MORTGAGE LOAN ASSIGNMENT AGREEMENT
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "Assignment")
made as of the 3rd day of September, 1997, 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 has entered into a certain Loan Agreement,
of even date herewith, by and between Assignor and Assignee (such Loan
Agreement, as it may be amended or modified from time to time, the "Loan
Agreement"), pursuant to which Assignee has agreed, subject to the terms and
conditions thereof, to lend, with respect to the 1997 Series 8 Loan (as defined
in the Loan Agreement), a principal amount of U.S.$ 29,713,817 to Assignor on
the date hereof.
WHEREAS, to evidence and secure its obligations with respect
to the 1997 Series 8 Loan under the Loan Agreement, Assignor shall execute and
deliver as of the date hereof, 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 Documents") 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 U.S. 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.
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(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 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 mortgagor and all other parties obligated to
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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 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
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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,
installment 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 in consideration of such deed in lieu of
foreclosure;
(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;
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(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 September 3, 1997 by and
between the Bank and Assignee and (ii) the Servicing Agreement dated as of
September 3, 1997 by and between the Bank and Assignor, as assigned to Assignee
pursuant to an Assignment of Servicing Agreement dated as of September 3, 1997.
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
Borrower shall reasonably cooperate (i) in preparing, executing, delivering or
having prepared, delivered and executed by January 1, 1998 such documents or
instruments which are necessary or desirable to register legal title to each
Mortgage Loan in the name of Lender 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 Lender 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
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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 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 x/x Xxxxxxx Xxxx & Xxxxxxx, Xxxxxxxxx Xxxxx, 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: Xxxxx Xxxxx; 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
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
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irrevocably appoints Xxxxxxx Xxxx & Xxxxxxx, Clarendon House, Church Street,
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 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
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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 Lender 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 Borrower.
19. 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.
20. National Housing Act. Subject to the terms and provisions
of the Servicing Agreement, 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 this Mortgage Loan Assignment Agreement as of the 3rd day of
September, 1997,
ASSIGNOR
NB FINANCE, LTD.
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------
Xxxxxxxx Xxxxxxxx
Secretary
[SIGNATURE PAGE CONTINUES ON NEXT PAGE]
ASSIGNEE
NB CAPITAL CORPORATION
By: /s/ Real Xxxxxxx
---------------------------
Real Xxxxxxx
Chief Financial Officer &
Treasurer
BANK
NATIONAL BANK OF CANADA
By: /s/ Real Xxxxxxx
---------------------------
Real Xxxxxxx
Senior Vice-President-Treasury
and Financial Markets
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the 3rd day of September 1997, before me personally came
Xxxxxxxx Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he resides at ______________________________________________, that he is a
Secretary of NB Finance, Ltd., the corporation described in and which executed
the foregoing instrument; and that he signed his name thereto by authority of
the board of directors of said corporation.
/s/ [signature and seal] #95089
--------------------------------
Commissary of Oath for Province of Quebec, No.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 3rd day of September 1997, before me personally came
Real Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he resides at ______Vervun 11 O'Reilly Quebec______, that he is a Chief
Financial Officer & Treasurer of NB Capital Corporation, the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by authority of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Notary Public
[stamp of
Xxxxx Xxxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires May 1, 1999]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 3rd day of September 1997, before me personally came
Real Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he resides at ______Vervun 11 O'Reilly Quebec______, that he is a Senior Vice
President-Treasury and Financial Markets of National Bank of Canada, the bank
described in and which executed the foregoing instrument; and that he signed his
name thereto by authority of the board of directors of said corporation.
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Notary Public
[stamp of
Xxxxx Xxxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires May 1, 1999]
Exhibit A
Mortgage Loans
