AUGUST 2005 MORTGAGE LOAN ASSIGNMENT AGREEMENT (August 2005 Series 1 Loan)
EXHIBIT
10.44
AUGUST
2005 MORTGAGE LOAN ASSIGNMENT AGREEMENT
(August
2005 Series 1 Loan)
THIS
MORTGAGE LOAN ASSIGNMENT AGREEMENT (this ”Assignment”)
made
as of August 29, 2005, 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 and Assignee have entered into a certain Loan Agreement, as of August
29, 2005 (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 August 2005 Series 1 Loan (as defined in the Loan
Agreement) a principal amount of US$97,736,747.47 to Assignor, as of August
29,
2005.
WHEREAS,
to evidence and secure its obligations with respect to the August 2005
Series 1 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.
(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
Xxxxxxxx, Bermuda.
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(c) The
execution, delivery and performance of this Assignment by Assignor are within
Assignor’s power and authority, have been duly authorized by all necessary
action and do not and will not (i) require any authorization which has not
been obtained, (ii) contravene the articles of incorporation or by-laws of
the Assignor, any applicable laws or any agreement or restriction binding
on or
affecting Assignor or its property, or (iii) result in or require the
creation or imposition of any lien or right of others upon or with respect
to
any property now or in the future owned by Assignor (other than liens created
in
favor of Assignee hereunder). No authorization which has not been obtained
is
required for the assignment hereunder or the enforcement by Assignee of its
remedies under this Assignment. This Assignment, when executed and delivered,
will constitute the legal, valid and binding obligation of Assignor enforceable
against Assignor in accordance with its terms, except as enforcement may
be
limited by bankruptcy, insolvency or other similar laws affecting the rights
of
creditors generally.
(d) The
originals (including duplicate originals, if any) of all the Mortgage Loan
Documents, have been simultaneously herewith delivered to the Bank as custodian
for Assignee (except for any loan documents which have been or will be submitted
to public officials for filing or recording and policies of title or other
insurance which have not yet been received by Assignor, which in either case
will be delivered directly to the Bank or forthwith turned over to the Bank
as
and when received by the Assignor).
3. Servicing. Until
the satisfaction in full of all obligations of Assignor under the Loan Agreement
shall have occurred:
(a) Assignee
or its agents, shall have the sole power and authority to do or refrain from
doing any act under or in connection with the Mortgage Loan Documents and
the
property described therein and/or this Assignment, including, without
limitation, the sole power and authority in its sole discretion, to
(i) advance funds thereunder, (ii) determine that all conditions to
the advance of funds thereunder have been satisfied (or to waive some or
all of
the conditions to advance thereunder), and (iii) determine that a default
or event of default has occurred thereunder and to give any notice, demand
or
protest in respect thereof;
(b) Assignor
acknowledges that (i) the Bank, as agent of Assignee, shall be named as
mortgagee and loss payee on all fire, extended coverage and other hazard
insurance policies required under the Mortgage Loan Documents, to the extent
set
forth therein and (ii) Assignor and any 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.
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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;
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(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 August 29,
2005 by and between the Bank and Assignee and (ii) the Amended and Restated
Servicing Agreement dated as of June 28, 2005 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
April 1, 2006 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: Secretary; and if to Assignee, at its address at
00 Xxxx 00xx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx, 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.
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(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 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.
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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,
Company, Servicer and Custodian have caused their names to be duly signed
hereto
by their respective officers thereunto duly authorized, all as of the date
first
above written.
ASSIGNOR
NB
FINANCE, LTD.
By:
/s/ Xxxxxx-Xxxxxx Xxxxxxxxx
Xxxxxx-Xxxxxx
Xxxxxxxxx
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ASSIGNEE
NB
CAPITAL CORPORATION
By:
/s/ Xxxx Xxxxxxxx
Xxxx
Xxxxxxxx
BANK
NATIONAL
BANK OF CANADA
By:
/s/ Xxxxxx-Xxxxxx Xxxxxxxxx
Xxxxxx-Xxxxxx
Xxxxxxxxx
By:
/s/ Xxxxx Xxxx
Xxxxx
Xxxx
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| PROVINCE OF QUÉBEC | ) | |
| ) ss.: | ||
| DISTRICT OF MONTRÉAL | ) |
On
the
fourteenth (14th)
day of
March, Two thousand and six (2006), before me personally came Xxxxxx-Xxxxxx
Xxxxxxxxx to me known, who, being by me duly sworn, did depose and say that
he
resides at 0000, xxxxxx xx Xxxxxxx, Xxxxxxxx, Province of Québec, H4A 2S4, that
he 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.
XXXXXXX
XXXXXXXX, attorney
Exhibit
A
Mortgage
Loans
