1998 MORTGAGE LOAN ASSIGNMENT AGREEMENT
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "Assignment") made as of
the fourth (4th) day of December, 1998, 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,
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 1998 Series 2 Loan (as defined in the Loan Agreement), a principal amount
of U.S. $ 25,836,597.23 to Assignor on the same date.
WHEREAS, to evidence and secure its obligations with respect to the 1998
Series 1 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
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 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.
(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
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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 or 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);
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(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 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
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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;
(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
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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 December 4, 1998 by and between the Bank and
Assignee and (ii) the Servicing Agreement dated as of September 3rd, 1997 and
the First Supplemental Servicing Agreement dated as of December 4, 1998 by and
between the Bank and 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 March 31, 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 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 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: Chief Executive 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
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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 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
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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 or 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
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 as supplemented by the First Supplemental 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).
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IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the fourth day of
December, 1998.
ASSIGNOR
NB FINANCE, LTD.
By /s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx, Assistant
Secretary
ASSIGNEE
NB CAPITAL CORPORATION
By /s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx, Vice-President
BANK
NATIONAL BANK OF CANADA
By /s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx, Manager,
Treasury,
Cash Management
Department Manager
By /s/ Xxxxxxx Xxxx
---------------------------------
Xxxxxxx Xxxx, Manager,
Treasury,
Matching
Department Manager
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PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the fourth December, 1998, before me personally came XXXXXX XXXXXXXX to
me know, who, being by me duly sworn, did depose and say that she resides at 40
Querbes, Apartment 9, Outremont, Province of Quebec, that she is the Assistant
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/ Commissary of Oath
---------------------------------------------
Commissary of Oath for Province of Xxxxxx, Xx.
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XXXXXXXX XX XXXXXX )
)
DISTRICT OF MONTREAL )
On the seventh day of December, 1998, before me personally came Xxxxxx
Xxxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at 000 xx x'Xxxx, Xxxxxxxxx, Xxxxxxxx xx Xxxxxx, that he is
Vice-President 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/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx
Lawyer
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PROVINCE OF QUEBEC )
)
DISTRICT OF MONTREAL )
On the seventh day of December, 1998, before me personally came Xxxxxx
Xxxxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at 0000 xx Xxxxxx, Xxxxx, Xxxxxxxx of Quebec, that he is Manager,
Treasury, Cash Management (Department Manager) 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 bank.
/s/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx
Lawyer
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PROVINCE OF QUEBEC )
)
DISTRICT OF MONTREAL )
On the seventh day of December, 1998, before me personally came Xxxxxxx
Xxxx to me known, who, being by me duly sworn, did depose and say that he
resides at 000 Xx Xxxxxxxx, Xx-Xxxxxxx, Xxxxxxxx xx Xxxxxx, that he is Manager,
Treasury, Matching (Department Manager) 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 bank.
/s/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx
Lawyer
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Exhibit A
Mortgage Loans
