EXHIBIT 10.33
2002 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(December 2002 Series 2 Loan)
THIS MORTGAGE LOAN ASSIGNMENT AGREEMENT (this "Assignment") made as of
December 16, 2002, constitutes an assignment from NB FINANCE, LTD., a Bermuda
corporation (the "Assignor"), to NB CAPITAL CORPORATION, a Maryland corporation,
(the "Assignee"), and an agreement by and among Assignor, Assignee and NATIONAL
BANK OF CANADA, a Canadian chartered bank, as custodian and servicer on behalf
of Assignee (the "Bank").
W I T N E S S E T H :
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WHEREAS, Assignor and Assignee have entered into a certain Loan Agreement,
as of December 16, 2002 (such Loan Agreement, as it may be amended or modified
from time to time, the "Loan Agreement"), under the terms of which Assignee has,
subject to the terms and conditions thereof, lent with respect to the December
2002 Series 2 Loan (as defined in the Loan Agreement) a principal amount of
US$25,625,622.62 to Assignor, as of December 16, 2002.
WHEREAS, to evidence and secure its obligations with respect to the
December 2002 Series 2 Loan under the Loan Agreement, Assignor shall execute and
deliver certain Loan Documents (as defined in the Loan Agreement).
WHEREAS, Assignee has required and Assignor has agreed that Assignor shall
assign all of its right, title and interest in, to and under the mortgage loans
listed on Exhibit A attached hereto (the "Mortgage Loans"), each such Mortgage
Loan evidenced by certain agreements, deeds and proceedings (the "Mortgage Loan
Document") to Assignee and permit Assignee or its agents, to administer, perform
and enforce the Mortgage Loans upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the transactions hereinabove described,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Assignment.
(a) Assignor as beneficial owner hereby assigns, charges and sets over
to Assignee, and its successors and assigns, without recourse to Assignor,
all of Assignor's right, title and interest now or hereafter acquired in,
to and under the Mortgage Loans and all of the real property (together with
any proceeds (including, but not limited to, any insurance, casualty and
mortgage insurance proceeds), products, substitutions, additions or
replacements of any collateral mortgaged, assigned or pledged under the
Mortgage Loans) described therein (collectively, the "Collateral").
(b) Assignee hereby accepts the foregoing assignment, on behalf of
itself and its respective successors and assigns.
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(c) Assignor hereby appoints Assignee the true and lawful
attorney-in-fact of Assignor, with full power of substitution, in its own
name, both before and/or after any Event of Default (as defined in the Loan
Agreement), to take any action under or in connection with the Mortgage
Loans. This power shall be deemed to be coupled with an interest and shall
be irrevocable.
(d) Assignor agrees that the assignment herein provided is absolute
and from and after the date hereof, subject to Section 16, Assignee shall
obtain legal title to the Mortgage Loans and Assignor shall not have, and
shall not exercise, any rights in and to the Collateral, including, without
limitation, any rights as payee, mortgagee or assignee under any of the
Mortgage Loan Documents, or any rights to receive any payments or to
exercise or omit to exercise, waive, compromise or make any other actions
or determinations or give or receive any notices under or in respect of the
Mortgage Loan Documents, except such as Assignee may direct in order to
better effectuate the rights, remedies and security herein provided or
contemplated.
(e) Assignee, as payee under the Mortgage Loans, shall have the right,
both before and after an Event of Default (as defined in the Loan
Agreement) to collect and receive all payments of principal and interest
and any other amounts due and payable under the Mortgage Loan Documents. On
each Interest Payment Date (as defined in the Loan Agreement), Assignee
shall apply the US Dollar Equivalent (as defined in the Loan Agreement) of
the funds collected under the Mortgage Loan Documents (i) first, to the
payment of any interest due and payable under the Loan Documents, (ii)
second, to the payment of any scheduled or unscheduled principal payments
due and payable under the Loan Documents, (iii) third, to the payment of
any Excess Loan Amount (as defined in the Loan Agreement) and (iv) fourth,
to any other amounts due and payable under the Loan Documents and shall, to
the extent available after payment of the amounts in clauses (i), (ii),
(iii) and (iv) above, remit the balance of any collections or payments to
Assignor.
