which would be available to Assignor (but for this
Assignment) under the Mortgage Loan Documents as set forth therein and as
permitted thereunder or otherwise available to Assignor (but for this
Assignment) in law or in equity, including, without limitation but in each
instance to the extent provided in and as conditioned by the Mortgage Loan
Documents, the right:
(a) To accelerate the maturity of such Mortgage Loan and all
other amounts due under the applicable Mortgage Loan Documents and to
declare the same to be or become immediately due and payable and
enforce payment thereof upon the happening of any Event of Default by
the mortgagor under such Mortgage Loan, as permitted therein, after the
giving of such applicable notice and/or the passage of such time as may
be provided for in such Mortgage Loan;
(b) To take such steps, institute and prosecute such actions
and proceedings and do or omit such acts which, in its judgment, are
advisable in order to enforce payment of all amounts due under the
Mortgage Loan Documents and realize upon the security provided
therefor, including, without limitation, (i) to select any of the
remedies available under the Mortgage Loan Documents or otherwise
available at law or in equity, (ii) to enter into or consent to any
amendment, modification and/or extension of the Mortgage Loan
Documents, (iii) to enter into or consent to any release, substitution
or exchange of all or any part of any security for such Mortgage Loan,
(iv) to waive any claim against the mortgagor or any person or entity
obligated under the Loan Documents and (v) to defer, extend, increase
or decrease any payment, instalment or other sum required or on account
of such Mortgage Loan and/or the applicable Mortgage Loan Documents;
(c) To discontinue any such action or proceeding commenced as
provided in SUBSECTION 4(b) above or to stay, delay, defer, discontinue
or withdraw the same;
(d) To enter or cause to be entered a bid at any foreclosure
sale of the property mortgaged securing such Mortgage Loan pursuant to
the applicable Mortgage Loan Documents (each such property a "MORTGAGED
PROPERTY") or any portion thereof;
(e) To acquire title in and to any Mortgaged Property or any
portion thereof in any foreclosure proceeding in its name or the name
of its nominee or designee;
(f) To accept a deed to any Mortgaged Property or any portion
thereof in lieu of foreclosure and to release the mortgagor from its
obligations under the Mortgage Loan in consideration of such deed in
lieu of foreclosure;
-5-
(g) To operate, manage and/or develop, or hire agents to
operate, manage and/or develop, any foreclosed or acquired Mortgaged
Property and to lease all or any portion thereof upon such terms and
conditions as it deems to be in the best interests of Assignee;
(h) To sell any foreclosed or acquired Mortgaged Property or
any portion thereof, upon such terms as it may deem to be in the best
interests of Assignee, including, without limitation, the right to take
back one or more purchase money notes and mortgages;
(i) To make advances for the payment for taxes, assessments,
water, sewer and vault charges, and all interest and penalties thereon,
insurance premiums and other similar or dissimilar items relating to
any Mortgaged Property, to the extent permitted by the applicable
Mortgage Loan Documents;
(j) To make advances for the account of the mortgagor under
such Mortgage Loan, to the extent permitted by the applicable Mortgage
Loan Documents;
(k) To collect, xxx for, receive and, subject to applicable
provisions of law, settle or compromise any claims for loss or damage
covered by insurance and/or condemnation of all or any portion of any
Mortgaged Property and to exercise its discretion in the proper
application and disposition of the net proceeds of such insurance
and/or condemnation award;
(l) To sell the Mortgage Loan at a fair market value; and
(m) Generally to do and take any and all actions which, but
for this Assignment, the Assignor would be entitled to do and take
under or with respect to the applicable Mortgage Loan Documents; it
being understood and agreed that this Assignment does not confer upon
the Assignee any greater rights with respect to the Mortgage Loan
Documents than granted to Assignor or expand or extend such rights, the
purpose of this Assignment being, inter alia, to assign, transfer and
allocate such rights and not to create new rights against any mortgagor
under the applicable Mortgage Loan, or to limit the rights or expand
the obligations of any such mortgagor, and in the event of any conflict
between the provisions of this Assignment and the provisions of the
Mortgage Loan Documents, the provisions of the Mortgage Loan Documents,
shall control.
5. POSSESSION OF MORTGAGE LOAN DOCUMENTS. From and after the date of
this Assignment, the Bank shall no longer hold the duly executed originals of
the Mortgage Loan Documents on its own behalf or as custodian for Assignor, but
shall hold the same as custodian for Assignee, pursuant to the terms of (i) the
custodial agreement dated as of June 20, 2002 by and between the Bank and
Assignee and (ii) the Amended and Restated Servicing Agreement dated as of June
28, 2001 by and between the Bank and Assignee.
-6-
6. FURTHER ASSURANCES.
(a) Assignor agrees that at any time and from time to time, at
the expense of Assignor, Assignor will promptly execute and deliver all
further instruments and documents, and take all further action, that
may be necessary or desirable, or that Assignee may reasonably request,
to effectuate the purpose or provisions of this Assignment or to
confirm or perfect any transaction described or contemplated herein or
to enable Assignee or its agents to exercise and enforce its rights and
remedies hereunder with respect to any Mortgage Loan Document. Assignor
and Assignee agree that Assignor shall reasonably cooperate (i) in
preparing, executing, delivering or having prepared, delivered and
executed by July 1, 2002 such documents or instruments which are
necessary or desirable to register legal title to each Mortgage Loan in
the name of Assignee in the appropriate land registry or other office
of public record, and (ii) in registering legal title to each Mortgage
Loan in the name of Assignee in the event the credit rating of the Bank
(or such other agent as may hold the Mortgage Loans on behalf of
Assignee) will fall below either "BBB-" by Standard & Poor's Rating
Services or "Baa" by Xxxxx'x Investor Service, Inc.
