Exhibit 10.15
1999 MORTGAGE LOAN ASSIGNMENT AGREEMENT
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "Assignment") made as
of September 28, 1999, 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"), under the terms of
which Assignee has, subject to the terms and conditions thereof, lent, with
respect to the 1999 Series 4 Loan (as defined in the Loan Agreement), a
principal amount of U.S. $ 47,783,095.36 to Assignor as of September 7, 1999.
WHEREAS, to evidence and secure its obligations with respect to the
1999 Series 4 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.
(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 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);
(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 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 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 28, 1999 by and between the Bank and
Assignee and (ii) the Servicing Agreement dated as of September 3rd, 1997 as
supplemented by the First Supplemental Servicing Agreement dated as of December
4, 1998 and the Second Supplemental Servicing Agreement dated as of September
28, 1999 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, 2000 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 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 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 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 and the Second 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).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the twenty-eighth
(28th) day of September nineteen hundred and ninety-nine (1999).
ASSIGNOR
NB FINANCE, LTD.
By: /s/ Xxxx Xxxxxxxx
--------------------------------
ASSIGNEE
NB CAPITAL CORPORATION
By:
---------------------------------
BANK
NATIONAL BANK OF CANADA
By:
---------------------------------
By:
---------------------------------
PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the twenty-eighth (28th) day of September, 1999, before me
personally came XXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that he resides at 0000 Xxxxxxxx Xxxxxx, Apartment 4, in the City
of Outremont, Province xx Xxxxxx, X0X 0X0, that he is the Treasurer 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/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX, attorney
