EXHIBIT 10(D)
Xxxxxxx and Xxxxxx
Draft of 10/31/97
Mortgage Loan Assignment Agreement
This Mortgage Loan Assignment Agreement (this "Assignment") made as of the
______ day of __________, 1997, constitutes an assignment from Xxxxxx Trust and
Savings Bank, an Illinois banking corporation (the "Assignor"), to Xxxxxx
Preferred Capital Corporation, a Maryland corporation (the "Assignee").
Witnesseth:
Whereas, Assignor has entered into a certain bank loan agreement, of even
date herewith, by and between Assignor and Assignee (such bank 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 Loan (as defined in the Loan Agreement), a
principal amount of $______________ to Assignor on the date hereof.
Whereas, Assignee has entered into a certain servicing agreement of even
date herewith (the "Servicing Agreement") by and between Assignee and Assignor,
as servicer (Assignor, and any subsequent servicer under the Servicing Agreement
being the "Servicer") and Assignee has entered into a certain custodial
agreement of even date herewith (the "Custodial Agreement") by and between
Assignee and _________, as custodian (_________, and any subsequent custodian
under the Custodial Agreement, being the "Custodian").
Whereas, to evidence and secure its obligations with respect to the 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
or representation by the Assignor, except as set forth herein or in the Loan
Documents, 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.
(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 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.
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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 Chicago, Illinois.
(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 charter 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 endorsed in blank and simultaneously
herewith delivered to the Custodian 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
to the Custodian 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,
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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 Servicer, 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 Assignor under the Mortgage
Loan Documents shall deal solely with the Servicer, 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 Servicer and upon the action taken by
the Servicer, 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 Servicer's authority to act on behalf of
Assignee); and
(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
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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 Mortgage Loans 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
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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, to the extent that the Assignor holds duly executed originals of the
Mortgage Loan Documents in its capacity as Servicer, the Assignor shall no
longer hold such documents on its own behalf, but shall hold the same as
custodian for Assignee.
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 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 Assignor (or
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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 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 Xxxxxx Trust and Savings Bank, ___________________________________;
if to the Assignee, at its address at Xxxxxx Preferred Capital Corporation,
______________________________________; or at such other address as shall be
designated by such parties in a written notice. All such notice 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 Illinois.
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 Illinois, 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 Illinois
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 court sitting in
Illinois. 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.
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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 an 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 hereunder are and shall be
cumulative and in addition to all other rights, remedies and options 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
similar import, refer to this Assignment as a whole and not to any particular
paragraph, 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 any
amounts collected by
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Assignee with respect to such defaulted Mortgage Loan shall be applied as
provided in the Loan Agreement.
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.
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In Witness Whereof, the Assignor and the Assignee have each duly executed
this Mortgage Loan Assignment Agreement as of the ______ day of __________,
1997.
ASSIGNOR
XXXXXX TRUST AND SAVINGS BANK
By
-----------------------------------
ASSIGNEE
XXXXXX PREFERRED CAPITAL CORPORATION
By
-----------------------------------
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Exhibit A
Mortgage Loans