(b) Assignor hereby authorizes Assignee or its agents to file
and record one or more financing or continuation statements and
amendments thereto, relative to all or any part of the Loan Documents
without the signature of Assignor where permitted by the law.
7. ASSIGNMENT. This Assignment shall be binding upon and shall inure to
the benefit of the parties and their respective successors and assigns.
8. NOTICES. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to Assignor, at its
address at c/o Codan Services Limited, Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxxxx; and if to Assignee, at its
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer; or as to each other party, at such other address as shall be
designated by such party in a written notice to Assignee and Assignor. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
9. GOVERNING LAW. This Assignment and Agreement shall be governed by
and construed in accordance with the laws of Bermuda.
10. JURISDICTION.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any court sitting in Bermuda, and any
appellate court thereof, in any action or proceeding arising out of or
relating to this Assignment, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such
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Bermuda court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Assignment shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Assignment in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Assignment in any Bermuda court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court. Assignee hereby irrevocably appoints
Codan Services Limited, Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxx XX CX,
Bermuda ("ASSIGNEE'S PROCESS AGENT"), as its agent to receive, on
behalf of Assignee, service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding.
Any such service may be made by mailing or delivering a copy of such
process, if to Assignee, in care of Assignee's Process Agent at
Assignee's Process Agent's above address. Assignee hereby irrevocably
authorizes and directs its respective process agent to accept such
service on its behalf.
11. COUNTERPARTS. This Assignment may be executed in one or more
counterparts, each of which shall be considered an original. Delivery of an
executed counterpart of a signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment.
Any delivery of a counterpart signature by telecopier shall, however, be
promptly followed by delivery of a manually executed counterpart.
12. CHANGE AND MODIFICATIONS. This Assignment may not be changed,
terminated or modified orally or in any manner other than by an agreement in
writing signed by the party sought to be charged therewith.
13. NO WAIVER. No waiver by any party of any provision of this
Assignment or any right, remedy or option hereunder shall be controlling, nor
shall it prevent or estop such party from thereafter enforcing such provision,
right, remedy or option, and the failure or refusal of any party hereto to
insist in any one or more instances upon the strict performance of any of the
terms or provisions of this Assignment by any other party hereto shall not be
construed as a waiver or relinquishment for the future of any such term or
provision, but the same shall continue in full force and effect, it being
understood and agreed that the rights, remedies and options of Assignee or the
Bank, acting as servicer on behalf of Assignee, hereunder are and shall be
cumulative and in addition to all other rights, remedies and options of Assignee
or the Bank, acting as servicer on behalf of Assignee, in law or in equity or
under any other agreement.
14. RECITALS. All of the recitals hereinabove set forth are
incorporated in this Assignment by reference.
15. PARAGRAPH HEADINGS, ETC. The headings of paragraphs contained in
this Assignment are provided for convenience only. They form no part of this
Assignment and shall not affect its construction or interpretation. All
references to paragraphs or subparagraphs of
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this Assignment refer to the corresponding paragraphs and subparagraphs of this
Assignment. All words used herein shall be construed to be of such gender or
number as the circumstances require. This "Assignment" shall each mean this
Assignment as a whole and as the same may from time to time hereafter be amended
or modified. The words "herein," "hereby," "hereof," "hereto," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Assignment as a whole
and not to any particular paragraph, clause or other subdivision hereof, unless
otherwise specifically noted.
16. TERMINATION. Upon satisfaction in full of all obligations of
Assignor under the Loan Documents, this Assignment shall terminate and be of no
further force and effect and Assignee shall execute documents evidencing the
assignment of any outstanding Mortgage Loans to Assignor (without recourse),
provided however, that in the event an Event of Default under any Mortgage Loan
occurs, Assignee's obligation to assign such defaulted Mortgage Loan back to
Assignor as provided in this Section shall terminate, provided, further,
however, that to the extent any amounts collected by Assignee with respect to
such defaulted Mortgage Loan exceed an amount equal to the sum of (i) the amount
by which the principal amount of the Loan secured by such defaulted Mortgage
Loan was reduced pursuant to Section 2.04(b)(B) of the Loan Agreement, (ii) any
interest accrued on such amount at the applicable Interest Rate (as defined in
the Loan Agreement) compounded monthly, and (iii) the amount of any collection
expenses (including legal fees), such excess shall be applied against the Excess
Loan Amount and any remaining amount shall be remitted to Assignor.
17. PARTIAL INVALIDITY. In case any provision in this Assignment shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
18. NATIONAL HOUSING ACT. Subject to the terms and provisions of the
Servicing Agreement referred to above, the Mortgage Loans hereby assigned will
be administered and serviced by the Bank, as agent of Assignee, in accordance
with the National Housing Act (Canada) and National Housing Regulations
(Canada).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the twentieth (20th) day
of June, Two thousand and two (2002).
ASSIGNOR
NB FINANCE, LTD.
By:
--------------------------
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ASSIGNEE
NB CAPITAL CORPORATION
By:
--------------------------
BANK
NATIONAL BANK OF CANADA
By:
--------------------------
By:
--------------------------
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the sixth (6th) day of November, Two thousand and two (2002), before
me personally came XXXXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that she resides at 000 Xxxxxxxxx Xxxxxx, in the City of
Montreal, Province xx Xxxxxx, X0X 0X0, that she is the Assistant Secretary of NB
Finance, Ltd., the corporation described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the board of
directors of said corporation.
_____________________________________
XXXXXX XXXXXX, attorney
EXHIBIT A
MORTGAGE LOANS