TO HAVE AND TO HOLD the same unto Assignee, and its successors and assigns.
2. Representations and Warranties of Assignor. Assignor represents and
warrants as follows:
(a) Assignor (i) is the sole owner of the Mortgage Loans and such
ownership is free and clear of any lien, security interest or other
encumbrance, (ii) has not granted any participation or other interest or
assignment, other option or rights to the Mortgage Loans, other than to
Assignee, and (iii) has not pledged, collaterally assigned or otherwise
hypothecated any interest therein or agreed to do so, other than to
Assignee.
(b) The registered office and principal place of business of the
Assignor is located in Hamilton, Bermuda.
(c) The execution, delivery and performance of this Assignment by
Assignor are within Assignor's power and authority, have been duly
authorized by all necessary action and do not and will not (i) require any
authorization which has not been
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obtained, (ii) contravene the articles of incorporation or by-laws of the
Assignor, any applicable laws or any agreement or restriction binding on or
affecting Assignor or its property, or (iii) result in or require the
creation or imposition of any lien or right of others upon or with respect
to any property now or in the future owned by Assignor (other than liens
created in favor of Assignee hereunder). No authorization which has not
been obtained is required for the assignment hereunder or the enforcement
by Assignee of its remedies under this Assignment. This Assignment, when
executed and delivered, will constitute the legal, valid and binding
obligation of Assignor enforceable against Assignor in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency or
other similar laws affecting the rights of creditors generally.
(d) The originals (including duplicate originals, if any) of all the
Mortgage Loan Documents, have been simultaneously herewith delivered to the
Bank as custodian for Assignee (except for any loan documents which have
been or will be submitted to public officials for filing or recording and
policies of title or other insurance which have not yet been received by
Assignor, which in either case will be delivered directly to the Bank or
forthwith turned over to the Bank as and when received by the Assignor).
3. Servicing. Until the satisfaction in full of all obligations of Assignor
under the Loan Agreement shall have occurred:
(a) Assignee or its agents, shall have the sole power and authority to
do or refrain from doing any act under or in connection with the Mortgage
Loan Documents and the property described therein and/or this Assignment,
including, without limitation, the sole power and authority in its sole
discretion, to (i) advance funds thereunder, (ii) determine that all
conditions to the advance of funds thereunder have been satisfied (or to
waive some or all of the conditions to advance thereunder), and (iii)
determine that a default or event of default has occurred thereunder and to
give any notice, demand or protest in respect thereof;
(b) Assignor acknowledges that (i) the Bank, as agent of Assignee,
shall be named as mortgagee and loss payee on all fire, extended coverage
and other hazard insurance policies required under the Mortgage Loan
Documents, to the extent set forth therein and (ii) Assignor and any
mortgage and all other parties obligated to Assignor under the Mortgage
Loan Documents shall deal solely with the Bank, acting on behalf of
Assignee, under the Mortgage Loan Documents and this Assignment, Assignor
and all other parties so obligated shall be entitled to rely on their
actions so taken with respect to the Bank and upon the action taken by the
Bank, acting on behalf of Assignee, with respect to them until the
satisfaction in full of all obligations of Assignor under the Loan
Agreement or until Assignee shall appoint another person to act on its
behalf (or otherwise revoke the Bank's authority to act on behalf of
Assignee);
(c) Assignor agrees that Assignee or it agents shall have the full
power and authority, in its discretion, to take, or defer from taking, any
and all actions with respect to the administration and enforcement of the
Loan Documents, in order to effectuate the purposes contemplated herein and
therein, including the right, power and authority to exercise any and all
of the rights, remedies and options reserved to Assignee or its
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agents in, or given by law or equity to Assignee or it agents as holder of
the Mortgage Loan Documents, to enforce the Mortgage Loan Documents, and to
take such other actions for the protection and preservation of the lien of
the Mortgages, and protect and preserve all property described therein
should Assignee or its agents become the owner thereof by foreclosure or
otherwise as may be necessary and/or appropriate.
4. Event of Default: Remedies. If an event of default shall occur under any
Mortgage Loan (an "Event of Default"), Assignee or its agents shall have all the
rights and remedies which would be available to Assignor (but for this
Assignment) under the Mortgage Loan Documents as set forth therein and as
permitted thereunder or otherwise available to Assignor (but for this
Assignment) in law or in equity, including, without limitation but in each
instance to the extent provided in and as conditioned by the Mortgage Loan
Documents, the right:
(a) To accelerate the maturity of such Mortgage Loan and all other
amounts due under the applicable Mortgage Loan Documents and to declare the
same to be or become immediately due and payable and enforce payment
thereof upon the happening of any Event of Default by the mortgagor under
such Mortgage Loan, as permitted therein, after the giving of such
applicable notice and/or the passage of such time as may be provided for in
such Mortgage Loan;
(b) To take such steps, institute and prosecute such actions and
proceedings and do or omit such acts which, in its judgment, are advisable
in order to enforce payment of all amounts due under the Mortgage Loan
Documents and realize upon the security provided therefor, including,
without limitation, (i) to select any of the remedies available under the
Mortgage Loan Documents or otherwise available at law or in equity, (ii) to
enter into or consent to any amendment, modification and/or extension of
the Mortgage Loan Documents, (iii) to enter into or consent to any release,
substitution or exchange of all or any part of any security for such
Mortgage Loan, (iv) to waive any claim against the mortgagor or any person
or entity obligated under the Loan Documents and (v) to defer, extend,
increase or decrease any payment, instalment or other sum required or on
account of such Mortgage Loan and/or the applicable Mortgage Loan
Documents;
(c) To discontinue any such action or proceeding commenced as provided
in subsection 4(b) above or to stay, delay, defer, discontinue or withdraw
the same;
(d) To enter or cause to be entered a bid at any foreclosure sale of
the property mortgaged securing such Mortgage Loan pursuant to the
applicable Mortgage Loan Documents (each such property a "Mortgaged
Property") or any portion thereof;
(e) To acquire title in and to any Mortgaged Property or any portion
thereof in any foreclosure proceeding in its name or the name of its
nominee or designee;
(f) To accept a deed to any Mortgaged Property or any portion thereof
in lieu of foreclosure and to release the mortgagor from its obligations
under the Mortgage Loan in consideration of such deed in lieu of
foreclosure;
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(g) To operate, manage and/or develop, or hire agents to operate,
manage and/or develop, any foreclosed or acquired Mortgaged Property and to
lease all or any portion thereof upon such terms and conditions as it deems
to be in the best interests of Assignee;
(h) To sell any foreclosed or acquired Mortgaged Property or any
portion thereof, upon such terms as it may deem to be in the best interests
of Assignee, including, without limitation, the right to take back one or
more purchase money notes and mortgages;
(i) To make advances for the payment for taxes, assessments, water,
sewer and vault charges, and all interest and penalties thereon, insurance
premiums and other similar or dissimilar items relating to any Mortgaged
Property, to the extent permitted by the applicable Mortgage Loan
Documents;
(j) To make advances for the account of the mortgagor under such
Mortgage Loan, to the extent permitted by the applicable Mortgage Loan
Documents;
(k) To collect, xxx for, receive and, subject to applicable provisions
of law, settle or compromise any claims for loss or damage covered by
insurance and/or condemnation of all or any portion of any Mortgaged
Property and to exercise its discretion in the proper application and
disposition of the net proceeds of such insurance and/or condemnation
award;
(l) To sell the Mortgage Loan at a fair market value; and
(m) Generally to do and take any and all actions which, but for this
Assignment, the Assignor would be entitled to do and take under or with
respect to the applicable Mortgage Loan Documents; it being understood and
agreed that this Assignment does not confer upon the Assignee any greater
rights with respect to the Mortgage Loan Documents than granted to Assignor
or expand or extend such rights, the purpose of this Assignment being,
inter alia, to assign, transfer and allocate such rights and not to create
new rights against any mortgagor under the applicable Mortgage Loan, or to
limit the rights or expand the obligations of any such mortgagor, and in
the event of any conflict between the provisions of this Assignment and the
provisions of the Mortgage Loan Documents, the provisions of the Mortgage
Loan Documents, shall control.
5. Possession of Mortgage Loan Documents. From and after the date of this
Assignment, the Bank shall no longer hold the duly executed originals of the
Mortgage Loan Documents on its own behalf or as custodian for Assignor, but
shall hold the same as custodian for Assignee, pursuant to the terms of (i) the
custodial agreement dated as of December 16, 2002 by and between the Bank and
Assignee and (ii) the Amended and Restated Servicing Agreement dated as of June
28, 2001 by and between the Bank and Assignee.
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6. Further Assurances.
(a) Assignor agrees that at any time and from time to time, at the
expense of Assignor, Assignor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or desirable, or that Assignee may reasonably request, to
effectuate the purpose or provisions of this Assignment or to confirm or
perfect any transaction described or contemplated herein or to enable
Assignee or its agents to exercise and enforce its rights and remedies
hereunder with respect to any Mortgage Loan Document. Assignor and Assignee
agree that Assignor shall reasonably cooperate (i) in preparing, executing,
delivering or having prepared, delivered and executed by July 1, 2003 such
documents or instruments which are necessary or desirable to register legal
title to each Mortgage Loan in the name of Assignee in the appropriate land
registry or other office of public record, and (ii) in registering legal
title to each Mortgage Loan in the name of Assignee in the event the credit
rating of the Bank (or such other agent as may hold the Mortgage Loans on
behalf of Assignee) will fall below either "BBB-" by Standard & Poor's
Rating Services or "Baa" by Xxxxx'x Investor Service, Inc.
(b) Assignor hereby authorizes Assignee or its agents to file and
record one or more financing or continuation statements and amendments
thereto, relative to all or any part of the Loan Documents without the
signature of Assignor where permitted by the law.
7. Assignment. This Assignment shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns.
8. Notices. All notices and other communications provided for hereunder
shall be in writing (including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to Assignor, at its
address at c/o Codan Services Limited, Clarendon House, 0 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00, Xxxxxxx, Xxxxxxxxx: Xxxxx Xxxxxxx; and if to Assignee, at its
address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief
Financial Officer; or as to each other party, at such other address as shall be
designated by such party in a written notice to Assignee and Assignor. All such
notices and communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
9. Governing Law. This Assignment and Agreement shall be governed by and
construed in accordance with the laws of Bermuda.
10. Jurisdiction.
(a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of
any court sitting in Bermuda, and any appellate court thereof, in any
action or proceeding arising out of or relating to this Assignment, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in any such
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Bermuda court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Assignment shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this
Assignment in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Assignment in any
Bermuda court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court. Assignee
hereby irrevocably appoints Codan Services Limited, Xxxxxxxxx Xxxxx, Xxxxxx
Xxxxxx, Xxxxxxxx XX CX, Bermuda ("Assignee's Process Agent"), as its agent
to receive, on behalf of Assignee, service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding. Any such service may be made by mailing or delivering a copy of
such process, if to Assignee, in care of Assignee's Process Agent at
Assignee's Process Agent's above address. Assignee hereby irrevocably
authorizes and directs its respective process agent to accept such service
on its behalf.
11. Counterparts. This Assignment may be executed in one or more
counterparts, each of which shall be considered an original. Delivery of an
executed counterpart of a signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment.
Any delivery of a counterpart signature by telecopier shall, however, be
promptly followed by delivery of a manually executed counterpart.
12. Change and Modifications. This Assignment may not be changed,
terminated or modified orally or in any manner other than by an agreement in
writing signed by the party sought to be charged therewith.
13. No Waiver. No waiver by any party of any provision of this Assignment
or any right, remedy or option hereunder shall be controlling, nor shall it
prevent or estop such party from thereafter enforcing such provision, right,
remedy or option, and the failure or refusal of any party hereto to insist in
any one or more instances upon the strict performance of any of the terms or
provisions of this Assignment by any other party hereto shall not be construed
as a waiver or relinquishment for the future of any such term or provision, but
the same shall continue in full force and effect, it being understood and agreed
that the rights, remedies and options of Assignee or the Bank, acting as
servicer on behalf of Assignee, hereunder are and shall be cumulative and in
addition to all other rights, remedies and options of Assignee or the Bank,
acting as servicer on behalf of Assignee, in law or in equity or under any other
agreement.
14. Recitals. All of the recitals hereinabove set forth are incorporated in
this Assignment by reference.
15. Paragraph Headings, etc. The headings of paragraphs contained in this
Assignment are provided for convenience only. They form no part of this
Assignment and shall not affect its construction or interpretation. All
references to paragraphs or subparagraphs of
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this Assignment refer to the corresponding paragraphs and subparagraphs of this
Assignment. All words used herein shall be construed to be of such gender or
number as the circumstances require. This "Assignment" shall each mean this
Assignment as a whole and as the same may from time to time hereafter be amended
or modified. The words "herein," "hereby," "hereof," "hereto," "hereinabove" and
"hereinbelow," and words of similar import, refer to this Assignment as a whole
and not to any particular paragraph, clause or other subdivision hereof, unless
otherwise specifically noted.
16. Termination. Upon satisfaction in full of all obligations of Assignor
under the Loan Documents, this Assignment shall terminate and be of no further
force and effect and Assignee shall execute documents evidencing the assignment
of any outstanding Mortgage Loans to Assignor (without recourse), provided
however, that in the event an Event of Default under any Mortgage Loan occurs,
Assignee's obligation to assign such defaulted Mortgage Loan back to Assignor as
provided in this Section shall terminate, provided, further, however, that to
the extent any amounts collected by Assignee with respect to such defaulted
Mortgage Loan exceed an amount equal to the sum of (i) the amount by which the
principal amount of the Loan secured by such defaulted Mortgage Loan was reduced
pursuant to Section 2.04(b)(B) of the Loan Agreement, (ii) any interest accrued
on such amount at the applicable Interest Rate (as defined in the Loan
Agreement) compounded monthly, and (iii) the amount of any collection expenses
(including legal fees), such excess shall be applied against the Excess Loan
Amount and any remaining amount shall be remitted to Assignor.
17. Partial Invalidity. In case any provision in this Assignment shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
18. National Housing Act. Subject to the terms and provisions of the
Servicing Agreement referred to above, the Mortgage Loans hereby assigned will
be administered and serviced by the Bank, as agent of Assignee, in accordance
with the National Housing Act (Canada) and National Housing Regulations
(Canada).
IN WITNESS WHEREOF, the Assignor and each other party hereto has duly
executed the Mortgage Loan Assignment Agreement as of the sixteenth (16th) day
of December, Two thousand and two (2002).
ASSIGNOR
NB FINANCE, LTD.
By:
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ASSIGNEE
NB CAPITAL CORPORATION
By:
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BANK
NATIONAL BANK OF CANADA
By:
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By:
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PROVINCE OF QUEBEC )
) ss.:
DISTRICT OF MONTREAL )
On the fifteenth (15th) day of May, Two thousand and three (2003), before
me personally came XXXXXX XXXXXXXX to me known, who, being by me duly sworn, did
depose and say that she resides at 000 Xxxxxxxxx Xxxxxx, in the City of
Montreal, Province xx Xxxxxx, X0X 0X0, that she is the Assistant Secretary of NB
Finance, Ltd., the corporation described in and which executed the foregoing
instrument; and that she signed her name thereto by authority of the board of
directors of said corporation.
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XXXXXX XXXXXX, attorney
Exhibit A
Mortgage Loans
